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Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 10, 2018-19 14 AUGUST 2018

Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 Monica Biddington, Catherine Lorimer, Kaushik Ramesh and Juli Tomaras Law and Bills Digest Section

Contents

Purpose of the Bill ........................................................... 3

Structure of the Bill ......................................................... 3

History of the Bill ............................................................ 3

Committee consideration ................................................ 5

Position of parties/independents .................................... 5

Expected focus of the debate .......................................... 6

Territory rights ............................................................ 6

Euthanasia and assisted suicide .................................. 7

Statement of Compatibility with Human Rights................ 7

Parliamentary Joint Committee on Human Rights ..... 7 Background ..................................................................... 7

Terminology ................................................................ 7

Rights of the Terminally Ill Act 1995 (NT) ................... 8 Euthanasia Laws Act 1997 (Cth) .................................. 8

Passage of the Euthanasia Laws Bill 1996 ................. 8 Senate Selection of Bills Committee ....................... 8

Senate Standing Committee for the Scrutiny of Bills .......................................................................... 9

Senate Legal and Constitutional Legislation Committee Inquiry .................................................. 9

Effect of the Euthanasia Laws Act 1997 .................. 10 Previous Bills introduced to federal parliament ....... 11 Australian Democrats Bill ...................................... 11

Bills introduced by Senator Bob Brown ................ 11

Date introduced: 2 December 2015

House: Senate

Portfolio: Private Senator's Bill

Commencement: 28 days after Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2018.

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Bills introduced by Senator Richard Di Natale ...... 12 Key issues ..................................................................... 13

Constitutional and human rights issues .................... 13 Government of territories ....................................... 13

The Commonwealth’s power to pass a national law to prohibit or permit euthanasia ...................... 15

Voluntary euthanasia ................................................ 16

Current position in Australian states and territories ................................................................ 16

New South Wales .................................................. 16

Queensland ........................................................... 16

South Australia ...................................................... 17

Tasmania ............................................................... 17

Western Australia .................................................. 17

Australian Capital Territory and the Northern Territory ................................................................. 17

Advanced directives/ power of attorney .................. 18 International approaches .......................................... 19

Voluntary euthanasia .............................................. 19

Netherlands ........................................................... 20

Belgium .................................................................. 20

Physician-assisted suicide ....................................... 20

Oregon ................................................................... 20

Washington State .................................................. 20

Switzerland ............................................................ 21

Arguments for and against voluntary euthanasia..... 21 Key arguments in favour of voluntary euthanasia ............................................................... 21

Key arguments against voluntary euthanasia ......... 22 Key provisions ............................................................... 22

Objects of the Bill ...................................................... 22

Amendments to self-government Acts ..................... 23 Repeal of prohibition on making euthanasia laws .......................................................................... 23

Repeal of provisions that limit the current prohibition on euthanasia laws ............................... 24

Status of the Rights of the Terminally Ill Act ............. 25

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Purpose of the Bill The purpose of the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 (the Bill) is to repeal the provisions contained in the self-government Acts of the Northern Territory (the Northern Territory (Self-Government) Act 1978) and the Australian Capital Territory (the Australian Capital Territory (Self-Government) Act 1988) that preclude the legislative assemblies of these respective territories from making laws relating to euthanasia. The Bill will also repeal the Euthanasia Laws Act 1997 in its entirety.

Structure of the Bill The Bill contains four clauses and one schedule. The four clauses can be summarised as follows:

• clauses 1, 2 and 4 are standard provisions relating to the short title, commencement and effect of the Schedule to the Bill and

• clause 3 outlines the objects of the Bill (discussed in the Key provisions section of this Digest, below).

Schedule 1 is divided into three parts:

• Part 1 of Schedule 1 will amend the Australian Capital Territory (Self-Government) Act and the Northern Territory (Self-Government) Act to repeal the limitations placed on the respective legislative assemblies to makes laws legalising euthanasia, and related matters

• Part 2 of Schedule 1 repeals the whole of the Euthanasia Laws Act, which originally inserted the amendments being repealed in Part 1 of Schedule 1 and

• Part 3 of Schedule 1 is an application provision that stipulates the legal effect of the Rights of the Terminally Ill Act (the NT euthanasia legislation).

History of the Bill The Bill was introduced into the Senate on 2 December 2015 as a Private Senator’s Bill by Senator David Leyonhjelm of the Liberal Democratic Party. In his second reading speech on that date, Senator Leyonhjelm said:

… repeal of the [Euthanasia Act 1997] would send a signal to States and Territories that their legislatures may now turn their attention to this issue…For too long the Commonwealth has waded into areas that are properly the business of the states. 1

On 3 March 2016, second reading debate commenced with Senator Cory Bernardi (Australian Conservatives), Senator Katy Gallagher (ALP), Senator Bob Day (Family First), Senator Ian Macdonald (Liberal Party) and Senator Doug Cameron (ALP) all speaking on the Bill.2

1. D Leyonhjelm, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 2 December 2015, p. 9674. 2. D Leyonhjelm, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 3 March 2016, pp. 1700-1702; C Bernardi, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill

2015’, Senate, Debates, 3 March 2016, pp. 1703-1706; K Gallagher, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 3 March 2016, pp. 1707-1710; B Day, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 3 March 2016, pp. 1711-1713; I Macdonald, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 3 March 2016, pp. 1715-1716; D Cameron, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 3 March 2016, pp. 1718-1719.

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On 17 April 2016, the Bill lapsed at the prorogation of the first session of the 44th Parliament, to then be restored to the Senate Notice Paper on 31 August 2016 at the opening of the 45th Parliament.3

The second reading debate continued on 16 February 2017, with Senator Leyonhjelm, Senator Dean Smith, Senator Katy Gallagher, Senator Richard Di Natale, Senator Pauline Hanson, Senator Derryn Hinch and Senator Ian Macdonald all speaking on the Bill.4

Again, in February 2018, second reading debate continued, with speeches from Senator Concetta Fierravanti-Wells (Liberal Party), Senator Jacinta Collins (ALP), Senator Rachel Siewert and Senator Slade Brockman (Liberal Party) all speaking on the Bill.5

With the backing of Labor, the Greens and crossbenchers including Senators Hanson, Hinch, Burston and Storer, the Senate passed a motion on 27 June 2018 to proceed with the Bill on 14 August 2018.6

Senator Leyonhjelm claims that there was an agreement that the Government would allow a free vote on his Bill in return for his support for the re-establishment of the Australian Building and Construction Commission.7 In relation to the current Bill, Senator Leyonhjelm has said:

... the Government agreed to allow a free vote on my Bill to allow the ACT and Northern Territory to legislate for assisted suicide. That vote in the Senate is now scheduled for the Tuesday, Wednesday and Thursday of the week that the Senate next sits — the third week in August. If it passes, the deal also includes provision for a debate and free vote in the House of Representatives soon thereafter.

8

However, the Prime Minister denies that such an arrangement was made and drew attention to the fact that the 27 June 2018 Senate motion to give the Bill precedence over all government business was not supported by Government senators.9 The following exchange took place on ABC Radio:

STEWART BRASH (Interviewer): There is a vote in the Senate coming up to give the territories back the right to enact voluntary euthanasia legislation. Senator David Leyonhjelm claims that he has a promise from you that you'll allow that to go into the Lower House. Now, what's the situation there? If it does get through the Senate, will it go into the Lower House?

PRIME MINISTER: Well that's all a matter that will be considered, but just want to be very clear. That statement of Senator Leyonhjelm was not correct, we don't.

3. Parliament of Australia, ‘Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 homepage’, Australian Parliament website. 4. D Leyonhjelm, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 16 February 2017, p. 1236; D Smith, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’,

Senate, Debates, 16 February 2017, pp. 1237-1239; K Gallagher ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 16 February 2017, pp. 1240-1241; R Di Natale ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 16 February 2017, pp. 1242-1243; P Hanson, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 16 February 2017, p. 1243; D Hinch, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 16 February 2017, pp. 1245-1246; I Macdonald, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 16 February 2017, p. 1246. 5. C Fierravanti-Wells, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate,

Debates, 15 February 2018, pp. 1289-1291; J Collins, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 15 February 2018, pp. 1292-1293; R Siewert ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 15 February 2018, p. 1294; S Brockman ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 15 February 2018, pp. 1295-1296. 6. Australia, Senate, ‘Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015—Consideration’, Journals, 104, 2016-18,

27 June 2018, pp. 3343-44. 7. Through the Building and Construction Industry (Improving Productivity) Act 2016 (Cth). 8. D Leyonhjelm, ‘Opinion: how I make the Senate sausages’, The Australian Financial Review, 6 July 2018, p. 38. 9. Australia, Senate, ‘Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015—Consideration’, Journals, 104, 2016-18,

27 June 2018, pp. 3343-44.

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STEWART BRASH: No promise?

