COMMONWEALTH OF AUSTRALIA

PARLIAMENTARY DEBATES

SENATE

Official Committee Hansard

LEGAL AND CONSITUTIONAL LEGISLATION COMMITTEE

Reference: Euthanasia Laws Bill 1996

FRIDAY, 24 JANUARY 1997

BY AUTHORITY OF THE SENATE CANBERRA 1997

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SENATE Friday, 24 January 1997 LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE

Portfolios: Attorney-General; Immigration and Multicultural Affairs Members: Senator Ellison (Chair), Senators Abetz, Bolkus, Bourne, McKiernan and O’Chee Substitute member: Senator McGauran to substitute for Senator O’Chee for the consideration of the committee’s inquiry into the Euthanasia Laws Bill 1996 on Friday, 24 January 1997 Participating members: Senators Brown, Bob Collins, Colston, Coonan, Cooney, Ferris, Harradine, Margetts, McGauran, Minchin, Neal and Tambling Senator Woodley and all Opposition senators not currently members of the committee, for the consideration of the committee’s inquiry into the Euthanasia Laws Bill 1996

The committee met at 8.38 a.m., in Darwin. Matter referred by the Senate: Euthanasia Laws Bill 1996 CHAIR—I call the committee to order and welcome all of you to this hearing. On 7 November 1996, the Senate referred the Euthanasia Laws Bill 1996 to the Senate Legal and Constitutional Legislation Committee for inquiry and report by 24 February 1997. The committee will examine the provisions of the bill and in particular the desirability of the enactment of the provisions, the constitutional implication for the territories of the enactment of those provisions, the impact of the enactment of the provisions on the Northern Territory criminal code and the impact and attitudes of the Aboriginal communities. This is the first hearing on these matters, and other hearings are listed for the 7, 13 and 14 February 1997. Today the committee will hear evidence from several organisations and individuals that are listed on the agenda. Copies of the agenda and submissions to be heard today are available from the side table. The committee also attended an open forum, which was held here last night and which was hosted by Senator Tambling and Senator Bob Collins from the Northern Territory. I wish to place on record the committee’s gratitude to both Senator Bob Collins and Senator Tambling for the opportunity to attend that forum. It was a most useful exercise. Resolved: That the committee receive the Hansard of the meeting of the open forum into evidence. [The transcript of the forum proceedings appears at the end of today’s proceedings.] It should be noted that proceedings and submissions which are received as evidence are protected by parliamentary privilege. Parliamentary privilege confers special rights and immunities in order for senators and others to discharge the functions of the parliament. Pursuant to a resolution of the committee, submissions to the inquiry have been received and made public. Some submissions, or the names of submitters, have been treated confidentially and these will not be made public. It should also be noted that the committee prefers all evidence to be given in public, but should a witness at any stage wish to give

LEGAL AND CONSTITUTIONAL L&C 2 SENATE—Legislation Friday, 24 January 1997 evidence, part of that evidence or answers to specific questions in private, he or she may apply to do so and the committee will consider that request. If evidence is taken in camera, witnesses are reminded that the committee or the Senate could still order the publication of such evidence. But in that event the witness would be notified of that decision. Finally, the committee has authorised the recording and re- broadcasting of these public proceedings in accordance with the rules contained in the order of the Senate dated 23 August 1990. Before calling the witnesses, there are three housekeeping matters I need to address. Firstly, I would like to place on record the committee’s determination to consider the cogency of the arguments presented during the inquiry as dispassionately as possible. Secondly, there has been some press speculation about the committee’s reporting date of 24 February this year. Let me state that, as chair of the committee, I have monitored the progress of the inquiry thus far and at the moment can see no reason why the reporting date of 24 February cannot be realised. It is early days, but at the moment the inquiry is on schedule. Thirdly, I have been asked several times by the media for a statistical breakdown of the views expressed in the 12,000- plus submissions received as evidence. The secretariat is completing the processing of these submissions next week, and as soon as this has been completed I will seek the approval of the committee to release relevant information. I would record my view that the number of submissions for and against should not be used as some straw pole on the legislation. Rather, it is the persuasive and compelling arguments contained in those documents that should determine our view on the merits of the legislation. It should and, as far as I am concerned, will be based on the persuasive and compelling arguments made in those documents. Finally, I wish to record my appreciation of the secretariat support staff and temporary staff—Mr Neil Bessell, secretary of the committee, Mr Stephen Bull, Jacquie Hawkins, Della McCay, Julie Hunter, Debbie McMahon, Joy Brogan, Lara Crew and John McAvoy—for their tireless efforts over the Christmas-New Year break when they processed the record breaking number of submissions. Before calling the first witnesses, I should also extend the committees gratitude to the Northern Territory parliament and its officers for their assistance, cooperation and hospitality. BURKE, Mr Denis Gabriel, Member of the Legislative Assembly, GPO Box 3146, Darwin, Northern Territory 0801 HENDY, Dr Shirley, Chief Health Officer, Northern Territory Government, PO Box 40596, Casuarina, Northern Territory 0811 NICHOLSON, Mr Graham Richard, Senior Crown Counsel, Attorney-General’s Department, GPO Box 1722, Darwin, Northern Territory 0801 PAULING, Mr Thomas Ian, Solicitor-General for the Northern Territory, Attorney- General’s Department, GPO Box 1722, Darwin, Northern Territory 0801 REED, Mr Michael Anthony, Member of the Legislative Assembly, GPO Box 3146, Darwin, Northern Territory 0801 STONE, Mr Shane Leslie, Chief Minister, Northern Territory Government, GPO Box 3146, Darwin, Northern Territory 0801 CHAIR—I welcome the Chief Minister of the Northern Territory, the Hon. Shane Stone, and officers of the Northern Territory government. The committee has received the submission of the Northern Territory government and, in accordance with the resolution, the committee

