Chapter 2 - Overview of the Bill
Purpose and provisions of the Bill
2.1
Clause 3 of the Bill states that the object of the Bill is:
...in recognising the rights of the people of the Australian
Capital Territory, the Northern Territory and Norfolk Island to make laws for
the peace, order and good government of their territories, including the right
to legislate for the terminally ill, to repeal the Euthanasia Laws Act 1997
which removed that right.
2.2
Schedule 1 of the Bill contains two items. The first item would repeal
the Euthanasia Laws Act 1997 (Cth) (Euthanasia Act). The second item
aims to restore the Northern Territory (NT) Rights of the Terminally Ill Act
1995 (RTI Act), stating that:
To avoid doubt, the enactment of the Legislative Assembly of the
Northern Territory called the Rights of the Terminally Ill Act 1995 has
the same effect after the commencement of this Act as it had before the
commencement of the Euthanasia Laws Act 1997.
2.3
No Explanatory Memorandum was tabled with the Bill. However, in his
second reading speech, Senator Bob Brown explained that:
This is a Bill for an Act to repeal the Euthanasia Laws Act
1997, through which the national parliament overturned the Northern
Territory Rights of the Terminally Ill Act 1995. It restores the
legitimacy of the Northern Territory legislation...[1]
2.4
Senator Brown also advanced several arguments in favour of the Bill:
Every opinion poll conducted over the last two decades has shown
that approximately three-quarters of Australians support the concept of
voluntary euthanasia...A Newspoll in February 2007 found that eighty percent
Australians believe that terminally ill people should have a right to choose a
medically assisted death.[2]
2.5
He further pointed out that:
In the decade since the Euthanasia Laws Act was introduced here,
the legal right to die with dignity has been available to the citizens of The Netherlands,
Belgium, Oregon in the United States, Israel and Albania. In Switzerland,
assisted suicide has been legal since 1918.[3]
Background to the Bill
Rights of the Terminally Ill Act
1995 (NT)
2.6
In May 1995, the NT Legislative Assembly enacted the RTI Act. The RTI
Act came into force on 1 July 1996.[4]
The Act allowed a doctor, in defined circumstances, to comply with a request
from a patient that the doctor assist the patient to end his or her own life.
The RTI Act set out certain criteria to be met before such assistance could be
provided. These included, for example, that the patient must be at least 18
years old; two medical practitioners must be of the opinion that the patient is
suffering from a terminal illness; and a qualified psychiatrist must certify
that the patient is mentally competent to elect euthanasia.[5]
Between August 1996 and March 1997, four patients made use of the RTI Act to
end their lives.[6]
2.7
The RTI Act was challenged in the NT Supreme Court in 1996.[7]
This challenge queried, among other matters, whether the NT Legislative
Assembly had the power to enact the RTI Act. A majority of the Full Court of
the NT Supreme Court held that the NT Legislative Assembly had the power and
that the RTI Act was a valid law of the NT. An appeal was lodged with the High
Court, but this was adjourned until parliament had completed its consideration
of the Euthanasia Laws Bill 1996. [8]
As a result of the enactment of the Euthanasia Act, no further action was
taken.[9]
2.8
In September 1996, Mr (as he then was) Kevin Andrews, Member for Menzies
in the House of Representatives, introduced the Euthanasia Laws Bill 1996 as a
private member's bill. The main purpose of that bill was to overturn the NT RTI
Act by amending the self-government legislation of the NT to remove the
power of the NT Legislative Assembly to make legislation permitting euthanasia.[10]
2.9
The Euthanasia Laws Bill 1996 was considered by the then Senate Legal
and Constitutional Legislation Committee (1997 Euthanasia Inquiry).[11]
That inquiry generated considerable interest, and received over 12,000
submissions. An analysis of the submissions received by that inquiry indicated
that 93% were in favour of the Bill and/or opposed to euthanasia. However, the
majority of that committee made no recommendation to the Senate on the
Euthanasia Laws Bill 'because it is a private member's Bill and is subject to a
'conscience vote''.[12]
The Euthanasia Laws Bill 1996 was subsequently passed by the Federal Parliament,
and the Euthanasia Act came into force on 27 March 1997.