PRIME MINISTER: No, I'll be very clear, David Leyonhjelm asked me if the Government would vote to enable a vote to be held on this question in the Senate and we did not do that. Actually, the vote to bring it on to the notice paper, as it were, was carried despite opposition from Government members. It is however a conscience vote. So we'll see what happens, whether it's passed by the Senate or not, but it is a conscience vote in the sense that members of the Government, of the Coalition, whether they’re Ministers or not, are able to vote in accordance with their conscience.

STEWART BRASH: So there will be a conscience vote in the Lower House?

PRIME MINISTER: Now there'll be a conscience vote in the Senate, but whether it comes on for a vote in the Lower House is a matter that we'll have to consider (emphasis added). 10

It is not clear at the time of publication of this Digest whether the Bill will proceed to the House of Representatives for a conscience vote if it passes the Senate.

Committee consideration In its report of 1 September 2016, the Senate Standing Committee for Selection of Bills recommended that the Bill not be referred to committee for inquiry.11

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.12

Position of parties/independents In the Australian political party system members of parliament (MPs) nearly always vote in parliament along party lines. On the occasions when members do not they either abstain from voting, cross the floor to vote with the opposing parties or are allowed a free or conscience vote by the party.

The term ‘conscience vote’ is most commonly used in Australia to describe votes on moral and social issues such as abortion, euthanasia and same-sex marriage. The term may also be used in relation to issues on which the parties do not have a formal policy, such as parliamentary procedure and parliamentary privilege, where the term ‘free vote’ is more appropriate.13

A media article from June 2018 indicated that Prime Minister Turnbull will allow a conscience vote on this issue by Coalition members and senators.14 However, as discussed above, media reports from August 2018 indicate that the Bill may not be debated in the House of Representatives.15

At the time of writing the ALP has not made a statement regarding whether or not its members will have a conscience vote on this Bill. The ALP allowed a conscience vote on the Euthanasia Laws Bill 1996.16

10. S Brash, ‘Transcript of interview with Stewart Brash’, ABC, Alice Springs, 9 August 2018, pp. 13-14. See also: G Brown, ‘Senate leans towards voluntary euthanasia’, The Weekend Australian, 4 August 2018, p. 2 and D McCulloch and M Coughlan, ‘PM broke deal on euthanasia push: senator’, The Newcastle Herald, 8 August 2018 and G Brown, ‘Leyonhjelm in “havoc” threat over euthanasia’, The Australian, 6 August 2018, p. 4.

11. Senate Standing Committee for Selection of Bills, Report, 5, 2016, The Senate, 1 September 2016, pp. 3-4 12. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 1, 2016, The Senate, 3 February 2016, p. 34. 13. R Lundie and D McKeown, Free votes in Australian and some overseas parliaments, Current issues brief, 1, 2002-03, Department of the Parliamentary Library, Canberra, August 2002, p. 1.

14. S Benson, ‘Coalition MPs’ free vote on death bill’, The Australian, 27 June 2018, p. 1. 15. ‘PM opposed to euthanasia bid’, The Northern Territory News, 9 August 2018, p. 4; P Coorey, ‘Leyonhjelm vows retribution over euthanasia “snub” by PM’, The Australian Financial Review, 9 August 2018, p. 6. 16. K Gallagher, ‘Repeal legislative sledgehammer that is euthanasia law’, The Canberra Times, 9 March 2016, p. 5.

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The Consultation Draft of the ALP National Platform, which will be debated in December 2018, refers to end of life issues; however this position has not yet been adopted as party policy:

Labor believes people must have dignity and choice at the end of life. This requires a health policy discussion to determine whether current end of life care practice reflects the community’s preferences not only in terms of where they wish to die, but when to die. Labor recognises that some states have legislated in this regard. We also recognise that current Commonwealth legislation acts as an impediment for the territories to legislate in respect to these issues.

17

The Australian Greens support the introduction of national voluntary euthanasia laws.18

The Australian has reported that 39 out of 76 Senators are likely to back the Bill, stating that it is understood that One Nation Senators Pauline Hanson and Peter Georgiou support the Bill and Liberal Senators Anne Ruston, Marise Payne, Linda Reynolds and Simon Birmingham are considering supporting it.19

Expected focus of the debate

Territory rights One of the two key issues raised by the Bill is whether the Commonwealth should continue to prohibit the territories from legislating on euthanasia or assisted suicide. This is discussed further in the Key issues section of this Digest and is expected to be a focus of the parliamentary debate, with advocates of the Bill declaring that ‘Territorians deserve the same rights as every other Australian… [and] Malcolm Turnbull is treating Territorians as second class citizens.’20

The Chief Ministers of the ACT and the Northern Territory signed the Strategic Cooperation Agreement between the Northern Territory of Australia and the Australian Capital Territory in February 2018, to ‘promote mutual interests by maintaining a forward and progressive outlook’.21 The Chief Minister of the ACT, Andrew Barr stated that the Agreement would ‘prioritise the territories’ decision-making power on euthanasia’.22 However, there is clear division on the issue between the major parties in the ACT, with Chief Minister Barr reportedly writing to federal parliamentarians advocating the repeal of the Euthanasia Laws Act and the ACT Liberal Leader, Alistair Coe declaring that the ‘Canberra Liberals were not lobbying for the voting rights to be restored to the territories’.23

Senator Cory Bernardi of the Australian Conservatives told Sky News that the Bill is ‘dealing with a massively divisive matter, probably pretty close to an election’.24 Further, that ‘this is overturning the Commonwealth’s right to legislate for the territories,’ and ‘if the territories want to have states’ rights, maybe they should seek to become states’.25

17. Australian Labor Party (ALP), ALP National Platform: Consultation Draft, April 2018, p. 114. 18. J Massola, ‘Di Natale pushes for national voluntary euthanasia laws’, The Sunday Age, 26 November 2017, p. 2. 19. G Brown, ‘Most senators support euthanasia bill’, The Australian, 7 August 2018, p. 4. 20. H Sorensen, ‘Gunner blast on die Bill’, Northern Territory News, 10 August 2018, p.11. 21. Strategic Cooperation Agreement between the Northern Territory of Australia and the Australian Capital Territory, 9 February

2018.

22. K Le Lievre, ‘ACT, NT put euthanasia on agenda’, The Canberra Times, 25 February 2018, p. 6; K Burgess, ‘Conservatives attack deal on euthanasia voting rights’, The Canberra Times, 29 June 2018, p. 6. 23. K Burgess, ‘Time running out to restore territory rights, Perron warns’, The Canberra Times, 27 July 2018, p. 10. 24. Burgess, ‘Conservatives attack deal on euthanasia voting rights’, op. cit. 25. J Gailberger, M Smith and P Jean, ‘Opinion: Why euthanasia is on our conscience’, The Adelaide Advertiser, 13 August 2018,

p. 21.

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Euthanasia and assisted suicide The debate around intervention to end a terminally ill patient’s life is diverse and complex. It is beyond the scope of this Digest to outline all the positions on the debate, although the major arguments are set out under Key Issues. Note that the Bill is not legalising euthanasia; it has the effect of enabling the territories to legislate on the issue. Nonetheless, euthanasia will be a key issue in the parliamentary debate on the Bill.

Statement of Compatibility with Human Rights This Bill was not accompanied by a statement of compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.26

Background

Terminology In the debate on euthanasia, there are a number of terms such as ‘voluntary euthanasia’, ‘dying with dignity’, and ‘assisted suicide’, which are often used interchangeably when discussing this issue. The following table provides some clarification about the meaning of the terms used in the euthanasia debate.

Term Meaning

Euthanasia

Literally refers to a 'good death', or a 'gentle and easy death'. For the purpose of relieving suffering, a person performs a lethal action with the intention of ending the life of another person.

Voluntary euthanasia (VE) Euthanasia is performed at the request of the

person whose life is ended, and that person is competent.

Competent A person is competent if he or she is able to

understand the nature and consequences of a decision, and can retain, believe, evaluate, and weigh relevant information in making that decision.

Non-voluntary euthanasia Euthanasia is performed and the person is

not competent.

Involuntary euthanasia Euthanasia is performed and the person is

competent but has not expressed the wish to die or has expressed a wish that he or she does not die.

26. Parliamentary Joint Committee on Human Rights, Thirty-third report of the 44th Parliament, Parliament of Australia, Canberra, 2 February 2016, p. 2.

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Term Meaning

Assisted suicide A person dies after being provided by another

with the means or knowledge to kill him or herself.

Physician assisted suicide (PAS) Assisted suicide where a doctor acts as the assistant.

Dying/death with dignity A death that is allowed to occur in

accordance with the wishes of a patient.

Source: Adapted from L Willmott, B White and C Stackpoole, ‘(Failed) voluntary euthanasia law reform in Australia: two decades of trends, models and politics’, University of New South Wales Law Journal, 39(1), 2016, pp. 6-7.

