Health Minister Mark Butler has said the government is considering capping specialists’ fees to reduce the gap between what Medicare covers and what specialists charge patients.

The Australian Medical Association strongly opposes the idea and is threatening legal action. Butler says the government is willing to “test the boundaries” of constitutional limits.

So what’s going on here? What does the Constitution have to do with doctors’ fees?

Doctors’ groups oppose ‘socialised’ medicine

The current fuss forms part of a long history of doctors’ lobby groups opposing key elements of Australia’s system of universal health care.

Doctors’ lobby groups have opposed:

• introducing the Pharmaceutical Benefits Scheme (PBS) in the 1940s
• introducing Medibank (the first version of Medicare) in 1970s
• introducing Medicare in the 1980s
• expanding the nurse practitioner profession in the early 2000s
• allowing pharmacists to perform vaccinations in the 2010s
• allowing pharmacists to prescribe certain prescription medicines in the 2020s.

It’s no surprise, then, that doctors’ lobby groups oppose the government’s current push to limit patients’ out of pocket costs to see a specialist. It’s also no surprise medical specialists dominate the Australian Taxation Office’s list of highest paid professions.

Some of the doctors’ opposition to health policy had constitutional implications.

The 1946 social services referendum

The Medical Society of Victoria challenged the introduction of the PBS in the High Court in the 1940s. It won because there was nothing in the Constitution giving the federal government power to set it up.

The 1946 social services referendum filled the gap in federal legislative power by adding a new provision to the Constitution. This gave the federal parliament power to make laws about

the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorise any form of civil conscription), benefits to students and family allowances.

The limit on preventing civil conscription was introduced into parliament by Liberal Opposition Leader Robert Menzies. He told parliament that without those words, the new power might allow the federal government to “nationalise” health care by “making all doctors and dentists members of one government service which had a monopoly on medical and dental treatment”.

As set out in the official “yes” pamphlet during the referendum, those words “mean that doctors and dentists cannot be forced to become professional officers of the Commonwealth under a scheme of medical and dental services.”

The PBS was reintroduced after the referendum passed.

Constitutional challenges by doctors

Doctors have tried various constitutional challenges in the High Court. They have usually lost.

In 1949, the British Medical Association (as the Australian Medical Association called itself at the time) challenged rules that said prescriptions could only be written on government-supplied forms. It won. The High Court seemed to suggest civil conscription might go so far as to mean “any compulsion of law requiring that men […] perform work in a particular way.”

The High Court took a different view in later cases. In 1980, the General Practitioners Society challenged laws setting out conditions that had to be satisfied before Medicare benefits would be paid for pathology services performed by doctors. It lost.

The High Court said there was a difference between regulating the manner in which medical practice was carried out and compelling a medical practitioner to perform medical services. Only the latter would be unconstitutional civil conscription.

In the most recent challenge in 2009, doctors complained that laws making compliance with professional standards a condition of being eligible to receive Medicare subsidies were unconstitutional. They lost.

The High Court again emphasised the distinction between laws regulating how medical services are performed and laws forcing doctors to perform medical services.

So what about current laws on doctors’ fees?

Specialists’ incomes and fees are already partly regulated by federal law. The Fair Work Commission’s Medical Practitioners Award governs the wages and conditions of specialists who are employees rather than self-employed.

The Australian Competition and Consumer Commission (ACCC) administers a suite of laws putting limits on the way specialists set their fees. Nobody thinks any of this is unconstitutional.

Other professions are subject to maximum fees. For example, legislation in Victoria says that lawyers cannot charge fees that are more than “fair and reasonable”, and for some categories of legal service the law sets out maximum dollar amounts lawyers can charge their clients. Lawyers do not complain these laws conscript them to work at the behest of the government.

What’s next?

Butler says a parliamentary inquiry will explore various options for capping specialists’ fees. There will be administrative and practical pros and cons for various options.

Options the inquiry might explore include:

• simply capping fees
• making eligibility for Medicare subsidies conditional on not exceeding a maximum fee
• imposing an income tax surcharge on specialists who choose to not comply with caps
• getting the states to legislate the caps, which would avoid the constitutional question altogether.

Regulating private sector prices is different from civil conscription in the sense of compulsion to perform a professional service. So unless the government gives in to political pressure, specialists’ fees look set to be capped one way or another.

Luke Beck is a member of the Australian Labor Party.

Amid major reforms to the National Disability Insurance Scheme (NDIS), unveiled last week, NDIS minister Mark Butler announced the government’s plans to commission supported independent living services for people with disability, “rather than relying on a market that isn’t working”.

Supported independent living is NDIS funding for support workers who can assist people with disability who need some level of help at home all the time.

