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Thursday, 28 October 2010
Page: 1079

Senator SCULLION (3:53 PM) —In rising to speak to the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010, I would like to commend Senator Bob Brown. I am always cynical when Senator Brown puts up bills because he seems to be very good at value-adding. But in this case it is a worthwhile bill on a number of fronts. I know that over a long time he has been a champion of euthanasia and I commend him for that. Restoring territory rights is something that I have been very keen on for a very long time. I must have been partially asleep while considering what this new paradigm meant but whilst I was doing that Bob got on with the business and introduced this legislation. It is something certainly I would have associated myself with. So congratulations for that, Senator Brown.

The stated objective of the bill that we are debating today is to restore the rights of the Northern Territory, the Australian Capital Territory and Norfolk Island parliaments to debate and pass laws for the governance of their territories. The catalyst for the introduction of this bill, however, was the passage of the Rights of the Terminally Ill Act 1995 through the Northern Territory parliament in 1996 and the subsequent Euthanasia Laws Act 1997 through the Australian parliament, which overturned the Northern Territory’s law.

I accept that, given the emotive nature of euthanasia, it is very difficult to separate this issue in order to focus our attention simply on the restoring of the states rights objectives of the bill, which I fully support. Those of us on this side of the chamber believe it is a fundamental right that members and senators are able to vote on sensitive matters such as euthanasia according to their conscience. Therefore, it is appropriate that this bill will be dealt with in this way.

Whilst the bill is associated with euthanasia in the Northern Territory, there is no connection between an outcome of this bill and the re-establishment of a process in the Northern Territory that will allow for euthanasia. That being the case, the fundamental issue at stake is that a Commonwealth act is in place that forever forbids the Northern Territory, the Australian Capital Territory and Norfolk Island legislatures from discussing something. I think that that strikes at the very heart of our democracy. I know that Senators Crossin and Lundy would share my view that you have to be in a particular place, you have to be in the shoes of Territorians, to understand just how narked we feel that somehow it is okay for Western Australia, for example, to debate this matter—it is quite okay for them to do it and to come to whatever decision Western Australians come to—but for some reason or other because we are a territory we simply cannot do it. The attitude seems to be that we are not very smart or that we have some sort of democratic process that is perverted. I hope that all people in this place would see this not as a vote on euthanasia but genuinely as a vote to allow a group of Australians, who by dint of choice or birth or other things have found themselves living in a territory, to make their own decisions. It is a very important point. While this is a conscience vote, I appeal to people to see it as a wider issue. It is an issue for me personally. It is about the rights of people of the territories to be equal in how they cast their votes and make decisions, through democratic processes in the places that they live.

The Commonwealth has no specific constitutional powers to intervene in the states as it does in the territories. It is really a question of equity. In this place—the Australian Senate, which is colloquially referred to as the states’ house—it is a question I think we must consider very seriously. I did a bit of research into who had said what in the past. The Senate conducted an inquiry into the euthanasia bill in 1997. Someone that I know is well known to Senator Crossin, Maggie Hickey, who was then the Northern Territory opposition leader, made a very incisive contribution. She said:


The members of the House of Representatives who voted this bill to you for consideration used their conscience to vote solely on the issue of euthanasia.

Your conscience vote is perhaps more complex.

Your conscience vote must also include the historical responsibility of being the states house and by being freed from party constraints you have an opportunity to exercise that historical opportunity.

It is a rare opportunity.

My plea to you is to focus on this responsibility in discharging your conscience and not on the issue of euthanasia itself.

As I said at the outset, Territory Labor allowed all of its members a conscience vote on the issue of euthanasia. Some voted against and some voted for.

We are, however, united in our opposition to the Andrews bill. That unity was borne out of the fact that even those members who have taken a very strong stand against this legislation believe it is our constitutional right to enact the law and to remove it in the future if they are successful in persuading the parliament to do so.

Wise words. I think we really should be able to focus in this place on the elements of this debate. This is really about equity.

The Northern Territory (Self-Government) Act 1978 intended the Northern Territory to be given self-determination, yet the Commonwealth is able to override its legislation. The Commonwealth has this power through section 122 of the Constitution, which is a plenary power with no limitations on its use or in fact the subject matter it covers. I am certainly not Senator Brandis and I have very little knowledge of the Constitution, I have to say. Like most of us, I have a broad understanding. But I think there is a spirit of the Constitution and the spirit of the Constitution talks about other things.

