Andrew Leigh (Fenner, Australian Labor Party, Shadow Assistant Minister for Treasury) Share this | Link to this | Hansard source

I move:

That this House:

(1) notes that:

(a) the Euthanasia Laws Act 1997 (known as the Andrews Bill) amended the Australian Capital Territory (Self-Government) Act 1988 and the Northern Territory (Self-Government) Act 1978 to deprive these two legislative assemblies of the power to make laws relating to euthanasia;

(b) the Government of Prime Minister Howard justified this at the time as a constraint on young jurisdictions that were seen to be moving ahead of the broader public mood;

(c) when the Andrews Bill curtailed the right of territories to make laws relating to euthanasia, no other state or territory legislature had conducted a debate on similar laws;

(d) polls of public attitudes to doctor-led voluntary assisted dying suggest that support was in the high sixties in the 1980s, in the mid to high seventies in the 1990s, and in the low eighties in the past two decades;

(e) in recent years all state legislatures have debated legislation around voluntary assisted dying, with Victoria and Western Australia legalising voluntary assisted dying, and New South Wales and South Australia rejecting legalisation, while Queensland and Tasmania have processes ongoing;

(f) the anachronistic Andrews Bill means that a quarter of a century since it was passed, 700,000 Australians who live in the Northern Territory or the Australian Capital Territory are still unable to participate in a democratic process to resolve community approaches to euthanasia;

(g) repealing the Andrews Bill would return to territories legal powers that are held by other Australian jurisdictions; and

(h) restoring territory rights does not direct that either territory legislature should consider legislating on euthanasia, it merely allows them to do so if their properly elected representatives decide it appropriate;

(2) acknowledges that:

(a) in each of the last two terms of parliament the Government has blocked debate on private Members' bills that would restore territory rights; and

(b) while senators have debated and voted on related legislation, members of the House of Representatives have been prevented from expressing their views on this issue; and

(3) calls on the Government to:

(a) explain why, in 2021, two mature legislative jurisdictions are still singled out as unworthy of legislative self-determination;

(b) commit to introduce legislation into the House of Representatives that would grant territorians legislative equality with Australians in other jurisdictions; and

(c) restore the right of territories to determine their own laws on euthanasia.

Yesterday I met with Katarina Knowles, who lost her father, Nebojsa Pavkovic, to Parkinson's disease. At the end of his life, he knew he was going to go, but he was unable to avail himself of voluntary assisted dying in the ACT, so he went through the extremely painful process of a five-week hunger strike. It was agonising for him and for his family. But Katarina isn't alone; many other families have seen their loved ones suffer at the end of their lives unnecessarily.

Voluntary assisted dying is now supported by 87 per cent of Australians, including 79 per cent of coalition voters, 77 per cent of Catholics and 78 per cent of protestants. It has been legalised in three of the six states—Victoria, Western Australia and Tasmania—and is being considered in other jurisdictions. Many European nations have legalised voluntary assisted dying. At least eight US states and the District of Columbia have also legalised voluntary assisted dying.

The world is a very different place from when in 1997 this parliament determined to take away the power to legislate over euthanasia from the ACT and the Northern Territory. Those jurisdictions were young then; they are mature assemblies now. Back then, no state had moved. Now, half the states have moved. This is an important point, as it goes to some of the arguments that were made for retaining the Andrews bill. Frank Brennan asked the rhetorical question, 'Should the Commonwealth parliament overturn a territory law?' and said, 'Only in very rare circumstances: where no state has similarly legislated'. That is now palpably no longer the case. As the editors of the NT News have said, 'Give us back our rights'.

Territorians should have the right to have this issue debated by their parliamentarians. In the ACT, Mary Porter has led much of the work around the safeguards that would be necessary for voluntary assisted dying laws. That work has been picked up by Tara Cheyne in recent times. I'm pleased to see the entire Liberal caucus within the assembly has supported overturning the Andrews bill so that the ACT Legislative Assembly can debate voluntary assisted dying. But not all elected Liberals in the ACT support removing this undemocratic bar. Shamefully, when the issue was debated in the Senate, Senator Zed Seselja did not vote to remove the bar on the ACT legislating on euthanasia. Gary Humphries, his predecessor, would have done so. Zed Seselja chose not to, and that speaks volumes about his inability to stand up for Canberrans.

We know that this is a challenging topic for many, but regardless of where you stand on the merits of euthanasia, it is untenable that the territories should be prevented from debating an issue which is being debated in every Australian state. There have been multiple attempts to change the law within Australian states—some successful, some unsuccessful. They've been allowed to have that conversation, guided by thoughtful advocates such as Andrew Denton from Go Gentle and guided by the stories of many people, such as Katarina Knowles, about suffering at end of life.

