Chapter 3 - Legal and Constitutional policy issues
3.1
This chapter examines some of the key legal and constitutional policy issues
raised during the committee's inquiry. These include:
- whether it was appropriate for the Federal Parliament to have
used its power to override legislation in the territories;
- drafting issues in relation to the Bill; and
- other issues, including issues relating to the NT legislation
which the Bill proposes to revise.
3.2
These issues are considered in detail below.
Should Federal Parliament override territory laws?
3.3
Section 122 of the Constitution confers a plenary power on the
Commonwealth to make laws for the government of any territory. It is clear that
the Commonwealth had the power, under section 122 of the Constitution, to
override the laws of the NT as it did when it enacted the Euthanasia Act.
3.4
The key issue, however, is whether the enactment of the Euthanasia Act
was an appropriate use of that power from a constitutional policy perspective. Whether
Federal Parliament should have used its power to override the NT RTI Act was also
a crucial question at the time of the 1997 Euthanasia Inquiry.[1]
As the report of that inquiry stated:
The Commonwealth Parliament has the power under s.122 of the
Constitution to enact the Bill. Even opponents of the Bill conceded this.
The question for the Committee's inquiry was whether the
Parliament should exercise this power.[2]
3.5
The Parliamentary Library also observed in 1997:
The main constitutional issues raised by the Andrews [Euthanasia
Laws] Bill [1996] are 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.[3]
3.6
This committee's current inquiry reignited this debate. The key
constitutional policy arguments for and against Commonwealth involvement raised
during this inquiry are discussed in turn below.
Support for the Bill
3.7
Submissions supporting the Bill on constitutional policy grounds did so on
the basis that it was inappropriate for the Federal Parliament to override the
decision of the democratically-elected NT Parliament. These objections
appeared to be based on three key grounds which are discussed further below –
that is, that the Euthanasia Act:
- interfered with democracy and self-government in the territories;
- discriminated against territories and territory citizens when
compared to states and state citizens; and
- demonstrated inconsistent treatment of territories by the
Commonwealth.
Interference in democratic and
self-government processes
3.8
On the first point, several submissions argued that, in enacting the
Euthanasia Act, the Commonwealth was interfering in the affairs of the
self-governing territories. For example, the NT Law Reform Committee described
this 'interference with the policy of a self-governing legislature' as a
'direct contradiction of self-government'.[4]
3.9
Similarly, the Law Council of Australia (Law Council) submitted its
belief that the Euthanasia Act 'constituted unnecessary interference by the
Commonwealth Parliament in the internal affairs of the properly-elected
Northern Territory (NT) government'.[5]
The Law Council expressed the view that, having passed the Northern
Territory (Self Government) Act 1978, 'the Commonwealth should not
seek to derogate from that grant of self-government on a domestic issue'.[6]
3.10
The Hon Austin Asche, President of the NT Law Reform Committee,
suggested that:
Any Commonwealth enactment based on policy—that is, based on a
difference of opinion between the Commonwealth and the Territory—is of course
an interference with the self-government of the Territory. If the Commonwealth
disagrees with a policy of a territory then the grant of self-government
is really illusory.[7]
3.11
The Gilbert and Tobin Centre of Public Law (Gilbert and Tobin Centre) expressed
the view that the Euthanasia Act was a 'bad law in that it discriminated
against the territories and weakened self-government in those jurisdictions'.[8]
The Centre argued that:
The Euthanasia Laws Act 1997 should be repealed because it is
inappropriate that the Commonwealth Parliament remove power pre-emptively
from any self-governing jurisdiction within Australia. The law is inconsistent
with basic principles of democracy and indeed with the very concept of self-government
in the Australian Territories.[9]
3.12
The ACT Attorney-General, Mr Simon Corbell MLA, also supported the Bill,
stating that:
The ACT's position is that it is simply inappropriate for the
Commonwealth parliament to determine a policy setting that is only relevant to
the people of the Australian Capital Territory. Senator Brown's bill restores
to the territory the ability to legislate as the territory deems fit on the
issue of euthanasia. That is entirely consistent with the grant of
self-government to the territory, and that is why we support the bill.[10]
3.13
The NT Government stated that, in principle, it 'would welcome the
removal of the limitation on its self-governing capacity'.[11]
However, it had reservations about the drafting of the Bill, which will be discussed
later in this chapter.
