Bills Digest No. , Bills Digests alphabetical index 2022–23

Restoring Territory Rights Bill 2022

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Bills Digest No. 5, 2022–23

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Leah Ferris
Law & Bills Digest Section
3 August 2022

Key points

  • The Bill proposes to remove the restrictions currently preventing the Australian Capital Territory and Northern Territory from passing legislation which would allow for voluntary assisted dying (VAD).
  • These restrictions were introduced in 1997 through the passage of a private member’s Bill introduced by Mr Kevin Andrews MP.
  • There have been a number of attempts by parliamentarians to remove these restrictions in previous Parliaments.

Contents

Purpose of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key provisions

 

Date introduced: 1 August 2022
House: House of Representatives
Portfolio: Private Member's Bill
Commencement: Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2022.

 

Purpose of the Bill[1]

The purpose of the Restoring Territory Rights Bill 2022 is to amend the Australian Capital Territory (Self-Government) Act 1988 and the Northern Territory (Self-Government) Act 1978 to remove the provisions currently  preventing the territories from passing legislation which would allow for voluntary assisted dying (VAD).[2]

The Bill would not legalise VAD in either of the territories but rather would allow the Legislative Assemblies of the Australian Capital Territory and the Northern Territory to pass laws allowing for VAD. This digest therefore does not focus on the broader policy issues with respect to VAD, however a summary of these was set out in the Senate Standing Committee on Legal and Constitutional Affairs’ report into the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008.[3]

Background

Power of the Commonwealth to legislate for the territories

Section 122 of the Constitution provides that the Commonwealth has a plenary power to legislate for the territories.[4]

The Commonwealth, however, has enacted self-government Acts for the Northern Territory (Northern Territory (Self-Government) Act 1978), the Australian Capital Territory (Australian Capital Territory (Self-Government) Act 1988) and Norfolk Island (Norfolk Island Act 1979).

Both the Australian Capital Territory (Self-Government) Act and the Northern Territory (Self‑Government) Act provide these jurisdictions with a general legislative power. Subsection 22(1) of the Australian Capital Territory (Self-Government) Act, for example, stipulates that the ACT Legislative Assembly ‘has power to make laws for the peace, order and good government of the Territory’. Similarly, section 6 of the Northern Territory (Self-Government) Act provides that the NT Legislative Assembly has power ‘to make laws for the peace, order and good government of the Territory’.

While both jurisdictions retain general legislative powers, where laws are inconsistent with the Commonwealth, then the latter will prevail.[5]

Following the commencement of the Norfolk Island Legislation Amendment Act 2015 the default body of law on Norfolk Island is New South Wales applied law (including as amended, suspended or repealed by legislative instrument of the Governor-General under the Norfolk Island Act).

Enactment of the Euthanasia Laws Act 1997

On 25 May 1995, the Northern Territory Legislative Assembly passed the Rights of the Terminally Ill Act 1995 (NT).

In late June 1996, Mr Kevin Andrews MP announced his intention to introduce a private member’s Bill to amend the Northern Territory (Self-Government) Act which would have the effect of overriding the Rights of the Terminally Ill Act 1995 (NT).[6]

On 9 September 1996, Mr Andrews introduced the Euthanasia Laws Bill 1996 to the House of Representatives.[7] As described in the Explanatory Memorandum, the purpose of the Bill was:

… to provide that the Northern Territory Legislative Assembly, the Australian Capital Territory Legislative Assembly, and the Norfolk Island Legislative Assembly do not have the power to make laws which would permit that form of intentional killing of another called euthanasia (which includes mercy-killing) or the assisting of another person to terminate his or her own life.[8]

Specifically, the Bill proposed to amend the Australian Capital Territory (Self-Government) Act, the Northern Territory (Self-Government) Act, and the Norfolk Island Act to insert provisions which would prevent the territories from passing legislation which would allow for euthanasia.[9]

On 9 December 1996, the House of Representatives agreed to the Bill with amendments. A free (conscience) vote on the Bill was taken and the final vote in the House of Representatives was 88 ayes to 35 noes.[10] On 24 March 1997, a free vote in the Senate was taken with a vote of 38 ayes to 33 noes. The Bill received the Royal Assent and came into force on 27 March 1997 as the Euthanasia Laws Act 1997.

