Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

As the Chair of the Senate Standing Committee on Legal and Constitutional Affairs I present the report of the committee on the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

On behalf of the members of my committee I present this report on the Rights of the Terminally Ill Bill. Firstly, you will notice from the outset that there is not a majority or minority report providing comments from the Legal and Constitutional Affairs Committee to this report. Why is that? That is for a number of reasons. We did that because, in presenting this report, it would have been much more balanced to have provided and reflected on the views of the members of the committee rather than seek to have a majority or a minority view. So the report is structured in a way that we have made comments on legality and on the terms and clauses in the bill. We have chapters for and against the issue of euthanasia and a chapter that is simply titled ‘Statements and summaries of views of members of the committee’. I want to put on record my view about this legislation in relation to this report as chair of the committee, and my views are supported by Senator Kirk and Senator Marshall.

From my point of view, the legislation that was produced by Senator Brown went to two issues. The first issue for me was whether or not the territories, and in particular the Northern Territory, should have the right to legislate in every area but particularly, of course, in the area of euthanasia laws. The second issue, which people on the committee and certainly a number of submissions concentrated on, was whether or not there should be euthanasia in this country at all, let alone in the Northern Territory. During the inquiry I found myself focused not so much on what sort of legislation a territory government would introduce on any subject, but on whether or not a territory should have the right to do it. It is true that under section 122 of the Constitution, the Commonwealth has the power to make laws for the government of any territory. In the last 12 months we have seen that occur a number of times in relation to this parliament. But back in 1995 when the then Northern Territory Legislative Assembly, led by the Hon. Marshall Peron, put through laws in relation to euthanasia, their ability to be able to do so was tested. Those laws were passed and, as I said, their ability to do that was challenged.

In the Northern Territory Supreme Court in 1996 a majority of the full bench of the Supreme Court upheld that the Northern Territory Legislative Assembly did in fact have the power and that the Rights of the Terminally Ill Act was a valid law of the Northern Territory. An appeal was lodged in the High Court, but it was not heard and did not come to fruition because Kevin Andrews introduced the Euthanasia Laws Bill in 1996.

During the inquiry we heard that the Territory was not mature enough to determine its own destiny. A number of very significant national lobby groups argued that, because the Territory had a population of fewer than 250,000 people, a legislature of only 25 and no upper house, we had no capacity to make laws on such a significant matter as euthanasia. I totally reject that argument. We have the capacity to make laws in every manner available to us under the Northern Territory (Self-Government) Act. If you look at the conscious, emotive issues of life and death, the Northern Territory does have laws in relation to abortion. For me it is inconsistent to think that we should not also be able to have laws in respect of euthanasia. We have laws in relation to assisting people who are terminally ill and in relation to abortion so, for me, it does not equate that we would not have the maturity to deal with laws in relation to euthanasia. I totally reject that argument. I believe that the rigorous processes of the parliament in the Northern Territory are as rigorous as anywhere else. The deliberations of the members of the Legislative Assembly are as serious and as complete as anywhere else, and we do have the maturity to pass laws in this regard. (Extension of time granted) Therefore I have come to the conclusion that Senator Brown’s bill should proceed but in an amended form. It should be amended to give back to the Northern Territory the power to create laws in relation to euthanasia; however, as it has been 13 years since the Rights of the Terminally Ill Bill was passed, I uphold the view of the Northern Territory government that Bob Brown’s bill should be amended to not re-enact the Rights of the Terminally Ill legislation. Therefore, what we should see is the Territory being given back its powers and then determining its destiny on the issue of euthanasia.

In summing up, the one way to solve this problem about the Commonwealth’s obsession with overriding Territory laws when it believes it ought to and not when it is good policy is to consider in this house of parliament a bill that would give statehood to the Northern Territory. In that respect I totally support the Northern Territory government’s submission on this bill, and my comments as chair reflect that.

Guy Barnett (Tasmania, Liberal Party) Share this | Link to this | Hansard source

At the start of my short time available to speak on this, I would like to reflect on the comments of Senator Crossin’s analogy, where she compared abortion with euthanasia. I wonder whether there may be an opportunity for her to clarify those comments. I find such a comparison deeply disturbing—that we are able to kill unborn Australian babies and that therefore there should be some sort of equal right to support for the euthanasia legislation. If my understanding of her comments is incorrect, perhaps Senator Crossin could correct the record. We will have a look at the Hansard to clarify that.

