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Thursday, 28 October 2010
Page: 1084


Senator CROSSIN (4:13 PM) —Given the controversy that this legislation, the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010, has created, particularly in the Northern Territory, it is a pity that the Senate is not being broadcast today. It is a pity that people in the Northern Territory did not hear Senator Scullion’s contribution. I commend Senator Scullion on his speech. A lot of people think we probably only have a love of seafood in common, but we also share a passion for defending the rights of the Northern Territory government—a competent government—and the rights of Territorians.

The importance of the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010 is stated in its title. Senator Scullion and Senator Bob Brown are right: it is predominantly about restoring the rights of Territorians. It is linked to the issue of euthanasia but it is 100 per cent about restoring the rights of people in the Northern Territory government to legislate on matters that it is competent and wants to legislate on.

I turn now to a brief history of the events that have brought us here today. There are three territories in the Commonwealth—the Northern Territory, the Australian Capital Territory and Norfolk Island. They have all been granted self-government by the Commonwealth, which allows the residents of those territories to elect members to their respective legislative assemblies, which then make laws on their behalf. In 1995, the Northern Territory Legislative Assembly debated the Rights of the Terminally Ill Bill 1995 under its constitutional legislative rights. The assembly was entitled to debate euthanasia under the powers given to it by the Northern Territory (Self-Government) Act 1978. The Rights of the Terminally Ill Bill was then passed by the Northern Territory Legislative Assembly. It was an extremely difficult debate that caused massive controversy in the Northern Territory and around the country because it was in fact the first of its kind in the world. As I said, that bill—which was on an issue that the Northern Territory government had legitimate rights to debate and legislate on for the people of the Northern Territory—was passed.

No-one is denying that euthanasia is a deeply controversial, personal and emotive issue. There is no doubt about that. It is an extremely difficult issue, and those people who support having euthanasia laws in this country take a courageous stand. But the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010 is not about reinstating the right of people to access euthanasia in the Northern Territory. I do not know how many times Senator Scullion and I need to repeat this, but this bill is about the right of the Northern Territory Legislative Assembly to consider whether the assembly itself will reinstate that right. This bill is about the right of the respective legislative assemblies of the territories under their constitutionally granted legislative powers to make laws they believe need to be made for people in Norfolk Island, in the Australian Capital Territory and in the Northern Territory. But some people do not see this bill like that.

The Rights of the Terminally Ill Act was challenged in 1996. One of the challenges queried whether the Northern Territory Legislative Assembly actually had the power to enact the law. A majority of the full Northern Territory Supreme Court came down with the decision that the legislative assembly did in fact have that power. But then a bill was introduced into this parliament that successfully overturned the Northern Territory law by overturning the decision of the Northern Territory Supreme Court. In 1996 Kevin Andrews introduced a private member’s bill, the Euthanasia Laws Bill, to overturn the Northern Territory’s euthanasia laws and thereby remove the rights of Territorians. This was to be done by amending the Northern Territory self-government legislation to remove the Northern Territory’s power to legislate on euthanasia. The Euthanasia Laws Bill, also known as the Andrews bill, went one step further. It also amended the self-government acts of the ACT and Norfolk Island to remove their constitutional legislative right to legalise euthanasia if it was the will of the people in those jurisdictions, even though neither Norfolk Island nor the ACT had ever contemplated that.

I remember having a very substantial conversation with former senators Bob Collins and Grant Tambling about this issue. Both of them had a very clear view about euthanasia, but both of them also had a very clear view about the rights of Territorians. They both expressed to me their view that they did not want to support the right of people to access euthanasia but found themselves in a situation where they had to vote against the Kevin Andrews bill because in so doing they would be defending the rights of Territorians to have confidence in their own competent and legitimate assembly. The Andrews bill was passed by the federal government in a conscience vote, and it came into force in 1997.