3.14
Several submissions further suggested that, in overriding the laws of a
self-governing territory, the Euthanasia Act was against the 'spirit of
democracy' because it overturned the laws of a democratically-elected territory
parliament.[12]
3.15
The NT Government and NT politicians were particularly vociferous on
this point. The NT Government submitted that the passage of the Euthanasia Act
'was a fundamental, and unwarranted attack on the democratic rights of the
people of the Northern Territory'.[13]
Mr Terry Mills MLA, current Leader of the Opposition in the NT, submitted that,
in passing the Euthanasia Act, the Commonwealth Parliament 'directly
contradicted the will of the Territory people as expressed through its
parliament'.[14]
Several submitters noted that the NT Government had undertaken extensive
consultation, debate and inquiry prior to the passage of the NT RTI Act.[15]
3.16
In this context, Mr Marshall Perron, who was the NT Chief Minister at
the time the NT RTI Act was passed, gave the committee a copy of a 'Remonstrance'
adopted unanimously by the NT Legislative Assembly and tabled in the Senate on
28 October 1996.[16]
The Remonstrance expressed the view that the Euthanasia Act constituted 'a
direct attack on the self government powers of the Northern Territory.' Mr Perron
further told the committee that:
Representative democratic principles were abandoned when the
Euthanasia Laws Act passed through both houses of federal parliament with the
support of 126 members, not a single one of them electorally responsible to
Territorians.[17]
3.17
The Hon Austin Asche further pointed out to the committee that the power
of the NT Legislative Assembly to pass the RTI Act, had been challenged and
upheld in the courts, as discussed in Chapter 2 of this report.[18]
He argued that this was the appropriate way to overturn such laws:
... the only proper way to attack the power of the Territory to
pass that particular act was through the courts. That in fact was done by the
application to the full court of the Supreme Court. That application was
interrupted because the act was then repealed. But had it gone to the full
length of an appeal to the High Court—although it may be temerarious to predict
what the High Court will do—we feel that the High Court would probably have upheld
the decision of the majority of the full court. The point we make is that that
is the way to go. Either the Territory has the power, in which case it should
be allowed to exercise it because it has been given self-government, or it does
not have the power, in which case the court should so rule.[19]
3.18
In the same vein, the ACT Attorney-General, in supporting the Bill, told
the committee that:
...only the elected members of the ACT Legislative Assembly can
claim a legitimate mandate to represent the views of the people of the
territory. It is a direct attack on the democratic principle for others without
such a mandate to substitute their own views for the views of those elected to
represent the people of the ACT.[20]
3.19
Mr Corbell further told the committee:
While the ACT government will not necessarily move to make laws
to legalise voluntary euthanasia, the issue at stake is the constitutional
right of this government to make laws for the governance of the people of the Australian
Capital Territory.[21]
3.20
Similarly, the Law Council submitted that:
Territorians elect representatives to their local assemblies in
the expectation that those representatives will make laws for the peace, order
and good governance of their communities within the parameters of the law
making powers afforded them by the self-government Acts. It is an affront to
the democratic process in which Territorians participate if legislation
lawfully passed by their elected representatives is rendered invalid by the
operation of Commonwealth laws, which are not of general application, but which
are exclusively targeted at the Territories for the express purpose of
interfering in their legislative processes.[22]
3.21
Finally, the South Australian Voluntary Euthanasia Society submitted
that:
...the overturning of the Rights of the Terminally Ill Act 1995 by
the Federal Parliament, which has a minimal representation from the Northern
Territory, was an anathema to the spirit of democracy and a contravention of
the democratic rights of the people of the Northern Territory. The will of
Territorians, which had been decided by their representative agents, who were
elected under a free electoral system, was denied by federal groups in which
they were minimally represented.[23]
Discrimination against territories
and territory citizens
3.22
It was further suggested that because the Euthanasia Act only applies to
territories, not states, it therefore discriminates against territories and the
citizens of those territories.[24]
Some suggested this meant territory citizens were effectively second-class
citizens in the Australian Federation. For example, Civil Liberties Australia
suggested that the actions of the Federal Parliament in overturning valid
territory laws made:
...a mockery of the rights of citizens living in the Territories,
and [made] them second-class Australian citizens in relation to the fuller
democratic rights held by citizens of Australian States. The Australian
Parliament has a clear responsibility to correct this inequality of rights
between its citizens. All Australians should have equal rights.[25]
3.23
Similarly, Darwin Senior Citizens submitted that:
The passage of this bill would redress the injustice done to
Australians who happen to live in a territory, instead of a state, by returning
to the legislative assemblies the right to make euthanasia laws if they see
fit. It may have been only the Northern Territory whose law was overturned but
the people of three territories became second-class citizens twelve years ago.