Rights of the Terminally Ill Act 1995 (NT) On 25 May 1995 the Northern Territory Legislative Assembly enacted the Rights of the Terminally Ill Act 1995 (the ROTTI Act).27 This legislation came into effect on 1 July 1996.28 The legislation allowed a doctor in defined circumstances to comply with a request from a terminally ill, competent adult patient that the doctor end the patient’s life or assist the patient to end his or her own life.29 Four people used the ROTTI Act to obtain a doctor's assistance to end their lives while it was in force.30

Euthanasia Laws Act 1997 (Cth)

Passage of the Euthanasia Laws Bill 1996 In late June 1996, Kevin Andrews MP announced his intention to introduce a private member’s Bill to amend the Northern Territory (Self-Government) Act 1978 with the effect of overriding the ROTTI Act.31 On 9 September 1996, Mr Andrews introduced the Euthanasia Laws Bill 1996 to the House of Representatives and presented an accompanying Explanatory Memorandum.32 On 9 December 1996, the House of Representatives agreed to the Bill with amendments. A conscience vote on the Bill was taken and the final vote in the House of Representatives was 88 ayes to 35 noes.33

Senate Selection of Bills Committee On 7 November 1996, while debate on the Bill continued in the House of Representatives, the Senate Selection of Bills Committee recommended, and the Senate agreed, that the provisions of the Bill be referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report on or before 24 February 1997. This reporting date was subsequently extended to 6 March 1997.34

27. Rights of the Terminally Ill Act 1995 (NT). The Northern Territory Legislation Register notes that ‘this Act has no force or effect as a law of the Territory.’ 28. Northern Territory Gazette, S15, 13 June 1996. 29. Section 3 (definition of ‘assist’) and section 4 of the Rights of the Terminally Ill Act 1995 (NT). 30. ‘4 died under NT law’, The Northern Territory News, 2 December 1997. 31. See ‘Notices’, House of Representatives, Debates, 26 June 1996, p. 2911. 32. K Andrews, ‘First reading speech: Euthanasia Laws Bill 1996’, House of Representatives, Debates, 9 September 1996, p. 3671. 33. Australia, House of Representatives, Euthanasia Laws Bill 1996-Report from Main Committee, Votes and proceedings, HVP 58,

9 December 1996. 34. Senate Legal and Constitutional Legislation Committee, ‘Consideration of legislation referred to the Committee: Euthanasia Laws Bill 1996’, Canberra, March 1997, p. ix.

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In its recommendation to refer the provisions of the Bill to the Legal and Constitutional Legislation Committee, the Selection of Bills Committee nominated four specific areas of inquiry, namely:

• the desirability of the enactment of the provisions

• the constitutional implications for the Territories of the enactment of the provisions

• the impact of the enactment of the provisions on the Northern Territory criminal code and

• the impact on, and attitudes of, the Aboriginal community.35

Senate Standing Committee for the Scrutiny of Bills In the Alert Digest tabled 18 September 1996, the Committee raised a number of concerns relating to the effect of the Euthanasia Laws Bill 1996 on self-government rights for Territory citizens. It stated that the provisions of the Bill may be considered to trespass unduly on personal rights and liberties.36

Senate Legal and Constitutional Legislation Committee Inquiry In November 1996, the Committee advertised the reference in a number of newspapers and invited interested organisations and individuals to lodge submissions to the inquiry. The Committee received an unprecedented response to this inquiry with 12,577 submissions received from all Australian states and territories as well as some overseas countries.37 At the time, it was the largest number of submissions ever received by a parliamentary committee.38 An analysis of the submissions by the Committee secretariat showed that 93.3 per cent of the submissions were in favour of the Bill and/or opposed to euthanasia; with 6.4 per cent against the Bill and/or in favour of euthanasia; and 0.3 per cent of submissions did not make their position clear.39

The final report of the Committee was tabled on 6 March 1997. The structure and the content of the report provided a focus on legal and constitutional issues as well as the moral, philosophical, ethical and social issues associated with the debate. The report made no recommendation to the Senate on the Euthanasia Laws Bill because it was a private member’s Bill and subject to a ‘conscience vote’. Instead a group of 13 Committee members and participating members co-authored an ‘Advice to the Senate’ which advised:

1. It is desirable for the Euthanasia Laws Bill 1996 to be passed without amendment;

2. There are no Constitutional implications for the Territories;

3. There will be no adverse impact on the provisions of the Northern Territory Criminal Code; and

4. That the Rights of the Terminally Ill Act 1995 has had, and will continue to have, an unacceptable impact on the attitudes of the Aboriginal community to health services. The Euthanasia Laws Bill 1996 if

35. Ibid. 36. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 7, 1996, p. 6. 37. Senate Legal and Constitutional Legislation Committee, ‘Consideration of legislation referred to the Committee: Euthanasia Laws Bill 1996’, op. cit., p. x.

38. Later parliamentary committee inquiries into the Marriage Legislation Amendment Bill 2004 and the marriage equality Bills in 2009 and 2012 received greater numbers of public submissions. 39. Senate Legal and Constitutional Legislation Committee, ‘Consideration of legislation referred to the Committee: Euthanasia Laws Bill 1996’, op. cit., p. 189.

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enacted would override the Rights of the Terminally Ill Act 1995 and thereby relieve the Aboriginal community of its overwhelming and deeply felt concern at the Northern Territory's legislation. 40

Seven separate responses including dissenting and critical comments about the Bill were made by other Committee members and these were appended to the report.

The Bill was introduced into the Senate on 12 December 1996 by Senator Herron, who also tabled a revised Explanatory Memorandum to the Bill.41 Further consideration of the second reading debate on the Bill was adjourned until 17 March 1997. The Senate debated the Bill from 17 to 20 March 1997 with the second reading and third reading vote taking place on 24 March 1997. After a lengthy debate, the Bill passed the Senate with a vote of 38 ayes to 33 noes.42 The Bill received Royal Assent and came into force on 27 March 1997 as the Euthanasia Laws Act 1997.

Effect of the Euthanasia Laws Act 1997 The Euthanasia Laws Act amended three Commonwealth laws—the self‐government Acts of the NT, the ACT and Norfolk Island.43 The Euthanasia Laws Act inserted provisions in each self-government Act stating that the powers of the particular legislative assembly did not ‘extend to the making of laws which permit or have the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life’.

The Euthanasia Laws Act also amended the self‐government Acts of the NT, the ACT, and Norfolk Island by inserting provisions which permitted each of these respective legislative assemblies to make laws with respect to:

• the withdrawal or withholding of medical or surgical measures for prolonging the life of a patient but not so as to permit the intentional killing of the patient

• medical treatment in the provision of palliative care to a dying patient, but not so as to permit the intentional killing of the patient

• the appointment of an agent by a patient who is authorised to make decisions about the withdrawal or withholding of treatment, and

• the repealing of legal sanctions against attempted suicide.44

In the case of the NT, the Euthanasia Laws Act clarified that the ROTTI Act ‘has no force or effect as a law of the Territory, except as regards the lawfulness or validity of anything done in accordance therewith prior to the commencement of this Act’.45 The ROTTI Act came into force on 1 July 1996. This meant that though the ROTTI Act was invalidated by the Euthanasia Laws Act,

40. Senate Legal and Constitutional Legislation Committee, ‘Consideration of legislation referred to the Committee: Euthanasia Laws Bill 1996’, op. cit., Advice to the Senate, pp. 115-130. The Advice was co-authored by Senators Abetz, Bishop, J Collins, Conroy, Ellison, Ferris, Harradine, Heffernan, Hogg, McGauran, Minchin, O’Chee and Woodley.

41. J Herron, ‘Second reading speech: Euthanasia Laws Bill 1996’, Senate, Debates, 12 December 1996, p. 7357. 42. Australia, Senate, Euthanasia Laws Bill 1996, Journals, SJ 92, 24 March 1997. 43. Australian Capital Territory (Self-Government) Act 1988 (Cth); Northern Territory (Self-Government) Act 1978 (Cth), Norfolk Island Act 1979 (Cth). The current Bill does not seek to reverse the amendments made to the Norfolk Island Act 1979 as these

have already been repealed from that Act as part of governance changes to Norfolk Island. See Norfolk Island Legislation Amendment Act 2015, item 28, Schedule 1. For more information on the changes to Norfolk Island governance see C Madden, Norfolk Island Legislation Amendment Bill 2015, Bills digest, 102, 2014-15, Parliamentary Library, Canberra, 12 May 2015. 44. Item 1 of Schedules 1 and 2; and item 2 of Schedule 3 to the Euthanasia Laws Act 1997. 45. Item 2 of Schedule 1 of the Euthanasia Laws Act 1997.

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acts performed under the ROTTI Act prior to the commencement of the Euthanasia Laws Act were not unlawful.46

Previous Bills introduced to federal parliament In addition to the current Bill, introduced by Senator Leyonhjelm, a number of other Bills have been introduced in the Commonwealth Parliament dealing with the issue of euthanasia. Most of these Bills have sought to restore the rights of self-governing territories to make laws on euthanasia by repealing the Euthanasia Laws Act. None of these Commonwealth Bills have passed.47

Australian Democrats Bill The Euthanasia Laws (Repeal) Bill 2004 was introduced by Senator Lyn Allison (Australian Democrats) on 3 March 2004 and sought to repeal the Euthanasia Laws Act.48 The catalyst to the Bill’s introduction was a legislative proposal in the South Australian Legislative Council, introduced by Australian Democrat Sandra Kanck, who was responding to information showing that ‘almost 80 per cent of South Australians support a well-regulated system of assisted suicide, indicating widespread acceptance across religious and social groups’.49

The Bill lapsed on 12 February 2008 at the opening of the 42nd Parliament and was then restored to the Notice Paper on 14 February 2008. It lapsed again on 28 September 2010, at the opening of the 43rd Parliament.50 The Bill was not debated.

