Katy Gallagher (ACT, Australian Labor Party) Share this | Hansard source

I rise to speak in support of the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015, and I would also like to acknowledge at the outset Senator Leyonhjelm and his office for the work that they have done in bringing this bill to this chamber. I speak in support of this bill both as an ACT senator and as a former Chief Minister of the ACT. My support for this bill relates to my concern at the level of interference the so-called Andrews bill represents as to the appropriate level of responsibility which should be afforded to both territories in relation to their capacity to legislate on behalf of their constituents.

I believe the focus of the debate on this bill should and must be the restoration of the democratic rights of the territories to pass laws in the best interests of their citizens, which were trammelled so thoroughly in 1997 when the original Euthanasia Laws Act was passed by the federal parliament. I note that it is almost 20 years since this legislation was passed. In that time, both territory parliaments have continued to legislate as mature jurisdictions in our nation. There are some 630,000 people that live in the ACT and the Northern Territory, and their governments are responsible for running hospitals, schools, child protection, jails and multimillion-dollar economies. Much is made of the promise of northern development and the knowledge economy of the ACT, but at the moment both jurisdictions are barred from debating or legislating for the rights of the terminally ill. This is wrong in my view, and it is timely that we revisit this legislation. We now have the opportunity to reflect with the benefit of 20 years hindsight on what has changed in relation to our view of the democratic rights of the territories and hopefully come to a view that it is time to remove the constraints embedded in the Andrews bill, for the right to debate and legislate on an equal basis with the states.

The objectives of the bill are fourfold. Firstly, it will reduce the extent of Commonwealth interference with the laws of the ACT and the Northern Territory. Secondly, it will contribute to competitive federalism by encouraging states and territories to legislate and refine and improve law-making. Thirdly, it will recognise the right of the ACT and the Northern Territory to legislate on euthanasia in their respective jurisdictions. Finally, it will also allow the Northern Territory parliament to revisit, at a time of its own choosing, new legislation which addresses, in a similar vein, the rights of the terminally ill as originally contemplated in the Rights of the Terminally Ill Act 1995.

This bill is about restoring democratic rights to both the ACT and the Northern Territory parliaments to legislate in relation to euthanasia on their terms, in their words and on behalf of their citizens. It does not compel these parliaments to legislate; it merely restores the right to do so. It is up to them to legislate, not the federal parliament on their behalf. In supporting this bill, I am merely recognising that these two jurisdictions should and must have the right to legislate on their own behalf.

I also challenge senators who believe this legislation should be opposed because it could lead to either or both territories legislating to allow euthanasia to stop and consider what I believe is the overriding argument in favour of supporting this bill. The people of the Northern Territory and the ACT should have the same rights as every other Australian citizen, whether they live in Alice Springs, Tuggeranong, Sydney, Melbourne or Adelaide. I suggest that if you vote against this bill you are in effect saying to all territorians, whether they are an SES officer in Forrest or a stockman in Katherine: they are, in your view, second-class citizens; the federal parliament wants to continue to treat them in a paternalistic way; they are not full citizens; and we know best what to let them and their elected representatives do in regard to the rights of the terminally ill. Or is your argument that we federal parliamentarians trust and respect the individual citizens of each territory but not their politicians or the maturity of their parliaments? On what basis and evidence would any of you come to that conclusion?

In asking you to stick to the big picture and to put aside the highly emotive issue of euthanasia laws, I am not being deliberately naive about either the emotional or the ideological baggage which comes with this kind of debate. Supporting this bill is not about whether or not you support the rights of the terminally ill to die in dignity and at a time of their choosing. I would contend that is a completely separate issue to the one we are debating today. Today is simply about the right of each territory parliament to legislate as they see fit in this regard. Surely, the debate about the rights of the terminally ill should be had in the jurisdiction which contemplates introducing laws to allow for some form of euthanasia. Given the seriousness of the debate around the right to die in dignity, we should expect a vigorous and exacting debate in each and every jurisdiction which contemplates legislating in this regard. Our citizens deserve and demand community consultation, debate and careful elaboration of the implications of the rights and protections which would be afforded to them in such legislation. But that is not what we are here to do today. Today we are debating whether or not to repeal an undemocratic law which restricts the rights of two parliaments of Australia and to restore those rights to citizens of the ACT and the Northern Territory, through their parliaments, to legislate as they see fit in this regard.