We deserve better.[26]
3.24
As Mr Marshall Perron, former NT Chief Minister, put it: 'we should not
be treated disproportionately because, geographically, some citizens want to
live in a territory rather than a state'.[27]
3.25
Dr Philip Nitschke, Director of Exit International, expressed the view
that, after the passage of the Euthanasia Act:
...citizens of the Northern Territory realised immediately that
their voice was not as significant in Australian society as that of other
Australians. The effect was to undermine the status and sense of worth of the
people living in the Territories of Australia. This generated resentment and
anger from within this part of the Australian population...[28]
3.26
Ms Judy Dent exemplified this resentment, telling the committee:
I resent being a second-class citizen in my chosen country. I am
an Australian citizen...and I choose to live in a territory. I think I should
have the same rights in the Territory as someone who lives in South Australia
or Queensland or any other part of the country and, therefore, I would like
those rights to be restored to the parliament of the Territory...[29]
Inconsistent treatment of
territories
3.27
The Law Council also expressed the view that the 'Commonwealth's
interferences in the Territories' law making powers, via the Euthanasia Laws
Act was arbitrary and ad hoc'.[30]
The Law Council then gave two other examples of the Commonwealth's involvement
in territory legislation, which it felt:
...demonstrate that the Commonwealth has no consistent,
transparent criteria for intervention in the law-making powers of the
Territories. These examples suggest that populist political agendas, rather
than any objectively assessed national interest criteria, guide the
Commonwealth's decision as to whether or how to intervene.[31]
3.28
The first example given by the Law Council was the Commonwealth's
decision not to intervene to override NT laws for providing a harsh
mandatory sentencing regime, despite 'clear evidence that the regime was having
a disproportionate impact on the indigenous population' and breached
Australia's obligations under international conventions.[32]
The second example was the disallowance of the ACT's Civil Unions Act in
2006 by the Governor-General, on the advice of the Commonwealth Government.[33]
3.29
Based on these examples, the Law Council argued that:
...it is clear that Territorians currently live with a degree of
uncertainty, unsure of when and how the Commonwealth may seek to intervene in
and override the actions of their democratically elected representatives.
This is an entirely unsatisfactory state of affairs in a stable,
democratic country committed to the rule of law and open and transparent
government.[34]
3.30
In the same vein, the NT Law Reform Committee pointed out that the Euthanasia
Act was:
...passed on the basis that the Federal Parliament disapproved of
the policy of the NT Act. The clear implication is that, if any of the three
named Territories passes legislation of which the Federal Parliament
disapproves, the Federal Parliament will take away its power to do so.[35]
3.31
Others suggested that there should be some form of objective and
consistent criteria to determine the circumstances where the Commonwealth could
appropriately intervene in the affairs of the territories. In particular, Father
Frank Brennan, a Professor of Law at the Australian Catholic University, although
opposed to the Bill, suggested some specific criteria for the 'very rare
circumstances' in which the Commonwealth should exercise its power to overrule territory
law. The criteria suggested by Father Brennan (which he felt that the
Euthanasia Act met) were:
...where no State has similarly legislated; where the Territory
law is a grave departure from the law in all equivalent countries; where the
Territory law impacts on the national social fabric outside the Territory; and
where the Territory law has been enacted without sufficient regard for the risks
and added burdens to its own more vulnerable citizens, especially Aborigines.[36]
Arguments against the Bill
3.32
Those who opposed the Bill on constitutional policy grounds argued that
it was appropriate for the Commonwealth to override territory legislation, particularly
since the territories derive their legislative capacity from the Commonwealth,
whereas the states do not.[37]
3.33
In 1997, a Parliamentary Library paper put this argument as follows:
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.[38]
3.34
Several submissions agreed with this argument during this inquiry. For
example, the Federal Presbyterian Church of Australia submitted that:
We recognise that some may consider supporting the Bill on
something analogous to 'States' Rights' grounds. However, at this stage in our
constitutional development, the territories remain subject under the
Constitution to the oversight of the Federal Parliament, and while this
oversight continues, the moral issues addressed in Bills such as this should
override all other considerations.[39]
3.35
Similarly, the Christian Democratic Party submitted that:
We support the Commonwealth Constitution which does not give the
two Territory Governments – the ACT and Northern Territory, the same self governing
powers as a State Government.
