New Bill in Australian Senate
Introduced by Senator David Leyonjelm (LDP NSW) into the Australian Senate, 2nd December 2015.
Senator Leyonjelm’s new bill seeks to overturn existing Commonwealth law. Not a euthanasia o assisted suicide bill in the normal understanding, but rather a bill that would allow the Australian Territories with limited self-government to debate and pass their own laws on the subject.
This bill seeks to restore the ability of the self-governing territories of Australia to legislate in respect to:
‘…the making of 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.’ (Euthanasia Laws Act 1997)
In 1997 the Commonwealth of Australia passed the Euthanasia Laws Act 1997 which amended the three Acts of Parliament that created and govern the limited self-government of the Northern Territory, the Australian Capital Territory and Norfolk Island (1) so as to remove the previously implicit right of those territories to pass such laws.
This came in the wake of the passage of The Rights of The Terminal Ill Act 1995 (ROTI) in the Northern Territory which was the first formal euthanasia law to be passed anywhere in the world. It was rendered effectively ‘null and void’ by the 1997 Commonwealth Act (even though it still remains on the NT state books – see note later on).
Since that time there have been numerous attempts to overturn the Euthanasia Laws Act 1997, all rising in the Senate and the majority being put by the former Greens Party Leader, Bob Brown. Following Bob Brown’s retirement, his successor, Senator Robert Di Natale raised an identical bill in 2012.
None of these bills has ever been debated to a vote and only one has ever been referred to a committee of inquiry. Most recently, Senator Di Natale tabled a different form of bill as a draft and under the speculative approach that would have necessitated an act of euthanasia being declared a medical service (In a similar way as occurred in Quebec, Canada). The Medical Services (Dying with Dignity) Bill 2014 was referred to a committee that collected evidence through 2014 and returned an open finding. The bill was never tabled in parliament.
Senator Leyonhjelm’s Bill is essentially the same as those tabled earlier by Senator Brown with a few differences that, while they may seem pointless, are, in fact, rhetorical tools employed by the Senator to advance his cause.
It is a little wry that Senator Leyonhjelm should, in parenthesis, give the term ‘Assisted Suicide Legislation’ over to the title of the bill. Others previously have included, in the same space, ‘Voluntary Euthanasia Legislation’. Both are incomplete and a little misleading. (2)
The Euthanasia Laws Act 1997 included the removal of powers in respect to both euthanasia and assisted suicide. Leyonhjelm’s change to assisted suicide is simply an alignment with his party’s policy. However, his repeal motion would allow for the consideration of both. The question then is: Is the position of Leyonhjelm and the Liberal Democratic Party simply ‘illiberal’ in so much as it does not expressly allow for euthanasia; or do they hold legitimate concerns about euthanasia and not assisted suicide?
The LDP assisted suicide policy page gives prominence to the cover of ‘The Peaceful Pill Handbook’ written by former medical doctor, Philip Nitschke wherein one can find do-it-yourself instructions in all manner of methods in keeping with Nitschke’s philosophy that any adult should be able to suicide anytime. Are Leyonhjelm and the LDP endorsing a truly ‘liberal’ no-laws approach – such as that held by Nitschke and Exit – or is theirs a ‘toe-in-the-water’, bit-by-bit’ approach towards that ultimate goal?
The Objects of Leyonhjelm’s bill are also expressed differently. Di Natale’s Objects were straightforward and reasonably expressed:
The objects of this Act are:
(a) to recognise the rights of the legislative assemblies 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 voluntary euthanasia; and
(b) to repeal the Euthanasia Laws Act 1997 which removed that right to legislate for voluntary euthanasia.
Leyonhjelm gets rhetorical:
The objects of this Act are:
(a) to reduce Commonwealth interference with the laws of the Australian Capital Territory and the Northern Territory; and
(b) to facilitate competitive federalism in law making; and
(c) to recognise the right of the Australian Capital Territory and the Northern Territory to legislate for assisted suicide within their jurisdictions; and
(d) to repeal the Euthanasia Laws Act 1997 the enactment of which was inimical to the objects stated in paragraphs (a) to (c).
Again we see the favouring of ‘assisted suicide’ over ‘euthanasia’, and again the effect is for both.
Leyonhjelm inserts opinion: he clearly views the passage of the Euthanasia Laws Act 1997 as an unwarranted ‘interference’. Interestingly, he does not ‘recognise’ as Di Natale did, that the rights of the territories in question to govern is limited firstly by the Commonwealth, generally speaking, but also by the principles of legislating for ‘peace, order and good government’ which we contend, can never include euthanasia or assisted suicide by definition.
Even though ‘liberal’ can be a synonym for ‘competitive’ I don’t think the founders of liberalism would have had in mind a situation where euthanasia or assisted suicide were the subject of ‘competitive liberalism’ as Leyonhjelm puts it. ‘Competitive liberalism’ in this context, means: ‘the process whereby each state enacts laws in competition with the others – thereby refining and improving law-making’. (3) A lemming-like rush amongst the states and territories to leap into the moral abyss, each one with progressively more style and panache, no doubt! This competitive liberalism’ hasn’t taken place in the states thus far, so what makes Leyonhjelm think differently about the two territories? Well, that’s rather the point: the territories are single camera legislatures; one has a clear progressive flavour and one has form in this regard. If either legislate, there will be pressure on the states to follow suit and Leyonhjelm knows that. This is not and has never been about the rights of Territorians; it is about getting a foot in the door wherever they can.
The other significant difference between this and earlier bills of a similar nature and intent is the inclusion of clauses that relate directly to the Northern Territory’s Rights of The Terminally Ill Act 1995(ROTI). As noted earlier, this legislation remains on the statute books of the Northern Territory. The effect of the Euthanasia Laws Act 1997 was to rob ROTI of any force of law, but it did not repeal it.
This has led to speculation that, should the Euthanasia Laws Act 1997 ever be repealed, that ROTI would immediately regain force of law. Advice has been circulating for years suggesting both yes and no. It is possible that some Senators may have understood this to be the case and were therefore somewhat reticent about supporting a repeal bill. Leyonhjelm’s expression has the effect of freezing ROTI as a law as at the date that the Euthanasia Laws Act was proclaimed meaning that, should the Northern Territory wish to revisit the issue, it would need to commit a new bill to debate in full.
Will this bill progress to becoming law? Form over many years would say NO, clearly. But parliaments change with personnel, as do priorities. Those who oppose the law will do well to speak up and say so in the New Year when parliament resumes sitting.
NB: An Action Alert with full details is available now. Please help by contacting your Senators! CLICK HERE fo more details.
(1) Norfolk Island ceased to be a territory with limited self-government in May 2015. It is, therefore not mentioned in Senator Leyonhjelm’s bill.
(2) Of course, we should observe that the Euthanasia Laws Act 1997 does not have ‘assisted suicide’ in its title either!
(3) From the Senator's ‘Explanatory Memoranda’ for the bill.