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The Senate Legal and Constitutional Legislation Committee's Report
on the Euthanasia Laws Bill 1996-Background, Summary and Responses
Natasha Cica
Law and Bills Digest Group
Contents
On 25 May 1995 the Northern Territory Legislative Assembly passed
the Rights of the Terminally Ill Act 1995 (NT). This legislation,
and regulations made under it, came into effect on 1 July 1996. The
legislation allows a doctor to accede to a request from a terminally
ill, competent adult patient for assistance in ending the patient's
life, if specified conditions are satisfied. The Northern Territory
is the only jurisdiction in the world with an operative statutory
regime of this kind.
At the time of writing, four people have used this legislation to
obtain a doctor's assistance to end their lives.
The Rights of the Terminally Ill Act 1995 (NT) has been the
subject of a number of legal attacks. None has yet been successful.
One of these attacks was the introduction of a Private Member's
Bill into the Federal Parliament in September 1996 by Liberal backbencher
Kevin Andrews. His Euthanasia Laws Bill 1996 was passed by
the House of Representatives on 9 December 1996 by a vote of 88 to
35. Debate on this Bill in the Senate is scheduled to begin on 18
March 1997.
The Euthanasia Laws Bill 1996 seeks to take away the power
of the legislative assemblies of the Northern Territory, the Australian
Capital Territory and Norfolk Island to make laws permitting 'the
form of intentional killing of another called euthanasia (which includes
mercy killing) or the assisting of a person to terminate his or her
life'. If this Bill is enacted, one effect of its passage will be
to overturn the Rights of the Terminally Ill Act 1995 (NT).
The Euthanasia Laws Bill 1996 may also have other effects.
The possible legal and constitutional effects of the passage of this
Bill have been the subject of a great deal of disagreement.
Two Senate Committees have commented on the possible effects of
the Euthanasia Laws Bill 1996. The first of these Committees
was the Senate Standing Committee for the Scrutiny of Bills. In its
report of 18 September 1996, this Committee raised a number of concerns
relating to the effect of the Euthanasia Laws Bill 1996 on
'self-government rights' for Territory citizens. It stated that the
provisions of this Bill 'may be considered to trespass unduly on personal
rights and liberties'.
In November 1996, a second Senate Committee was asked to examine
the Euthanasia Laws Bill 1996. That Committee was the Senate
Legal and Constitutional Legislation Committee. The Senate directed
that Committee to inquire into four aspects of the Euthanasia Laws
Bill 1996:
- The desirability of the enactment of the provisions;
- The constitutional implication for the Territories of the enactment
of the provisions;
The impact of the enactment of the provisions on the Northern
Territory criminal code; and
- The impact on, and attitudes of, the Aboriginal community.
The report of this Committee was tabled
in the Senate on 6 March 1997. The report contains no recommendations
to the Senate on the Euthanasia Laws Bill 1996, on the
basis that it is a Private Member's Bill and is subject to a 'conscience
vote'.
Seven separate responses to the Committee's report, from Senators
who were either Members or Participating Members of the Committee
during this inquiry, are appended to the report. Two of these
responses (the response from Senator Abetz and twelve other Senators,
and the response from Senator Cooney) express support for the
Euthanasia Laws Bill 1996. Three of the responses (the
response from Senators Bolkus and McKiernan, the response from
Senator Brown, and the response from Senators Tambling and Collins)
are critical of the Euthanasia Laws Bill 1996 and/or the
Committee's inquiry and report. In her response, Senator Coonan
reserves her comments on the Bill until the matter is debated
in the Senate. Senator Ellison's separate (and additional) response
relates to Committee procedural matters.
If the Senate passes the Euthanasia Laws Bill 1996, the
Courts may be asked to rule on the constitutional validity of
this legislation, and/or the scope of its impact on the criminal
law in the Territories. The ACT Government has indicated its willingness
to pursue at least a constitutional challenge to the legislation
if it is enacted.
If the Senate rejects the Euthanasia Laws Bill 1996,
the High Court of Australia is likely to proceed with hearing
the application for special leave to challenge the validity of
the Rights of the Terminally Ill Act 1995 (NT), which
it adjourned in November 1996. The ACT Legislative Assembly
would also progress with its vote on a Private Member's Bill,
introduced by Independent MLA Michael Moore, that seeks to legalise
active voluntary euthanasia in the ACT for terminally ill adults
suffering from intolerable pain or distress caused by their illness.
Debate on this Bill is planned to resume in April 1997.
Regardless of the outcome of the Senate's vote on the Euthanasia
Laws Bill 1996, the possibility remains that an Australian
State will in the future enact legislation along the lines of
the Rights of the Terminally Ill Act 1995 (NT).
On 6 March 1997 the Senate Legal and Constitutional Legislation
Committee released its report on the Euthanasia Laws Bill
1996, which seeks to override the Northern Territory's Rights
of the Terminally Ill Act 1995 (NT) [RTI Act] and prevent
the Territories from passing similar laws in the future. This
Current Issues Brief outlines the developments leading to the
examination of this Bill by the Senate Legal and Constitutional
Legislation Committee. It then summarises that Committee's report,
and examines the responses to that report from Senators who are
Members and Participating Members of the Committee.
On 25 May 1995 the Northern Territory Legislative Assembly passed
the RTI Act by 15 votes to 10. The legislation originated
as a Private Member's Bill introduced into the Northern Territory
Legislative Assembly on 22 February 1995 by the (then) Chief Minister
of the Northern Territory, Marshall Perron.