Territorial Assembly legislation can be overruled by the Federal
Parliament, when necessary, for a variety of reasons.[40]
3.36
Similarly, Mr John Ryan argued in his personal submission that:
...control of the Northern Territory lies in the hands of the
Commonwealth Parliament... A Territory, even the Northern Territory, is not a
State and does not have the Constitutional powers and rights of a State...All of
the rights of the Northern Territory only exist at the whim of the Commonwealth
Parliament.[41]
Limits on territories'
self-government
3.37
The committee also heard that there are several limits on the powers of the
territory governments which are imposed by their self-government legislation as
granted by the Commonwealth. As the parliamentary library pointed out in 1997:
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.[42]
3.38
The paper therefore put forward an argument in favour of the Euthanasia
Act:
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. [43]
3.39
The Law Council recognised that the Commonwealth retains the
constitutional power to make laws in respect of territories, and 'retains a
largely unfettered power to disallow or override Territory legislation'. The
Law Council noted that it was argued during the 1997 Euthanasia Inquiry that:
...the existence of this power is in itself evidence of an
intention on the part of both the drafters of the Constitution, and the
Parliaments which subsequently passed the self-government Acts, to confer an
ongoing responsibility on the Commonwealth to supervise the governance of the
Territories and a corresponding power to intervene when deemed appropriate.[44]
3.40
However, the Law Council pointed out that these arguments 'ignore the
role of convention in Australia's legal order' and, in particular, the 'strong
convention [that] has developed against revoking powers granted to subordinate
legislatures'.[45]
3.41
The ACT Attorney-General also acknowledged that the Australian
Capital Territory (Self-Government) Act 1988 (Cth) constrains the ACT from
legislating on certain matters, such as in the operations of the Australian
Federal Police, industrial relations matters and the ability to increase the
number of elected representatives within the ACT Legislative Assembly.[46]
However, the ACT Attorney-General argued that:
...we accept as a territory that there are certain constitutional
limits on our activities. The Constitution is clear on the powers of the
federal parliament as it relates to territories. Whilst we believe that it
would be desirable for those hindrances or restrictions to be removed in the
constitutional framework, we also recognise that that is unlikely, at least in
the short term or even in the medium term. But there needs to be greater
respect given to the territories to determine their own affairs.[47]
3.42
Similarly, the NT Law Reform Committee submitted that the 'Northern
Territory Legislative Assembly should have unrestricted plenary legislative
power and its supports the primary aim of the Bill for this reason'.[48]
3.43
It was also pointed out to the committee that the Commonwealth – through
the Governor-General – retains a power to disallow or override territory
legislation. This power is contained in the territories' self-government legislation.[49]
3.44
The former NT Chief Minister, Mr Marshall Perron, argued that 'these
procedures obviate the need for the Euthanasia Laws Act'.[50]
Mr Perron further told the committee that this power was not exercised at the
time of the NT RTI Act:
...an approach was made to the Prime Minister of the day, Prime
Minister Keating, to use exactly those powers and refuse assent to the Northern
Territory’s legislation through the Governor-General. To his credit, the
Prime Minister is on record as saying, in rejecting the approach, that this was
a matter for the Territory, not the Commonwealth. That is where I believe the
matter should have rested.[51]
3.45
The ACT Attorney-General went further, suggesting that these disallowance
powers were also inappropriate, and that the ACT's Self-Government Act
'should be amended to remove the power of the Commonwealth executive to
recommend the disallowance of territory laws'.[52]
Issues with territory legislatures
3.46
Many submitters who opposed the Bill suggested that territory
legislatures should not be able to legislate on issues such as euthanasia
because they are only small legislatures with no upper house of review.[53]
For example, the Australian Christian Lobby (ACL) submitted that:
The territory legislatures are small assemblies with no upper
house of review and very few members (17 members in the ACT and 25 in the NT).
In the ACT just nine politicians form a government on behalf of 300,000 people.
In the Northern Territory's case, a small territory with the population of a
suburban council district in Melbourne or Sydney passed the euthanasia law by
one vote.
Such small legislatures with no upper house should not be given
the power to make decisions on a life and death issue such as euthanasia which
would radically change the social air we all breathe by severely undermining
the protection of life.[54]
3.47
Dr David van Gend, a Senior Lecturer in Palliative Medicine at the University
of Queensland,[55]
in his personal submission, agreed:
The Bill before the Committee lacks any sense of 'legislative
proportion' in that it would allow a tiny Territory legislature to pass a
radical law that no State legislature sees fit to pass.
A legislature which lacks the checks and balances of a house of
review, with a constituency comparable to the Toowoomba Regional Council, is
not a substantial enough vehicle to carry such weighty legislation.