Previous attempts to restore the territories’ ability to legislate

There appear to have been nine Bills subsequently introduced in the Commonwealth Parliament with the intention of granting one or both of the territories the ability to pass laws relating to VAD:

All nine of these Bills were private senator’s or member’s Bills. Only one of the eight Bills was put to a vote at any stage of its consideration—Senator Leyonhjelm’s Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 was defeated in a division on the second reading motion.[11] The remaining Bills either lapsed or were discharged from the Notice Paper without being the subject of any divisions.

The majority of these Bills sought to repeal the Euthanasia Laws Act and restore the ability of the territories to legislate on this issue; however, there were some variations over time in the details of how this result was to be achieved. The first Bill, introduced by Senator Lyn Allison (Australian Democrats) in 2004, simply sought to repeal the Euthanasia Laws Act and stated that the Northern Territory legislation overridden by the Euthanasia Laws Act—the Rights of the Terminally Ill Act 1995 (NT)would be revived.

This approach was repeated in Senator Bob Brown’s (Australian Greens) Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, but not for his Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008. The latter Bill sought to both repeal the Euthanasia Laws Act itself and amend the Northern Territory (Self-Government) Act and the Australian Capital Territory (Self-Government) Act to repeal provisions inserted by the Euthanasia Laws Act. It also no longer sought to revive the Rights of the Terminally Ill Act 1995 (NT). Senator Brown’s second reading speech indicated that the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008 was amended in line with comments made by the Senate Standing Committee on Legal and Constitutional Affairs with respect to the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 (particularly the provisions which sought to revive the Rights of the Terminally Ill Act 1995 (NT)).[12]

This approach was then followed in the subsequent Bills, with only minor drafting variations between them, except for the Ensuring Northern Territory Rights Bill 2021 introduced by Senator Sam McMahon (Country Liberal Party) which sought to expand the right of the Northern Territory to legislate on a number of issues.[13]

The only Bill that has been introduced that has sought to restore the territories’ ability to legislate with respect to VAD without repealing the Euthanasia Laws Act was the Restoring Territory Rights Bill 2018 introduced by Mr Andrew Leigh MP (ALP) and Mr Luke Gosling MP (ALP) on 20 August 2018.

Recent reforms by state governments relating to VAD

Since the Euthanasia Laws Act was passed by the Commonwealth Parliament in 1997, all of the states have passed laws allowing for VAD (see table 1 for further information). Currently only Victoria and Western Australia have currently operational schemes for VAD, with the remaining states still in the process of implementing VAD schemes.

Table 1: List of jurisdictions which have passed legislation allowing for VAD

JURISDICTION NAME OF BILL AND DATE PASSED COMMENCEMENT DATE OF ACT
New South Wales The Voluntary Assisted Dying Bill 2021 passed through the NSW Parliament on 19 May 2022. The Voluntary Assisted Dying Act 2022 will come into effect on 28 November 2023, after an 18-month implementation period (see section 2 of the Act).
Queensland The Voluntary Assisted Dying Bill 2021 was passed by the Qld Parliament on 16 September 2021 Part 8 and section 153 of the Voluntary Assisted Dying Act 2021 commence 6 months after Royal Assent; Act fully in force 1 January 2023 (see section 2 of the Act).
South Australia The Voluntary Assisted Dying Bill 2020 was passed by the South Australian Parliament on 24 June 2021. The Voluntary Assisted Dying Act 2021 has not commenced and will come into operation on a day to be fixed by proclamation (section 2 of the Act).
Tasmania The End Of Life Choices (Voluntary Assisted Dying) Bill 2020 passed the Tasmanian Parliament on 22 April 2021. The End-of-Life Choices (Voluntary Assisted Dying) Act 2021 will commence 18 months after the day of Royal Assent unless a date for proclamation is fixed (section 2 of the Act). The Tasmanian Department of Health advises that the Act is due to commence by 23 October 2022.
Victoria The Voluntary Assisted Dying Bill 2017 passed the Victorian Parliament on 29 November 2017. The Voluntary Assisted Dying Act 2017 commenced on 19 June 2019.
Western Australia The Voluntary Assisted Dying Bill 2019 passed the Western Australian Parliament on 10 December 2019. Some provisions of the Voluntary Assisted Dying Act 2019 commenced on Royal Assent (19 December 2019); the Act was fully in force on 1 July 2019.