Solstice day, 21 June, was also Motor Neurone Disease Global Awareness Day. Last week I had the honour of hosting a breakfast for Motor Neurone Disease Australia. One thing that we are all entirely supportive of is support for more funding and resources for palliative care. That view was put at the breakfast last week—and it was the view of all members of the Senate Standing Committee on Legal and Constitutional Affairs—that there should be further and significant funding and resources for palliative care in this country. So we are at one on the importance of palliative care. However, we are not at one on this bill being put forward by Senator Bob Brown. On behalf of Liberal senators, and as deputy chairman of the committee, we are deeply concerned about the draft bill and consider that it should not proceed under any circumstances. These concerns are so significant that it does not warrant the recommendations and amendments put forward by Senator Crossin and the Labor senators. The bill is inaccurate, unclear and ambiguous, and it creates considerable uncertainty about the status of the Northern Territory (Rights of the Terminally Ill) Act.

I want to particularly draw the Senate’s attention to the report of the Liberal senators and note that during the nine-month period when the act was in effect, there was a reference in our committee proceedings to a study published by the Lancet. Its principal author was Professor David Kissane, consultant psychiatrist and professor of palliative medicine. Dr Philip Nitschke was a co-author of that paper, and I note that Dr Nitschke is here in the gallery today. Four people were assisted to terminate their lives by Dr Nitschke under the RTI Act. No other medical practitioner made use of the provisions of the act to assist any other person to terminate life.

The Lancet study and evidence from Dr Nitschke to our committee raised serious doubts about the effectiveness of the act in ensuring competent psychiatric assessments of patients before they were administered euthanasia. The previously undisclosed admission by Dr Nitschke that he had personally paid the fee for the psychiatric assessment of one of the patients he euthanased gives rise to a serious concern about a potential conflict of interest. That is just one concern that we wanted to raise, and our report is set out in terms of the range of other concerns. Dr David van Gend summarised other problems with the administration of the RTI Act in this way. He said:

The four levels of medical safeguard that were built into the act were either diminished or blatantly violated ...

We have particular concerns with the inadequate safeguards under the act which Senator Brown wishes to restore to life. We are particularly concerned about the slippery slope argument and the possible move from voluntary euthanasia to involuntary euthanasia.

A number of other issues were raised, and we want to raise them very briefly with the Senate today. They relate to the Aboriginal issues in the Northern Territory. We received a good deal of evidence which expressed serious concern about the impact that this would have on, and its inconsistency with, Aboriginal culture and Indigenous culture. Based on the evidence that was put, it is our view that it poses a threat to the health of Indigenous Northern Territorians.

With respect to euthanasia tourism, it is noted that, of the four people who were euthanised during the time when the act was operating, two were from outside the Northern Territory. So euthanasia tourism is clearly a concern because the act has no residency requirement, and we received a good deal of evidence about that.

Several submissions drew attention to the problems in the jurisdictions overseas, particularly in the Netherlands and in Oregon. The Festival of Light Australia pointed out some of those concerns. I do not have to go into them today, but I did want to make the comment that the overseas experience certainly persuaded us against supporting this legislation put forward by Senator Brown. From a personal point of view, I certainly believe in the protection of human life and the sanctity of human life, and I think that all Australians, no matter what colour, what shape or what size, deserve respect and dignity. I know that view is held by many in this chamber and throughout this great country.

In conclusion, I want to thank the secretariat, in particular Peter Hallahan, Sophie Power and Hannah Jones, for their wonderful work and the professionalism with which they pulled together this report. We thank them very much for their assistance. Finally, I want to thank the many witnesses who appeared before our committee in Sydney and also in Darwin and for the submissions that were made to our committee.

Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I would like to congratulate Senator Brown for bringing forward the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008. I think it is a very important issue that needs more debate. As I indicated in my personal comments in the report, Senator Brown’s bill is quite similar, if not the same, to one put forward by Senator Allison not so long ago. I would also have to say that I do not agree with either of them. A majority of the committee did have the view that the bill should not proceed, but for differing reasons. As a reflection of the fact that this is a conscience vote matter, it is appropriate that the committee not have a majority and a minority report but simply reflect the evidence and some of our individual views. It was a short inquiry, and this is a very short debate on what is a big issue regarding one of the most fundamental aspects of human life, which is the enormity and mystery of death.

Just briefly on the issue of Territory rights, as I reflect in my additional comments, I have a lot of sympathy for that. I very much understand how infuriating it must be for Territorians to be potentially able to be overridden on any matter. Nobody likes that. But if you are going to apply that principle, I think you have to apply it universally, not just to arguments and issues that you agree with. Unless people want to simultaneously argue that Northern Territory land rights laws should also be handed over to the Territory then I think you have to set that argument aside. I do support statehood for the Territory. I do think we would be better off having a national framework for euthanasia in which all Australians, whatever state or territory they live in, live with the same overarching framework and standards. That is the way I would like to see the debate go.