The RTI Act allows a doctor to accede to a request from
a terminally ill, competent adult patient for assistance in ending
the patient's life if specified conditions are satisfied.(2) A
doctor who provides such assistance in compliance with this legislation
is immune from any civil or criminal action and from any professional
disciplinary action, provided the doctor has acted 'in good faith
and without negligence'. This immunity extends to all other people,
including other health care professionals, who are involved with
the death of the patient.(3)
If a doctor does choose to comply with a patient's request under
the RTI Act, the doctor may do so by prescribing a lethal
substance, preparing a lethal substance, giving a lethal substance
to the patient for self-administration, and/or administering the
lethal substance to the patient.(4) The RTI Act therefore
authorises both so-called 'physician-assisted suicide'(5) and
so-called 'active voluntary euthanasia'.(6) The passage of this
legislation made the Northern Territory the first-and to date
the only-jurisdiction in the world to enact legislation that expressly
allows doctors to engage in both physician-assisted suicide and
active voluntary euthanasia.(7)
The RTI Act and regulations(8) made under the legislation
came into effect on 1 July 1996. In its current form, the legislation
incorporates amendments passed on 20 February 1996 relating to
the number and qualifications of the doctors who must assess a
patient requesting assistance under the legislation,(9) and relating
to the interpreter provisions of the legislation.(10)
At the time of writing, four people are known to have used the
RTI Act to obtain a doctor's assistance to end their lives.
All four people were cancer sufferers who were assisted to die
by Darwin medical practitioner Dr Philip Nitschke. Two were residents
of the Northern Territory, one was from South Australia and the
other was from New South Wales.
There have been a number of attempts to overturn or otherwise
invalidate the RTI Act since the legislation was passed
by the Northern Territory Legislative Assembly.
Opponents of the legislation argued that the Governor-General
of Australia should exercise his powers under the Northern
Territory (Self-Government) Act 1978 (Cth) and disallow the
legislation.(12) The Governor-General could have done this within
six months of the assent to the legislation by the Administrator
of the Northern Territory, which occurred on 16 June 1995. The
Governor-General did not use these powers to disallow the legislation.
There were attempts in the Northern Territory Legislative Assembly
in February, March and August 1996 to repeal the RTI Act.
All these attempts failed.(13)
In June 1996 a private legal challenge was initiated in the
Northern Territory Supreme Court in an attempt to prevent the
RTI Act from coming into effect. The action was brought
by the President of the Northern Territory branch of the Australian
Medical Association, Dr Christopher Wake, and by Aboriginal leader
Reverend Dr Djiniyini Gondarra. By a majority of 2:1, on 24 July
1996 the Northern Territory Supreme Court rejected the challenge
to the legislation.(14) The plaintiffs sought special leave to
appeal against this ruling to the High Court of Australia. The
application for special leave was heard by Brennan CJ, Gaudron
and Gummow JJ on 15 November 1996. The application was adjourned
pending the conclusion of the Federal Parliament's deliberations
on a Private Member's Bill that seeks to overturn the RTI Act.
That Bill is the Euthanasia Laws Bill 1996 (the Andrews
Bill). It was introduced into the Federal House of Representatives
on 9 September 1996 by Kevin Andrews, a Liberal backbencher from
Victoria. It passed the House of Representatives on 9 December
1996 by a vote of 88 to 35. 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:
... which permit or have the effect of permitting ... the form
of intentional killing of another called euthanasia (which includes
mercy killing) or the assisting of a person to terminate his or
her life.
If the Andrews Bill is passed by the Senate, one effect of its
passage will be to overturn the RTI Act.
The Andrews Bill may also have other legal effects. Its passage
could 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.
The Andrews Bill could also have constitutional effects. 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 central constitutional question raised by the Andrews Bill
is, however, political rather than legal. That question is whether
or not it is acceptable politically for the Commonwealth to take
back part of the legislative powers it conferred on the Northern
Territory, the Australian Capital Territory and Norfolk Island
at self-government.(15)
The possible legal and constitutional effects of the passage
of the Andrews Bill have been the subject of a great deal of public
debate and commentary. There is considerable disagreement as to
exactly what these legal and constitutional effects might be.
There is also considerable disagreement as to whether or not,
if the passage of the Andrews Bill would do more than simply
invalidate the RTI Act, the resulting legal and constitutional
effects would be justified or desirable.
These mooted legal and constitutional effects of the Andrews
Bill have been explored, to varying extents, by the two Senate
Committees that have published comments on this legislative proposal.
The first Senate Committee that examined the provisions of the
Andrews Bill was the Senate Standing Committee for the Scrutiny
of Bills. That Senate Committee 'has a watching brief to alert
the Senate to the possibility that Bills coming before the Senate
may by express words or otherwise breach certain defined principles'.(16)
Whether or not Bills 'trespass unduly on personal rights and liberties'
is one of those principles.(17)
The Senate Standing Committee for the Scrutiny of Bills reported
on the Andrews Bill on 18 September 1996.(18) It characterised
the Andrews Bill as seeking 'to take away from the people living
within those democracies [the Territories] an ability they now
have to elect an assembly with power to legislate about a matter
of great moment'.(19) Under the general heading 'self-government
rights', it raised the following matters in relation to the Andrews
Bill:
- The Commonwealth Parliament having given the Legislative Assembly
of each Territory the power 'to make laws for the peace, order
and good government' of each Territory, would, by this bill,
negate the valid exercise of that legislative power by one of
them.
- The Commonwealth Parliament, by this bill, proposes to intrude
on the lawmaking function of the Territories not in accordance
with a general principle but on an ad hoc basis. This threatens
the certainty which ought exist for its citizens when any one
or more of the Territories passes a valid law.
- The Commonwealth Parliament, while undoubtedly having the
power to pass this bill, would, by so doing, create a situation
where some Australians are treated in a way different from other
citizens because it curtails their present right to self-government
in circumstances where, were they to live in the States, it
could not do so.