The existing Federal legislation is not obstructing the valid
expression of the will of the Australian people on euthanasia – State
parliaments are free to consider euthanasia, which they do from time to time,
and wisely they continue to reject it. But a matter of such magnitude, being so
radical a departure from settled law, cannot validly be introduced by a
subsidiary legislature representing only 1% of the nation.[56]
3.48
Dr van Gend clarified this point further during the committee's hearing
in Darwin:
...it is not casting any aspersions on the professionalism or the
responsibility of those people who live in the Northern Territory and occupy
its legislature. It is simply to say that it is good that at least that
legislature cannot make euthanasia laws, and wouldn't it be nice if all
legislatures could not.[57]
3.49
In the same vein, Father Frank Brennan suggested that the territories
should not be given legislative power in relation to the issue of euthanasia
'unless and until a state parliament in Australia has so legislated'.[58]
Father Brennan told the committee that:
...given that the society we have is a national society, it is
wrong for these small legislatures to view themselves as social laboratories
for trying different sorts of moral and social answers which are out of kilter
with those of the states generally.[59]
3.50
Others disputed the criticisms of territory legislatures. In response to
these suggestions, the ACT Attorney-General stated that:
The ACT does not view itself as a social laboratory, but I think
it is fair to say the ACT does consider itself to be a progressive
jurisdiction. Whether it has been a Labor or a Liberal administration, it has
always tended to be more progressive on a range of social policy matters.[60]
3.51
The ACT Attorney-General continued:
...one of the strengths of the federation model [is] that states
and territories are able to legislate to meet the needs of their particular
jurisdiction. The difficulty we have is that we are limited in what we can do
in a number of areas—particularly as it relates to euthanasia...[61]
3.52
Professor George Williams, Anthony Mason Professor and Foundation
Director of the Gilbert and Tobin Centre also observed:
...there is a link between the quality of governance and the size
of legislatures, but...[o]nce you get below a size of 150 or so, frankly, it does
not make much difference in terms of how the legislature operates. For that
reason, I do not think that the size of the legislature there casts any doubt
upon their capacity for self-governance. In the same way, I would not cast any
doubt on the capacity to govern of the Tasmanian parliament, another very small
parliament by Australian standards.[62]
3.53
Similarly, The Hon Austin Asche, of the Northern Territory Law Reform
Committee pointed out that if the size of the legislature or a jurisdiction's
population became a reason to query the legitimacy of a legislature, then:
...the Tasmanians ought to be starting to feel very uncomfortable,
because there are only 400,000 or so of them. If you do grant self-government
to a series of bodies, then you allow them to determine themselves within their
own province...If you say that the citizens of the Territory are immature—and
that means that perhaps the citizens of Tasmania are just slightly more mature
and the citizens of South Australia perhaps a little bit more mature—by all
means do so, but that means that you should not be passing self-government
acts.[63]
3.54
As to the absence of a house of review, it was noted that other
jurisdictions, including Queensland, also have a unicameral legislature. As Professor
Williams told the committee:
...if we took the absence of a house of review as being bad then
Queensland is in a difficult position, because it only has one tier of
government. Equally, you can look, for example, at the United Kingdom. It has
the House of Lords, but that house does not have full powers of review. In Canada,
their upper house is an appointed upper house and certainly does not operate as
an effective house of review. In fact, the Senate is a very unusual chamber by
world standards in operating as a house of review...Clearly, the Northern
Territory Legislative Assembly—and the ACT Legislative Assembly—is elected by
democratic means after fair and free elections. It is a proper representative
body of the people.[64]
3.55
The Hon Austin Asche further pointed out to the committee that the power
of the NT Legislative Assembly to pass the RTI Act, had been challenged and
upheld in the courts, and that this was the proper way to overturn any
territory laws.[65]
National interest – national
approach?
3.56
Others opposed to the Bill argued that it was in the national interest
for the Federal Parliament to override the NT's RTI Act. As Father Frank Brennan
put it: 'state and territory rights are not necessarily trumps at the federal
card table when an issue affects the national ethos'.[66]
3.57
A key argument against the Bill, and in favour of the Euthanasia Act, was
that it was appropriate for the Commonwealth to use its power because the NT RTI
Act had implications for the whole of Australia. In particular, the impact of
the RTI Act extended outside the NT, since there was no requirement in the NT
legislation for a person requesting euthanasia to be a NT resident. Therefore,
patients could travel from other parts of Australia to the NT to use the RTI Act
and interstate medical specialists could have a role under the Act.[67]
For example, Dr David van Gend was concerned that:
...the nation will be affected by such a law: euthanasia under the
ROTI [RTI] Act has no residency test, and would be open to the entire
Australian population.[68]
3.58
As Dr David Leaf, a medical practitioner, told the committee:
I think we all realise that if voluntary euthanasia becomes
legal in the Northern Territory then it is not just going to be Territorians
who seek it—unless there is a provision saying that people must live there for
a period of time.[69]
3.59
However, as The Hon Daryl Manzie, a former NT Minister and member of the
NT Legislative Assembly at the time the NT RTI Act was passed, pointed out to
the committee:
We are not talking about first of all forcing people to travel.
