Medical dominance and the law: European medical exiles in Tasmania, 1933–1951

Abstract

Doctors who escaped Nazi-occupied Europe and immigrated to Australia were greeted mostly with hostility by representatives of the local medical profession. Australian doctors agitated for amendment of legislation that governed registration of medical practitioners in each state, so that it removed any legal entitlement of the European medical exiles to practise medicine. Tasmania’s Parliament was the first Australian legislature to accede to these medical practitioners’ pressure, and did so before the Second World War began. This article explores reasons for both the particular eagerness of the Tasmanian medical profession to prevent the émigrés from practising medicine and its capacity to achieve its objective so quickly. This analysis provides a case study of how doctors attempted to use licensing laws to entrench the dominance of the medical profession.

1. Introduction

On the eve of, during, and in the aftermath of the Second World War, some European doctors found refuge in Australia. The circumstances of their arrival were well known; they were referred to as ‘medical exiles’, as well as ‘refugee’, ‘foreign’, and ‘alien’ doctors.¹ Yet a powerful pressure group comprising representatives of Australia’s medical profession was unsympathetic to the émigrés’ wish to continue their careers.² Owing to protectionism and possibly prejudice,³ these doctors explored all legal means at their disposal to prevent the émigrés from practising medicine, despite shortages of medical services.⁴ In Australia’s federal system, the federal government is empowered to decide who can settle in Australia. Yet, at that time, statutory authorities in each of the states determined who could practise medicine in those jurisdictions, by applying legislation passed by the states’ parliaments that stipulated preconditions to medical registration. One of the key strategies of representatives of the medical profession was to lobby for amendment of this legislation in every state, so it restricted the émigrés’ eligibility for registration. Their efforts were thwarted by parliaments in South Australia, Queensland, and Western Australia,⁵ but they succeeded first in Tasmania—which was distinctive among the states for its relatively small population and medical profession, its physical separation from the mainland, as well as (like only Western Australia) its lack of a medical school⁶—and then in Victoria and New South Wales.⁷

Drawing on documents held principally in the Tasmanian Archives and National Archives of Australia, this article explores reasons for both the especial keenness of Tasmanian doctors to exclude the émigrés from the practising medical profession and their ability to achieve this objective so quickly. In so doing, this article provides a case study of how doctors sought to use the law to bolster the dominance of the medical profession, and contributes to international scholarship in the area of administrative law that deals with licensing of professionals.⁸

Scholars, including Paul Starr, Mark Davies, and Evan Willis, have investigated the rise in the social, economic, and political status of the medical profession in Western countries in the late nineteenth and early twentieth centuries.⁹ They have identified factors that led to its growth in power, such as: developments in medical science, which were associated with improvements in public health, led to community dependence on doctors, and substantiated doctors’ claims to superiority over other forms of medical knowledge and practitioners who relied on them;¹⁰ doctors’ organization of healthcare and control over other health practitioners;¹¹ and the cohesiveness of the medical profession due to its common education and prescribed standards.¹² Particularly crucial was the medical profession’s state-endorsed self-regulation.¹³ Legislation enshrined a peer-review model pursuant to which doctors had autonomy to control who could practise medicine and discipline those who breached their standards.¹⁴ Laws empowering the profession to license doctors gave it a ‘legal monopoly’ over medical practice, as it had authority to exclude perceived competitors from entitlement to that privilege.¹⁵

The heightened profile of the medical profession in the British Empire was attributable in no small part to its peak body: the British Medical Association (BMA). The BMA’s development into a highly effective pressure group has been well documented.¹⁶ Protectionism was a central motive of the BMA from its formation in 1832. It sought to promote doctors with qualifications in scientific medicine (including by stipulating their professional conduct and ethical standards) and diminish competition from practitioners who lacked them.¹⁷ The BMA’s advocacy led to the passage of legislation in 1858 establishing the General Council of Medical Education and Registration (GMC) to register doctors with specified qualifications to practise medicine in the United Kingdom (UK) and regulate their conduct.¹⁸

Similar statutory authorities were created throughout the Empire, including in every Australian state. The Medical Council of Tasmania (‘Council’), formed in 1837 as the Court of Medical Examiners of Tasmania, was the first Australian medical registration body.¹⁹ Local branches of the BMA were established for doctors who obtained registration in British dominions and colonies.²⁰ The principal responsibility of the medical registration authorities was to permit doctors legally to practise medicine within their jurisdictions where they considered that they had met the eligibility requirements for registration, while the BMA publicly represented the interests of the registered medical profession and advocated on its behalf. Yet the BMA was able to influence the decision-making of Australian registration entities especially due to the state-sanctioned appointment of its members to them.²¹

The Council of the early twentieth century exemplifies this trend. Although the representative of Australia’s monarch in Tasmania chose the Council’s members, the Council exclusively comprised medical practitioners, most Tasmanian doctors belonged to the BMA,²² and there was no restriction on the BMA encouraging its representatives to seek appointment to the Council. Once appointed, the Council’s members made decisions independent of state involvement. The Medical Act, 1918 (Tas) (‘1918 Act’) provided that the Governor could appoint between five and nine members to the Council, all of whom needed to belong to the medical profession,²³ and several of those chosen for membership were prominent in the BMA. For instance, David Lines, who was president of the Council from 1931 to 1945,²⁴ was also a president of the Tasmanian branch of the BMA,²⁵ which had been established in 1911 with northern and southern divisions.²⁶ Another former president of the BMA’s Tasmanian branch, Wilfred Giblin,²⁷ was a member of the Council and then its president from 1945 to 1951.²⁸ In addition, William Crowther, who was the Council’s registrar from 1932 to 1951,²⁹ was a member of the BMA’s ‘Federal Council’,³⁰ an Australian body that addressed matters of national concern.³¹

Notwithstanding this overlap in membership of the Council and the BMA and their shared protectionist agenda, consistent with those entities’ distinctive roles, at times they focused on different matters from one another in responding to the émigrés’ wish to practise medicine in Tasmania. The Council was required to retain a ‘register’ of the names of all ‘legally-qualified medical practitioners’.³² As gatekeeper to the register, the Council eagerly looked for justifications for finding that the émigrés’ qualifications were not registrable, and sometimes implied that it was ensuring patient safety. The BMA was concerned about medical workforce demands and, on occasion, took a less formalist and more pragmatic approach than the Council. While the BMA, like the Council, supported legislative amendments that restricted the émigrés’ eligibility for registration, it was amenable to some medical exiles’ post-war medical practice where it met the community’s needs without impinging on local doctors’ income.

In the British Empire during the 1930s and 1940s, doctors’ views regarding European medical émigrés were not uniform.³³ Nevertheless, the BMA’s animosity towards them has been widely recognized. Paul Weindling, John Weaver, Derek Dow, and Kenneth Collins have examined the impact of the BMA’s attitude on law and policy in Britain, New Zealand, and Scotland,³⁴ while Egon Kunz, Fallon Mody, Suzanne Rutland, Weaver, Peter Winterton, and this author have explored its influence in Australia,³⁵ but not specifically in Tasmania. As this article demonstrates, the BMA and also the Council had a profound effect on the careers of medical exiles in that state. Their successful agitation for amendments to the 1918 Act removed the Council’s obligation to register many of the émigrés to practise medicine. The émigrés who were denied registration and the nomenclature of being a ‘legally qualified medical practitioner’ by the Council would have contravened the 1918 Act if they ‘[pretended] to be, or [took or used] the name or title of a … doctor of medicine … or any other medical or surgical name or title’,³⁶ and they were unable to sue in court to recover remuneration for medical services.³⁷

Section 2 of this article considers why representatives of the medical profession in Tasmania were especially eager to prevent European medical exiles from practising medicine there. In Section 3, the article analyses factors that contributed to their capacity to realize this goal so swiftly. Section 4 examines the continued efforts of representatives of the medical profession after the 1918 Act was amended and the Second World War ended to exclude émigrés from the practising profession in Tasmania. They failed to preclude further changes to the 1918 Act that, to address an ongoing dearth of doctors, permitted a small number of émigrés to practise medicine. As the conclusion to the article reflects upon, this disappointment for the profession, as well as its initial success, formed part of its tussle with the Tasmanian government to use licensing laws to entrench its power. This analysis contributes to scholarship that examines the potential flexibility of a register of medical practitioners, and how the admission of doctors’ names to the register and exclusion of them from it can be crucial tools for responding to perceived crises and market demands, and fulfilling political and professional objectives.³⁸

