Jenny McAllister (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I rise today because I believe that we all have the right to die with dignity. There are no easy decisions at the end of life, and they are decisions that no-one makes lightly. They are the most personal of decisions. I want to be clear from the outset, I support legislative reform to enable voluntary assisted dying under certain circumstances.

When terminal illness has already taken away so much from someone, I don't believe that it's our place to then take away their ability to choose their final moments. This bill does not ask us to consider how best to proceed with such a reform, nor does it commit this parliament to such a reform. This bill merely asks us to remove the prohibitions introduced in the nineties which prevent the ACT and the Northern Territory from undertaking these reforms. I support the rights of the territories in this regard. I note that debates about voluntary assisted dying have taken place in a number of state jurisdictions, with varying outcomes, and I see no reason to deny the territories the right to conduct the same debate. Nonetheless, I wish to place on record some views about voluntary assisted dying.

All of us have heard heartbreaking stories about people whose final decisions have been denied to them. These stories are powerful and they speak for themselves. They form the basis for my conviction that voluntary assisted dying ought to be available to those who truly suffer and for whom there is no meaningful pathway to ease suffering as they approach death. In my own life I've been close to those who've suffered through terminal illness over long periods of time. Both of my grandmothers passed away after long struggles with dementia. I don't know how either of them viewed their choices as they struggled with this bitter disease, but these experiences have certainly shaped my own views about the end of life and the way that we support those who are dying.

A far greater range of choices needs to be available to those facing death, and I do not restrict my remarks to voluntary assisted dying. Indeed, I think it's essential that we view this as part of a spectrum of end-of-life choices. People should have a right to choose how they spend their final moments, but I also think that people should have the right to choose how to spend their final months. In order for this to be a real and meaningful choice we need to make palliative and at-home care available, affordable and accessible, and at the moment it really isn't. Australians are not spending their final days where or how they wish. Our intentions are clear. Surveys show that around 70 per cent of Australians want to die at home—however, just under 15 per cent of us will get to do that. It is one of the lowest rates in the OECD. Instead, half of Australians will die in hospitals, with another third dying in aged-care facilities.

It doesn't have to be this way. These deaths are not unexpected. Somewhere in the region of 150,000 Australians die every year, and most of these people are between the ages of 75 and 95. Their deaths come often after a marked period of physical and mental decline. It is only the precise timing of these deaths that is unpredictable. When death is robbed of the element of surprise, we have the chance to choose how to meet it, and we should give people the opportunity to make these decisions. This means listening with empathy. It means having honest conversations with people who are facing the end of their lives about what it is that they want.

I know that many health professionals already navigate this very difficult terrain with sensitivity and with empathy. But there needs to be a capacity for our health system as a whole to recognise and accommodate the wide range of needs and desires that different people may have. On being diagnosed with a terminal illness, some people may want to avail themselves of every treatment that modern medicine can offer them. Others may prefer to spend their final weeks at home, even at the cost of some treatment and care options. We need to accept that there is no standard answer to the final question. Instead, we need to listen carefully to people who by reason of illness or old age are facing the end stages of their lives and we need to accept with compassion what they say.

I don't pretend that this is easy. It involves all of us accepting the decisions that are made by our loved ones—decisions not to be resuscitated or decisions to refuse treatment. It also involves doctors and care providers having honest and skilful conversations with patients about the options they have in circumstances where not a single one of those options is good. It will involve us as a society providing the funding to allow people to have the choices that they want, building and funding the healthcare infrastructure that will allow the 70 per cent of us who want to die at home to do so with dignity. These are ambitions to be realised through another piece of legislation—quite possibly, in some regards, in a separate parliament.

I said earlier that this bill does not require us to debate or construct the exact mechanism by which euthanasia may be offered, nor does it require us to remodel how hospitals, hospices and palliative care facilities interact with patients. But we shouldn't lose sight of context: we should have the choice to die with dignity. But it is not only the end-of-life decision we should be allowed to make. Our challenge is to craft a health system that is built with humanity and compassion and that gives all of us autonomy over our final months, not just our final moments.

Stirling Griff (SA, Centre Alliance) Share this | Link to this | Hansard source

I too would like to make a brief contribution to this debate. Whilst this bill's explanatory memorandum states the bill's purpose is fourfold, it is really about two things: the right of the ACT and Northern Territory parliaments to enact their own legislation without federal intervention, and the right of either to legislate for assisted suicide in their jurisdictions. This bill will restore the right which was removed 21 years ago under a private member's bill introduced by conservative Liberal MP Kevin Andrews. Kevin Andrews's Big Brother stance was an insult to the people in parliaments of the Northern Territory and the ACT. He had a moral objection to euthanasia, and so he used the biggest stick he could find to impose his will, the Constitution. At the time of the Commonwealth's interference, the Northern Territory had enjoyed self-governance for about 19 years and the ACT for nine years but, conveniently, the Commonwealth retained the constitutional right to make laws on their behalf. I would argue that this is a misuse of powers and the time has now come to make amends. The Northern Territory and ACT parliaments can and should be trusted to govern in the best interests of their constituents and they should be able to express the will of their constituents without such undue interference from the Commonwealth, just as the states do.

But back to what this bill is all about. Ultimately, it is about the right or otherwise of a person of sound mind with a terminal illness to choose the time and place of their death. This goes against the doctrine of many faiths, in the main because some see it as God's will to determine how and when a person dies and some see death and the process of death as being a cleansing of the soul. Others fear the process: how can we be sure that this is truly the will of and the right thing to do for the person? I too had all of these fears, but in the end I have faith that none of us, no matter our upbringing or faith, desire to see people, particularly those close to us, suffer a distressing death. On this, palliative care, when available, is a very effective option for some. But for many in the late stages of life their final weeks, days and hours often place them in a drugged out state. It is distressing for many and often has very little dignity.

Like many in this place, I have seen family and friends experience an excruciating end-of-life experience over their final days and weeks. I have also seen the opposite. Eighteen months ago my elderly mother, who had significant health issues, made a decision that she would die at 4 am the next day, and she successfully willed herself to do just that. The problem was that we didn't actually believe her at the time. She was able to do what many other terminally ill people wish they could do: die on her own terms. She individually called my kids, freaking out the whole family, called her close friends, stated that she'd had a good life with no regrets and wished us well. And, like most parents, she continued to offer me and my kids advice, and also quite a lot of political advice at the time. We didn't believe her, but she did die on her own terms around 4 am the next morning.

We come into this world to shape it in some way. Whether we live a privileged life or not, our actions, our footprints, impact those close to us and the greater community. We all have a purpose. In their final days, those with a terminal illness deserve the right to exit this world in a dignified manner and at a time and place that enables them to reflect on their life and to say their goodbyes to those they love. We owe them this for their contribution to humanity, and we should have a compassionate approach to their end-of-life choice.

So, yes, I support legalising voluntary assisted dying for the terminally ill, and I emphasise the word 'voluntary'. This is all about the terminally ill person making their own choice to end the suffering caused by their terminal illness. It is not about others using the system to end the life of an otherwise healthy person. I commend the Victorian parliament for becoming the first state to legalise voluntary assisted dying for the terminally ill. Their legislation, whilst considered to be the toughest in the world, is well thought out and responsible. It has a significant number of safeguards and introduces criminal offences to protect vulnerable people from abuse and coercion. In my view, it is model legislation that, over time, all states should adopt. I trust that, should this bill pass, the Northern Territory and, over time, other states and the ACT should consider adopting its content.

Life is precious; death is final. A good death is one where the dying person has that opportunity to reconcile their life and to save their goodbyes to loved ones on their terms. This bill is about compassion, and I truly hope fellow senators understand this and will support its passage.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

I rise to speak on the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 and make it clear that, as I said to my parish priest, Father Joe, last Saturday week, I will not be supporting the bill.

In some ways, I take offence at the term 'dying with dignity'. When my father died at home he had cancer. I totally supported the drugs he was using. He was on morphine and painkillers. I don't care if it's medicinal marijuana, I support all sorts of drugs to make more comfortable those people who are terminally ill and suffering in pain. People say this bill is about dying with dignity. Does that imply that my father, or my mother in her old age, did not die with dignity? I do take offence to some of these slogans that are tagged on to some of these bills.

