Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

I rise to speak to the Restoring Territory Rights Bill 2022. I have listened carefully to the debate, and I will be opposing the passage of the bill.

The arguments in favour of the passage of the bill through the Senate do not find favour with me. The arguments advancing the bill are twofold, as I understand it. Firstly, there is a need to restore to the territories a democratic right to legislate for issues such as legalising euthanasia. Further to that, as the states have chosen to legalise euthanasia, this of itself has created an imperative that the right to access a legislative regime allowing euthanasia should be made available to everybody living in Australia.

A territory is not a state. The Senate and the other place are the democratic chambers that have ultimately been entrusted under our Constitution to make decisions for the people residing within the border of a territory. In my view, it is not possible to abrogate that responsibility. We have an obligation to inform ourselves of the consequences of the passage of this bill and make our own judgements accordingly and in accordance with our own conscience. We cannot seek to avert our gaze as to what will happen should this bill pass.

The positions on euthanasia of Territorian parliamentarians are clear and in the public forum. On the same journey of reasoning, I do not warm to the view that, in voting against this bill, I'm in some way diminishing the franchise of those residing in our territories. This debate is inevitably about the legalisation of the practice of euthanasia. To think otherwise is, I respectfully suggest, being wilfully blind. Further, I do not believe that the states that have passed such legislation should have embarked on that legislative path. If I'd remained in the South Australian parliament I would have voted against the proposition. I therefore do not agree with the assertion that euthanasia is a universal right in Australia and that citizens will be disadvantaged in the event access is not legalised and subsequently facilitated.

My views opposing legalising euthanasia are informed by my work in the law, particularly in the area of securing informed consent, and the communities I've lived, worked and volunteered in, as well as my beliefs and ethical understanding of the meaning and value of human life. I acknowledge that arguments for and against euthanasia are complex, and their articulation has filled books, reports and journals. Nothing I say in this contribution will do this issue justice.

The advocacy for legalising euthanasia is grounded on a value placed on individual autonomy, with any associated risks mitigated by imposed safeguards. My strong view is that parliament should not seek to legislate for the taking of life except in circumstances of collective or individual self-defence. A democracy must always have, as its principal concern, value for the lives of its citizens. Representative bodies should never seek to topple or undermine this fundamental pillar that supports our community compact, or seek to normalise the termination of life.

I quote an old adage: 'An act tends to forms a habit, a habit tends to form a character, and a character tends to form a destiny'. Assisted dying is not a private act; it requires the assistance of others. Legalisation of euthanasia blurs the bright line between intending to kill and intending to heal. Such legalisation creates a new permission which will inevitably lead to a shift in professional and legal standards that will not favour the same respect for the sanctity of life. In a just society, no-one is entitled to act on the opinion that the life of another is not worth living. In preparing my comments, I acknowledge the writings of Professor John Finnis that have assisted me in the deliberations on this bill. I do not support the bill.

Jonathon Duniam (Tasmania, Liberal Party, Shadow Minister for Environment, Fisheries and Forestry) Share this | Link to this | Hansard source

I too seek to make a contribution to the debate on the Restoring Territory Rights Bill 2022. It's interesting, and I reflect on the contribution made by my colleague Senator McLachlan. It's an important distinction to make around the eventual intent of the bill relating to, specifically, voluntary assisted dying as opposed to putting the territories of this Commonwealth on the same footing as states.

Before I turn to that issue, I want to start my contribution by reflecting on how difficult and complex this issue is for many Australians, for those who've had personal experiences—family members or friends who have experienced a terrible end to their life and who have sought the services that would be available to them under a legalised arrangement, such as this bill would enable to be contemplated in territories in Australia. I don't want to diminish that at all. I acknowledge the pain that so many people have felt, and friends of my own have gone through some terrible journeys. We've heard many accounts in the debate on this bill thus far and, indeed, in previous versions of it.

In doing that, I think it is important to reflect on what this bill does, what it seeks to do and what consequences may flow from affirming this bill, by passing it and enabling territories to perhaps legislate on the issue of euthanasia. Reflecting again, though, on the fact that the bill does talk about restoring rights to territories, I think it is important to focus on the fact that this bill does singularly enable territories to legislate with regard to one issue, and that is the matter of assisted dying.

It doesn't alter other constitutional arrangements. It doesn't alter issues around resourcing and responsibility for service delivery in the jurisdictions we're talking about here. It doesn't change any of those matters. It simply allows territories to legislate on the matter of voluntary assisted dying, on the matter of euthanasia. It isn't about equality between states and territories. It is important to remind ourselves of that as we proceed to eventually vote on this bill.

Turning to that substantive issue, the ultimate end point here about legislating to enable people to access assisted dying, as this bill would enable contemplation of, I think does deserve serious contemplation. I don't know that the bill does it justice, given that's where we end up. If this bill is passed, the reality is that we are legislating for assisted dying.

