Bills Digest No. 5, 2022–23
PDF version [361 KB]
Leah Ferris
Law & Bills Digest Section
3 August 2022
Key points
- The Bill proposes to remove the restrictions currently preventing the Australian Capital Territory and Northern Territory from passing legislation which would allow for voluntary assisted dying (VAD).
- These restrictions were introduced in 1997 through the passage of a private member’s Bill introduced by Mr Kevin Andrews MP.
- There have been a number of attempts by parliamentarians to remove these restrictions in previous Parliaments.
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Contents
Purpose of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key provisions
Date introduced: 1
August 2022
House: House of
Representatives
Portfolio: Private
Member's Bill
Commencement: 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 2022.
Purpose of
the Bill[1]
The purpose of the Restoring
Territory Rights Bill 2022 is to amend the Australian Capital
Territory (Self-Government) Act 1988 and the Northern Territory
(Self-Government) Act 1978 to remove the provisions currently
preventing the territories from passing legislation which would allow for
voluntary assisted dying (VAD).[2]
The Bill would not legalise VAD in either of the
territories but rather would allow the Legislative Assemblies of the Australian
Capital Territory and the Northern Territory to pass laws allowing for VAD. This
digest therefore does not focus on the broader policy issues with respect to
VAD, however a summary of these was set out in the Senate Standing Committee on
Legal and Constitutional Affairs’ report into the Rights of the Terminally Ill
(Euthanasia Laws Repeal) Bill 2008.[3]
Background
Power of
the Commonwealth to legislate for the territories
Section 122 of the Constitution
provides that the Commonwealth has a plenary power to legislate for the
territories.[4]
The Commonwealth, however, has enacted self-government
Acts for the Northern Territory (Northern Territory
(Self-Government) Act 1978), the Australian Capital Territory (Australian Capital
Territory (Self-Government) Act 1988) and Norfolk Island (Norfolk Island Act
1979).
Both the Australian Capital Territory (Self-Government)
Act and
the Northern
Territory (Self‑Government) Act provide these jurisdictions with a
general legislative power. Subsection 22(1) of the Australian Capital
Territory (Self-Government) Act, for example, stipulates that the ACT
Legislative Assembly ‘has power to make laws for the peace, order and good
government of the Territory’. Similarly, section 6 of the Northern Territory
(Self-Government) Act provides that the NT Legislative Assembly has power
‘to make laws for the peace, order and good government of the Territory’.
While both jurisdictions retain general legislative
powers, where laws are inconsistent with the Commonwealth, then the latter will
prevail.[5]
Following the commencement of the Norfolk Island
Legislation Amendment Act 2015 the default body of law on Norfolk
Island is New South Wales applied law (including as amended, suspended or
repealed by legislative instrument of the Governor-General under the Norfolk
Island Act).
Enactment
of the Euthanasia Laws Act 1997
On 25 May 1995, the Northern Territory Legislative
Assembly passed the Rights
of the Terminally Ill Act 1995 (NT).
In late June 1996, Mr Kevin Andrews MP announced his
intention to introduce a private member’s Bill to amend the Northern
Territory (Self-Government) Act which would have the effect of overriding
the Rights of the Terminally Ill Act 1995 (NT).[6]
On 9 September 1996, Mr Andrews introduced the Euthanasia
Laws Bill 1996 to the House of Representatives.[7]
As described in the Explanatory
Memorandum, the purpose of the Bill was:
… to provide that the Northern Territory Legislative
Assembly, the Australian Capital Territory Legislative Assembly, and the
Norfolk Island Legislative Assembly do not have the power to make laws which
would permit that form of intentional killing of another called euthanasia
(which includes mercy-killing) or the assisting of another person to terminate
his or her own life.[8]
Specifically, the Bill proposed to amend the Australian
Capital Territory (Self-Government) Act, the Northern
Territory (Self-Government) Act, and the Norfolk Island Act to
insert provisions which would prevent the territories from passing legislation
which would allow for euthanasia.[9]
On 9 December 1996, the House of Representatives agreed to
the Bill with amendments. A free
(conscience) vote on the Bill was taken and the final vote in the House of
Representatives was 88 ayes to 35 noes.[10]
On 24 March 1997, a free vote in the Senate was taken with a vote of
38 ayes to 33 noes. The Bill received the Royal Assent and came into force
on 27 March 1997 as the Euthanasia Laws
Act 1997.
