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

The Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010 comes before the Senate again with the very serious intent of having it carried through to a vote. At the outset I want to thank the people within all parties who have agreed to a conscience vote on the matter. There has been some debate about whether the bill warrants a conscience vote because it is not about euthanasia per se; it is about restoring the rights of legislatures. It was the Andrews Euthanasia Laws Bill 1996, which took away the rights of the territories to legislate in these matters, that had a conscience vote and we are in effect reflecting that conscience vote some 13 years later in the Senate.

The bill to quash the Northern Territory rights of the terminally ill legislation, which was the first such legislation in the world, came before this parliament in 1996 and went through the Senate in March 1997 by, if I recollect correctly, a majority of three votes. But it did not just overturn the decision by Marshall Perron and the Northern Territory Legislative Assembly to legislate for the right of terminally ill people to seek assistance to end their lives; it took away from the Northern Territory the right to legislate in the matter of voluntary euthanasia ever again. And, by design, it also took away the right of the Australian Capital Territory and Norfolk Island legislatures to legislate in the matter as well.

This bill has two objects. The first is to recognise the rights of the legislative assemblies of the Australian Capital Territory, the Northern Territory and Norfolk Island to make laws for the peace, order and good government of their territories, including the right to legislate for voluntary euthanasia. Secondly, and more directly, the bill repeals the Euthanasia Laws Act 1997, the Andrews act, which removed the right of the territories to legislate on voluntary euthanasia. But I want to make it abundantly clear that, unlike a bill I brought before this parliament a year or two ago, this bill does not reinstate the Northern Territory Rights of the Terminally Ill Act. That matter came to the attention of the Senate committee looking into this legislation. I am very grateful to the committee because when we got into discussion with legal advisers it was found that my original legislation would not only restore the right of the Northern Territory to legislate in this matter, but would effectively restore the Rights of the Terminally Ill Act 1995, with no way that the territory legislation could then get rid of it. In other words, it had the exact opposite effect—it would have taken away of the rights of the territories—of the remedy I wanted to put into effect through this legislation. So this legislation has been altered. I reiterate that this bill, if enacted, will not restore the Northern Territory Rights of the Terminally Ill Act. That act is effectively quashed. It remains quashed and it cannot, and would not, be resurrected as part of the passage of this legislation.

What this legislation does do, however, is restore the right of those three assemblies representing the democratic wishes of the people of the Northern Territory, the ACT and Norfolk Island to be able to determine their own future so far as the matter of euthanasia is concerned. We are now in the extraordinary position where these territory legislatures can enact laws parallel to the states on everything except on this one thing—voluntary euthanasia. That should be remedied. To not rectify this wrong of 1996-97 is to take away the rights of the voters of the Northern Territory, the ACT and Norfolk Island. Having said that, the intent of the Andrews legislation at the time—and this was widely and popularly understood—was to override the Northern Territory legislation. The passage of that contentious bill through this parliament did just that. And that intent is still in effect, as it was in 1997, regardless of what the House of Representatives does if this bill were to pass the Senate as I hope it will.

The important thing here is to look at the democratic rights of the people living in the territories compared to those of people living in the states. It may be that the Northern Territory will opt for statehood in coming years, and I would support that if it happens. But until and unless that happens, the legislative assemblies of the Northern Territory, the Australian Capital Territory and Norfolk Island—as elected by the voters—are put at second-rate status compared to voters in the states by the taking away of their right to legislate for voluntary euthanasia should they wish to do so in the future. I would ask honourable senators to make a very firm deliberation and, whether or not they are in favour of voluntary euthanasia—and I, of course, am in favour of it; I am a keen advocate for it and have been all my parliamentary life—to separate their view on that issue from the issue of democratic rights, which is entailed in this legislation.

I am sure the issue of voluntary euthanasia will be canvassed by most speakers who add to this debate. The reality is that the opinion polls show that 70 to 80 per cent of Australians or more—and this includes people who live in the Northern Territory—favour legislation for voluntary euthanasia. It is not for us to use some artifice to prevent people in the territories—as against the states—from being able to look at such legislation if they wish. Indeed, when we get to the states, we can see the difference for the people in the territories who have been deprived of this right. In the last 24 months, legislation has come forward in the parliaments of Victoria, South Australia, Western Australia, New South Wales and Tasmania to give effect to voluntary euthanasia. So far, there has been no determination in South Australia or New South Wales, where the Hon. Cate Faehrmann, a Greens member of the upper house, has recently introduced legislation.

But how those parliaments debate and make their determinations is not the matter in question. This is a matter of high public interest—of quite extraordinary and ongoing public interest and indeed anguish. It has a right to be, because we are all subject to both life and death by definition of our taking part in this debate; and our constituents, likewise. There should not be a suppression of that debate amongst the half million to one million people who live in the territories as against every other Australian when it gets to debate at a political level.

I am hoping that, through the support of this chamber, this suppression of the rights of people in the territories on this one issue, contentious as it may be, will be withdrawn and hopefully—if this legislation gets through this chamber and the other place—the rights of the territories will be restored. I have to add to this, for those who do not know, that the very cause of this debate is that under the Constitution the Commonwealth does have the power to make laws for the territories, not for the states. The Constitution lays down the rights of the states in no lesser way than it lays down the rights of the Commonwealth, but when it comes to the territories, even though they have legislative assemblies, they can be overridden by the Commonwealth—indeed these days by the executive of the Commonwealth.

That is a matter I will continue to address because I think it should be quite extraordinary circumstances of national significance and requiring a full debate of the parliament—as indeed the Andrews bill did back in 1996-97—that sees the exercise of that law. Nevertheless, the Andrews bill which, by determination of this parliament, ended the Rights of the Terminally Ill Act in Northern Territory has an enduring other negative impact, which is to take away those democratic rights from that half million to one million Australians. Through this piece of legislation I hope to see this parliament maturely, wisely and quite fairly restore that right to every voter and every elected representative of the territories of Norfolk Island, the Australian Capital Territory and the Northern Territory. I commend this bill to the chamber.

Kate Lundy (ACT, Australian Labor Party, Parliamentary Secretary for Immigration and Citizenship) Share this | Link to this | Hansard source

Today I am not intending to address the substance of the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010. I stand in my capacity as the representative minister in the chamber. Instead, I will make some points about how the Senate might choose to consider important legislation such as this bill. In its simplest form the senate is a meeting. As with all meetings we have rules for operating, agendas to be followed and time limits to be adhered to. As with many rules in life the rules are here to maintain order. These rules are now being revisited in light of the new political paradigm that has been bestowed upon the parliament by the voters. Currently the Senate has only sat within this new paradigm for a short period. If we consider that the first week of sitting for the new parliament was mainly ceremonial, we have only been sitting for one week.

In the past week of sitting the Senate and the other place have given significant time to the debate over Australia’s involvement with Afghanistan, and quite rightly so. Australia’s involvement in Afghanistan is clearly an issue that the Australian public has significant interest in. Similarly, the euthanasia debate is one that has polarised the electorate and it is a debate in which all senators should be given time to consider their views and those of the electorate. And time should be given for party processes to be dealt with. Senators should also be given reasonable time to participate in the debate and present their views on the issue.

In 1996, when the original bill was introduced, the Senate spent six days debating this issue between December 1996 and March 1997. The House of Representatives also debated this issue for nine days during September to December 1996. Perhaps the Senate will not require the same amount of time for this bill and my point is not solely on an issue of time. Important bills can often be given relatively brief debate in the chamber and that does not undermine their significance. However, I do request the Senate give consideration for this bill to be debated to the extent that it is the will of the Senate. Often bills have also had considerable examination by a Senate committee. I know that this bill has not been examined by a committee though a related bill has. It is possible that a committee referral is also appropriate for this bill given that it is likely to be voted on.

A parliament like this one Australia has not experienced for over 70 years. As I mentioned previously it is a new paradigm. Private members’ bills will now carry more interest than in recent memory and will continue to help members of this place to inform the parliament about issues that are important to their electorates. Unlike other bills discussed under general business, Senator Bob Brown has announced his intention that this bill should be voted on by the Senate. A notice of motion from Senator Bob Brown seeking to have this bill considered and voted on by the Senate initiated a procedure committee report tabled earlier today. At this stage the Senate is yet to agree to regular processes for consideration of a private senator’s bill that will be voted on. I anticipate that these procedures will be adopted shortly—probably as soon as our next sitting week.

These new procedures should allow for a variety of checks and balances and party processes. The timing of the debate on this bill today has not allowed these to incur. Without any doubt, the bill we are discussing today is a significant bill. It seeks to reverse an act that passed the parliament in 1996. It raises a plethora of issues: territory versus state rights, individual rights and issues of profound religious conviction for some. These issues deserve respectful and full consideration. These are issues that the debate today can only touch upon. All senators should have received more advanced notification that this bill would be debated today. As I understand it most senators received advice that this bill would be listed today on Tuesday of this week. This is a bill that requires extensive debate in the chamber. Senators should have had time to consider their position on the bill and to prepare their contribution. The Senate should also provide time for these contributions to be delivered. That will not be possible today. Today we will just begin the debate on this matter.

It is also difficult to accommodate a debate on the issue in the two sitting weeks scheduled before we rise for the year. Like the debate on Afghanistan that we had this week, important matters should not be rushed through the Senate. They take time. They also take the cooperation of senators to ensure that regular Senate business can accommodate an important debate. Senator Bob Brown knows that the government is prepared to ensure that there is time to debate this bill in the Senate, and there have been discussions with him about how this bill could be accommodated. There is an agreement between the Australian Greens and the Australian Labor Party to allow debate on private senators’ bills. We have every intention of honouring that agreement. I can only hope that this can be done in a way that allows senators to give the issue the consideration and exposure that it deserves. Given that I am a senator of the Australian Capital Territory, I look forward to another opportunity to present my views on this bill in a suitable context in this place.

Nigel Scullion (NT, Country Liberal Party, Deputy Leader of the Nationals) Share this | Link to this | Hansard source

In rising to speak to the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010, I would like to commend Senator Bob Brown. I am always cynical when Senator Brown puts up bills because he seems to be very good at value-adding. But in this case it is a worthwhile bill on a number of fronts. I know that over a long time he has been a champion of euthanasia and I commend him for that. Restoring territory rights is something that I have been very keen on for a very long time. I must have been partially asleep while considering what this new paradigm meant but whilst I was doing that Bob got on with the business and introduced this legislation. It is something certainly I would have associated myself with. So congratulations for that, Senator Brown.

The stated objective of the bill that we are debating today is to restore the rights of the Northern Territory, the Australian Capital Territory and Norfolk Island parliaments to debate and pass laws for the governance of their territories. The catalyst for the introduction of this bill, however, was the passage of the Rights of the Terminally Ill Act 1995 through the Northern Territory parliament in 1996 and the subsequent Euthanasia Laws Act 1997 through the Australian parliament, which overturned the Northern Territory’s law.

