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Thursday, 21 November 1996
Page: 7325

Mr BARRY JONES(10.30 a.m.) —In the course of my 25-year parliamentary career, I have only exercised two conscience votes. The first, in 1975 in the Victorian Legislative Assembly was to abolish the death penalty and I had no doubts at all on the issue. On the second, in the House of Representatives in 1978, the Lusher motion to take away medical benefits for abortion, I had very real doubts. So it will be with the third, on the private member's bill to overturn the Northern Territory's euthanasia law.

A debate in which the outcome is uncertain and depends on the quality of the discussion itself is of the greatest rarity—an occasion when this parliament itself can take a lead. How appalling then that this debate has been shunted off to a committee room with a 10-minute limit on speeches, without members actually listening to each other. In this debate, it is my conscience that I must follow—a conscience shaped by knowledge, analysis and, I hope, compassion. I adopt the words of Edmund Burke in his celebrated address to the electors of Bristol in 1774:

Your representative owes you, not his industry only, but his judgment; and he betrays instead of serving you if he sacrifices it to your opinion.

I see both sides of the euthanasia debate all too clearly. No other issue has troubled me so much because I am not sure that I am correct. Nevertheless, I have a moral obligation to vote—to choose. I cannot abstain—indeed, not to choose is to choose. The contribution of Sir Gustav Nossal to the collection of essays entitled The last right? puts the position with compassion and clarity and I adopt his words:

Dying with dignity and in peace should be everyone's right, particularly in an industrialised country with high standards of health care. Nevertheless, I am against the formal legalisation of euthanasia. A well-ordered society is a very fragile thing, as recent history (Hitler, Pol Pot, Rwanda) shows. I believe there are grave dangers in a society giving to anyone, no matter how well intentioned, the right to terminate a human life. However, I do believe that those who are terminally ill should come to the end as free of pain as possible and with as tranquil a state of mind as possible. This may necessitate the use of strong drugs in doses that imperil life. I certainly do not believe that fear of possibly fatal consequences should limit the dosage of narcotics, tranquillisers or other medications in such circumstances. It seems to me that the crucial thing here is intent. The intent to relieve pain and suffering is good; the intent directly to kill breaches what I consider to be societal norms. Enshrining a right to terminate life in legislation would, I believe, do more harm than good, although I totally support the right of others to disagree with this view.

The valuable contributions of Mr Justice Michael Kirby and Sir Ninian Stephen are along parallel lines. I support the Victorian Medical Treatment Act 1988 and would commend it to the legislature of the Northern Territory. At the consideration in detail stage of the bill, after the passage of the second reading of the Andrews bill, I propose to move some amendments to the three schedules of the bill to incorporate the broad thrust of the Victorian act. The Victorian act, now adopted in South Australia as well, was introduced by a Labor government, drafted, as it happened, by Mr Kevin Andrews, who was later to become the federal member for Menzies, and endorsed by Archbishop Sir Frank Little. However, on several points my amendments would go further than the Victorian act.

I know very well that the practical outcome of the Victorian legislation has led to a good death—literally, in the Greek, euthanasia—for very many terminally ill patients, but where death is the side effect of heavy sedation, a corollary of the treatment of acute and chronic pain, not the result of direct intention to terminate life, death by timetable, death by appointment. The practical outcome probably differs very little—merely a delay of hours or days—but the moral implications are completely different. It does not force a physician to pass over the Rubicon—to transform his or her role from a preserver of life to a terminator of life. There have, of course, been no prosecutions under the Victorian law. To the best of my knowledge, the law is working well.

I have been following recent decisions in the US Supreme Court where a bare majority of judges is now re-defining limits to privacy—whether rights over matters involving the most intimate and personal choices a person may make in a lifetime are central to the 14th Amendment to the Constitution, guaranteeing equal protection under the law. Justice Anthony Kennedy said:

At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.

These words first used in Planned Parenthood v. Casey in 1992, an abortion case, have been adopted by other courts in euthanasia and assisted suicide cases.

The US Supreme Court majority may be moving towards a distinction between the realms of `private law' and `public law'. Such private law would include sexual orientation, contraception, which used to be illegal in some American states, abortion—the great philosophical divide being on whether a foetus is to be regarded as a person—and assisted suicide. Some state courts have struck down assisted suicide laws, but these cases are yet to go on appeal to the Supreme Court.

