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One Voice: Federal Power Questioned

The insurance episode demonstrated that, if Federal Council was to support and defend the interests of the association as national government intruded more and more into health policy and delivery, it needed to do so with the full and early involvement and formal consent of the branches, and their members who would be the ones asked to deliver that policy. It was just as well: national health policy was set to evolve seriously and rapidly. But another, difficulty, even more serious, that had been shown up by the insurance episode was that there was ambiguity leading to misunderstanding about the precise boundaries between the powers of the Federal Council and those of the branches. The latter difficulty had to be sorted out before the former caused even more problems in the great changes ahead.

The BMA faced the dilemma that the Government assumed that the leadership at the federal level had power that it really did not have. The Council’s achievements were in the main the result of the influence it had, through its consultations with government, exerted on health policy. This was almost certainly why the Federal Government was treating the Council as the body that spoke for the entire BMA on health and medical matters. But, as the insurance episode demonstrated, it was not so simple. The branches had given the Federal Council the authority to act for them, and – until the insurance episode – the working relationship between them had been basically cooperative and amicable. But the branches had not surrendered to the Council the powers that had been transferred to them from the BMA Parent Council. As the BMA was becoming more of an actor in and influence on national health policy, and expected to be so by an ever-more active Federal Government, this was a problem that could not be ignored or deferred. Federal Council asked Mr Frank Kitto QC, an expert on constitutional and equity law (and later a Justice of the High Court) for his advice on the powers of the organisation.

His advice when he reported in 1943 was not all that helpful. He recognised the difficulties inherent in the BMA constitution, which had not defined the relationship between the branches and federal bodies such as the Federal Council. The branches had given the Council authority to act for them, but they had not given up their powers, and the Council could not override them. As in the insurance episode, for reasons outside its control, the Council might have to reach decisions before it had had time to consult the branches and seek their agreement to these decisions. But, according to the constitution, the branches were in no way bound by them. They could accept Council’s decisions or reject them as they saw fit.

 

Mr Kitto offered two possible remedies: amendment of the constitution of each branch or a request to the Parent BMA to a change in its own constitutional arrangements that would allow a central body such as Federal Council the power to override the branches. Neither seemed practical. The upheaval would have been enormous. Mr Kitto concluded that the way forward was a kind of gentleman’s agreement in which the branches accepted a moral obligation informally to allow the Federal Council informally to take over some of the branches’ powers. Given the pace and the implications of political change at the time, this was not going to hold up for too long.

A Labor Government intent on change was now putting greater pressure on the Council. In 1947, after it had been agreed that the number of branch representatives on the Council would be increased to represent their numerical strength, the Council reported that the branches had agreed to the principle that:

in respect of questions on which the Branch Councils have made decisions and reported such decisions to the Federal Council, the Federal Council’s decisions, made after consideration of such reports, shall become the policy of all the Branches, and that the Federal Council shall have the power to state these decisions to all interested bodies as the Association policy.

The change did not come too soon.