2. Hostility towards European medical exiles in Tasmania

Adolf Hitler’s appointment as Chancellor of Germany in January 1933 incited apprehension that the British Empire would be deluged by European doctors escaping persecution. In May, the BMA’s Victorian branch wrote to its head office in London, noting ‘the troublous conditions of professional men in Europe and particularly in Germany’ and the eligibility for registration in Victoria of European doctors who were registered in England.³⁹ The branch asked if ‘there is any likelihood of an influx of such European medical practitioners into Australia’.⁴⁰ The BMA’s secretary, George Anderson, was sympathetic: ‘the whole matter has given us very serious thought here and we have had an interview with the Home Office in an attempt to ascertain the views of our own Government towards the problem’; ‘I can quite appreciate how action in this country may have its reflex on our dominions and colonies’.⁴¹ Nevertheless, Anderson could provide no comfort: ‘the problem is not an easy one especially in view of the indeterminate attitude adopted by the Home Office’.⁴² Prompted by this correspondence, the Federal Council requested the BMA’s Tasmanian branch to forward to the Medical Council its letter warning of a ‘possible influx of European medical practitioners into Australia’.⁴³

In the 1930s before the Nazi regime, the Council with its BMA members had already been advising doctors that their qualifications from various European countries were not registrable in Tasmania,⁴⁴ and it continued doing so thereafter.⁴⁵ Nevertheless, the Council understood that it was required under the 1918 Act to register European doctors who had Italian qualifications and/or the so-called ‘Scottish Triple Qualification’ (‘TQ’), and it was feared that many doctors with those qualifications would apply for registration in Tasmania.⁴⁶

The 1918 Act provided that a person was ‘entitled to registration as a legally-qualified medical practitioner’ if they possessed one or more of the qualifications listed in the Second Schedule to this statute (‘Second Schedule’), and ‘[proved] on personal attendance to the satisfaction of the Council’ that their diploma or certificate ‘was duly obtained … after due examination from some university … or other body duly recognised for such purpose in the country to which’ it ‘belong[ed]’.⁴⁷ The Second Schedule did not list any European medical qualifications, but included ‘Any legally-qualified practitioner registered … and any person possessing a qualification entitling him to be so registered in the [UK]’ under UK legislation.⁴⁸ Owing to a ‘reciprocity’ agreement between the UK and Italy, doctors with Italian qualifications were entitled to registration and were registered by the GMC.⁴⁹ In 1930, the Council responded to an inquiry from Australia’s Prime Minister, stating that, as ‘complete reciprocity exists between Great Britain and Italy … any medical man who may be registered in the [UK] may do so in Australia’.⁵⁰ The Council added that it ‘accepts this position’, but ‘[feels] however, that if any considerable number of Italian medical men apply for registration in Australia, the position should be reviewed as the agreement in regards to that country would be too one sided’.⁵¹ The BMA’s Tasmanian branch went a step further; in 1937, it resolved to request the Federal Council ‘to send a protest to the [GMC] about the registration of alien medical practitioners’.⁵²

Also included in the Second Schedule were the qualifications that comprised the TQ: ‘Fellow, Member, or Licentiate of the Royal College of Physicians of Edinburgh’; ‘Fellow or Licentiate of the Royal College of Surgeons of Edinburgh’; and ‘Fellow or Licentiate of the Faculty of Physicians and Surgeons of Glasgow’.⁵³ The ‘Scottish Conjoint Board’, representing those institutions, granted the TQ to foreign medical graduates who attended clinical classes in the UK for 12 months and passed its exams.⁵⁴ Increasing numbers of European exiles sought to obtain the TQ, as it would entitle them to be registered by the GMC and practise in the UK and its dominions, ‘subject to any local law’.⁵⁵ John Hunter, secretary of the Federal Council, highlighted that, with GMC registration, ‘Jewish doctors, expelled from Germany’ were, ‘in view of’ Australian legislation, eligible ‘to register in each of the states’.⁵⁶

In December 1933, The Mercury, the leading newspaper of Hobart, Tasmania’s capital city, reported:

The influx of German exiles into British medical schools is causing concern in the profession. Already 200 refugees are studying in Britain, and hundreds more have applied for permission. If this is granted, and they obtain diplomas they will be qualified to practise anywhere in the empire.⁵⁷

The Council told the Commonwealth Director-General of Health, John Cumpston, that it ‘views the possibility’ of an ‘influx’ of European medical exiles ‘with anxiety’, and ‘suggests that action to strengthen the hands of the State Medical Councils to resist the influx would be appreciated’.⁵⁸ Anxiety grew within the Australian profession following the UK Home Office’s issuing of an order in 1935 that allowed foreign medical graduates to reside in the UK to study for a further qualification on the basis that they would be unable to practise there and were ‘expected to leave’.⁵⁹ The same year, the Nuremberg Laws removed Jews’ citizenship in Germany and previous exemptions from the 1933 Law for the Restoration of the Professional Civil Service, so no Jewish doctors could be employed in the German civil service.⁶⁰

During the 1930s, the Council had registered doctors on the basis of the TQ.⁶¹ Nevertheless, in 1937, the Council halted this practice, though only for doctors who also had European qualifications.⁶² It had received a report in March from its legal counsel (probably William Butler, president of the Southern Law Society),⁶³ who ‘expressed the opinion that’ the TQ ‘obtained after a limited period of study in Scotland was not registrable in Tasmania’.⁶⁴ In response, the Council told Max Michel and Walter Cohn, both of whom had the TQ, that they were ineligible for registration in Tasmania.⁶⁵ The Council also asked Crowther to seek ‘information’ from the GMC about ‘the position in regard to’ Michel’s ‘reputation’ and his ‘registration and permission to practice in the [UK]’.⁶⁶ When Anna Lewin queried if her TQ was registrable in Tasmania, the Council instructed Crowther ‘to write and ask her for details in regard to her being granted these licentiates’.⁶⁷ Nevertheless, the reasoning for the opinion of the Council’s lawyer is unclear. Perhaps recognizing it was dubious, in October, Crowther told Tasmania’s Director of Public Health, Bruce Carruthers, that ‘Any doctor who is on the English Register is eligible for registration in Australia’.⁶⁸

The Council was responding to what it feared were just the first of a likely flood of registration inquiries from European medical exiles in circumstances where Tasmanian doctors were, for other reasons, already concerned about their income and sensitive to competition. Tasmanians suffered greatly from the Depression still in the early 1930s and many patients could not afford doctors’ fees for private consultations.⁶⁹ The indigent depended on public hospitals’ free outpatient treatment and the government needed to increase its funding of them.⁷⁰ Those who could pay regular contributions to ‘friendly societies’ had access to specified general practitioner services.⁷¹ Many doctors relied on this ‘lodge practice’.⁷² Friendly societies provided approximately one-third of medical services in Tasmania; they had 24,584 members and served 80,000 members and their dependants.⁷³ Doctors nonetheless considered the annual ‘capitation fee’ they received for those to whom they provided services too low and resented their lack of control over their conditions of practice.⁷⁴

There were deficiencies in Tasmanian medical services, but the BMA worried that proposed means of addressing them could jeopardize local doctors’ work. Carruthers explained to the Chief Secretary that ‘from time to time great difficulty is experienced in obtaining medical practitioners for hospitals and outlying districts in Tasmania, due mainly to our geographical situation, small population, and the absence of any medical school’.⁷⁵ The BMA had played down the problem, claiming it was ‘largely due to local conditions’ and ‘only temporary’, and ‘there is no shortage of general practitioners’.⁷⁶ It was adamant that it was ‘undesirable to import residents’ from the other States, which, except for Western Australia, had medical schools.⁷⁷ In 1935, the BMA ‘feared’ it was ‘the intention’ of the Royal Hobart Hospital’s board ‘to import a number of doctors from the mainland, giving them part time paid positions, and encouraging them to start in private practice to the detriment of established members of the profession’.⁷⁸ The hospital had advertised on the mainland for a part-time ophthalmic surgeon, promising ‘an excellent opportunity for large private practice’.⁷⁹ According to the BMA, the hospital appointed ‘A doctor from the mainland … although there was a suitable local applicant’, and ‘there are already two ophthalmic surgeons practising in Hobart’, so there was not ‘a genuine opportunity for another’.⁸⁰ It requested that other BMA branches help ‘applicants from other states for part time positions … realise that the existence of genuine opportunity for additional private practitioners (either general or specialist) [in Tasmania] is very doubtful’.⁸¹ The Tasmanian branch also resolved that its representatives on the Federal Council would ‘ask for a ruling on the question of part time officers being appointed from other states when there are suitable local applicants’.⁸²