Bills introduced by Senator Bob Brown The Australian Territories Rights of the Terminally Ill Bill 2007 was introduced by Senator Bob Brown (Australian Greens) on 8 February 2007.51 This Bill is different to the others in that it proposed a model of euthanasia and did not seek to amend the Euthanasia Laws Act or the territories’ self-government Acts. The Bill sought to confirm the right of a terminally ill person to request assistance from a medically qualified person to voluntarily terminate his or her life in a humane manner, to allow for such assistance to be given in certain circumstances without legal impediment to the person rendering the assistance and to provide procedural protection against the possibility of abuse of the rights recognised by the Act.52 The Bill lapsed on 12 February 2008 without being debated.

The Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 was introduced by Senator Brown on 14 February 2008.53 This Bill sought to repeal the Euthanasia Laws Act. An Explanatory Memorandum was not tabled with the Bill. The Bill was referred to the Senate Legal and Constitutional Affairs Committee on 12 March 2008 for inquiry and report and the Committee

46. G Williams and M Darke, ‘Euthanasia laws and the Australian Constitution’, University of New South Wales Law Journal, 20(3), 1997, pp. 647-665 at 653. 47. For analysis of state and territory attempts to legislate on euthanasia or assisted dying, see L Willmott et al, ‘(Failed) Voluntary Euthanasia Law Reform in Australia: Two Decades of Trends, Models and Politics’, University of New South Wales Law Journal,

(2016) 39(1). Note that since the publication of this article there have been further attempts, including the passage of legislation in Victoria for voluntary assisted dying. The current position in the states and territories is discussed below. 48. Parliament of Australia, ‘Euthanasia Laws (Repeal) Bill 2004 [2008] homepage’, Australian Parliament website. 49. L Allison, ‘Second Reading Speech: Euthanasia Law (Repeal) Bill 2004’, Senate, Debates, 3 March 2004, p. 20717. 50. Parliament of Australia, ‘Euthanasia Laws (Repeal) Bill 2004 [2008] homepage’, Australian Parliament website. 51. Parliament of Australia, ‘Australian Territories Rights of the Terminally Ill Bill 2007 homepage’, Australian Parliament website. 52. B Brown, ‘Second reading speech: Australian Territories Rights of the Terminally Ill Bill 2007’, Senate, Debates, 8 February 2007, p. 18. 53. Parliament of Australia, ‘Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 homepage’, Australian Parliament website.

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tabled its report on 26 June 2008.54 The Committee received over 1,800 submissions to the inquiry.55

The Committee members elected not to form a majority view on whether or how the Bill should proceed. Recognising that there were significantly diverging views on euthanasia among Committee members, and that issues of this type have always been the subject of a conscience vote, the Committee decided to conclude its report by setting out the views of all Senators who participated in this inquiry. However, Committee members agreed that the Bill should not proceed in its current form.56 Some Senators considered the Bill should not proceed in any form; other Senators were in favour of amending the Bill and some were interested in a possible legislative framework governing euthanasia at a national level.57 The Bill lapsed on 28 September 2010 without being debated.

Senator Brown introduced the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008 on 17 September 2008.58 The Bill sought to repeal the Euthanasia Laws Act and amend the territory self-government Acts to remove the restrictions imposed by the Euthanasia Laws Act. It lapsed on 28 September 2010 without being debated. The following day, Senator Brown introduced the Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010, which was in the same terms as the 2008 Bill.59 The 2010 Bill was debated in the Senate on 28 October 2010.60 The Bill was discharged from the Notice Paper on 22 November 2012. These two Bills are analogous to the present Bill.

Bills introduced by Senator Richard Di Natale The Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2012 was introduced by Senator Richard Di Natale (Australian Greens) on 26 November 2012.61 The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee on 21 March 2013. The Committee tabled a one-page report on 25 March 2013 in which it stated that it would not be calling for submissions or conducting an inquiry into the Bill, given that a similar Bill was comprehensively examined by the Committee in 2008.62 The Bill lapsed on 12 November 2013 at the opening of the 44th Parliament, without being debated.

While not introduced into the Parliament, Senator Di Natale released an exposure draft of a Bill in June 2014 for consultation, which would have enabled an Australian resident to receive assistance to die.63 This Bill did not seek to repeal the Euthanasia Laws Act, but instead sought to prescribe a framework, with safeguards, through which terminally ill people could seek assistance in ending their lives. The Senate referred the exposure draft of the Medical Services (Dying with Dignity) Bill

54. Senate Legal and Constitutional Affairs Committee, Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, The Senate, Canberra, 26 June 2008. 55. Ibid., p. 1. 56. Ibid., p. 61. 57. Ibid., Chapter 5. 58. Parliament of Australia, ‘Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2008 homepage’, Australian

Parliament website. 59. Parliament of Australia, ‘Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2010 homepage’, Australian Parliament website. 60. Nine Senators spoke on the Bill, including current Senators Scullion and Pratt, See: Restoring Territory Rights (Voluntary

Euthanasia Legislation) Bill 2010, The Senate, Debates, 28 October 2010. 61. Parliament of Australia, ‘Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2012 homepage’, Australian Parliament website. 62. Senate Legal and Constitutional Affairs Committee, Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill 2012,

The Senate, Canberra, 25 March 2013. 63. R Di Natale, Medical Services (Dying with Dignity) Exposure Draft Bill 2014.

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2014 to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report.64 In its report, the Committee suggested that Senator Di Natale address the technical and other issues raised in evidence to the Committee and seek the advice of relevant experts before the Bill is taken further. These issues included:

• clarification of key definitions, including ‘dying with dignity medical service’, ‘terminal illness’ and ‘sound mind’65

• the appropriate number of medical practitioners required to consider an end of life request66 and

• the potentially serious consequences for medical practitioners who relied upon the immunities in the Bill if such immunities were later found to be unconstitutional. In this regard, the Committee noted the conflicting evidence it received in relation to the primary constitutional basis for the Bill under paragraph 51(xxiiiA) of the Constitution (which relates to medical services and pharmaceutical, sickness and hospital benefits).67

The Committee also recommended that if a Bill dealing with this broad policy issue was introduced in the Senate, Party Leaders should allow Senators a conscience vote.68

The Restoring Territory Rights (Dying with Dignity) Bill 2016 was introduced by Senator Di Natale and Senator Katy Gallagher of the Labor Party on 1 March 2016.69 The Bill lapsed on 17 April 2016 on prorogation of the first session of the 44th Parliament, was restored to the Notice Paper on 19 April 2016, lapsed again on 9 May 2016 at the dissolution of the 44th Parliament and was restored again to the Notice Paper on 1 September 2016. The Bill has not been debated.

Key issues

Constitutional and human rights issues A number of arguments and observations made in relation to the Euthanasia Laws Act and later attempts by individual members of the Federal Parliament to undo the effects of that legislation may be seen as relevant considerations in relation to the current Bill. These are briefly discussed below.

Government of territories Section 122 of the Australian Constitution is a plenary power which provides that the Commonwealth Parliament may make laws for the government of its territories; this includes the power to override any laws made by the territories.70 The Federal Parliament has only used its power under section 122 to override laws made by the territories on a few occasions, one of which occurred through the Euthanasia Laws Act.

64. Senate Committee on Legal and Constitutional Affairs, Medical Services (Dying with Dignity) Exposure Draft Bill 2014, The Senate, Canberra, November 2014, p. 1. 65. Ibid., pp. 27-39. 66. Ibid., pp. 34-37; p. 39. 67. Ibid., pp. 25 and 39. 68. Ibid., p. 40. 69. Parliament of Australia, ‘Restoring Territory Rights (Dying with Dignity) Bill 2016 homepage’, Australian Parliament website.

Senator Gallagher was the Chief Minister of the ACT from 2011 to 2014. 70. See for example, Spratt v Hermes (1965) 114 CLR 226, 242, [1965] HCA 66 at [16]; (per Barwick CJ). Notwithstanding the continued recognition of this plenary power, the majority of the High Court has previously signalled the possibility of

limitations around the Commonwealth’s use of section 122, noting that ‘[T]here may be some qualifications to the power to make laws under s 122 which are to be found elsewhere in the Constitution but which as yet remain unidentified’. See Svikart v Stewart (1994) 181 CLR 548 at 563, [1994] HCA 62 at [14] per Mason CJ, Deane, Dawson and McHugh JJ; see also 572 and 574-575 per Toohey J.

