Nigel Scullion (NT, Country Liberal Party, Minister for Indigenous Affairs) Share this | Hansard source

Wow, what a debate this has been. It's been a very, very interesting debate with lots of passion and lots of people who have welded ideologies. I have a great deal of respect for all of the views that have been put in this place. We should remind ourselves what this place is about. We call this the 'states house'. A long time ago we had Queensland, Western Australia, South Australia and Tasmania and 12 senators were provided as part of the founding fathers' decision in our Constitution to ensure that the states were dealt with equally—that no one state should be discriminated against. I'm actually from a state called the Northern Territory. I don't have statehood per se, but I'm here. On this whole notion of this debate being about ensuring that the states are treated equally, I have to say that I've been a little disappointed that many senators seem to have missed the point. I'll try to bring them back to that point. Fundamentally, it shouldn't matter where you live, in what jurisdiction, this place is a place that ensures that you are treated equally.

We're talking now about restoration. In fact, the legislation is called the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015. In 1995 the Rights of the Terminally Ill Act was voted for in the Northern Territory parliament, a parliament that was properly constituted and democratically elected, in exactly the same way as in every other jurisdiction—in exactly the same way as Western Australia, Queensland, Tasmania and the Australian Capital Territory; their parliaments are constituted in very much the same way. There was a proper debate that went on and there were committees of inquiry. As you would imagine, it was highly controversial. It hadn't happened in Australia before. There was a lot of focus on the process. On 25 May, the Northern Territory Legislative Assembly voted 15 for and 10 against. The act didn't enter into force until 1 July 1996, and, in the period of time in which it was in force, four people accessed the Rights of the Terminally Ill Act to assist their passing.

For all of that to have happened, you have to look at the legitimacy of how that came about. It came about because of the Northern Territory (Self-Government) Act, which was passed on 22 June 1978. The Territorians were then able to 'make laws for the peace, order and good government of the Territory' where the laws related to any matter not controlled by the Commonwealth. That's not inconsistent with other jurisdictions; it's completely the same as the other states, exactly the same. The sorts of things that these laws dealt with were schools, hospitals, utilities, public transport, forests, police, prisons, community services, roads and rail—all of the things that would be dealt with by a state or territory jurisdiction. Nothing too controversial there. We all accept that's exactly as it should be. When the self-government act came out, we all felt equal. We weren't mendicants to the South Australian government or like some backyard nobody could afford. We were a jurisdiction unto ourselves. We had the capacity to raise funds and to do the same things as every state and territory did.

We always understood, as Territorians, that there were some matters that were proscribed as 'matters controlled by the Commonwealth'. Same-sex marriage, for example, has come up. The Australian Capital Territory tried to raise same-sex marriage, but the Constitution said, 'Look, the High Court has struck it down.' Eventually the Commonwealth said, 'Well, it is our responsibility,' and this place recently passed laws on same-sex marriage, which the states and territories had thus far been prevented from doing constitutionally and by the courts. We respected that.

But one thing I want to say about the debate today and over the last few days is that it's been a bit of a Clayton's debate, because we all know that this isn't within the ambit of the Commonwealth government. This is not a matter in the Constitution that we can deal with. We know, in fact, that it's been dealt with by state jurisdictions and will be dealt with by other jurisdictions from time to time—most recently, the legislation was passed in Victoria; legislation was recently defeated in New South Wales—as appropriate. That's entirely a matter for those jurisdictions. But, unlike those jurisdictions, the Northern Territory was a function of the Kevin Andrews bill, the Euthanasia Laws Act 1997. That bill effectively said: the self-government of all territories—there was no mischief in the ACT; no-one was trying to pass laws about euthanasia in the ACT, but we'll throw them in anyway, to make some sort of consistency—will be revoked so as to prevent them from passing laws on euthanasia. They are quite entitled, as jurisdictions, to pass laws on euthanasia. But, because we as a territory are slightly different, we could pass a private member's bill that would not have stood a chance in hell of getting up in New South Wales or Victoria—or of overturning any of those—and no attempt has been made to control those jurisdictions because of their rights under the Constitution. That bill passed through this place on the 27 March 1997 with a vote of 38 noes versus 33 ayes. So 38 people said, 'No, we want to deal with the matter of euthanasia in the Northern Territory.' I understand that, at that stage, it was a reality and it was an opportunity for people whose fundamental beliefs about euthanasia were probably more impacted than those of the Northern Territory.

But euthanasia is not a matter for us, and that's why I have indicated that, despite plenty of passion and plenty of smarts around this place, it's a bit of a Clayton's debate. I can tell you right now there would be a different sense in this place if we were debating euthanasia as a national piece of legislation. The place would be full of media, there would be people running around, and the back rooms would be full of people, ringing and cajoling. But it hasn't been like that because we know it's not going to change anything about euthanasia nationally—we are not doing anything federally—and it's not within our ambit constitutionally.