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 3 has made it public. Departmental officers should note that they will not be required to answer questions which seek opinions on matters of policy, reasons for policy decisions or advice they may have tendered in the formulation of policy. If necessary, the committee will allow officers reasonable opportunity to refer questions to superior officers or to a minister. I now invite the Hon. Shane Stone to make an opening statement. At the conclusion of your remarks, I will invite committee members to put questions to you. I would remind witnesses that we do have the written submission. If reference is made to that written submission, could it be done in point form rather than regurgitating or reading the submission, as we are on a strict time limit. Mr Stone—Thank you, Mr Chairman, and I might formally welcome the committee to the Northern Territory. I hope that you have a pleasant time while you are here. You have already had the opportunity to hear from territorians on this very difficult issue. It is a difficult issue. We hope that when you depart from here and return to the Senate you go away better informed across the arguments that have been put before you. Might I also thank the Senate for having gone down the path of establishing the terms of reference for your particular committee to look into this matter. You would be aware that the Northern Territory parliament very carefully considered this matter over a lengthy period and, indeed, established its own select committee to look into the issue. I should introduce the people who are with me here this morning. On my right is the Hon. Mike Reed, the Deputy Chief Minister, formerly Minister for Health, who has maintained an enduring interest in this legislation from the time that it was first foreshadowed. To my left is the Hon. Denis Burke, who is currently the Attorney-General and also the Minister for Health Services. Further to my left is Mr Tom Pauling QC, Solicitor-General for the Northern Territory and beside him is Mr Graham Nicholson, Senior Crown Counsel. To my right on the far right is Dr Shirley Hendy, who is the Chief Health Officer. Might I say by way of introduction that I do not propose to regurgitate the submission that has been put before you for the simple reason that it is my understanding that it is the view of members of the committee that a series of questions and answers would probably better serve the processes of this morning. Can I say this by way of introduction—it is to simply concentrate on one very important aspect and the main thrust of the Northern Territory government submission which has concerned itself with the constitutional and legal issues—if, in effect, the Andrews bill is carried through, then it will have the effect of taking away a power that was validly given to a self-governing territory and it would be unprecedented if that were to occur. This is quite different from other intervention by the Commonwealth parliament in times past and, although there have been attempts to draw particular analogies, this is a very unique case in point—the taking away of a power to legislate as was given under the self-government act, that process and power having been duly exercised after due consideration by the territory parliament and following all the processes of the Westminster system. I know that it is very tempting to dismiss the Northern Territory parliament as simply small and unrepresentative—and I have heard all of those arguments. But I say this that, in the process of constitutional development, whether it has been the Crown colonies of this country through to the fledgling Commonwealth parliament of this nation of ours, at various times that criticism has been made of those parliaments. The processes were followed. We acted according to law. We acted in good faith. The legislation has subsequently survived a