This announcement indicates a shift away from a market-based model – in which NDIS participants choose who provide services to them, and what kinds – to a more regulated, government-vetted system.

For people with the most significant and permanent disabilities, these changes – together with cuts to social and community participation funding – may be significant. Here’s how it might work.

What is supported independent living?

Supported independent living pays for support workers to help with day-to-day activities such as showering, preparing meals and doing laundry.

Supported independent living payments are often used to fund support provided in group homes. This is where a number of NDIS participants live together and one worker provides shared support to them. Some group homes may also receive another kind of NDIS payment, called specialist disability accommodation funding, which pays for purpose-built accessible housing for people with very high needs.

More than 17,000 people with disability live in group homes in Australia. Around 30% have intellectual disability. Residents frequently have high and complex support needs, and very few other people in their lives beyond support workers.

How did we get here?

Group homes are largely a result of the de-institutionalisation movement in the late 20th century, and grandfathering of supported accommodation from state disability services to the NDIS. People with disability often didn’t have a choice of where they moved to or who they lived with.

New kinds of specialist disability accommodation, such as apartment living or independent units, have been developed in recent years through the NDIS. But data shows many people are still sharing with co-residents they don’t choose, in group living they haven’t chosen.

Stories of abuse, violence and neglect in group homes, shared by residents, are harrowing.

The Disability Royal Commission recommended group homes should be phased out by 2038. But federal, state and territory governments have not yet commenced working together on this recommendation.

A 2023 inquiry also identified many issues in how supported accommodation – meaning the combination of funding for support workers and purpose-built accommodation – currently works in the NDIS.

The inquiry found a greater need for choice and control for people living in group homes (for example, about where they live), better education of the workforce, and more regulation of these living arrangements.

So, how might commissioning providers work?

We still don’t have a lot of detail. But the goal will be to create greater oversight and control over who provides services, and curb safety issues such as neglect and abuse while improving quality.

It could mean the government will purchase more low-cost accommodation where several people share a support worker. And we can expect a more restricted list of registered providers, meaning the companies the government allows to employ the support workers.

Commissioning could also mean the government introduces new rules, such as caps on the number of people with disability who live in one place. Such restrictions are currently in place for specialist disability accommodation, but not supported independent living.

In practice, this might look similar to the current makeup of group homes – mostly small-scale group living – but there will be more regulation. There is also a question about whether commissioning will improve residents’s choice about where they live, or who they live with – a basic right.

The government has also begun trials in ten rural, remote and First Nations communities where they have identified service demand for people with disability far outstrips what is available, including supported accommodation. In these cases, commissioning services will focus on understanding what specific barriers there are to accessing support, considering cultural needs and what local services are available.

Living independently is about more than accommodation

Amid last week’s reforms, the government also announced it will reduce NDIS payments to individuals for social and community participation – from around A$31,000 to $26,000 a year.

These payments fund a person’s needs to travel outside their home, so they are an important part of what it means to live independently. They may cover the cost of attending appointments, shopping or paying bills, taking part in social activities and developing life skills.

The government has instead unveiled a new $200 million Inclusive Communities Fund. This will fund community groups to “host genuine participation activities” for those with disability.

This is part of the government’s broader push to provide foundational and mainstream supports – such as community or school programs, activities, skills-building and information – for people outside of the NDIS.

In some cases, it could mean better inclusion of people with disability in the broader community, such as through local sporting clubs.

But if the NDIS funding that allows people to take part in their community and build independence is cut before these other supports are properly established, there is a risk of further isolation. This could particularly affect people with disability in group homes with the highest needs who rely on this kind of funding to leave home.

And there continue to be concerns about the potential role of algorithms in determining who will receive NDIS funding and who doesn’t.

People with disability want – and have a right – to live a life connected to people and community. This right must remain at the heart of plans to reform how and where they live.

Libby Callaway sits on the NDIS Evidence Advisory Committee Assistive Technology and Capital subcommittee established by the Commonwealth Government Department of Health, Disability and Ageing. She receives funding from the National Health and Medical Research Council (NHMRC), Australian Research Council (ARC), and icare NSW.

Jack Francis Kelly has previously undertaken research funded by the National Disability Insurance Agency in roles with UTS and the Council for Intellectual Disability (CID). Jack is an NDIS participant.

Phillippa Carnemolla receives funding from the Australian Research Council. She is affiliated with Melbourne Disability Institute via the Centre for Universal Design Australia.

Sally Robinson receives funding from the Australian Research Council and Federal and State Governments for research. She is affiliated with the National Disability Research Partnership.

For five years, many Australian university students have been watching the amount they have to pay for their studies with alarm and despair.