The issue of euthanasia itself is vexed and complex. I get frustrated with how advocates from both sides of the debate sometimes present it in what I think is an oversimplistic or a polarised way. I do not accept at all the suggestion that those who are opposed to it are all religious zealots with no concern at all for human suffering, imposing their religious values on other people, versus the other view—which we have just heard put a little bit by Senator Barnett—that advocates of euthanasia have no respect for human life and no consideration of human dignity. I think everybody has concern for human dignity and the sanctity of life; they just view it differently in terms of how our laws should interpret that and where you balance the competing values involved.

The issue of human dignity is a big one for advocates of euthanasia, as it is for all sides. The concern for human suffering and the concern for the vulnerable also apply to those who are opposed to euthanasia. As I say in my comments, I am supportive of the principles behind the arguments put forward by advocates of euthanasia, but I am apprehensive about whether they can be adequately and safely legislated for without leaving vulnerable people in an even more vulnerable situation.

I recall a well-respected disability advocate—a person on the progressive side of the spectrum, not your stereotypical so-called religious zealot—saying to me that they were very concerned about the potential change in attitudes that comes with euthanasia where a right to die that can be effectively and safely implemented by people who are powerful and well-resourced could potentially become an expectation or almost a duty to die for the powerless, for the disabled and for those who are seen as marginalised. I do not in any way suggest that is what euthanasia advocates hope to see, but I think they are potential issues.

I was very impressed with the evidence that Dr Nitschke gave in Darwin. I thought he was very clear and consistent in the evidence and in the argument he put forward. I do think there is too much loose language here for what is such an important, fundamental and complex issue. To just have vague language and sloganeering is not good enough, certainly when it comes to looking at laws. You can make your broad case, but when you are looking at what laws we pass that is not good enough. That is why I think we need to de-polarise the debate and accept there are valid issues and valid concerns on both sides, and it needs to be far more nuanced. As I said, I have apprehension about whether euthanasia could be safely implemented, but I would like to see it if it could be done. I am not religious at all, so that is not the issue for me.

I am someone who has examined issues of depression and suicide, and the causes behind them. Euthanasia is a form of suicide and is one that a lot of people think is a positive form, and that is why they usually do not use the word ‘suicide’. We think of suicide, quite rightly, as a bad thing. (Extension of time granted) If we are using language such as a right to die and the right to have assistance to die then it is a big shift for people who think regularly about whether or not they want to die—not because they have a terminal illness but because they are just contemplating whether they want to end their life. We need to think about that more fully and debate that more fully. That is why I think bills like this are desirable, so we can have that debate and explore those issues in a more nuanced and deeper way. I hope the future Senate does that.

Bob Brown (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I will be proceeding with the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, but it will be in the form of restoring the rights of the territories, if it were to pass both houses of parliament—and I am confident that it will pass both houses of parliament. I thank Senator Crossin, all members of the committee and all people who have helped with it, including those who have made submissions. The committee has cleared doubts about the way in which the bill should proceed, and that is the function of a committee. It shows the Senate working well, and I will move to progress the bill, adopting the recommendations that Senator Crossin has put forward. They are, effectively, to restore the rights of the Australian Capital Territory and the Northern Territory to legislate for death with dignity, because the peoples of those territories and their elected representatives ought not to have had that right taken away from them—it should be restored.

The legal evidence to the committee, including that from the Northern Territory Law Reform Commission, was that had the bill proceeded as I had brought it to the Senate, it may, in fact, have entrenched the euthanasia laws in the Northern Territory, without the assembly having the ability to rescind it. My primary intention here is to give the territory the right to make the determination either way, and the same for the Australian Capital Territory. I will amend the bill accordingly, if the Senate permits, and it will proceed to be debated in the Senate and the House of Representatives in the coming months.

There is a lot of structured confusion about the content of the legislation—euthanasia and the rights of territories to legislate, which is the primary intent of the bill. I want to talk about that for a moment. Senator Barnett and his fellow Liberals said that the bill should not proceed under any circumstances. What an extraordinary statement; that the Senate should not have a discussion about the rights of territories, let alone euthanasia. What an extraordinary prospect, coming from those three senators, that this Senate should be not be debating any matter brought before it by a senator, or any piece of legislation. That needs to be treated with the contempt that it deserves.