- The Northern Territory (Self-Government) Act 1978 has
now been in operation for a number of years and, up to the time
this bill was introduced, people living there had the reasonable
expectation that the statute would not be amended to deprive
their Assembly of a power it had held for over a decade and
a half. This bill now puts that reasonable expectation at risk.
- This bill, if passed, would override the decisions of the
democratically elected government of the Northern Territory
when it appears that there would be no head of power or international
convention by which it could override the same or similar legislation
enacted by the States.
In relation to the Andrews Bill, the Senate Standing Committee
for the Scrutiny of Bills commented that the Bill's provisions
'may be considered to trespass unduly on personal rights and liberties,
in breach of principle 1(a)(i) of the committee's terms of reference'.
It may be noted that it is not the practice of this Senate Committee
to express a 'concluded view on whether any provisions offend
against its principles or should be amended', because '[t]hese
are regarded as matters for the Senate to decide'.(20)
The Inquiry
On 7 November 1996 the Senate referred the Andrews Bill to another
of its Committees: the Senate Legal and Constitutional Legislation
Committee. Four specific areas of inquiry were nominated:
- The desirability of the enactment of the provisions;
- The constitutional implication for the Territories of the
enactment of the provisions;
- The impact of the enactment of the provisions on the Northern
Territory criminal code; and
- The impact on, and attitudes of, the Aboriginal community.
The nominated reporting deadline was 24 February 1997, which
subsequently was extended to 6 March 1997. The Committee set 12
December 1996 as its deadline for receiving submissions from interested
individuals and organisations. It did, however, receive and consider
supplementary submissions from some of these interested individuals
and organisations until immediately prior to finalising its report.
A total of over 12 500 written submissions were received. This
is the largest number of submissions ever received by a Senate
Committee during the course of an inquiry.
The Committee conducted public hearings on the Andrews Bill
in Darwin on 24 January 1997 and in Canberra on 13-14 February
1997.
The Committee Report
The Committee's report was tabled in the Senate on 6 March 1997.
This report comprises nine Chapters:
- Chapter 1 outlines the content and history of the Andrews
Bill.
- Chapter 2 outlines the content and history of the RTI Act.
- Chapter 3 discusses the constitutional issues raised by the
Andrews Bill. It canvasses arguments in favour of, and against,
removing the self-governing Territories' legislative power to
make laws permitting euthanasia. It also discusses the feasibility
of enacting a national euthanasia law.
- Chapter 4 discusses legal issues arising from the terminology
used in the Andrews Bill. It focuses particularly on claims
that the use of the term 'intentional killing'-which is not
defined in the Andrews Bill-would create unacceptable legal
uncertainty if the Andrews Bill were to be passed. This Chapter
explores the extent of any uncertainty that would arise, the
practical implications of such uncertainty, and the question
of whether the Andrews Bill should be amended to reduce this
uncertainty.
- Chapter 5 reviews evidence received as to the impact on the
Aboriginal community of the RTI Act, including evidence
as to the impact on the willingness of Aboriginal Australians
to access medical services. This Chapter discusses the attitudes
of the Aboriginal community to euthanasia in general and to
the RTI Act in particular.
- Chapter 6 discusses moral, philosophical, ethical and social
arguments in favour of, and against, legalising active voluntary
euthanasia.
- Chapter 7 summarises the results of Australian surveys that
indicate the attitudes of the general public to voluntary euthanasia,
the attitudes of the medical profession to voluntary euthanasia
and the current practices of medical practitioners, and the
extent of support in the Northern Territory for the RTI Act.
- Chapter 8 discusses three of the inquiries that have been
conducted overseas into matters related to voluntary euthanasia.
It also examines the practice of voluntary euthanasia in the
Netherlands and Switzerland, and discusses Oregon's Death
with Dignity Act.
- Chapter 9 contains a Summary of the Committee's report. It
focuses on arguments relating to four major issues which, in
the opinion of the Committee, the Senate should consider when
considering the Andrews Bill:
- The 'Territory Rights' issue;
- The claim that the Bill may contain or lead to legal uncertainty;
- The claim that the Northern Territory's Rights of the
Terminally Ill Act is having unacceptable impacts on
the Aboriginal community; and
- The more general moral, philosophical, ethical and social
arguments about euthanasia.
The Committee's report contains no recommendations. It reaches
the following conclusion:
The Committee makes no recommendation to the Senate on the Euthanasia
Laws Bill because it is a private member's Bill and is subject
to a 'conscience vote'.(21)
A number of Appendices are attached to the Committee's report.
Appendix 1 provides some analysis of the submissions to the Committee.
Appendix 2 lists the witnesses who appeared before the Committee
in Darwin and in Canberra. Appendix 3 is a paper provided to the
Committee by the Northern Territory Government, entitled Hospital
Services Supplied to Aboriginal People in the NT 1993-96.
Seven separate responses, from Senators who were either Members
or Participating Members of the Senate Legal and Constitutional
Legislation Committee during this inquiry, are also appended to
the Committee's report. Each response is summarised below.
Response from Senator Abetz and twelve other Senators
The first response is endorsed by Senators Eric Abetz (Liberal,
Tas; Chair of the Committee from 3 March 1997), Mark Bishop (ALP,
WA), Jacinta Collins (ALP, Vic), Stephen Conroy (ALP, Vic), Christopher
Ellison (Liberal, WA; Chair of the Committee until 3 March 1997),
Jeannie Ferris (Liberal, SA), Brian Harradine (Independent, Tas),
William Heffernan (Liberal, NSW), John Hogg (ALP, Qld), Julian
McGauran (National, Vic), Nicholas Minchin (Liberal, SA), William
O'Chee (National, Qld), and John Woodley (Democrat, Qld).