In February 1937, the Tasmanian government announced its policy to appoint doctors to work in country areas that lacked adequate services.⁸³ The BMA perceived state-funded salaried medical services as a threat to doctors’ independence, status and income,⁸⁴ and doctors were apprehensive that the scheme would be extended to other parts of Tasmania.⁸⁵ Yet they recognized the need to negotiate with the government, especially following the public comment of the Premier, Albert Ogilvie, that ‘he had no fear of not being able to get enough doctors. If he could not get them in Tasmania, he would go to the Mainland of Australia or even to England. If necessary he would take to Tasmania Jewish doctors who had been exiled from Germany’.⁸⁶ The Federal Council wrote to Ogilvie emphasizing that the success of the government’s scheme would depend on its ‘closest co-operation’ with ‘the medical profession through the [BMA], and the people’, and ‘Special efforts should be made to minimise the hardship and loss which might occur to medical men practising in these areas’.⁸⁷ Ogilvie reassured the BMA that ‘preference will be given to suitable applicants who are Tasmanian practitioners’ and then ‘Mainland practitioners’.⁸⁸

The BMA opposed the government’s further proposals for this scheme that patients would need ‘to accept the services of a medical officer employed by the State’, and those doctors’ services would be ‘available to all who seek them’ and ‘free … to rich and poor alike’.⁸⁹ Hunter maintained that patients’ freedom to choose their doctor, which characterizes private practice, is ‘fundamental to the success of any medical service’.⁹⁰ He argued that the ‘relationship’ between doctor and patient would also not be ‘free’ if salaried medical officers are ‘concerned more’ about their ‘relationship’ with their ‘superior officers and the Government Department by which [they are] controlled’.⁹¹ Hunter recommended basing the scheme on ‘contributory [compulsory] insurance’, which he considered would ‘preserve self-reliance and independence’, ‘promote thrift’, and ‘maintain and develop’ the ‘personal and free relationship of doctor and patient’.⁹² This suggestion was concordant with the BMA’s negotiations with the federal government at that time over a means-tested model of national health insurance, which it considered could guarantee doctors were remunerated for their services.⁹³

The BMA’s Tasmanian branch sent Ogilvie some alternative suggestions for assisting ‘the outlying districts of Tasmania’, which would still ‘ensure to the people the right of free choice of doctor’,⁹⁴ and protect local doctors’ income and autonomy. It recommended that the government subsidize ‘established private practitioners’ to ‘treat patients, who cannot afford to pay fees, without charge’ and ‘visit outlying parts of the district at regular intervals’; and provide ‘full-time Government doctors’ for ‘very remote and sparsely populated districts’ that ‘are not at present served by a private practitioner’, and patients ‘who can afford it’ would pay the government either for each service rendered or through a ‘regular contributory payment’.⁹⁵ Nevertheless, once it became apparent that ‘the Government’s proposals for medical services would not be similar to the scheme approved by the Branch’, it negotiated with Ogilvie and Carruthers regarding ‘the terms of employment of full-time Government medical officers’.⁹⁶

In this climate, any further potential threat to Tasmanian doctors’ income would have been especially dreaded. Protectionism was thus a principal reason for the antagonism of representatives of the Tasmanian medical profession towards European medical émigrés and their desire to ensure those doctors were not entitled to registration. It is possible, however, that they were also animated by xenophobia and anti-Semitism in particular.⁹⁷ The Council and BMA did not expressly convey any prejudice against the émigrés in their minutes of meetings or correspondence, which were drafted carefully, formally, and concisely. It is therefore not possible to infer definitively from those sources that this was a motivation for their members’ desire to exclude the émigrés from the practising medical profession. Nevertheless, letters that the BMA published in its Medical Journal of Australia⁹⁸ reveal prejudices towards them. Their authors questioned the medical exiles’ professional and ethical standards,⁹⁹ and opined that German doctors were ‘anti-British’ and would remain loyal to Germany.¹⁰⁰ There was a strong preference in the profession for medical migrants from the UK, as it was assumed that they shared white Australians’ cultural and racial heritage and, owing to similarities between British and Australian medical education, they could assimilate easily into practice in Australia.¹⁰¹ In Australian society generally in the inter-war period, British people were welcomed, while immigration from Germany and Southern and Eastern Europe was especially opposed, and anti-Semitism grew in some sectors.¹⁰² It would not be surprising if representatives of the Tasmanian medical profession shared these attitudes. They might also genuinely have been concerned that European doctors’ qualifications and training were inferior to Australian and British equivalents, and lacked knowledge about them or opportunity during the War to contact the institutions where they were obtained.¹⁰³ Yet they made no effort to assess the émigrés’ skills.

3. Rapid amendment of The Medical Act, 1918 (Tas)

3.1 Lobbying to remove medical exiles’ entitlement to registration

Among the factors that led to such a swift exclusion of European medical exiles from the practising medical profession in Tasmania was local doctors’ early, unrelenting, and effective lobbying for this outcome. In August 1937, the Federal Council resolved that ‘each Branch Council should if it think fit approach the State Government with a view to amending the Medical Act so as to prevent registration of German Jewish practitioners who have acquired’ the TQ.¹⁰⁴ Yet, from the end of 1933, representatives of the Tasmanian profession had already been applying targeted and insistent pressure on government ministers and public servants to propose an amendment of the 1918 Act that would remove some European doctors’ entitlement to practise medicine in their state. Denial of the émigrés’ eligibility for entry to the Council’s register of legally qualified medical practitioners would be an efficient and effective means of inhibiting them from competing for medical work with local doctors.

At its meeting on 5 December 1933, the Council discussed correspondence received from the BMA’s Tasmanian branch and John Gaha, a surgeon and member of the Legislative Council,¹⁰⁵ which referred to ‘registration of medical practitioners of Jewish origin expelled from Germany’.¹⁰⁶ Lines and Giblin reported to the Council that they had examined the Anglo-Italian medical reciprocity agreement.¹⁰⁷ The Council agreed that Crowther would write to Gaha enclosing a copy of the Second Schedule and ‘inform him that the matter is at present under review by the … Council’.¹⁰⁸ In addition, Lines, another Council member (G MacGowan), and the Council’s solicitor would confer ‘with a view to the Council approaching the Crown law authority and asking an amendment to this Act, that would prevent such practitioners from being eligible for registration in Tasmania’.¹⁰⁹

On 19 December 1933, Lines reported to the Council that they had interviewed the Attorney-General, Henry Baker,¹¹⁰ regarding ‘an amendment to the Medical Act to prevent an influx of Jewish medical practitioners’.¹¹¹ Baker seemingly did not share the Council’s attitude. Lines reported that he ‘took a highly ethical view of the arrival of such medical men, in that they should be made welcome, knowing no home elsewhere’, ‘desired more information on this subject’, and ‘took the view that the matter more clearly concerned the Chief Secretary’, who ‘should be interviewed by the Medical Council in reference to the proposed amendment’.¹¹² The Council ‘resolved that early in the new year the Chief Secretary be asked to indicate the proposed action and to safeguard the Register from an addition of such practitioners’.¹¹³ In March 1934, Cumpston asked the states’ medical registration authorities whether they had ‘adopted a definite policy in respect of exclusion or otherwise’ regarding ‘German Jewish doctors’ with GMC registration.¹¹⁴ The Council responded that ‘the matter has already been placed before the State Attorney-General, but without any encouragement as to the possibility of an amendment of the Medical Act’.¹¹⁵ Undeterred, however, in May, Lines ‘spoke’ to the Council about ‘the necessity of again approaching the Chief Secretary, as to the amendment of the Medical Act to prevent or control any possible influx of German Jewish medical practitioners’.¹¹⁶ The Council nonetheless ‘resolved to take no action until after the state elections and then approach the minister concerned’.¹¹⁷

