It is now nearly 23 years since the federal parliament passed the Euthanasia Laws Act 1997, a private members' bill introduced by Kevin Andrews MP (the Andrews Bill). The bill had two purposes: to override the Rights of the Terminally Ill Act 1995 (the RTI Act), a validly enacted law of the Northern Territory (NT) Legislative Assembly; and to amend the Self Government Acts of both territories so as to ensure neither Legislative Assembly could make any law on euthanasia in the future. In short, the bill sought to restore the law as it existed prior to the enactment of the RTI Act, and to keep it there permanently.
Whatever justification might have existed in 1997 for parliament negating the RTI Act, there was, in my view, no justification for simultaneously depriving the territory legislatures of any power to enact a law on euthanasia in the future. As a result of these amendments, the ACT and the NT are the only self-governing jurisdictions in Australia whose legislatures are denied the power to address one of the most pressing issues facing our ageing population.
When the NT and the ACT were granted the right to self-government, the Legislative Assembly of each territory was invested with independent, plenary (complete) power to make laws for the peace, order and good government of the territory. Subject to the Constitution and any federal laws extending to the territories, those powers were broad enough to authorise the enactment of a law on virtually any subject, including euthanasia.
As the High Court explained in Capital Duplicators v ACT (No 1) (1992): "Parliament intended (the Legislative Assembly) to have the plenary powers of legislation as large, and of the same nature as, those of Parliament itself ... a plenary power of the same quality as, for example, that enjoyed by legislatures of the States."
In his second reading speech, Mr Andrews claimed the bill was not about territory rights; it was "about passing a bill that protects the vulnerable". Territories, he asserted, "do not have rights - they have responsibilities, particularly to protect the ill and the vulnerable". This argument, of course, completely ignored the fact parliament had conferred the right to self-government on both territories, and that the main purpose of the Andrews Bill was to diminish those rights.
Mr Andrews went on to assert that the federal parliament had both the constitutional power and the responsibility to set aside an Act of the NT that affected the life and death of its citizens. It could not wash its hands of responsibility for such a law enacted by "one small territory, with the population of a suburban municipality in Melbourne or Sydney, by one vote, without any house of review and without attempting to state why a law rejected by every major enquiry in the world "(emphasis added) was proper ..."
Even if it is accepted that it was contrary to the national interest for the smallest legislature in the country to lead the way on this issue, and that this justified the intervention by the federal parliament in order to negate the RTI Act, what justification was there for taking the further step of removing any power for either legislature to pass a law on this subject in the future? This was particularly demeaning to the ACT, which had not enacted any similar law, and had done nothing to justify such treatment.
The removal of this power makes a mockery of independent self-government. It discriminates most unfairly against territory residents, treating them as second-class Australian citizens. Until such time as these amendments are reversed, the only legislature that can decide whether a law on euthanasia should be enacted for the ACT or the NT is the federal parliament (and the likelihood of that ever occurring is remote). The views of the democratically elected members of the Territory Legislative Assemblies, who are answerable to their electors for what they decide, are rendered irrelevant. This is not what independent self-government is all about.
The consequences of this unwarranted, opportunistic limitation imposed on the legislative powers of the territories are now all too apparent. Since 1997, societal and governmental attitudes towards this controversial human rights issue have changed considerably, not only in Australia, but also in other parts of the world.
First, according to a nationally representative survey undertaken in December 2018, for the COTA Federation, 84 per cent of people aged 50 or more supported voluntary assisted dying laws - with results said to be "highly consistent across all states and territories".
Second, since June 2019, the Victorian Voluntary Assisted Dying Act 2017 has been in operation. Western Australia has also enacted a Voluntary Assisted Dying Act 2019 that is due to come into operation in the middle of 2021.
Third, an End of Life (Voluntary Assisted Dying) Bill 2020 is currently under debate in the Tasmanian Parliament. In March 2020, a parliamentary committee in Queensland recommended the enactment of a VAD law for that state. On October 13, 2020, the Joint Parliamentary Committee on End of Life Choices in South Australia tabled its report in which it recommended the state should monitor and review the outcomes of the systems in Victoria and Western Australia before deciding what action to take. In NSW, the current situation is unclear. A private members' bill for a VAD law introduced in 2017 was defeated by one vote.
Fourth, in New Zealand, a VAD law was approved by referendum on October 17, and will come into effect in November, 2021. Elsewhere, VAD laws have been passed in Belgium, Luxembourg, Colombia, Canada and in numerous American states. In Holland and Switzerland, the practice is effectively legal.
Fifth, the ACT now has a population of more than 430,000, which is rapidly catching up to that of Tasmania. The population of the NT is fast approaching 250,000.
These developments remove one of the main arguments advanced by Mr Andrews for overriding the RTI Act, namely the NT should not have led the way in passing a law "rejected by every major enquiry in the world". That is no longer the case. More importantly, however, the territories now find themselves stranded in a 1990s time warp from which there is no escape unless the amendments imposed by the Andrews Bill are repealed.
There is no valid reason, in my view, why Australian citizens in the territories should be denied the same rights as the residents of the states to consider this issue for themselves. If the government is serious about the territories having the right to self-government, the 1997 amendments to the self government Acts should be repealed, so that the plenary legislative powers originally granted to each territory legislature are restored.
- Allan Hall is a former deputy president of the Commonwealth Administrative Appeals Tribunal.