I accept that, given the emotive nature of euthanasia, it is very difficult to separate this issue in order to focus our attention simply on the restoring of the states rights objectives of the bill, which I fully support. Those of us on this side of the chamber believe it is a fundamental right that members and senators are able to vote on sensitive matters such as euthanasia according to their conscience. Therefore, it is appropriate that this bill will be dealt with in this way.

Whilst the bill is associated with euthanasia in the Northern Territory, there is no connection between an outcome of this bill and the re-establishment of a process in the Northern Territory that will allow for euthanasia. That being the case, the fundamental issue at stake is that a Commonwealth act is in place that forever forbids the Northern Territory, the Australian Capital Territory and Norfolk Island legislatures from discussing something. I think that that strikes at the very heart of our democracy. I know that Senators Crossin and Lundy would share my view that you have to be in a particular place, you have to be in the shoes of Territorians, to understand just how narked we feel that somehow it is okay for Western Australia, for example, to debate this matter—it is quite okay for them to do it and to come to whatever decision Western Australians come to—but for some reason or other because we are a territory we simply cannot do it. The attitude seems to be that we are not very smart or that we have some sort of democratic process that is perverted. I hope that all people in this place would see this not as a vote on euthanasia but genuinely as a vote to allow a group of Australians, who by dint of choice or birth or other things have found themselves living in a territory, to make their own decisions. It is a very important point. While this is a conscience vote, I appeal to people to see it as a wider issue. It is an issue for me personally. It is about the rights of people of the territories to be equal in how they cast their votes and make decisions, through democratic processes in the places that they live.

The Commonwealth has no specific constitutional powers to intervene in the states as it does in the territories. It is really a question of equity. In this place—the Australian Senate, which is colloquially referred to as the states’ house—it is a question I think we must consider very seriously. I did a bit of research into who had said what in the past. The Senate conducted an inquiry into the euthanasia bill in 1997. Someone that I know is well known to Senator Crossin, Maggie Hickey, who was then the Northern Territory opposition leader, made a very incisive contribution. She said:

Senators:

The members of the House of Representatives who voted this bill to you for consideration used their conscience to vote solely on the issue of euthanasia.

Your conscience vote is perhaps more complex.

Your conscience vote must also include the historical responsibility of being the states house and by being freed from party constraints you have an opportunity to exercise that historical opportunity.

It is a rare opportunity.

My plea to you is to focus on this responsibility in discharging your conscience and not on the issue of euthanasia itself.

As I said at the outset, Territory Labor allowed all of its members a conscience vote on the issue of euthanasia. Some voted against and some voted for.

We are, however, united in our opposition to the Andrews bill. That unity was borne out of the fact that even those members who have taken a very strong stand against this legislation believe it is our constitutional right to enact the law and to remove it in the future if they are successful in persuading the parliament to do so.

Wise words. I think we really should be able to focus in this place on the elements of this debate. This is really about equity.

The Northern Territory (Self-Government) Act 1978 intended the Northern Territory to be given self-determination, yet the Commonwealth is able to override its legislation. The Commonwealth has this power through section 122 of the Constitution, which is a plenary power with no limitations on its use or in fact the subject matter it covers. I am certainly not Senator Brandis and I have very little knowledge of the Constitution, I have to say. Like most of us, I have a broad understanding. But I think there is a spirit of the Constitution and the spirit of the Constitution talks about other things.

If you have the time—I do not commend it to you—and look at the details of the things the Constitution does  you will see that the Constitution lays out what the Commonwealth is responsible for and, by omission, what the states and territories are responsible for. I think that is one of the tasks it does. It talks about what the Commonwealth is responsible for. I will not go into the detail but it includes trade and commerce, taxation, borrowing money on the public credit card—you guys should be interested in that!—naval and military defence of the Commonwealth, lighthouses, quarantine, currency, weights and measures, and it goes on and on. Some of the things have been specifically used since I have been here, such as marriage and ‘the people of any race for whom it is deemed necessary to make special laws’.

When the Commonwealth wants to intervene, we tend to look for some place in the Constitution about how we can intervene. I have been a part of that process. When you fail to be able to intervene with the wide range of capacities and powers that the Commonwealth has, you then lean back to section 122 and say, ‘It does give us the capacity.’ It may do, but I do not think it gives you the moral high ground or a moral place to do so. If it did in this particular case euthanasia would be there. It would have been made implicit by the founding fathers and the people who wrote the Constitution. The fact that it is not there does not necessarily mean that because it is a state or territory you can lean in a new section 122 for pretty much anything you want. I think that it is really the spirit of the Constitution, not necessarily the exact words of the Constitution, that we should follow in this regard.

When Northern Territory Chief Minister Marshall Perron first introduced the Rights of the Terminally Ill Bill in February 1995, it was immediately referred to a select committee, which received over 1,000 submissions, took oral evidence and conducted hearings across the Territory—including in a number of Aboriginal communities. The Rights of the Terminally Ill Act 1995 came into effect on 1 July 1996, and nearly three months later a man in his mid 60s who had been suffering from prostate cancer was the first person reported to use the legislation to die. Before his death, on 9 September 1996, the Commonwealth government introduced a bill into the Australian parliament with the stated objective of preventing the Northern Territory, the Australian Capital Territory and Norfolk Island from passing certain laws permitting euthanasia. As I have said, while the Commonwealth does not have the constitutional law to prohibit euthanasia outright in Australia, because it could make laws for the government of a territory they invoked section 122.

Whenever I look at legislation in this place and do not understand it, it is useful to go back and have a look at the second reading speech, because it can give you some insight about what mischief was trying to be prevented. Of course, that is impossible with the Constitution. Section 122 says:

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of …

In the context of modern Australia, the circumstances where a state would at some future time vacate a piece of land that needed some laws are not the circumstances we are in now. When this Constitution was written we did not have the Northern Territory (Self-Government) Act, we did not have the Australian Capital Territory (Self-Government) Act and we did not have whatever act allows Norfolk Island to govern. So using the constitutional power was not, I do not think, legitimate. Four people used the provisions of the Northern Territory government’s Rights of the Terminally Ill Act before the Commonwealth government passed the Euthanasia Laws Act 1997. Of the four people, three were Territorians. Despite fears of some opponents to the legislation, only one person travelled from outside the Territory to use the provisions.

As I indicated earlier, last month in Western Australia the parliament debated a euthanasia bill, but it was voted down. The Northern Territory may be interested; I am not really sure. Some Territorians have mentioned it on both sides of the debate. People in the Northern Territory will be thinking about the debate, just as people in Western Australia might. There may be some people like me who do not have a really focused view on it. I am not prevented by my theology from having a theological position on it, but I recognise that there will be many people who have been in circumstances that really sharpen their views on these matters—and I respect that. But what is the difference between somebody trundling to work in the Northern Territory and somebody trundling to work in Perth? There is absolutely none. As Australians, this really strikes at the heart of the issue. Why is it that Northern Territorians and people in the Australian Capital Territory and Norfolk Island should be thinking and pondering these matters about entering into a process when they are exactly the same as people in Western Australia, New South Wales and Victoria—except that they live in a place that ends in the word ‘territory’ and do not have the same access to a democracy? That strikes fundamentally at the heart of our Constitution and what Australia means.

What every Australian believes in is equity. Two men or two women should have the same rights wherever they go. This legislation rights that wrong. I think that fundamentally the citizens in the Northern Territory and the wider Territory, as a result of the Euthanasia Laws Act 1997, see themselves as simply excluded from the debate. It is important, as I have indicated, to recognise that this bill will not reinstate the Northern Territory Rights of the Terminally Ill Act. Euthanasia will not be legislated as a result of this bill, but it will be possible now for the Northern Territory and other territories to be able to be part of the debate, just the same as any other citizen of Australia. It is important to note, perhaps as an observation, that the Northern Territory Chief Minister, Paul Henderson, has indicated that it is not a priority for his government. I can tell you that when anybody who is a leader in parliament makes such a claim, there will be people on talkback radio expressing their view about his view, and I am sure some of them will be saying, ‘It’s probably not your entire deal, Mate, because other people in the community will want to ensure that they have their say,’ and there will equally be people who will be saying, ‘Yes, we think that is a good idea.’ But right at the moment it does not matter a fig what the Chief Minister of the Northern Territory thinks or is inclined to do, because there is a piece of legislation currently on the books of the Commonwealth that prevents us from even considering, or possibly having a debate, coming to a vote and making our own laws on it. That is simply stupid. It flies against every value that everybody in this place should have.

There are a number of things I should briefly speak about. Often people see the Northern Territory as some faraway place, but that is not the case. The process in the Northern Territory was a rigorous process. There was a very strong debate. There were plenty of attempts to amend and overturn the Rights of the Terminally Ill Act 1995 within the Northern Territory Legislative Assembly. In August 1996, the Rights of the Terminally Ill Amendment Bill 1996 was introduced into the Northern Territory Legislative Assembly. That legislation would have prohibited the performance of physician assisted suicide or active voluntary euthanasia in a public hospital or a health clinic. It was introduced in order to address concerns expressed by Indigenous people about the previous act. The bill’s second reading was negatived 15 to 10.

The Respect for Human Life Bill 1996 was introduced on 15 May 1996 and it would have repealed the Rights of the Terminally Ill Act 1995, but that was up to Territorians. They have a proper process to ensure that their constituents are served. That bill’s second reading was negatived 14 to 11 in August 1996. I think this demonstrates that the Northern Territory parliament is not above the law or above due and proper process. Its legislation, like all legislation that is passed in this place, may be tested in court.

We may not like a piece of legislation that is being debated in another parliament but we must respect their right to have that debate. A state or territory parliament may pass legislation that we as individuals or collectively might object to but it is their right to pass legislation so long as it is within their constitutional area of responsibility and is not inconsistent with Commonwealth laws. The Northern Territory was in that exact situation. Euthanasia was not on the list of issues under the Constitution that the Commonwealth could act on.

We as Commonwealth parliamentarians can say, ‘Well, we think that is a bit odious and we’re off to make comments about what happens in the states and territories and whether we like it or don’t like it’. But the difference is when we as a Commonwealth government interdict in a territory issue in a way that is different for a state. I think the house that represents the states—originally in terms of equity and finance but I think conventionally—should be the house of the states that ensures that there is equity between the states.

There could not be a more important debate or a more important vote. This is not only a test about how people feel about Territorians; this is a test about how people feel about the strength and dignity of the Senate of Australia. I know there will be plenty of debate in the Northern Territory on this matter. The principal debate we are having in the Northern Territory is twofold. There are those who harangue me that we should be pro-euthanasia and there are those who harangue me saying we should be against euthanasia. But the vast majority of people are saying to me, ‘We want the right to make our own decision in the Northern Territory.’ It should be the same right—it does not matter what your beliefs in this matter are—as anywhere else.