I remember a good family friend who had the experience, when her husband was suffering a terminal illness, of getting assistance to administer drugs which were not at that stage legal. She administered the drugs. He asked her then to go home, so she wouldn't be there when he died. She came back the next morning; he had vomited them back up and they had to go through the entire process all over again. It was deeply painful for both of them. This is not a choice that should be faced by people at the end of their lives. All of us should have the autonomy, if we are faced with a terminal illness, to set in place euthanasia, guided by the appropriate safeguards. The repeal of the Andrews bill shouldn't re-enliven the Northern Territory law, as it then was, but the Northern Territory parliament should be required to re-enact a law that contains appropriate safeguards. The Andrews bill must go. The territories must have their democratic rights to debate euthanasia, as the states already can do.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Is the motion seconded?

Alicia Payne (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

I second the motion and reserve my right to speak.

Julian Leeser (Berowra, Liberal Party) Share this | Link to this | Hansard source

I have great respect for my friend the member for Fenner, but I could not disagree with him more fundamentally on a more fundamental issue than the issue of territory euthanasia laws. The Constitution gives the Commonwealth parliament the plenary power to make laws about territories, whether they are island territories or mainland territories. They are not states, and we regularly use the territories power in a whole range of things. The Northern Territory had a referendum on whether to be a state some years ago, and they voted against it.

I am a federalist, but, for me, matters of life and death trump all concerns of constitutional questions, and I believe that euthanasia laws have no place on the statute books of any parliament in this country. My only criticism of the Andrews law is not that it overrides territory laws, but that we didn't, at that stage, find a way to override state laws as well in relation to these matters. I think some thought needs to be put into that, because I regard the euthanasia laws that exist in our states as bad and as an attack on some fundamental values that underpin our society as a whole.

I want to acknowledge that there are people in our country that are in pain and are not getting the level of care that they require. There was a very good, but not heralded enough, publication that came out from the PM Glynn Institute of the Australian Catholic University recently called A snapshot of palliative care services in Australia. Its author Dr Chris Abbu found a number of key things. First, the number of people being hospitalised for palliative care is growing at an average rate of five per cent a year, and services are not keeping pace. Second, the rate of palliative care hospitalisations for children under 15 has increased by more than 10 per cent annually since 2012-13, but palliative care is not a well-regarded specialty that students are choosing to go into. And, third, models of palliative care that give people not just the chance to experience end-of-life care in hospitals, but to do so in homes, are not well advanced enough in this country, and I think about the palliative care in the home model that is pioneered by the San, just outside my electorate, which I've spoken about previously in this chamber.

Why is palliative care important? Because properly funded palliative care must be a national priority. I note that in the recent federal budget we announced an additional $58.7 million of measures for palliative care. But let me quote Dr Michael Casey, the chief executive of the PM Glynn Institute, in relation to the report. He said:

People say voluntary-assisted dying is about giving patients a choice but if dying patients cannot access the palliative care services they need, they don't really have a free choice …

We need to do more to ensure that everyone who needs good quality palliative care can access it, wherever they are and whatever their circumstances, before considering a momentous step like—

euthanasia. I should say that the report also found the ACT has the best access to public palliative care of any jurisdiction: 22 palliative care hospitalisations per 10,000, and they've seen an annual increase of 13.6 per cent between 2013-14 and 2017-18.

The member for Fenner also mentioned the Northern Territory laws. I remember the woman who was the poster child of the Northern Territory laws advertised on television saying: 'Please, let me die. Please, let me die.' Well, she got better. She lived, and she became an opponent of those same laws. The nature of euthanasia is that it ends lives and that it is so fundamental. We know that people have different responses to treatment over time. We also hear that euthanasia laws won't affect that many people. In Victoria, they predicted that only 12 people would die by euthanasia in the first year, and yet there were 272 eligible applications and 124 deaths. We often think about euthanasia in the context of very old people, but the youngest person to die by euthanasia in Victoria was 36. Is that what we really want in our community and in our country? The latest statistics from Victoria show that 94 people died by euthanasia in the six months to the end of 2020, and this in a state where the increase in mental health presentations rose 23 per cent.

Is it any wonder that the AMA in every jurisdiction in which euthanasia laws have been proposed have been a trenchant opponent? Is it any wonder that in Western Australia our colleagues and friends Minister Wyatt and Senator Dodson so strongly opposed those laws there because of the disproportionate effect on vulnerable Indigenous people? When Andrew Denton cannot rule out the application of these laws to people with dementia, I think we are on a very slippery slope. I very strongly oppose this motion.