Previous
attempts to restore the territories’ ability to legislate
There appear to have been nine Bills subsequently introduced
in the Commonwealth Parliament with the intention of granting one or both of
the territories the ability to pass laws relating to VAD:
All nine of these Bills were private senator’s or member’s
Bills. Only one of the eight Bills was put to a vote at any stage of its
consideration—Senator Leyonhjelm’s Restoring Territory Rights (Assisted Suicide
Legislation) Bill 2015 was defeated in a division on the second reading motion.[11]
The remaining Bills either lapsed or were discharged from the Notice Paper
without being the subject of any divisions.
The majority of these Bills sought to repeal the Euthanasia
Laws Act and restore the ability of the territories to legislate on this
issue; however, there were some variations over time in the details of how this
result was to be achieved. The first Bill, introduced by Senator Lyn Allison (Australian
Democrats) in 2004, simply sought to repeal the Euthanasia Laws Act and
stated that the Northern Territory legislation overridden by the Euthanasia
Laws Act—the Rights of the Terminally Ill Act 1995 (NT)—would
be revived.
This approach was repeated in Senator Bob Brown’s (Australian
Greens) Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, but
not for his Restoring Territory Rights (Voluntary Euthanasia Legislation) Bill
2008. The latter Bill sought to both repeal the Euthanasia Laws Act
itself and amend the Northern Territory (Self-Government) Act and the Australian
Capital Territory (Self-Government) Act to repeal provisions inserted by
the Euthanasia Laws Act. It also no longer sought to revive the Rights
of the Terminally Ill Act 1995 (NT). Senator Brown’s second reading speech
indicated that the Restoring Territory Rights (Voluntary Euthanasia
Legislation) Bill 2008 was amended in line with comments made by the Senate Standing
Committee on Legal and Constitutional Affairs with respect to the Rights of the
Terminally Ill (Euthanasia Laws Repeal) Bill 2008 (particularly the provisions
which sought to revive the Rights of the Terminally Ill Act 1995 (NT)).[12]
This approach was then followed in the subsequent Bills,
with only minor drafting variations between them, except for the Ensuring
Northern Territory Rights Bill 2021 introduced by Senator Sam McMahon (Country
Liberal Party) which sought to expand the right of the Northern Territory to
legislate on a number of issues.[13]
The only Bill that
has been introduced that has sought to restore the territories’ ability to
legislate with respect to VAD without repealing the Euthanasia Laws Act
was the Restoring Territory Rights Bill 2018 introduced by Mr Andrew
Leigh MP (ALP) and Mr Luke Gosling MP (ALP) on 20 August 2018.
Recent reforms
by state governments relating to VAD
Since the Euthanasia Laws Act was passed by the
Commonwealth Parliament in 1997, all of the states have passed laws allowing
for VAD (see table 1 for further information). Currently only Victoria
and Western Australia have currently operational schemes for VAD, with the
remaining states still in the process of implementing VAD schemes.
Table 1: List of jurisdictions which have passed
legislation allowing for VAD
As the Bill will not introduce VAD schemes in either the
Australian Capital Territory or Northern Territory, this digest does not consider
the broader issues arising out of legislating for VAD. As part of the
Queensland Government’s development of the Voluntary Assisted Dying Bill 2021
(Qld), the Queensland Law Reform Commission (QLRC) undertook an in-depth
inquiry into the development and operation of VAD laws, including those in
operation in other states at the time of the inquiry.[14]
The QLRC report provides a detailed overview of the various issues.[15]
Committee
consideration
At the time of writing, the Bill has not been referred to
any Committees.
Senate
Standing Committee for the Scrutiny of Bills
The Committee has not reported on the Bill at the time of
writing.
Policy
position of non-government parties/independents
Both the Australian Labor Party (ALP) and the Liberal
Party of Australia have allowed their members to vote on the Bill according to
their own judgment, rather than requiring them to vote in accordance with party
policy (known as a free vote or a conscience vote).[16]
The Bill passed the House of Representatives on 3 August 2022 (99 ayes, 37
noes).