In response, the Senate is considering a Greens bill to slash high university student contributions for arts, law and business students.

The bill proposes to reverse student contribution increases imposed in 2021 by the “Job-ready Graduates” policy. This includes doubling the cost of arts degrees – which now cost more than A$50,000 as a result.

Despite the unpopularity of the Job-ready Graduates scheme in the community, the bill is unlikely to pass the Senate.

Only the federal government can fix the problems created by Job-ready Graduates. And in the lead up to the next federal budget on May 12, it shows no interest in doing that.

Job-ready Graduates

The Job-ready Graduates policy cut student contributions in teaching, nursing, engineering and IT courses. It did so to encourage students to enrol in these degrees, which were deemed “job-ready” by the Morrison government.

At the same time, Job-ready Graduates increased student contributions in arts courses, where many graduates take time to find suitable work.

Student contributions also went up for business and law courses, despite their above-average graduate employment rates. Three year bachelor degrees in all these fields now cost more than $50,000.

Under the new Senate bill, proposed by Greens Senator Mehreen Faruqi, the annual student contribution for arts courses would reduce from $17,399 to $8,164. For business and law, the price would drop from $17,399 to $13,624. These are the pre-Job-ready Graduate scheme rates adjusted for inflation.

The flaw in the legislation

At a Senate inquiry into the bill this week, most witnesses – which included university leaders, union representatives and researchers such as myself – favoured student contribution reform.

But they were less supportive of the Greens bill as the way to improve matters.

The reason is the bill would cut student contributions without offsetting increases in public subsidies.

The total annual funding rate received by universities per full-time arts student – the student contribution plus the public subsidy via the government – would drop from $18,715 to $9,480. This would effectively halve universities’ revenue from arts students. Law and business funding would drop by 20%.

So, many courses currently on offer would not be viable on these reduced funding rates.

This policy flaw reflects the Australian Constitution’s constraints rather than the Greens policy. Under the constitution, the Senate cannot “appropriate” money, such as authorising the use of public funds for higher subsidies to universities.

The government’s resistance to change

Labor opposed Job-ready Graduates when it was in opposition, but in government it has delayed taking concrete action to reverse it.

In February 2024, the Universities Accord recommended “urgent” change to student contributions.

In November 2024, Education Minister Jason Clare said the new Australian Tertiary Education Commission (ATEC) would examine student contributions. But legislation passed in March 2026 to formally establish ATEC, did not mention student contributions.

Clare has implied cost is the main reason for avoiding student contribution reforms so far.

As he told the ABC’s Four Corners program in March:

I’ve said [the Job-ready Graduates scheme has] failed. I’ve also said it’s expensive to fix and not easy to fix.

The Innovative Research Universities group (which includes Flinders, Griffith and James Cook universities among others) estimates a full reversal of Job-ready Graduates would cost the government $1.9 billion a year.

A possible workaround

While the new Australian Tertiary Education Commission cannot directly advise on student contributions (what students pay to go to uni) it can examine the total funding per individual university student.

ATEC can also advise on the Commonwealth’s contribution to student funding. The total funding rate minus the Commonwealth contribution equals the student contribution. ATEC can therefore indirectly suggest student contributions.

Omitting student contributions from ATEC’s legislation may be a government own goal. It could end up with implied new student contributions that can be calculated with simple maths, but without the political protection of justifications provided by expert ATEC advice.

‘One bite at a time’

In explaining his approach to higher education reform, Clare sometimes uses the proverb of “eating an elephant” – something that is only possible one bite a time.

The imagery is off-putting, but the government has implemented other higher education priorities, including a 20% cut in student debt last year.

Perhaps there will be a first move on student contributions in next months’s budget, but no hints have been dropped so far. Having already suffered the political cost for resisting reform on student fees, the government may want to keep the budget benefits.

What could work instead?

My own submission to the current Senate inquiry proposed an incremental approach to reform. Urgent action should be taken on student contributions for arts degrees, as current levels condemn many arts graduates to decades of repayments which may never clear all their debt. Other student contribution decreases, for degrees with better repayment prospects, can be postponed.

To limit cost to government, I suggest increased student contributions for engineering and IT courses, which received discounts under Job-ready Graduates. Graduates from these fields have relatively high incomes.

The Universities Accord recommended student contributions based on expected lifetime incomes. If this principle is eventually adopted, these interim changes would move in this direction.

There is no perfect student contribution system. But we can do much better than now in balancing fairness to students, university funding, and constraints on Commonwealth funding.

Andrew Norton works in Monash University's Faculty of Business and Economics, which would lose money if the discussed legislation passed in its current form. He put in a submission to the Senate inquiry discussed in the article and appeared as a witness.