It is up to them to make a decision that they are going to travel to seek laws
in the sorts of jurisdictions where they can see doctors about dying
comfortably. Once they reach the Northern Territory, it is still a choice
process.[70]
3.60
Others felt that the issue of euthanasia was intrinsically an issue of
national interest, due to its moral and social aspects. For example, the Darwin
Christian Ministers' Association argued that it was 'imperative' that the
Commonwealth use its power 'to protect the people of Australia and the value
and dignity of human life in keeping with international conventions'.[71]
3.61
Although some considered euthanasia to be an issue of national interest,
and were concerned about 'euthanasia tourism' to the NT, others noted that the
issue of euthanasia no longer stops at Australia's borders because Australians
are now travelling overseas to obtain euthanasia.[72]
3.62
Nevertheless, several submissions – those expressing views both for and
against the Bill – suggested that if the Commonwealth wished to enact laws on
the topic of euthanasia, it should take a consistent national approach that
applies to all states and territories.[73]
For example, the Law Council expressed the view that:
If the Commonwealth Parliament believed that euthanasia was an
appropriate subject for Commonwealth legislation then it should have explored
ways that the Commonwealth could have passed laws of national application,
rather than singling-out the Territories.[74]
3.63
Similarly, Mr Gerry Wood MLA, Independent Member for Nelson in the NT,
in opposing the Bill, submitted that:
If Mr Brown believes that euthanasia should be legal in Australia
then he should argue for it to be legal all over Australia and pass
Commonwealth laws to match. By asking the NT to carry the can if this bill...is
passed would mean that the Territory (pop. 205 000) would be the centre for
those wanting to use euthanasia to end their lives...The NT would become the
guinea pig in this debate as it was in 1995.[75]
3.64
However, the committee notes that it is not clear whether the Commonwealth
has the constitutional power to pass a national law to prohibit or permit
euthanasia.[76]
The committee received evidence that it might be possible, for example, for the
Commonwealth to use its external affairs power to legislate to prohibit
euthanasia based on Australian's international human rights obligations. Other
suggestions included the corporations power, the implied nationhood power, and
the appropriations power.[77]
As Professor George Williams from the Gilbert and Tobin Centre told the
committee:
It [the Commonwealth] is not shy of intervening in a range of
matters where it wishes to or of using the full ambit of its financial and
other powers. Given the capacity and ability it has shown in other areas, I
would be very surprised if the Commonwealth could not get its way on a topic
like this if it so wished.[78]
Drafting issues
3.65
A number of drafting issues were also raised in relation to the Bill during
the committee's inquiry. In particular, the NT Government submitted that 'the Bill
is poorly drafted and does not provide a sufficiently clear and express
indication of intention'.[79]
The following issues will be considered in this section:
- whether the NT RTI Act can be revived;
- whether the Bill should repeal the Euthanasia Act or whether the
amendments to the territories self-government legislation made by the
Euthanasia Act should be expressly removed from that legislation; and
- whether clause 3 of the Bill is misleading.
Can the RTI Act be revived?
3.66
Item 2 of Schedule 1 of the Bill aims to restore the NT RTI Act.
However, submissions expressed doubt as to whether the NT RTI Act could in fact
be reinstated by the Bill. For example, the Gilbert and Tobin Centre observed
that:
...there is significant judicial and academic opinion which
suggests that laws made by territory legislatures are not merely suspended or
dormant for the duration of any inconsistent Commonwealth law and then enter
back into force upon its removal...[80]
3.67
The Centre concluded that:
In short, there are strong grounds for suggesting that item 2 of
Schedule 1 is insufficient to revive the Rights of the Terminally Ill Act
1995 (NT). The rights of individuals and interests at stake are too
important to allow uncertainty on this score. The Northern Territory's
Legislative Assembly should be advised to re-enact the 1995 legislation if it
wishes to do so in order to ensure it is valid and operative after the
Commonwealth Parliament passes this bill.[81]
3.68
Similarly, the NT Law Reform Committee submitted that:
The argument could be made that the repugnancy of the Territory
Act to the federal Euthanasia Laws Act 1997 (Cth) whilst it was in
force, had the effect of rendering the Territory Act null and void. It would
not have been held in mere suspension pending the repeal of the Commonwealth
statute.[82]
3.69
On the other hand, the NT Law Reform Committee raised a concern that:
...Item 2 has the potential to provide the basis for an argument
that the [NT RTI] Act would be invested with a Federal character that it did
not possess prior to the commencement of the Euthanasia Laws Act 1997
(Cth) or would not possess following the mere repeal of that Act. There is a
real danger of the Act becoming entrenched and thus leaving the Assembly powerless
to amend or repeal it, should it want to do so once the Bill becomes law. Item
2 of the Schedule should therefore be removed.[83]
3.70
As the NT Government pointed out 'this is not a subject matter that sits
well with legal uncertainty and confusion'. Indeed, it noted that, if the Bill
were passed in its current form:
Serious consequences would flow if someone relied on the