As the Bill will not introduce VAD schemes in either the Australian Capital Territory or Northern Territory, this digest does not consider the broader issues arising out of legislating for VAD. As part of the Queensland Government’s development of the Voluntary Assisted Dying Bill 2021 (Qld), the Queensland Law Reform Commission (QLRC) undertook an in-depth inquiry into the development and operation of VAD laws, including those in operation in other states at the time of the inquiry.[14] The QLRC report provides a detailed overview of the various issues.[15]

Committee consideration

At the time of writing, the Bill has not been referred to any Committees.

Senate Standing Committee for the Scrutiny of Bills

The Committee has not reported on the Bill at the time of writing.

Policy position of non-government parties/independents

Both the Australian Labor Party (ALP) and the Liberal Party of Australia have allowed their members to vote on the Bill according to their own judgment, rather than requiring them to vote in accordance with party policy (known as a free vote or a conscience vote).[16] The Bill passed the House of Representatives on 3 August 2022 (99 ayes, 37 noes).

The Australian Greens health spokesperson, Senator Jordon Steele-John, has said the Greens would back ‘dying with dignity legislation that has strong, effective safeguards’.[17]

The Guardian has also reported that Senator Jacqui Lambie and Senator Tammy Tyrrell of the Jacqui Lambie Network, One Nation’s Senator Pauline Hanson and Senator Malcolm Roberts and Senator Babet of the United Australia Party would support the Bill.[18]

Senator David Pocock has also indicated his support for granting the territories the right to legislate with respect to VAD and had previously stated he planned to introduce his own Bill on this issue.[19]

Position of major interest groups

Go Gentle Australia, a voluntary assisted dying advocacy organisation, have announced its support for the Bill:

There is absolutely no justification for treating territorians as second-class citizens. Now that all six Australian states have passed voluntary assisted dying laws to give dying people a choice over the timing and circumstances of their death, we hope the federal parliament will act quickly to allow the territories the same right.[20]

In its submission to the Legal and Constitutional Affairs Legislation Committee’s inquiry into the Ensuring Northern Territory Rights Bill 2021, the ACT Government argued strongly for the right of the ACT Legislative Assembly to pass laws to allow for VAD:

Regardless of any personal views on voluntary assisted dying, there should not be any controversy in allowing the ACT and NT to decide for themselves whether to introduce such legislation and to allow citizens of the ACT and NT an opportunity to legislate on this matter on the same terms as other jurisdictions if their communities desire. This would resolve an inequitable situation persisting in Australia and be consistent with Australia’s international human rights obligations.[21]

Right to Life Australia opposed the provisions in the Ensuring Northern Territory Rights Bill 2021 that would have allowed the Northern Territory Legislative Assembly to pass laws to allow for VAD ‘on the basis that this undermines protections afforded to vulnerable citizens, especially indigenous persons’.[22]

HOPE: Preventing Euthanasia and Assisted Suicide, a coalition of groups and individuals who oppose the legalisation of euthanasia and assisted suicide, argued that the legalisation of euthanasia in the Northern Territory ‘could adversely affect the willingness of Indigenous people to access appropriate health care’ and ‘would be irresponsible while Aboriginal and Torres Strait Islander Australians still lack access to basic palliative care services’.[23]

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[24]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, Mr Gosling and Ms Payne assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[25]

They consider the Bill is compatible with human rights as it ‘does not raise any human rights issues and advances the democratic rights of citizens of the Northern Territory and Australian Capital Territory’.[26]

Parliamentary Joint Committee on Human Rights

The Committee has not reported on the Bill at the time of writing.

Key provisions

The Bill contains 1 Schedule.

Item 1 would amend the Australian Capital Territory (Self-Government) Act to repeal subsections 23(1A) and (1B) (which were the provisions inserted by the Euthanasia Laws Act) and remove the restrictions on the ability of the Australian Capital Territory Legislative Assembly to pass laws with respect to VAD.

Item 2 would amend the Northern Territory (Self Government) Act to repeal section 50A (which was the provision inserted by the Euthanasia Laws Act) and remove the restrictions on the ability of the Northern Territory Legislative Assembly to pass laws with respect to VAD.

 


[1].       The author would like to acknowledge the work previously done by Catherine Lorimer on this issue which has significantly contributed to this digest.