From the end of 1936, after more medical exiles from Germany had obtained the TQ, representatives of the medical profession intensified their efforts to persuade the government to propose amendment of the 1918 Act. In December, the Council received a letter from the BMA’s London headquarters regarding ‘legislation affecting German Jewish practitioners’ and ‘asking for information as to any possible alteration in Tasmania of the legislation to meet any demands here for registration of such medical men who have taken the Diploma of the Scottish Conjoint Board after one year’s clinical study’.¹¹⁸ This prompted the Council to instruct Crowther ‘to see the Chief Secretary and with his consent the Minister of Health and to arrange for a deputation of the President and himself to place the matter before the Ministers concerned’.¹¹⁹ In February 1937, the Council resolved ‘if necessary’ to ‘approach’ the government specifically regarding ‘medical practitioners with European degrees who had’ obtained the TQ ‘after 1 year’s study’ and ‘who might wish to register in Tasmania’.¹²⁰ In addition, it instructed its solicitor to write to the GMC concerning ‘the action’ it was ‘reported to have taken in this matter’.¹²¹ Later that year, the Federal Council also informed the GMC that Australian medical boards were obliged to register European doctors whom it had registered, and requested that the GMC not register them after one year’s study in the UK if they were prevented from practising there.¹²²

3.2 Amendment of The Dentists Act, 1919 (Tas)

The Council revived its lobbying again in November 1937, immediately after the Tasmanian Parliament passed a bill amending The Dentists Act, 1919 (Tas) (‘Dentists Act’). This legislation was intended to ‘prevent’ the ‘entitlement to registration’ in Tasmania of dentists who, as Ogilive explained to Members of Parliament (MPs), ‘had been expelled from Germany on account of their Jewish extraction’ and ‘were registered’ in the UK.¹²³ Ogilvie noted that the dentists ‘had been prevented by the Alien Act from settling [in the UK], and so were debarred from exercising the right of practice’, but ‘Their registration in the [UK] … entitled them to registration by the Dental Board of Tasmania when they applied, and the board could not refuse to register them’.¹²⁴ In the week following the amendment of the Dentists Act, the Council discussed ‘the possibility of an amendment of the Medical Act in order to bring the administration into line with the Dental Act, as regards admission of alien practitioners registered by this central authority of the [UK] and so eligible for registration in this State’.¹²⁵ It ‘resolved that the President and Secretary wait upon the Premier (or appropriate Minister) and give him full information as to efforts made by aliens to obtain registration in Tasmania and ask for protection in this matter for British subjects’.¹²⁶ In December, Lines reported to the Council that, ‘as a result’ of that meeting with the Premier, ‘amendments’ to the 1918 Act ‘as tabled, had been passed by this State legislature’.¹²⁷

The amendment of the Dentists Act appeared to contribute significantly to the smooth passage through the Tasmanian Parliament of the bill amending the 1918 Act. In presenting that bill to the House of Assembly, Ogilvie was able to recycle the arguments that persuaded MPs of the urgent need to amend the Dentists Act. He had reinforced that: 32 Jewish dentists who emigrated from Germany had applied for registration in Tasmania; ‘it was anticipated that many other similar applications would be made’ and there was a ‘possibility of Tasmania being flooded by Jewish dentists expelled from Germany’; and ‘Registration of the applicants in Tasmania would operate greatly to the detriment of Tasmanian dentists and employees, as well as the young Tasmanian undergoing courses of study in dentistry’.¹²⁸ Introducing the bill to amend the 1918 Act, Ogilvie similarly told MPs that: the Council ‘had given him the names and addresses of 14 German-Jewish doctors who had applied for registration’; there was a ‘danger of an influx into Tasmania of a number of Jewish doctors who had left Germany’; and the bill was ‘brought in at the request of the Medical Council to prevent’ the ‘inundation’ and ‘invasion’ of Tasmania by those doctors.¹²⁹

The efficacy of the Council’s lobbying was attributable partly to its zealousness, but also to a majority of MPs’ sympathy for its protectionist objective. As the government was assured of the Opposition’s attitude in this respect, it would have been confident that it was not wasting time and resources in preparing a bill to amend the 1918 Act. During the parliamentary debate regarding the bill to amend the Dentists Act, Baker, then Leader of the Opposition,¹³⁰ indicated that his views on the émigrés had apparently shifted. He queried whether ‘any similar position was likely to arise with regard to members of the medical profession. About five years ago there was a possibility of that, and if such were likely to eventuate, he would like to see the same precautionary measures taken’.¹³¹ Ogilvie had responded, ‘If necessary it will be done’.¹³²

3.3 Moritz Meyer’s case

The Council gave Ogilvie another reason to provide to Parliament for why amendment of the 1918 Act was especially ‘necessary’ at that time. Ogilvie told the MPs that the Council ‘feared that in view of a decision in regard to a Victorian case recently, where an individual was successful on appeal, the position was precarious in Tasmania’.¹³³ Ogilvie was referring to Moritz Meyer, a Jewish doctor with German medical qualifications and the TQ, who won his legal challenge in the Supreme Court of Victoria to the Medical Board of Victoria’s refusal to grant him registration.¹³⁴ In August 1937, the High Court of Australia had dismissed the Board’s appeal of that decision.¹³⁵  The Mercury reported that this outcome ‘disturbed’ ‘local medical practitioners’ because ‘about 300 German Jewish doctors’ had completed the TQ, which entitled them to registration in the UK and thus also in Victoria, and their ‘right to practise in England was withheld’; as a consequence, as the Victorian Medical Board’s President noted, ‘most’ of them ‘were looking for some country in which to practise’.¹³⁶

Baker justifiably stated that he was ‘not at all sure’ that the Courts’ decisions in Meyer’s case would ‘apply’ in Tasmania ‘because it would be purely a matter of interpretation of our own Statutes’.¹³⁷ The media did not report any explicit response from Ogilvie to Baker’s remark.¹³⁸ Nevertheless, MPs may have gleaned from Ogilvie’s comments that, if the Council denied registration to an émigré with the TQ and the practitioner appealed its decision, owing to the provisions of the 1918 Act and Meyer’s case, the Supreme Court of Tasmania could and would probably overturn it.¹³⁹ The Medical Act 1928 (Vic) included inconsistent provisions that could be interpreted as either permitting or prohibiting registration of doctors with Meyer’s qualifications.¹⁴⁰ By contrast, the 1918 Act unambiguously entitled doctors to registration on the basis of the TQ.¹⁴¹ As Baker indicated, Tasmanian courts were not bound to follow the judgments in Meyer’s case because they dealt with the application of Victorian (not Tasmanian) legislation and the Supreme Court of Victoria is outside Tasmania’s court hierarchy. Nevertheless, MPs might have assumed that a Tasmanian judge would consider those decisions persuasive and, also for that reason, be inclined to allow an émigré’s appeal of the Council’s decision to refuse them registration.

3.4 Adoption of provisions of The Dentists Act, 1919 (Tas)

As the Tasmanian Parliament had just approved the bill amending the Dentists Act, this legislation provided a template for a statute amending the 1918 Act that was likely to be uncontentious. Ogilvie thus assured the House of Assembly that the ‘Medical Bill was on similar lines’ to the Dentists Act.¹⁴² The Dentists Act provided that any person who was registered or entitled to registration in the UK as a dentist or medical practitioner was entitled to registration as a dentist by the Dental Board of Tasmania.¹⁴³ In introducing the bill to amend this statute, Ogilvie had clarified that, while it was intended to remove the eligibility for registration of German-Jewish émigrés, ‘There was no desire to prevent British subjects registered in the [UK] from being registered in Tasmania’.¹⁴⁴ The Dentists Act was therefore amended to specify that, to be eligible for registration under that provision, the person needed to be a ‘British subject’ and be registered or entitled to registration in the UK as a dentist or medical practitioner ‘upon any qualification obtained by him upon examination in’ the UK.¹⁴⁵ The Medical Act 1937 (Tas) (‘1937 Act’) similarly amended the 1918 Act so that only entitled to registration as ‘legally-qualified medical practitioners’ were ‘British subjects’.¹⁴⁶ In addition, they needed to possess either one or more of the qualifications listed in the Second Schedule, which they had obtained ‘after a complete course of training and examination in the country where same was issued at a university, college, or other institution recognised for that purpose in that country’, or ‘such other qualification as may be prescribed’.¹⁴⁷