I accept that the Commonwealth should be able to deal with matters listed in the Constitution, but when it is not listed it should be the convention of this place not to allow the government of this place to intervene. We have it in black and white. We have the lists of those areas under which we are able to intervene, and so, by the absences there, that should be it. Section 122, outdated though it is, is something we should not use in this place. Every time I make heroic statements in this place I wonder if I am going to have to eat my words, but I can tell you that on this one I will not.

As I have said, I think this is a real test. We live in a democracy and, whilst this sometimes means that laws that we do not like are passed—to quote Churchill, ‘Democracy is the worst form of government, except for all the others that have been tried.’—we need to protect that tenet of government. As I have said a couple of times already in my submission today, this is not about euthanasia. For me, this bill, whilst it is associated with allowing a territory to discuss a certain thing, is primarily about restoring the rights of the Northern Territory to make its own decisions, as it has done on a whole range of very complex issues over a very long time.

So I encourage everyone entering this debate and this vote to think about territorians—whether they are Norfolk Islanders, Australian Capital Territorians or Northern Territorians—to consider how people feel about this. They are not stupid. They have the capacity to make their own decisions. This is not only a test of what you think about the Northern Territory but also, fundamentally, a test of how you feel about the Senate.

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

Given the controversy that this legislation, the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010, has created, particularly in the Northern Territory, it is a pity that the Senate is not being broadcast today. It is a pity that people in the Northern Territory did not hear Senator Scullion’s contribution. I commend Senator Scullion on his speech. A lot of people think we probably only have a love of seafood in common, but we also share a passion for defending the rights of the Northern Territory government—a competent government—and the rights of Territorians.

The importance of the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010 is stated in its title. Senator Scullion and Senator Bob Brown are right: it is predominantly about restoring the rights of Territorians. It is linked to the issue of euthanasia but it is 100 per cent about restoring the rights of people in the Northern Territory government to legislate on matters that it is competent and wants to legislate on.

I turn now to a brief history of the events that have brought us here today. There are three territories in the Commonwealth—the Northern Territory, the Australian Capital Territory and Norfolk Island. They have all been granted self-government by the Commonwealth, which allows the residents of those territories to elect members to their respective legislative assemblies, which then make laws on their behalf. In 1995, the Northern Territory Legislative Assembly debated the Rights of the Terminally Ill Bill 1995 under its constitutional legislative rights. The assembly was entitled to debate euthanasia under the powers given to it by the Northern Territory (Self-Government) Act 1978. The Rights of the Terminally Ill Bill was then passed by the Northern Territory Legislative Assembly. It was an extremely difficult debate that caused massive controversy in the Northern Territory and around the country because it was in fact the first of its kind in the world. As I said, that bill—which was on an issue that the Northern Territory government had legitimate rights to debate and legislate on for the people of the Northern Territory—was passed.

No-one is denying that euthanasia is a deeply controversial, personal and emotive issue. There is no doubt about that. It is an extremely difficult issue, and those people who support having euthanasia laws in this country take a courageous stand. But the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010 is not about reinstating the right of people to access euthanasia in the Northern Territory. I do not know how many times Senator Scullion and I need to repeat this, but this bill is about the right of the Northern Territory Legislative Assembly to consider whether the assembly itself will reinstate that right. This bill is about the right of the respective legislative assemblies of the territories under their constitutionally granted legislative powers to make laws they believe need to be made for people in Norfolk Island, in the Australian Capital Territory and in the Northern Territory. But some people do not see this bill like that.

The Rights of the Terminally Ill Act was challenged in 1996. One of the challenges queried whether the Northern Territory Legislative Assembly actually had the power to enact the law. A majority of the full Northern Territory Supreme Court came down with the decision that the legislative assembly did in fact have that power. But then a bill was introduced into this parliament that successfully overturned the Northern Territory law by overturning the decision of the Northern Territory Supreme Court. In 1996 Kevin Andrews introduced a private member’s bill, the Euthanasia Laws Bill, to overturn the Northern Territory’s euthanasia laws and thereby remove the rights of Territorians. This was to be done by amending the Northern Territory self-government legislation to remove the Northern Territory’s power to legislate on euthanasia. The Euthanasia Laws Bill, also known as the Andrews bill, went one step further. It also amended the self-government acts of the ACT and Norfolk Island to remove their constitutional legislative right to legalise euthanasia if it was the will of the people in those jurisdictions, even though neither Norfolk Island nor the ACT had ever contemplated that.

I remember having a very substantial conversation with former senators Bob Collins and Grant Tambling about this issue. Both of them had a very clear view about euthanasia, but both of them also had a very clear view about the rights of Territorians. They both expressed to me their view that they did not want to support the right of people to access euthanasia but found themselves in a situation where they had to vote against the Kevin Andrews bill because in so doing they would be defending the rights of Territorians to have confidence in their own competent and legitimate assembly. The Andrews bill was passed by the federal government in a conscience vote, and it came into force in 1997.

I have heard an argument that the debate we are now having on Senator Brown’s bill should be decided by conscience vote, and I understand that both parties have agreed to that. So be it, but that is not a position I agree with. I think that we should be looking at the constitutional and legal rights of Territorians, and I think both parties should have made a decision about that. But if there is going to be conscience vote, in the same way that there was with the Andrews bill, I hope that the contributions in this place today of Senator Scullion and I—two people who have been duly elected to represent Territorians in this chamber—are listened to and taken note of.

In 2008, Senator Brown introduced the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill to overturn the Andrews bill. Senator Brown’s bill sought to give back to the three territories their right to legislate for the terminally ill if they so chose and it also aimed to restore the Northern Territory’s euthanasia law once the bill was passed. The bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry, and we handed down a report in June 2008. We received over 1,800 submissions, and we found during our inquiry that the issues of legal and constitutional rights versus the arguments for and against euthanasia were blurred.

The crucial legal and constitutional issue that came up in that inquiry—and it continues to be a crucial issue today—was whether it is appropriate for the federal parliament to use its power to override legitimate and competent legislation originating in the legislative assemblies of the ACT, Norfolk Island and, in particular, the Northern Territory. We found that there were many people who wanted the rights of Territorians reinstated but not the right of people to access euthanasia under the previous Northern Territory law. We also found that, under section 122 of the Constitution, the Commonwealth does have the power to override the laws of the Territory.

The key issue is whether or not the euthanasia act was an appropriate use of that power from a constitutional policy perspective. We recommended that the two issues were split, that the rights of territorians should be reinstated and the issue of whether or not those territories should have euthanasia is another discreet and separate issue. The main constitutional issues raised by the Andrews bill were political rather than legal. The central question was whether or not it was acceptable politically for the Commonwealth to take back part of the legislative powers it had conferred on the territories at self-government.

What I want to do is talk about the submissions to the inquiry that supported the rights of the terminally ill bill in 2008 on constitutional policy grounds. They did so for three key reasons, and this is what people said back then: the euthanasia act interfered with democracy and self-government of the territories, it discriminated against the territories and territories’ citizens compared to the rest of states and states’ citizens, and it demonstrated an inconsistent treatment of territories by the Commonwealth. A wide range of organisations and individuals supported the bill based on these grounds: the Northern Territory Law Reform Committee, the Law Council, Gilbert and Tobin Centre of Public Law, the then Attorney-General of the ACT and the Northern Territory government. They were all in support of repealing the euthanasia act on constitutional grounds.

The president of the NT Law Reform Committee at the time, the Hon. Austin Asche, had this to say:

Any Commonwealth enactment based on policy—that is, based on a difference of opinion between the Commonwealth and the Territory—is of course an interference with the self-government of the Territory. If the Commonwealth disagrees with a policy of a territory then the grant of self-government is really illusory.

That is a very valid point. The three Australian territories have been granted self-government. If the members of both chambers of the federal parliament wanted to repeal every piece of legislation that was passed in the territory parliaments that this parliament did not agree with, we would have a never-ending bevy of legislation before us. Self-government would really be a figment of one’s imagination. It would not really exist.

Our report also quoted the Gilbert and Tobin law centre, which goes further and says the euthanasia act:

… should be repealed because it is inappropriate that the Commonwealth Parliament remove power pre-emptively from any self-governing jurisdiction within Australia. The law is inconsistent with basic principles of democracy and indeed with the very concept of self-government in the Australian Territories.

What we have before us today is a bill that stepped up to the plate and separated the issues. It separates the issues of the constitutionality of the Territory government, the ACT government and Norfolk Island and preserves their rights under the self-government act and whether or not there should be euthanasia legislation in these territories. This bill purely focuses on the right to reinstate the constitutional legislative right of the territories to make laws about euthanasia if they so wish.

I want to point people in the direction of the submission from the Northern Territory Chief Minister, Paul Henderson, during my inquiry on 11 April 2008. His concluding comments in his submission say that ‘in principle the Northern Territory would welcome the removal of the limitation on its self-governing capacity’. He goes on to say that it is ‘not a subject matter’—that is, the rights of whether or not the Commonwealth should take away the rights of the Northern Territory government—‘that sits well with legal uncertainty and confusion’. The inadequacy of the bill—that is, the bill of 2008, not this bill—and the uncertainty it creates demonstrates the inappropriateness of the Commonwealth parliament pursuing territory related issues without consultation with the Northern Territory. And we know that on radio the Chief Minister has also said that at this point in time voluntary euthanasia legislation is not on his agenda. So the Northern Territory government has no intention whatsoever of reintroducing voluntary euthanasia legislation under the chief ministership of Paul Henderson. What this bill will simply do is give back the rights to those territories to be able to legislate on euthanasia if they wish to do it. It does not reinstate the previous legislation; it does not allow people from the Territory or anywhere else in this country at this point in time to access euthanasia if this legislation goes through.

So when the time comes to vote on this bill before us, I ask and plead with people in this chamber to not base their votes on whether or not they support euthanasia. That will be a call for the governments in the Northern Territory, the ACT and Norfolk to make once this bill is passed. This bill is about restoring the constitutional legislative rights of the territories to make laws for their people, just as the states do. Senator Scullion made a very good point. If I am a Victorian walking down Bourke Street or Collins Street and I am under the jurisdiction of the Victorian parliament, why should my rights be any different to a person in Darwin who walks down Mitchell Street or Knuckey Street? Why should we be treated differently because we choose to live in a territory? Why should our parliaments be considered second-rate, incompetent parliaments just because we live in the ACT, Norfolk Island or the Northern Territory? I ask people in this chamber to think about that, to think about the equality of rights that we so proudly champion for people around this country and this world in other matters. Let us think about the constitutionality of the rights of people who live in these territories.