If you have the time—I do not commend it to you—and look at the details of the things the Constitution does  you will see that the Constitution lays out what the Commonwealth is responsible for and, by omission, what the states and territories are responsible for. I think that is one of the tasks it does. It talks about what the Commonwealth is responsible for. I will not go into the detail but it includes trade and commerce, taxation, borrowing money on the public credit card—you guys should be interested in that!—naval and military defence of the Commonwealth, lighthouses, quarantine, currency, weights and measures, and it goes on and on. Some of the things have been specifically used since I have been here, such as marriage and ‘the people of any race for whom it is deemed necessary to make special laws’.

When the Commonwealth wants to intervene, we tend to look for some place in the Constitution about how we can intervene. I have been a part of that process. When you fail to be able to intervene with the wide range of capacities and powers that the Commonwealth has, you then lean back to section 122 and say, ‘It does give us the capacity.’ It may do, but I do not think it gives you the moral high ground or a moral place to do so. If it did in this particular case euthanasia would be there. It would have been made implicit by the founding fathers and the people who wrote the Constitution. The fact that it is not there does not necessarily mean that because it is a state or territory you can lean in a new section 122 for pretty much anything you want. I think that it is really the spirit of the Constitution, not necessarily the exact words of the Constitution, that we should follow in this regard.

When Northern Territory Chief Minister Marshall Perron first introduced the Rights of the Terminally Ill Bill in February 1995, it was immediately referred to a select committee, which received over 1,000 submissions, took oral evidence and conducted hearings across the Territory—including in a number of Aboriginal communities. The Rights of the Terminally Ill Act 1995 came into effect on 1 July 1996, and nearly three months later a man in his mid 60s who had been suffering from prostate cancer was the first person reported to use the legislation to die. Before his death, on 9 September 1996, the Commonwealth government introduced a bill into the Australian parliament with the stated objective of preventing the Northern Territory, the Australian Capital Territory and Norfolk Island from passing certain laws permitting euthanasia. As I have said, while the Commonwealth does not have the constitutional law to prohibit euthanasia outright in Australia, because it could make laws for the government of a territory they invoked section 122.

Whenever I look at legislation in this place and do not understand it, it is useful to go back and have a look at the second reading speech, because it can give you some insight about what mischief was trying to be prevented. Of course, that is impossible with the Constitution. Section 122 says:

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of …

In the context of modern Australia, the circumstances where a state would at some future time vacate a piece of land that needed some laws are not the circumstances we are in now. When this Constitution was written we did not have the Northern Territory (Self-Government) Act, we did not have the Australian Capital Territory (Self-Government) Act and we did not have whatever act allows Norfolk Island to govern. So using the constitutional power was not, I do not think, legitimate. Four people used the provisions of the Northern Territory government’s Rights of the Terminally Ill Act before the Commonwealth government passed the Euthanasia Laws Act 1997. Of the four people, three were Territorians. Despite fears of some opponents to the legislation, only one person travelled from outside the Territory to use the provisions.

As I indicated earlier, last month in Western Australia the parliament debated a euthanasia bill, but it was voted down. The Northern Territory may be interested; I am not really sure. Some Territorians have mentioned it on both sides of the debate. People in the Northern Territory will be thinking about the debate, just as people in Western Australia might. There may be some people like me who do not have a really focused view on it. I am not prevented by my theology from having a theological position on it, but I recognise that there will be many people who have been in circumstances that really sharpen their views on these matters—and I respect that. But what is the difference between somebody trundling to work in the Northern Territory and somebody trundling to work in Perth? There is absolutely none. As Australians, this really strikes at the heart of the issue. Why is it that Northern Territorians and people in the Australian Capital Territory and Norfolk Island should be thinking and pondering these matters about entering into a process when they are exactly the same as people in Western Australia, New South Wales and Victoria—except that they live in a place that ends in the word ‘territory’ and do not have the same access to a democracy? That strikes fundamentally at the heart of our Constitution and what Australia means.