The Australian Greens health spokesperson, Senator Jordon
Steele-John, has said the Greens would back ‘dying with dignity legislation
that has strong, effective safeguards’.[17]
The Guardian has also reported that Senator Jacqui
Lambie and Senator Tammy Tyrrell of the Jacqui Lambie Network, One Nation’s Senator
Pauline Hanson and Senator Malcolm Roberts and Senator Babet of the United
Australia Party would support the Bill.[18]
Senator David Pocock has also indicated his support for
granting the territories the right to legislate with respect to VAD and had
previously stated he planned to introduce his own Bill on this issue.[19]
Position of
major interest groups
Go Gentle Australia, a voluntary assisted dying advocacy
organisation, have announced its support for the Bill:
There is absolutely no justification for treating
territorians as second-class citizens. Now that all six Australian states have
passed voluntary assisted dying laws to give dying people a choice over the
timing and circumstances of their death, we hope the federal parliament will
act quickly to allow the territories the same right.[20]
In its submission to the Legal and Constitutional Affairs
Legislation Committee’s inquiry into the Ensuring Northern Territory Rights
Bill 2021, the ACT Government argued strongly for the right of the ACT
Legislative Assembly to pass laws to allow for VAD:
Regardless of any personal views on voluntary assisted dying,
there should not be any controversy in allowing the ACT and NT to decide for
themselves whether to introduce such legislation and to allow citizens of the
ACT and NT an opportunity to legislate on this matter on the same terms as
other jurisdictions if their communities desire. This would resolve an
inequitable situation persisting in Australia and be consistent with
Australia’s international human rights obligations.[21]
Right to Life Australia opposed the provisions in the
Ensuring Northern Territory Rights Bill 2021 that would have allowed the
Northern Territory Legislative Assembly to pass laws to allow for VAD ‘on the
basis that this undermines protections afforded to vulnerable citizens,
especially indigenous persons’.[22]
HOPE: Preventing Euthanasia and Assisted Suicide, a
coalition of groups and individuals who oppose the legalisation of euthanasia
and assisted suicide, argued that the legalisation of euthanasia in the
Northern Territory ‘could adversely affect the willingness of Indigenous people
to access appropriate health care’ and ‘would be irresponsible while Aboriginal
and Torres Strait Islander Australians still lack access to basic palliative
care services’.[23]
Financial
implications
The Explanatory Memorandum states that the Bill will have
no financial impact.[24]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, Mr Gosling and Ms Payne assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act.[25]
They consider the Bill is compatible with human rights as
it ‘does not raise any human rights issues and advances the democratic rights
of citizens of the Northern Territory and Australian Capital Territory’.[26]
Parliamentary
Joint Committee on Human Rights
The Committee has not reported on the Bill at the time of
writing.
Key
provisions
The Bill contains 1 Schedule.
Item 1 would amend the Australian Capital
Territory (Self-Government) Act to repeal subsections 23(1A) and (1B)
(which were the provisions inserted by the Euthanasia Laws Act) and
remove the restrictions on the ability of the Australian Capital Territory
Legislative Assembly to pass laws with respect to VAD.
Item 2 would amend the Northern Territory (Self
Government) Act to repeal section 50A (which was the provision inserted by
the Euthanasia Laws Act) and remove the restrictions on the ability of
the Northern Territory Legislative Assembly to pass laws with respect to VAD.
[1]. The
author would like to acknowledge the work previously done by Catherine Lorimer
on this issue which has significantly contributed to this digest.
[2]. Voluntary
assisted dying refers to the administration of a prescribed substance, either
by self-administration or by a registered and suitably qualified health
practitioner, with the purpose of bringing about the person’s death.
[3]. Senate
Standing Committee on Legal and Constitutional Affairs, Rights
of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, (Canberra: The Senate, June 2008), 33–60.
[4]. Commonwealth of
Australia Constitution Act, section 122.
[5]. See,
for example, Coca-Cola Amatil (Aust) Pty Ltd v Northern Territory of
Australia [2013] FCA 154.