As MP Allen Hollingsworth observed, the original draft of the bill to amend the 1918 Act appeared to have one significant difference from the legislation amending the Dentists Act. He noted that it ‘gave the Council discretionary power in relation to registration’, which Ogilvie regarded as necessary ‘In case a famous surgeon desired to settle in this State’.¹⁴⁸ Nevertheless, some MPs shared Hollingsworth’s view that ‘Power should not be given to a small select body to discriminate in the matter of registration’ and ‘it should be a case of “all in or all out”’.¹⁴⁹ The apparent compromise was that the final version of the legislation clarified that the Governor was empowered to ‘make regulations for the purposes of this Act’.¹⁵⁰

3.5 Application of amendments to The Medical Act, 1918 (Tas)

Notwithstanding this change, the amended 1918 Act enabled Tasmanian doctors to exclude many European medical exiles from the practising medical profession in their state. Émigrés with the TQ and/or Italian qualifications were no longer entitled to registration in Tasmania on the basis of those qualifications alone, unless the Governor made regulations prescribing otherwise. An émigré could not rely on the TQ for registration, as they would not have obtained it ‘after a complete course of training and examination in’ the UK (such as an entire undergraduate medical degree). An émigré could only rely on their Italian qualifications for registration if they had become a British subject and had obtained them following ‘a complete medical course and examination in’ Italy. Notably, during this period, some Italian graduates started their medical courses in Poland or Czechoslovakia and finished them in Italy,¹⁵¹ so they would have been ineligible for registration in Tasmania.

In 1938, the Council received a ‘large number of applications for registration (or information as to possible registration)’.¹⁵² That year, the medical licences of Jewish doctors in Germany were removed, and Germany annexed and introduced its discriminatory measures to Austria.¹⁵³ The Council instructed Crowther ‘to obtain a pro forma with which to reply to the … alien practitioners whose degrees or diplomas are not recognised as registrable under Schedule 2 of the Medical Act of Tasmania’.¹⁵⁴

3.6 Preceding attempts to use licensing laws to reinforce medical dominance

Some MPs’ apprehension that the amended legislation would increase the Council’s ‘discretionary power’ was unsurprising in light of attempts by the Tasmanian medical profession earlier in the twentieth century to rely on licensing laws to reinforce its dominance. In the preceding decades, representatives of the profession had similarly attempted to protect local doctors’ income and autonomy by establishing that certain foreign medical graduates were not legally entitled to registration. Indeed, these past campaigns probably provided an important paradigm for doctors’ efforts in the 1930s to use the law to exclude European medical exiles from the practising profession.

3.6.1 Eben Gould’s case

In the late nineteenth and early twentieth centuries, Australian doctors were concerned that North American medical graduates would compete with local practitioners, and they questioned the standard of American medical courses, which were shorter than Australian and British degrees.¹⁵⁵ Yet there was no clear impediment under relevant legislation to American medical graduates obtaining registration in Tasmania. Further, they could be registered on the basis of less study than Australian and British graduates, and despite the fact that American states did not offer reciprocal recognition of the qualifications of Australian and British graduates, so they did not have a right to practise medicine in the United States of America (US).¹⁵⁶

An Act to Amend and Consolidate the Laws Now in Force in This Island Regulating the Practice of Medicine Therein (6 Vic, No 2) 1842 (Tas) (‘1842 Act’) empowered the Court of Medical Examiners to grant a certificate to, inter alia, a ‘Doctor of Medicine of some University or … Physician, Surgeon or Apothecary licensed or admitted as such by some College of Physicians or Surgeons’.¹⁵⁷ Only those so registered were deemed to be legally qualified medical practitioners who could ‘practise as a Physician Surgeon or Apothecary’.¹⁵⁸ In 1908, the Court of Medical Examiners interpreted that provision as applying exclusively to doctors with qualifications from the UK and refused to grant a certificate to Eben Gould who had a medical degree from the University of Boston.¹⁵⁹ Gould applied to the Supreme Court of Tasmania for a motion for mandamus to compel the Court of Medical Examiners to register him.¹⁶⁰ The Full Court held that the Court of Medical Examiners’ construction of the 1842 Act was reasonable; it found there was no express reference to or clear implication of Parliament’s intention to include non-British universities among those institutions whose graduates were entitled to registration in Tasmania.¹⁶¹ The judges recommended amendment of the legislation to clarify foreign graduates’ rights.¹⁶² The BMA—which excluded doctors with American qualifications from its membership—seemingly influenced the passage of The Medical Act, 1908 (Tas) (‘1908 Act’).¹⁶³ The 1908 Act repealed the 1842 Act and included the Second Schedule whose list of registrable qualifications omitted any American medical courses.¹⁶⁴

3.6.2 Victor Ratten’s case

Eight years later, representatives of the medical profession ignited a battle with the government over their long-standing concern that no means test was applied for admission of patients to Tasmania’s public hospitals.¹⁶⁵ Without this test, hospitals would treat patients who could afford to pay for doctors’ consultations and private nursing homes.¹⁶⁶ Yet the fee-for-service model was one of the key ways in which the profession could dictate the conditions of medical practice and thereby secure its high social status, power, and income.¹⁶⁷ To persuade the government to introduce a means test, prominent Tasmanian doctors attempted to ensure the deregistration of an American medical graduate: Victor Ratten.¹⁶⁸ Those doctors’ collusion in seeking to prevent Ratten from practising medicine in Tasmania disrupted the provision of medical services. Although they ultimately lost this conflict with the government, medical practitioners’ agitation to amend the 1918 Act in the 1930s may have evoked unpleasant memories for MPs.

In 1916, the BMA complained to Premier Walter Lee that affluent patients had been admitted to the Launceston General Hospital.¹⁶⁹ Lee refused to assure the BMA that such patients would be denied admission to state-funded hospitals, as fees charged to some patients were needed to meet their growing operational costs.¹⁷⁰ In response, the BMA advised its members to resign from their honorary public hospital positions (although this service was voluntary, they had benefited from the opportunity to develop their expertise and divert wealthier patients to their private rooms).¹⁷¹ At the request of the Royal Hobart Hospital’s board, in 1917, Lee appointed paid doctors who were not BMA members to its staff, including Ratten as Surgeon Superintendent.¹⁷² Lines, who had been an assistant honorary, was among those who criticized the appointees.¹⁷³ The BMA argued for their removal and began investigating Ratten’s qualifications.¹⁷⁴

Though born in Melbourne, Ratten secured registration in Tasmania in 1907 under the 1842 Act on the basis of a diploma he claimed to have obtained from Harvey Medical College in Chicago that year.¹⁷⁵ Yet the BMA referred to the Medical Council correspondence it received from the American Medical Association advising that Harvey Medical College had closed in 1905.¹⁷⁶ The 1908 Act provided that its repeal of the 1842 Act did ‘not affect’ the validity of any registration granted before it commenced.¹⁷⁷ However, after its passage, the Council had published a list of doctors, including Ratten and WGC Clark (another doctor with American qualifications who was also running the Royal Hobart Hospital), whom it had registered, but who had not qualified in Australia or Britain.¹⁷⁸ In 1917 or 1918, the Council, led by BMA members, asked those doctors to produce their diplomas for re-examination and provide details of their courses of study (Clark believed ‘with the object of removing’ him from the register), but Ratten ignored the request.¹⁷⁹ The BMA then made allegations to the Council that Harvey Medical College did not exist in 1907 and Ratten had not obtained the diploma on the basis of which he had secured registration in Tasmania.¹⁸⁰ At the Council’s request, Lee appointed a Royal Commission to investigate whether, in 1907, Harvey Medical College issued Ratten that diploma.¹⁸¹ The Commissioner, Ewing J, contacted the former president of that College’s board of directors who confirmed it had done so, but Ewing J remained dissatisfied with the evidence, including because it appeared that another college with a similar name had existed.¹⁸²

