2.1
Submissions to the inquiry largely focused on the bill's proposed amendments regarding voluntary assisted dying (VAD). In particular, the following key issues were discussed:
fairness of the current constitutional and legislative frameworks;
the preclusion of other Australian territories from the scope of the bill; and
2.2
These issues are discussed in the following sections.
Fairness of the current constitutional and legislative frameworks
2.3
Many submitters supported the bill's aims to 'restore to the people of the Northern Territory and their representatives the right to make decisions for themselves on important social issues, including voluntary assisted dying, without Commonwealth interference'.
2.4
The Australian Capital Territory (ACT) Government submitted that the bill 'highlights an important issue affecting the democratic rights of Australians living in both the Australian Capital Territory (ACT) and the Northern Territory (NT)'. It described this issue in the context of the broader impact of the current constitutional framework on the work of territory parliaments:
Under Australia's Constitution, Territorians do not experience the same rights enjoyed by citizens in other state jurisdictions. The disparity is rooted in the ability of the Federal Parliament to pass laws that interfere with or override any laws made by Territory parliaments. This means that the elected parliaments of the ACT and the NT cannot pass legislation without the risk of Commonwealth interference. History has shown this risk to be a real concern for Territory Legislatures.
2.5
Professor George Williams AO echoed this view, submitting that the Australian constitution 'reserves rights and privileges to the states and Australians who live there, while permitting these to be denied to Territorians'. He continued:
This entrenched discrimination is made all the worse by the special powers of the Commonwealth to intervene in territory affairs. Self-government in the ACT and the Northern Territory depends upon the favour of the Commonwealth. It can at any time remove their right to be governed by a local assembly and can return either to direct federal rule.
2.6
Professor Williams postulated that in the absence of broader reform:
the Federal Parliament can ensure that its laws provide Territorians with the same rights, as far as possible, as other Australians living in the States. The Bill should be supported in seeking to achieve this.
Impact of preclusion to legislate for voluntary assisted dying
2.7
The committee received a number of submissions that argued that amendments introduced through the Euthanasia Laws Act 1997 (Euthanasia Laws Act) were undemocratic, discriminatory and rendered residents of territories as 'second-class citizens'. For example, Ms Pamela Jenkins argued that:
By not repealing these sections, Territorians in both jurisdictions are rendered lesser citizens, deemed unfit to make decisions about their own lives on the same basis as Australians living in the States.
2.8
Mr Marshall Perron, former Chief Minister of the Northern Territory, elaborated on this view, submitting:
By withdrawing powers that had been transferred to the territories at Self Government, the Federal Parliament effectively divided Australian citizens into two classes on the grounds of geography. The 700,000 who choose to live in the Territories (more people than live in Tasmania) cannot elect representatives to legislate on their behalf on end of life issues the way citizens living in the states can.
2.9
Some submitters suggested that passage of the Euthanasia Laws Act ran contrary to 'the spirit behind the devolution of powers' to territories. Others argued that the passage of the Euthanasia Laws Act 1997 'interfered with valid legislation passed by a proper parliamentary process in our democratic country'. The Australia Institute emphasised that 'the interference with territory rights is more obvious now that several states have adopted voluntary assisted dying laws'.
2.10
Concerns were raised that the preclusion of the territories from legislating for VAD is inconsistent with Australia's human rights obligations. The ACT Government submitted:
The International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party, guarantees citizens the right to take part in the conduct of public affairs, directly or through freely chosen representatives. The legislative restrictions placed on the NT and ACT in the area of voluntary assisted dying may limit this right. Further, pursuant to the right to equality and non-discrimination in sections 2 and 26 of the ICCPR, individuals are entitled to enjoy their human rights without distinction or discrimination of any kind. Citizens of the ACT and NT are denied their right to participate in public life on questions relating to voluntary assisted dying on the basis of their residence in a Territory while their counterparts in neighbouring states are able to decide such questions for themselves. These human rights may be subject only to reasonable limits that can be demonstrably justified in a free and democratic society.
2.11
Referring specifically to the bill's proposal to repeal amendments to the Northern Territory (Self-Government Act) 1978, Mr Perron posited that 'the bill being considered here seeks to correct an anomaly in Australia's democracy'. Humanists Australia shared this view, submitting that the bill 'presents an opportunity to right this wrong for residents of the NT'.
2.12
These submissions argued that territory parliaments, and the Northern Territory Legislative Assembly in particular, should be able to debate the issue of voluntary assisted dying within their jurisdiction. Humanists Australia similarly argued:
Residents of the Northern Territory and Australian Capital Territory should have the same rights of self-determination of how they are governed, and indeed how they choose to live their lives, as do residents of the Australian States.
