With the federal ban on territory laws authorising euthanasia, separating the policy issue of state-enabled dying from the constitutional issue of territory power is like separating a lamington from its coconut. The two are inextricable.
Of course, the real motivation behind the current debate is the fashionable policy issue of euthanasia. Otherwise, the rhetoric about "territory rights" would have stayed in its dusty, 25-year-old filing box.
But let's play along. You may not be able to separate the two issues, but you can place them in some sensible order.
The first is about constitutional power. The issue of euthanasia has provoked much chest-thumping about "territory rights".
There is no such thing.
Under the Australian constitution, there are two types of constitutional entity. One is the Commonwealth, the other the states. They each have rights and powers.
But a territory is a mere creation of the Commonwealth. The feds have full power under section 122 of the constitution to make any law they like for any territory.
The only thing special about the Australian Capital Territory is that it contains the national capital. But under the constitution, it really is no different to a very big, rather unusual local government. Sorry.
Consequently, if the Federal Parliament commanded all Canberrans to wear top hats on Thursdays, that would be constitutionally fine (and possibly fun).
And before we get huffy about it, remember the territories power has been used for all sorts of purposes beloved by Canberrans, like establishing the Australian National University.
The only way to confine this power would be a complicated constitutional amendment, which would need to be passed at a referendum by a majority of Australians, in a majority of states.
My guess would be the rest of Australia would have little interest in increasing the powers of a territory they see (wrongly) as a nest of public servants and rent-seekers.
The second issue could be called "legislative ethics". When you are a member of a legislature that has power over somewhere, you have an ethical responsibility to ensure that at least truly atrocious laws are not applied.
The principle is universal. If I am a member of the ACT Assembly, I must try to prevent laws contrary to social justice and human dignity.
As demonstrated, Australia's national parliament has ultimate legislative authority over the ACT, and other territories.
Consequently, every member of the Federal Parliament has genuine moral responsibility for the laws applicable in a territory.
To take an extreme hypothetical, if the ACT allowed flogging under its criminal law, I would expect the members of the national parliament to overrule it.
So, it merely is a question of how atrocious a territory law is. In 1995, the Federal Parliament thought the Northern Territory's regime for euthanasia was just such a law, and banned it from all territories.
Which means it all comes down to the third issue, which is the nature of the policy concerned. Is euthanasia a terrific idea, or one so awful that a federal parliamentarian of conscience is bound to attempt its suppression in a federal territory?
The pro-euthanasia movement is surrounded by a lot of propaganda. One bit of it is that this is a debate about "dying with dignity", as opposed to being killed cleanly. Another, in the Canberra context, is that the ACT will fall behind other Australian jurisdictions if it does not cave in.
Furphy. True, Victoria, Western Australia, South Australia and Tasmania have euthanasia. But NSW and Queensland are merely debating it. Anyway, fashion is never a good reason to do something wrong.
The really useful thing would be to invest huge sums into palliative care, to ensure no one felt they had to choose between life and death. But this is expensive, hard work, and does not grab headlines.
At the end of day, the "killer" argument against euthanasia laws is not religious or philosophical. It is practical and ethical.
It is simply impossible to design a euthanasia regime that will not involve people being killed without their consent.
Take two scenarios.
The first is aged abuse. We have all seen this with family assets. "You don't need the house, Aunty Mary." "Why not let us have the cash now, Mum, when we need it?" "The aged care home is lovely, Dad."
Anyone who thinks such tactics will not be used to pressure the old, the lonely and the sick to take the "easy" way out is naive.
The second scenario is where a person cannot consent, because they are mentally incapable, unconscious or otherwise legally incompetent. In every area of law, from wills to motor accident claims, provisions inevitably develop allowing consent by a third party "in the interests" of the person concerned.
Death by delegation.
Enthusiasts should have a look at where euthanasia is legal: Victoria, Belgium, the Netherlands. Everywhere it is enacted the number of deaths is far higher than predicted, and in places like Belgium there are numerous cases where the required consent procedures have not been followed.
And as a final kicker, there is Covid. At a time when our aged community has never been more vulnerable, do we really want to send a message that they should consider whether they are dispensable?
Euthanasia is a rotten law. Whoever has the power to stop it, should.
- Emeritus Professor Greg Craven is a constitutional lawyer and a former vice-chancellor of the Australian Catholic University.