Tasmania’s Parliament then passed the 1918 Act, provisions of which could protect Ratten from deregistration.¹⁸³ It included in the list of qualifications in the Second Schedule that entitled their holders to registration, receipt of a diploma or degree following completion of ‘medical study of not less than four years’ duration’ in an American medical college ‘accepted as of Class A’ by the American Medical Association’s Council on Medical Education, and a certificate or licence entitling them to practise medicine or surgery in the state in which the college was situated.¹⁸⁴ The 1918 Act also stated that no staff member of any state-aided Tasmanian hospital could be removed from the register ‘by reason or on account of his becoming or continuing to be a member of such staff, or … anything done or omitted to be done by him in respect of or in connection with his acceptance of his said position … or … continuance in such position’.¹⁸⁵ Further, a doctor could appeal against the Council’s erasure of their name from the register to the Supreme Court.¹⁸⁶ In addition, Parliament passed The Hospitals Act 1918 (Tas), which provided that all public hospitals were required to receive and treat sick people without ‘discrimination in respect of social position’, and patients needed to ‘contribute’ the ‘sum as the board of such hospital, having regard to his means, shall demand’.¹⁸⁷

In 1919, the new Council appointed by Lee, which comprised mostly doctors who worked at the Royal Hobart Hospital, endorsed Ratten’s (and Clark’s) qualifications.¹⁸⁸ However, the BMA obtained further evidence indicating that Harvey Medical College had not issued any diplomas since 1905 and asked for another Royal Commission, but Lee maintained that the Council was the appropriate body to investigate the validity of Ratten’s diploma.¹⁸⁹ Parliament then passed The Medical Act, 1919 (Tas), which amended the 1918 Act to confirm that no staff of state-aided hospitals could be deregistered ‘on account of anything done or omitted by them in obtaining their diplomas and obtaining registration in Tasmania, unless in case of fraud on their part in connection with such matters’.¹⁹⁰ The amendments provided that the Supreme Court of Tasmania, on the Council’s application, could deregister a doctor for having obtained their registration by ‘fraud or fraudulent misrepresentation’ or for engaging in ‘infamous conduct in any professional respect’.¹⁹¹

Pursuant to these amendments to the 1918 Act, the Council needed to conduct an inquiry into the BMA’s allegations to determine whether to refer them to the Supreme Court.¹⁹² The BMA claimed that Ratten obtained the diploma he provided to the Council from William French, who sold forged diplomas in the US.¹⁹³ The Council found that: Ratten had obtained his diploma from ‘Harvey Medical College and Hospital’, which was not a bona fide institution and was established by French to represent falsely that its diplomas were issued by Harvey Medical College; Ratten knew his diploma was not bona fide; he obtained registration in Tasmania through fraud; and Ratten was therefore guilty of infamous conduct in a professional respect.¹⁹⁴ Nevertheless, the Council’s referral of the case to the Supreme Court was stalled, as Nicholls CJ rejected its application to obtain evidence from witnesses in the US because they could not be cross-examined in Tasmania.¹⁹⁵

The Council decided to apply to the High Court for special leave to appeal, but Lee confirmed that the government would not pay its costs.¹⁹⁶ Again to protect Ratten from deregistration, the Tasmanian Parliament passed The Medical Act, 1920 (Tas) (‘1920 Act’). It amended the 1918 Act to provide that no application could be made to remove the name of a person registered under that statute from the register on the grounds of fraud, fraudulent misrepresentation, or infamous conduct in any professional respect, ‘unless the matter complained of occurred within seven years of the time of making such application’.¹⁹⁷ The 1920 Act also added to the 1918 Act that ‘no person shall be deemed guilty of infamous conduct in any professional respect by reason only of his practising as a medical practitioner with the knowledge of any matter concerning his registration, or his application or qualification … unless such matter occurred within seven years of the time of application for the removal of his name from the register’.¹⁹⁸ The Chief Secretary wrote to the Council’s president confirming that the amendments ‘will cover Dr Ratten’s case, and I presume you will advise your Solicitors to stay their hand in regard to the proposed appeal to the High Court’.¹⁹⁹

Some doctors remained concerned about Ratten’s standards, though patients praised his surgical work.²⁰⁰ Irrespective of the validity of Ratten’s diploma and the quality of his training and skills, Parliament’s support of Ratten and the BMA’s attempts to discredit him were at least partly attributable to their larger disagreement over introducing a means test into Tasmania’s public hospitals. In the case of the BMA, it sought to win that argument, and thereby ensure more patients attended private medical consultations, by inducing the legal removal of a doctor’s entitlement to registration based on his foreign qualifications.

The Royal Hobart Hospital’s board eventually negotiated with the BMA, and some of its members returned to work at the hospital in 1931.²⁰¹ Yet Franklin Fay, Honorary Medical Secretary of the BMA’s Tasmanian branch between 1949 and 1956, observed that ‘The aftermath of this dispute left a feeling of bitterness and hostility to the BMA by the … Parliament which lasted for many years, and was still evident after World War II’.²⁰² The fact that the Tasmanian legislature passed the amendments to the 1918 Act in 1937 in spite of this animosity, as well as its disquiet about boosting the profession’s power, is probably attributable to the above-mentioned factors. They included: Parliament’s recent enactment of the Dentists Act and the opportunistic timing of the Council’s lobbying close to the passage of that statute; the Courts’ decisions in Meyer’s case; and MPs’ support of the profession’s protectionist agenda, though possibly also their xenophobia.

Further, in Tasmanian medical practitioners’ collective memory was the exemplar of an attempt to use medical licensing laws to protect local doctors’ income and autonomy. They were able to achieve efficiently their aim of eroding the perceived threat of competition from European medical exiles by drawing on their antecedents’ well-honed tactic of agitating to remove the legal eligibility for registration of doctors with foreign qualifications. MPs may have been willing to permit this reinforcement of the profession’s authority because it was counterbalanced by Tasmanian doctors’ simultaneous failure to convince the government to abandon its scheme of employing medical officers to provide free services in areas of need.

4. Continued resistance to European émigrés’ medical practice in Tasmania

The Council regarded Tasmania as a leader in responding to the possibility of an influx into Australia of European medical exiles seeking registration to practise medicine. Following the passage of the 1937 Act, Crowther sent copies of it to the other states’ medical registration authorities because, as he reported to the Council, ‘the action taken by the Tasmanian government was a very valuable precedent in reference to legislation regulating admission of alien medical practitioners to state registration’.²⁰³ Yet, despite the success of the agitation of representatives of the Tasmanian medical profession for limiting the émigrés’ eligibility for registration, their hostility towards the medical exiles did not abate. The BMA generally was unwelcoming of European doctors who managed to obtain registration in Australia. After the war began, the Federal Council sent the BMA’s Tasmanian branch a letter confirming that it had expelled from the association émigrés from Germany and its allies whom the government treated as ‘enemy aliens’ (even though they had fled persecution in Europe).²⁰⁴ Further, prominent Tasmanian doctors initially opposed changes to the law that would enable only a few European medical exiles to practise medicine in their state.

The growing dearth of doctors to treat the civilian population as the war progressed generated concern, but representatives of Tasmania’s medical profession resisted proposals to rely on the émigrés to help address the problem. In 1941, the Federal Council wrote to the BMA’s Tasmanian branch about this matter and it resolved to ask the Premier to receive a deputation (including Crowther) to discuss the shortage of medical practitioners.²⁰⁵ The Premier told the deputation ‘that the Government was giving consideration to the registration of aliens’, but promised ‘that no action would be taken in this calendar year, and that the Branch would be consulted before legislation was introduced’.²⁰⁶ To prepare for the possibility of amending legislation being mooted, the branch resolved to appoint Crowther and some other members ‘to meet the Government’, and arrange ‘Special Meetings’ of the branch’s northern and southern divisions ‘to obtain the views of members’.²⁰⁷

Although the BMA was unaware of and thus decided to investigate ‘the reality and extent of the alleged shortage’ of doctors in Tasmania, it had already determined that ‘the present shortage … is not sufficient to warrant the introduction of registration of alien medical practitioners’.²⁰⁸ If it identified that a shortage existed, the Tasmanian branch resolved that its members would do ‘their utmost to help the Government to overcome’ it, and recommend improving ambulance services and giving hospital residents ‘short periods in country districts under the State Medical Service’.²⁰⁹ The branch’s divisions agreed that ‘whatever steps are taken the protection of the interests of the doctors who have volunteered for active service should be the first consideration’,²¹⁰ implying that this would entail restricting European émigrés’ medical practice. They resolved that any ‘emergency registrations’ that are made should be granted: to doctors whose qualifications were ‘approved by an existing university faculty of medicine’; and ‘for practice in government services or public hospitals and for the duration of the war only’.²¹¹