This response takes the form of an 'Advice to the Senate'. Its
structure mirrors that of the Summary in Chapter 9 of the Committee's
report, except that it contains comments, conclusions and recommendations
that do not appear in the Committee's report.
The response from these Senators builds on the four major issues
identified in the Committee's report:
- The 'Territory rights' issue.(22) These Senators consider
that the proposed exercise of the Commonwealth's legislative
powers over the Territories, to remove part of the powers conferred
at self-government, is justified on this occasion. Their view
is that this kind of legislative intervention by the Commonwealth
is only justified in exceptional circumstances, which in their
opinion arise here:
It is difficult to envisage a more exceptional circumstance
than euthanasia being as it is an issue that deals with the life
and death of Australian citizens, indeed potentially all the people
of the world.
- The claim that the Bill may contain or lead to legal uncertainty.(23)
These Senators find persuasive the view that the term 'intentional
killing' has a clear and narrow legal meaning. They do not accept
that passage of the Andrews Bill would create uncertainties
about the validity of existing and future laws relating to aspects
of medical end-of-life decisions. Nor do they accept that passage
of the Andrews Bill would interfere with generally accepted
medical practices. They state that '[u]ncertainty in legislation
is to be avoided if possible but is also unavoidable' and point
to the Australian Constitution as an uncertain legal document
which is nonetheless workable. They go on to state that the
uncertainties inherent in the provisions of the RTI Act render
the possibility of abuse of its provisions 'ever present'.
- The claim that the Northern Territory's Rights of the Terminally
Ill Act is having unacceptable impacts on the Aboriginal community.(24)
These Senators dispute claims that the Christian churches have
provided misinformation to Aboriginal communities about the
RTI Act and manufactured Aboriginal opposition to that legislation.
They find 'compelling' the view of one witness to the Committee
that the very existence of the RTI Act is a 'significant
threat to Aboriginal health'. They note that all of the 200
submissions to the Committee from Aboriginal people opposed
the RTI Act and that these submissions consistently referred
to Aboriginal fears of seeking medical treatment because of
legalised voluntary euthanasia.
- The more general moral, philosophical, ethical and social
arguments about euthanasia.(25) Senator Abetz et al
consider that the general moral, philosophical, ethical and
social arguments about euthanasia indicate that legalising its
practice constitutes 'dangerous and unwise public policy'. They
identify the sanctity of human life, and the attendant prohibition
of intentional killing, as 'the cornerstone of law and of social
relationships'. They seek to counter pro-euthanasia arguments
based on 'individual rights', 'choice', 'dying with dignity'
and social and religious pluralism. They also examine, and reject,
the claim that voluntary euthanasia should be legalised on the
basis that it would be a compassionate response the plight of
suffering individuals:
While many a moving and passionate submission was presented detailing
individual circumstances, we are of the view that ... [n]o question
as serious as euthanasia should be settled on individual cases.
A general principle must be found which transcends particular
cases.(26)
They also reject the claim that voluntary euthanasia should
be legalised because it already happens. They affirm the 'strong
intuitive moral and clinical distinctions' between stopping life-sustaining
medical treatment and giving a lethal injection, and between a
situation where a doctor intends to kill a patient and a situation
where a doctor administers palliative care which may have the
'double effect' of hastening death. They state that it must be
recognised that the RTI Act represents a major shift:
[from] a situation, where no citizen may intentionally take
the life of another citizen, to a regime, where certain citizens
are given a full legal sanction and Parliamentary endorsement
to intentionally take the lives of certain other citizens.(27)
This response therefore strongly favours passage of the Andrews
Bill. It advises the Senate of the following:(28)
- It is desirable for the Euthanasia Laws Bill 1996 to be passed
without amendment;
- There are no Constitutional implications for the Territories;
- There will be no adverse impact on the provisions of the Northern
Territory Criminal Code;(29) and
- That the RTI Act has had, and will continue to have,
an unacceptable impact on the attitudes of the Aboriginal community
to health services. The Euthanasia Laws Bill 1996 if
enacted would override the RTI Act and thereby relieve
the Aboriginal community of its overwhelming and deeply felt
concern at the Northern Territory's legislation.
Response from Senators Bolkus and McKiernan
Senators Nick Bolkus (ALP, SA) and Jim McKiernan (ALP, WA; Deputy
Chair of the Committee) include a response stating that it is
their intention not to support the Andrews Bill when it is debated
in the Senate.
They state that they have arrived at this decision 'for a variety
of reasons which are founded in the evidence and submissions to
the Committee'.(30) They identify four central issues:
- Constitutional issues. Senators Bolkus and McKiernan
refer to the possibility of a High Court challenge to the constitutional
validity of the Andrews Bill (a possibility foreshadowed by
the ACT Government), notwithstanding the strong views presented
to the Committee affirming that the Commonwealth has the power
to pass this legislation.
- Legal matters. Senators Bolkus and McKiernan refer
to evidence from leading counsel documenting 'serious unintended
consequences' of the Andrews Bill that arise out of its failure
to define key terms. These Senators characterise this legal
doubt as a matter of 'critical importance' that needs to be
addressed by the Senate. They state that there is a distinct
possibility that the uncertain legal effects of the Andrew Bill
'will necessitate further intervention by the Courts, including
the High Court, to give an interpretation'.
