Irrespective of views that individuals may hold on the policy substance in this bill, it is currently so poorly drafted it doesn’t warrant the support of the chamber. Specifically, amendments relating to the Fair Work Act 2009, acquisition of property otherwise than on just terms and voluntary assisted dying (‘VAD’) all lack coherence.
The bill exposes divisions within the government that are now so rife that the government members of this committee were unable to reach even a semblance of a substantive recommendation in relation to this bill. Paragraph 2.39 summarises the government members’ vapid approach to this important issue:
The committee makes no recommendation about the appropriateness or otherwise of using the territories power to prevent the territories from enacting VAD legislation. The committee considers it is a matter for the Senate to decide whether the use of the territories power in this way is appropriate.
The sole recommendation of the government majority further underlines the inability of the Chair and the government members to provide any useful commentary or guidance on this bill, with the content-free recommendation that 'the Senate takes note of this report'.
Restoring Territory Rights in relation to making laws with respect to Voluntary Assisted Dying
The Euthanasia Laws Act 1997 (known as the Kevin Andrews Law) was passed by the Howard government for the purpose of amending the Australian Capital Territory (Self‐Government) Act 1988 and the Northern Territory (Self‐Government) Act 1978 to deprive the respective legislative assemblies of the power to make laws relating to euthanasia. It is not in doubt that the entire purpose of the Kevin Andrews Law was to take away rights and powers from those two self-governing territories, and those who live there.
The key measure in this bill intends to restore the right of the Northern Territory Government, and hence of the people of the Northern Territory, to make their own decisions regarding laws regarding VAD. The Labor Party has long held that policy on euthanasia is a matter of conscience for individual members to decide. However, it is important to emphasise that this bill does not attempt to establish VAD laws in the Northern Territory. Rather, this bill intends to ensure that Territorians once again have the same rights as other Australians to decide their own laws with respect to this important matter of conscience.
It is notable that in the quarter of a century since the Kevin Andrews Law was passed, all state legislatures have debated legislation on voluntary assisted dying, with VAD now legalised in five of Australia's six states - Victoria, Western Australia, Tasmania, South Australia, and Queensland. VAD is in operation in Victoria and Western Australia, and will commence in Tasmania, South Australia and Queensland in late 2022 – early 2023. Many European nations have legalised voluntary assisted dying, as have at least eight US states and the District of Columbia.
In addition, while the Northern Territory was a pioneer of VAD laws at the time the Kevin Andrews Law was passed in 1997, and VAD laws were still relatively new to the public, recent surveys (including those submitted to this committee by the Australia Institute) show that VAD laws are now supported by the vast majority of Australians.
So while Australia has moved on since 1997, and the important issue of VAD laws has been or is being debated in every Australian state, the 700,000 Australians who live in the Northern Territory and the Australian Capital Territory continue to be denied the opportunity to participate in a democratic process to resolve their own approaches to euthanasia. This ongoing discrimination against the peoples of the Northern Territory and the ACT is unacceptable to Labor.
Where laws are inconsistent, people may move between jurisdictions. If voluntary assisted dying is legalised in all states, but remains illegal in the Territories because of the Commonwealth’s intervention decades ago, terminally ill Territorians will have no choice but to relocate to one of the states if they wish to avail themselves of euthanasia laws. In many cases, relocating would only increase the stress that dying people and their families would already be suffering at the end of their lives. Preventing these kinds of interstate movements was an argument used by proponents of the Kevin Andrews Law in 1997. The same argument now favours repealing the Kevin Andrews Law, to allow Territorians to choose if they want their laws to be consistent with the laws in the states.
One of Australia’s pre-eminent experts in constitutional law, Professor George Williams AO, submitted that the decision of the former Liberal government to deprive residents of the Northern Territory and the ACT of the right to make their own decisions about VAD laws is a form of 'entrenched discrimination'. Professor Williams submitted that:
The discrimination between those who live in states and territories is indefensible. Australian citizens living in Canberra and Darwin are just as fit to make decisions for themselves as their counterparts in Perth or Sydney. There is no good reason why they are denied the same control over their lives.
the Federal Parliament can ensure that its laws provide Territorians with the same rights, as far as possible, as other Australians living in the States. The Bill should be supported in seeking to achieve this.
However, it is clear that this right to make laws with respect to VAD should not only be restored to the Northern Territory, but also to the people of the Australian Capital Territory. In this context, Professor Williams submitted that without extending the effect of this measure to the ACT as well as the Northern Territory, 'this Bill would introduce another invidious form of discrimination, this time between Australians living in the Northern Territory and the ACT'. Labor agrees, and recommends that any legislation to restore the right of the Northern Territory to debate and legislate with respect to VAD laws should restore those same rights to the ACT.
In summary, it must be acknowledged that VAD laws are a challenging and highly personal subject for many Australians, but regardless of where individuals stand on the merits of euthanasia and the specifics of any VAD policies, it is untenable that Australians living in the Northern Territory and the ACT should be prevented from debating an issue which has been or is being debated in every Australian state. Labor strongly supports the rights of Territorians to make their own choices about VAD laws.
Restoring the capacity of the Northern Territory from making laws with respect to the acquisition of property otherwise than on just terms
This bill would also repeal section 50(1) of the Northern Territory (Self-Government) Act 1978, which limits the power of the Legislative Assembly to acquire property otherwise than on just terms. No justification has been offered for removing this limit on the power of the Northern Territory Government. This basic protection of private property rights is an important constraint on the Commonwealth government set out in the Australian Constitution. Currently, there is no justification for any government to acquire property other than on just terms, and Labor does not support this measure.
That the bill not be passed in its current form.
Senator the Hon Kim Carr
Senator for Victoria