2.13
Some submitters observed that the national and international landscape has changed since the Euthanasia Laws Act was passed in 1997. Dying with Dignity NSW submitted:
The NT was the first jurisdiction in the world to pass VAD legislation. (It was legal in the Netherlands and Switzerland at that time, but not via statute.) The NT legislation was passed at a time when the concept of VAD was a very new one, both here and around the world. There were no precedents to study and the legislation was passed without first having a substantial inquiry, as has subsequently been done in all Australian states where VAD has been legalised. In other words, the VAD debate was in its infancy. It is perhaps understandable that there was some Commonwealth nervousness.
2.14
Dying with Dignity NSW stated that since this time, jurisdictions across 13 countries have implemented or are in the course of implementing a VAD regime, including eleven of the 50 states of the USA as well as Canada and New Zealand. It highlighted that in Australia, such regimes exist in Victoria and Western Australia, while Tasmania and South Australia have legislated but not yet operationalised VAD. The effect of this, Dying with Dignity submitted, is that
There is ample evidence from all these jurisdictions, and most relevantly from Victoria to show how VAD can operate safely. There is also a mountain of scientific evidence about the operation of VAD all over the world which can be drawn on in any debate. In other words, the VAD issue has matured and is now well understood and well accepted all over the world and in Australia.
This suggests that it would now be quite safe to allow the NT to have its own inquiry and its own parliamentary debate on VAD. There is good evidence that many Territorians want to have the debate, even if they don’t ultimately support legalisation. It is quite unconscionable that all of Australia except the territories have the democratic right to decide their fate in their own way and their own circumstances.
2.15
In contrast, other submissions strongly supported the current legislative framework. These submitters emphasised that the Constitution legitimately imbues the Commonwealth with power to make laws for the government of any territory, and that the Commonwealth should continue to do so in order to protect vulnerable individuals. As articulated by the Australian Care Alliance, 'constitutionally, it is entirely a matter for the Commonwealth Parliament whether, and under what terms, the Northern Territory may exercise self-government'.
2.16
The Right to Life Association (RTLA) explained that:
It is appropriate that the Commonwealth apply the Territories power afforded under s122 of the Australian Constitution for sound policy purposes. In this case, the policy purpose operative under the Euthanasia Laws Act 1997, which the Bill seeks to repeal, provides protection to vulnerable persons whose rights and welfare are threatened by potential introduction of an assisted suicide regime.
While citizens of the Northern Territory and the Australian Capital Territory have a legitimate expectation that the power to make laws for their jurisdictions by their elected political representatives at Territory level will generally be respected, this power is explicitly circumscribed by s122 of the Constitution. This power should be used by the Commonwealth judiciously, and only applied for important policy concerns.
2.17
The RTLA suggested that the 'defence of vulnerable persons, especially indigenous persons, constitutes exactly this concern':
The defence of life is the pursuit of the common good and assisted dying threatens vulnerable Australians. Indigenous Australians in particular have stated this clearly.
The Commonwealth should retain its power to defend the rights of vulnerable persons in the Territories and exercise those rights rather strictly where there is a strong case to preserve the common good. The Parliament in 1997 decided that assisted suicide was not a policy in accord with the common good and threatened the welfare of the vulnerable. This was reaffirmed in 2018 in Parliamentary debate on the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015. There is no need for the Parliament to alter that definitive position taken in 1997 in Euthanasia Laws Act 1997 and in 2018.
2.18
The Little Company of Mary Healthcare mirrored this position. It submitted that 'laws that would allow a third person to end or assist in ending a human being's life are among the most serious considered by parliaments'. On that basis, Little Company of Mary Healthcare argued:
it is appropriate for the federal parliament to have oversight over territories. Commonwealth powers have not been used lightly but are appropriate when small jurisdictions with unicameral parliaments are deciding to allow something as serious as allowing people to end their own lives with the support of the government, particularly when that decision may threaten the wellbeing of vulnerable people.
2.19
Some submitters suggested that changes to the current legislative framework that may lead to a VAD regime may have a particularly adverse impact on the Northern Territory's significant First Nations population. The Australian Christian Lobby (ACL) referred to a paper by Chips Mackinolty entitled Euthanasia, Right Legislation Wrong Jurisdiction?, published during public debate about the Euthanasia Laws Bill 1996. In his paper, Mr Mackinolty concluded, following consultations with Aboriginal communities across the Northern Territory, 'that the existence of the ROTI legislation presents a continuing threat to the health and wellbeing of many Aboriginal people in the Northern Territory':
Due to complex ways in which Aboriginal belief, social and cultural systems do not 'match' those of non-Aboriginal Australia, external reassurances about the 'voluntary' nature of the legislation will be unlikely to lessen the very genuine cultural misgivings and fears Aboriginal people have about the existence of the Act.