- The availability of palliative care. Senators Bolkus
and McKiernan refer to evidence that funding for palliative
care in Australia was cut by 10% in last year's Federal Budget,
and that 'there is no evidence of a commitment by the Commonwealth
to the Palliative Care Program which is due for completion in
July 1997'. They also refer to evidence that palliative care
'is not always ideal and is not always a solution'. They note
the following statement by the first person to use the RTI
Act:
I have no wish for further experimentation by the palliative
care people in their efforts to control my pain ... I cannot even
get a hug in case my ribs crack. Being unable to live a normal
life causes such mental and psychological pain which can never
be relieved by medication.(31)
- The rights of the individual. Senators Bolkus and McKiernan
refer to evidence from health care professionals supporting
the legalisation of active voluntary euthanasia, on the basis
that it would give patients more control over what happens to
them at the end of life-rather than leaving these decisions
to be made by doctors, in the current unscrutinised and unregulated
manner. They also refer to statistics indicating that large
numbers of elderly Australians (672 people aged 75 or over,
in the period 1989-1994) currently do take their own
lives, often utilising 'horrific methods' such as hanging, firearms,
carbon monoxide and suffocation by plastic.(32) These Senators
express sympathy with the view that legalising active voluntary
euthanasia would delay some of these deaths and reduce the need
for elderly Australians to resort to violent means to end their
lives. These Senators also refer to the concerns raised by the
Senate Standing Committee for the Scrutiny of Bills that the
Andrews Bill may trespass unduly on personal rights. Finally,
Senators Bolkus and McKiernan state the need to recognise the
rights of those patients who have already used the RTI Act.
They quote from statements made by these patients, and by
their families, expressing support for the RTI Act and
strongly opposing the Andrews Bill.
This response concludes with a criticism of the analogy drawn
by some church leaders, who oppose the Andrews Bill, between legalising
active voluntary euthanasia and the atrocities in Nazi Germany.
Senators Bolkus and McKiernan describe such an analogy as 'hysterical'
and inappropriate. Whilst acknowledging the right of the church
to lobby for support on any issue, these Senators note that the
Catholic Church has been an active and enthusiastic supporter
of the Andrews Bill and that 'the Church is quite pleased with
its efforts on this occasion'.(33)
Response from Senator Coonan
Senator Helen Coonan (Liberal, NSW) makes an individual comment
on the Committee's report.
She notes that the Andrews Bill raises issues of 'profound moral,
ethical, social and legal significance'. She affirms as appropriate
the absence of recommendations in the Committee's report, on the
bases that the Andrews Bill is not a Government Bill, neither
of the major political parties have a stated policy on euthanasia,
an unusually large number of Senators participated in the Committee's
inquiry on this matter, and those Senators expressed a diverse
range of views.
Senator Coonan attaches great weight to the fact that the fate
of the Andrews Bill will be decided according to a conscience
vote. Accordingly, she declines to state her own conclusions in
this comment, preferring to do so in the forthcoming Senate debate
on the Andrews Bill:
The responsibility placed on individual Senators to vote according
to conscience should be accorded respect. I do not regard my conscience
as having superior claim to being correct on such matters.(34)
Response from Senator Brown
Senator Bob Brown (Greens, Tas) also makes an individual comment
on the Committee's report.
Senator Brown states his support for the RTI Act and
thus his opposition to the Andrews Bill. He argues that.
Like the pioneering legislation of New Zealand and South Australia
in the 1890s, giving women the vote, the Northern Territory has
shown great courage in leading the world in reform toward guaranteeing
the basic right of citizens to have voluntary euthanasia as an
option for themselves.(35)
He emphasises that this position has the unquestioned support
of the Australian community:
The preponderant number of submissions to the Committee supporting
the Bill, like the vote in the House of Representatives, stands
starkly at odds with a consistently large majority of Australians
which, according to every opinion poll since the 1950s, supports
voluntary euthanasia.(36)
Senator Brown criticises the discussion of these opinion poll
results in the Committee's report as incomplete and slanted. He
says that the Committee infers that ordinary Australians do not
really understand the issues surrounding active voluntary euthanasia,
an inference which he rejects as 'incorrect, patronising and offensive'.(37)
He therefore calls upon the Senate to 'reflect the wishes of
most Australians and defend the Northern Territory's RTI Act'.
He also raises the question of whether it would be more appropriate
to decide this issue by referendum.(38)
Senator Brown is also highly critical of the process by which
the Committee conducted its inquiry, and of the content and quality
of the Committee's report. He states that the Committee's report
contains inaccuracies and omits important information and arguments.
He states that the result is 'a document characterised by a "professional
bias" that is unworthy of the Australian Senate'.(39) He
offers an 'alternative report' to the final document produced
by the Committee, to serve as a counterweight to the Committee's
flawed product.
Issues raised in Senator Brown's alternative report include:
- Criticisms of the unduly hasty nature of the Committee's
inquiry. Senator Brown states that this gives the impression
that the Andrews Bill is being rushed through the Federal Parliament
so that it is exposed to as little public criticism as possible.
He considers it inappropriate that the Committee only conducted
brief public hearings in two Australian cities. He concludes
that hearings should have been conducted in many other cities
and regions throughout Australia.
- Criticisms of the Committee's exploration of the general
moral, philosophical, ethical and social arguments about euthanasia.
Senator Brown states that this exploration was beyond the
Committee's expertise and therefore was done inexpertly. (He
outlines some responses to the general arguments against legalising
active voluntary euthanasia, responses that are not fully addressed
in the Committee's report.)(40) Senator Brown points out that
the Committee was not directed by the Senate to determine these
wider moral, philosophical ethical and social issues. He also
states that the Committee's emphasis on these wider issues inappropriately
affected the way it approached the specific legal, constitutional
and political questions that the Senate did direct it to examine.(41)
Senator Brown also considers that the Committee placed undue
emphasis on 'abstract, theoretical and speculative arguments
at the expense of concrete evidence about what actually happens
in practice to real people'.(42)
- Criticisms of the selection of witnesses who appeared before
the Committee. Senator Brown claims bias in this selection.
