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| This Research Note should be read in conjunction with Research Note No 33, March 1997, Constitutional Arguments Against Removing the Territories' Power to Make Laws Permitting Euthanasia, which outlines six main arguments against the Federal Parliament taking away part of the legislative powers of the Territories by passing the Andrews Bill. |
Introduction
The Euthanasia Laws Bill 1996 was introduced into the House of Representatives on 9 September 1996 as a Private Member's Bill by Kevin Andrews. It passed the House on 9 December 1996 by a vote of 88 to 35. This Bill-the Andrews Bill-is currently being considered by the Senate Legal and Constitutional Legislation Committee which is due to report on 5 March 1997. Debate in the Senate on the Andrews Bill is scheduled to begin on 18 March 1997.
The Andrews Bill seeks to take away the power of the legislative assemblies of the Northern Territory, the Australian Capital Territory and Norfolk Island to make laws:
If the Andrews Bill is passed by the Senate, one effect of its passage will be to overturn the Northern Territory's euthanasia law-the Rights of the Terminally Ill Act 1995 (NT) [RTI Act].
The Andrews Bill may also impact on the Territories' powers to pass other kinds of laws. These laws may include: "refusal of medical treatment" legislation of the kind that already exists in the Northern Territory and in the Australian Capital Territory; and legislation that clarifies the legal position of a doctor who administers palliative care that hastens a patient's death. These questions are beyond the scope of this Research Note.
Section 122 of the Australian Constitution confers a power on the Commonwealth to make laws for the government of any Territory. This is a plenary power, unlimited by subject matter. The Federal Parliament therefore clearly has the constitutional power to enact a law that has the effect of overturning the RTI Act. There may be some doubt, however, as to whether the way in which the Andrews Bill seeks to bring about this result is within the scope of the Commonwealth's powers under section 122.
The main constitutional issues raised by the Andrews Bill are, however, political rather than legal. The central question is whether or not it is acceptable politically for the Commonwealth to take back part of the legislative powers it conferred on these Territories at self-government. This research note outlines six main arguments in favour of the Federal Parliament taking away part of the legislative powers of these Territories by passing the Andrews Bill.
Argument 1
The RTI Act is really a law for the whole of Australia. It is not just a law that is confined to the Northern Territory. People from anywhere in Australia, who satisfy the conditions in this legislation, can travel to the Northern Territory and use the legislation to obtain a doctor's help in ending their lives. For example, the second of the three people who have died under the RTI Act was a woman from South Australia. The Federal Parliament therefore is entitled to remove the powers of the Territories in order to protect Australians who live outside the Northern Territory from a law that can apply to them.
Argument 2
The legalisation of euthanasia by the Northern Territory is a world first: no other country has laws in place that allow a doctor to kill a patient. The existence of the RTI Act therefore brings Australia into international disrepute. The Federal Parliament should use its power over the Territories to override the Northern Territory euthanasia law in order to protect Australia's international standing.
Argument 3
The RTI Act is against the interests of the Aboriginal population in the Northern Territory. The existence of this legislation offends Aboriginal customary law and traditional beliefs and rituals surrounding death. Further, the existence of the RTI Act is likely to deter Aboriginal people in the Northern Territory from using health services because of fears that they will be killed without their consent. The passage of the RTI Act shows that the Northern Territory Legislative Assembly cannot be trusted to ensure adequate protection of the beliefs, health and lives of Aboriginal people in the Northern Territory. The Federal Parliament should intervene to protect this particularly vulnerable group of Australians.
Argument 4
The Federal Parliament should overturn the RTI Act because the Northern Territory legislation offends basic human rights principles. Removing the Territories' power to make this kind of law is the best way to remove this threat to human rights, because it ensures that neither the Northern Territory nor any other Territory will be able to legalise euthanasia in the future. The Federal Parliament could not, however, legislate to overturn a State law legalising euthanasia. The Australian Constitution does not provide that euthanasia is within the legislative powers of the Commonwealth. The Andrews Bill therefore is an appropriate law because it involves the Federal Parliament legislating against euthanasia to the maximum extent possible.
Argument 5
When it attained self-government in 1978, the Northern Territory was not granted the full range of legislative and executive powers. For example, the Federal Parliament specifically and expressly withheld from Northern Territory Ministers the executive authority over the mining of uranium and over Aboriginal land rights. These are both matters of political sensitivity and of national importance. Euthanasia is also a politically sensitive issue of national importance. Had the Federal Parliament turned its mind to the issue when it was granting self-government to the Northern Territory, it would have excluded euthanasia from the legislative and/or executive competence of the Territory government. The passage of the Andrews Bill would achieve this result.
Argument 6
The grant of self-government to the Northern Territory in the Northern Territory (Self-Government Act) 1978 (Cth) did not erode the supremacy of the Federal Parliament over this Territory. This grant of self-government did not in any way limit the Commonwealth's plenary legislative power over the Territory in section 122 of the Australian Constitution. Nor did this Commonwealth legislation confer full legislative and executive powers on the Northern Territory (as discussed above). Finally, the Northern Territory (Self-Government) Act 1978 (Cth) specifically states that the Governor-General may disallow legislation passed by the Northern Territory Legislative Assembly, in part or in its entirety, within six months of the Administrator's assent to the legislation. Alternatively, the Governor-General can recommend amendments to the legislation. Disallowance by the Governor-General repeals the legislation.(1)
More Information
The following sources of additional information may be useful:
Senate Proof Committee Hansard, Senate Legal and Constitutional Legislation Committee (Reference: Euthanasia Laws Bill 1996): 24 January 1997 (Darwin Hearings-see particularly evidence given by Northern Territory Government); and 13-14 February 1997 (Canberra Hearings-see particularly evidence given by Mr Chips Mackinolty; Australian Capital Territory Government; Commonwealth Attorney-General's Department; Mr George Williams; Fr Frank Brennan).
Senate Standing Committee for the Scrutiny of Bills, Alert Digest, No 7 of 1996, 18 September 1996.
J. Norberry and N. Cica, Euthanasia Laws Bill 1996, Bills Digest No 45 1996-97, Department of the Parliamentary Library, 1996.
Endnote
