On 5 August 2021, on the recommendation of the Selection of Bills Committee, the Senate referred the Ensuring Northern Territory Rights Bill 2021 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 6 October 2021.
An appendix to the Selection of Bills Committee report identified that the referral of the bill to the committee would allow for the consideration of matters including 'how this bill will align Commonwealth involvement with laws of the Northern Territory similar to the Commonwealth's involvement with laws of Australian states' and the 'benefits that will be delivered to Northern Territorians' as a result.
Conduct of the inquiry
In accordance with usual practice, the inquiry was advertised on the committee's webpage. The committee called for submissions by 30 August 2021 and wrote to a range of stakeholders inviting them to submit.
The committee received 88 submissions, listed at Appendix 1.
The committee thanks submitters for their contributions to this inquiry.
Structure of this report
This report comprises two chapters:
Chapter 1 summarises the conduct of the inquiry and outlines the key provisions of the bill.
Chapter 2 considers key issues discussed in evidence to the inquiry and concludes with the committee's view.
Purpose of the bill
This bill, which is a private senator's bill introduced by Senator Sam McMahon, seeks to amend the Northern Territory (Self-Government) Act 1978 (NT (Self-Government) Act) and repeal the Euthanasia Laws Act 1997 (Euthanasia Laws Act) to remove:
Limitations that apply to the Northern Territory Legislative Assembly pertaining to the acquisition of property on just terms,
Laws that limit the ability of the Northern Territory Legislative Assembly to legislate for voluntary assisted dying if the Legislative Assembly chooses to do so, and
Limitations on the ability of the Northern Territory Legislative Assembly to make laws conferring powers in relation to the hearing and determining of employment disputes.
In her second reading speech, Senator McMahon identified that the bill:
aims to restore the rights of Northern Territorians in line with those held by residents of Australian states across legislation that confers powers on the Commonwealth that the Northern Territory Parliament should be able to govern themselves.
Senator McMahon noted that the three amendments contained in the bill 'will restore the rights of Territorians, and all…are equal in their importance'.
Key provisions of the bill
The bill's provisions are contained in one schedule that contains three parts:
Part 1 contains proposed amendments to the NT (Self-Government) Act;
Part 2 seeks to repeal the Euthanasia Laws Act; and
Part 3 clarifies the application of the Rights of the Terminally Ill Act 1995 (Northern Territory) (ROTI Act) should the bill be passed.
Item 1 of Schedule 1 would repeal subsection 50(1), which prevents the Northern Territory from making laws with respect to the acquisition of property otherwise than on just terms. In her second reading speech, Senator McMahon explained that this amendment would 'align to arrangements already in place for the states and will confer equal powers on the Northern Territory Parliament'.
Item 2 of Schedule 1 would repeal section 50A as inserted by the Euthanasia Laws Act, which precludes the Northern Territory from legislating for voluntary assisted dying or euthanasia. Senator McMahon highlighted that this provision:
is not a green light for the legalisation of voluntary assisted dying in the Northern Territory. It simply provides the ability for the Northern Territory Legislative Assembly to make their own laws regarding the practice, should they choose to do so.
Item 3 of Schedule 1 would insert a note at the end of subsection 53(4) which states: 'Sections 29 and 40 of the Fair Work Act 2009 deal with inconsistency between awards and agreements made under the Act and laws of the Territory'. The explanatory memorandum notes that this wording is employed in the Australian Capital Territory (Self-Government) Act 1999 (ACT (Self-Government) Act) and would 'better reflect the existing relationship between the Commonwealth Fair Work Act 2009 and Northern Territory Law'.
Item 4 of Schedule 1 would repeal subsections 53(5) and (6), including the note. At present, subsection 53(5) precludes the Legislative Assembly from making a law conferring on any court, tribunal, board, body, person or other authority any power in relation to the hearing and determining of disputes, claims or matters relating to terms and conditions of employment. As well as highlighting 'the current relationship between the Commonwealth Fair Work Act 2009 and Territory law', Senator McMahon explained that this provision would remove the current limitation on the ability of the Northern Territory Legislative Assembly to make laws conferring powers in relation to the hearing and determining of employment disputes.
Part 2 of the bill would repeal the whole of the Euthanasia Laws Act 1997. This Act introduced amendments to the Northern Territory (Self-Government) Act 1978, the ACT (Self-Government) Act and the Norfolk Island Act 1979 that precluded each of these jurisdictions from making laws that:
have the effect of permitting (whether subject to conditions or not) 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.
The Euthanasia Laws Act also rendered the Rights of the Terminally Ill Act 1995 (NT) (ROTI Act) inoperative.
Part 3 of the bill would clarify that the passage of the bill would not re-enliven the application of the ROTI Act for any act or thing that was done from 27 March 1997 despite the repeal of the Euthanasia Laws Act and s50A of the NT (Self-Government) Act.
Background to the bill
In 1995, the passage of the ROTI Act through the Northern Territory Legislative Assembly saw the Northern Territory become the first jurisdiction in Australia to enact voluntary assisted dying (VAD) laws.
Following these events, the Euthanasia Laws Bill 1996 was introduced as a private member's bill by the then Mr Kevin Andrews MP. This committee considered the provisions of that bill and a report was tabled in the Senate in March 1997. The 1996 bill was the subject of a conscience vote in the Parliament and passed into law as the Euthanasia Laws Act 1997. The provisions of the Act are described in paragraph 1.15 above.
In the intervening period, a number of private senators' bills have been introduced into the Senate seeking to repeal the prohibition on the territories enacting VAD laws. For example, two of these are:
the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, which was introduced by Senator Bob Brown, and was considered by this committee in a report dated June 2008. This bill lapsed at the end of the 42nd Parliament; and
the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015, which was introduced by Senator David Leyonhjelm and negatived at second reading.
Consideration by other parliamentary committees
The Parliamentary Joint Committee on Human Rights and the Senate Standing Committee for the Scrutiny of Bills had no comment in relation to the bill.