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While the Commonwealth had the power to override the laws of the NT through the Euthanasia Laws Act, it could be argued that, as a matter of political convention, a significant practice had ‘developed against revoking powers granted to subordinate legislatures’.71 At the time, opponents questioned whether it was politically appropriate for the Commonwealth to wrest back a part of the legislative powers that it had conferred on these territories at self-government.72 There are three main arguments which have been advanced in support of this view. Firstly, the Commonwealth’s action in 1996 was seen by some as one that interfered with the decision of the democratically-elected NT Parliament and weakened self-government.73 Secondly, it was argued that the Euthanasia Laws Act discriminates against territories and the citizens of those territories because it only applies to the territories, not states.74 Finally, the action of the Commonwealth was argued to be arbitrary and ad hoc, lacking any transparent and consistent criteria for intervention.75

However, it has also been pointed out that the territories derive their legislative capacity from the Commonwealth, whereas the states do not. Moreover, in drafting the Constitution the framers arguably intended that the Commonwealth assume some sort of responsibility to supervise the governance of the territories and intervene where appropriate.76 In this regard, it was argued that the nature of euthanasia, which raises fundamental human rights issues with implications for all Australians, necessitated a national interest approach to policy in this space.77 In relation to the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008 introduced by Senator Bob Brown (discussed above), Father Brennan stated:

… given that the society we have is a national society, it is wrong for these small legislatures to view themselves as social laboratories for trying different sorts of moral and social answers which are out of kilter with those of the states generally. 78

Father Brennan also argued that the territories should not be given legislative power in relation to the issue of euthanasia ‘unless and until a state parliament in Australia has so legislated’.79

Although this has happened with the passage of legislation in Victoria, it does not necessarily remove the other argument and consideration which accompanied such opposition; the desirability of a national approach given the significant nature of this issue. In contrast, as discussed below in Key provisions, Senator Leyonhjelm’s Bill has among its objects to reduce Commonwealth interference with the laws of the Australian Capital Territory and the Northern Territory, and to facilitate competitive federalism in law making.

71. Law Council of Australia, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, April 2008, [Submission no. 442], p. 4. 72. N Cica Constitutional Arguments Against Removing the Territories' Powers to Make Laws Permitting Euthanasia, Research Note, 33, 1996-97, Parliamentary Library, Canberra, 1997. See also: N Cica, Constitutional Arguments in Favour of Removing

the Territories' Power to Make Laws Permitting Euthanasia, Research Note, 32, 1996-97, Parliamentary Library, Canberra, 1997. 73. Gilbert and Tobin Centre of Public Law, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, April 2008, [Submission no. 46], p. 1. 74. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 7, 1996, 18 September 1996, p. 6. Accordingly, the

Committee expressed concern that the Euthanasia Act may ‘trespass unduly on personal rights and liberties’ by ‘creat[ing] a situation where some Australians are treated in a way different from other citizens because it curtails their present right to self-government in circumstances where, were they to live in the States, it could not do so’. 75. Ibid., Law Council of Australia, op cit., p. 5. 76. Law Council of Australia, op cit., p. 4. 77. Father (Professor) Frank Brennan, Submission to Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, April 2008, [Submission no. 428], p. 2. 78. Father (Professor) Frank Brennan, Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, Committee Hansard, 16 April 2008, p. 17. 79. Ibid., p. 14

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The Commonwealth’s power to pass a national law to prohibit or permit euthanasia As noted in previous parliamentary inquiries and writings on this subject, there are reasonable arguments that the Commonwealth may be able to use its external affairs power, corporations power,80 implied nationhood power or medical services power81 to provide for national legislation in this space.

For example, it is now firmly established that under section 51(xxix) of the Constitution the Australian Government has the power to enact legislation that is reasonably capable of being considered appropriate and adapted to fulfil Australia’s international legal obligations arising from a bona fide Convention which the government has entered into, ‘notwithstanding that the subject matter of the treaty is of an entirely domestic nature’.82 Accordingly, the Commonwealth might use its power over external affairs to legislate for the right to life under the International Covenant on Civil and Political Rights (ICCPR).83 Article 6(1) of the ICCPR provides: ‘Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life’.84

The impact of Article 6(1) of the ICCPR on voluntary euthanasia raises a number of questions including the scope of the right to life, the interpretation of the expression an 'arbitrary deprivation of life’ and the definition of ‘life’ (in particular when life ends).

Of course, Article 6 of the ICCPR is not the only relevant right that needs to be considered in the context of a discussion about legalising euthanasia. There are a range of rights that need to be considered and balanced.85

Article 50 of the ICCPR also states that ‘the provisions of the present Covenant shall extend to all parts of federal States without any limitations or exceptions’.86 An issue that the Parliament might

80. Australian Constitution, section 51(xx): the corporations power has been interpreted broadly by the High Court to apply any law that ‘imposes a duty or liability, or confers a right or privilege, only on a constitutional corporation’. This includes regulating the conduct of ‘those through whom it acts’ including employees. However, to fall within the corporations power, the law needs to regulate or permit acts done by or on behalf of corporations. See: New South Wales v Commonwealth (2006) 229 CLR 1 (2006) [181].

81. Australian Constitution, section 51(xxiiiA). 82. Commonwealth v Tasmania [1983] HCA 21 at [26] per Mason J (the law must conform to and implement the treaty; whether the Commonwealth may legislate to implement a treaty depends on the nature of the treaty concerned, whether the treaty’s provisions are declaratory of international law, impose obligations or provide benefits), [38] per Murphy J (due to

globalisation, an internal affair may also be part of the Commonwealth’s external affairs), [40] per Murphy J (power extends but is not restricted to implementing treaties), [27] per Brennan J (if the Commonwealth accepts an obligation under an international Convention, the external affairs power allows the Commonwealth to make laws necessary to implement that obligation), [21] per Deane J (the law implementing a treaty must be reasonably proportionate to the treaty’s purpose and the means of achieving that purpose). See also R v Burgess: ex parte Henry [1936] HCA 52 at [7] per Latham CJ. 83. International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force

for Australia (except Art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1994). 84. The ICCPR requires State parties to adopt legislative or other measures to give effect to the rights recognised in it. The importance of the right to life at Article 6 is underlined by the fact that it is one of the non-derogable rights referred to in

Article 4(2) which cannot be suspended notwithstanding life-threatening national emergency. Article 27 of the Vienna Convention on the Law of Treaties provides that a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. 85. Other relevant ICCPR Articles are Art 7, dealing the right to freedom from cruel, inhuman or degrading treatment; Art 18, protection of freedom of thought, conscience and religion; and Art 17, the right to respect for private life. Other relevant human rights treaties include: the Convention on the Rights of Persons with Disabilities, in particular Art 10; the Convention on the Rights of the Child, in particular Art 23. 86. The UN Human Rights Committee has stated that ‘the law must strictly control and limit the circumstances in which a person may be deprived of his life’—UN Human Rights Committee: General Comment 6, Para. 3, 30 April 1982. In July 2017, the UN Human Rights Committee released a draft General Comment on Article 6 of the ICCPR which would, for the first time (if adopted) provide legal cover for states to authorise assisted suicide by making explicit exceptions to the right to life, permitting assisted death: ‘in order to facilitate the termination of life of [catastrophically] afflicted adults, such as the mortally wounded or

terminally ill, who experience severe physical or mental pain and suffering and wish to die with dignity. In such cases, States parties must ensure the existence of robust legal and institutional safeguards to verify that medical professionals

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consider is whether to use its external affairs power (or another relevant power) in relation to euthanasia in order to make a uniform Australian euthanasia law by passing its own legislation on the matter.87 This approach would avoid variation across the jurisdictions in relation to the fundamental right to life.88

Voluntary euthanasia

Current position in Australian states and territories In Australia, with the exception of Victoria, euthanasia is covered by laws which make it an offence to hasten or bring about a person’s death by artificial means.

Numerous Bills have been introduced at the state and territory level since the Northern Territory’s ROTTI Act.89 On 29 November 2017, Victoria became the first Australian state to enact voluntary euthanasia legislation with the passage of the Voluntary Assisted Dying Act 2017 (Vic). The provisions of the Victorian Act will come into effect on proclamation, but at the latest on 19 June 2019.90

The current position of the other Australian states and territories on euthanasia law reform is outlined below.

New South Wales The NSW Voluntary Assisted Dying Bill 2017 and its associated explanatory note were introduced by Trevor Khan of the National Party into the NSW Legislative Council on 21 September 2017. The legislation sought to establish the right of persons who are terminally ill to request assistance from medically qualified persons to voluntarily end their own lives. The Bill was co-sponsored by Mr Khan, Dr Faruqi of the Australian Greens and Ms Voltz of the Labor Party.91

The Bill was subject to a conscience vote but was defeated 20 votes to 19 in the Legislative Council on 16 November 2017.92

Queensland Queensland is the only state never to have formally debated euthanasia.