protections provided by the [Northern] Territory's Rights of the Terminally
Ill Act, only to find after the event that in fact the Act had not been
revived. It would clearly be imprudent to act on the basis that the Territory
legislation had been revived by the provisions of the current Bill.[84]
3.71
Professor George Williams of the Gilbert and Tobin Centre told the
committee that the Bill should be amended to repeal the limitation in the self-government
acts. This would ensure that the territories retain the ability to legislate in
the future on the topic of euthanasia. Professor Williams explained that:
That would mean that, instead of the Northern Territory law
being revived, the Legislative Assembly there and in the other territories
would be able to pass a new law, should they so wish. I think that is
appropriate given the principles of democracy involved, given the time that has
elapsed and also given the constitutional issues [rather] than to attempt to
revive something that may not be possible to do and it would certainly be
inappropriate to leave practitioners and others in a situation where they may
be unclear as to the legality of their actions.[85]
3.72
The NT Law Reform Committee agreed that the Bill should:
...leave it to the Northern Territory Legislative Assembly as a
mature legislature to decide whether to re-enact (so as to remove any doubt
regarding its validity) or repeal the Act. The decision whether the Act should
again come into operation properly belongs to the Territory Assembly not the
Commonwealth Parliament. [86]
3.73
Indeed, a representative of the NT Government told the committee that:
The Territory has doubts as to the legal capacity of reviving an
act that has been spent and dormant for over 10 years and, in any event, the
Territory is of the view that it is inappropriate through this bill to have the
legislation involuntarily re-imposed on us. If the Northern Territory's
legislative capacity was restored, it would review its position in regard to
euthanasia before deciding whether to amend the old [A]ct or to make new laws
in future.[87]
Repeal of the Euthanasia Act
3.74
Another concern raised by the NT Government related to item 1 of
Schedule 1 of the Bill. As outlined in Chapter 2, item 1 proposes to repeal the
Euthanasia Act, which in turn amended the territories' self-government
legislation to insert provisions removing the power of their legislative
assemblies to enact laws permitting euthanasia.[88]
3.75
The NT Government submitted that it had legal advice to indicate that,
by repealing the Euthanasia Act, the Bill's intention was to repeal section 50A
of the Northern Territory (Self-Government) Act 1978 (Cth). This in turn
would remove the restriction on the NT's future capacity to legislate in regard
to euthanasia. However, the NT Government noted that:
This advice relies on an interpretation of the intent of the
bill and s.8 of the Acts Interpretation Act 1901 (Cth), which provides
that where an Act repeals a former Act, then unless a contrary intention
appears, the repeal does not revive anything not in force or existing at the
time when the repeal takes effect.[89]
3.76
As a representative of the NT Government told the committee:
The intention of the bill would appear to be that section 50A of
the Northern Territory (Self-Government) Act is to be repealed. But the bill
does not say that directly or explicitly. It goes about the matter in a
somewhat roundabout way. To get to the outcome that section 50A of the Northern
Territory (Self-Government) Act is repealed, you have to come to a view as to
the intention of the proposed legislation and then you have to have a legal
interpretation of the Commonwealth Acts Interpretation Act to determine the
outcome. Why the proposed legislation cannot simply say, 'Section 50A of the Northern
Territory (Self-Government) Act is hereby repealed,' is beyond us.[90]
3.77
In response to the committee's questions on this issue, the Hon Austin Asche
agreed that there was some uncertainty in the drafting of the Bill.[91]
In a subsequent answer to a question on notice, the NT Law Reform Committee
stated that:
...there cannot be any real argument against the proposition that
the repeal of the 1997 [Euthanasia] Act will have the effect of removing
section 50A of the Northern Territory Self-Government Act 1978 (Cth),
notwithstanding the absence of a provision expressly repealing section 50A.[92]
3.78
The NT Law Reform Committee elaborated on this:
...the conclusion that section 50A and its counterparts are removed
from the Self-Government Acts by the repeal of the 1997 Act is inescapable.
What other effect could its repeal have? The express repeal of those
provisions, when coupled with the repeal of the 1997 Act, would be superfluous
no doubt, but could also give credence to an argument that something less than
the complete repeal of the 1997 Act was intended.[93]
3.79
Nevertheless, the committee notes again the evidence of the NT
Government that 'this is not a subject matter that sits well with legal
uncertainty and confusion' and that the Bill 'does not provide a sufficiently
clear and express indication of intention; relying as it does on a series of
implied consequences'.[94]
Wording of clause 3 of the Bill
3.80
A final drafting issue related to the wording of the objects clause, in clause
3 of the Bill, which states:
The object of this Act is, in recognising the rights of the
people of the Australian Capital Territory, the Northern Territory and Norfolk
Island to make laws for the peace, order and good government of their territories,
including the right to legislate for the terminally ill, to repeal the
Euthanasia Laws Act 1997 which removed that right.