I believe that where there is life there is hope. I'm glad to see a media release today from the President of Right to Life Australia, Margaret Tighe. She says:

The bottom line in this debate is that the bill is designed to unleash into the Australian community legalised physician-assisted suicide. Would those same Senators who claim to be more concerned about so-called 'territory rights' be willing to give rights to the territories to legalise capital punishment?

She goes on to say:

Last official figures from the Netherlands—

where euthanasia has been in for a while—

in 2015 reveal that 431 euthanasia deaths occurred without the patient's consent!

This concerns me. What will change down the road? I'd like to talk about what the doctors have to say here and quote from today's TheAustralian newspaper:

St Vincent's Hospital emergency physician Stephen Parnis said that it was a "furphy" to say the bill was about territory rights.

The former Australian Medical Association Victoria president and federal vice-president said there was no way to comply with the safeguards. He said there should be more money spent on palliative care rather than a debate about assisted suicide.

“It is about state-sanctioned killing, even if it is killing of self; it is about the law and the values of our society, saying a number of people are better off dead and some lives are worth living and others are not …

…   …   …

The Australian Christian Lobby said polling it commissioned found support for euthanasia fell when respondents were asked to consider the question again after being told the AMA was opposed to it.

On 28 October 2017 the AMA President, Dr Michael Gannon, said:

The AMA's Position Statement is largely in line with the WMA—

World Medical Association—

policy in stating that 'doctors should not be involved in interventions that have as their primary intention the ending of a person's life'.

I agree with that. The doctors we know are about making people better, not ending their lives. I am concerned about what may change in time. It is a sad fact that one in two Australians, when they reach the age of 80, suffer some sort of memory loss—dementia, Alzheimer's or whatever. My mother suffered severely from it. I am concerned that those with enduring power of attorney, guardians, may want to hasten the death of their ancestor if there is money involved. This might be a selfish attitude I'm bringing to this point, but, if an elderly person living in Sydney owns their house, it could be worth millions of dollars. Sure, they're not going to get any better, but their life may be shortened because of that. As I said, where there is life there is hope. So I will not be supporting this legislation, on those grounds. I will not support it, on a religious basis. I will support the AMA and Right to Life.

But I do support all sorts of drugs to make life easier, more comfortable, for those with terminal illness. I wonder what happened a couple of hundred years ago when people had cancer and all sorts of terminal illnesses inflicting enormous pain. We didn't have those drugs to make life easier and more comfortable for them in their dying days. I'm certainly glad they are here these days. I saw what the morphine medication did for my father in his dying days, when we kept him at home and he died in his bed, which was amazing. When my mother said, 'I'm keeping him at home to die,' I was quite shocked. Usually people get very sick and they're taken off to hospital. Mum did a great job keeping dad at home in his dying days, along with Judy Grills, one of the nurses in town, who would come up regularly and look after my father's medication and see if he was going okay, along with my good friend Father Joe, who visited my father, Reg, on numerous occasions. My father died with dignity. He wasn't euthanised, and I'm glad that he wasn't and that he died from his illness, as comfortably as we could make it. I will not be supporting this legislation.

Kristina Keneally (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 introduced by Senator Leyonhjelm. First I will speak on my views on euthanasia and then I will speak to this legislation specifically. I do not have an in-principle opposition to euthanasia. However, I've always been concerned, and remain so, about how any particular piece of legislation could be crafted to legalise euthanasia and also provide adequate legal protections for vulnerable people. I also believe we can do more as a nation to enhance palliative care. I remain concerned that we might move to support the legalisation of euthanasia before we consider the adequacy of palliative care in Australia.

Further, I believe that all legislators should tread carefully and thoughtfully when dealing with decisions that could put vulnerable people in harm's way. As legislators, we have an obligation to ensure that any laws we enact protect the most vulnerable in the community.

However, the legislation that Senator Leyonhjelm has introduced does not ask senators to approve or disapprove of euthanasia. This bill asks if the legislatures in the territories should have the powers to determine that question for themselves. This power was taken away from the territories by the Euthanasia Laws Act in 1997. I respect that Labor MPs had a conscience vote at the time, and I understand that Labor MPs will do so again on this occasion.

If this legislation proposed by Senator Leyonhjelm were to pass this parliament, it would not immediately restore euthanasia as a legal practice in the Northern Territory. It would simply restore the power of the territories to make laws regarding euthanasia and allow the territories to revisit this question if or when they wished to do so. I agree that this decision-making power should be rightfully returned to the legislatures in the territories. It is my view that the democratic chambers and the elected representatives are able to make this decision for their constituents, as they make decisions on so many other areas of economic and social policy. As such, I will be supporting this legislation.

Janet Rice (Victoria, Australian Greens) Share this | Link to this | Hansard source

I want to share with the Senate the story of my dear friend Harry. Harry Gardner passed away on 18 February this year, aged 91. He'd had prostate cancer for the last 13 years, and his health had been in decline over those 13 years. He'd done everything he could over those 13 years to keep himself healthy, and in fact people often thought that Harry was a bit odd for his focus on his health—baking his own bread and turning vegetarian in his later years.

Harry was a humanist; he was a scientist; he was a musician. He made the decision in his last years that, as somebody who had been focused on trying to make the world a better place, the last campaign that he would be involved in would be for voluntary assisted dying. I remembering him ringing me up and saying: 'Right, Janet, what can we do to make this a reality, both federally and in the Victorian parliament?' He lobbied Victorian MPs across the spectrum. He played a very important role in the passage of the legislation that passed through the Victorian parliament in November last year, just by being himself—by presenting himself as an older person who knew that he was going to die and who wanted to have the choice to be able to die in the manner of his choosing and not to have to die with the suffering and pain of a death that he would have preferred to have had brought forward so that it could be peaceful and a good death.

Harry died in February, after the legislation was passed, but he died with the satisfaction of knowing that he had played an important role in seeing it passed. I saw Harry only a few days before he died, and my most delightful memory of him, having known him for all of my life, essentially, was to do with playing my violin. When I arrived at the hospital that he was in, he was sleeping, and his son, Henry, was there. Henry and I have played violin together numerous times over the years and played with Harry, obviously, many times. So I got my violin out, and Henry and I proceeded to play a beautiful folk piece, 'Ashokan Farewell'. Harry woke while we were playing, and he just had this beautiful look on his face as he heard us playing 'Ashokan Farewell'. He was quite lucid, and in fact Henry, and Henry's sisters, Jenny and Gayle, told me that, in that time that we had with him, he was the most lucid that he'd been for the last week.

It was such a privilege to be there for part of the last days of Harry's life. As I said, he died too early to be able to benefit from the voluntary assisted dying legislation in Victoria, and, fortunately or not, he was not able to make use of it. I think he probably wouldn't have made use of it, because he ended up dying reasonably quickly, without too much pain and suffering. He was determined. The reason he put so much effort into campaigning was that he wanted to have the choice. It was appropriate for him to have the choice. All Australians should be able to choose to go gently, to have a good death and to not have prolonged suffering. This legislation today is about all Australians having the choice. In particular it is about the people who live in the Australian Capital Territory and the Northern Territory having the same rights as the rest of us and at least being able to have the debate.

In Victoria we had very extensive debate that covered all of the issues that are being discussed in the debate we are having today. There were all the concerns that people have about voluntary assisted dying—the issue of it being a slippery slope, the issue of elder abuse, the issue of coercion, the issue of people not being in sound mind and in particular how voluntary assisted dying and palliative care operate side by side. After that debate Victoria passed the legislation. Of the jurisdictions that now have voluntary assisted dying, Victoria has some of the most stringent legislation in the world. There are so many checks and balances in place to address all of the issues that people are rightly concerned about. The Victorian legislation doesn't come into play until the middle of next year. I want to see all Australians able to benefit from that experience and debate and to be able to have the same debate themselves. It is not right that the people of the ACT and the Northern Territory don't even have the opportunity to debate this legislation like we were able to in Victoria.