For example, he points out that the only two overseas witnesses
who were questioned by the Committee are well-known opponents
of active voluntary euthanasia. Senator Brown also states that
the Committee made more attempt to obtain written and oral evidence
from some witnesses than from others, which denied a number
of eminent criminal and medical lawyers the opportunity to respond
to criticisms of their arguments. He claims that this resulted
in a pro-Andrews Bill bias in the Committee's assessment of
the arguments about the legal effects of this legislative proposal.
- Criticisms of the Committee's analysis of the legal uncertainties
that would result from passage of the Andrews Bill.(43) Senator
Brown states that the Committee's report understates both the
legal uncertainties arising from the terminology used in the
Andrews Bill, and the problems that those uncertainties will
cause. He notes that the Andrews Bill may take away the Territories'
powers to pass at least four kinds of laws: refusal of medical
treatment legislation; legislation to clarify the legal situation
where a patient's death is hastened by the administration of
pain killing drugs; legislation clarifying when a doctor may
lawfully withdraw or withhold life-sustaining medical treatment
from an incompetent patient, who has not specified her or his
wishes in advance; and legislation exempting from criminal penalty,
or providing for more lenient treatment of, the friends or family
of a dying patient who end the patient's life for genuinely
compassionate motives.
- Criticisms of the Committee's analysis of the constitutional
problems with the Andrews Bill. Senator Brown states that
the Committee's report contains an inadequate discussion of
the constitutional implications of the Andrews Bill. He discusses
six major constitutional objections to the Andrews Bill.(44)
- Criticisms of the way the Committee dealt with empirical
evidence about medical end-of-life decisions. Senator Brown
argues that the Committee's report misrepresents and downplays
the results of groundbreaking research conducted by Kuhse, Singer
and Baume which was recently published in the Medical Journal
of Australia. Those research findings provide the only empirical
evidence about what doctors do in Australia when people are
dying. It reveals that Australian doctors accede to a patient's
request for active voluntary euthanasia in around 2 300 cases
each year (1.8% of all deaths). It also reveals that Australian
doctors end patients' lives without a concurrent explicit request
by the patient in around 4 400 cases every year (3.5% of all
deaths), which means the incidence of this kind of behaviour
is four times higher in Australia than in the Netherlands. Senator
Brown also states that the Committee's report misrepresents
the results of similar empirical research conducted in 1991
and 1995 in the Netherlands.
- Criticisms of the way the Committee dealt with evidence
and submissions relating to Aboriginal Australians. Senator
Brown believes that the Committee's report gives the impression
that it endorses the view that the RTI Act poses a threat
to the lives and health of Aboriginal Australians. He
considers that this gives undue weight to the personal opinions
of one non-Aboriginal witness, over the empirical evidence presented
by the Northern Territory government and other witnesses. Senator
Brown emphasises that the pivotal vote in support of the RTI
Act was cast by the late Mr Wes Lanhupuy, a respected Aboriginal
community leader and Member for Arnhem. Senator Brown quotes
from Mr Lanhupuy's speech in support of the RTI Act, in
which he referred to the misinformation about that law that
the Christian churches had supplied to Aboriginal communities
in the Northern Territory.
- Criticisms of the way the Committee dealt with the 'conscience
vote' issue. Senator Brown criticises the absence of discussion
of the implications for Senators, and for the Australian public,
of the fact that there will be a 'conscience vote' on the Andrews
Bill:
It may be supposed that many Senators are currently asking themselves
exactly what their obligations are when they cast their conscience
vote on the Andrews Bill. They may be wondering to what extent
their public duties, as democratically elected representatives
of the Australian people, oblige them to set aside their personal
moral beliefs about whether active voluntary euthanasia is right
or wrong. They may be wondering whether there really are 'party
lines' (or at least 'factional lines') on this issue, and how
the public record of their vote on the Andrews Bill may influence
their political future within their party or faction. They may
also be wondering about what they should do as members of a Parliament
that makes laws in a liberal, pluralist, tolerant and multicultural
democracy. They may be wondering how they should respond to the
very strongly held, and forcefully expressed, views of powerful
religious groups in a country that is not (yet) a theocracy. Neither
the Senate Committee's inquiry nor the Senate Committee Report
provide thoughtful exploration of these issues.(45)
Response from Senators Tambling and Collins
Senators Grant Tambling (CLP, NT) and Collins (ALP, NT) give
a joint response as the Senators for the Northern Territory. Their
response is also highly critical of the process of the Committee's
inquiry, and of the content and quality of the Committee's report.
Senators Tambling and Collins are of the opinion that 'the depth
of consideration afforded at public hearings and in [the Committee's]
deliberations in Darwin and Canberra was necessarily limited by
time constraints and the quality of the report is subsequently
compromised'. They state that the Committee's report therefore
is 'deficient in a number of areas'.(46)
They note that the Committee's report only includes one substantive
quotation from the public forum they convened in Darwin on 23
January 1997, which was attended by over 450 people.