When you look at some of the material that was prepared for the Andrews bill in 1996, there was a current issues brief prepared for parliamentarians seeking to understand the issues raised by the Andrews bill. It outlines the impact of the bill, including the overturning of the Rights of the Terminally Ill Act, together with the impact on the territories' powers to pass other kinds of laws. The issues brief says:

These laws may include 'refusal of medical treatment' legislation of the kind that already exists in the Northern Territory and in the Australian Capital Territory, and legislation that clarifies the legal position of a doctor who administers palliative care that hastens a patient's death.

It goes on to explain the Constitutional effects:

Section 122 of the Australian Constitution confers a power on the Commonwealth to make laws for the government of any Territory. This is a plenary power, unlimited by subject matter. The Federal Parliament therefore clearly has the constitutional power to enact a law that has the effect of overturning the RTI Act. There may be some doubt, however, as to whether the way in which the Andrews Bill seeks to bring about this result is within the scope of the Commonwealth's powers under section 122.

The digest also points out:

The central constitutional question raised by the Andrews Bill is, however, political rather than legal. That question is whether or not it is acceptable politically for the Commonwealth to take back part of the legislative powers it conferred on the Northern Territory, the Australian Capital Territory and Norfolk Island at self-government.

The Senate Standing Committee for the Scrutiny of Bills reported on the Andrews bill on 18 September 1996. As senators would be aware, part of the watching brief of the scrutiny committee is to examine whether legislation breaches certain principles, including whether or not a bill trespasses unduly on personal rights and liberties. According to the bills digest, the following matters were raised by the scrutiny committee in relation to the Andrews bill:

It goes on to say:

The final point was:

The committee also commented that the bill's provisions 'may be considered to trespass unduly on personal rights and liberties', in breach of principle 1A(i) of the committee's terms of reference.

In April 2012, in my role as Chief Minister of the ACT, I made a submission on behalf of my government to the ACT Legislative Assembly's Standing Committee on Administration and Procedure's review of the ACT (Self-Government) Act. In my submission to the review, I drew attention to the comments of Professor Halligan's review of the application of the Latimer principles within the ACT:

The ACT remains in some respects a stunted system of governance that has been constrained by another level of government and lack of agreement on key strategic issues. The single most significant constraint on good governance in the ACT, apart from scale and resourcing relative to its responsibilities as a state and municipal entity, has been the Australian Capital Territory (Self-Government) Act 1988, which has imposed severe limitations on the autonomy and power of the jurisdiction. The right of a federal government, whether by legislation or ministerial fiat, to veto territory laws has reduced the status of the ACT to that of a protectorate.

At the time, I argued that a preamble should be inserted into the ACT (Self-Government) Act which outlined the principle of the territory's democratic self-determination and explicitly set out the Commonwealth's legitimate interests and powers in relation to ACT, including reference to the fact that the people of the ACT give the assembly its political mandate to govern the territory. Pertinent to the debate today, I also noted that sections 23(1A) and 23(1B) of the self-government act prevent the ACT from making a law with respect to euthanasia. I argued that this constraint on the ACT's legislative power should be removed and that the government viewed its inclusion as an unnecessary constraint on ACT policy choice—a constraint that is not possible in the states.

Senators might also note the comments of well-regarded constitutional expert Professor George Williams of the University of New South Wales Faculty of Law, who commented in his submission to this review of the ACT (Self-Government) Act, of the conditions imposed by the Commonwealth:

This left the ACT system of government with several features more akin to a nineteenth century colonial possession than a modern Australian Territory.