At the end of 1941, Australia’s War Cabinet decided to create a federal scheme for temporarily permitting some European émigrés to practise medicine to address the deficiencies in medical services.²¹² Registration of doctors remained the responsibility of the state-based statutory medical authorities, and legislation passed by the Tasmanian Parliament still specified the Council’s functions and eligibility for registration in its jurisdiction. However, as a wartime measure, the Federal Parliament passed legislation empowering a new federal entity to operate a system for licensing foreign doctors to practise medicine across Australia, which was separate from the state-based processes for registering medical practitioners. The National Security (Alien Doctors) Regulations 1942 (Cth) (‘Regulations’), made under the National Security Act 1939–1940 (Cth), established the Commonwealth Alien Doctors Board (CADB).²¹³ Examining Medical Committees were formed in the states with medical schools to assess the knowledge of English and medical practice of applicants for licences.²¹⁴ Émigrés residing in Tasmania needed to travel to Melbourne at their own expense to attend the exams.²¹⁵ After considering the Committees’ reports, the CADB could grant licences to alien doctors.²¹⁶

Representatives of the medical profession were concerned that licensees would compete with local doctors, particularly by establishing private practices in affluent urban areas that Tasmanian doctors had left to join the army.²¹⁷ At first, Tasmanian MPs and civil servants helped to protect the profession from this perceived threat. Gaha, by then Minister of Health, told the Premier, Robert Cosgrove, that he was ‘not prepared to recommend [the licensees’] employment in private practice’.²¹⁸ Gaha’s justification for this position—‘many of them are very restricted in their specialist medical knowledge, unlike Australian practitioners who are trained in wide general knowledge’²¹⁹—was an argument the BMA repeatedly made in opposing the émigrés’ medical practice in Australia.²²⁰ Gaha suggested that the licensees’ ‘services should be restricted to hospitals and institutions, where they can be adequately supervised’.²²¹ Cosgrove then informed the Prime Minister, John Curtin, that ‘in utilising the services of alien doctors there should be a definite understanding that general medical practitioners only will be permitted to practice in country centres’.²²² Curtin promised Cosgrove that, once assessment of licence applicants was completed, the States’ health departments and medical co-ordination committees (MCCs), which directed the distribution of medical services during the war,²²³ would ‘be invited to indicate any disposition of individuals desired by them and arrangements will then proceed, so far as is practicable, in accordance with the suggestions’.²²⁴

The Secretary of Public Health, EJ Tudor, refused to assist at least one émigré to obtain a licence. Julius Schwarcz told Tudor that he failed the licence exam due to his ‘lack of experience in hospitals’ (he had spent only 10 months in hospital practice after graduating in Austria before he ‘was forced to leave’ Europe).²²⁵ Schwarcz proposed to ‘offer my services in any capacity where I can gain useful experience that would be of assistance to me should I have a further opportunity of sitting again and also that the best use may be made of my qualifications’, such as ‘minor hospital work or in laboratory or pathology’.²²⁶ Nevertheless, Tudor confirmed that he was not ‘competent’ to ‘give any consideration’ to this request until Schwarcz was licensed.²²⁷

The CADB issued licences for 12 months and renewed licences on 31 December each year.²²⁸ However, the Regulations provided that the licences would ‘lapse and be no longer valid on the day on which the National Security Act 1939–1940 (Cth) ceases to be in force’, which was predicted to be a year after the war ended.²²⁹ Anticipating this occurrence, in December 1943, a conference of Australia’s Health Ministers adopted the resolution, ‘That each Minister take back to his Cabinet a recommendation that the registration of alien doctors who have been licensed during the war should be continued after the war’.²³⁰ The Tasmanian government eventually acceded to pressure from the federal government to introduce legislation that recognized the émigrés’ medical work under the wartime federal licensing scheme, by making them eligible for registration after the war ended. The Council was required to apply this legislation when the Tasmanian Parliament passed it, even though the federal government (rather than the Tasmanian government or the Council) had permitted the émigrés’ medical practice during the war.

When the licensing scheme commenced, Gaha had warned Cosgrove:

no argument can be advanced as to why these doctors should be deprived of their licences twelve months after the war. If they are competent to care for the people during the war, it will be extremely difficult to prevent their practising afterwards, particularly in view of the experience they will have gained in the meantime.²³¹

Tudor nonetheless wrote to other states’ public health departments, requesting to ‘be informed of any action taken or proposed by your Government in this matter’.²³² Further, the Council opposed the licensees’ continued practice. In 1944, it told the Federal Minister for Health that it did not support ‘extending the period of licences granted to alien medical practitioners’ because it ‘would be against the interests’ of ‘serving medical practitioners with the armed forces’.²³³ In March 1945, the Council refused the applications of two licensees for registration. It informed Egon Suerth, who had Italian qualifications, ‘that his status as a non-naturalised British subject debarred him from this’,²³⁴ though the basis for this position is unclear as the 1918 Act did not specify that naturalization was a precondition to registration. The Council also told Oskar Kudelka, who had relinquished his licence ‘for domestic reasons’, that ‘his [Austrian] degrees were not registrable in Tasmania’.²³⁵

In August 1945, however, the Prime Minister wrote to Cosgrove, noting the Health Ministers’ resolution and highlighting that ‘The appropriate legislation will have to be amended to provide for such registration’ of the five licensees who had practised in Tasmania: Suerth; Kudelka; Ernst Fabian; Franceso Piscitelli; and Angelo Vattuone.²³⁶ The following year, the Tasmanian Cabinet decided to introduce a bill amending the 1918 Act ‘to make it possible for alien doctors who are already licensed to practice in this State to be permitted to continue to do so’.²³⁷ The Minister for Health directed that the draft legislation be forwarded to the BMA for its ‘consideration’.²³⁸ The BMA confirmed it had ‘no objection’ to the bill,²³⁹ and deemed it ‘satisfactory to all parties concerned’.²⁴⁰ The protectionist agenda of representatives of the medical profession had not changed. However, while the Council appears to have favoured the maintenance of a consistent position in response to all foreign doctors’ eligibility for registration, the BMA was open to taking a pragmatic approach, driven by its assurance that the proposed legislative amendments would benefit the community without jeopardizing local doctors’ practices.

The BMA was aware that shortages of medical practitioners in Tasmania had become acute. BMA representatives had been appointed to the MCCs in each state, which provided doctors to the army and operated the Emergency Medical Service (EMS) that could order doctors to practise in civilian areas in need of medical services.²⁴¹ The Minister for Health ‘told an executive officer of the Tasmanian [MCC]’ that ‘danger point had been reached in the State’.²⁴² He therefore ‘urged’ the MCC to ‘retain doctors in Tasmania for a sufficient length of time to ensure that there would be enough senior medical officers’, rather than ‘release any more doctors for the [armed] services … until local needs were more completely met’.²⁴³

The licensees had been performing valuable services that were helping to alleviate the crisis in Tasmania, and worked in positions and conditions that were probably unappealing to local doctors. The Minister for Health confirmed that ‘The experience of the Tasmanian public at the hands of these men has been one of excellent service’.²⁴⁴ The CADB had not exercised its discretion under the Regulations to cancel any of the alien doctors’ licences,²⁴⁵ and it would have done so ‘had their services been unsatisfactory’.²⁴⁶  The Mercury reported that Kudelka ‘conducts a 14-bed cottage hospital’ on King Island where he ‘is his own dispenser’, he ‘makes regular visits to the northern and southern ends of the island’, and his residence was ‘not lighted by electricity yet’.²⁴⁷ The Minister for Health informed the Attorney-General that Kudelka ‘takes a wonderful interest in the health of the whole community, and has done an excellent job’.²⁴⁸ The Minister also noted that ‘West Coast districts where … Piscitelli and Vattuone were practising have asked the Department to send them back, so satisfied were they with the services rendered’.²⁴⁹