These Senators also consider that the Committee 'has given inadequate
and scant regard to the constitutional and legal implications
of [the Andrews Bill]'.(47)
In respect of the implications of the Andrews Bill for the criminal
law, Senators Tambling and Collins state that the Committee's
report fails to recognise 'the serious danger posed by making
laws which render the criminal law uncertain'.(48) They note that
the Committee's report clearly indicates the 'uncertain effect
on the wider criminal law' if the Andrews Bill is passed. It is
their opinion that the Committee's report therefore should conclude
that in view of such uncertainty, the Andrews Bill should not
be enacted:
Uncertainty in the law is never desirable, and this applies particularly
to the criminal law, where the liberty of the citizen is at stake.(49)
In respect of the constitutional implications of the Andrews
Bill, Senators Tambling and Collins state that the Committee's
report 'fails to adequately address the fundamental anti-Territories
nature' of the Andrews Bill. This failure extends to a failure
'to enter a proper discussion of democratic values and representative
government, of the conventions of Self-Government, [and] of the
Northern Territory's progress towards Statehood'.
These Senators acknowledge that the Commonwealth may have the
necessary power under section 122 of the Australian Constitution
to legislate 'to force its will on Territories', but state that
the Commonwealth should not seek to exercise that power 'against
the will of Territorians where it would be acting unconstitutionally,
undemocratically and in a discriminatory manner'.(50)
They state that enactment of the Andrews Bill would be unconstitutional
and that the Committee's report should conclude this. Senators
Tambling and Collins reach this conclusion on the basis that the
Andrews Bill would violate the important constitutional convention
of self-government that granted powers are not to be retracted,
except in the most serious situation such as civil breakdown:
Upon [the grant of self-government], the Northern Territory of
Australia was established as a self-governing body politic in
its own right, on traditional Westminster lines of representative,
democratic government. Its powers were expressly extended to most
State-type matters, capable of including that of voluntary euthanasia.
This grant necessarily carried with it the fundamental conventions
of Self-Government which are just as much part of Australian constitutional
fabric as is the text of the Constitution itself. A breach of
fundamental constitutional convention is an unconstitutional act.(51)
Senators Tambling and Collins state that the Andrews Bill is
anti-democratic because it seeks to 'erode the legislative powers
and actions of the elected representatives of the Northern Territory
people'.(52)
These Senators state that the Andrews Bill is discriminatory
because it is only directed at Territorians within self-governing
Territories, and thus directly discriminates between those Territorians
and other Australian residents.(53)
These Senators also criticise the Committee's report for failing
to address the implications of passing the Andrews Bill for the
proposed grant of Statehood to the Northern Territory. They note
that the Andrews Bill, if enacted, 'may be an impediment to such
a grant'.(54)
Response from Senator Cooney
Senator Barney Cooney (ALP, Vic) makes an individual comment
on the Committee's report.
He states that it would be 'unsafe and against good public policy
to allow a law as crucial and as radical as the RTI Act to
continue'.(55)
Senator Cooney acknowledges that his view on this matter is
powerfully affected by the fact that he is a practising Catholic:
It is appropriate for a legislator to give weight to his belief
in formulating public policy. The great religions proclaim principles
which have stood the test of time and which over the centuries
many communities and cultures have embraced to their clear benefit.(56)
He states that his opposition to the RTI Act is also
influenced by the following factors:(57)
- The unacceptable danger that the State 'will come to condone
an ever widening range of slayings' once it has sanctioned 'the
deliberate delivery of death'.
- The fact that the RTI Act is internationally unique,
which indicates that 'the ethos of societies around the world
has restrained legislatures from making euthanasia lawful'.
- The fact that the RTI Act affects the nation as a whole
by influencing 'the ethos, the culture, the attitude of people
who live in various parts of this Country', and is likely to
affect many people throughout the world.
- The fact that the Commonwealth has the constitutional power
to prevent the Territories from legalising euthanasia. He comments
that it would also be good public policy for the Commonwealth
to enact a similar law in respect of the States, but that it
cannot do so because it lacks the power to do so.
- The fact that doctors in Australia 'are not tried or convicted
for treating people in a way that lead to their deaths'. Senator
Cooney states that prosecutors have a duty 'to indict only those
whom they consider it right and proper to proceed against' and
that 'jury's [sic] have a constitutional right to return the
verdict they consider appropriate'.
Response from Senator Ellison
Senator Christopher Ellison (Liberal, WA) makes an individual
comment on the Committee's report. This is additional to his endorsement
of the comment signed by Senator Abetz and twelve other Senators
(discussed above).
In this individual comment, Senator Ellison notes that he resigned
as Chair of the Committee due to his appointment as a Parliamentary
Secretary in February 1997, because of the convention that Parliamentary
Secretaries do not chair Senate Committees.
He also states that in his view 'the conduct of the inquiry
and the process of finalising the report have been in keeping
with the usual practice of this Committee'.(58)
The Senate is expected to determine the fate of the Andrews
Bill later this month.
If the Andrews Bill is passed in its current form, it is likely
that the Courts may be asked to rule on its constitutional validity
and/or the scope of its impact on the criminal law in the Territories.
The ACT Government has indicated its willingness to pursue at
least a constitutional challenge to the Andrews Bill if it is
enacted.(59)
If the Andrews Bill is defeated in the Senate, the High Court
of Australia is likely to proceed with hearing the application
for special leave to challenge the validity of the RTI Act,
which it adjourned in November 1996. The ACT Legislative
Assembly would also progress with its vote on a Private Member's
Bill, introduced by Independent MLA Michael Moore, that seeks
to legalise active voluntary euthanasia in the ACT for terminally
ill adults suffering from intolerable pain or distress caused
by their illness. Debate on this Bill-the Medical Treatment
(Amendment) Bill 1997-is planned to resume in April 1997.
Regardless of the outcome of the Senate's vote on the Andrews
Bill, the possibility remains that an Australian State will in
the future enact legislation along the lines of the RTI Act.
- The information in this section of this Current Issues Brief
is derived from N. Cica, The Euthanasia Debate in Australia-Legal
and Political Issues, Australian Institute of Health Law
and Ethics, Issues Paper 2, February 1997: 1-2.