LEGAL AND CONSTITUTIONAL L&C 4 SENATE—Legislation Friday, 24 January 1997 challenge before the Full Court of the Supreme Court of the Northern Territory. This matter was actively and widely canvassed within our community. You would be aware that I am someone who is opposed to the principle of voluntary euthanasia. But I have never, ever confused my views that I might have on the issue with my responsibility to carry through and—to put in its most ordinary form—to give this legislation an opportunity to work. I hope that you will take the opportunity to address questions to Dr Shirley Hendy this morning on the way the legislation actually operates. I hope that you will take the opportunity to address questions to our Solicitor-General and Crown counsel on some of the more intricate legal issues that no doubt are exercising your mind at the very time. As to the merits of euthanasia, there are a number of other submissions that have been put to your committee and a number of those proponents will have the opportunity to speak during the day. I will leave it to them to argue the merits or otherwise of voluntary euthanasia. As I said at the very beginning, my role, together with my colleagues here this morning, is to address the constitutional and legal implications of the impact and effect of the Andrews bill in the event that it is carried into law. Thank you. CHAIR—Perhaps I could start with a question. Mr Stone, we heard evidence last night and in a number of the submissions it has been put to us that, if the Andrews bill is passed, it will impede the progress of the territory to statehood. Do you agree with that? If you do, how do you justify that statement? Mr Stone—I do not agree with the statement for the very simple fact that the progress to statehood will continue. The Prime Minister has made it very clear that, notwithstanding that we have a serious difference of opinion on this particular matter, he remains committed to statehood. What it does mean, however, is that the grant of statehood could well be qualified. If I understand the effect of the Andrews bill, it means that the Northern Territory even as a state would never be able to legislate on this issue unless the legislation was subsequently repealed in the Commonwealth parliament. So it would be a qualified grant of statehood. It then becomes a matter for territorians whether they are prepared to embrace a qualified grant of statehood. CHAIR—In that case, would the territory, if made a state, not be on an equal footing with all other states and be subject only to the constitution? As we have had put to us, the Commonwealth cannot legislate on this matter with respect to states because it does not have that head of power under the constitution. The territory would then be in the same position as other states. Is that not the case? Mr Stone—It was my advice that that was not the case; that the Andrews Bill having become an act would result in the territory being bound. Bear in mind that the Commonwealth admits states on terms determined by the Commonwealth. CHAIR—The committee has had advice to the contrary. Mr Stone—I am delighted to hear that. CHAIR—I would hope that all Australian states are treated on the same basis. Mr Stone—I take great comfort, Mr Chairman. I hope you take the same view of Senate representation when the time comes. CHAIR—The constitution forbids discrimination between states. But, if you do have some advice, would you be good enough to provide that to us? You can perhaps take it on notice and get that to us. I think that that is a most important point.

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Senator BOB COLLINS—That section of the constitution would not automatically provide us with 12 senators, would it? Mr Pauling—No. Mr Stone—Ultimately there can be that difference. CHAIR—We are talking here of legislative heads of power which really are governed by the constitution. Leaving that aside, Mr Stone, the other question I wanted to put to you was in relation to this unprecedented move by the Commonwealth. Would you agree that this legislation passed by the Northern Territory is unprecedented and that what we are looking at is a situation that is unprecedented in any Western democracy and that therefore the normal conventions might not apply? Mr Stone—It is not unprecedented in terms of any Western democracy because you would be aware that legislation of this nature was passed in the state of Oregon in the United States, although it has subsequently been challenged in their court system; so it has not been carried into effect. But, if you are to govern based on never doing anything that is unprecedented, then it would be a pretty unimaginative government at the end of the day. The territory has a number of firsts to its name, including a number of very unique programs in community policing and very innovative social welfare programs involving juveniles. No- one ever put to me that, because that was unprecedented and the first time that it was ever introduced into Australia, therefore it was wrong. I do not think that that is a sustainable argument against a parliament having embraced something new and different. Senator McKIERNAN—At the public meeting we held last night some of the speakers drew attention to the dilemma that they face in that they are opposed to euthanasia but they are not supportive of the Andrews bill. You drew attention to that dilemma, Chief Minister. Has the Northern Territory Legislative Assembly discussed as an assembly the Andrews bill and have they formed a view on the bill? Mr Stone—We did by way of the motion and debate on the remonstrance which was subsequently delivered to the House of Representatives and the Senate. Can I just take you back to the preliminary part of your question. When you say ‘a dilemma’, I do not have a dilemma; I have a particular view. I have not moved in my view in relation to voluntary euthanasia, but I do not confuse my responsibilities as the head of government of the Northern Territory with the need to ensure that there is certainty in the mind of the community that a parliament, having after due process passed legislation, should not simply arbitrarily change its mind in an indecent frame of time. I want you to understand that there is no dilemma on my part. You are looking at three politicians, all of whom voted against the original legislation, but we are comfortable in where we find ourselves at this present time. The day that we confuse our personal view, our personal beliefs, with our responsibilities in government is the day that we should leave government. Senator McKIERNAN—Did you have a vote on the remonstrance? Mr Stone—Yes. It was unanimous. Senator McKIERNAN—It was unanimous? Mr Stone—Yes. Senator McKIERNAN—So it could be taken from that that the Northern Territory Legislative Assembly unanimously object to the Andrews bill that is currently before the Senate and, indeed, before this committee?