I have heard an argument that the debate we are now having on Senator Brown’s bill should be decided by conscience vote, and I understand that both parties have agreed to that. So be it, but that is not a position I agree with. I think that we should be looking at the constitutional and legal rights of Territorians, and I think both parties should have made a decision about that. But if there is going to be conscience vote, in the same way that there was with the Andrews bill, I hope that the contributions in this place today of Senator Scullion and I—two people who have been duly elected to represent Territorians in this chamber—are listened to and taken note of.

In 2008, Senator Brown introduced the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill to overturn the Andrews bill. Senator Brown’s bill sought to give back to the three territories their right to legislate for the terminally ill if they so chose and it also aimed to restore the Northern Territory’s euthanasia law once the bill was passed. The bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry, and we handed down a report in June 2008. We received over 1,800 submissions, and we found during our inquiry that the issues of legal and constitutional rights versus the arguments for and against euthanasia were blurred.

The crucial legal and constitutional issue that came up in that inquiry—and it continues to be a crucial issue today—was whether it is appropriate for the federal parliament to use its power to override legitimate and competent legislation originating in the legislative assemblies of the ACT, Norfolk Island and, in particular, the Northern Territory. We found that there were many people who wanted the rights of Territorians reinstated but not the right of people to access euthanasia under the previous Northern Territory law. We also found that, under section 122 of the Constitution, the Commonwealth does have the power to override the laws of the Territory.

The key issue is whether or not the euthanasia act was an appropriate use of that power from a constitutional policy perspective. We recommended that the two issues were split, that the rights of territorians should be reinstated and the issue of whether or not those territories should have euthanasia is another discreet and separate issue. The main constitutional issues raised by the Andrews bill were political rather than legal. The central question was whether or not it was acceptable politically for the Commonwealth to take back part of the legislative powers it had conferred on the territories at self-government.

What I want to do is talk about the submissions to the inquiry that supported the rights of the terminally ill bill in 2008 on constitutional policy grounds. They did so for three key reasons, and this is what people said back then: the euthanasia act interfered with democracy and self-government of the territories, it discriminated against the territories and territories’ citizens compared to the rest of states and states’ citizens, and it demonstrated an inconsistent treatment of territories by the Commonwealth. A wide range of organisations and individuals supported the bill based on these grounds: the Northern Territory Law Reform Committee, the Law Council, Gilbert and Tobin Centre of Public Law, the then Attorney-General of the ACT and the Northern Territory government. They were all in support of repealing the euthanasia act on constitutional grounds.

The president of the NT Law Reform Committee at the time, the Hon. Austin Asche, had this to say:

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.

That is a very valid point. The three Australian territories have been granted self-government. If the members of both chambers of the federal parliament wanted to repeal every piece of legislation that was passed in the territory parliaments that this parliament did not agree with, we would have a never-ending bevy of legislation before us. Self-government would really be a figment of one’s imagination. It would not really exist.

Our report also quoted the Gilbert and Tobin law centre, which goes further and says the euthanasia act:

… 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.

What we have before us today is a bill that stepped up to the plate and separated the issues. It separates the issues of the constitutionality of the Territory government, the ACT government and Norfolk Island and pre-serves their rights under the self-government act and whether or not there should be euthanasia legislation in these territories. This bill purely focuses on the right to reinstate the constitutional legislative right of the territories to make laws about euthanasia if they so wish.

I want to point people in the direction of the submission from the Northern Territory Chief Minister, Paul Henderson, during my inquiry on 11 April 2008. His concluding comments in his submission say that ‘in principle the Northern Territory would welcome the removal of the limitation on its self-governing capacity’. He goes on to say that it is ‘not a subject matter’—that is, the rights of whether or not the Commonwealth should take away the rights of the Northern Territory government—‘that sits well with legal uncertainty and confusion’. The inadequacy of the bill—that is, the bill of 2008, not this bill—and the uncertainty it creates demonstrates the inappropriateness of the Commonwealth parliament pursuing territory related issues without consultation with the Northern Territory. And we know that on radio the Chief Minister has also said that at this point in time voluntary euthanasia legislation is not on his agenda. So the Northern Territory government has no intention whatsoever of reintroducing voluntary euthanasia legislation under the chief ministership of Paul Henderson. What this bill will simply do is give back the rights to those territories to be able to legislate on euthanasia if they wish to do it. It does not reinstate the previous legislation; it does not allow people from the Territory or anywhere else in this country at this point in time to access euthanasia if this legislation goes through.