[2].       Voluntary assisted dying refers to the administration of a prescribed substance, either by self-administration or by a registered and suitably qualified health practitioner, with the purpose of bringing about the person’s death.

[3].       Senate Standing Committee on Legal and Constitutional Affairs, Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, (Canberra: The Senate, June 2008), 33–60.

[4].       Commonwealth of Australia Constitution Act, section 122.

[5].       See, for example, Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory of Australia [2013] FCA 154.

[6].       See ‘Notices’, House of Representatives, Debates, 26 June 1996, 2911; MP fights to stop death law, West Australian, 27 June 1996; Editorial: Euthanasia law should be nullified, The Australian, 29 June 1996.

[7].       Kevin Andrews, First reading speech: Euthanasia Laws Bill 1996, House of Representatives, Debates, 9 September 1996, 3671.

[8].       Explanatory Memorandum, Euthanasia Laws Bill 1996. 2

[9].       The Bills Digest provides further information on the history of the Bill: Jennifer Norberry and Natasha Circa, Euthanasia Laws Bill 1996, Bills Digest, 45, 1996–97, (Canberra: Parliamentary Library, 1996).

[10].    Australia, House of Representatives, Euthanasia Laws Bill 1996–Report from Main Committee, Votes and proceedings, HVP 58, 9 December 1996, 1002.

[11].    Australia, Senate, Journals, 108, 2016–18, 15 August 2018, 3485–3486.

[12].    Bob Brown, Second Reading Speech: Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008, Senate, Debates, 17 September 2008, 4983. See Senate Standing Committee on Legal and Constitutional Affairs, Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, (Canberra: The Senate, June 2008).

[13].    For further information on this Bill, see Senate Legal and Constitutional Affairs Legislation Committee, Ensuring Northern Territory Rights Bill 2021, (Canberra: The Senate, October 2021).

[14].    ‘Development of the Act’, Queensland Health, updated 9 June 2022.

[15].    Queensland Law Reform Commission, A legal framework for voluntary assisted dying, Report, 79, May 2021.

[16].    Lisa Visentin, ‘Territory bill puts spotlight on euthanasia’, Age, 1 August 2022; Andrew Wallace, ‘Second reading speech: Restoring Territory Rights Bill 2022’, House of Representatives, Debates, 1 August 2022, 62. For further information on free/conscience votes, see Parliamentary Library, Free votes in the Commonwealth Parliament 1950-2021: a quick guide, Research paper series, 2020–21, (Canberra: Parliamentary Library, 2021).

[17].    Josh Butler, ‘Federal Labor allows conscience vote on push to overturn ban on ACT and NT assisted dying laws’, The Guardian, 25 July 2022.

[18].    Josh Butler, ‘Key senators back government proposal to empower territories to legislate on euthanasia’, The Guardian, 5 July 2022; Josh Butler, ‘Territories urge federal government to pass bill restoring their rights to make euthanasia laws’, The Guardian, 11 July 2022.; Josh Butler,’ Federal Labor allows conscience vote on push to overturn ban on ACT and NT assisted dying laws’, The Guardian, 25 July 2022.

[19].    Lucy Bladen, ‘Pocock pledges territory rights bill in 'first weeks' if elected [A final hope]’, The Canberra Times, 10 May 2022.

[20].    Josh Butler, ‘Key senators back government proposal to empower territories to legislate on euthanasia’, The Guardian, 5 July 2022.

[21].    ACT Government, Submission to the Legal and Constitutional Affairs Legislation Committee, Inquiry into the Ensuring Northern Territory Rights Bill 2021, [Submission 54], 10 September 2021, 2.

[22].    Right to Life Australia, Submission to the Legal and Constitutional Affairs Legislation Committee, Inquiry into the Ensuring Northern Territory Rights Bill 2021, [Submission 29], undated, 2.

[23].    HOPE: Preventing Euthanasia and Assisted Suicide, Submission to the Legal and Constitutional Affairs Legislation Committee, Inquiry into the Ensuring Northern Territory Rights Bill 2021, [Submission 41], 27 August 2021, 3.

[24].    Explanatory Memorandum, Restoring Territory Rights Bill 2022, 2.

[25].    The Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory Memorandum to the Bill.

[26].    Explanatory Memorandum, Restoring Territory Rights Bill 2022, 4.

 

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