If the states wanted to legalise euthanasia, the Commonwealth would be powerless to interfere, so why should the territories be any different? The Commonwealth has granted itself government to legislate for the people living in the territories. So why do we not just let those governments get on with doing the work they are competent in doing? I might add that this is a great debate and a great argument for giving the Northern Territory statehood. I want to quote from Marshall Perron. It is interesting: I am quoting from Marshall Perron; Senator Scullion is quoting from a former member of the Labor Party opposition in the Territory, Maggie Hickey. Marshall Perron, the former Chief Minister—the person who introduced the first legislation—sums up the situation very nicely. He says:

Hansard shows that the majority of federal members supported the Euthanasia Laws Act—

the original Andrews act—

because they opposed voluntary euthanasia. To them, crushing the principles of self-government was simply collateral damage. Put simply, the Euthanasia Laws Act means the citizens of the territories have 218 politicians whom they cannot vote for determining policy on voluntary euthanasia for them. The other 20 million citizens in this federation are not in that situation.

The bill before us would give the territories back their constitutional right to make laws on euthanasia, if that is the will of the people. That is the will of the people. Senator Scullion and I represent those people. We represent the 200,000 or more people who put both of us back in this chamber fewer than three months ago. We make this call because we are on the streets, we see the emails and we listen to the telephone calls. We know what people think and feel about euthanasia in the Territory, but I can tell you they are very passionate about their rights being reinstated and the role that the Commonwealth government takes for granted in overriding legislation that is passed by a competent and legitimate government. The ACT and the Northern Territory each have only two House of Representatives members and two senators to represent them in federal parliament. That should absolutely not mean that the rest of Australia can meddle in territory matters simply because they hold more votes or they do not agree with the subject matter of certain legislation.

Regardless of whether you agree with voluntary euthanasia, it has to be up to the democratically elected parliament of each territory—or each state, for that matter, or federation—to make laws if it is the will of the people. That is democracy. People in the Northern Territory get on the roll to vote for a Territory parliament and they have faith that that parliament will make laws that will benefit their lives, not laws that are passed in the Territory but squashed and quashed by the federal parliament. This law is a matter of principle. This bill will again grant Territorians their rights under self-government and should be supported and passed by both chambers of this parliament. Territorians have been granted self-government and should be allowed to make laws within their constitutional legislative rights.

In concluding my speech, I urge members of parliament to pay very careful attention to my and Senator Scullion’s contributions. It is probably not often in this place that you get senators from opposing political parties reading off the same song sheet, so to speak, but we are duly elected people from the Northern Territory who were put here by the voters in the Northern Territory. This is not about reinstating your right to access euthanasia; this is about giving back Territorians their right to have a competent government to legislate on their behalf. (Time expired)

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

I would like to congratulate both Senator Scullion and Senate Crossin, whose speeches I have had the pleasure of hearing, on their strong advocacy for states’ rights.

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

Territory rights.

Sue Boyce (Queensland, Liberal Party) Share this | Link to this | Hansard source

Territory rights, as Senator Stephens quite rightly corrects me. This is about territories having the same rights as others, although I was somewhat startled to hear Senator Crossin’s suggestion that there should not be a conscience vote on this issue. Given that, as I understand it, it was a decision of the Labor Party caucus to have a conscience vote, we seem to have some strange opposition going on in all sorts of directions.

As both Senator Scullion and Senator Crossin have pointed out, the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010 is about territory rights. It is about the right of the Northern Territory to pass the same sorts of laws that states have the right to pass. However, I would suggest that, if this bill were called the Restoring Territory Rights (Government Charges) Bill 2010 or the Restoring Territory Rights (Possible Land Title Issues) Bill 2010, it would not have been presented by the Greens. The fact that it is about such a controversial, media worthy topic is the whole reason that this bill has been brought to this place by the Greens. The intention is to cause debate not just about territory rights, which I think everybody in this place would agree should be upheld in the same way as states’ rights, but to cause debate on the topic of euthanasia itself.

So I want to focus a little on the subject of euthanasia, or what I shall refer to as often as possible throughout my speech as assisted suicide. The definitions of euthanasia, voluntary euthanasia and involuntary euthanasia become wider and stranger as we go, so I think assisted suicide is a better term to use when talking about this subject. I would like to quote from an article by a UK disability group founder and advocate, Alison Davis, called ‘No less human: voluntary euthanasia and disability. A personal story’:

The terms denoting the killing of human beings, for their own supposed benefit or that of others, have changed out of all recognition since the ancient Greeks coined the term ‘euthanasia’ meaning ‘a good death.’ Progressively this became some-thing of a taboo term, and ‘assisted suicide’ or ‘assisted dying’ have become the preferred term. Usually now the term—

and she is speaking of the UK—

‘dying with dignity’ is used to mean deliberate killing, as in the UK where the ‘Voluntary Euthanasia Society has recently changed its name to ‘Dignity in Dying,’ suggesting that only a procured death is ‘dignified.’

Ms Davis goes on to say:

… I know from my own experience that what is needed is not to be abandoned or presumed to be ‘better off dead,’ or to have one’s worst fears of being ‘burdensome’ confirmed, but rather to be surrounded by those who care.

She puts an argument, which I am going to go through in terms of a number of disability advocacies, about the fact that euthanasia in many cases is a disguise for ageism and ableism—that is, discrimination against the aged and discrimination against those with a disability. She says:

What hasn’t changed is the sort of people regarded as having a right to have their lives ended prematurely. Terminally ill people always seem to qualify for what I’ll call, for the sake of clarity, “euthanasia” or “assisted suicide.” Incurably or profoundly disabled people as well as elderly people also often qualify for having their lives deemed “not worth living” whether or not they have asked, or can ask, to be killed.

This of course raises issues about people with intellectual disabilities, disorders or conditions that might prevent them from having a view or an understanding of the effect of assisted suicide.

Interestingly enough, the argument has been put by Physical Disability Australia and other groups that, in fact, the United Nations Convention on the Rights of Persons with Disabilities mitigates against legalising euthanasia in Australia. They point out that Australia was one of the first countries to ratify the United Nations Convention on the Rights of Persons with Disabilities. Article 10 deals with the right to life. It says:

States Parties reaffirm that every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis ...

The contention of many disability groups would be that this is impossible to achieve. Given the current attitudes towards older people and people with disabilities, it is impossible to achieve that equal basis of quality of life, effective enjoyment of life, for people with disabilities. In fact, it is the beginning of a slippery slope that we begin to march down if euthanasia were legalised.

The 1993 House of Lords select committee decision—which I think has been mentioned already—in what was referred to as the Bland case, stated:

We do not think it is possible to set secure limits on voluntary euthanasia. It would be impossible to frame safeguards against non-voluntary euthanasia if voluntary euthanasia were to be legalised. It would be next to impossible to ensure that all acts of euthanasia were truly voluntary, and that any liberalisation of the law was not abused. Moreover, to create an exception to the general prohibition of intentional killing would inevitably open the way to its further erosion, whether by design, by inadvertence, or by the human tendency to test the limits of any regulation. These dangers are such that we believe that any decriminalisation of voluntary euthanasia would give rise to more and more grave problems than those it sought to address.

This was referred to by what was the Human Rights and Equal Opportunity Commission in Australia in December 1996. They called it the ‘sophisticated version’ of the ‘slippery slope argument’ but point out that it must be taken seriously because the question is: is it possible in practice, with the best of intentions, to conceive a legislative scheme which is immunised against potential abuses? My contention, and the contention that I am raising today in support of the many disability rights advocates, is that it is not possible to do that.

I turn to some information that comes from an outstanding Canadian bioethicist with a disability in an article headed ‘Why disability rights movements do not support euthanasia: safeguards broken beyond repair’. He was very involved in moves for legislative changes in Canada. He pointed out that a Gallup poll in Canada showed that 75 per cent of Canadians were in favour of euthanasia where someone had a terminal illness; only 17 per cent were against. Fifty-seven per cent were in favour of euthanasia where people had an incurable illness and 32 per cent were opposed.

He was making the point that we slide from ‘terminal’, which is probably the understanding that most people would have of what euthanasia is about, to ‘incurable’. Where do we slide to from there? As I pointed out, with the embedded ableism and ageism already in our society, the tendency to keep moving the goalposts until you have ‘involuntary euthanasia’, not ‘voluntary euthanasia’, legal or illegal, would be massive. Professor Wolbring said:

As the above quotes show—

he is talking about the Gallup poll in Canada—

the term right to die is not limited to the term terminal anymore. Often the term incurable is used. Now what does that mean for the disability rights movement? With the change of one word, we include now everyone with a condition not viewed as mainstream. Even I, a thalidomide, am incurable! Very likely I will not wake up one morning with my legs being there—

that is, he will not be cured—

An Alzheimer person is incurable, as are people who are schizophrenic, a manic depressive person, HIV positive people—

they are all incurable—

Public perceptions toward these characteristics—

as we all know—

vary. Certain characteristics are so stigmatized that the public views those people with these characteristics as being better off dead; that is, the quality of life is so low that no life at all is a preferable option.

The shift from terminal to incurable takes away the first safeguard against abuse—

of these laws. Further, in the same area, an alarming statistic is quoted by Dr Wolbring. He points out:

The British Medical Journal reported on 29 October 1994 that, “People in Britain are more likely to request euthanasia to avoid being a burden on their relatives than because they are in pain.”

This is even more so the case since the numbers have gone up. The push in both areas for the elderly and those with disabilities to stop being a burden is, in my view and the view of many in the disability rights area, an unintended but absolutely guaranteed consequence of our attempts to develop law in the area of voluntary euthanasia.

There is also some very good Australian writings in this area, and I would like to quote extensively from the writings of the late Associate Professor Christopher Newell AM, an amazing Tasmanian man who died in 2008. He was in a wheelchair and suffered throughout most of his life a number of illnesses and a lot of pain because of his disability. Professor Newell argues in an article called ‘Critical reflections on euthanasia and people with disability’:

Whatever one’s personal views—

the issues involved in—

so-called euthanasia cannot safely be legalised or even decriminalised.

That is his view, and it is a view shared very widely within the disability community.

Professor Newell was, if nothing else, an extremely persuasive and articulate advocate for the cause of disability rights. In fact, he was a well-known and famous educator. One of his books was called Better off Dead than Disabled, a sardonic reflection on the quality of education for children with disabilities, in which he goes through the many arguments that have been made on the topic of euthanasia. I must add here that everyone that I am aware of in this area has enormous sympathy for people who are suffering, and I hope to talk soon about what I see as the issues in that area.

Professor Newell, in his usual clear way, continues later in the article mentioned earlier:

… we live in a society which has oppressed people with disability via its very structures and norms, and where the dominant knowledge is that it is ‘better to be dead than disabled’. Indeed, unless one is presented with a positive social model which suggests that people with disabilities can achieve, and which challenges dominant stereotypes of the quality of life for people with disabilities, then inevitably it is seen as reasonable that people should either be allowed to end their lives, or have their lives ended for them, voluntarily or involuntary.

