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Thursday, 28 October 2010
Page: 1104


Senator PRATT (5:44 PM) —This evening I rise to speak in favour of the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010. I am in favour of well-crafted legislation that gives Australians the right to die with dignity. I will have more to say later on this point. However, for me, the primary reason for supporting this legislation does not relate to the merits of voluntary euthanasia per se. Rather, I support this bill because I believe in our democracy. More particularly, I believe in the democratic rights of Australians and that they should not be overridden merely because they happen to live in an Australian territory and not in an Australian state.

It should be emphasised that the purpose of this bill is clear. It is to restore to Territorians a right that was taken away from them by this parliament more than a decade ago when this parliament chose to pass the Euthanasia Laws Bill 1997. That is the right to elect an assembly with the power to legislate for voluntary euthanasia. I would like to emphasise that this bill does not reinstate the Northern Territory Rights of the Terminally Ill Act 1995; it merely gives the territories the power to enact legislation for voluntary euthanasia if they so choose.

The Northern Territory was granted self-government in 1978 and the ACT became self-governing in 1988. More than 228,000 Australians now live in the Northern Territory and 357,000 live in the ACT. That is significantly more than half a million Australians whose democratic rights are directly affected by this bill. So the question is: should these more than half a million Australians have the same rights in relation to legislation for voluntary euthanasia as other Australians who live in our six states? As Senator Ludlam highlighted, Western Australia has recently had the opportunity to debate such laws. There is no doubt that state legislatures have the power to enact legislation on this issue. And there is now no doubt that but for the Euthanasia Laws Act 1997 the territories’ legislatures would also have this power.

By taking this power away from Territorians, this parliament said to Australian citizens in the territories: ‘You are second-class citizens. You, through your duly constituted local legislature, are less capable of governing yourselves than the residents of the six Australian states. Your legislature cannot be trusted to act appropriately and responsibly, unlike the state legislatures.’

I am not questioning this parliament’s right to take away the territories’ rights in this fashion. But having a power does not justify its use. In this case, our democratic conventions are clearly against taking back powers granted to subordinate legislatures in this fashion.

As a developing democracy, Australia benefited from these conventions. The British parliament had the power to overturn this parliament’s laws until 1942. It had the power to overturn laws passed by the states until 1986. Not only did the British parliament not exercise these powers but it specifically rejected the option of doing so, noting in 1942:

... the long standing constitutional convention that the Parliament would not interfere in the affairs of the Dominion, self-governing State or Colony save at the request of the Government of that Dominion ...

As a West Australian, I can say the issue at stake in that instance was far from trivial. It concerned a request from my home state to secede from the Federation. I, for one, am glad that the imperial parliament restrained from interfering in colonial affairs on that occasion and I only wish that Canberra had shown similar restraint in relation to its self-governing territories in 1997. Canberra’s interference was contrary to our democratic traditions and our conventions. It left our self-governing territories in the unenviable position of not knowing when such conventions would be breached next. To this day, Australian citizens in the territories are left in the situation of not knowing whether their self-government is a reality or whether their self-government is merely a token privilege that may be withdrawn at any time.

The argument that euthanasia is highly controversial and morally charged does not set limits on this parliament’s potential to interfere in territory affairs. There are many such issues that might fall under such an umbrella. Some of those include illegal drugs, the criminalisation of homosexuality, the rights of same-sex couples, the recognition of same-sex relationships, the regulation of artificial conception procedures, surrogacy arrangements, stem cell research, adoption laws, laws relating to pornography and prostitution, and the criminalisation of abortion.

Similarly, the characterisation of euthanasia as a life-and-death issue also fails to clearly limit this parliament’s field of action in relation to territory laws. Abortion is also seen by many as a life-and-death issue, as are artificial conception procedures and stem cell research. There are other issues that could potentially be characterised in this manner. They also include criminal laws relating to murder and all forms of manslaughter, including industrial manslaughter and infanticide. There is a wide range of morally controversial life-and-death issues that illustrate just how dangerous this precedent, which was set in 1997, is when this parliament chose to interfere with the territories’ powers of self-government. This precedent was unpredictable, unjust and arbitrary interference.

The sorry reality is that by passing the Euthanasia Laws Bill 1997 the parliament at that point signalled to Australian citizens in the territories that it was prepared to subject their rights to self-government to the political imperatives of the day, for in this instance a morally controversial matter or life-and-death issue are merely pseudonyms for politically contentious legislation.