One could not imagine a more central illustration of privacy than choosing the way we die, and this includes assisted suicide or `assisted passage', as I have called it. In matters of life, death and sexuality, the realm of public law remains in the areas where there are identifiable victims—where there is no consent, or where children and the incompetent are, correctly, deemed to be incapable of consenting. I am increasingly drawn to this division between private and public law and I would prefer less rather than more state intervention by way of regulation.

At a time when economics rationalism is the dominant paradigm, with its obsession that all values have a dollar equivalent, the medical system will come under increasing pressure to speed up the turnaround time in hospital beds. In the Northern Territory, the fear of Aboriginal groups about how the law might be applied in practice is understandable, although, I hope, misplaced.

I felt distinctly uneasy about Bill Hayden's view that `utilitarian judgments . . . cannot be totally ignored' as if loss of productive capacity was a prelude to elimination in a brave new world. I have always thought that the key element of civilisation is that we preserve at infinite cost elements of life and experience which cannot be justified on purely utilitarian grounds.

When this bill is carried, will the Howard government put more resources into palliative care? I hope so, but I could be permitted some scepticism. I have real difficulty with the idea of institutionalising euthanasia by setting up legislative protocols. A very highly qualified House of Lords Select Committee on Medical Ethics 1994, chaired by Professor Lord Walton of Detchant, a neurologist, was repelled by its observation of Netherlands practice. The committee concluded that there was a high risk of involuntary euthanasia being applied and where terminally ill patients are under a burden of guilt, as well as disease, and feel they must relieve and end the suffering of family and friends and the drain on resources. This guilt pressure may prove to be the thin end of the wedge.

The resource, or utilitarian arguments for euthanasia can also be applied to the issue of capital punishment and I repudiate both. I am well aware that passive euthanasia occurs already and will continue. On balance, I have more confidence in the role of medical practitioners operating under existing moral and ethical constraints within the profession, and with the provision for `living wills' and the appointment of agents, than providing an institutionalised code, supervised by a state or territory.

The great British judge Patrick Devlin, in his 1985 book Easing the Passing, quotes his summing up in the famous trial in 1957 of Dr John Bodkin Adams:

If the first purpose of medicine, the restoration of health, can no longer be achieved, there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life. This is not because there is a special defence for medical men but because no act is murder which does not cause death. We are not dealing here with philosophical or technical cause, but with the common sense cause. The cause of death is the illness or the injury, and the proper medical treatment that is administered and that has an incidental effect on determining the exact moment of death is not the cause of death in any sensible use of the term. But . . . no doctor, nor any man, no more in the case of the dying than the healthy, has the right deliberately to cut the thread of life.

With all due respect to the Legislative Assembly of the Northern Territory, I had not thought of it as providing moral leadership for the rest of the world, especially as there is a deep division between those members who are committed to the principle of euthanasia per se and those, such as the honourable member for the Northern Territory, who feel obligated to support the Rights of the Terminally Ill Act as an assertion of territorial sovereignty, a position shared by the legislators of the ACT and Norfolk Island. Cocos Island and Lord Howe Island are silent on either issue.

Oddly, the Northern Territory's remonstrance does not refer to section 122 of the Commonwealth constitution which gives this parliament a specific head of power over legislation passed in territorial legislatures. Until the Northern Territory becomes a state, or until the constitution is revised, there can be no moral, legal or political objection to the Commonwealth parliament exercising its functions.

Of 128 sections in the Commonwealth constitution, I estimate that there are 32 which are either irrelevant, anachronistic or purely transitional—without counting those sections relating to the exercise of monarchical power. Section 44 which led to the Lindsay by-election is one of them; section 122 is another.

I am singularly unimpressed by the argument that, because public opinion polls support euthanasia, the Northern Territory's law should be allowed to stand. If the Northern Territory decided to restore the death penalty, that too might generate rousing support as indicated in public opinion polls, but I would not hesitate to vote to overturn it if it was brought before this parliament under section 122. I am very conscious that, having been constrained by the clock, I delivered the early part of my speech with excessive speed, but it will read well.