David Smith (ACT, Australian Labor Party) Share this | Hansard source

Firstly, I wish to acknowledge the role of my predecessor, Senator Gallagher, in this debate. Also, I'd like to acknowledge at the outset the many individuals who've written to me about the bill. In the time I've been in this place, I've received more correspondence on this subject than anything else. I've received equally impassioned pleas supporting and opposing this bill. My decision to support the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 will disappoint some of my constituents, including some close friends, while pleasing others. It's my view that this bill should be supported.

At its essence, this bill is about whether citizens living in the territories should have the same right, through their local 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. This year is the 30th anniversary of the passage of the Australian Capital Territory (Self-Government) Act 1988 and, indeed, the 40th anniversary of the passage of the Northern Territory (Self-Government) Act 1978. The first election that I voted in was for the first ACT Legislative Assembly in 1989. 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. As the then Minister for the Arts and Territories, the Hon. Clyde Holding, put it in introducing the Australian Capital Territory (Self Government) Bill:

The Australian Capital Territory (Self Government) Bill 1988 now before the House will establish the A.C.T. as a body politic, with the legislative and executive powers and responsibilities of the States and the Northern Territory. This Bill represents the most significant transfer of power, on a population basis, since Papua New Guinea became independent. It will allow 270,000 people the same democratic rights and social responsibilities as their fellow Australians.

The A.C.T. and the City of Canberra have well and truly come of age. Canberra is the nation's capital. It is the home of many of the symbols of our nationhood—the National Gallery, the High Court, the National Library and of course this magnificent building—the home of the nation's Parliament. But, and this is often overlooked, it is also home for 270,000 people.

270,000 people live in the Australian Capital Territory. They go about the day-to-day business of their lives, working at their jobs, paying their taxes, making decisions about which schools their children will go to, which doctor or hospital will care for them when they are ill—just like every other Australian. However, unlike every other person in this country—where 'a fair go' is the creed by which we live—they cannot elect a member of their own community to their own government. They have no say in the decisions which affect their everyday lives. What an extraordinary admission in a country so committed to democratic ideals, and why? Are these people somehow different from other Australians? Are they second-class citizens in some way? Do they not understand, or have opinions on, the issues that confront them daily? Can they not be trusted with their own destiny? The answer to all these questions is very simple—the only difference between these people and the rest of Australia is that they live in the Australian Capital Territory!

All that is as true today as it was in 1988, except that there are now over 400,000 people living in the ACT.

The self-government act established the ACT Legislative Assembly, with the power to make laws 'for the peace, order and good government of the Territory', an expression similar to that to be found in any of the state constitutions. 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 make laws with respect to the raising or maintaining of any naval, military or air force, or with respect to the coining of money. Similarly, the act excluded the power to make laws with respect to the classification of materials for the purposes of censorship, which was 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 Australian Federal Police of police services in relation to the Territory. The first of these was based on a limitation imposed on the 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 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 respect to euthanasia or voluntary assisted dying. In doing so, that act introduced discrimination in that it remained completely open to any state parliament to pass such laws, as indeed the Victorian parliament has recently done.

The bill currently before us would, in effect, restore 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. This bill does no more than repeal the provisions that were inserted into the Australian Capital Territory (Self-Government Act) 1988 and the Northern Territory (Self-Government Act) 1978 by the Euthanasia Laws Act. This bill would not make euthanasia legal in the territories. It would not bring the Northern Territory's Rights of the Terminally Ill Act 1995, which was invalidated by the Euthanasia Laws Act, back into law. It would 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 is true that self-government exists only because of acts of this parliament, not by way of constitutional right, and it is 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 a 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 when they are democratically made'.

The ACT government made it clear it would not rush through legalisation of euthanasia if this bill was passed and is yet to actively consider legalisation. The Select Committee on End of Life Choices in the ACT is currently conducting an inquiry into end-of-life choices in the ACT and is considering the many submissions that it has received. I acknowledge that the legalisation of 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. For me, the risk of exploitation of the vulnerable is too great. However, I know the legislative assembly's select committee will give proper consideration to this matter. I have encouraged people who have contacted me to make sure they make a submission to the inquiry so their opinions are heard. Just as passing this bill will not lead automatically to the legalisation of the euthanasia in Australia, rejecting this bill will not prevent euthanasia from being legalised. It is a risk but it is a responsibility that lies with the ACT Legislative Assembly.

As I said, the states have and have always had the power to pass laws for voluntary assisted dying. The parliament of Victoria passed its Voluntary Assisted Dying Act last year. In other states, they have considered similar legislation. With all its gravity, this is not something that should be restricted from consideration by the ACT and Northern Territory legislative assemblies.