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Thursday, 28 October 2010
Page: 1092


Senator LUDLAM (4:53 PM) —What we have seen so far this afternoon—and I congratulate Senator Brown on bringing this bill forward—is perhaps a better quality of debate than we are used to. There is something about bringing a conscience vote before the chamber that seems to bring out the best in people. I suppose is it is with a sense of irony that I am listening to Senator Boyce now put these quite measured arguments that I have not had an opportunity to hear before firsthand in this setting, and reflect on the fact that this debate cannot currently occur in the assemblies of the territories of this country. That is why we are here having this debate tonight. We hold ourselves competent to have this debate, as we do on many other subjects which are literally questions of life or death, and yet we do not believe that our colleagues in territory assemblies should have the same right to have that debate and exercise their views.

I have enjoyed and appreciated the contributions of all of my colleagues so far, particularly Senator Scullion and Senator Crossin, who spoke very passionately on behalf of their constituents in the Northern Territory. I will speak briefly tonight about how Senator Siewert and I, having done a lot of work in the Northern Territory, have found ourselves confronted frequently with exactly the same frustrations.

I will, however, call into question Senator Lundy’s contribution, which I must admit I found very difficult to understand. This is a debate that has been brewing in this chamber since 1996. Senator Brown, who can correct the record if I am wrong when he closes the debate, introduced a piece of legislation, this piece of legislation, in around 2007. That is several years that it has been lying on the Notice Paper. The Australian Greens—Senator Brown—wrote to Prime Minister Rudd in 2009. There was no reply. We notified the current Prime Minister—in fact, the current parliament and the whole country through the press more than a month ago—that this would be the first bill that we would bring forward. So I do not understand—if indeed there was implied criticism in Senator Lundy’s comments—how this was somehow an inappropriate use of the chamber’s time. I have absolutely no idea what was being referred to there, but I think in fact we have already seen the quality of the debate so far prove that wrong.

It is a very important to note that the effect of the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008 will be to repeal of the Euthanasia Laws Act 1997 which removed the right of the territories to legislate for voluntary euthanasia. The bill we debate here, as everybody has already noted, will not make voluntary euthanasia legal here or in the territories or anywhere else. It does not even seek to reinstate the NT’s Rights of the Terminally Ill Act, as Senator Brown outlined and the reasons for that, which was overturned by the federal government in 1997. For better or worse, those debates need to be had elsewhere. This bill will allow the Northern Territory legislature to have that debate over again at a time of its choosing in order to decide for itself once more if it chooses to bring that debate forward. Similarly, the bill will enable the ACT and Norfolk Island to have the same legal right as the states to determine their own laws for the peace, order and good government of the territories, including, surely, the right, if they choose, to legislate for voluntary euthanasia so that advocates for and against—as we have heard tonight—can make their case and stand up and speak up for the people who put them into the assemblies in the first place.

The Euthanasia Laws Act passed in this place in 1996 amended the Northern Territory (Self-Government) Act 1978, the Australian Capital Territory (Self-Government) Act 1988 and the Norfolk Island Act 1979 with quite specific regard to euthanasia, including the withdrawal or withholding of medical or surgical measures for prolonging the life of a patient. It also contained a clause that specifically prevented the Northern Territory from being able to enforce its Rights of the Terminally Ill Act, stating that it:

... has no force or effect as a law of the Territory.

What an awful abuse of federal executive power. We must not overrule the laws created through legitimate democratic processes that this parliament does not agree with simply because we can. The Chief Ministers of the ACT and the Northern Territory have both expressed frustration at the Commonwealth for removing their right to debate and determine their own laws and make their own way on this matter. Recently ACT Chief Minister Jon Stanhope said:

It’s for the people of the ACT to decide whether or not they will support their politicians in making these decisions on their behalf.

If this assembly chooses to remove all discrimination against gays and lesbians in relation to their relationships, and chooses to legislate for euthanasia that’s a decision for us.