There have been recent calls from pro-euthanasia groups for the Queensland Government to establish an inquiry on voluntary euthanasia.93 The campaign is supported by former Queensland

are complying with the free, informed, explicit and, unambiguous decision of their patients, with a view to protecting patients from pressure and abuse.’ [emphasis added] See: United Nations, Human Rights Committee (Revised draft prepared by the Rapporteur). General comment no. 36 on article 6 of the International Covenant on Civil and Political Rights, on the right to life, paragraph 10. 87. This could potentially trigger a section 109 inconsistency and invalidate existing state legislation. 88. In its submission to the Draft General Comment No. 36 on Article 6 of the International Covenant on Civil and Political Rights:

Right to life, the Australian Government stated that ‘Australia does not agree with the characterisation of Article 6 as ‘the supreme right’. Australia’s position is that there is no hierarchy of rights; all human rights are universal, indivisible and interdependent, and must be implemented as a matter of international law’. See page 3, paragraph 11. 89. For an overview of state and territory attempts over the last 20 years see L Willmott, B White and C Stackpoole, ‘(Failed) voluntary euthanasia law reform in Australia: two decades of trends, models and politics’, University of New South Wales Law Journal, 39(1), 2016. 90. Voluntary Assisted Dying Act 2017 (Vic), section 2, Commencement 91. T Khan, ‘Second reading speech: Voluntary Assisted Dying Bill 2017’, New South Wales, Legislative Council, Debates, 21 September 2017. 92. Parliament of New South Wales, ‘Voluntary Assisted Dying Bill 2017 homepage’, NSW Parliament website; S Nicholls, ‘Voluntary assisted dying bill defeated in NSW upper house’, The Sydney Morning Herald, 16 November 2017. 93. B Smee, ‘Support grows for Queensland parliamentary inquiry into euthanasia’, The Guardian (Australia), 25 June 2018.

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Premier Peter Beattie.94 At the time of writing, no parliamentary inquiry into voluntary euthanasia has been established.

South Australia The Death with Dignity Bill 2016 was introduced into the South Australian House of Assembly by Dr McFetridge (Liberal) on 20 October 2016. The Bill would have allowed doctors to administer lethal injections to adult, terminally ill patients near the end of life, provided they were enduring unbearable suffering that could not be alleviated through palliative care.

The Bill was controversially defeated in the House of Assembly on 17 November 2016 on the casting ballot of Speaker Michael Atkinson after MPs were deadlocked at 23-23 on a conscience vote.95

Tasmania The Tasmanian House of Assembly defeated the Voluntary Assisted Dying Bill 2016 in a conscience vote (16 votes to eight) on 24 May 2017.96 The Bill sought to legalise assisted dying for competent adults in the advanced stages of a serious incurable and irreversible medical condition (causing persistent, intolerable suffering), by way of lethal medication (either self-administered, or administered by the adult's primary doctor).

The defeated Bill was the third attempt to legalise assisted dying in Tasmania in the last decade.97

Western Australia In August 2017, the Western Australian Parliament established an inquiry into end of life choices which will consider the need for laws in Western Australia to allow citizens to make informed decisions about their own end of life choices.98 The final report of the Committee is due to be tabled on 23 August 2018.99

Australian Capital Territory and the Northern Territory On 30 November 2017, the ACT Legislative Assembly established a Select Committee to review and report on end of life choices in the ACT.100 Submissions to the inquiry closed on 23 March 2018 and the Committee is due to report on the last sitting day of 2018.101

In February 2018, the Northern Territory and ACT Governments signed a memorandum of understanding, the ACT-NT Strategic Collaboration Agreement, which will ‘draw upon shared attributes and combined strengths as self-governing territories, to promote mutual interests by maintaining a forward and progressive outlook, and taking collaborative action for the benefit of

94. J Poulsen, ‘Beattie backs euthanasia’, The Courier Mail, 24 January 2018, p. 11. 95. ‘Narrow defeat for euthanasia’, The Australian Doctor, 25 November 2016. 96. ‘Tasmania votes down voluntary euthanasia bill for third time in 10 years’, ABC News, website, 25 May 2017. 97. Ibid. 98. Western Australia, Joint Select Committee on End of Life Choices, media release, 12 September 2017. 99. WA Joint Select Committee on End of Life Choices, ‘Inquiry details’, Committee webpage. 100. ACT Select Committee on End of Life Choice in the ACT, Community views sought on end of life choices, media release,

11 December 2017. The date for public submission was extended by the Committee to 23 March 2018 in February 2018. See ACT Select Committee on End of Life Choice in the ACT, Assembly Committee extends the date for submissions on End of Life Choices in the ACT to 23 March 2018, media release, 9 February 2018. 101. ACT Legislative Assembly, Inquiry into End of Life Choices in the ACT, 2018.

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our citizens’.102 The ACT Chief Minister stated that ‘the agreement would prioritise the territories’ decision making power on euthanasia’.103

Advanced directives/ power of attorney As discussed above, until November 2017 all states in Australia criminalised the practice of ‘euthanasia’.104 For example, section 31C of the Crimes Act 1900 (NSW) makes it an offence to assist a person to end their life, attracting a maximum penalty of ten years' imprisonment. Such laws do not provide an exemption for medical practitioners. However, there has evolved an accepted practice whereby palliative care which has the effect of speeding up a person's death, is permissible in very specific and regulated circumstances where it eases the pain and suffering of someone who is terminally ill.105 People may also voluntarily end their lives by rejecting medical intervention or sustenance.106

There are basically two types of instruments that exist to regulate the withholding or withdrawing of medical treatment with the effect of hastening death: advance care directive/plans (variously described across jurisdictions) and enduring powers of attorney or guardianship. All states and territories have legislation or common law recognition of types of ‘advance directives’. In fact, state health policies are increasingly encouraging people to consider making advance directives, at least in relation to the health care and treatment they want in circumstances where they lose capacity to make their own decisions, and to have in place mechanisms to assist them to do so. All states and territories also have legislation recognising enduring powers of attorney or guardianship.107

Advance directives (AD): generally, ADs allow competent adults over the age of 18 to execute formal directives in writing (except for the ACT, where they may be oral), specifying their wishes and beliefs regarding quality of life; expressing their preferences regarding outcomes of possible medical treatments; giving direction regarding end of life decision-making including consent to, or refusal of medical treatment; specifying a decision-maker who would speak on their behalf if at some future time they are unable to understand their choices or express their wishes, or give

102. Strategic Cooperation Agreement between the Northern Territory of Australia and the Australian Capital Territory, February 2018, p. 2. 103. K Le Lievre, ‘ACT, NT put euthanasia on agenda’, The Canberra Times, 25 February 2018, p. 6; 104. In November 2017, the Victorian Parliament passed the Voluntary Assisted Dying Act 2017 (Vic). However, this legislation will

not come into force until mid-2019 105. For example, section 17(1) of the Consent to Medical Treatment and Palliative Care Act 1995 (SA) applies to the circumstance where a doctor responsible for a patient in the terminal phase of an illness administers medical treatment ‘with the intention

of relieving pain or distress’, where ‘an incidental effect of the treatment is to hasten the death of the patient’. The doctor will not be liable under criminal or civil law if the treatment was undertaken with consent, in good faith, without negligence and in accordance with proper professional standards of palliative care. Similarly, section 282A of the Criminal Code Act 1899 (Qld) provides that a doctor (or a person acting under a doctor’s orders) is not criminally responsible for providing palliative care where such provision is provided ‘in good faith and with reasonable care and skill’ and ‘is reasonable, having regard to the other person’s state at the time and all the circumstances of the case’… ‘even if an incidental effect of providing the palliative care is to hasten the other person’s death’. 106. Medical professionals generally do not view existing legally regulated end-of-life practices as constituting active euthanasia or

physician-assisted suicide, rather they view these practices as good medical practice, recognising: Whilst doctors have an ethical duty to preserve life there is also a responsibility to relieve suffering. Death should be allowed to occur with dignity and comfort when death is inevitable. This appears to more closely resemble a view of passive rather than active euthanasia. Source: Senate Legal and Constitutional Affairs Legislation Committee, Medical Services (Dying with Dignity) Exposure Draft Bill

2014, The Senate, Canberra, 10 November 2014, pp. 28-9. 107. For example: Powers of Attorney Act 2006 (ACT); Guardianship Act 1987 (NSW); Advance Personal Planning Act 2013 (NT) and Advance Care Directives Act 2013 (SA); Powers of Attorney Act 1998 (Qld), Guardianship and Administration Act 2000 (Qld); Guardianship and Administration Act 1995 (Tas); Guardianship and Administration Act 1990 (WA).

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informed consent or refusal of medical treatment.108 An AD is generally seen as giving effect to the principle of autonomy and free choice:

It aims to promote empowerment, compassion and dignity at the end of life. Advance directives are based on the premise that, if people know that their autonomy will be respected and they can have some say about their treatment decisions when they are dying, they will be able to confront their death with less anxiety. They will know that burdensome and futile medical treatment will be avoided if they become incompetent during the dying process or if an irreversible condition leaves them with severe brain damage.