The proposal from Family First went one step further, and I note Senator Fielding is going to speak next. It took up with the Australian Christian Lobby, which is not related to any church but has that name. It said that the territories, which represent relatively small numbers of people, should not pass laws on such contentious issues as euthanasia. Really? When you look at the argument that is brought forward, Family First believes the Australian parliament does have a legitimate role in overturning the Northern Territory’s euthanasia laws and in preventing the territories from making laws on euthanasia. Of course, the logic is that it has a legitimate role in reversing that. But we get a denial on that matter from the four senators who have a different position.

The argument is that the Senate or the parliament should not force the availability of legal euthanasia on all Australians; it should not force options. What an extraordinarily dictatorial, antipublic point of view this is. Let me, again, make this very clear: this bill will proceed. I will move it to be amended according to the chair’s suggestion so that we can debate in this parliament the rights of the territories to legislate in this matter. Separately, I also intend to look at the matter that Senator Bartlett is talking about—that is, the wherewithal of the Commonwealth vis-a-vis the states and territories to legislate for the option of euthanasia to be brought to the Australian people. The last poll showed that Australians want the right to have the option of death with dignity by 80 per cent to 14 per cent. Senator Bartlett said that all Australians deserve dignity, but then inherently says that he withdraws that right of Australians when it comes to their dying process.

Like the Netherlands, like Belgium, like Oregon and, indeed, like the Northern Territory back in 1995, that is an option that ought to be available to Australians. It is inevitable. There is legislation before the Victorian parliament at the moment that has great legitimacy. The Australian people want this, but here we have senators saying that it should not even be debated in this parliament. It shows timidity, a failure of logic, and an insecurity in the ability to be able to argue both the matters of territory rights and euthanasia in this great parliament. That is the role of this great parliament, and this bill will proceed to be debated in this place and, hopefully, in the House of Representatives.

Steve Fielding (Victoria, Family First Party) Share this | Link to this | Hansard source

Family First opposes euthanasia and believes that people with suicidal thoughts do not need lethal help but need life-saving assistance. The Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 is intended to overturn the federal government’s ban on both the Northern Territory and the Australian Capital Territory having laws to allow euthanasia. It also aims to reinstate the Northern Territory’s 1995 euthanasia law.

Legalised euthanasia puts pressure on vulnerable people who feel they have to justify their existence because they know their continued illness is putting strain on family and friends. The euthanasia law, the Rights of the Terminally Ill Act 1995, operated in the Northern Territory for nine months from 1996 to 1997 and during that time four people died by lethal injection.

Family First is concerned that there were a number of instances where what were supposed to be safeguards in the Northern Territory’s euthanasia law were ignored, calling into question the safety and effectiveness of the legislation. For example, there was a requirement in the legislation that doctors certify that a patient was terminally ill before the patient could receive a lethal injection, but the legislation did not say what should happen if the doctors had differing opinions. In one particular case in the Northern Territory’s experience with euthanasia, the evidence provided by palliative care expert Professor Kissane was that one oncologist gave their patient’s prognosis as nine months but a dermatologist and a local oncologist judged that she was not terminally ill. There was no system in the legislation to deal with disagreements between doctors, so the particular person received a lethal injection despite the possibility that they were not terminally ill.

There was also a requirement under the legislation for a psychiatrist to have confirmed that ‘the patient is not suffering from a treatable clinical depression in respect of the illness’ as one of the conditions before the medical practitioner was allowed to give the patient a lethal injection. But this was also seen as another hurdle to clear, with Dr Nitschke saying of the four people who died by lethal injection:

All of them showed aspects of depression, and that, to my mind, was entirely expected. Ultimately, the question—and this was not brought out in the Lancet article—was: does that mean that they were so debilitated by that psychic condition that they had lost the ability to make rational thought?

This, of course, is contrary to the legislation and common sense on what depression does to people. To quote one journal article, the interest of depressed people in euthanasia is because they ‘often focus on the worst possible outcomes and are impaired by apathy, pessimism and low self-esteem’. They are not in a position to make good decisions, whatever you think of euthanasia. The danger with all legislation is that it can be seen as a list of requirements to overcome rather than protection against the abuse of patients or against mistakes. In this case, those seeking euthanasia could try multiple doctors until they find enough signatures to meet the requirements.

The Northern Territory’s nine-month experience with euthanasia demonstrated that the so-called safeguards in the legislation were not effective in protecting vulnerable people from a lethal injection. It caused fear in the Territory’s Aboriginal community. The Northern Territory’s euthanasia act should not be revived and the Senate should not support this legislation.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.