The reason I am speaking today is that the voices of disability advocates in this area are often not heard. Along with Professor Newell, I would argue that we must recognise that the calls for legalising medical killing for people who are considered terminally ill ignore the subjective nature of the judgement about the quality of life of people with terminal illness. Someone who is on a respirator, for instance, could be considered terminally ill; if you take the respirator away, they will die. There are also many practical problems, for people with diseases, that could kill them. Dr Newell makes the point that, under what was then the Northern Territory legislation—the very short-lived legislation—insulin-dependent diabetes could have been considered ‘terminal’ because without treatment it could cause death. That definition could have been applied.

It could be called fanciful or exaggerated to suggest that these are problems that would develop—I think that would probably be one of the last areas where we would see anything proposed—but it indicates the huge risk of unintended consequences of laws that do not respect the rights of the vulnerable in our community, the rights of people who are not seen to have the same status or eligibility for rights as the general population. Dr Newell quotes from research from the Netherlands:

… there has been a significant incidence of unrequested medical killing of aged people and younger people with disability—

in the Netherlands since the legislation there was introduced. This is research undertaken by disability advocates in Holland that has looked at how this has happened.

It is a creeping change that just comes on. Dr Newell, again in his very articulate, clear prose points out that he can understand that people would want to undertake euthanasia. It is a cry for help and an opening up of a dialogue, in his view—even to attempt suicide. He says:

It is a very human cry of despair and one which I have experienced myself in requesting death.

But he goes on to point out that it is as much about power relations, social constructions, and ableist and ageist values.

I would also like to look also at the work being done by Palliative Care Australia who are meeting in Canberra today and, this very day, revising their position statement on euthanasia. They make the point that in fact requests to die, euthanasia, are in many ways simply a result of a failure to provide good and adequate palliative care. That is certainly something that we must change and must work on to improve.

Scott Ludlam (WA, Australian Greens) Share this | Link to this | Hansard source

What we have seen so far this afternoon—and I congratulate Senator Brown on bringing this bill forward—is perhaps a better quality of debate than we are used to. There is something about bringing a conscience vote before the chamber that seems to bring out the best in people. I suppose is it is with a sense of irony that I am listening to Senator Boyce now put these quite measured arguments that I have not had an opportunity to hear before firsthand in this setting, and reflect on the fact that this debate cannot currently occur in the assemblies of the territories of this country. That is why we are here having this debate tonight. We hold ourselves competent to have this debate, as we do on many other subjects which are literally questions of life or death, and yet we do not believe that our colleagues in territory assemblies should have the same right to have that debate and exercise their views.

I have enjoyed and appreciated the contributions of all of my colleagues so far, particularly Senator Scullion and Senator Crossin, who spoke very passionately on behalf of their constituents in the Northern Territory. I will speak briefly tonight about how Senator Siewert and I, having done a lot of work in the Northern Territory, have found ourselves confronted frequently with exactly the same frustrations.

I will, however, call into question Senator Lundy’s contribution, which I must admit I found very difficult to understand. This is a debate that has been brewing in this chamber since 1996. Senator Brown, who can correct the record if I am wrong when he closes the debate, introduced a piece of legislation, this piece of legislation, in around 2007. That is several years that it has been lying on the Notice Paper. The Australian Greens—Senator Brown—wrote to Prime Minister Rudd in 2009. There was no reply. We notified the current Prime Minister—in fact, the current parliament and the whole country through the press more than a month ago—that this would be the first bill that we would bring forward. So I do not understand—if indeed there was implied criticism in Senator Lundy’s comments—how this was somehow an inappropriate use of the chamber’s time. I have absolutely no idea what was being referred to there, but I think in fact we have already seen the quality of the debate so far prove that wrong.

It is a very important to note that the effect of the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008 will be to repeal of the Euthanasia Laws Act 1997 which removed the right of the territories to legislate for voluntary euthanasia. The bill we debate here, as everybody has already noted, will not make voluntary euthanasia legal here or in the territories or anywhere else. It does not even seek to reinstate the NT’s Rights of the Terminally Ill Act, as Senator Brown outlined and the reasons for that, which was overturned by the federal government in 1997. For better or worse, those debates need to be had elsewhere. This bill will allow the Northern Territory legislature to have that debate over again at a time of its choosing in order to decide for itself once more if it chooses to bring that debate forward. Similarly, the bill will enable the ACT and Norfolk Island to have the same legal right as the states to determine their own laws for the peace, order and good government of the territories, including, surely, the right, if they choose, to legislate for voluntary euthanasia so that advocates for and against—as we have heard tonight—can make their case and stand up and speak up for the people who put them into the assemblies in the first place.

The Euthanasia Laws Act passed in this place in 1996 amended the Northern Territory (Self-Government) Act 1978, the Australian Capital Territory (Self-Government) Act 1988 and the Norfolk Island Act 1979 with quite specific regard to euthanasia, including the withdrawal or withholding of medical or surgical measures for prolonging the life of a patient. It also contained a clause that specifically prevented the Northern Territory from being able to enforce its Rights of the Terminally Ill Act, stating that it:

... has no force or effect as a law of the Territory.

What an awful abuse of federal executive power. We must not overrule the laws created through legitimate democratic processes that this parliament does not agree with simply because we can. The Chief Ministers of the ACT and the Northern Territory have both expressed frustration at the Commonwealth for removing their right to debate and determine their own laws and make their own way on this matter. Recently ACT Chief Minister Jon Stanhope said:

It’s for the people of the ACT to decide whether or not they will support their politicians in making these decisions on their behalf.

If this assembly chooses to remove all discrimination against gays and lesbians in relation to their relationships, and chooses to legislate for euthanasia that’s a decision for us.

The Euthanasia Laws Act is not the only instance of this abuse of federal power against the territories. In 2006, as my colleague Senator Hanson-Young well knows, the Commonwealth disallowed the Australian Capital Territory’s Civil Unions Act 2006 and then the Civil Partnerships Act, soon after in 2007. In what became an ugly battle of wills and jurisdiction, the ACT persisted and eventually passed the Civil Partnerships Act 2008 and then the Greens’ Civil Partnerships Amendment Act 2009, making the ACT the first territory in the country to formally legalise civil partnerships ceremonies for same-sex couples. Even then there was a sting in the tail of that legislation at the behest of the Commonwealth. It should never have come to such a battle. The Greens are working to challenge the executive’s ability to override the ACT with the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010, which is also currently before this parliament.

The Commonwealth retains the power to directly administer uranium mining and Aboriginal lands in the Northern Territory, powers which it does not possess with respect to the states, and powers which, I submit, have been frequently abused. We have subsequently seen the Commonwealth attempt to impose a radioactive waste dump on Aboriginal communities near Tennant Creek and, as my colleague Senator Siewert well knows, the infamous example of the Northern Territory intervention, using the implied constitutional weakness of the Northern Territory to override the environmental, social, economic and human rights of Australian citizens just because they happen to live in the Northern Territory.

These controversial and divisive acts were imposed by the Commonwealth without the support of the people of the territories—in fact, against their expressed opposition—expressed through their locally elected representatives, simply because they could. So of these abuses of Commonwealth executive power—overriding the self-government acts, which recognise and empower the territories to determine their own laws through a democratically elected assembly—we are seeing again tonight another example. I firmly hope that through this debate, whenever it is able to be concluded and put to a vote, we can, at least in this one instance, roll back some of that abuse of the Commonwealth’s constitutional power.

The debate on the bill currently before the parliament is not a debate on euthanasia; it is a debate about this fundamental inequality between states and territories. It will not legalise voluntary euthanasia; it will simply restore the rights of territorians to be able to legislate for euthanasia, just as the states can.

I note that my colleague and good friend, Robin Chapple MLC, recently brought on for debate in the parliament of Western Australia a bill that would have legalised, under very strict conditions, a form of voluntary euthanasia. He introduced it in May 2010. It was debated in September. To their credit, Premier Barnett and the opposition ALP leader in Western Australia, allowed a conscience vote for all sides of parliament, as is entirely appropriate. The vote in this case, regrettably, was lost, but at least the debate was had.

Voluntary euthanasia is currently legal in Switzerland, the Netherlands, Belgium and also in the states of Oregon and Washington in the United States. In Australia, we know that there is overwhelming support for voluntary euthanasia. A Newspoll survey in February 2007 found that 80 per cent of Australians agreed with the statement that, for a hopelessly ill patient experiencing unrelievable suffering with absolutely no chance of recovering, a doctor should be allowed to provide a lethal dose if requested by the patient. Fourteen per cent disagreed; six per cent could not say. That debate can be had in this chamber; it cannot be had in the territories. In September 2010, Auspoll asked 1,500 respondents two questions and came up with these results: 78 per cent of Australians agreed that the territory governments should have the same power to make euthanasia laws as state governments. Seventy-six per cent of Australians—more than three-quarters—agreed that people with a terminal illness should legally be able to choose euthanasia.

More than the polls, more than the intellectual arguments that have gone back and forth around this issue for many, many years, this is ultimately a human and a very personal issue. Shavda, who died of a rare and incurable cancer and left us nine years ago tonight, had often said: ‘You wouldn’t let a dog suffer the way we do our loved ones with cancer or a terminal illness.’ A long-time advocate of voluntary euthanasia, Shavda wanted the right to be able to end her own life before the pain got too much to bear. She wanted to be able to say, ‘I’ve had enough—it’s time to go.’ But without the means or legal protection available, this is a very difficult and perilous task, for her as well as for her family, her doctor and others around her.

This is not something that many among us would choose. But for those suffering a terminal illness, who would prefer to die with dignity before the suffering simply gets too much to bear, it is an act of humane kindness and compassion. It takes great strength to face such a decision. This is an important debate. It is one that is very much worth having. But this is not actually the question before us today. The question before us, as others have said, is whether the territories should have the right to debate this issue themselves. Some might find the idea of the law interfering with an individual’s choice to end their own life odd. But the only thing more peculiar is that one parliament would prevent another parliament, duly elected, from being able to have that debate itself. I commend this bill to the Senate. Enough for today.

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

It is very interesting to have the opportunity to be part of this debate on the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008. I think we have a challenge before us. For those who might have just begun listening to the parliamentary broadcast, we are here debating Senator Bob Brown’s bill which seeks to recognise the rights of the legislative assemblies of the Australian Capital Territory, the Northern Territory and Norfolk Island to make laws for the peace, order and good government of their territories, including the right to legislate for voluntary euthanasia and to repeal the Euthanasia Laws Act 1997, which removed the right of the territories to legislate for voluntary euthanasia.