I am proud to be a Green and part of a party that has led the way for more than 10 years on the issue of voluntary assisted dying. In Victoria our Greens MPs played a critical role in the passage of that legislation. I give a big shout out to former state MP Colleen Hartland and in particular Samantha Dunn, the current state MP. I want to thank them for the massive work they did on leading the debate and being part of the debate in Victoria. Here in our federal parliament we had Bob Brown's private member's bill back in 1997 and we had Richard Di Natale's bill on restoring territory rights, which is the basis for this bill that has now been proposed by Senator Leyonhjelm. Senator Leyonhjelm's bill that we are debating today is essentially a rewritten Greens bill. To ensure that we get the outcomes for the community that we know they deserve, the Greens will be supporting it. The Greens will continue to further efforts in every state and territory. We know the level of support for voluntary assisted dying right across the Australian community. You can be assured that we will be working across party lines to make sure that all Australians have access to compassionate end-of-life laws.

I want to finish with my thoughts and love going out to Harry's family—his son, Henry, and his daughters, Gayle and Jenny—and all of his friends and going out to all people who through this debate are thinking about their loved ones, the death of their loved ones and their loved ones who are currently suffering. I hope the passage of this legislation is another step forward so that all Australians are going to have the choice to die a peaceful and good death.

Jane Hume (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise today to speak on the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015, which was introduced into this place by our colleague from the Liberal Democratic Party Senator Leyonhjelm. I'd like to start by saying that I will be opposing the bill today. I have said in the past that I will consider any proposal to legislate for the right of a person to end their life provided that there are adequate safeguards in place to protect them from being guilted into doing so. I'm not confident that the bill today offers those safeguards. Indeed, it doesn't offer a model at all. I also appreciate the views expressed by some that this bill is ultimately about where federal legislative authority ends and where that of the territories begins. However, I do not believe that what is ultimately a discussion on assisted suicide is the appropriate forum for discussion on state rights versus territory rights.

Before I go any further, I cannot stress enough the sensitivity and the personal nature of this issue. It is encouraging that previous speakers on this bill are respecting that. I acknowledge the sincere words of Senator Rice, who spoke just before I rose. All of us in this place have the best intentions. But this is not a debate about intentions. It is, in fact, a debate about the decisions that we as lawmakers make and the implications of those decisions. So this is not a question of whether we should allow people to die with dignity. Indeed, as lawmakers, we take it as a given that everyone—and most of all us, the parliamentarians—wants to ensure Australians have dignity at all phases of their lives, including when they die. Rather, this debate is more about whether we should give the territories the unfettered ability to legislate for assisted suicide.

The legislation before us today provides no guarantees that those choosing to end their lives won't be guilted into doing so, and neither does the system of government employed by the territories. The respective legislatures affected by the proposed legislation are unicameral; like Queensland, they lack an upper house of review. The Northern Territory experience of the 1990s demonstrates very clearly just how easy it is to get the law on this issue wrong and why it can't be repeated again. When the Rights of the Terminally Ill Act 1995 was enacted, it was accompanied by a number of 'safeguards' that advocates of assisted suicide claimed would protect vulnerable people. In practice, they failed to do so.

Let me outline the implications of that. Two doctors both verify the existence and the terminal nature of a patient's illness. The second practitioner was required to have special expertise in the illness and fellowship in a specialist college in Australia. That was one of the safeguards. If the first doctor did not have a specialist qualification in palliative care, a third doctor, with palliative care expertise, was required to give the patient information on the availability of palliative care. And then, finally, a psychiatrist was required to examine the patient to certify that he or she did not have treatable clinical depression. We were told time and time again that these protocols would protect the most vulnerable members of our society from terminating their lives unless they were of sound mind and did not want to receive palliative care. No matter how well intentioned it may have been, the nine months during which euthanasia was practised—it was practised in the Northern Territory from July 1996 to March 1997—should in fact serve as a sufficient deterrent. That is because all the goodwill in the world could not have prevented the tragic implications of this legislation; it shows why we must get the law right.

In October 1998, a paper entitled 'Seven Deaths in Darwin: Case Studies under the Rights of The Terminally Ill Act Northern Territory of Australia' was published in TheLancet. This paper examined the cases of seven people who made formal use of the ROTI Act, four of whom died from assisted suicide. One of the authors of this paper was Philip Nitschke, a fervently pro assisted dying physician and activist. So it is not as if this paper was a blatant partisan exercise in criticising the practice of assisted suicide—far from it. As was expected would happen by many before the enactment of this act, despite only seven cases falling within its ambit, the Northern Territory still did not effectively apply its own law. As was identified by the paper published in The Lancet, three of the seven patients were socially isolated with depressive symptoms present in four of the seven. This depression clouded their judgement meaning that they were not of sound mind when they were requesting to end their lives through assisted suicide. The paper also said that when it came to pain management, four of the seven patients had controlled pain and the remaining three did not have prominent pain, and yet the law was intended to put an end to prolonged suffering. But perhaps most alarmingly, the requirement for there to be a consensus terminal diagnosis, arguably the most straightforward safeguard to implement, proved too difficult to administer for the Northern Territory government who allowed access to euthanasia for two patients who lacked a consensus terminal diagnosis. Even worse, one patient who was granted euthanasia did not have a terminal condition at all. The safeguards simply weren't in place.

I fully appreciate the sentiment of those who passionately support this bill and who view this bill as one that is meant to secure the dignity of the small number of people who suffer from terminal illness with refractory pain. The intentions of the territories, then and now, are not in question. But what the Northern Territory situation has proven is the need to ensure that the law is developed properly and in a manner that has far more than just adequate safeguards.

Much like the Northern Territory, overseas experiences of assisted suicide offer little comfort. Nowhere that has legalised euthanasia has demonstrated a viable model with those adequate safeguards. It sounds promising in theory but it is, in practice, quite insidious. In all major jurisdictions where euthanasia or assisted suicide is legal, there has been a sharp and sustained upward trend in the number of deaths over a long period of time. In no case, is there a sign of the frequency of the practice plateauing—it increases year on year on year.

In 2016, the Victorian parliament held an inquiry into end-of-life choices. Daniel Mulino, of the Legislative Council, the Labor Party member for Eastern Victoria, dissented from the majority report. Putting partisan allegiances aside for just one moment, this was an immensely valuable piece of research and one that will no doubt become a seminal work on the case against euthanasia.

In his dissenting report, Mr Mulino examined prominent cases of assisted suicide and euthanasia in major jurisdictions that have legalised either procedure. His findings were disquieting to say the least. In each of the three European countries that have legalised assisted suicide—Belgium, the Netherlands and Switzerland—there have been vast year-on-year increases in the number of people who have accessed euthanasia services, and this growth has been sustained over many years. In Switzerland, for instance, over the 16-year period of 1998 to 2014, the compound annual growth rate in cases was 19.2 per cent. I will say that again: the compound annual growth rate in assisted dying was 19.2 per cent year on year, compared to a meagre 0.3 per cent annual growth rate in deaths.

Similar results were observed over a 12-year period in Belgium, which has an identical annual growth rate in total deaths. To look at it another way, the total number of cases in Belgium increased by 756 per cent over that 12-year period. That is striking. That is striking indeed. In the Netherlands, the annual growth rate was lower at 13.1 per cent over a seven-year period but this is, nevertheless, a marked increase that occurred despite the total number of annual deaths decreasing year on year. Likewise, across the Atlantic Ocean in Oregon and in Washington, there has been strong, sustained year-on-year growth in the number of cases of euthanasia and assisted dying. And, again, annual growth in deaths in the USA is a mere 0.5 per cent.

I do not dare to do the individuals or the families involved the disrespect of questioning their decision, but the trend indicated by the evidence here really cannot be ignored when, as lawmakers, we are confronted with legislation akin to the one that we are presented with today.