Alicia Payne (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in strong support of the member for Fenner's motion today, and I thank him for bringing this motion to the parliament. I want to acknowledge his long-term advocacy on the issue of territory rights. I also want to acknowledge the long-term advocacy of my other ACT Labor colleagues, the member for Bean, who will speak on this motion, and Senator Katy Gallagher. The other representative of the ACT, of course, is Senator Zed Seselja, and he voted against territory rights.

This is such a simple issue. Why should people who live in territories not have the same rights as everyone else in this country? It seems very clear that our territory parliament should be able to debate issues in the same way our states do. But the Andrews bill of 1997 restricts the rights of the residents of the Northern Territory and the Australian Capital Territory. The fact is that the ACT did not even want self-government. In the 1978 plebiscite, almost 64 per cent of residents rejected proposals for a legislative body or a council body, opting instead to continue under the administration of the federal parliament. But, nonetheless, self-government was forced upon the residents of Canberra in 1988 by this parliament. I in no way want to say that that was not a great thing, because we now have a very mature government that has 32 years of decision-making that aligns with our citizens and represents our community in Canberra.

I am so proud to be a resident of Canberra and of the things that our ACT government has done. We are the first Australian jurisdiction to have 100 per cent renewable energy. We have a net-zero-by-2045 target. We have the second cleanest air of any capital city in the world after Wellington and we were the first jurisdiction to have equal marriage, which then the Abbott government took away before the coalition caught up five years later under Malcolm Turnbull's leadership.

Mr Tim Wilson interjecting—

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

Member for Goldstein, this is the only warning you're getting.

Alicia Payne (Canberra, Australian Labor Party) Share this | Link to this | Hansard source

It's a perfect example of where our territory should have been able to make decisions for itself, and voluntary assisted dying is another such example. Three states around the country already have laws in place to enable people to have voluntary assisted dying and more states have debates on this coming up this year.

The argument that was made at the time of the Andrews bill was that the territories would be ahead of the states, as the member for Fenner has rightly pointed out. But, instead, we're being held back. In fact, we are being denied the same rights that other people around the country have. I'm very interested to hear the member for Goldstein speak because I would have thought he was all about people having freedoms and equal rights. So I look forward to it. I think there is no reason that people in the ACT should not have the same rights. This is a broader issue than just that around euthanasia. This is about democracy. This is about us having parliaments that can represent us in the ACT and the Northern Territory in the same way as parliaments do in New South Wales, Western Australia, Queensland, Victoria and South Australia. As I said, the ACT government is leading the way on many issues, and I would like to see us have the right to lead in other ways as well.

I will touch on voluntary assisted dying, although, as I said, it is not the only thing that this issue is about. Equal marriage would have happened much earlier in the ACT if we'd had the right to legislate so. But, as the member for Fenner has pointed out, at the moment people with a loved one who is dying are faced with incredibly hard decisions. I agree with the member for Berowra that palliative care should be as well funded as possible, and that is an incredibly important issue that we don't talk about enough. But the fact of the matter is that many families are already facing these decisions, and things are happening in very painful ways and in less humane ways than they should. For example, anyone who has had an experience with aged care would know that there is a common question as someone is nearing the end of their life: 'Should we call the ambulance?' You know that they will try to save your loved one. That is a disgusting situation for people to be put in, and it is terrible that people are making these decisions. So I stand as an advocate for territory rights, joining my Labor ACT colleagues in doing so, and I ask that this parliament please deliver us the same rights as other citizens around the country.

Tim Wilson (Goldstein, Liberal Party) Share this | Link to this | Hansard source

It is a pleasure to be able to speak on this motion, put forward by the member for Fenner. As he knows, I share in the spirit of the sentiment of the motion, not just in the philosophy, though I do, but also in the practice, which I also do. Let me outline the basis upon which I do so. I believe that government should be as close to the people it seeks to serve as humanly possible. I do not want monopoly Canberra, because government by its nature ultimately bullies people. It does not matter who's in government. It does not matter the nature or the intent or the spirit. In the end that is what it does, because it is based on coercion and force. If you are to have coercion and force, you must make sure that control of government is as close to people as possible, because that enables people to be in the best position to change the outcome if they do not like how that force is being utilised.

It is upon this basis that I am a staunch federalist, and one of the things that disturbs me most—again, regardless of who's in power—is how much of a tendency there has been to centralise into this place, this chamber and this city, at the expense of citizens. While I am sure the member for Canberra and member for Fenner like to wax lyrical, in the end the Labor Party is a critical part of this drift of power away from citizens, families and communities—and even away from state capitals—and to Canberra. I agree: we need to take it back. And we need to take it back every step of the way and fight for it every step of the way, because, in practice, that's what this resolution is about. A territory is not a state, but the people who live in the ACT are sovereign and able to determine their own lives and their own destinies. While the Commonwealth may, under the Constitution, have the power to override it, this should not be in a framework of competition of laws which gives citizens choice about where they live.