…
I believe the 'debate' over euthanasia legislation has not come to grips with the reality of the jurisdiction in which it has been enacted — one in which such a high percentage of the population has such a radically different world view from the general population. The 'debate' has concerned itself entirely with either Western ethical/moral arguments, or arguments over the 'rights' of the Northern Territory to make legislation for itself without interference from the Commonwealth, that is, a 'states’ rights' argument. Both lines of argument centre solely on a Western world view; both ignore Aboriginal world views.
2.20
Similarly, HOPE suggested that the existence of a VAD regime may deter First Nations people from seeking health care services. In addition, HOPE considered 'that the passage of this legislation would be irresponsible while Aboriginal and Torres Strait Islander Australians still lack access to basic palliative care services'. HOPE stated:
Unless and until there has been significant investment – at a federal level – of responding to this review by investing in culturally-specific activities to address the needs of Aboriginal and Torres Strait Islander peoples, paving the way for euthanasia and assisted suicide in the Northern Territory would leave our indigenous Australians particularly vulnerable.
2.21
The Australian Care Alliance concluded that the Commonwealth's constitutional responsibility obliges it 'to consider the likely impact of any proposed law on First Nations people including Aboriginal people in the Northern Territory'.
Application to other territories
2.22
A number of submissions in support of the bill strongly emphasised that the bill's amendments should also extend to the ACT. The Australia Institute submitted that:
the Ensuring Northern Territory Rights Bill is incomplete. Repealing the restrictions on the Northern Territory but not those on the Australian Capital Territory would prolong the injustice done in 1997 and highlight the double-standard that territories are subject to.
2.23
Professor Williams echoed this sentiment. He cautioned that restricting the scope of the proposed reforms to the Northern Territory only 'would introduce another invidious form of discrimination, this time between Australians living in the Northern Territory and the ACT'.
2.24
Dr Wendy Bonython, Dr Bruce Baer Arnold and Ms Jane Diedricks argued that restriction of the bill to the Northern Territory is 'an inappropriate example of statutory particularism' and should be 'rejected on that basis'. Instead, they suggested that:
on a non-partisan basis, consistent with law in the states and the respect for self-determination about life matters that is evident in the international human rights agreements, the national parliament should instead move to repeal the Andrews Act so that there is uniformity across both mainland territories and consistency with the leading states.
2.25
A small number of submissions raised questions about how the bill might affect other Australian territories, particularly the ACT. For example, the RTLA submitted:
It should also be noted that the short title of the Bill appears to betray its real intent of legislating for also euthanasia in the Australian Capital Territory. It is hoped that the Committee Report will make clear the Bill’s role in relation to the Australian Capital Territory.
Part 2 of the Bill seeks to repeal in full the Euthanasia Laws Act 1997 with the effect that both in the Northern Territory and the ACT, these jurisdictions would have the power to pass assisted dying legislation although such laws would remain disallowable instruments.
Other matters
2.26
While most support for the bill was directed at the provisions related to VAD, some submitters extended this support to the bill's proposed changes regarding acquisition of property otherwise than on just terms and the resolution of employment disputes. For example, Dying with Dignity NSW submitted that 'Territorians should not be limited in their rights to make laws relating to the acquisition of property on just terms or employment disputes'. It asserted that 'the right to self-government should be the same for all states and territories, particularly in relation to the right to debate VAD laws.
2.27
Professor Williams opposed the removal of the limitation on the Northern Territory to acquire property on just terms, arguing that:
the Commonwealth itself is subject to such a limitation and it is appropriate that this remains for a territory. Ideally, the states should also be subject to the same limitation to provide a minimum level of property rights protection.
2.28
Dr Bonython, Dr Arnold and Ms Diedricks shared Professor Williams' position. They submitted that the just terms provision 'is a meaningful part of the nation's threadbare protection of rights in the absence of a readily justiciable Bill of Rights covering all Australians'. Dr Bonython, Dr Arnold and Ms Diedricks echoed Professor Williams' sentiment regarding the application of the just terms provision to the states. They suggested that 'all the states and mainland territories expressly commit to a uniform regime in which any acquisition must be on just terms'.