What every Australian believes in is equity. Two men or two women should have the same rights wherever they go. This legislation rights that wrong. I think that fundamentally the citizens in the Northern Territory and the wider Territory, as a result of the Euthanasia Laws Act 1997, see themselves as simply excluded from the debate. It is important, as I have indicated, to recognise that this bill will not reinstate the Northern Territory Rights of the Terminally Ill Act. Euthanasia will not be legislated as a result of this bill, but it will be possible now for the Northern Territory and other territories to be able to be part of the debate, just the same as any other citizen of Australia. It is important to note, perhaps as an observation, that the Northern Territory Chief Minister, Paul Henderson, has indicated that it is not a priority for his government. I can tell you that when anybody who is a leader in parliament makes such a claim, there will be people on talkback radio expressing their view about his view, and I am sure some of them will be saying, ‘It’s probably not your entire deal, Mate, because other people in the community will want to ensure that they have their say,’ and there will equally be people who will be saying, ‘Yes, we think that is a good idea.’ But right at the moment it does not matter a fig what the Chief Minister of the Northern Territory thinks or is inclined to do, because there is a piece of legislation currently on the books of the Commonwealth that prevents us from even considering, or possibly having a debate, coming to a vote and making our own laws on it. That is simply stupid. It flies against every value that everybody in this place should have.

There are a number of things I should briefly speak about. Often people see the Northern Territory as some faraway place, but that is not the case. The process in the Northern Territory was a rigorous process. There was a very strong debate. There were plenty of attempts to amend and overturn the Rights of the Terminally Ill Act 1995 within the Northern Territory Legislative Assembly. In August 1996, the Rights of the Terminally Ill Amendment Bill 1996 was introduced into the Northern Territory Legislative Assembly. That legislation would have prohibited the performance of physician assisted suicide or active voluntary euthanasia in a public hospital or a health clinic. It was introduced in order to address concerns expressed by Indigenous people about the previous act. The bill’s second reading was negatived 15 to 10.

The Respect for Human Life Bill 1996 was introduced on 15 May 1996 and it would have repealed the Rights of the Terminally Ill Act 1995, but that was up to Territorians. They have a proper process to ensure that their constituents are served. That bill’s second reading was negatived 14 to 11 in August 1996. I think this demonstrates that the Northern Territory parliament is not above the law or above due and proper process. Its legislation, like all legislation that is passed in this place, may be tested in court.

We may not like a piece of legislation that is being debated in another parliament but we must respect their right to have that debate. A state or territory parliament may pass legislation that we as individuals or collectively might object to but it is their right to pass legislation so long as it is within their constitutional area of responsibility and is not inconsistent with Commonwealth laws. The Northern Territory was in that exact situation. Euthanasia was not on the list of issues under the Constitution that the Commonwealth could act on.

We as Commonwealth parliamentarians can say, ‘Well, we think that is a bit odious and we’re off to make comments about what happens in the states and territories and whether we like it or don’t like it’. But the difference is when we as a Commonwealth government interdict in a territory issue in a way that is different for a state. I think the house that represents the states—originally in terms of equity and finance but I think conventionally—should be the house of the states that ensures that there is equity between the states.

There could not be a more important debate or a more important vote. This is not only a test about how people feel about Territorians; this is a test about how people feel about the strength and dignity of the Senate of Australia. I know there will be plenty of debate in the Northern Territory on this matter. The principal debate we are having in the Northern Territory is twofold. There are those who harangue me that we should be pro-euthanasia and there are those who harangue me saying we should be against euthanasia. But the vast majority of people are saying to me, ‘We want the right to make our own decision in the Northern Territory.’ It should be the same right—it does not matter what your beliefs in this matter are—as anywhere else.

I accept that the Commonwealth should be able to deal with matters listed in the Constitution, but when it is not listed it should be the convention of this place not to allow the government of this place to intervene. We have it in black and white. We have the lists of those areas under which we are able to intervene, and so, by the absences there, that should be it. Section 122, outdated though it is, is something we should not use in this place. Every time I make heroic statements in this place I wonder if I am going to have to eat my words, but I can tell you that on this one I will not.

As I have said, I think this is a real test. We live in a democracy and, whilst this sometimes means that laws that we do not like are passed—to quote Churchill, ‘Democracy is the worst form of government, except for all the others that have been tried.’—we need to protect that tenet of government. As I have said a couple of times already in my submission today, this is not about euthanasia. For me, this bill, whilst it is associated with allowing a territory to discuss a certain thing, is primarily about restoring the rights of the Northern Territory to make its own decisions, as it has done on a whole range of very complex issues over a very long time.

So I encourage everyone entering this debate and this vote to think about territorians—whether they are Norfolk Islanders, Australian Capital Territorians or Northern Territorians—to consider how people feel about this. They are not stupid. They have the capacity to make their own decisions. This is not only a test of what you think about the Northern Territory but also, fundamentally, a test of how you feel about the Senate.