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Thursday, 28 October 2010
Page: 1095

Senator STEPHENS (5:04 PM) —It is very interesting to have the opportunity to be part of this debate on the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008. I think we have a challenge before us. For those who might have just begun listening to the parliamentary broadcast, we are here debating Senator Bob Brown’s bill which seeks to recognise the rights of the legislative assemblies of the Australian Capital Territory, the Northern Territory and Norfolk Island to make laws for the peace, order and good government of their territories, including the right to legislate for voluntary euthanasia and to repeal the Euthanasia Laws Act 1997, which removed the right of the territories to legislate for voluntary euthanasia.

Senator Boyce, in her contribution to this debate, asked, ‘Would we be having the same level of interest if this was a debate about reinstating territory rights for something like the GST payments or minerals or something different from this?’ In fact, what we have in front of us right now is a tactic by the Greens to bring a focus onto the issue of euthanasia by coupling it with this important debate about territories’ rights and their restoration. This really frustrates me, because it is quite an unfair strategy, I have to say to Senator Brown.

If this was really a euthanasia debate, we would have negotiated something that was like the debate that we had on Afghanistan. We would not be here in a debate which has been coupled up, in this complicated, tricky way, which is trying to drive a wedge through this issue. Of course we listened to the contributions from the territory senators, and of course they are here as passionate advocates of the citizens that they represent. Of course they are here as advocates for the rights of our territories, their good governance and the decisions that they want to be able to make. But, by having the two issues linked together, suddenly we have something highly contentious—and very media friendly. Certainly there will be a lot of interest from the media about this. So something that is purported to be about territory rights we all know is, in fact, about something very different.

To remind everyone: the Northern Territory legislature passed that first euthanasia law, the rights of the terminally ill legislation, in 1995 and then in 1997 the Commonwealth parliament overrode the Territory law with its own Euthanasia Laws Act, which did not repeal the Territory legislation but rendered it inoperative. Therefore, this tactic today is about restoring the rights of the Northern Territory, Norfolk Island and the Australian Capital Territory.

Senator Ludlam reminded us about the process that happened after that. While ever the Howard government had control of the Senate there was no way that we were actually going to be able to revisit this issue. As soon as the Howard government lost control of the Senate after the new Senate came into being in 2008, Senator Brown attempted to reintroduce his Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008. Those of us who were here at the time remember that it was actually a pretty dodgy piece of legislation. It was described by many as ‘ham-fisted’, and even the Northern Territory government opposed the bill. The Northern Territory Chief Minister at the time said he found it very high-handed and arrogant of Senator Bob Brown to be introducing legislation into the federal parliament that affected the Northern Territory without having had consultation at all with the Territory government or the people of the Northern Territory.

In fact, at the time, if the bill had been passed, it would have had the effect of resuming the operation of the original 1995 bill, which by then even Dr Philip Nitschke had conceded in an article was ‘defective legislation’. The Northern Territory law requires a psychiatrist to have confirmed that the patient is not suffering from a treatable clinical depression in respect of the illness before a medical practitioner is allowed to administer the lethal injection. Dr Nitschke and his co-author stated at the time that ‘confirmation was not easy since patients perceived such a mandatory assessment as a hurdle to overcome’. Philip Nitschke understood that every patient held that view. To what extent was the psychiatrist trusted with important data and able to build an appropriate alliance that permitted a genuine understanding of the patient’s plight? At the time, we were very concerned to find out that Dr Nitschke had personally paid the fee for the psychiatric assessment of one of the patients that he euthanised. So you can see that this was a very contentious issue in 1995, it was a very contentious issue in 2008 and it continues to be a very contentious issue now.

Of course, we have heard the arguments. The champion of territory rights, the ACT Chief Minister Jon Stanhope, says that the debate is about the ACT’s right to make its own laws and not the rights and wrongs of euthanasia. So why on earth has Senator Brown taken the position of locking these two debates together, which makes it very frustrating not only for of us here in this chamber but also for those outside the chamber who are listening and trying to understand what this is all about. I am getting hundreds of emails every day that basically say: don’t support Senator Brown’s call to reintroduce euthanasia. So it is inextricably linked and, regardless of the technical wording and the development of this piece of legislation, in the hearts and minds of Australians everywhere the issue is not about territory rights. Perhaps in the Northern Territory and the ACT, people see the dual argument. But most people who understand this debate know it is about euthanasia. And that is why we need to have the debate here today. We need to understand that, here in the Commonwealth parliament, we have an overarching social duty and a responsibility to commit to the public interest and ensure that the common good is served.