2.29
The Australian Care Alliance noted that removing the just terms provision 'would empower the [Northern Territory Legislative] Assembly to make a law enabling the government to acquire the property of individual Territorians, or of Aboriginal land rights holders, on patently unjust terms. The ACL shared this view and suggested that the proposed amendment may raise constitutional concerns. The ACL further noted that the acquisition of indigenous property in particular may be inconsistent with previous High Court decisions. It submitted:
If this Bill is passed, indigenous property may be acquired otherwise than on just terms, thus circumventing the effect of the High Court judgment in Northern Territory of Australia v Griffiths [2019] HCA 7.
2.30
In relation to the proposed amendments regarding employment disputes, Dr Bonython, Dr Arnold and Ms Diedricks reaffirmed the 'importance of a coherent, forward-looking and respectful workplace/employment relations regime across Australia'. They submitted:
The framework provided by the Fair Work Act 2009 (Cth) provides consistency across the Northern Territory for private and public sector employees – in relation to both the rights and obligations of employers and employees. The ability for businesses (and employees) to freely access the services of agencies such as the Fair Work Ombudsman, within this existing framework, to seek advice, education and assistance is another benefit that may be lost should this Bill be supported.
2.31
Ms Lynda Cracknell raised questions as to 'whether amendments also have to be made to the Fair Work Act' should the bill be passed.
2.32
The ACL questioned the need for these amendments, submitting:
There is simply no need for the NT to have power to create another tribunal, which at best will be very small and, if created, will miss out on the employment expertise of the Fair Work Tribunal.
Committee view
2.33
The committee thanks all submitters for their contributions to this inquiry.
2.34
While the bill contains three amendments, most submissions were directed at one, in particular, being the proposal to allow the Northern Territory Legislative Assembly to legislate for VAD should it wish to do so.
2.35
In the first instance, it is important to note, as some submitters did, that the constitutional basis upon which the Parliament of Australia passed the Euthanasia Laws Act 1997 (Euthanasia Laws Act) – the territories power under section 122 of the Constitution – is sound. If the bill was passed, the bill would not correct a legal error, as no such error exists.
2.36
The question put before the Senate by the bill is whether it remains an appropriate use of the territories power to preclude the Northern Territory Legislative Assembly from enacting VAD laws.
2.37
The committee received evidence supporting the passage of the bill. The perception that residents of Australian territories are disadvantaged by an inability to determine the appropriateness of VAD laws in their own jurisdictions appears to be strengthened by the fact that debates about VAD laws have occurred in most Australian state parliaments.
2.38
However, the committee also heard compelling evidence that the use of the territories power to prevent the territories from legislating in relation to VAD is entirely appropriate and should be maintained. The committee notes that the Australian Parliament has affirmed this view on a number of occasions.
2.39
The committee makes no recommendation about the appropriateness or otherwise of using the territories power to prevent the territories from enacting VAD legislation. The committee considers it is a matter for the Senate to decide whether the use of the territories power in this way is appropriate.
2.40
The committee does, however, acknowledge the questions raised regarding the legal effect on the ACT and Norfolk Island of repealing the Euthanasia Laws Act. The bill is clearly intended to apply only to the Northern Territory, and the bill therefore includes express amendments to the Northern Territory (Self-Government) Act 1978 to this effect.
2.41
The committee considered this question in its report on the Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill 2008. During that inquiry, competing views were presented, as they were here, as to the legal effect of repealing the Euthanasia Laws Act 1997. Ultimately, the Statement by the Chair and Senators Kirk and Marshall recommended that, to avoid uncertainty, the bill should be amended to include provisions that expressly repealed the operative provisions in the relevant self-government acts of the Northern Territory, the ACT and Norfolk Island in order to give effect to the bill's intended purpose.
2.42
In this case, the absence of express provisions in the bill which amend the Australian Capital Territory (Self-Government) Act 1988 and Norfolk Island Act 1979 supports the suggestion that the provisions inserted to those Acts by the Euthanasia Laws Act would continue to apply should that Act be repealed. In any event, the committee highlights this issue for the Senate's consideration.
2.43
The committee acknowledges questions about whether the bill should proceed without including the other territories, and the ACT in particular. The committee notes evidence received that doing so would not resolve the disparity between state and territory residents’ ability to debate and legislate in relation to VAD.
2.44
The committee recognises the persuasive evidence regarding the bill's proposed amendments to the acquisition of property otherwise than on just terms.
2.45
The committee recommends that the Senate takes note of this report.
Senator the Hon Sarah Henderson
Chair