At the outset, I want to indicate that I won't be supporting the bill. There are a range of reasons for that, that I've given great thought to over a long period of time. This is not the first time I've thought about this issue. This parliament debated this issue in 2018. With my involvement in politics over many years, I've observed this debate occur in different parliaments, including this one, and have considered the views that have been put forward.

For many across Australia, faith is a reason to vote against such legislation. I'm one of those. As a Christian I believe that life is a gift from God and one that you must be very grateful for and take very seriously. It's on that basis that I fundamentally find great difficulty in what's proposed through this bill. I put this very personal aspect to my thinking on this on record because it is a conscience issue. It is a matter that we are dealing with in conscience.

I want to reflect on the respect with which the debate has occurred in this chamber. It shows that on serious issues we as a parliament, senators in this place, can operate with respect of one another's views while holding different ones ourselves. For me, one of the central reasons I will not be supporting this bill is because of my faith and how I view life. I know I'm not alone in that view and why I hold it, but there are a range of reasons. Many Australians have concerns about, or objections to, this bill and what it will do.

This debate is one that has happened, as I said before, in many, many parliaments across this country and, indeed, across other legislatures across the world. In the United States, for example, between the years 1994 and 2011, there were 122 attempts in Congress and different state legislatures to legislate for voluntary assisted dying or euthanasia. As I examined the issues that have previously been canvassed, I think it's important to note that a lot of the issues that have been raised in these previous debates haven't been addressed satisfactorily to my mind and certainly, I know, to the minds of others that I've corresponded with as I've engaged with members of the community on this issue. Fundamentally, I have to say I remain very concerned that there'll never be a way to completely ensure that any abuses, malfeasance or any other negative activity that might occur can be prevented from occurring by legislating.

I was drawn to an article authored by Mark Powell nearly four years ago now in a publication here in Australia. He outlined 10 non-religious reasons which I thought sum up many of the issues that have been raised in other debates around the country and around the world that I think we do need to consider and pay attention to if we do intend to legislate on these issues, as this bill—if passed—would enable certain parts of our country to do. And I think, going through those reasons, it's important to draw breath and weigh up what actually will happen here.

I know others have considered the issue of the role of the medical practice. What are medical professionals to do? The first concern, of course, is around bioethics: are doctors healers, helpers or killers? In the United Kingdom, a survey showed that the majority of doctors didn't support the practice of euthanasia. Indeed, here in Australia, the AMA has been critical of the practice. Dr Chris Middleton stated:

… I think it would completely change the mindset and the ethos of medicine in Australia because in their practice in training, doctors tend to see themselves as agents of hope and healing and comfort and certainly not as agents of death …

That does change the focus of the role of the medical practitioner who is seeking to heal and to help. That is one thing we need to consider. Does a change of this nature change that relationship and the role of the doctor as well?

Secondly, there is the potential for elder abuse. The European Court of Human Rights stated that that the risk of abuse inherent in a system which facilitated assisted suicide should not be underestimated. Jeremy Pritchard wrote in an op-ed in the Examiner in my home state of Tasmania:

In coming decades we face a rapidly aging population, a shrinking tax base and increases in health problems like dementia…euthanasia could form part of government planning for service provision for people nearing end-of-life…If that sounds far-fetched, consider two cases from Oregon where patients' applications for medical treatment were rejected, but followed by departmental notifications informing the patients they were eligible for assisted dying.

I think those sorts of examples are things to be very concerned about. When these options are available, perhaps government entities might well turn to them as a way of dealing with some of these issues.

Psychological pressure is a third concern to consider around ending one's life. There were statistics taken from the state of Oregon in the United States. Oregon, of course, legalised euthanasia in 1997. There was a study undertaken around people's attitudes in this case on the issue of pressure—a concern around wanting not to be a burden to their family or friends and citing that as a reason to elect to be euthanised. In 1998, 12 per cent of those surveyed indicated that that was a reason for their electing to voluntarily suicide. In 1999, that went up to 26 per cent. In the year 2000, that was at 63 per cent. Fast forward to 2012 and, according to the statistics available to me, that was at 57 per cent. So people are citing wanting not to be a burden as a reason to elect out of this life.

The fourth reason is the negative societal perception of those who have a disability, with death being treated as an act of compassion. As stated by Jeremy Prichard and another author, there is a claim or an 'implication that some people are "better off dead" and that "some lives are not worth living"'. They're phrases that I think we need to be very wary of, but they're ones that have been used in this debate across the globe.

The issue of bracket creep is another concern, and it's something that has been observed in other countries where euthanasia has been legalised. If that is the wish of the family, and they've pressured a patient to choose to be euthanised, what sorts of practices are we enabling to be included in that? What sorts of reasons are we enabling to be included as legitimate reasons to elect to voluntarily end one's life? Bracket creep is something very, very serious that we need to take into account.