I heard there's broad agreement that restoring territory rights legislation is really not going to be impacted. So the Rights of the Terminally Ill Act is not going to be impacted if we pass this legislation. Some legal opinion submitted to the Senate Standing Committees on Legal and Constitutional Affairs inquiry into the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 said:

However, there is significant judicial and academic opinion which suggests that laws made by territory legislatures are not merely suspended or dormant for the duration of any inconsistent Commonwealth law and then enter back into force upon its removal …

The authors concluded:

… there are strong grounds for suggesting that item 2 of Schedule 1 is insufficient to revive the Rights of the Terminally Ill Act 1995 (NT). The rights of individuals and interests at stake are too important to allow uncertainty on this score.

Another submission raised concerns that an attempt to revive the bill would:

… provide the basis for an argument that the [NT RTI] Act would be invested with a Federal character that it did not possess prior to the commencement of the Euthanasia Laws Act 1997 (Cth) or would not possess following the mere repeal of that Act. There is a real danger of the Act becoming entrenched and thus leaving the Assembly powerless to amend or repeal it …

In a sense, because it had this Commonwealth flavour.

Professor George Williams of the Gilbert and Tobin Centre told the committee:

… instead of the Northern Territory law being revived, the Legislative Assembly there and in the other territories would be able to pass a new law, should they so wish—

and they should be allowed to do so—

I think that is appropriate given the principles of democracy involved, given the time that has elapsed and also given the constitutional issues [rather] than to attempt to revive something that may not be possible to do and it would certainly be inappropriate to leave practitioners and others in a situation where they may be unclear as to the legality of their actions.

All subsequent federal bills to restore territory powers including the current bill have made it clear they do not attempt to revive the Rights of the Terminally Ill Act.

What remains for us if this is not a matter within the ambit of the Commonwealth or the Senate to decide on? It's not about euthanasia. I haven't talked about my issues with euthanasia and I shouldn't because it is not my right to do so; it is the right of states and territories to deal with that matter, and that is clear in the Constitution. So what remains? This debate is clearly not about euthanasia. The only issue remaining is the territories' rights to make laws that are not controlled by the Commonwealth in the Constitution.

It's been quite a disturbing process. Spatially, by dint of history, if you happen to live here in the Australian Capital Territory or you happen to live in the glorious Northern Territory, you are now a different class of citizen. You don't have the same rights to decide what you want as does every other jurisdiction. In this place, in the Senate, to choose to ignore that fundamental, I find very difficult to swallow.

I've heard so much about equality in this place: 'We're all equal in this place, and we've really got to look after equality.' But this is an opportunity to right the wrong of 27 March 1997, where every person who lived in the Australian Capital Territory and the Northern Territory became a different class of Australian. Are we equal? Well, sort of. We're equal unless the Commonwealth decides that we are not.

This is not a debate about euthanasia. Clearly, it should not be a debate about euthanasia, although I acknowledge and respect those people with strongly held views on those matters. This is only about state rights. I'm not sure why the people who enjoy living in a state don't trust me and don't trust territorians to democratically elect people who will make decisions in the same way as everybody else does in Victoria and New South Wales, Tasmania, Western Australia or Queensland—in exactly the same way. But we can't be trusted! People have said, 'Oh, look, the Northern Territory didn't become a state when it wanted to become a state.' Let me tell you: we had a constitutional referendum about statehood, and it failed because people didn't understand what we were about to get.

But can you imagine, even if it had passed, people coming into this place and saying, 'Thanks very much, and where are our extra 10 senators?' What a bloody joke that would be, because this place, I can tell you, after what I've heard over the last few days, is not a place of equity. It's not a place that respects everybody who lives in this country. For those people who are voting this down, I genuinely respect their views on the fundamentals of euthanasia, but that is a Clayton's debate. That is a Trojan Horse that just doesn't cut it.

There's an opportunity today to put right something that went wrong on 27 March 1997. Territorians for 19 years were okay. Territorians for 19 years were okay to get on with their own business because it was consistent with some of the views of people in the Commonwealth government. But, on the day it wasn't, they sent a clear signal—and to the ACT, who hadn't had the temerity to introduce legislation of their own. Even they would be caught up because it would somehow be consistent. What a lot of rubbish!

Nobody in this debate needs to be anything but absolutely clear about what this is about. This is about entrenching two types of citizens in this country, one who comes from a territory and the other who comes from the Commonwealth. And I can tell you that introducing 20 new senators in this place is not going to happen in my bloody lifetime. So the notion of, 'Oh, why don't you just become states, and then you'll be the same as us,' is complete garbage. There were those glorious 19 years when we were treated as equals around this country. There's an opportunity today to ensure that we are returned just simply to being equals. Territorians aren't asking for any more than that. We are simply asking in this place, in this house, to be treated as equals.