We have heard from several senators that Chief Minister Paul Henderson says the Northern Territory should have the right to make its own legislation without interference from the federal government. The quote we have heard used from Paul Henderson is that ‘voluntary euthanasia is not on my agenda’. That is fine, of course, but we know that in a referendum in 1998 the Northern Territory rejected becoming a state. So you cannot have your bread and have it buttered too; you cannot have it both ways. They rejected the rights of full self-government, including on this issue.

Let us go to another important challenge. I listened to Senator Ludlam’s thoughtful contribution, and I appreciated his point that this is an opportunity to listen to a very thoughtful debate around these issues. But he said something about our right to make laws ‘simply because we can’. I think there is a real issue in that statement alone: do we even have the right to make a law about euthanasia? As Senator Barnett would know, a couple of centuries ago there was a lively debate about slavery. There were debates in the United States about whether some states should be able to make a law on whether they would have slave or free territories. I think it was Abraham Lincoln who argued against the notion that if a community want slavery they have the right to have it. The counterpoint of that is that there is nothing wrong with slavery. If you admit that there is something wrong with it then logically you cannot say that anyone has a right to do wrong. I think that is the conundrum we are confronted with here: if laws permitting euthanasia are always wrong, can there really be a right to make such a law in the first place? This goes to the challenge we have in this very, very difficult debate.

 Senator Boyce made a really important point about definitions, the softening of the language—euthanasia, homicide, suicide, assisted suicide and death with dignity. This is a softening of the language about confronting euthanasia. There is a kind of continuum along the spectrum of assisted suicide—which is part of what Philip Nitschke was trying to do—for those who in a very coherent state of mind make a decision like that. And then you have the very significant contribution of Senator Boyce to the debate: the discrimination that we are seeing more and more, which she described as an issue of ageism and ableism—those who are frail, who are elderly, who feel that they are a burden on their families and who succumb to the kind of pressure being placed on them that they are a burden on their families. This is really a slippery slope—the decision, the discussion and the evidence that was provided by Senator Boyce about the ableism, the treatment of the disabled and the expectation that you can make those kinds of decisions. Where did we even start to have this kind of debate? Any kind of mercy killing or aid in dying, even in what seems to be the purest and most compassionate of intentions, contravenes the fundamental principle that human life has value, that human life is sacred from conception to natural death.

I am happy to wear my Catholic beliefs on my sleeve, having just been to Rome and witnessed the wonderful canonisation of Mary MacKillop. I met the wonderful woman whose experience was a life of miracles performed on her at a desperate situation in her own health. She was expected to die. She made an extraordinary recovery and was there. I met the young man beaten to a pulp in Bondi, the young Irishman whose parents flew here and made the decision to take him home to die. Yet there he was standing in front of us, telling us that he thanked God that no-one had turned off his ventilator. He is a bright and dynamic young man. Let us think about what it is that we are trying to focus on when we think about the issue of human dignity.

Let us think about the question of whether legislating to enable euthanasia inevitably leads to a situation where some individuals will risk having their deaths hastened against their will. Senator Boyce went to that issue. I think once a state or territory accepts killing upon demand in certain situations we are opening the door to justifying killing a human being under some intolerable conditions. You have to think about this. There is a possibility of developing broader criteria and making euthanasia more widespread. It is not scaremongering, although lots of people would claim that it is—it is a fact. Some people who promote assisted dying want to go beyond having mercy killings for people close to death, to having assisted dying for the very disabled, for the ill and even, in the case of Dignitas in Switzerland, for the depressed. Take the case of the Netherlands, where euthanasia and assisted suicide were legislated. At first it was only available to the terminally ill. Since 1998, however, the regulations have been used to permit access to euthanasia and assisted suicide to persons who are not terminally ill but suffer hopelessly from chronic physical or even psychological illness.