So when the time comes to vote on this bill before us, I ask and plead with people in this chamber to not base their votes on whether or not they support euthanasia. That will be a call for the governments in the Northern Territory, the ACT and Norfolk to make once this bill is passed. This bill is about restoring the constitutional legislative rights of the territories to make laws for their people, just as the states do. Senator Scullion made a very good point. If I am a Victorian walking down Bourke Street or Collins Street and I am under the jurisdiction of the Victorian parliament, why should my rights be any different to a person in Darwin who walks down Mitchell Street or Knuckey Street? Why should we be treated differently because we choose to live in a territory? Why should our parliaments be considered second-rate, incompetent parliaments just because we live in the ACT, Norfolk Island or the Northern Territory? I ask people in this chamber to think about that, to think about the equality of rights that we so proudly champion for people around this country and this world in other matters. Let us think about the constitutionality of the rights of people who live in these territories.

If the states wanted to legalise euthanasia, the Commonwealth would be powerless to interfere, so why should the territories be any different? The Commonwealth has granted itself government to legislate for the people living in the territories. So why do we not just let those governments get on with doing the work they are competent in doing? I might add that this is a great debate and a great argument for giving the Northern Territory statehood. I want to quote from Marshall Perron. It is interesting: I am quoting from Marshall Perron; Senator Scullion is quoting from a former member of the Labor Party opposition in the Territory, Maggie Hickey. Marshall Perron, the former Chief Minister—the person who introduced the first legislation—sums up the situation very nicely. He says:

Hansard shows that the majority of federal members supported the Euthanasia Laws Act—

the original Andrews act—

because they opposed voluntary euthanasia. To them, crushing the principles of self-government was simply collateral damage. Put simply, the Euthanasia Laws Act means the citizens of the territories have 218 politicians whom they cannot vote for determining policy on voluntary euthanasia for them. The other 20 million citizens in this federation are not in that situation.

The bill before us would give the territories back their constitutional right to make laws on euthanasia, if that is the will of the people. That is the will of the people. Senator Scullion and I represent those people. We represent the 200,000 or more people who put both of us back in this chamber fewer than three months ago. We make this call because we are on the streets, we see the emails and we listen to the telephone calls. We know what people think and feel about euthanasia in the Territory, but I can tell you they are very passionate about their rights being reinstated and the role that the Commonwealth government takes for granted in overriding legislation that is passed by a competent and legitimate government. The ACT and the Northern Territory each have only two House of Representatives members and two senators to represent them in federal parliament. That should absolutely not mean that the rest of Australia can meddle in territory matters simply because they hold more votes or they do not agree with the subject matter of certain legislation.

Regardless of whether you agree with voluntary euthanasia, it has to be up to the democratically elected parliament of each territory—or each state, for that matter, or federation—to make laws if it is the will of the people. That is democracy. People in the Northern Territory get on the roll to vote for a Territory parliament and they have faith that that parliament will make laws that will benefit their lives, not laws that are passed in the Territory but squashed and quashed by the federal parliament. This law is a matter of principle. This bill will again grant Territorians their rights under self-government and should be supported and passed by both chambers of this parliament. Territorians have been granted self-government and should be allowed to make laws within their constitutional legislative rights.

In concluding my speech, I urge members of parliament to pay very careful attention to my and Senator Scullion’s contributions. It is probably not often in this place that you get senators from opposing political parties reading off the same song sheet, so to speak, but we are duly elected people from the Northern Territory who were put here by the voters in the Northern Territory. This is not about reinstating your right to access euthanasia; this is about giving back Territorians their right to have a competent government to legislate on their behalf. (Time expired)