The Euthanasia Act
2.10
The Euthanasia Act amended the Northern Territory
(Self-Government) Act 1978 (Cth); the Australian Capital Territory
(Self-Government) Act 1988 (Cth) and the Norfolk Island Act 1979
(Cth). The Euthanasia Act removed the power under the Self-Government Acts of
the three territories to enact 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.[13]
2.11
The Euthanasia Act provides that each Legislative Assembly does have the
power 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.[14]
2.12
The Euthanasia Act also contains a clause that specifically provides
that the NT's RTI Act 'has no force or effect as a law of the Territory'.[15]
2.13
The Euthanasia Act does not define the terminology it uses.
Terminology
2.14
The original meaning of the Greek word 'euthanasia' is a 'good death'.
The Macquarie Dictionary defines 'euthanasia' as 'the deliberate bringing about
of the death of a person suffering from an incurable disease or condition, as
by administering a lethal drug or by withdrawing existing life-supporting
treatments'.[16]
2.15
However, the term 'euthanasia' was used in a variety of ways in
submissions to the current inquiry. For the purposes of this inquiry, as with
the 1997 Euthanasia Inquiry, the committee considers that 'euthanasia' can be
divided into four categories:[17]
- Active voluntary euthanasia: where medical intervention
takes place, at a patient's request, in order to end the patient's life.
- Passive voluntary euthanasia: where medical treatment is
withdrawn or withheld from a patient, at the patient's request, in order to end
the patient's life.[18]
- Passive in/non-voluntary[19]
euthanasia: where medical treatment or life-support is withdrawn or
withheld from a patient, without the patient's request, in order to end the
patient's life.
- Active in/non-voluntary euthanasia: where medical intervention
takes place, without the patient’s request, in order to end the patient's life.
2.16
The Bill and the NT RTI Act, and therefore this inquiry and report,
focus on active voluntary euthanasia.
2.17
Other important terms used during this report include:
- Physician-assisted suicide: suicide using a lethal
substance prescribed and/or prepared and/or given to a patient by a doctor for
self-administration for the purpose of assisting the patient to commit suicide.[20]
- Double effect: the administration of drugs (such as large
doses of opioids) with the intention of relieving pain, but foreseeing that
this might hasten death even though the hastening of death is not actually
intended.[21]
Legal position in other Australian
jurisdictions
2.18
No Australian state or territory has a law which allows voluntary active
euthanasia. Rather, an act of voluntary active euthanasia is considered to be 'assisted
suicide', which is a crime; the penalty for which varies in each state or
territory jurisdiction.[22]
2.19
There have been several inquiries by state and territory parliaments
into voluntary euthanasia legislation, as well as several unsuccessful attempts
to introduce and/or enact voluntary euthanasia legislation in state and
territory jurisdictions, including, for example, in the Australian Capital
Territory (ACT), South Australia, New South Wales, Western Australia and Tasmania.[23]
In Victoria, a private member's bill, the Medical Treatment (Physician Assisted
Dying) Bill 2008, has recently been introduced into the Victorian Parliament.
That Bill apparently proposes to allow doctors to prescribe a liquid medication
to assist in a patient's death.[24]
2.20
Some states and territories do have legislation whereby people may be
allowed to die through the withdrawal or lack of implementation of medical
treatment. For example, under section 6 of the NT Natural Death Act 1988,
the non-application of medical treatment in compliance with a direction
under the Act is not considered a 'cause of death'. Most states and territories
also have legislative schemes which allow patients to make 'advance directives'
or 'living wills' which provide for patients to specify what medical treatments
they would like in the future, if at some point they cannot make decisions for
themselves. Such directives enable patients to record decisions about their
preferences on a range of treatments, including refusal of life-sustaining
treatments.[25]
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