The BMA would also have been willing to support the statutory amendment to enable the licensees’ registration because its application was confined to five émigrés and, as the Minister for Health emphasized, it would ‘not permit any other alien to come in and start practising’.²⁵⁰ The Medical Act 1946 (Tas) (‘1946 Act’) amended the 1918 Act to provide that doctors were eligible for registration if, on 31 December 1945, they held a licence granted pursuant to the Regulations and they were practising medicine in Tasmania on 1 January 1947 when the 1946 Act commenced operation.²⁵¹ The Parliamentary Draftsman, Richard Lewis, understood that this provision was intended ‘to prevent a last-minute influx … into this State’ of ‘alien doctors’ who obtained a licence after 31 December 1945 or who held a licence at that date, but were not practising in Tasmania when the 1946 Act commenced, and might otherwise seek registration.²⁵² The 1946 Act amended the 1918 Act to provide that also eligible for registration was a person who, before 31 December 1945, had been ‘directed’ by the EMS to ‘perform any medical services’ in Tasmania for civilians under regulations 28 or 29 of the National Security (Medical Co-ordination and Equipment) Regulations 1943 (Cth), and was practising ‘in pursuance of such direction’ in Tasmania when the 1946 Act commenced.²⁵³ According to Lewis, this provision applied only to one alien doctor.²⁵⁴

Although the Council was obliged to apply the new provisions of the 1918 Act, it sought to place more obstacles in the licensees’ path to registration. It instructed Crowther to inform Kudelka (who was still in King Island) and Fabian (who was in St Helens) ‘that their personal appearances before the Council or its Northern Subcommittee is obligatory, in order to effect such registration’.²⁵⁵ The Council also requested Crowther to ‘ask the solicitor to the Council to address’ the question of ‘whether naturalisation of those affected under the Medical Act 1946 is required’.²⁵⁶ However, the 1946 Act imposed no such requirement, and the Council subsequently registered the licensees,²⁵⁷ with the exception of Suerth, whom it had already registered on 24 May 1946, perhaps because he had become naturalized.²⁵⁸

In response to ongoing shortages of doctors in Tasmania,²⁵⁹ the Minister for Health informed the Council in 1949 that the government was considering proposing another amendment of the 1918 Act ‘to permit the registration of a … limited number of graduates of British schools, who were not eligible under our Act owing to not being of British nationality’.²⁶⁰ The Council responded that, ‘after full consideration’, it was ‘of the opinion that an additional effort should be made, in the interests of the community, to obtain British subjects holding English degrees, to fill the vacuum … in the Government Medical Service’.²⁶¹ Nevertheless, the government was determined to proceed with a bill, so the Council sought to confine its application. It suggested to the Minister that: the number of doctors registered under this legislative amendment be limited to six in the first two years of its operation, of which only a maximum of three could be specialists; all of those doctors ‘should hold a higher degree or diploma’ of an Australian or British medical school or ‘medical school of equal status’; and applicants should be required to satisfy the Minister and Council that they ‘possess a sufficient and proper knowledge of the English language’.²⁶² The Council sought to ‘stress’ to the Minister ‘the necessity of safeguarding the medical care of the community and the prevention of any lowering of the standards of training at present required for registration to practise in this State’.²⁶³

The Medical Act 1951 (Tas) (1951 Act) reflected the Council’s recommendations to a certain extent. It included in the 1918 Act an additional pathway to practise medicine lawfully in Tasmania that was open to some alien doctors who were not necessarily ‘British subjects holding English degrees’, but tightly circumscribed its availability. The amended 1918 Act gave the Council discretion to grant a ‘special licence’ for a year to practise in a branch or branches of medicine and/or surgery that the Council specified, and in places appointed by the Minister, to persons who applied for it on the Minister’s recommendation.²⁶⁴ The Council could grant a maximum of five licences in each of 1952 and 1953, and no more thereafter, but could renew the licences.²⁶⁵ A person was, however, only eligible for a licence if they: had completed a medical course of at least five years’ duration, after which they received a qualification equivalent to a qualification listed in the Second Schedule; were ‘entitled to be registered or to practice as a medical practitioner’ in the place where they completed their course or ‘some other place’; completed at least 12 months of ‘further training’ in a hospital approved by the Council; and passed an exam ‘equivalent to the final examinations for the bachelor’s degrees in medicine and surgery in some Australian University selected by the Council’ (‘if practicable’ conducted by examiners in an Australian medical school), which satisfied the Council that they had ‘sufficient experience in the practice of medicine and surgery for the purpose of the licence’.²⁶⁶ Introducing this legislation to the House of Assembly, Minister for Health, Reginald Turnbull, explained that four of the five alien doctors who could obtain licences each year would be general practitioners and the fifth would be ‘a specialist in tuberculosis or psychiatry’.²⁶⁷

The 1951 Act also inserted into the Second Schedule two qualifications that would entitle their holders to registration, but that only a small number of alien doctors would possess. The first qualification was registration to practise medicine in another Australian state.²⁶⁸ Nevertheless, foreign doctors generally continued to face obstacles to obtaining registration in the most populous states: Victoria; and New South Wales.²⁶⁹ Also eligible for registration was a ‘naturalized or natural born British subject’ who had held a special licence that had been renewed five times.²⁷⁰

5. Conclusion

Doctors who escaped Nazi-occupied Europe and immigrated to Australia found they were largely unwelcome. Representatives of the medical profession feared their competition, and some may also have been xenophobic. The reception of these medical exiles in Tasmania was especially antagonistic. Influenced by prominent members of the profession, Tasmania’s legislature was the first Australian state parliament to amend relevant legislation so as to limit the émigrés’ eligibility for registration to practise medicine. The profession’s achievement in this regard reflects how it used the law, and specifically statutory provisions regarding licensing of medical practitioners, to attempt to entrench its dominance.

As explored in this article, other contemporaneous perceived threats to Tasmanian doctors’ livelihood and autonomy amplified their anxiety (perhaps beyond the concerns of practitioners in other states) about an anticipated ‘influx’ of European medical exiles. The relatively small profession in Tasmania, which lacked its own medical school, was still suffering from the effects of the Depression and there were few affluent patients to support doctors’ private practices. Despite shortages of medical services, doctors worried that the government’s proposed means of addressing them would further diminish their control over their practices and earnings. In this climate, the profession was especially eager to eliminate the possibility of any additional competition for work (in particular for private medical consultations).

Various factors discussed in this article appear to account for the swift success of the agitation by representatives of the Tasmanian medical profession to remove many European doctors’ entitlement to practise medicine in their state. Those practitioners had the exemplar of a tactic used by their antecedents to seek to protect local doctors’ interests, namely, attempting to establish that people with foreign medical qualifications were legally ineligible for registration. They fervently implemented this strategy again in the 1930s, applying consistent, focused pressure on government ministers and public servants to propose amendments to the 1918 Act that would achieve this outcome. The passage of legislation amending the Dentists Act with its similar intent of preventing émigrés from pursuing their profession in Tasmania was serendipitous, and Tasmanian doctors capitalized on it. That bill provided a template for legislation amending the 1918 Act that was likely to appeal to MPs who sympathized with the profession’s protectionist aim, and the government could rely on the same arguments that succeeded in convincing the Parliament to pass the statute amending the Dentists Act. Meyer’s case might also have persuaded MPs of the importance of removing any legislative basis for successfully challenging the Council’s decisions to deny European medical exiles registration.

Notwithstanding their agreement to amend the 1918 Act, MPs were concerned about increasing the authority of the medical profession. The legislature’s empowerment of the profession to determine who could legally practise medicine in Tasmania was integral to its dominance and enabled it to make decisions that potentially deprived the population of necessary medical services. The memory of the government’s conflict with the profession earlier in the twentieth century was still raw and it demonstrated that the BMA and the Council, with their crossover membership, constituted a powerful pressure group that could be willing to sacrifice public health needs to protect its interests.

Nevertheless, the government had won that battle and implemented, against the wishes of the profession, its scheme of employing doctors on a full-time basis to provide free medical services in various areas of the state.²⁷¹ Tasmanian doctors were also unsuccessful in resisting further legislative changes following the amendment of the 1918 Act in 1937 that permitted some émigrés to practise medicine. Yet the change to the medical licensing laws in 1937, prompted by the profession, entrenched its power to exclude many European medical exiles from the practising profession in Tasmania. The victims of its use of the law to reinforce its authority in this respect were doctors who had fled persecution to begin a new life and the patients who they could have treated had the Council granted them registration.

The author wishes to thank: the anonymous reviewers for their very helpful comments; the Francis Forbes Society for Australian Legal History for providing a grant to Deakin University in respect of the research undertaken for this article; Dr Elisabeth Wilson for assistance in deciphering handwritten archival documents; and Associate Professor Rebekah McWhirter for suggesting useful secondary sources.

Footnotes