[6]. See
‘Notices’,
House of Representatives, Debates, 26 June 1996, 2911; MP
fights to stop death law, West Australian, 27 June 1996; Editorial:
Euthanasia law should be nullified, The Australian, 29 June 1996.
[7]. Kevin
Andrews, First
reading speech: Euthanasia Laws Bill 1996, House of Representatives, Debates,
9 September 1996, 3671.
[8]. Explanatory
Memorandum, Euthanasia Laws Bill 1996. 2
[9]. The
Bills
Digest provides further information on the history of the Bill: Jennifer
Norberry and Natasha Circa, Euthanasia
Laws Bill 1996, Bills Digest, 45, 1996–97, (Canberra: Parliamentary
Library, 1996).
[10]. Australia,
House of Representatives, Euthanasia
Laws Bill 1996–Report from Main Committee, Votes and proceedings,
HVP 58, 9 December 1996, 1002.
[11]. Australia,
Senate,
Journals, 108, 2016–18, 15 August 2018, 3485–3486.
[12]. Bob
Brown, Second
Reading Speech: Restoring Territory Rights (Voluntary Euthanasia Legislation)
Bill 2008, Senate, Debates, 17 September 2008, 4983. See Senate Standing
Committee on Legal and Constitutional Affairs, Rights
of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008, (Canberra: The Senate, June 2008).
[13]. For
further information on this Bill, see Senate Legal and Constitutional Affairs
Legislation Committee, Ensuring Northern Territory Rights Bill 2021,
(Canberra: The Senate, October 2021).
[14]. ‘Development
of the Act’, Queensland Health, updated 9 June 2022.
[15]. Queensland
Law Reform Commission, A
legal framework for voluntary assisted dying, Report, 79, May 2021.
[16]. Lisa
Visentin, ‘Territory
bill puts spotlight on euthanasia’, Age, 1 August 2022; Andrew
Wallace, ‘Second
reading speech: Restoring Territory Rights Bill 2022’, House of
Representatives, Debates, 1 August 2022, 62. For further information on
free/conscience votes, see Parliamentary Library, Free
votes in the Commonwealth Parliament 1950-2021: a quick guide, Research
paper series, 2020–21, (Canberra: Parliamentary Library, 2021).
[17]. Josh
Butler, ‘Federal
Labor allows conscience vote on push to overturn ban on ACT and NT assisted
dying laws’, The Guardian, 25 July 2022.
[18]. Josh
Butler, ‘Key
senators back government proposal to empower territories to legislate on
euthanasia’, The Guardian, 5 July 2022; Josh Butler, ‘Territories
urge federal government to pass bill restoring their rights to make euthanasia
laws’, The Guardian, 11 July 2022.; Josh Butler,’ Federal
Labor allows conscience vote on push to overturn ban on ACT and NT assisted
dying laws’, The Guardian, 25 July 2022.
[19]. Lucy
Bladen, ‘Pocock
pledges territory rights bill in 'first weeks' if elected [A final hope]’, The
Canberra Times, 10 May 2022.
[20]. Josh
Butler, ‘Key
senators back government proposal to empower territories to legislate on
euthanasia’, The Guardian, 5 July 2022.
[21]. ACT
Government, Submission
to the Legal and Constitutional Affairs Legislation Committee, Inquiry into
the Ensuring Northern Territory Rights Bill 2021, [Submission 54], 10
September 2021, 2.
[22]. Right
to Life Australia, Submission
to the Legal and Constitutional Affairs Legislation Committee, Inquiry into the
Ensuring Northern Territory Rights Bill 2021, [Submission 29], undated, 2.
[23]. HOPE:
Preventing Euthanasia and Assisted Suicide, Submission
to the Legal and Constitutional Affairs Legislation Committee, Inquiry into
the Ensuring Northern Territory Rights Bill 2021, [Submission 41], 27
August 2021, 3.
[24]. Explanatory
Memorandum, Restoring Territory Rights Bill 2022, 2.
[25]. The
Statement of Compatibility with Human Rights can be found at page 4 of the Explanatory
Memorandum to the Bill.
[26]. Explanatory
Memorandum, Restoring Territory Rights Bill 2022, 4.
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