Of course, this issue is one of many that the federal parliament has overruled. The reality is that it is not correct that, as the member for Canberra outlined, the fastest way to marriage equality was to allow the ACT the power to legislate; they don't have that power to legislate. We know full well the High Court actually overruled them and found that to be a misgiving or a misdeed. The reality is that it was a decision of the federal parliament, and the fastest way to marriage equality was actually for the opposition to stop blocking a pathway, taken to an election, for people to have their say. That was then respected by the parliament of this country. So we can effect any outline we want; that is the reality.

Regardless, we're not talking about that issue; we're talking about the right of the people of the Australian Capital Territory to decide their own destiny. As I've said already, I took it to my preselection. When I was asked what my view was of people's right to die with dignity, I said I was in favour of it. When I have been asked in the community what my view is, it has been consistent and exactly the same. The question to me has only ever been about the safeguards and the mechanisms by which it is achieved, and that is not a decision for this parliament; it is a decision for the Australian Capital Territory, whether or not I agree with their legislation. If their legislation is wrong, it is their decision to fix it, not our job to override it. I make no bones about that.

Just to continue on with the point of this not being just a philosophy but in practice, I will share a speech from the member for Mornington, David Morris, that was made in the debate in the Victorian parliament. It reflects the sentiment and the attitude that I believe. In the discussion on 18 October 2017 on their voluntary assisted dying bill, he said:

If the bill actually proposed a legal framework for suicide — suicide on demand, as some people have characterised it — then I would dismiss the bill out of hand. But that is not what is proposed.

What is proposed is that terminally ill patients — patients who will, without question, die within months, potentially suffer enormous pain and suffer undoubted indignities — be given the choice to depart this world on their own terms and in their own time. Should the bill pass the second-reading stage there will be ample opportunity to consider the minutiae, but in this debate I think there is one central decision to be made: to what extent does the Parliament believe an individual should be able to determine their own destiny?

I believe in freedom of the individual. I believe in freedom of religion, freedom of speech, free assembly, freedom of the press and, of course, free markets. I also believe that it is not tenable to claim to support individual freedoms and then to presume to impose through the law your own moral and ethical code. Those are matters for the individual, not for the Parliament.

Paternalism once had its place in this state—

meaning Victoria. It should not in the future.

David Smith (Bean, Australian Labor Party) Share this | Link to this | Hansard source

It's not often you have the opportunity to speak on the same issue in both chambers. At its essence, this motion is about whether citizens living in the territories should have the same right through their logical legislatures as citizens in the states to make their own laws. In my view, there can be no doubt the answer to that question is yes.

The grant of self-government to Australia's two populous territories recognised that the people of the territories deserve the same democratic rights as people living in the states. There were exceptions to the powers of the Legislative Assembly, but these reflected for the most part either limitations that the Constitution itself placed on the states or matters that the states had agreed should be dealt with by the Commonwealth. For example, the Legislative Assembly was not to have the power to laws with regard to the raising or maintaining of any naval, military or air force or with regard to the coining of money, despite being home to the Royal Australian Mint.

Similarly, the act excluded the power to make laws with respect to the classification of materials for the purposes of censorship, which is already the subject of a national scheme under which classification was the responsibility of the Commonwealth. In each case, common sense dictated that these matters should be solely in the domain of the parliament of Australia. In effect, the ACT was not being placed in a position any different to that of the states.

That leaves two further original exceptions: the acquisition of property other than on just terms and the provision by the AFP of police services in relation to the territories. The first of these was based on a limitation imposed on parliament by the Constitution, while the second reflected the fact that the AFP are under the direction of the Commonwealth minister and policing services in the ACT are the subject of an agreement between the Commonwealth and the territory. That bill was passed with bipartisan support. While there was some discussion around the detail, the record is clear that across the political spectrum there was agreement that the lawmaking powers of the ACT Legislative Assembly and the Northern Territory assembly should be equivalent to those of a state parliament.

This remained the case until the passage of the Euthanasia Laws Act 1997, which removed from the ACT Legislative Assembly and the Northern Territory Legislative Assembly the power to make laws with regard to euthanasia or voluntary assisted dying. In doing so, that act introduced in that it remained completely open to any state parliament to pass such laws.