Senator Boyce, in her contribution to this debate, asked, ‘Would we be having the same level of interest if this was a debate about reinstating territory rights for something like the GST payments or minerals or something different from this?’ In fact, what we have in front of us right now is a tactic by the Greens to bring a focus onto the issue of euthanasia by coupling it with this important debate about territories’ rights and their restoration. This really frustrates me, because it is quite an unfair strategy, I have to say to Senator Brown.

If this was really a euthanasia debate, we would have negotiated something that was like the debate that we had on Afghanistan. We would not be here in a debate which has been coupled up, in this complicated, tricky way, which is trying to drive a wedge through this issue. Of course we listened to the contributions from the territory senators, and of course they are here as passionate advocates of the citizens that they represent. Of course they are here as advocates for the rights of our territories, their good governance and the decisions that they want to be able to make. But, by having the two issues linked together, suddenly we have something highly contentious—and very media friendly. Certainly there will be a lot of interest from the media about this. So something that is purported to be about territory rights we all know is, in fact, about something very different.

To remind everyone: the Northern Territory legislature passed that first euthanasia law, the rights of the terminally ill legislation, in 1995 and then in 1997 the Commonwealth parliament overrode the Territory law with its own Euthanasia Laws Act, which did not repeal the Territory legislation but rendered it inoperative. Therefore, this tactic today is about restoring the rights of the Northern Territory, Norfolk Island and the Australian Capital Territory.

Senator Ludlam reminded us about the process that happened after that. While ever the Howard government had control of the Senate there was no way that we were actually going to be able to revisit this issue. As soon as the Howard government lost control of the Senate after the new Senate came into being in 2008, Senator Brown attempted to reintroduce his Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008. Those of us who were here at the time remember that it was actually a pretty dodgy piece of legislation. It was described by many as ‘ham-fisted’, and even the Northern Territory government opposed the bill. The Northern Territory Chief Minister at the time said he found it very high-handed and arrogant of Senator Bob Brown to be introducing legislation into the federal parliament that affected the Northern Territory without having had consultation at all with the Territory government or the people of the Northern Territory.

In fact, at the time, if the bill had been passed, it would have had the effect of resuming the operation of the original 1995 bill, which by then even Dr Philip Nitschke had conceded in an article was ‘defective legislation’. The Northern Territory law requires a psychiatrist to have confirmed that the patient is not suffering from a treatable clinical depression in respect of the illness before a medical practitioner is allowed to administer the lethal injection. Dr Nitschke and his co-author stated at the time that ‘confirmation was not easy since patients perceived such a mandatory assessment as a hurdle to overcome’. Philip Nitschke understood that every patient held that view. To what extent was the psychiatrist trusted with important data and able to build an appropriate alliance that permitted a genuine understanding of the patient’s plight? At the time, we were very concerned to find out that Dr Nitschke had personally paid the fee for the psychiatric assessment of one of the patients that he euthanised. So you can see that this was a very contentious issue in 1995, it was a very contentious issue in 2008 and it continues to be a very contentious issue now.

Of course, we have heard the arguments. The champion of territory rights, the ACT Chief Minister Jon Stanhope, says that the debate is about the ACT’s right to make its own laws and not the rights and wrongs of euthanasia. So why on earth has Senator Brown taken the position of locking these two debates together, which makes it very frustrating not only for of us here in this chamber but also for those outside the chamber who are listening and trying to understand what this is all about. I am getting hundreds of emails every day that basically say: don’t support Senator Brown’s call to reintroduce euthanasia. So it is inextricably linked and, regardless of the technical wording and the development of this piece of legislation, in the hearts and minds of Australians everywhere the issue is not about territory rights. Perhaps in the Northern Territory and the ACT, people see the dual argument. But most people who understand this debate know it is about euthanasia. And that is why we need to have the debate here today. We need to understand that, here in the Commonwealth parliament, we have an overarching social duty and a responsibility to commit to the public interest and ensure that the common good is served.

We have heard from several senators that Chief Minister Paul Henderson says the Northern Territory should have the right to make its own legislation without interference from the federal government. The quote we have heard used from Paul Henderson is that ‘voluntary euthanasia is not on my agenda’. That is fine, of course, but we know that in a referendum in 1998 the Northern Territory rejected becoming a state. So you cannot have your bread and have it buttered too; you cannot have it both ways. They rejected the rights of full self-government, including on this issue.

Let us go to another important challenge. I listened to Senator Ludlam’s thoughtful contribution, and I appreciated his point that this is an opportunity to listen to a very thoughtful debate around these issues. But he said something about our right to make laws ‘simply because we can’. I think there is a real issue in that statement alone: do we even have the right to make a law about euthanasia? As Senator Barnett would know, a couple of centuries ago there was a lively debate about slavery. There were debates in the United States about whether some states should be able to make a law on whether they would have slave or free territories. I think it was Abraham Lincoln who argued against the notion that if a community wants slavery they have the right to have it. The counterpoint of that is that there is nothing wrong with slavery. If you admit that there is something wrong with it then logically you cannot say that anyone has a right to do wrong. I think that is the conundrum we are confronted with here: if laws permitting euthanasia are always wrong, can there really be a right to make such a law in the first place? This goes to the challenge we have in this very, very difficult debate.

Senator Boyce made a really important point about definitions, the softening of the language—euthanasia, homicide, suicide, assisted suicide and death with dignity. This is a softening of the language about confronting euthanasia. There is a kind of continuum along the spectrum of assisted suicide—which is part of what Philip Nitschke was trying to do—for those who in a very coherent state of mind make a decision like that. And then you have the very significant contribution of Senator Boyce to the debate: the discrimination that we are seeing more and more, which she described as an issue of ageism and ableism—those who are frail, who are elderly, who feel that they are a burden on their families and who succumb to the kind of pressure being placed on them that they are a burden on their families. This is really a slippery slope—the decision, the discussion and the evidence that was provided by Senator Boyce about the ableism, the treatment of the disabled and the expectation that you can make those kinds of decisions. Where did we even start to have this kind of debate? Any kind of mercy killing or aid in dying, even in what seems to be the purest and most compassionate of intentions, contravenes the fundamental principle that human life has value, that human life is sacred from conception to natural death.

I am happy to wear my Catholic beliefs on my sleeve, having just been to Rome and witnessed the wonderful canonisation of Mary MacKillop. I met the wonderful woman whose experience was a life of miracles performed on her at a desperate situation in her own health. She was expected to die. She made an extraordinary recovery and was there. I met the young man beaten to a pulp in Bondi, the young Irishman whose parents flew here and made the decision to take him home to die. Yet there he was standing in front of us, telling us that he thanked God that no-one had turned off his ventilator. He is a bright and dynamic young man. Let us think about what it is that we are trying to focus on when we think about the issue of human dignity.

Let us think about the question of whether legislating to enable euthanasia inevitably leads to a situation where some individuals will risk having their deaths hastened against their will. Senator Boyce went to that issue. I think once a state or territory accepts killing upon demand in certain situations we are opening the door to justifying killing a human being under some intolerable conditions. You have to think about this. There is a possibility of developing broader criteria and making euthanasia more widespread. It is not scaremongering, although lots of people would claim that it is—it is a fact. Some people who promote assisted dying want to go beyond having mercy killings for people close to death, to having assisted dying for the very disabled, for the ill and even, in the case of Dignitas in Switzerland, for the depressed. Take the case of the Netherlands, where euthanasia and assisted suicide were legislated. At first it was only available to the terminally ill. Since 1998, however, the regulations have been used to permit access to euthanasia and assisted suicide to persons who are not terminally ill but suffer hopelessly from chronic physical or even psychological illness.

Can you listen to what is happening here? This effectively sanctions suicide as a response to personal hardship. It gives a green light to hopelessness and social pessimism. It is important that we as a government are aware of and guard against the growth and spread of social pessimism across Australia, guard against a shift away from improving human life towards a focus on bringing to an end damaged or impaired human life and guard against creating a climate that will undermine the relationship between elderly or dependent relatives and their families, allowing social pressures be exerted on very vulnerable people to volunteer for euthanasia in order not to be a burden.

Some might say that is a scenario too extreme, but I have to say the anti-euthanasia arguments often are extreme. I have heard some of them: a cost-effective way of dealing with the problems of an ageing demographic or a water shortage. We might laugh, but before dismissing those kinds of arguments completely we need to realise that they demonstrate a kind of thinking that moves away from judging human life by its internal worth or its moral meaning towards judging it by lesser measures, such as financial implications or environmental implications. Where there is life there is hope and we cannot be certain that a person is going to die, and I gave you the two examples of those fine healthy people and the many more people that I met while I was in Rome.

Apart from the misdiagnoses and the rapid pace of advances in medical science, there are cases where patients confound doctors by getting better or living longer and more comfortably than was expected. This would confound those who do not believe in miracles. Think about a person living with AIDS. In the past, someone like that might have decided to end his life and in fact would have continued to live a long time. For those people who are diagnosed with AIDS now, they have a prognosis of enjoying a good quality of life because of the development of new treatments for that disease.

Senator Boyce made a very important point about the issue of palliative care and the fact that Palliative Care Australia is meeting today to update its position on euthanasia. Palliative care programs focus on reducing the suffering of terminally ill patients. There is great evidence that better pain control and improvement of the psychosocial situation can alleviate a large proportion of the suffering of the terminally ill. This is where we need to be putting our efforts and this is where we need to be putting our resources.

The pros and cons of allowing individual states and territories to decide on their own euthanasia legislation all actually come back to our national cultural values and practices. It is important—and obvious—that these values and practices change over time, but it is also very important that in our role as federal law-makers we do not jump the gun and decide that something is or is not acceptable just because it is fashionable. We have to take into account what our constituents are saying to us, and in my case this has been overwhelmingly an urge to reject Senator Brown’s bill. But we also have to keep informed about the latest research about the practice of euthanasia and its effects. Our task is not easy, because there is no way to reach a consensus.

The debate about voluntary euthanasia has been going on for years, for centuries. In ancient Greece, Hippocrates was against it while Plato and Pythagoras supported it. Today doctors sign the Hippocratic oath, but while the AMA opposes the introduction of voluntary euthanasia legislation the Doctors Reform Society supports it. Our challenge remains the same as theirs: to think about society’s obligations to those who are coping with terminal illness and to weigh up the things that are not easily commensurable. There is the obligation to provide the means for diminishing pain and suffering, the obligation to provide an easier access to death for those who wish for it and the obligation to uphold the human rights of the most disadvantaged members of our society—the old, the poor, the disabled and the infirm. As I said, miracles happen in nature and, even if you are not a believer, where there is life there is hope.

I would like to finish by quoting from an email that I received this afternoon, a letter from Dr Gawler from the Royal Darwin Hospital. He says:

Dear Parliamentarian,

As a Senior Surgeon at the Royal Darwin Hospital, I must say that I see very grave dangers in making it possible to pass euthanasia legislation in the Territories.