- For an explanation of these conditions, see N. Cica, Euthanasia-the
Australian Law in an International Context; Part 2: Active Voluntary
Euthanasia, Research Paper No. 4 1996-97, Department of
the Parliamentary Library, 1996: 12-15.
- Rights of the Terminally Ill Act 1995 (NT), s 20
- Ibid s 3, definition of 'assist'.
- This refers to situations where a patient wants to die and
asks the doctor for assistance; and the doctor assists by prescribing
lethal drugs, setting up a lethal mechanism, and/or providing
advice about effective means; but the lethal act itself is performed
by the patient rather than the doctor. Physician-assisted suicide
is completely prohibited under the criminal law of every Australian
jurisdiction except the Northern Territory. The relevant offence
is assisting suicide. See Cica, supra n 2: 8-9.
- This refers to situations where a patient wants to die and
asks the doctor for assistance, and the doctor assists by performing
the lethal act itself. Active voluntary euthanasia is completely
prohibited under the criminal law of every Australian jurisdiction
except the Northern Territory. The relevant offence is murder.
See Cica, supra n 2: 10-11.
- In November 1994, voters in the State of Oregon in the United
States of America approved Ballot Measure 16 and hence the introduction
of the Oregon Death with Dignity Act 1994. The Oregon
legislation allows doctors to assist terminally ill, adult patients
to die by prescribing lethal medication. It therefore authorises
'physician-assisted suicide' in some circumstances, but expressly
does not authorise 'active voluntary euthanasia'. The Oregon
Death with Dignity Act 1994 has not yet come into effect
as its operation has been suspended by injunction, pending the
results of a challenge to its constitutional validity.
- Rights of the Terminally Ill Regulations 1996 (NT)
- The amendments increased by one the number of doctors who
must be involved in the process of assessing a patient who has
asked to be helped to die under the legislation, so that a minimum
of three doctors must be involved. The amendments also made
it clear that one of these doctors must be a qualified psychiatrist
[DOCTOR 1] and another a specialist in the treatment of the
patient's terminal illness [DOCTOR 2]. The third doctor is the
doctor who actually assists the patient to die [DOCTOR 3].
- All these amendments were introduced by the Rights of
the Terminally Ill Amendment Act 1996 (NT).
- The information in this section of this Current Issues Brief
is derived from Cica, supra n 1: 2.
- Section 9 of the Northern Territory (Self-Government)
Act 1978 (Cwlth) empowers the Governor-General to disallow
legislation passed by the 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. These powers have
never been used to disallow any Northern Territory legislation.
- Cica, supra n 2: 16.
- Wake and Gondarra v. Northern Territory and Asche (1996)
124 FLR 298. For discussion of the judgements in this case,
see: Cica, supra n 2: 16-18; and Senate Legal and Constitutional
Legislation Committee, Consideration of Legislation Referred
to the Committee-Euthanasia Laws Bill 1996, Canberra, March
1997: 8-10.
- For arguments in favour of the Federal Parliament taking
away part of the legislative powers of these Territories by
passing the Andrews Bill, see Constitutional Arguments in
Favour of Removing the Territories' Power to Make Laws Permitting
Euthanasia, Research Note No. 32, Department of the Parliamentary
Library, March 1997. For arguments against the Federal Parliament
taking away part of the legislative powers of these Territories
by passing the Andrews Bill, see Constitutional Arguments
against Removing the Territories' Power to Make Laws Permitting
Euthanasia, Research Note No 33, Department of the Parliamentary
Library, March 1997.
- Senate Legal and Constitutional Legislation Committee, supra
n 14, para 1.13.
- Principle 1(a)(i) of the terms of reference of the Senate
Standing Committee for the Scrutiny of Bills, contained in Senate
Standing Order 24. See generally H. Evans (ed), Odgers' Australian
Senate Practice (7th ed), AGPS, Canberra, 1995: 373-375.
- Senate Standing Committee for the Scrutiny of Bills, Alert
Digest No 7 of 1996.
- Ibid: 5.
- Evans, supra n 17: 375.
- Senate Legal and Constitutional Legislation Committee, supra
n 14: 114.
- Ibid: 116-117.
- Ibid: 117-120.
- Ibid: 120-122.
- Ibid: 122-129.
- Ibid: 127.
- Ibid: 129.
- Ibid: 129-130.
- This point seems to flow from these Senators' rejection of
the claim that enactment of the Andrews Bill would give rise
to legal uncertainty; see that discussion ibid: 117-119.
- Ibid: 131.
- Ibid: 133.
- A table of suicide statistics for elderly Australians, indicating
the method utilised, is appended to the response of Senators
Bolkus and McKiernan; ibid: 139.
- Ibid: 138.
- Ibid: 142.
- Ibid: 147.
- Ibid: 147.
- Ibid: 150.
- Ibid: 147.
- Ibid: 148.
- Ibid: 170-176.
- Ibid: 154-5.
- Ibid: 151.
- Ibid: 159-165.
- Ibid: 156-158.
- Ibid: 149.
- Ibid: 179.
- Ibid: 179.
- Ibid: 179.
- Ibid: 180.
- Ibid: 180.
- Ibid: 179.
- Ibid: 179.
- Ibid: 180.
- Ibid: 180.
- Ibid: 185.
- Ibid: 182.
- Ibid: 182-185.
- Ibid: 187.
- See Senate Proof Committee Hansard (Legal and Constitutional
Legislation Committee), Friday 14 February 1997, evidence
of Ms Kate Carnell (ACT Chief Minister) and Mr Gary Humphries
(ACT Attorney-General).
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