How can we explain this phenomenon? It is certainly not plausible to attribute it to a growing awareness of end-of-life options. One only has to take a cursory glance at the graphical representations of the data from overseas to see that there has been no abatement in the growth rates in any of those five jurisdictions that I have discussed today. This strongly suggests that sustained growth is due to factors other than simply community awareness.

As I have discussed already, such a phenomenon cannot simply be dismissed by attributing it to an increase in the ageing population of the respective jurisdictions. There is evidence of scope creep in at least some jurisdictions, and this is particularly concerning. This has occurred both via legislative expansion of categories, such as in Belgium, and also non-legislative and informal extensions within an existing framework, such as in the Netherlands. Once the initial legislation is in place, it becomes that bit easier to justify liberalising the practice. One could ask many questions about whether the initial scope was appropriate in the first place. Is physical pain necessary to trigger justifiable action or is psychological pain also sufficient? Is explicit consent required? If assisted suicide is justified only for people suffering a terminal condition, what exactly does 'terminal' mean?

As Mr Mulino notes, the reason why the slippery slope argument has credibility in this context is that once euthanasia or assisted suicide are accepted for a limited subset of situations, there is very little by way of logical or philosophical argument to stop the expansion of those categories. Furthermore, the argument is that, once legalised, there will be a tendency for euthanasia and assisted suicide schemes to expand in scope since the logical and philosophical boundaries between the different types of proactive hastening of death are far weaker than the boundary between omissions and actions. Indeed, Senator Leyonhjelm himself noted in his opinion piece in The Australian Financial Review of 3 August this year that some people ought to have the option to end their lives when life has become merely 'unsatisfactory'. No doubt many of us will have some considerable concerns about a proposal such as that.

The slippery slope is, in fact, comprised of two slippery slopes. The first involves loosening the legislative criteria that one must satisfy to access euthanasia services. The second and, in my mind, far more concerning slope, involves the broad reinterpretation of existing legislative criteria by those outside the judicial and legislative arms of government. For instance, amendments to legalise physician assisted dying were introduced but ultimately rejected by the Belgian legislature. Nevertheless, physician assisted dying is now widely practised in Belgium, despite legislation that intentionally outlaws this practice.

As you can see, once legislation is enacted there really is no turning back. This is not—I think this is important for the chamber to recognise—an issue of federalism. The Federation of Australia was the process by which the six British self-governing colonies agreed to unite and form the Commonwealth of Australia. Neither the Northern Territory, nor the Australian Capital Territory nor any other territory was party to this. Section 122 of the Australian Constitution, regarding the government of territories, reads as follows:

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 and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

As it is abundantly clear, and set out in the Constitution, the territories do not have the same rights as states. They are different from states. They do not have the same rights.

They are self-governed only by virtue of acts of the Commonwealth parliament. Of particular importance are the Northern Territory (Self-Government) Act 1978 and the Australian Capital Territory (Self-Government) Act 1988. The extent of the purview of such acts is determined at the sole discretion of the Commonwealth parliament. That can be amended by a majority vote of both this place and the other place at any time. The territories' legislative assemblies govern only by delegation of power of the Commonwealth government. They do not govern by way of constitutional right. As was their legal right at the time, the Northern Territory parliament enacted the Rights of the Terminally Ill Act 1995, which legalised euthanasia in the Northern Territory. And as was their right, the Commonwealth parliament enacted the Euthanasia Laws Act 1997, the so-called Andrews bill, which amended the territories' self-government acts to remove their powers to legalise euthanasia. This is how the territories have always been governed. As a conservative, it is my firm belief that this is how they always should be governed and should continue to be governed. I need not remind my Senate colleagues that in the year immediately following the enactment of the Andrews bill, the Northern Territory voted against becoming a state. The Northern Territory voted against becoming a state.

The legislation produced in the 1990s allowing territories an exemption to legislate on assisted suicide did not work. I am sad to say, and sad to see, that 20 years on we are here again merely revisiting the battles of the past in exactly the same manner, with a bill offering practically the same legal effect. Again, I cannot stress enough the personal connection that so many of us have on this issue, myself included. I respect that deeply, as I'm sure all of us in the chamber do, but we can have no confidence that we are producing legislation that ensures adequate safeguards for Australians who elect to end their own life or that we are getting the law right on this issue. That is why I will not be voting for this bill today. I thank the chamber for its indulgence.

Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Link to this | Hansard source

I'm pleased to be able to speak on this issue. This is probably the second time that I've indicated my support for people's right to die a dignified death and, on that basis, I support this bill.

The bill has four elements to it. The first is to reduce the extent of Commonwealth interference with the laws of the Australian Capital Territory and the Northern Territory. I take that as a correct statement. What this parliament did was interfere in the decision-making process of both of those territories.

The bill, secondly, is said to encourage competitive federalism—the process whereby each state enacts laws in competition with the others—thereby refining and improving law making. That's an assertion, I think, that has been made by Senator Leyonhjelm on this bill. I don't particularly support competitive federalism. Competitive federalism had a lot to answer for around this country in years past. It's been bad for the economy. It's been bad for productivity. I think competitive federalism is a nonsense in some aspects. So I don't support that proposition.

The third area is that it recognises the right of the Australian Capital Territory and the Northern Territory to legislate for assisted suicide in their respective jurisdictions. For the life of me, I can't understand why, if you give rights to these territories to make decisions—the decision about helping some of their constituents, or some of the citizens, in those territories—they should have second-class rights compared to the states. This is about ensuring that everyone, whether you reside in a state or in a territory, has got the same access to the law and the same access to rights—as we have everywhere else. That's an important part of this bill.

Fourthly, it ensures that the Rights of the Terminally Ill Act, Northern Territory, is not automatically revivified, allowing the parliament of the Northern Territory to revisit the issue in a time and manner of its choosing. So we are not really here voting on what should happen in the Northern Territory. We are not voting on what should happen in the ACT. We are simply saying that they should have the same rights to make laws for their citizens that the states around the country have to make laws for their citizens. There should be no second-class citizens in this country.

I have been engaged in the removal of asbestos for many years, both as a union official and as a parliamentarian. I just think that, if you watch someone die an excruciatingly painful death from mesothelioma, that may change your views on how you deal with this issue. In fact, I have just come from the Parliamentary Group on Asbestos Related Disease. They are meeting as this debate is taking place. They are trying to stop asbestos being used around this country in a way that creates this excruciating death for an individual. When I indicated that I had to leave that meeting to come down here, two of the Queensland delegates to the meeting approached me and said that, only in the last 12 months, two of their members whom they were trying to assist to manage their asbestos disease, mesothelioma, have committed suicide.

I don't know if many people here have witnessed anyone dying of mesothelioma, but it is an absolutely vicious and terrible disease. You can, for about 12 months prior to your death, not be able to breathe effectively. It's been described to me as having a block of concrete on your chest, crushing your chest. Your body just disintegrates around you with the cancer. Both as a union official and a blue-collar worker, I have witnessed two of my close friends die of this. I worked at Liddell Power Station in the Hunter Valley for seven years. When I first worked there, very little concern was given to the question of asbestos exposure, but thankfully during that period of time, because of the activities and the strikes that unions engaged in—the refusal to work with asbestos—we ended up in a situation where we had checks and balances and proper controls over the exposure of workers to asbestos.

But there have been many, many workers in the power industry, in the maritime industry, in the building industry and in other industries who have been exposed to asbestos and ended up with mesothelioma. If you end up with mesothelioma, I'll tell you, you will want relief from what you are being put through. Not only is it a terrible, excruciating disease for the individual but it's terrible for the family to witness their loved ones ending up in the situation that they are in. So my views on this    have been certainly decided after watching my friends die in this terrible situation.

I had another good friend. He emigrated from Scotland in the same year as I did. In fact, we went to the equivalent of TAFE in Scotland together. We didn't work together. He worked in one job; I worked in another. But we had been friends for nearly 40 years in Australia. He ended up with pancreatic cancer. This was a tough guy. He still had his grandchildren before him. He had still a lot of life to lead. The pancreatic cancer meant that he was left lying in St Vincent's Hospital in nappies because he had no control over his bowels. He had no control over what was happening. He was medicated to the highest degree possible. I think that St Vincent's Hospital gave him the best palliative care they possibly could, but his was still an excruciatingly bad death. His family had indicated to me that they just wished there was something that could be done about it.

