Opinion Number. 1893



Key Legislation

CONSTITUTION ss 51(xxiiiA), 96, 122: NATIONAL HEALTH SERVICE ACT 1948 ss 7(4), 9

The Director

The Director-General of Health has forwarded the following memorandum for advice:

1.  As a means of improving the nutrition of children, Cabinet has approved, under the National Health Scheme, of the provision of milk daily to school children 12 years of age and under throughout the Commonwealth. Broadly the proposal is this—

(1)  that a quantity of milk to be determined, but not exceeding a half pint per day, be supplied to all children twelve years of age and under attending public or private primary schools and recognised kindergartens, creches, and nursing schools;

(2)  that the scheme be administered by the State Governments except insofar as the A.C.T. and Northern Territory are concerned, and financed by the Commonwealth on the following basis:

(a)  the States to make all the arrangements for the supply and distribution of the milk within the schools;

(b)  the States to be responsible for the administrative costs;

(c)  the Commonwealth to reimburse the States for the actual costs of supplying and delivering the milk to the schools;

(3)  that the Department of the Interior administer the scheme in the A.C.T. and in the Northern Territory if milk is available.

2.  It is thought that the scheme would come under Section 7(4)(d) of the National Health Service Act 1948–49 and that arrangements for the administration of the scheme by the States could be made under Section 9. Your opinion as to whether this is so would be appreciated and also your advice as to whether this comes within the terms of Section 51(xxiiiA) of the Constitution. The alternative might be to make the arrangements under Section 96 of the Constitution and to do this, no doubt, a special Act would be required.

3.  A meeting of Commonwealth and State officers concerned is being arranged for later this month to work out ways and means of implementing the scheme and to discuss details. This will be followed shortly afterwards by a conference of State Ministers for Health and Education and the Commonwealth Ministers for Commerce and Agriculture, and Health.

4.  It would be appreciated if you could furnish an opinion urgently so that the position will be known prior to the meeting of Commonwealth and State officers.

(2)  In my opinion, the only constitutional foundation for Commonwealth participation in the scheme to supply milk for school children which is entirely secure is section 96 of the Constitution, authorising the Commonwealth to grant financial assistance to the States. In view of the fact that in any event it is proposed that the present scheme should be administered by the States which would bear their own administrative costs, the Commonwealth merely reimbursing them for the actual cost of the supply and delivery of the milk, I gather that reliance upon section 96 will not give rise to any practical difficulties.

(3)  The question whether the Commonwealth could inaugurate the scheme under the National Health Service Act 1948–1949, would depend upon whether the supply of milk to school children under the age of 12 years is a ‘medical service’ within the meaning of that term as used in the Act. The phrase ‘medical services’ bears, I think, the same meaning in the Act as it bears in paragraph (xxiiiA) of section 51 of the Constitution.

(4)  The meaning of the phrase has not yet been examined by the High Court, so that no guidance can be obtained from previous decisions. In general however it may be said that constitutional powers are not to be narrowly construed. I do not think that this particular phrase in paragraph (xxiiiA) is confined to the actual attention rendered by a medical practitioner to a patient. Nor do I think that it is limited to the cure, as opposed to the prevention, of ill-health.

(5)  However, there are bound to be marginal cases where it is difficult to decide whether the particular service is a ‘medical service’ or a general social welfare service which promotes physical well-being. If the supply of additional milk to school children were recommended by some medical research body as a measure of prevention of ill-health, or if the supply were limited to children possessing special physical or environmental characteristics, it might not be hard to classify the proposal as a ‘medical service’. On the information before me, however, I incline to the view that the proposed supply of milk to school children under 12 would at best be a marginal case. Certainly I could not advise with confidence that it would be held in itself to be a ‘medical service’ within the meaning of the Constitution and the National Health Service Act.

(6)  It is suggested in the memorandum submitted for advice that section 7(4)(d) of the Act might possibly authorize the Director-General to inaugurate the scheme. As I read the Act however, this sub-section plays only a limited, and essentially secondary, part in the general plan. The specific matters authorized in sub-section (4) are in fact expressed only as particular illustrations of the power given by sub-section (3)—viz., to do anything incidental to the provision of any medical or dental service under sub-section (1) of section 7. Hence, before action could be taken under sub-section (4), a medical service would need to be prescribed under sub-section (1) and the provision of milk would need to be incidental to the provision of the prescribed service. Accordingly, sub-section (4) cannot be regarded in present circumstances as a source of Commonwealth authority to provide free milk for school children. Either the proposed supply comes under sub-section (1), or the Act as it stands would not cover it. The question of action under sub-section (1) I have of course already considered above.

(7)  Accordingly, the Commonwealth is thrown back upon section 96 as the constitutional foundation for its participation in the present scheme. This section provides for the granting of financial assistance to the States on such terms and conditions as the Parliament thinks fit. The section does not require the enactment of anything in the nature of a special States Grants Act. The constitutional power would be effectively exercised by a provision in an Appropriation Act enabling the grant of assistance on such terms and conditions as are approved by the Treasurer or the Minister for Health. Equally the matter could be provided for in a special Act.

(8)  If the method of a special Act is adopted, it is strongly recommended that the arrangement between the Commonwealth and the State should not appear as a Schedule to the Act. The actual terms of the arrangements between the Commonwealth and the States in connexion with the supply of milk should be embodied in an executive agreement between the Governments; but for this purpose no special form would be necessary, and a simple exchange of letters would suffice.

(9)  I assume that no difficulty is anticipated in regard to the supply of milk in Commonwealth Territories. From the constitutional point of view, legislation providing for the supply of milk in the Territories is clearly within power. The only statutory authority necessary would be the provision in the Appropriation Act of the requisite funds for the supply of the milk. The administrative machinery in connexion with the supply could be arranged with the Department of the Interior.

[Vol. 39, p. 240]