|
|||
|
|||
|
 |
|
| This Research Note should be read in conjunction with Research Note No 32, March 1997, Constitutional Arguments In Favour of Removing the Territories' Power to Make Laws Permitting Euthanasia, which outlines six main arguments in favour of the Federal Parliament taking away part of the legislative powers of the Territories by passing the Andrews Bill. |
Introduction
The Euthanasia Laws Bill 1996 was introduced into the House of Representatives on 9 September 1996 as a Private Member's Bill by Kevin Andrews. It passed the House on 9 December 1996 by a vote of 88 to 35. This Bill-the Andrews Bill-is currently being considered by the Senate Legal and Constitutional Legislation Committee which is due to report on 5 March 1997. Debate in the Senate on the Andrews Bill is scheduled to begin on 18 March 1997.
The Andrews Bill seeks to take away the power of the legislative assemblies of the Northern Territory, the Australian Capital Territory and Norfolk Island to make laws:
If the Andrews Bill is passed by the Senate, one effect of its passage will be to overturn the Northern Territory's euthanasia law-the Rights of the Terminally Ill Act 1995 (NT) [RTI Act].
The Andrews Bill may also impact on the Territories' powers to pass other kinds of laws. These laws may include: "refusal of medical treatment" legislation of the kind that already exists in the Northern Territory and in the Australian Capital Territory; and legislation that clarifies the legal position of a doctor who administers palliative care that hastens a patient's death. These questions are beyond the scope of this Research Note.
Section 122 of the Australian Constitution confers a power on the Commonwealth to make laws for the government of any Territory. This is a plenary power, unlimited by subject matter. The Federal Parliament therefore clearly has the constitutional power to enact a law that has the effect of overturning the RTI Act. There may be some doubt, however, as to whether the way in which the Andrews Bill seeks to bring about this result is within the scope of the Commonwealth's powers under section 122.
The main constitutional issues raised by the Andrews Bill are, however, political rather than legal. The central question is whether or not it is acceptable politically for the Commonwealth to take back part of the legislative powers it conferred on these Territories at self-government. This research note outlines six main arguments against the Federal Parliament taking away part of the legislative powers of these Territories by passing the Andrews Bill.
Argument 1
It is inappropriate for the Federal Parliament to single out the Territories in the manner that the Andrews Bill seeks to do. Passage of the Andrews Bill would send a message to those Australians who reside in Territories that they are in some way second-class citizens within the Commonwealth. It would send the message that the Federal Parliament considers that, unlike State parliaments, the democratically elected legislatures of the Territories cannot be trusted to make laws responsibly and appropriately. In effect, the Federal Parliament would be stating that the Territories are governed by second-class legislators.
Argument 2
Although the Federal Parliament does technically have the power under section 122 of the Australian Constitution to remove some (or all) of the legislative powers it has granted to the self-governing Territories, the Federal Parliament has to date never exercised this power in this way. A political convention has developed against taking back powers granted to subordinate legislatures. Although this convention is not legally enforceable it should inhibit the Federal Parliament from passing legislation that removes any of the legislative powers conferred on any of the Territories at self-government.
An analogy can be drawn with the convention that formerly inhibited the Imperial (British) Parliament from exercising its powers to overturn the laws passed by the Australian Federal and State Parliaments. Until 1942(1) and 1986 respectively these Australian Parliaments technically were subordinate to the Imperial Parliament, which could at any time have acted to overturn laws passed by these self-governing colonies. The Imperial Parliament did not interfere with the lawmaking of these self-governing entities, and indeed clearly rejected the option of doing so.(2) The Federal (Australian) Parliament now should exercise similar restraint and decline to interfere with the lawmaking of its self-governing Territories.
Argument 3
Undertakings have been given to confer full Statehood on the Northern Territory. Passage of the Andrews Bill would create problems in the lead-up to Northern Territory Statehood. Removing powers that have already been granted at self-government could seriously impede the progress of the Northern Territory towards Statehood. Further, passage of the Andrews Bill would introduce doubts as to whether any future grant of Statehood would give the Northern Territory the full range of legislative and executive powers enjoyed by the existing States. If the Andrews Bill's removal of legislative powers over euthanasia survived the grant of Statehood, the Northern Territory would still be treated as a second-class jurisdiction compared with the other Australian States. If the conferral of Statehood restored the Northern Territory's powers to make laws about euthanasia, there is little point in passing the Andrews Bill as it can only be of transitional effect.
Argument 4
Euthanasia is undeniably a morally controversial issue of national significance. So are issues such as prostitution, X-rated videos, pornography, abortion, fertility treatment and the use of certain drugs. Removing the Territories' power to make laws permitting euthanasia would set a dangerous precedent. It would make the Federal Parliament more likely to take steps to remove the Territories' lawmaking powers in relation to these other politically contentious issues. Even if the Federal Parliament did not go on to do this, the ad hoc basis on which it is contemplating removing the Territories' powers to make laws permitting euthanasia threatens the certainty that should exist for Territory citizens when their elected representatives pass a valid law. The Federal Parliament should not embark on this slippery slope towards extreme, unpredictable and inappropriate interference with lawmaking in the Territories.
Argument 5
The Northern Territory (Self-Government) Act 1978 (Cth) contains a mechanism for invalidating legislation passed by the Northern Territory Legislative Assembly that the Commonwealth considers inappropriate. Section 9 of this self-government legislation specifically states that the Governor-General may disallow legislation passed by the Northern Territory Legislative Assembly, in part or in its entirety, within six months of the Administrator's assent to the legislation. Alternatively, the Governor-General can recommend amendments to the legislation. Disallowance by the Governor-General repeals the legislation. The Governor-General did not use this mechanism to disallow the RTI Act within six months of the Administrator's assent to it, which occurred on 16 June 1995. The Commonwealth therefore did not take the opportunity to use the appropriate mechanism to repeal the RTI Act. It should not now use the inappropriate mechanism of the Andrews Bill to do so.
Argument 6
It is far from clear that the Federal Parliament lacks the constitutional power to pass a national law prohibiting (or indeed permitting) euthanasia. The Federal Parliament could explore the possibility of using some or all of the following heads of power to enact a national euthanasia law: the corporations power, the implied nationhood power, the appropriations power, and/or the external affairs power. Enacting a national law would be a more appropriate way of achieving the prohibition on euthanasia sought by supporters of the Andrews Bill. It would also be a more appropriate way of addressing their stated concerns about human rights and Australia's international reputation.
More Information
The following sources of additional information may be useful:
Senate Proof Committee Hansard, Senate Legal and Constitutional Legislation Committee (Reference: Euthanasia Laws Bill 1996): 24 January 1997 (Darwin Hearings-see particularly evidence given by Northern Territory Government); and 13-14 February 1997 (Canberra Hearings-see particularly evidence given by Mr Chips Mackinolty; Australian Capital Territory Government; Commonwealth Attorney-General's Department; Mr George Williams; Fr Frank Brennan).
Senate Standing Committee for the Scrutiny of Bills, Alert Digest, No 7 of 1996, 18 September 1996.
J. Norberry and N. Cica, Euthanasia Laws Bill 1996, Bills Digest No 45 1996-97, Department of the Parliamentary Library, 1996.
Endnotes