We heard earlier the contribution from Senator Hume, who raised the slippery-slope argument. If more people in Belgium are being saved from going through a horrible death, an excruciatingly painful death, I don't think that's a slippery slope. I think that's a good thing. I think that they should be saved from that. To simply look at statistics and say this is a slippery slope is something that I don't understand. I thought that argument would come up in this debate, because this debate has been in this place before, so I had a look at some of the academic analysis, rather than the material from religious organisations or atheist organisations. I thought I'd have a look at what the academics are saying about the situation in Belgium. There's a paper by Bernheim, Deschepper and Deliens that rejects the slippery-slope argument. These are academics actually looking at the statistics and how this is working and dealing with the issues. One of them is a medical oncologist, one of them is an anthropologist and the other is a medical sociologist, so they are trained to analyse these issues. They say the slippery-slope argument used in Belgium—they don't talk about anywhere else—has no merit. They say:

Palliative care and legalisation of euthanasia are widely viewed as antagonistic societal developments and causes.

They say they should not be, because euthanasia and palliative care can work together and do work together in Belgium. They say:

Belgium was the second country to legalise euthanasia but also has among the best developed palliative care—

in the world. It's not one thing or the other. You can access palliative care in Belgium, but if you end up like my friends ended up you can be put out of what is a miserable, terrible death. Many of the advocates for legalisation in Belgium actually worked in palliative care. They had seen that palliative care does not diminish the suffering of many people and they became advocates for euthanasia in Belgium. Bernheim, Deschepper and Deliens say:

The development of palliative care and the process of legalisation of euthanasia can be mutually reinforcing.

These are the academics who are working in this area and who have taken the time to actually sit down and look at what is happening in the country. They are not senators in Australia picking up some piece of information that they can run in here with and use to talk about slippery slopes. They say that argument is not correct, that it is not the situation.

So I am very strongly of the view that this legislation should be passed. What we have to remember once this legislation is passed is that there are no euthanasia laws existing in the ACT or in the Northern Territory. These are issues that will have to be debated in those parliaments, in the areas where they should be debated. The citizens of both the ACT and the Northern Territory will then be able to lobby their parliamentary representatives. They will be able to put their points of view. The churches will be able to put their points of view. Medical practitioners will be able to put their points of view. Families will be able to put their points of view. I think that's what democracy is all about.

Democracy was not properly effected when John Howard, in the parliament that he was in, denied the citizens of the ACT and the Northern Territory the same rights that exist for other jurisdictions. Some states have not passed any laws on euthanasia. Victoria recently has. I think it's inevitable that these laws will be passed around the country, and I think it's a good thing that these laws be passed. We would not subject animals to the agony and pain that victims of mesothelioma go through after they contract that disease. They are treated with a more commonsense approach than some of these victims of mesothelioma or pancreatic cancer are.

I take the view that we'll hear all the arguments here. This is a matter of common sense and it will come down to the individuals. Individuals will make choices. Individuals will make that choice on the basis of checks and balances within the legislation that is passed within the ACT or within the Northern Territory.

The reason there is no detail about any legislation on euthanasia in this bill is that we've got no power to determine what happens in the ACT or the Northern Territory on this issue. We've got no power to determine that euthanasia should apply across the country, but we do have the power to remove the restrictions on the ACT and the Northern Territory that were put in place by John Howard and his government some years ago on the basis of what were seen to be strong arguments. Many members had strong views on this. They took a view and that was the decision the parliament made, but things have moved on, just as they have moved on in a whole range of areas. Things have moved on since the days of John Howard, his conservatism and his approach on these issues.

I think we should listen to academics, doctors, families and the individuals who are stricken by terrible disease and who want to end their life. We should stop having the position that people with incurable disease should be forced to suffer. Their families are forced to suffer the ignominy of watching them lying in a nappy, with no control over their bodily functions, while dying an excruciatingly painful death. We need to change this approach.

I think things have changed. What I've seen recently is that many more people accept the proposition that people should have the right to choose how they die when they have these terrible diseases. What we've seen recently is that, when the Australian public are asked about their views on this, overwhelmingly they have moved on from the days of the John Howard government and have come to the view that people should be able to make those choices, subject to the checks and balances that are put in place to ensure that the person suffering is making the decision and that they have got a terminal illness that they will not recover from.

These are big issues that should be before the states and territories. These issues cannot be debated at the territorial parliamentary level unless we make this decision to restore to the territories the rights that states have. What I'm arguing here is that this bill does no more than restore their rights. The debate about whether legislation should be passed in the ACT or the Northern Territory and whether it should happen there is a matter for Territorians and Canberrans. They're the people who, through their territorial assemblies, should make those decisions. That's the argument that I put forward here. I think that if they want to bring those issues before their parliaments, it is now time for us to allow those parliaments to deal with them in the way they see fit.

I think everyone knows that palliative care is extremely important. Palliative care is fantastic to help people die in a painless way, as much as they possibly can. In Belgium, the people who administer palliative care have got another option, under certain checks and balances, and that is: if the individual has indicated that they want to end their life—perhaps because their illness is so excruciatingly bad for them—then they have got the right to end their life with dignity. What I'm arguing for here is the right of the individual to make the choice, the capacity for checks and balances to be put in place, and the rights of both the Northern Territory and the ACT to be able to pass legislation after consulting properly with the electorate. I think there should not be two rights in this country: one for those who, by chance, just happen to live in a territory and another for those who live in a state. You could move from New South Wales to the ACT and your rights would change. I think that's a nonsense. I take the view that this is the right thing to do. I don't agree with much that Senator Leyonhjelm brings before this parliament but I certainly agree with this, and I commend him for bringing this forward.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

I rise today in support of the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015. Before I get onto the merits of the bill, I want to talk a little bit about the issue of euthanasia. As Senator Cameron has just stated, I believe that this bill before us today is about restoring territory rights; it is not about euthanasia. The bill that it's repealing is the Andrews legislation of some years back, which was about euthanasia, so I can understand many senators in this place putting their views about euthanasia, and I intend to put mine.

I have to say, at the outset, it is not something I'm completely comfortable with. I think what we need to do in this country is be far more open and far more progressive about how we discuss dying. We really don't discuss it in families as much as we should. We often get to a point where we have to deal with a relative who is no longer able to make decisions for themselves. The question of whether to increase the drug regime, which is the norm in Australia, hastening that person's death, is often left to relatives who have little or no understanding of what the life choice of the relative would have been.

My mum died about 40 years ago. It was a painful death, and for most of the time that she lingered—it was probably about a month in hospital—she was unconscious. I wasn't that old at the time. Obviously, the hospital had her on a high drug regime. I don't know what my mum would have chosen at that point. Certainly, she got ill very quickly. But there she was in the hands of medical practitioners for the last month of her life, mostly unconscious. My nanna died at the age of 100. She didn't ever want to enter a nursing home. Unfortunately, that's where she ended up. I knew that my nanna didn't want to prolong her life but, again, I had to make that decision to increase my nanna's drugs. It was a decision I wasn't comfortable making. I would have been much better off if Nanna had left explicit instructions, perhaps written instructions. She'd had explicit discussions in conversations with me, but I would have felt much more comfortable if Nanna, at some point, had been able to make that decision for herself.

My father died last year. He didn't want to die. My dad had every intention, at the age of 94, to keep on living. Thankfully, he didn't linger and, thankfully, I think he chose his time of dying. It was melanoma that took him in the end, but he died a very quick death and a painless death. For that I'm really grateful, but he wouldn't have chosen assisted suicide if he'd been able to. Nevertheless, my dad, my mum and my nanna should have been able to make that decision in a legal way and should have been able to clearly pass on their wishes to me as their daughter and their granddaughter.

I do support euthanasia, but it's not the job of this parliament to do that. It is not the job of this parliament. This bill before us today is about restoring territories' rights.