 What Territorians found out in 1997 was that the Australian parliament was prepared to arbitrarily interfere in their affairs if their legislature passed laws that were sufficiently politically contentious. The plain truth is that this parliament’s action made a mockery of the Northern Territory’s status of self-government. It instituted a Clayton’s self-government for the territories, self-government in name only, form and no substance. It matters little, I think, that this parliament has rarely chosen to exercise such powers. It took nearly 20 years before this parliament decided to curtail the territories’ powers of self-government. But now that precedent has been set, Territorians can never rest easy on this score until this parliament restores their rights to self-government in full.

So I hope I have been able to demonstrate to you why I see this bill primarily through the prism of territory rights or, more specifically, as a matter which is of crucial significance to the democratic rights of Australian citizens in the territories. I do accept, however, that there could be instances in which a territory government passed legislation that was so objectionable that it brought the whole matter of a territory’s self-government and its capacity for self-government into question. Such legislation would have to be way outside existing local or international community standards. In such a situation, I would argue, we would question whether the territory concerned should have self-government at all, and not simply whether the legislation itself should stand.

So I think that it is telling that this question never arose in 1997. Nobody ever suggested that the passage of euthanasia legislation was evidence that the Northern Territory itself was unfit for self-government. Such an argument would have been unsustainable, because legislation for voluntary euthanasia in clearly prescribed circumstances is not extreme in the sense of being way outside existing local or international community standards. There may be a minority of people in our community who wish that voluntary euthanasia legislation was widely regarded as extreme in civilised communities, but the simple fact is that this is not the case. As Senator Bob Brown rightly pointed out in his second reading speech on the bill before us, every opinion poll conducted over the last two decades has shown that approximately three-quarters of Australians support the concept of voluntary euthanasia, so voluntary euthanasia legislation can hardly be said to be extreme in terms of Australian community standards. As Senator Brown pointed out, a number of established democracies on the international stage also have laws which give their citizens the right to die with dignity if they so choose. These democracies include Israel, the Netherlands, Belgium and Switzerland, as well as the US state of Oregon. The existence of these laws has not brought the wrath of the international community onto the countries concerned. Yes, in having such laws, these countries are in a minority amongst established democracies, but the civilised world has not condemned, and does not condemn, them for having such laws. The reason for this is obvious. Such laws may be controversial. They may be morally repugnant to significant numbers of people. But they are simply not regarded by the international community as a whole as outside the standards of civilised communities.

While I do not regard this debate as primarily being on the merits of euthanasia legislation, I do not wish to be disingenuous about my own views on this very important question. Personally, as a legislator, I am prepared to consider laws that would allow, through proper prescribed processes in specific circumstances, for the capacity of people with a terminal illness or condition to access a dignified death. The citizens of the Northern Territory who are concerned about their own circumstances should have the right to urge their parliamentarians to consider their circumstances. I do believe that in this country we must talk more about dying. We must invest more in good palliative care in this country. However, even with the very best care, for some people there is pain and other symptoms that simply cannot be borne and that people would prefer not to bear. Here in Australia we should invest more in people’s capacity to have a good death. More often than not such a death should not in any way need access to legalised voluntary euthanasia. As a community, I believe we need to talk more about dying to support people’s capacity to confront—as we all must at some point—the circumstances of our death. There is a need to focus on bringing together the medical, social and spiritual support that people need. I am a member of Palliative Care Western Australia and this is something that I firmly believe. Certainly, professionals in palliative care would prefer us to pay more attention to the medical, social and spiritual aspects of dying, and I think that is the debate that much of Australia would prefer us to be having. But I do recognise that there are circumstances in which voluntary euthanasia might be contemplated, and they are certainly ones which I might personally contemplate.

Nevertheless, I do not believe that one needs to support voluntary euthanasia to support this bill. It is primarily a matter of Territorians’ democratic rights. It is about their right to elect a government with the same powers as state governments to make laws for the benefit of their people and in accordance with their local community standards. So this parliament’s decision in 1997 undermined those rights. This parliament undermined those rights in a manner that was arbitrary and unjust. The passage of the euthanasia legislation was not a sufficient justification for abrogating Territorians’ right to self-government—not when the majority of Australians support the concept of euthanasia and not when the international community does not believe such laws warrant our condemnation.

Debate interrupted.