Attorney-General (Victoria); Ex rel Dale v Commonwealth
Encyclopedia
Attorney-General; Ex rel Dale v Commonwealth (1945) 71 CLR
237 - commonly known as the "Pharmaceutical Benefits case" - was a High Court of Australia
decision. The case dealt with limits of the powers of the Australian Federal Government under section 81
of the Australian Constitution
to take and spend money by legislation
, in this case to fund reduced prices for prescription medicines.
Federal Government of Prime Minister
Ben Chifley
bill
for the "Pharmaceutical Benefits Act 1944" received Royal Assent. The law was immediately challenged by the Attorney general
of Victoria on behalf of
the Victorian Medical Association
and a number of medical doctors
including one Dr Dale.
Attorney General had "standing
" to intercede in a Commonwealth
matter. Justice Dixon
led the court in finding there was standing.
On the substantial matter of the constitutionality of "Pharmaceutical Benefits Act 1944", the court was split. Only Justice McTeirnan
's decision was unambiguously for the Commonwealth. Chief Justice Latham, Justices Starke
, Williams
and Rich
wrote non-determinative judgments
with respect to "standing", but nevertheless determined that the Pharmaceutical Benefits Act 1944 was beyond the scope of the powers
granted to the Federal Government in section 81 of the Constitution of Australia.
201, the "Second Pharmaceutical Benefits case" of 1949.
Commonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
237 - commonly known as the "Pharmaceutical Benefits case" - was a High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
decision. The case dealt with limits of the powers of the Australian Federal Government under section 81
Section 81 of the Constitution of Australia
Section 81 of the Constitution of Australia creates a "consolidated revenue fund", money collected by the Commonwealth through taxation and other levies...
of the Australian Constitution
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
to take and spend money by legislation
Appropriation bill
An appropriation bill or running bill is a legislative motion which authorizes the government to spend money. It is a bill that sets money aside for specific spending...
, in this case to fund reduced prices for prescription medicines.
Background
In 1944, the LaborAustralian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
Federal Government of Prime Minister
Prime Minister of Australia
The Prime Minister of the Commonwealth of Australia is the highest minister of the Crown, leader of the Cabinet and Head of Her Majesty's Australian Government, holding office on commission from the Governor-General of Australia. The office of Prime Minister is, in practice, the most powerful...
Ben Chifley
Ben Chifley
Joseph Benedict Chifley , Australian politician, was the 16th Prime Minister of Australia. He took over the Australian Labor Party leadership and Prime Ministership after the death of John Curtin in 1945, and went on to retain government at the 1946 election, before being defeated at the 1949...
bill
Bill (proposed law)
A bill is a proposed law under consideration by a legislature. A bill does not become law until it is passed by the legislature and, in most cases, approved by the executive. Once a bill has been enacted into law, it is called an act or a statute....
for the "Pharmaceutical Benefits Act 1944" received Royal Assent. The law was immediately challenged by the Attorney general
Attorney General
In most common law jurisdictions, the attorney general, or attorney-general, is the main legal advisor to the government, and in some jurisdictions he or she may also have executive responsibility for law enforcement or responsibility for public prosecutions.The term is used to refer to any person...
of Victoria on behalf of
Ex rel
Ex rel is an abbreviation of the Latin phrase "ex relatione" meaning "by the relation of" . The term is a legal phrase most commonly used when a government brings a cause of action upon the request of a private party who has some interest in the matter. The private party is called the relator in...
the Victorian Medical Association
Australian Medical Association
The Australian Medical Association is a professional association for Australian doctors and medical students.The AMA uses a representative structure involving state branches and committees to work with members to promote and protect the interests of doctors.The mechanisms that allow this include:*...
and a number of medical doctors
Physician
A physician is a health care provider who practices the profession of medicine, which is concerned with promoting, maintaining or restoring human health through the study, diagnosis, and treatment of disease, injury and other physical and mental impairments...
including one Dr Dale.
Decision
The first matter to be decided was whether a stateStates and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
Attorney General had "standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
" to intercede in a Commonwealth
Commonwealth
Commonwealth is a traditional English term for a political community founded for the common good. Historically, it has sometimes been synonymous with "republic."More recently it has been used for fraternal associations of some sovereign nations...
matter. Justice Dixon
Owen Dixon
Sir Owen Dixon, OM, GCMG, KC Australian judge and diplomat, was the sixth Chief Justice of Australia. A justice of the High Court for thirty-five years, Dixon was one of the leading jurists in the English-speaking world and is widely regarded as Australia's greatest ever jurist.-Education:Dixon...
led the court in finding there was standing.
On the substantial matter of the constitutionality of "Pharmaceutical Benefits Act 1944", the court was split. Only Justice McTeirnan
Edward McTiernan
Sir Edward Aloysius McTiernan, KBE , was an Australian jurist, lawyer and politician. He served as an Australian Labor Party member of both the New South Wales Legislative Assembly and federal House of Representatives before being appointed to the High Court of Australia in 1930...
's decision was unambiguously for the Commonwealth. Chief Justice Latham, Justices Starke
Hayden Starke
Sir Hayden Erskine Starke KCMG , an Australian judge, was a justice of the High Court of Australia.Starke was born in the town of Creswick, Victoria in 1871...
, Williams
Dudley Williams
Sir Dudley Williams, KBE, MC, KC , Australian judge, was a Justice of the High Court of Australia.Williams was born in Sydney, and was educated at Sydney Grammar School...
and Rich
George Rich
Sir George Edward Rich KCMG PC , Australian judge, was a justice of the High Court of Australia.Rich was born in the town of Braidwood, New South Wales, in 1863. He was educated at Sydney Grammar School, and later studied at the University of Sydney, where he graduated with a Bachelor of Arts in...
wrote non-determinative judgments
Obiter dictum
Obiter dictum is Latin for a statement "said in passing". An obiter dictum is a remark or observation made by a judge that, although included in the body of the court's opinion, does not form a necessary part of the court's decision...
with respect to "standing", but nevertheless determined that the Pharmaceutical Benefits Act 1944 was beyond the scope of the powers
Ultra vires
Ultra vires is a Latin phrase meaning literally "beyond the powers", although its standard legal translation and substitute is "beyond power". If an act requires legal authority and it is done with such authority, it is...
granted to the Federal Government in section 81 of the Constitution of Australia.
Later case
The ambiguity was finally determined in British Medical Association v Commonwealth (1949) 79 CLRCommonwealth Law Reports
The Commonwealth Law Reports are the authorised reports of decisions of the High Court of Australia. The CLR are published by the Lawbook Company, a division of Thomson Reuters...
201, the "Second Pharmaceutical Benefits case" of 1949.