I want to talk about what's happening in Western Australia right now. My good friend the member for Morley, Amber-Jade Sanderson, moved a motion last year in the Western Australian parliament to set up a select committee to look at changing Western Australian laws so that the concept of end-of-life choices could be explored. That committee has been having public hearings. It has travelled all over the state over the last 12 months. It's due to report fairly soon. All sorts of people in Western Australia—organisations, individuals, terminally ill people, children—have been able to go to that committee and have their say. Very clearly, over the 12-month period, after exhaustive consultations, that committee will be able to come up with a report and say, with a fair degree of confidence, 'These are the views of a wide range of Western Australians.' I don't know which way that committee will end up reporting, but it's very clear that that committee has been able to consult in Western Australia.

Of course, Amber-Jade Sanderson, the member for Morley, was elected by Western Australians. Here I am being asked, potentially, to rule on an issue in the Northern Territory and the ACT when I am an elected senator from Western Australia and don't know the views of territorians. I do not know. I don't have the ability to be on a committee that spends at least 12 months consulting with territorians about their views on euthanasia, and yet, because of the way the Commonwealth has sought to exercise control over certain matters—not all matters but certain matters—in the Northern Territory and the ACT, here I am today being asked to give my view. That's something I feel really strongly about. That's not a position that I should be in.

Interestingly, on researching what happened with the Andrews legislation, I saw there were certain people, senators and MPs, who actually didn't support euthanasia but certainly supported the right of territories to make their own decisions about that. I'm sure there are people in this place who share that view, who aren't in support of euthanasia but absolutely support the right of territorians to have their say.

I believe strongly in one vote, one value. I believe in the concept of democracy. When it comes to the territories, they should have the right to make that decision for themselves. If you're a territorian and you don't agree with a proposition that the government has put forward and that happens time and time again, you have the right at the ballot box to change your vote or to vote for somebody else who more evenly represents your view. The territorians don't have any right about whether they vote for me or not, because I'm a Western Australian senator. That's the right of Western Australians.

I come from a position of saying: this is a matter for territorians. As we've heard, the ACT has said it doesn't actually have a view right now on whether it will go ahead with a bill to introduce euthanasia, but it certainly should be given the opportunity. The rights to decide should rest in the ACT and the Northern Territory.

Indeed, we saw when Paul Keating was the Prime Minister that he could have overridden those euthanasia laws that had been passed in the NT and subsequently the ACT. He chose not to, because he believed in the concept of the territories having rights. We saw that change when John Howard became the Prime Minister. Presumably, he had the view that he didn't support euthanasia, and so we saw that ability for the territories to have that legislation being withdrawn. By any measure, that is not right. Just because it's allowed under the Commonwealth—and I understand that the Andrews legislation was the first time ever that that power had been exercised—we can't have MPs or senators with a particular personal whim such as deeply personal views on euthanasia then use that personal view to simply take what is available under Commonwealth acts to overrule the views of voters in the ACT and the NT.

That's what this bill is about today. It is about restoring the rights. It's paternalistic. It's 2018. We should not be making decisions on behalf of voters in those two territories about what happens in those territories. That properly rests with the territorian governments and not with me as a WA elected senator. Whether or not I support euthanasia is not the point. The point is the vote properly rests not with me but with territorians.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise today to speak in support of the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015. I say at the outset that this piece of legislation is almost identical to private members' bills previously foreshadowed and introduced by the former Leader of the Greens, Senator Bob Brown. In fact, it was since the Andrews bill, the original bill which overthrew the democratic decisions of the territories to introduce laws in relation to euthanasia, that, in a strong opposition to that original bill, Bob Brown at the time spoke very passionately and really led the charge in trying to stop not just this antidemocratic legislation but, indeed, legislation that was anti-empathy.

That really goes to the heart of this entire issue. This bill before us today gives back choice for people who live in the Northern Territory and the ACT to ensure that they have a right to contribute to the laws that govern them. But, of course, it also gives back the right to those governments and the citizens of the territories to make decisions about whether they believe in assisted dying in the matter of the immense suffering of somebody who is sick and in pain, with no hope or chance of ever getting better—whether those people should have the right to end their own lives.

I fundamentally believe in and support the right of individuals to end their own lives in those circumstances. Yes, of course, in state parliaments where this is being debated, in some places where it's been legislated, there are lots of caveats and lots of checks and balances that are important and essential in making sure that this type of law is governed properly. But, at the end of the day, while we will all vote in this place today, tonight or tomorrow when this debate finishes with a matter of conscience, I also believe we should be voting with a matter of compassion and with a view of empathy. To those members of the Australian community whose families are suffering, it is important for individuals who have terminal illness and disease that will never get better to be able to make their own choice about how they end their lives—with dignity and respect and with choice.

When I was 16, my grandmother died from breast cancer and she suffered immensely, years and years of getting sicker and sicker. The last 12 months of her life were incredibly painful, the last few months in particular. She was unable to move. Drinking a glass of water through a straw was painful for her. She was in so much pain that even having the blankets on her frail body caused her immense suffering. Watching my grandmother—a woman who had been immensely strong and proud my entire life and someone I had looked up to as a beacon of strength—go through this extraordinary suffering and seeing her incapable of making a choice about how to end her own life was not just painful for me as a teenager, as her granddaughter; it was immensely educational. And it just so happened that I was witnessing her suffering at the same time that this parliament was going through a debate about euthanasia and overturning the laws in the ACT and the Northern Territory.

That experience has had an incredible impact on my life. It has given me, from the young age of a teenager, a very strong sense of justice in relation to this issue and a belief that, if we were ever able to right the wrongs of that Andrews bill, this place should do it. Now that I am able to stand here today and participate in this debate and this vote, I do so not just in the shadow of the former senator and leader of the Greens, Bob Brown; I do this for my grandmother, my nan.

There are many, many Australians right across this country who just don't understand why in 2018 this is still an issue of debate. Opinion poll after opinion poll, for over two decades now, has shown that the vast majority of Australians believe we should have a right to choose, in these incredibly hard, painful, suffering circumstances, to end our own lives. For those of us who have nursed our family, friends and loved ones through that end-of-life period, not being able to ensure that they have that choice is in itself incredibly painful. It is no wonder that support for voluntary euthanasia and assisted dying in this country continues to grow.

This bill would correct an immense and shameful wrong that was done back in 1997. This chamber should not have the right to inflict its views on what other state and territory governments do. The immensely undemocratic nature of the law as it is today, as a result of that Andrews bill, remains, and it remains an issue of debate as to whether people in this place support or oppose euthanasia. Why is it that those who live in the ACT or the Northern Territory are somehow second-class citizens? As a South Australian the South Australian parliament has a right to govern for me. It shouldn't matter whether I live in South Australia or Canberra. I should have the same right as an Australian citizen to have my government make decisions and to support those decisions or not.

In a way this bill is all about choice: it is about democratic choice and it is about individual choice. It is about conscience. It is also deeply about compassion. It was heartening in the lead-up to this debate in this place today to hear a number of members in this chamber continue to stand up in support of voluntary euthanasia and assisted suicide of those who are suffering, with all of those correct checks and balances. It's a pity that it has taken over 20 years to get to the point where the majority of people in this chamber believe that the Senate's shame that was inflicted on the territories back in 1997 should now be overturned. It is an immense step forward. I am grateful for that.

I've been reflecting upon the suffering of my own grandmother when I was 16. I think deeply now as a 36-year-old how I'm going to manage when my parents become sick and elderly. I don't know what their choice will be. Both my parents are pretty sprightly and healthy—touch wood, that that remains so for a long time. When something happens to my mother and father I want them to be able to make their own decision about ending their life, about ending their suffering and pain. I don't want my mum and dad to go through the suffering and pain that my grandmother did.