Safeguards are of course something that we need to consider. Again, I mention this point around never being able to properly ensure that there will never be any abuse of these laws. The same document I've already referred to by Jeremy Prichard states:

In the Flanders region of Belgium approximately half of euthanasia cases are not formally monitored as doctors do not report them to authorities. The rate of underreporting in the Netherlands appears to be between 20%-23%.

It also says that in the state of Oregon the number of people being referred for psychiatric evaluation has decreased markedly. It went from 31 per cent in 1998, the year after voluntary assisted dying was legalised, to two per cent in 2012—the same period of time.

Obviously, there are concerns around non-voluntary euthanasia in Belgium, where euthanasia has been legal since 2002. It's been claimed that people have been put to death without consent. Providing surety around preventing that from happening is I think something we'll never be able to do, given the nature of relationships between carers, patients and family members. We've already talked about some of those concerns.

I could go on with a lot more around the concerns and claims that have been experienced in other jurisdictions as reasons not to head down this path. I cannot find one reason to do so, as I said before, on the basis of my faith and my belief in the sanctity of life. Also, importantly, I cannot find one reason to wave through legislation that would enable jurisdictions in this country to legislate for something that I don't think can ever be done safely or can ever be done in a way in which we can prevent there being abuse, malfeasance, bracket creep and pressure on individuals to end their lives for reasons not entirely pure.

I acknowledge the difficulty so many in our community face with this issue, with family members who've experienced extreme pain as they have ended their lives and with people who've witnessed family members suffering terribly. I acknowledge the difficulty and the complexity of the issues they've faced. But, for those reasons and the risks I've outlined, I cannot support this bill.

Matthew Canavan (Queensland, Liberal National Party) Share this | Link to this | Hansard source

I oppose the Restoring Territory Rights Bill 2022, because I believe there's nothing more important than protecting the sanctity and sacredness of life. I am concerned that going down a path to legalise or sanction the removal of one's life elevates, above life, issues that are not to do with the sacredness of life. Once we get onto that path we move down into a utilitarian world, which can be very dangerous.

I will come back to those points, but first I want to deal with the fact that of course this bill itself doesn't seek to legalise euthanasia; it simply seeks to give those rights and powers back, or reinstate them after an amendment in the late 1990s, to the ACT and the Northern Territory. A lot's happened in the past 25-odd years. The rationale for this restriction 25 years ago was a strong one because at that time no other jurisdictions in Australia had legalised euthanasia. The territories being smaller jurisdictions, I don't think it would have been proper for them to make such a monumental change first. It was right and proper to see that change occur in jurisdictions with a larger percentage of the Australian population.

Since then, many jurisdictions have legalised euthanasia, so perhaps the original justification for this restriction is not as strong. But I take up the points that Senator Duniam made here that this is not quite a black-and-white question and it's not simply a decision to legalise euthanasia or ban euthanasia, because—as we have seen in countries that have longer experience with this—once euthanasia is made legal there are extremely difficult circumstances that arise. There are not clear lines about who should have access to assisted suicide and how the arrangements around that might be regulated. In fact, what we have tended to see in countries that have legalised euthanasia is a continual expansion of the availability of assisted suicide to more and more people.

For example, in the Netherlands euthanasia has been legal since 2006, and the number of deaths from assisted suicide has risen from two per cent to four per cent of all deaths over that period. There was also a case in recent years where a dementia patient who had not consented to being euthanised was given a sedative. She actually woke up during the process, though it was later concluded with additional drugs, I believe. Also, a survey done in the Netherlands in 2015 found that six per cent of euthanasia cases were carried out without the explicit request of the patient. In Oregon, the rate of complications of cases where circumstances are known was almost seven per cent in 2020. This raises the question that, if we are to allow the territories to not simply legalise euthanasia but also, of course, design the regulations around it, what protections are there in place to ensure that we do not go down the paths of other countries? I don't think this is being proposed by most people who've made contributions to this debate. I think most of the people who support euthanasia come in good faith and seek for it to involve circumstances at the end of life where there are few options for people. But clearly in other countries there has been this expansion of the use of euthanasia to cases in which those circumstances clearly do not apply. How can we ensure that it is properly administered in the territories in question, where there are unicameral parliaments—there are not upper houses—and there is not the same parliamentary rigour associated with changing laws in these circumstances? I realise this is a tough issue for the territories, who would understandably think, 'We deserve to decide on issues in our regions.' But given their smaller numbers, and the fact that they do not have a bicameral system and are representing a much smaller percentage of the Australian population, I remain of the view that it's still right and proper for the Australian parliament to set any regulations for the territories.