3.81
Several submissions took issue with this clause. For example, the ACL submitted
that this clause was misleading because 'the territories can already legislate
on behalf of the terminally ill: they simply cannot legislate for euthanasia'.[95]
The ACL pointed out that, although the Euthanasia Act removed the power of the
three territories to enact laws which permit euthanasia, it does provide each
legislative assembly with the power to make laws with respect to other matters
which could be characterised as laws for the 'terminally ill'. For example, the
territory legislative assemblies may make laws with respect to the 'withdrawal
or withholding of medical or surgical measures for prolonging the life of a
patient but not so as to permit the intentional killing of the patient'.[96]
The committee was also told that the NT does have a Natural Death Act 1988 which
allows people to withdraw from medical treatment.[97]
3.82
The final point in relation to clause 3 was made by Father Frank Brennan,
who pointed out that it is the legislative assemblies that have the
power to 'make laws for the peace, order and good government' of their
territories, rather than the people as stated in clause 3 of the Bill.[98]
Other issues
Impact of Euthanasia Act in
particular jurisdictions
3.83
Some submissions were concerned about the particular impact of the Bill
and/or the Euthanasia Act in certain jurisdictions. For example, some
submissions were concerned about the impact of the Bill and the Euthanasia Act
on proposals for the NT to become a state.[99]
Indeed, the NT Government suggested that the Bill be replaced by a Bill
granting statehood to the Northern Territory.[100]
Others were anxious about the impact of euthanasia legislation on the Indigenous
community in the Northern Territory – this issue is considered further in Chapter
4 of this report.
3.84
In relation to the ACT, the Gilbert and Tobin Centre was concerned that
the Euthanasia Act could have a 'serious long-term impact' on the ACT. This was
because, as the seat of federal government under the Constitution, 'unlike the Northern
Territory, [the ACT] appears unable ever to escape the affects of the Act
because it cannot become a State'.[101]
3.85
As outlined earlier, the ACT Government supported the Bill, noting that:
The removal of [sub]sections 23(1A) and (1B) of the Australian
Capital Territory (Self-Government) Act 1988 does not necessarily mean that
the elected representatives of the Australian Capital Territory would
immediately move to enact euthanasia laws. It would simply enable the people of
the Australian Capital Territory to determine their own path in relation to
this issue. That is the democratic way.[102]
Issues relating to the RTI Act (NT)
3.86
Several submissions suggested that, in any case, the Bill should not
revive the RTI Act due to concerns in relation to the content and adequacy of that
legislation. For example, Father Frank Brennan told the committee 'if we wanted
to design a good euthanasia law we would not simply repeat the Rights of the
Terminally Ill Act'.[103]
There was also considerable debate during the committee's inquiry about the operation
of the RTI Act while it was in force, and the circumstances of the deaths that
did occur under the RTI Act.[104]
3.87
A key concern raised in relation to the provisions of the RTI Act was whether
the safeguards contained in the RTI Act were adequate. For example, Dr Brian Pollard
canvassed many potential problems with the provisions of the RTI Act, and
queried whether Federal Parliament should restore legislation which it could
not itself amend.[105]
Some, as noted earlier, were particularly concerned about the lack of residency
requirement in the RTI Act to prevent 'euthanasia tourism' to the NT.[106]
However, others believed that the NT legislation's safeguards were adequate.[107]
International obligations
3.88
Another issue raised was whether the Bill and the RTI Act are compatible
with Australia's international human rights obligations.[108]
For example, in opposing the Bill, the ACL argued that 'this bill is totally
incompatible with basic human rights as outlined by the United Nations and
assented to by Australia'. Citing the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights (ICCPR),
the ACL submitted that:
Like all human beings, people suffering terminal illness have
the right to life and to the protection of the law against violation of this
right. They also enjoy the right to medical care and social services. People
also have the right to effective remedy against violations of these rights,
'notwithstanding that the violation has been committed by persons acting in an
official capacity'.
Finally, people are subject to limitations on their freedom by
law but only for the purpose of 'securing due recognition and respect for the
rights and freedoms of others and of meeting the just requirements of morality,
public order and general welfare in a democratic society'.[109]
3.89
The Sydney Centre for International Law also considered whether the Bill
is compatible with Australia's international law obligations, in particular the
duty to protect the 'right to life' under article 6(1) of the ICCPR. The Centre
concluded that:
...the kind of euthanasia legalised by the Rights of the
Terminally Ill Act 1995 (NT) does not amount to an arbitrary deprivation of
life under article 6(1). It is accordingly within the Commonwealth Parliament's
power in fulfiling its duty to safeguard against the arbitrary deprivation of
life to effectively reinstate the Rights of the Terminally Ill Act 1995
(NT).[110]
3.90
At the same time, the Centre suggested that the Commonwealth could
consider enacting legislation to:
...specify the minimum safeguards which would be necessary in
order for Australia to comply with its obligation to protect the right to life.
Such framework legislation could permit variation in State and Territory
euthanasia laws as long as such laws remained above the floor laid by the
federal legislation.
In our view, the Commonwealth would possess the power to
legislate even in respect of the States pursuant to the external affairs power
in the Commonwealth Constitution, since such a law would be reasonably
appropriate and adapted to fulfilling Australia's international treaty
obligation to positively safeguard the right to life under article 6 of the
ICCPR.[111]
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