Many colleagues … have told me that they believe that legalised euthanasia would be very disturbing to Indigenous patients who already find it difficult to trust Medical and Nursing Staff in relation to end of life issues. If Indigenous people perceive the Medical Staff as having the power to terminate their lives, the resultant fear and distress will prevent many Indigenous people from seeking or accepting medical treatment.

Michael Forshaw (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I am sorry, Senator Stephens, but your time has expired.

Ursula Stephens (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I seek leave to incorporate the remainder of the letter.

Leave granted.

The document read as follows—

There are insurmountable problems because of Indigenous Cultural and Linguistic differences in ensuring (without a shadow of doubt) that informed consent has truly been given for euthanasia.

Indigenous people are the sickest and the most frequent users of Health Services in the Northern Territory. Therefore this proposed legislation puts at risk the lives of the most vulnerable members of the Territory’s population.

Please oppose this inadvisable and inappropriate legislation.

Yours faithfully,

(Dr) David M Gawler MB BS FRACS FRCS(Eng) FRCS(Glasg) FICS

Christopher Back (WA, Liberal Party) Share this | Link to this | Hansard source

I rise to contribute to the debate on the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010, which is in front of the chamber. I really see this as an opportunity lost. As an ardent federalist from Western Australia, I very much stand up for the rights of the states and territories. Anybody who hears me speak in this chamber, particularly when it comes to matters associated with royalties, would know that I am deeply offended when others try to put to one side constitutional rights in that case.

I will share that, in this particular instance, what is difficult for me is the reference to voluntary euthanasia legislation. I will address that. It is of concern to me that Senator Bob Brown has elected to include the term ‘voluntary euthanasia legislation’ in a bill that I believe could have simply been entitled the ‘restoring territory rights bill’. It is also of concern to me why, with four territory senators in this place, they have not been the ones to bring this legislation forward. However, it is, I believe, as has been said by others, a question relating to euthanasia. I have also made it my business to inquire into the views of those in the territories. The words of the previous speaker will in fact be incorporated into Hansard because I will be quoting from them too.

Being a veterinarian, I come to this debate, unusually, from the position of a medically related professional. It is the case that I have, over time, had occasion to euthanase many of my patients. Even in the animal world this process is extremely difficult. There have been many occasions when I have been disturbed by the rationale offered to me by those who are charged with the responsibility for decisions on the euthanasia of those patients. There is one thing I can say to you that is indisputable—that is that the action, once completed, cannot be reversed. It is this experience and that of my own family circumstance—and I am sure there are many others in this place who also have been touched and affected by the question—which informs my opinion that it is morally and ethically undesirable to engage in legislation which will take human life by medical means. Any law permitting this must inevitably be subject to unpredictable abuse, as indeed I believe we have seen in the instances from overseas which have been quoted in this place.

I turn first, then, to the issue of euthanasia based on medical grounds, particularly related to terminal illness. When faced with a terminal illness, as we know, the fear of pain is often overwhelming. But the adoption of high standards of palliative care is the most rational, most effective and most humane action in answering the call against promoting euthanasia for the terminally ill. It is true that this has not always been the case. I empathise with those who relate stories of sitting beside terminally ill loved ones in extreme pain in the hours before their demise. I too have experienced that. But medicine has improved significantly in this country and, again, my own observation confirms this. Competent counselling should always confirm the value of palliative care and that treatment will usually lead to a dignified end. Once this is understood, many people will choose to live and to enjoy as far as possible the time that is left to them with family and friends.

Pain can be managed and/or controlled, in the vast majority of instances, to allow a person to continue functioning. There is very little pain which cannot be either totally eliminated or brought to a point where the patient can in fact withstand a threshold that is acceptable to them. Any competent doctor is able to achieve this. In the very few instances of terminally ill people who are not able to be assisted in this way then heavy sedation or even light anaesthesia is possible. But, as we know, suffering is not just physical. It can be psychological, and these conditions can be managed.

The National Health and Medical Research Council in its paper on palliative care in 2009 stated:

Palliative care needs to commence as soon as a patient is diagnosed with a terminal condition. This could be 10 years before they actually die.

The medical profession feels deeply that it has not been adequately consulted on all aspects of this debate, particularly on those that impact squarely upon them: adequacy of palliative care, the ‘right to die’ argument, their own legal rights and obligations, and their role in administering a fatal dose. In Australia there is the common-law right of every person to refuse any or all medical treatment that may sustain life, and this is not clearly understood by patients and perhaps in the past by doctors.

I turn to the proposed bill. As the previous speaker said, I actually communicated at length this morning with a senior surgeon from Darwin, Dr David Gawler. I will not repeat those words used by Senator Stephens, except to say that the point he made to me was:

Importantly, if Indigenous people think medical staff have the power to terminate lives, the fear and distress will prevent many Aboriginal people from seeking and accepting medical treatment.

He went on to tell me that, bearing in mind Indigenous cultural and linguistic differences, there may be ‘insurmountable problems’ in ensuring in each and every case that they have fully informed and have given consent for euthanasia. He makes the point that Aboriginal people do not enjoy good standards of health and are most frequent users of health services. If I can quote these figures, the Northern Territory has the smallest population of the Australian states and territories, the highest proportion of Aborigines within that—27 per cent was the last figure I saw—but almost 50 per cent of deaths in the Northern Territory are of Aboriginal people.

Dr Gawler is of the belief the proposed legislation puts at risk the most vulnerable members of the population, and that is Aboriginal people in the Territory. It is interesting that in a paper in 1997 in the Lancet, John Collins and Frank Brennan agreed very much with Dr Gawler on the adverse effect on Aboriginal people in the Northern Territory of euthanasia. They report that the traditional Aboriginal viewpoint prohibiting euthanasia was rejected by the Northern Territory parliament as an argument against the act at a time of heightened concern around Australia about Aboriginal self-determination and health. The healthcare systems for Aboriginal patients are part of a unique complex which includes description of wellbeing, cause of illness, healing practices and the prerequisite social behaviours that a person experiences. They said at the time that the Northern Australian Aboriginal Legal Service admitted that euthanasia and suicide were not well known or understood in Aboriginal culture and that the most non-English-speaking Aborigines in the Territory were being denied their opportunity to make informed comment or response to the proposed legislation at that time due to a lack of interpreters.

It was interesting to note the similarity between the concerns expressed by Collins and Brennan in 1997 and those of Dr Gawler to me this morning. He then went on to talk about intervention by outside agents under Aboriginal law and the possible concern associated with payback. Equally interesting was the note from the New York state task force on life and the law in the United States, giving a warning of the potential ill effects of euthanasia legislation on marginalised groups, in which they said that they:

… unanimously concluded the dangers of such a dramatic change in public policy far outweigh any possible benefits and that the risks would be most severe for those who are elderly, poor, socially disadvantaged or without access to good medical care.

I support the position taken by Palliative Care Australia calling for the development of social policy affirming death to be part of life; support for the dying, their family and their carers; accepting quality care at the end of life is a basic human right; for government to allocate sufficient resources to ensure this; for the promotion of community discussion of death and dying through ongoing communication, for the development of initiatives designed to increase community and health practitioner capacity; and for the rollout of national guidelines to promote good practice.

I turn to the concept of euthanasia for non-medical reasons, often referred to as the ‘tired of life’ philosophy. Of course this, then, is not a medical issue—there is no need for the medical profession to be involved. In fact, it would be possible then to license lawyers, plumbers or even veterinarians to perform euthanasia in a non-medical context. It draws attention to the possibility of uncontrolled and unexpected applications of the principle of so-called lawful killing and it is presented quite often as the principle of self-determination. I recommend to the Senate a book by Dr Brian Pollard, a now retired Sydney anaesthetist. His book is titled Should we kill the dying? In it he states that self-determination is sometimes spoken of, firstly, as though it were the most dominant of the principles of care and, secondly, as though it would guarantee higher levels of patient satisfaction when people were given every opportunity to say what they wanted. Dr Pollard contends that neither of these is true. He says as a principle it is subject to the restraints of competing legitimate rights of others, either as individuals or society as a whole. He says that more important is the fact of patients who sometimes choose, with or without advice, courses of action which eventually prove to have unwelcome results, ranging from being merely unpleasant to the disastrous. I come back to the comment I made at the commencement of this discussion, and that is that, once enacted, euthanasia certainly cannot be reversed.

Legal and ethical codes hold that the rights and therefore the power to take the life of a dying person do not lie with other persons and that therefore euthanasia is unethical. And it is not difficult, then, to move towards expanded applications, which might or might not be resisted. Indeed, there could be compelling economic arguments, some of which we have heard here this afternoon. I give one as an example: escalating health costs. It was put to me in a seminar not long ago that 75 per cent of the Australian health budget is actually spent on people who will be dead 12 months after the expenditure has been exacted on them. How does this fact play out in the context of the euthanasia debate, given the rapidly increasing contribution of the health budget to our overall budget? I turn, secondly, to the high cost of funding, maintaining and supporting intensive care units and of older members of families becoming a burden both on family and society.

When the legal process is incapable of determining precisely either the motive of the one to do the killing or the capacity of the person asking to be killed, it is saying that the law is powerless to detect or to prevent abuse. This I believe to be an issue of enormous concern. Some of those who advocate euthanasia do not hide the fact that their eventual aim is to extend it further than the terminally ill—once the public has been conditioned to accept killing—as an acceptable mode of dealing with this social problem. We are all aware of the risk that an elderly member of a family might elect for euthanasia on the basis that they feel they are a burden to their family. And it is plausible, at least in some instances, that family members might do nothing to dissuade that elderly member from this apprehension, whatever might be their motive.

I turn to the potential for abuse. We see this very instance in Holland, where, from the 1990s through to the present, the government of that country has continually reviewed the legislation surrounding euthanasia and has continually shifted the goalposts and the basis of these reviews. More and more people are accessing euthanasia for reasons that are not medical in their origins. Indeed, many members of the medical profession in such countries have come to see it as another useful tool in their treatment armoury. The law is being applied, for example, to people without their consent—perhaps those who are unconscious or in a coma. It is obvious that an unconscious person or one in a coma can neither give nor deny their permission.

Ilora Finlay, from the House of Lords in the United Kingdom, wrote in the Lancet:

For example, in the Netherlands there is campaigning for euthanasia to be allowed for people with dementia and for a so-called suicide pill to be available for those who are “tired of life” …

She notes:

… in the short space of time since the Dutch 2002 Euthanasia Act was passed there has been the so-called Groningen Protocol governing the euthanasia of infants.

I find, and I am sure the vast majority of Australians would find, such a proposition entirely repugnant and one that should be absolutely and utterly rejected by Australian society.