The motion before us supports restoring the constitutional position that existed from the time self-government was introduced into each of the territories until the passage of the Euthanasia Laws Act. It will be a matter for each of the territories to decide whether and in what form any laws should be passed in this area, just as it is and has always been for each of the states. Of course, there are some who may object that the ACT and the Northern Territory are not states and that their legislatures should not have the same powers as state parliaments. Of course it's true that self-government exists only because of acts of this parliament, not by way of constitutional right, and it's within the powers of this parliament to amend the self-government acts if it sees fit. However, parliament, having made its decision on the general principle that self-government ought to be granted to the people of the ACT and Northern Territory, would be wrong to pick and choose matters for which we would deny citizens in the territories the right to govern themselves. Some of us may be unhappy with the decisions made by the people of the territory, but, if we support the principle of self-determination, we accept their decisions and do not seek to substitute our own any more than we would where the same decision is made by the parliament of a state. Former Senator Humphries said in 2006, when he crossed the floor to oppose the Howard government's disallowance of the ACT Civil Unions Act:

… we may not agree with the ACT's legislative choices, but we have an obligation to respect them where they are democratically made

I acknowledge that the legislation on euthanasia, or voluntary assisted dying, is an issue that provokes strong passions, with firmly held opinions from opposing points of view. That's understandable, since the issues relate to matters of life and death and pain and suffering, and because we have a critical role to ensure we protect the vulnerable. My own personal view is not in support of the legalisation of euthanasia. However, with all its gravity, this is not something that should be restricted from consideration by the ACT and Northern Territory legislative assemblies.

Luke Gosling (Solomon, Australian Labor Party) Share this | Link to this | Hansard source

We in the territories have been fighting to restore our rights for a long time. For a quarter of a century, we've been barred from fully enjoying the same democratic rights as Australians living in the states. It's ridiculous that we're still forced to explain why people living in the Australian Capital Territory and the Northern Territory are worthy of having rights equal to those of other Australians, yet here we are.

It was in 1997 that Kevin Andrews, the member for Menzies, decided to stop the NT and the ACT from legislating on euthanasia, and there's still quite a bit of anger today in the Territory about the passing of that Andrews bill. This recent front page from the NT News says it all: 'Give us back our rights'. The Northern Territory was the first jurisdiction in the world to legislate for euthanasia. For nine months, the Rights of the Terminally Ill Act was law, during which time four people chose to die with medical assistance. Honourable members may remember a movie called Last Cab to Darwin that explained what was happening at that time. The member for Menzies was successfully in inserting a clause into the Northern Territory (Self-Government) Act 1978 to prevent the NT from making laws in respect of euthanasia. The vast majority of Territorians would like to see that clause overturned. There are almost three-quarters of a million people living across our two territories—three-quarters of a million who have been told for 24 years that they don't get to participate in the same kind of democracy as all other Australians.

So why is this coalition government, those opposite, so afraid to let Australians in the territories have their say on the issue? This isn't about right to die legislation; it's about equal rights for our citizens. Overturning the Andrews bill doesn't mean that the NT or the ACT will be forced into legislating on euthanasia; all it means is that the elected representatives of the territories may choose to consider the matter, taking on board the arguments and feelings for and against the issue by their constituents. For the past 20 years, about four in five Australians have supported doctor-led voluntary assisted dying. The public mood has shifted to the point where it is now being legalised in Victoria and WA; it was rejected by New South Wales and SA and is being considered by Queensland and Tasmania. This is exactly as it should be. Australians should be able to reflect on this matter and decide if they support it or not.

Three years ago, my colleague and friend Andrew Leigh, the member for Fenner, and I brought forward a bill to restore the rights of the territories. We were seeking to restore the democratic rights of citizens in the territories by removing a constraint on the legislative authority of their elected representatives which does not exist anywhere else in Australia. I want to put on the record my thanks to all the elected members, at least on our side, who supported that movement for this change. However, the government blocked debate on that bill. They did the same thing in the previous term.

Senators in this place have been debating and voting on related legislation, but those of us on this side of the building in the House of Representatives have been prevented from expressing our views. Australians deserve a government that will consider such matters in a mature and considered way, no matter where they live. Those opposite must explain to all Australians and to territorians in particular why they are viewed as second-class citizens in our nation. As long as the Andrews bill remains in force, the government is explicitly telling territorians, whether it is here in the ACT or in our Northern Territory, that they are less than the rest. This government is telling territorians that their rights are not important. This government is telling all Australians that discrimination of this sort against certain groups of its own citizens is acceptable. I don't think that will stand up in the court of public opinion. The government must immediately commit to overturning the Andrews bill and must send a clear message to territorians that it hears their concerns and values them equally to all other Australian citizens.

Debate adjourned.