The Euthanasia Laws Act is not the only instance of this abuse of federal power against the territories. In 2006, as my colleague Senator Hanson-Young well knows, the Commonwealth disallowed the Australian Capital Territory’s Civil Unions Act 2006 and then the Civil Partnerships Act, soon after in 2007. In what became an ugly battle of wills and jurisdiction, the ACT persisted and eventually passed the Civil Partnerships Act 2008 and then the Greens’ Civil Partnerships Amendment Act 2009, making the ACT the first territory in the country to formally legalise civil partnerships ceremonies for same-sex couples. Even then there was a sting in the tail of that legislation at the behest of the Commonwealth. It should never have come to such a battle. The Greens are working to challenge the executive’s ability to override the ACT with the Australian Capital Territory (Self-Government) Amendment (Disallowance and Amendment Power of the Commonwealth) Bill 2010, which is also currently before this parliament.

 The Commonwealth retains the power to directly administer uranium mining and Aboriginal lands in the Northern Territory, powers which it does not possess with respect to the states, and powers which, I submit, have been frequently abused. We have subsequently seen the Commonwealth attempt to impose a radioactive waste dump on Aboriginal communities near Tennant Creek and, as my colleague Senator Siewert well knows, the infamous example of the Northern Territory intervention, using the implied constitutional weakness of the Northern Territory to override the environmental, social, economic and human rights of Australian citizens just because they happen to live in the Northern Territory.

These controversial and divisive acts were imposed by the Commonwealth without the support of the people of the territories—in fact, against their expressed opposition—expressed through their locally elected representatives, simply because they could. So of these abuses of Commonwealth executive power—overriding the self-government acts, which recognise and empower the territories to determine their own laws through a democratically elected assembly—we are seeing again tonight another example. I firmly hope that through this debate, whenever it is able to be concluded and put to a vote, we can, at least in this one instance, roll back some of that abuse of the Commonwealth’s constitutional power.

The debate on the bill currently before the parliament is not a debate on euthanasia; it is a debate about this fundamental inequality between states and territories. It will not legalise voluntary euthanasia; it will simply restore the rights of territorians to be able to legislate for euthanasia, just as the states can.

I note that my colleague and good friend, Robin Chapple MLC, recently brought on for debate in the parliament of Western Australia a bill that would have legalised, under very strict conditions, a form of voluntary euthanasia. He introduced it in May 2010. It was debated in September. To their credit, Premier Barnett and the opposition ALP leader in Western Australia, allowed a conscience vote for all sides of parliament, as is entirely appropriate. The vote in this case, regrettably, was lost, but at least the debate was had.

Voluntary euthanasia is currently legal in Switzerland, the Netherlands, Belgium and also in the states of Oregon and Washington in the United States. In Australia, we know that there is overwhelming support for voluntary euthanasia. A Newspoll survey in February 2007 found that 80 per cent of Australians agreed with the statement that, for a hopelessly ill patient experiencing unrelievable suffering with absolutely no chance of recovering, a doctor should be allowed to provide a lethal dose if requested by the patient. Fourteen per cent disagreed; six per cent could not say. That debate can be had in this chamber; it cannot be had in the territories. In September 2010, Auspoll asked 1,500 respondents two questions and came up with these results: 78 per cent of Australians agreed that the territory governments should have the same power to make euthanasia laws as state governments. Seventy-six per cent of Australians—more than three-quarters—agreed that people with a terminal illness should legally be able to choose euthanasia.

More than the polls, more than the intellectual arguments that have gone back and forth around this issue for many, many years, this is ultimately a human and a very personal issue. Shavda, who died of a rare and incurable cancer and left us nine years ago tonight, had often said: ‘You wouldn’t let a dog suffer the way we do our loved ones with cancer or a terminal illness.’ A long-time advocate of voluntary euthanasia, Shavda wanted the right to be able to end her own life before the pain got too much to bear. She wanted to be able to say, ‘I’ve had enough—it’s time to go.’ But without the means or legal protection available, this is a very difficult and perilous task, for her as well as for her family, her doctor and others around her.

This is not something that many among us would choose. But for those suffering a terminal illness, who would prefer to die with dignity before the suffering simply gets too much to bear, it is an act of humane kindness and compassion. It takes great strength to face such a decision. This is an important debate. It is one that is very much worth having. But this is not actually the question before us today. The question before us, as others have said, is whether the territories should have the right to debate this issue themselves. Some might find the idea of the law interfering with an individual’s choice to end their own life odd. But the only thing more peculiar is that one parliament would prevent another parliament, duly elected, from being able to have that debate itself. I commend this bill to the Senate. Enough for today.