109

Enduring powers of attorney or guardianship permit a person to appoint one or more agents for the purpose of making decisions about medical treatment if and when that person has impaired decision-making capacity. The attorney or guardian is generally required to make decisions about medical treatment which are consistent with directions specified by the person in advance, when they were competent to make those decisions. There is some variation across jurisdictions in Australia in terms of the ability of the attorney or guardian to refuse treatment for the person for whom they are acting as an agent. For example, in Queensland, an enduring power of attorney is precluded from allowing treatment to be withheld or withdrawn unless this would be consistent with good medical practice.110

It is beyond the scope of this Digest to consider the arguments for and against these instruments.111

International approaches Only a small number of overseas jurisdictions have passed laws which permit voluntary euthanasia or physician-assisted suicide. This digest will provide only a brief summary of the laws in some of these jurisdictions.

Voluntary euthanasia At the time of writing this digest, voluntary euthanasia is legal in the Netherlands, Belgium, Colombia, Luxembourg and Canada.

108. For example, ACT (‘Health directions’—Medical Treatment (Health Directions) Act 2006); NSW (advance directives permitted and recognised by common law—Hunter and New England Area Health Service v A [2009] NSWSC 761). Also, in 2013 the NSW Government launched the Advance Planning for Quality Care at End of Life: Action Plan 2013-2018, which operates as an extension of the common law right to determine one’s own medical treatment; NT (‘Advance consent decisions’—Advance Personal Planning Act 2013); SA (Advance Care Directives Act 2013); QLD (‘Advance health directives’—Part 3 of Chapter 3 in the Powers of Attorney Act 1998); TAS ( there is no law relating to advance care directives, but an advance care directive is recognised under common law and can also be registered as part of an enduring guardianship, pursuant to the Guardianship and Administration Act 1995); WA (The Acts Amendment (Consent to Medical Treatment) Act 2008). For further information on advance care planning, see RZ Carter, KM Detering, W Silvester and E Sutton, ‘Advance care planning in Australia: what does the law say?’, Australian Health Review, 40(4), 16 November 2015, pp. 405-14.

109. M Brown, ‘The law and practice associated with advance directives in Canada and Australia: Similarities, differences and debates’, Journal of Law and Medicine, 11(1), 1 August 2003, p. 60. 110. Guardianship and Administration Act 2000 (Qld), section 66A and Powers of Attorney Act 1998 (Qld) Schedule 2, clause 5(2). 111. There are several publications dealing with arguments for and against the scope, appropriateness, implementation, levels of

access and funding and/or effectiveness of these instruments and their associated measures. Some of the commentary focuses on the need to inject more funding into palliative care and to make it more accessible per se and is optimistic about the use of advance care planning; see for example I Scott and GK Mitchell, et al, ‘Difficult but necessary conversations — the case for advance care planning’, Medical Journal of Australia, 199(10): pp. 662-666; 18 November 2013. Other commentators are less sanguine, pointing to the shortcomings and need for improvement in the conception and framework of Advance Directives; see AM J Pokomy, ‘Advance care directives are not always helpful’, Medical Journal of Australia, 2014; 200(5): 248.

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Netherlands In April 2001, the Netherlands Parliament passed the Termination of Life on Request and Assisted Suicide (Review Procedures) Act which permits both euthanasia and assisted suicide. The law came into force on 1 April 2002.

Euthanasia and assisted suicide are legal only if the criteria set out in the Dutch Act are fully observed. Only then is the physician concerned immune from criminal prosecution. Euthanasia is performed by the attending physician administering a fatal dose of a suitable drug to the patient on his or her express request. The relevant Dutch legislation also covers physician-assisted suicide (where the physician supplies the drug but the patient administers it).112

Minors may themselves request euthanasia from the age of 12, although the consent of the parents or guardian is mandatory until they reach the age of 16. Sixteen and seventeen-year-olds do not need parental consent in principle, but their parents must be involved in the decision-making process. From the age of 18, young people have the right to request euthanasia without parental involvement.113

Belgium Belgium has the world’s most liberal law on physician-assisted suicide, which is not just for the terminally ill. Patients with psychiatric conditions, including unbearable psychological suffering, depression and dementia can request euthanasia.

The Belgian Act legalising euthanasia for competent adults and emancipated minors came into effect in September 2002.114 On 13 February 2014, Belgium extended the law to allow legalised euthanasia by lethal injection for children. Young children are allowed to end their lives with the help of a doctor in the world’s most radical extension of a euthanasia law.115 There have been recent media reports of children as young as nine who were suffering from terminal illnesses being euthanised under this law.116

Physician-assisted suicide Physician-assisted suicide is legal in Switzerland and in the US states of Washington, Oregon, Colorado, Hawaii, Vermont, Washington DC and California.

Oregon Oregon was the first jurisdiction to pass physician-assisted suicide laws. Oregon’s Death with Dignity Act (DWDA), enacted in late 1997, allows terminally‐ill adult Oregonians to obtain and use prescriptions from their physicians for self‐administered, lethal doses of medications.117

Washington State The Washington State Death with Dignity Act was passed by voter initiative on 4 November 2008, and became law on 5 March 2009. The law allows terminally ill adults seeking to end their lives in a humane and dignified manner to request lethal doses of medication from medical and

112. Netherlands Ministry of Health, Welfare and Sport, ‘Euthanasia’ webpage. 113. Ibid. 114. The Belgian Act on Euthanasia of May, 28th 2002. 115. B Miller, ‘Euthanasia law: Belgium passes legislation giving terminally ill children right to die’, ABC News website,

14 February 2014. 116. H Samuel, ‘Belgium authorised euthanasia of a terminally ill nine and 11-year-old in youngest cases worldwide’, The Telegraph (UK), 7 August 2018. 117. Oregon Health Authority, ‘Death with Dignity Act’, webpage.

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osteopathic physicians. These terminally ill patients must be Washington residents who have an estimated six months or less to live.118

Switzerland Swiss law only allows physician-assisted suicide and not euthanasia. Switzerland’s tolerance of assisted death arises from a very old penal code provision that punishes suicide assistance only if it is done for ‘selfish’ reasons (Criminal Code, Article 115). Thus if it is done for ‘unselfish’ reasons, assisted suicide is not a punishable offence. That provision has allowed the practice of assisted suicide to be developed by Swiss right-to-die organisations and furthermore does not technically restrict the practice to physicians nor impose any requirement that a particular illness or medical condition be present in the requesting individual. However, the practice and scope of assisted suicide by Swiss right-to-die organisations is constrained and regulated through, among other things, internal guidelines of right-to-die organisations, formal agreements between organisations and local governments, and the standardised use of lethal barbiturates, which, pursuant to Swiss narcotics laws, requires a medical prescription, thus triggering physician involvement.119

Participation by nonresidents of Switzerland, particularly by those without terminal illness, has prompted much international criticism of the Swiss scheme and in turn provoked heated debate and consideration by the Swiss state, either to ban organised assisted suicide altogether or to better regulate the practices of Swiss right-to-die organisations.120

Arguments for and against voluntary euthanasia It is beyond the scope of this Bills digest to provide a full discussion of arguments for and against voluntary euthanasia.121 However, some of the key arguments in this debate are summarised below.

Key arguments in favour of voluntary euthanasia Key arguments in favour of voluntary euthanasia include:

• it is a matter of individual rights, autonomy and choice

• it is the compassionate and merciful answer to insoluble pain, suffering and indignity in the case of terminal illness

• it is merely regulating what in reality is already common practice, particularly now that Australians have resorted to travelling overseas to obtain euthanasia

• opinion polls show that the overwhelming majority of Australians support voluntary euthanasia and

• several overseas jurisdictions (such as Switzerland, Belgium, the Netherlands and Oregon) have legalised voluntary euthanasia.122

118. Washington State Department of Health, ‘Death with Dignity Act’, webpage. 119. MJ Shariff, Assisted death and the slippery slope—finding clarity amid advocacy, convergence, and complexity, Current Oncology, 19(3), 2012. 120. Ibid. 121. For more discussion of these arguments see, for example, M Best, ‘Assisted dying laws: is suffering still the main problem?’

Case News, 49, 2017, pp. 8-13; L Bartels and M Otlowski, ‘A right to die? Euthanasia and the law in Australia’, Journal of Law and Medicine, 17(4), 2010, pp. 532-555; I Ireland, Choice, quality of life and self-control: summary arguments in support of euthanasia, Research note, 12, 1996-97, Department of the Parliamentary Library, Canberra, 1 November 1996; I Ireland, The sanctity of life: summary arguments opposing euthanasia, Research note, 13, 1996-97, Department of the Parliamentary Library, Canberra, 1 November 1996. 122. Senate Standing Committee on Legal and Constitutional Affairs, Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008,

The Senate, June 2008, p. 34.

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Key arguments against voluntary euthanasia Key arguments against voluntary euthanasia include:

• the availability of quality palliative care for people with terminal illnesses

• the problem of adequate safeguards and the possibility that it would lead to a ‘slippery slope’— for example, acceptance of voluntary euthanasia would lead to involuntary euthanasia and/or euthanasia for lesser diseases and conditions

• the potential for erosion of the doctor-patient relationship

• that it places pressure on people to end their lives even if they are not ready, for example, to reduce the burden on their family or the health system

• the sanctity of human life and

• in the case of the NT legislation, the particular impact on the Indigenous community.123

Key provisions

Objects of the Bill Clause 3 lists four specific objects of the Bill, which correspond to the central aims of the proposed legislation. The objects of the Bill are:

• to reduce Commonwealth interference with the laws of the ACT and the NT

• to facilitate competitive federalism in law-making

• to recognise the right of the ACT and the NT to legislate for assisted suicide in their jurisdictions and

• to repeal the Euthanasia Laws Act 1997 (which is stated to be inimical to the other three objects).