The mother of my daughter's very good friend died earlier this year. She also died from breast cancer. Susie was a loving mother. She had two little girls—a seven-year-old and a 10-year-old. Susie's suffering was immense. It is beyond me how on earth we cannot allow people to end their lives with dignity and grace. It is able to be done in a safe way. Let's make it able to be done in a legal way as well. I hope that, as those two little girls—friends of my daughter—reflect on the life of their mum and the immense love that she had for them, their memories are not just scarred with the suffering of their mother in the last six months of her life. I hope for those two little girls that, beyond Susie's pain and suffering, they can remember her as the loving, healthy and active mum that she was long before she got sick.

It is for our children and our parents that we debate this legislation today. For me, it is for my parents, my grandmother and my own daughter—that we can progress as a nation to allow a legal mechanism to end suffering and pain in a dignified and compassionate way in this country. I hope that this bill passes this chamber and that the Prime Minister and the government see fit to have it debated fairly in the other place as well. I commend the bill to the Senate.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 deserves to be defeated. It deserves to be defeated on a number of grounds. Firstly, the bill displays a sad misunderstanding of our constitutional arrangements. Secondly, it shows a complete disregard of the general basic ethical foundations of our society, where every single life is valued. Thirdly, it shows a disregard for the sensitivities of our Indigenous community, especially in the Northern Territory.

These three major points were considered by a Senate committee, which I had the privilege of chairing, some time ago, when we looked at the Andrews bill. In the years since, can I simply observe that the Constitution hasn't changed, the ethical foundations of our society haven't changed and the needs of our Indigenous community haven't changed.

Let's be clear on the constitutionality. The Commonwealth parliament only exists because of the states coming together in a federation by a popular vote in 1901. The territories' governmental arrangements are only present because of federal government legislation. Local government, at the state level, only exists because of the will of the state parliament. Local government powers are determined by state legislation. Local governments are suspended, they are amalgamated, they are given fewer powers and they are given extra powers—all at the whim of a state parliament. And so it is with territory governments and the Commonwealth. The legislatures in the territories only exist because of the Commonwealth parliament designating the relevant powers—which, I might add, are specifically limited.

The bill before us erroneously asserts in section 3 certain objectives, and one of them is that the bill is designed to reduce Commonwealth interference. Well, given the fact that the territories and their governments are fully the creatures of Commonwealth legislation, it is somewhat bizarre to then assert that the Commonwealth is interfering in its own creation. Then we are told the bill is designed to 'facilitate competitive federalism'. Well, as I said before, the territories are not states. And might I just interpose at this stage that, after the Andrews bill was passed by this parliament, the people of the Northern Territory were given a specific opportunity at a referendum as to whether or not they wanted to adopt statehood. That would have given the people of the Northern Territory the constitutional and legal right to have assisted suicide legislation. The people of the Northern Territory voted no. Let's be clear: the people of the Northern Territory voted no to the possibility of being granted statehood.

Similarly, here in the ACT, it was the federal parliament that inflicted self-government on the ACT. When it was put to the people of the ACT—'Do you want self-government in the Australian Capital Territory?'—the people of the territory voted no. These people, with respect—my colleagues who come in here and assert that there are somehow fundamental territory rights here that cannot be dealt with in the manner that the Andrews bill dealt with them—overlook the fact that the people in the ACT shunned self-government. They didn't want it when they were asked. Nevertheless, it was imposed. When the people of the Northern Territory were asked, 'Do you want statehood?'—and part of the campaign was, 'If we grant statehood, we can then overturn,' and, legally, they would have been entitled to do so—they voted no. As a result, I think we are clear in the constitutionality of this matter: the issue of so-called states' rights clearly doesn't apply, and, what's more, the people in both territories have deliberately voted against such a possibility.

To those who do say that there should be no interference in the territories' capacity to legislate, I put this proposition: if, for example, the Northern Territory or the ACT sought to reintroduce the death penalty, would they say, 'Let it rip. That's fine. I know we've got constitutional power in the federal parliament to override it, but, oh, it's their right. It's a territory right, so, if they want the death penalty, they can have it'? I trust we would live up to our responsibility in this chamber and, given that we are at the apex of the legislative authority as it relates to the territories, seek to override their powers in that regard. I trust that, for colleagues, this is not a situation where you simply say that territory rights prevail irrespective of the issue. My own view is that you should only intervene in exceptional circumstances, such as life-and-death matters. If the Northern Territory were to seek the death penalty, I would be one of the first to say, 'Let's have legislation to ensure that that legislation is never enacted.'

That deals with the issue, I trust, of constitutionality and territory rights. I ask those that assert that territory rights should prevail over everything to look at themselves in the mirror. If the territory were to legislate for the death penalty, would they still be saying territory rights trump everything? I trust they wouldn't. Similarly, I trust that they will look seriously at the issue of what assisted suicide actually means and how it undermines the very fibre of our society.

Let's be very clear: there are many good men and women, with and without religion, who have expressed very real concern about the concept of state supported suicide. In my own home state of Tasmania, the state government, to its great credit, runs advertisements alerting people to the possibility of elder abuse—financial elder abuse and physical elder abuse. As a lawyer, before I came into this place, I knew that wills were disputed and that people were after the money that might be left behind. On both sides of the argument, you had greatly qualified psychiatrists asserting that the person making the will was of sound mind and equally qualified individuals saying that they were of unsound mind. So when we talk about 'safeguards' for state-supported suicide, I say to you that they don't exist. I will quote somebody that may be of interest to some of my colleagues, especially those on the other side of this chamber. I quote:

Is it possible to reduce to black and white law on the pages of a statue book the circumstances, and the safeguards, in which we would allow the taking of a life? I have spoken to many experts, people engaged on both sides of this argument, and what has shaped my bottom line conclusion is the view that it is not possible to codify in a law the safeguards, the circumstances, in which the extinguishing of a human life would be possible.

So said former Labor Premier Bob Carr—and I agree with him.

A former Supreme Court judge in Tasmania before whom I appeared, rest his soul, the Hon. Henry Cosgrove, said in a very pithy submission to the Senate Committee—and allow me to read the two long-established principles on which he relied—firstly:

Private citizens are not permitted to destroy life—

and the private citizen in this case would, of course, be the doctor—

The state may do so but only in carefully circumscribed circumstances.

And, secondly:

No person can consent to an assault on his person unless the assault is done in order to safe life or health. As soon as we allow the concept to permeate our society which would allow another person to be involved in the death of a fellow human being, we must have come to the conclusion that that life is not worth living. The concept of a life not worth living challenges to the very core our nations of civilisation. As soon as such a concept takes hold within the psyche of our nation, we will demean the value of human life.

I, unfortunately, hear some arguments in the community and, sadly, also in this debate about dying with dignity—that if people suffer from a particular disability, they somehow lose dignity.

It was for that very reason that the disability sector in the state of Victoria so passionately opposed the Victorian legislation in relation to state-supported suicide. They were appalled at the concept that people would start saying, 'Well, if you've got that disability, of course your life isn't worth living'. They were appalled by it. The value of a human life is not dependent upon its particular circumstances. It is an inherent value that can never be taken away from that life and we, as a society, should never, when a person who has come to a consideration that 'My life is not worth living' say, 'Yes, we'll be caring and compassionate; we'll help you get rid of your life.' A caring, compassionate society would say, 'We understand where you're coming from, but, despite your disability, despite the circumstances in which you find yourself, you are a valuable member of our community. We love you dearly and we will do everything we possibly can for you.'

Indeed, the committee that I chaired heard story after story. One person had asked his brother, who was a medical doctor, to assist him to go a week before he died naturally—and a very poignant story it was, because the brother said, no. Within that remaining week of that young man's life, he was able to reconcile himself to his mother and father and, as he was dying, he said to his brother, who was the doctor, 'Thank goodness you did not agree with my request. These past few days have been the most valuable of my life.'

Another example is a young man who went on to marry and become a veterinary surgeon. He had been diagnosed with terminal illness. He was in the palliative care section of the hospital—a young bloke, no attachments at all—and was of the view that chances were, if state-assisted suicide was available to him, he may well have availed himself of it because he was under the misapprehension that he was going to die in a few days anyway. I don't know what occurred, but, to the amazement of the doctors, he walked out of that palliative care unit. He went on to get married; he had children and became a veterinary surgeon.

