Monday, 25 March 2013

16th anniversary of passage of the Euthanasia Laws Act

I'm not normally one for remembering anniversaries (with apologies to my darling wife, Anne. Ouch!)

And I only recall that today, sixteen years ago, the Euthanasia Laws Act passed in our Federal Parliament because the speaker of the NT Parliament chose today to push once again for the rights of territorians to have euthanasia laws.

You will recall that The Hon Kevin Andrews MP sponsored and promoted the Euthanasia Laws Act in the Federal Parliament in response to the passage of the Rights of the Terminally Ill Act (ROTI) in the Northern Territory and the subsequent failure of the then Federal Government to use the executive powers then available to them to veto that act.

The focus of that bill, as it name explains, was about euthanasia. The three Australian Territories that enjoy limited self government do so under grant via federal acts. These enabling acts reserve powers of veto over any and all legislation passed in those single chamber parliaments to the Federal Parliament. At the time of the ROTI act, the Federal Parliament had the right to veto any act by a decision of the executive of government or by the passage of a bill to that effect through both federal chambers. The executive veto was removed in recent years leaving only the veto available via a majority of members in both federal houses.

The effect of the passage of what is commonly called 'The Andrews Bill' was to remove the ability to pass legislation on such end-of-life matters from all three territories with limited jurisdiction. Effectively the federal parliament simply said that euthanasia was not a matter that could be decided at the Territory level. It was then and remains the duty and right of the Federal Parliament to make such decisions.

As I have noted previously, the Commonwealth at that time considered that no self-governing territory should have such power; that such a power did not contribute to ‘the peace, order and good government’ of the territories and its removal did not adversely affect good government. (Click Here for further commentary)

The Euthanasia Laws Act has been subject to many challenges in recent years, firstly (and repeatedly) from Greens Senator Bob Brown and, since his retirement, from Senator Richard Di Natale. None of these bills has reached a resolution in the Senate.

In the debate at that time of the Andrew's Bill there was a discussion about whether or not, under the separation of powers (state vs federal) that the federal parliament should draw to itself the power to legislate in this area solely. Such a development would certainly have silenced the continuing debate about whether the Brown/Di Natale repeal bills were more about restoring unjustly removed (or claimed to be unjustly removed) rights or about euthanasia as either a social good or a social harm.

The most convincing argument for the retention of the right to debate such matters in the states is that the criminal prohibitions that relate to homicide are found in the Criminal Codes of every state; namely the statutes that relate to homicide The criminal codes in the territories, like all of their acts, remain subject to the federal parliament.

The question that the federal parliament needs to resolve in respect to the Di Natale bill is whether or not allowing the territories the ability to determine bills about euthanasia and assisted suicide, whether the passage of these bills would contribute to 'the peace, order and good government'. Given the evidence of a multitude of failed bills (every one) in various of the Australian states since that time, the answer would seem to be a resounding 'NO'.

So, happy anniversary and plaudits to The Hon Kevin Andrews MP!

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