In addition to relating to the specific operative provisions of the Bill, the first three objects also provide broader policy justifications for the introduction of the Bill itself. These objects could also be relied upon in the event of any uncertainty regarding the operation or interpretation of any provision in the Bill.

The first and third objects are a clear reference to the rights of territories and highlight that the key policy objective of the Bill is to allow territories to legislate on the subject of euthanasia without interference from the Commonwealth Parliament. The issue of territory rights is discussed further in the ‘Key issues’ section above.

The second object, relating to facilitating competitive federalism in law-making, is broader than the other objects. This object seems to reflect a more aspirational purpose of the Bill and potentially envisages different jurisdictions of the Commonwealth legalising euthanasia under different regulatory frameworks. The ‘Outline’ section in the Explanatory Memorandum to the Bill describes this object:

Second, it [the Bill] will encourage competitive federalism - the process whereby each state enacts laws in competition with the others - thereby refining and improving law-making. 124

The Liberal Democrats, Senator Leyonhjelm’s political party, has a published policy on ‘competitive federalism’, which provides:

123. Ibid., p. 42. 124. Explanatory Memorandum, Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015, p. 1.

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Where possible, government activities should be decentralised to the State level to allow the benefits of governmental competition, policy experimentation and individual choice. This will also allow the removal of bureaucratic duplication of federal and state agencies. 125

The Liberal Democrats list the following specific policies under the heading of ‘competitive federalism’:

• supporting competitive federalism as it was intended by the founders of the Constitution

• encouraging competition between the states in the pursuit of economic growth and development

• seeking to remove the Commonwealth government from areas in which its powers are reliant on having signed international treaties

• ceasing all Commonwealth involvement in health and education and

• restoring to the states the power to impose income taxes and other taxes currently reserved to the Commonwealth (within the context of a substantially reduced overall tax burden).126

These comments and policies seem to suggest that the Bill may contribute to the goal of states and territories implementing different regulatory frameworks to legalise euthanasia, with the accompanying opportunity to improve their own framework based on results and initiatives in other jurisdictions. The Bill could also be seen as providing jurisdictions the ability to compete for ‘euthanasia tourism’ in the pursuit of economic growth, by providing the most favourable legislative framework.127 The term ‘competitive federalism’ is not defined in the Bill itself.

Amendments to self-government Acts Part 1 of Schedule 1 of the Bill makes amendments to the relevant self-government Acts of the ACT and the NT in order to remove the prohibition that currently prevents these jurisdictions from making laws in relation to euthanasia. Specifically, Part 1 of Schedule 1 makes the following amendments:

• item 1 repeals subsections 23(1A) and 23(1B) from the Australian Capital Territory (Self-Government) Act 1988 and

• item 2 repeals section 50A from the Northern Territory (Self-Government) Act 1978.

Repeal of prohibition on making euthanasia laws Subsection 23(1A) of the Australian Capital Territory (Self-Government) Act and subsection 50A(1) of the Northern Territory (Self-Government) Act are fundamentally similar in language. Both provisions stipulate that the relevant Legislative Assembly of that jurisdiction has no power to make laws permitting or having the effect of permitting (whether subject to conditions or not) the intentional killing of another called euthanasia (including mercy killing) or the assisting of a person to terminate his or her life.

The repeal of these subsections by items 1 and 2 of Schedule 1 will mean that these jurisdictions will no longer be prevented from making laws relating to euthanasia or assisted dying. With the passage of the Bill, the ACT and the NT will likely be able to rely on their broad power to make laws for the peace, order and good government of their jurisdiction (conferred by section 22 of the

125. Liberal Democrats, ‘Competitive Federalism’, Liberal Democrats website. 126. Ibid. 127. The Victorian euthanasia legislation, the Voluntary Assisted Dying Act 2017, seeks to protect against such tourism by requiring a person to be a resident in Victoria for at least 12 months in order to be eligible to access voluntary assisted dying (section 9).

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Australian Capital Territory (Self-Government) Act and section 6 of the Northern Territory (Self-Government) Act) in order to legislate with respect to euthanasia.

Repeal of provisions that limit the current prohibition on euthanasia laws Items 1 and 2 of Schedule 1 also repeal subsection 23(1B) from the Australian Capital Territory (Self-Government) Act and subsection 50A(2) from the Northern Territory (Self-Government) Act respectively. Both these subsections are similarly worded and essentially clarify that these territories, despite the prohibition on legislating with regards to euthanasia, have the power to make laws in relation to the following areas:

• the withdrawal or withholding of medical or surgical measures for prolonging the life of a patient (but not so as to permit the intentional killing of the patient)

• medical treatment in the provision of palliative care to a dying patient (but not so as to permit the intentional killing of the patient)

• the appointment of an agent by a patient who is authorised to make decisions about the withdrawal or withholding of treatment and

• the repealing of legal sanctions against attempted suicide.

The Explanatory Memorandum to the Euthanasia Laws Bill 1996 noted that the provisions at subsections 23(1B) and 50A(2) have the effect of limiting the exclusion of euthanasia related laws from the territories’ power to legislate and confirm the power of the respective Legislative Assemblies to make laws in relation to the specified areas.128 This seems to highlight that these provisions in their respective Acts do not confer additional powers, but simply operate to clarify that these powers are not affected by the prohibition on making euthanasia laws in their preceding subsections.

The power to make laws for the peace, order and good government of their jurisdiction will likely still enable the ACT and the NT to make laws in these areas after subsections 23(1B) and 50A(2) are repealed. In addition, the passage of the Territories Self-Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 means that the Commonwealth Government cannot disallow or recommend amendments to NT and ACT laws.

Repeal of the Euthanasia Laws Act 1997

Part 2 of Schedule 1 of the Bill repeals the Euthanasia Laws Act 1997. Item 3 of Schedule 1 stipulates that the whole of this Act is repealed. As discussed earlier in this Digest, the Euthanasia Laws Act implemented amendments to the relevant self-government Acts of the ACT, the NT and Norfolk Island to prohibit the passing of laws related to euthanasia. This Act also contained an application provision at item 2 of Schedule 1, relating to the legal status of the NT’s euthanasia legislation. With the insertion of application provisions in Part 3 of Schedule 1 of the Bill clarifying the operation of the NT legislation (see below), the Euthanasia Laws Act can be repealed.

The repeal of the Bill can also be seen as a clear step in fulfilling the Bill’s objects of recognising the rights of territories to make laws free from Commonwealth interference. As discussed above, the ‘Objects’ section at clause 3 of the Bill explicitly states that the enactment of the Euthanasia Laws Act was ‘inimical’ to the other purposes of the Bill.

128. Explanatory Memorandum, Euthanasia Laws Bill 1996, pp. 3-4.

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Status of the Rights of the Terminally Ill Act Part 3 of Schedule 1 inserts an application provision at item 4 of Schedule 1 to clarify the status of the NT euthanasia legislation, the Rights of the Terminally Ill Act.

The Euthanasia Laws Act, which removed power from the NT, the ACT and Norfolk Island legislatures to make euthanasia laws, commenced on 27 March 1997. Subitem 4(1) of the Bill provides that the Rights of the Terminally Ill Act continues to have effect as a law of the NT in relation to any act or thing done before 27 March 1997, but has no effect as law in relation to acts done on or after that day. Subitem 4(1) effectively replicates the application provision at item 2 of Schedule 1 of the Euthanasia Laws Act.

Subitem 4(2) of Schedule 1 of the Bill provides that subitem 4(1) applies subject to a contrary intention in a Northern Territory law enacted after the Bill commences. The effect of item 4 is that the previous NT legislation would not automatically come back into force, and the NT Legislative Assembly would need to pass a new piece of legislation to legalise euthanasia in that jurisdiction.

This clause aligns with the objects of the Bill by providing the NT the right to legalise euthanasia but only if that is the wish of the NT legislature. It does not compel the NT to re-legislate its previous euthanasia laws, as this would be contrary to the Bill’s objectives centred on territory rights.

Senator Leyonhjelm highlighted the rationale of these application provisions in his second reading speech accompanying the Bill:

Because it isn't desirable to bring the Rights of the Terminally Ill Act (NT) 'back from the dead', this Bill also ensures it remains inoperative. Should my Bill be passed, the Northern Territory Parliament will have to revisit the issue. Given that the Rights of the Terminally Ill Act (NT) was enacted 20 years ago, this is probably the best way forward - it is highly likely the Northern Territory Parliament will be able to enact an improved law.

129

129. D Leyonhjelm, ‘Second reading speech: Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015’, Senate, Debates, 2 December 2015, p. 9674.

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