Professor Williams recommended:

… provisions could simply deleted were they are obsolete or inappropriate—

including restrictions on the power of the legislative assembly in section 23.

In the final report of the review of the self-government act, a majority of the assembly's committee members voted to recommend that subsections 23(1A) and 23(1B) be removed.

In summary, it is clear that, in the ACT's recent review of the self-government act, expert witnesses identified subsections 23(1A) and 23(1B) as unnecessary constraints on the ACT's legislative powers, which the properly constituted parliamentary committee and government strongly supported.

It should also be noted that amendments made to the act in 2011 did not preclude the Commonwealth from involvement in ACT legislative processes. I am talking here about what existed prior to 2011, the executive veto power, which was used to overturn the ACT Civil Unions Act back in 2006. Of course, the executive veto provision no longer applies after legislation passed the Commonwealth parliament in 2011 which requires a vote by both houses of federal parliament before a territory law can be overturned. That reform added a refreshing element of transparency to the process in requiring that intervention be subject at least to debate in the upper and lower houses of federal parliament, rather than by just the swipe of a minister's pen.

When I was doing research for this debate, it was interesting to go back and look at the history of the Rights of the Terminal Ill Bill that came before the parliament of the Northern Territory. On 22 February 1995, the then Chief Minister of the Northern Territory introduced the bill into the Northern Territory Legislative Assembly as a private member's bill. The bill was immediately referred to a select committee, which reported some months later. The committee received over a thousand submissions, took oral evidence and conducted hearings in Darwin, regional centres and a number of Aboriginal communities. The Bills Digest notes, of the committee:

Its report contained recommendations in relation to the Bill but made no recommendation on euthanasia per se.

In the Legislative Assembly, the vote was 13 to 12 that the Bill be read a second time. In the Committee stage of debate, 50 amendments were introduced. On 25 May 1995, the Northern Territory Legislative Assembly passed the Rights of the Terminally Ill Act … by 15 votes to 10.

As it goes on to say, that act provided a statutory regime which made lawful, in certain circumstances, physician-assisted suicide and active voluntary euthanasia.

There were several subsequent attempts to repeal the act which were not successful. An amendment bill was passed in February 1996 which included an increase in the number of doctors required to examine and certify that a patient met the statutory criteria under the act, from two to three. The amending act also clarified the qualifications that doctors had to possess and amended the interpreter provisions. It was not until six months later, in June 1996, that Mr Kevin Andrews foreshadowed that he would introduce a private member's bill into the federal parliament to override that act, which had been democratically passed by the Northern Territory parliament.

The reason I reflected on that for a moment was to show that there was a process, a thorough process which surrounded the legislation in the Northern Territory—the opportunity for consultation, debate, amendment and, finally, the passage of that act. It was the Northern Territory parliament operating in exactly the way it was established to do. However, that act did offend some members of the federal parliament, and a legislative sledgehammer was brought down on that act and has remained in place for the last 20 years. It has certainly constrained the ability of the ACT and Northern Territory parliaments not just to pass legislation but even to debate it or have that conversation with their communities. Here in the ACT we are in a ridiculous position. If you live in Queanbeyan, your government at the state level is allowed to have that debate and that discussion, but if you live on the other side of the border, even three minutes away, you are not allowed to. That is the inconsistency that applies across the country.

It was sobering to remind myself when I was thinking through the issues raised by this bill that the Northern Territory's euthanasia legislation was a world first. No wonder its passage and the subsequent reaction by opponents of this issue looked to federal parliament to block its path. What I am hoping for in this debate today, some 20 years on, is that time has helped us all to see a little clearer and better understand what was good and bad in the way our federal parliament approached the challenges thrown up by the Northern Territory parliament's groundbreaking legislation, and that we have all learned lessons about how we deal with such a matter in a way which could respect the rights of all of our citizens and that we are prepared to legislate to restore rights and act in a way which does not unduly interfere with the parliamentary processes of any other jurisdiction. I commend the bill to the Senate.