We could, of course, debate a bill in this chamber that did legalise euthanasia in the ACT and NT. We have the power to do that, just as the states do, and I would recommend that would be a much better pathway here because that would allow us to go through a full Senate committee process and weigh up all of these very difficult questions with due consideration.

I also think that right now, given the circumstances, especially in the Northern Territory, we have other issues we should be focused on, especially on life matters. There is a shocking outbreak of violence in many areas of the Northern Territory and there is a real deterioration in social and community conditions. A year and half or so ago, I was there in Darwin. In the outer circuits of Darwin, not just in communities, there is barbed wire around people's fences in the suburbs because of out-of-control crime and violence. I come back to my original point here that right now we should be fighting steadfast for the protection of every human life, the dignity of every human life, and the minimisation of that is one of the ills that is creating a breakdown in communities and societies in the Western world.

We have been founded as a Judaeo-Christian country. The preamble to our Constitution is done so, humbly, under God, and those words were said by our founding fathers because they believed we were all created in God's image. That preamble—while not saying it explicitly—effectively embodies the Judaeo-Christian view that every human life is sacred and should be protected and not sacrificed for other ends. In saying that, I recognise that in the difficult cases that we often discuss with legislation like this, there should be the provision of appropriate palliative care to make the suffering at the end of life no harder than it otherwise should be. But as soon as we break the glass on that principle that life is more important than anything else then we open the question to what else should be treated for it? Because, effectively, what we are saying with legislation seeking to eventually deliver legalisation of euthanasia is that the human suffering that occurs at the end life, which is terrible and very difficult for people to go through, is more important to avoid than the protection of life.

I am trying to give the best of the demonstration of the argument of my opponents of this debate. They are ultimately saying that the human suffering at these times can be so great that it outweighs the principle that we should protect life. I'm not saying my opponents don't want to protect life. I'm sure they do but they are introducing a circumstance where the suffering at the end of life is more important than the actual protection of life itself. I worry about the can of worms it opens because it is a utilitarian calculation.

I oppose this bill because I believe in the natural law we get from Moses and the 10 commandments especially. But wherever you get it from, the ethical system is a natural law that says there are certain axioms, certain beliefs or ethical behaviours that cannot be avoided, that cannot be offset through some other circumstance. So the protection of 'thou shalt not kill' is one of those that we must adhere to in everything we do. I think the communities, the societies based on a natural law, be it a Judaeo-Christian one or another one, have tended to be the most generous, compassionate and, ultimately, cohesive societies because we are all on an equal footing before God, or because we all agree to certain principles. Once you introduce some kind of utilitarian ethic that someone's life is less important than another's, well, that does open a Pandora's box of ethical questions that often lead to the greatest demonstrations of evil that we have seen on the earth.

I believe there is something special and unique about human life, about humans. We should do everything we can to reduce human suffering, but breaking and breaching that principle of human life opens us up to the kinds of calculations that would occur in a spreadsheet, not the humane principles of caring for and loving every human being. We should, through the laws passed in this place, seek to celebrate human life and to demonstrate a love for human life, including for those who suffer on this earth. By sanctioning in any way the removal of life violates, in my view, those principles. The best ethical system has given us the country that we sometimes take for granted.

As I said earlier, I do think that the issues that are important to the people of the ACT and the Northern Territory definitely deserve consideration in this parliament. I would encourage my colleagues that would seek to change the principles around this issue to bring forward legislation that we could consider properly. I do think that the ways and methods by which we're seeking to do this will not provide the proper parliamentary scrutiny this issue deserves. For example, through this particular process, we really haven't been debating these weighty issues of who should have access to euthanasia, who has to approve it, how many doctors have to be involved, or whether people have to be of a certain age or consciousness to make a decision to conduct assisted suicide. Those questions have not been canvassed in this debate—they really haven't been—in a proper parliamentary way, because we're focused here on the process, not the particulars of euthanasia.

I go back to where I started here: I do think we are a mature enough body to weigh those issues up ourselves. We could do so in a way that takes into account the views and considerations of the territories. Our Constitution gives us that right for a reason. We have the absolute constitutional right to make laws for the territories. That was put in our Constitution for a reason—the reason being that this parliament has got a scale that gives us the capacity to potentially deal with issues of this greatness that aren't always available to smaller jurisdictions. Of course, if those jurisdictions do and want to become states themselves, that particular constitutional hurdle will be removed too. The Northern Territory has had the opportunity, at least, to acquire statehood. That wasn't supported when it was put to their people many decades ago. That would be another process that could obviate this need. If one of these territories becomes a state, we would no longer have the power over them. But while they are territories, there is a good reason in our Constitution, in my view, for oversight from this body—not just the House of Representatives but the Senate as well. I think that would be a much better way to deal with these sensitive but very, very weighty issues.

Debate adjourned.

Sitting suspended from 18:03 to 20:15