Laws may be constructed to allow only for the euthanasia of terminally ill patients under certain carefully controlled circumstances. The intent of those seeking and those constructing that legislation may well want it to go no further. However, as we have seen in overseas experiences—Holland has been mentioned, also Switzerland, Belgium and others—a person can bring a claim of discrimination or denial of natural justice in their personal circumstances, based on an existing law which was constructed only for the terminally ill. These limitations have been consistently overturned under court challenges, on discrimination and other grounds. We have seen evidence of this in countries like Holland and Belgium where euthanasia has been legal for several years. An example presented to me recently was the agreed euthanasia of a 12-year-old boy in Holland. I do not know the circumstances, but I would go a long way on a hot day to be convinced of the validity of euthanasing a 12-year-old boy.

I return to the comments of Dr Pollard, the now retired Sydney anaesthetist and a person who had much experience in this area. Dr Pollard suggests that the supporters of euthanasia frequently quote Holland as a country to be copied because voluntary euthanasia is actively practised, but rarely is one told why it would be beneficial to do so. The benefit in being directly killed, even when one may be in distress, is not self-evident, Dr Pollard contends.

So where is the legal line and who draws it? A case of this type would simply open a Pandora’s box. Euthanasia would become accepted in instances which the lawmakers never proposed it for, and the community would inevitably suffer as a result. Opportunities would abound. A relative for whom one has a duty of care is disabled, unconscious or in a coma; it may be more convenient for the person holding power of attorney for that disabled relative to have them euthanased rather than keep them alive. It is not a long bow to draw to inquire whether access to the estate of the now deceased relative might have been at least in part a motive for the decision taken.

I find myself in that very position as the person who holds power of attorney and the carer for my aged mother, who turns 95 this coming week. She is, and has been for the last nine years, a stroke victim in a wheelchair in a nursing home—a woman of enormous dignity, tremendous independence and, I must say, some dominance, a trait which did not find its way to me or my brothers! But my mother certainly does not wish to be with us. While she did have great mental acuity, she now does not, and that is a circumstance in which she herself, being very Catholic, would pray on a nightly basis not to wake up the next morning. However, that circumstance is not one she is able to exact. I for one would not like to be placed in the position of having to make that decision on her behalf.

I conclude by going back to where we started. If this were a bill dealing simply with the rights of the territories to consider legislation in the same way that the states can do now, it would have my support. But I cannot because it has been linked to the question of voluntary euthanasia, which is in fact the issue that has dominated the attention of the community. That to me is a disappointment and, therefore, the bill will not have my support.

Louise Pratt (WA, Australian Labor Party) Share this | Link to this | Hansard source

This evening I rise to speak in favour of the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010. I am in favour of well-crafted legislation that gives Australians the right to die with dignity. I will have more to say later on this point. However, for me, the primary reason for supporting this legislation does not relate to the merits of voluntary euthanasia per se. Rather, I support this bill because I believe in our democracy. More particularly, I believe in the democratic rights of Australians and that they should not be overridden merely because they happen to live in an Australian territory and not in an Australian state.

It should be emphasised that the purpose of this bill is clear. It is to restore to Territorians a right that was taken away from them by this parliament more than a decade ago when this parliament chose to pass the Euthanasia Laws Bill 1997. That is the right to elect an assembly with the power to legislate for voluntary euthanasia. I would like to emphasise that this bill does not reinstate the Northern Territory Rights of the Terminally Ill Act 1995; it merely gives the territories the power to enact legislation for voluntary euthanasia if they so choose.

The Northern Territory was granted self-government in 1978 and the ACT became self-governing in 1988. More than 228,000 Australians now live in the Northern Territory and 357,000 live in the ACT. That is significantly more than half a million Australians whose democratic rights are directly affected by this bill. So the question is: should these more than half a million Australians have the same rights in relation to legislation for voluntary euthanasia as other Australians who live in our six states? As Senator Ludlam highlighted, Western Australia has recently had the opportunity to debate such laws. There is no doubt that state legislatures have the power to enact legislation on this issue. And there is now no doubt that but for the Euthanasia Laws Act 1997 the territories’ legislatures would also have this power.

By taking this power away from Territorians, this parliament said to Australian citizens in the territories: ‘You are second-class citizens. You, through your duly constituted local legislature, are less capable of governing yourselves than the residents of the six Australian states. Your legislature cannot be trusted to act appropriately and responsibly, unlike the state legislatures.’

I am not questioning this parliament’s right to take away the territories’ rights in this fashion. But having a power does not justify its use. In this case, our democratic conventions are clearly against taking back powers granted to subordinate legislatures in this fashion.

As a developing democracy, Australia benefited from these conventions. The British parliament had the power to overturn this parliament’s laws until 1942. It had the power to overturn laws passed by the states until 1986. Not only did the British parliament not exercise these powers but it specifically rejected the option of doing so, noting in 1942:

... the long standing constitutional convention that the Parliament would not interfere in the affairs of the Dominion, self-governing State or Colony save at the request of the Government of that Dominion ...

As a West Australian, I can say the issue at stake in that instance was far from trivial. It concerned a request from my home state to secede from the Federation. I, for one, am glad that the imperial parliament restrained from interfering in colonial affairs on that occasion and I only wish that Canberra had shown similar restraint in relation to its self-governing territories in 1997. Canberra’s interference was contrary to our democratic traditions and our conventions. It left our self-governing territories in the unenviable position of not knowing when such conventions would be breached next. To this day, Australian citizens in the territories are left in the situation of not knowing whether their self-government is a reality or whether their self-government is merely a token privilege that may be withdrawn at any time.

The argument that euthanasia is highly controversial and morally charged does not set limits on this parliament’s potential to interfere in territory affairs. There are many such issues that might fall under such an umbrella. Some of those include illegal drugs, the criminalisation of homosexuality, the rights of same-sex couples, the recognition of same-sex relationships, the regulation of artificial conception procedures, surrogacy arrangements, stem cell research, adoption laws, laws relating to pornography and prostitution, and the criminalisation of abortion.

Similarly, the characterisation of euthanasia as a life-and-death issue also fails to clearly limit this parliament’s field of action in relation to territory laws. Abortion is also seen by many as a life-and-death issue, as are artificial conception procedures and stem cell research. There are other issues that could potentially be characterised in this manner. They also include criminal laws relating to murder and all forms of manslaughter, including industrial manslaughter and infanticide. There is a wide range of morally controversial life-and-death issues that illustrate just how dangerous this precedent, which was set in 1997, is when this parliament chose to interfere with the territories’ powers of self-government. This precedent was unpredictable, unjust and arbitrary interference.

The sorry reality is that by passing the Euthanasia Laws Bill 1997 the parliament at that point signalled to Australian citizens in the territories that it was prepared to subject their rights to self-government to the political imperatives of the day, for in this instance a morally controversial matter or life-and-death issue are merely pseudonyms for politically contentious legislation.

What Territorians found out in 1997 was that the Australian parliament was prepared to arbitrarily interfere in their affairs if their legislature passed laws that were sufficiently politically contentious. The plain truth is that this parliament’s action made a mockery of the Northern Territory’s status of self-government. It instituted a Clayton’s self-government for the territories, self-government in name only, form and no substance. It matters little, I think, that this parliament has rarely chosen to exercise such powers. It took nearly 20 years before this parliament decided to curtail the territories’ powers of self-government. But now that precedent has been set, Territorians can never rest easy on this score until this parliament restores their rights to self-government in full.

So I hope I have been able to demonstrate to you why I see this bill primarily through the prism of territory rights or, more specifically, as a matter which is of crucial significance to the democratic rights of Australian citizens in the territories. I do accept, however, that there could be instances in which a territory government passed legislation that was so objectionable that it brought the whole matter of a territory’s self-government and its capacity for self-government into question. Such legislation would have to be way outside existing local or international community standards. In such a situation, I would argue, we would question whether the territory concerned should have self-government at all, and not simply whether the legislation itself should stand.

So I think that it is telling that this question never arose in 1997. Nobody ever suggested that the passage of euthanasia legislation was evidence that the Northern Territory itself was unfit for self-government. Such an argument would have been unsustainable, because legislation for voluntary euthanasia in clearly prescribed circumstances is not extreme in the sense of being way outside existing local or international community standards. There may be a minority of people in our community who wish that voluntary euthanasia legislation was widely regarded as extreme in civilised communities, but the simple fact is that this is not the case. As Senator Bob Brown rightly pointed out in his second reading speech on the bill before us, every opinion poll conducted over the last two decades has shown that approximately three-quarters of Australians support the concept of voluntary euthanasia, so voluntary euthanasia legislation can hardly be said to be extreme in terms of Australian community standards. As Senator Brown pointed out, a number of established democracies on the international stage also have laws which give their citizens the right to die with dignity if they so choose. These democracies include Israel, the Netherlands, Belgium and Switzerland, as well as the US state of Oregon. The existence of these laws has not brought the wrath of the international community onto the countries concerned. Yes, in having such laws, these countries are in a minority amongst established democracies, but the civilised world has not condemned, and does not condemn, them for having such laws. The reason for this is obvious. Such laws may be controversial. They may be morally repugnant to significant numbers of people. But they are simply not regarded by the international community as a whole as outside the standards of civilised communities.

While I do not regard this debate as primarily being on the merits of euthanasia legislation, I do not wish to be disingenuous about my own views on this very important question. Personally, as a legislator, I am prepared to consider laws that would allow, through proper prescribed processes in specific circumstances, for the capacity of people with a terminal illness or condition to access a dignified death. The citizens of the Northern Territory who are concerned about their own circumstances should have the right to urge their parliamentarians to consider their circumstances. I do believe that in this country we must talk more about dying. We must invest more in good palliative care in this country. However, even with the very best care, for some people there is pain and other symptoms that simply cannot be borne and that people would prefer not to bear. Here in Australia we should invest more in people’s capacity to have a good death. More often than not such a death should not in any way need access to legalised voluntary euthanasia. As a community, I believe we need to talk more about dying to support people’s capacity to confront—as we all must at some point—the circumstances of our death. There is a need to focus on bringing together the medical, social and spiritual support that people need. I am a member of Palliative Care Western Australia and this is something that I firmly believe. Certainly, professionals in palliative care would prefer us to pay more attention to the medical, social and spiritual aspects of dying, and I think that is the debate that much of Australia would prefer us to be having. But I do recognise that there are circumstances in which voluntary euthanasia might be contemplated, and they are certainly ones which I might personally contemplate.

Nevertheless, I do not believe that one needs to support voluntary euthanasia to support this bill. It is primarily a matter of Territorians’ democratic rights. It is about their right to elect a government with the same powers as state governments to make laws for the benefit of their people and in accordance with their local community standards. So this parliament’s decision in 1997 undermined those rights. This parliament undermined those rights in a manner that was arbitrary and unjust. The passage of the euthanasia legislation was not a sufficient justification for abrogating Territorians’ right to self-government—not when the majority of Australians support the concept of euthanasia and not when the international community does not believe such laws warrant our condemnation.

Debate interrupted.