So for every one story of an alleged painful death, we have another story on the other side of the equation—and that is why these debates have to be determined on fundamental underlying principles and not the anecdotal evidence or assertion of one or the other side of the debate. And can I simply say to those who bring stories from the past: palliative care has come a long, long way. I think we should be celebrating that and acknowledging that. Most people now in the medical profession tell me that you are able to have a pain-free death courtesy of all the treatments that are available.

I wonder how many people know that about five per cent of deaths that are assumed by the medical profession to have been caused by one particular issue are found, post-mortem, to have in fact been caused by a different issue. With the best will in the world, misdiagnosis occurs. So I ask: why is it that in my former profession the vast majority opposed the death penalty? I could regale you with stories of the most heinous crimes, and people may well say, 'Somebody who's committed all these heinous crimes surely has forfeited his right to remain in society.' But we lawyers know that, even with the best will in the world, there are miscarriages of justice. That is why the vast bulk of lawyers are against the death penalty.

Similarly, with the best will in the world, the vast majority of doctors acknowledge that, despite all their training, despite everything they seek to do, misdiagnosis occurs. That is why so many doctors, if not the majority of them—and I think it is a clear majority of them—oppose state-supported suicide. Once you make a mistake with a death penalty, there's no turning back. Once you make a mistake with state-supported suicide, there's no turning back. It is final. It is over.

I will quickly turn to the issue of Indigenous Australians. In the committee inquiry into the Andrews bill, which I had the privilege of chairing, there were more than 12,000 submissions from the community. Some 200 came from the Indigenous community. Without fail, each and every one of them pleaded with the federal parliament to pass the Andrews bill, because within the Indigenous culture the idea of euthanasia was anathema. Also, euthanasia, state-assisted suicide, was a white man's idea. There was very real concern that the Indigenous community, as a result, would stay away from the medical clinics throughout the Northern Territory.

What was very informative was that the committee—I will just read this bit—said:

The Committee also heard evidence from Mr Chips Mackinolty, who was engaged by the Northern Territory Government to provide an unbiased and factual education campaign on euthanasia to Aboriginal communities, following the enactment of the legislation. Mr Mackinolty told the Committee that, even though he personally supported his own right to euthanasia as a non-Aboriginal, his experience in conducting the education campaign had brought him to the view that the Northern Territory's Rights of the Terminally Ill Act should be repealed because of its potential to deter Aborigines from seeking prompt medical attention. Mr Mackinolty expressed the view that the very existence of the Northern Territory legislation is a significant threat to Aboriginal health.

Given the blessings we now have in our community with palliative care, there is no need for state-supported suicide. So, in brief, the constitutional arguments asserted by the movers of this bill simply do not hold water. And if we deal with the principle of taking another human life, saying that there is such a concept as a human life not worth living, we undermine and, indeed, threaten the security of each and every one of us as individuals within a civilised society. In particular, given that this seeks to override or allow the Northern Territory parliament to deal with this issue again, the concern of the Indigenous community must also be front and centre. I oppose the bill.

Louise Pratt (WA, Australian Labor Party, Shadow Minister for Environment and Water (Senate)) Share this | Link to this | Hansard source

Today I rise to speak very strongly in favour of this legislation, both from the point of view of the rights of territories to legislate on behalf of their citizens and also as a supporter of the right to voluntary assisted euthanasia in controlled circumstances. The territories should be able to make these laws on behalf of their constituents just in the way the states can notwithstanding the false constitutional arguments of Senator Abetz. The reason he is false is not because he has stated the obvious power of the Commonwealth to override the territories on constitutional basis, but the fact is that the citizens of our nation support voluntary assisted euthanasia in our nation.

So if we don't let the ACT legislate on this question then, frankly, we would have to legislate on this question in response to the demand of their citizens. We know that the citizens of the ACT strongly support voluntary assisted euthanasia. We know that states like Victoria and my own state of Western Australia are making progress on those issues. Victoria's now got it. Western Australia's actively debating it at the moment. Even the states are a long way behind the views of the Australian public on this issue.

So the simple fact is, if we don't let the ACT or the Northern Territory, if it wants to, in consultation with its own Indigenous communities, legislate on this question then we would have to work out how to do it ourselves. I am a supporter of the rights of the Northern Territory and the ACT to define those questions for themselves, a supporter of the right of the Northern Territory in its own push towards statehood in time to be able to resolve these questions for itself.

As I highlighted before, there's an active debate on this issue in Western Australia going on at the moment. The Western Australian Joint Select Committee on End of Life Choices is looking into end-of-life choices to see whether there's a need for legislation to allow euthanasia for those suffering a terminal illness. The state of Victoria has now passed legislation based on the recommendations of an expert panel, and Victorians that meet the strict criteria can request access to voluntary assisted dying from June next year. I want to commend the head of the expert panel in Victoria, Professor Brian Owler. He, in fact, has described the model in Victoria as the most conservative model in the world for assisted dying. It is in fact very close to the model of Oregon, in the United States, and that instrument has existed for 20 years on their statute books without amendment.

So it is simply not legitimate for us to stand in the way of the communities of the ACT and the Northern Territory in tackling this question for themselves and in acting on it. Otherwise, as I highlighted before, this parliament would need to respond to the demand of the citizens of the ACT to legislate on this question itself, so that we, in this parliament, would pursue legislation like Victoria has, for example. I don't think that's the preferred way of doing this. We shouldn't override the ACT's right to legislate on this question. They're quite capable of addressing these issues. If we don't let them do it and we simply overrule them, we are putting our heads in the sand as to the views of Australians on this issue.

There have been a lot of opponents on this issue of euthanasia in terms of it being a 'slippery slope', and many would have heard these arguments before. That is simply an argument that conservatives gravitate to when they just plain disagree with something but do not have credible arguments to back up their position. I note, for example, that a study led by the University of Pennsylvania Department of Medical Ethics and Health Policy looked at the attitudes and practices of euthanasia and doctor-assisted suicide in the United States, Canada and Europe. It concluded that, despite the fact that euthanasia and physician-assisted suicide are increasingly being legalised, the practice of them remains relatively rare and primarily involves patients with cancer and that existing data does not at all indicate widespread abuse of these practices.

One of the biggest problems with this debate is that parliaments take too long to decide these things, and in the meantime people are suffering. I'd like to highlight to the chamber this afternoon the case of Clive Deverall. He is a giant in public health in Western Australia. He spent more than 20 years as the head of the Cancer Council between 1977 and 1999. He was a firm advocate for consumer interests and fought tobacco and asbestos companies, solariums and snake-oil sellers selling false cancer treatments. He spent time as the president of Palliative Care WA and was determined in setting up palliative-care services. He was part of building Western Australia's first purpose-built hospice.

In 1994 he was diagnosed with a rare form of non-Hodgkin lymphoma, but this diagnosis did not stop Clive. He continued as the head of the Cancer Council until 1999 and served on the board from 2007 to 2010. However, towards the end, Clive was living with unbearable pain and suffering, and on 11 March 2017 Clive took his own life. He left with poignant final words. He said:

Suicide is legal, euthanasia is not.

Clive dedicated his life to advocating for palliative-care and cancer patients, but, when the irreversible pain and suffering became too much for him, the reality of palliative care for a very few patients became very clear. In an interview with the ABC, Clive said:

Certainly I still embrace what palliative care stands for, but even with their clinical guidelines, they avoid the elephant in the room which is the very end stage patients where symptoms cannot be controlled …

He said:

The lack of compassionate law in this state—

and he was talking about Western Australia—

will force some people into taking their own lives in a fairly brutal way.

In his testimony to the parliamentary committee in Victoria, state coroner John Olle described the 240 suicides in Victoria as those ending their suffering due to an irreversible decline in their health. Poisoning, hanging and shooting were the main methods.

Scott Ryan (President) Share this | Link to this | Hansard source

Order! Senator Pratt, you'll be in continuation when the debate resumes. It being 2 pm, we will now move to questions without notice.