Can you listen to what is happening here? This effectively sanctions suicide as a response to personal hardship. It gives a green light to hopelessness and social pessimism. It is important that we as a government are aware of and guard against the growth and spread of social pessimism across Australia, guard against a shift away from improving human life towards a focus on bringing to an end damaged or impaired human life and guard against creating a climate that will undermine the relationship between elderly or dependent relatives and their families, allowing social pressures be exerted on very vulnerable people to volunteer for euthanasia in order not to be a burden.

Some might say that is a scenario too extreme, but I have to say the anti-euthanasia arguments often are extreme. I have heard some of them: a cost-effective way of dealing with the problems of an ageing demographic or a water shortage. We might laugh, but before dismissing those kinds of arguments completely we need to realise that they demonstrate a kind of thinking that moves away from judging human life by its internal worth or its moral meaning towards judging it by lesser measures, such as financial implications or environmental implications. Where there is life there is hope and we cannot be certain that a person is going to die, and I gave you the two examples of those fine healthy people and the many more people that I met while I was in Rome.

Apart from the misdiagnoses and the rapid pace of advances in medical science, there are cases where patients confound doctors by getting better or living longer and more comfortably than was expected. This would confound those who do not believe in miracles. Think about a person living with AIDS. In the past, someone like that might have decided to end his life and in fact would have continued to live a long time. For those people who are diagnosed with AIDS now, they have a prognosis of enjoying a good quality of life because of the development of new treatments for that disease.

Senator Boyce made a very important point about the issue of palliative care and the fact that Palliative Care Australia is meeting today to update its position on euthanasia. Palliative care programs focus on reducing the suffering of terminally ill patients. There is great evidence that better pain control and improvement of the psychosocial situation can alleviate a large proportion of the suffering of the terminally ill. This is where we need to be putting our efforts and this is where we need to be putting our resources.

The pros and cons of allowing individual states and territories to decide on their own euthanasia legislation all actually come back to our national cultural values and practices. It is important—and obvious—that these values and practices change over time, but it is also very important that in our role as federal law-makers we do not jump the gun and decide that something is or is not acceptable just because it is fashionable. We have to take into account what our constituents are saying to us, and in my case this has been overwhelmingly an urge to reject Senator Brown’s bill. But we also have to keep informed about the latest research about the practice of euthanasia and its effects. Our task is not easy, because there is no way to reach a consensus.

The debate about voluntary euthanasia has been going on for years, for centuries. In ancient Greece, Hippocrates was against it while Plato and Pythagoras supported it. Today doctors sign the Hippocratic oath, but while the AMA opposes the introduction of voluntary euthanasia legislation the Doctors Reform Society supports it. Our challenge remains the same as theirs: to think about society’s obligations to those who are coping with terminal illness and to weigh up the things that are not easily commensurable. There is the obligation to provide the means for diminishing pain and suffering, the obligation to provide an easier access to death for those who wish for it and the obligation to uphold the human rights of the most disadvantaged members of our society—the old, the poor, the disabled and the infirm. As I said, miracles happen in nature and, even if you are not a believer, where there is life there is hope.

I would like to finish by quoting from an email that I received this afternoon, a letter from Dr Gawler from the Royal Darwin Hospital. He says:

Dear Parliamentarian,

As a Senior Surgeon at the Royal Darwin Hospital, I must say that I see very grave dangers in making it possible to pass euthanasia legislation in the Territories.

Many colleagues … have told me that they believe that legalised euthanasia would be very disturbing to Indigenous patients who already find it difficult to trust Medical and Nursing Staff in relation to end of life issues. If Indigenous people perceive the Medical Staff as having the power to terminate their lives, the resultant fear and distress will prevent many Indigenous people from seeking or accepting medical treatment.

The ACTING DEPUTY PRESIDENT (Senator Forshaw)—I am sorry, Senator Stephens, but your time has expired.

Senator STEPHENS —I seek leave to incorporate the remainder of the letter.

Leave granted.

The document read as follows—

There are insurmountable problems because of Indigenous Cultural and Linguistic differences in ensuring (without a shadow of doubt) that informed consent has truly been given for euthanasia.

Indigenous people are the sickest and the most frequent users of Health Services in the Northern Territory. Therefore this proposed legislation puts at risk the lives of the most vulnerable members of the Territory’s population.

Please oppose this inadvisable and inappropriate legislation.

Yours faithfully,

(Dr) David M Gawler MB BS FRACS FRCS(Eng) FRCS(Glasg) FICS