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Mr Stone—You can assume that is the case, yes—based on that unanimous vote. Senator McKIERNAN—The other matter I want to address at this time is the impact of the bill on citizens other than those citizens or residents of the Northern Territory. The events since the passage of your RTI legislation have shown that it does have wider impact than just the citizens of the Northern Territory. Are there any moves, any plans, to curtail or limit the impact of the bill to those citizens only of the Northern Territory? Mr Stone—Can I answer that in two ways. That issue is picked up in the submission of Dawn Lawrie, the Anti-Discrimination Commissioner, when she makes the very practical and pertinent observation that the laws of states and territories apply to all Australians when they come into their jurisdiction, from traffic laws right through to the way you might conduct yourself when you are within the boundaries of a particular state or territory. It is a very practical illustration, but it is a good one. In terms of whether there was an offer to curtail the legislation, senators might recall that I in fact flagged that we would be prepared to consider a legislative amendment so that it only applied or could only be applied for by territorians. It is questionable whether you can do that under the constitution in any event because you cannot discriminate between the states, although I could rely on the fact that we are a territory because there is an argument that you can have that discrimination between territories and states, based on one opinion that I was given. But the offer was made and it was roundly rejected by the proponent, Mr Andrews himself. In my mind that demonstrated that the concern he had that this was legislating for the whole of Australia was really just a furphy, because when he was offered an amendment that would have restricted it to the territory and excluded the rest of Australia he rejected it. Senator McKIERNAN—And the parliament, the House of Representatives, also rejected it, did they not? Mr Stone—I don’t know whether it was ever formally discussed or debated. Both the Leader of the Opposition and the Prime Minister rejected it in their personal views. Senator McKIERNAN—A final question for me at this time, Chief Minister. On the matter of a referendum, is there an ability within the territory constitution to hold a referendum on this or other matters and, if so, why hasn’t one been held? Mr Stone—I recall we canvassed this issue, and it would have involved the passage of legislation to enable a referendum to be held. We canvassed that issue and we gave it considerable thought and, although people are loath to rely on opinion polling, it was quite obvious, quite evident, from polls that had been conducted by my government that territorians were overwhelmingly in favour of this legislation. Even the most strident critics of voluntary euthanasia in this legislation would concede, I would have thought, that the majority of territorians are in support. CHAIR—Thank you. Senator Abetz. Senator ABETZ—Could I direct a few questions to Mr Pauling to try to get a handle on what the current law is in the territory. Can I start by referring you, Mr Pauling, to page 3 of your submission, the first full paragraph on that page, in which you say: In my opinion the present law in the Northern Territory would give no comfort to a doctor who prescribed or permitted an increase in the administration of morphine such that it was reasonably foreseeable that death would result because on a charge of manslaughter intent would be irrelevant if the event (ie death) was a foreseeable consequence of his conduct.

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Can I assume that that is the official government view as well as to the current state of the law in the territory? Mr Pauling—As I understand it, and you should read that with the opinions of Mr Wild and Mr Karczewski. Senator ABETZ—Thank you. I was wondering as I was reading the papers how you pronounce Mr Karczewski’s name. Thank you for that because I will be referring to his submission as well. Therefore, is it correct that double effect pain relief was illegal in the Northern Territory until the passing of the Rights of the Terminally Ill Act? Mr Pauling—I am sorry, could you repeat that? Senator ABETZ—The double effect pain relief was illegal in the territory up until the passing of the Rights of the Terminally Ill Act? Mr Pauling—I do not think the Rights of the Terminally Ill Act has affected that, if you are keeping that to a narrow point. Under the Criminal Code, once the Criminal Code was passed in the Northern Territory, and it is an unique bit of legislation, the ground rules, if you like, of legal responsibility changed—it is quite different to anywhere else in Australia—and formulated a section which provided that foresight of the probable consequences of an act gave rise to the criminal liability that is spoken about. Senator ABETZ—But, say, palliation with morphine was or is still illegal then in the Northern Territory today? Mr Pauling—Yes. Senator ABETZ—And that is the government’s position. How long has the government been aware of that position? Mr Pauling—I do not know what advice has earlier been given, but the legal position of somebody who directly or indirectly causes the death of another and had foresight the death was a probable consequence of their conduct has always given the ground rules for a finding of criminal responsibility. I think where you are going, with respect, is into a question of whether there was any policy or other decision— Senator ABETZ—No, I am not at this stage going into the question of policy because I want to get a handle on the legal situation. Mr Karczewski, on page 16 of his submission in the first paragraph, about halfway through says: It is the prohibition absolute— that you have just referred to, Mr Pauling— that the Rights of the Terminally Ill Act addresses in section 16. So that, I suppose, reinforces that. Therefore, you are in effect telling the rest of Australia at the moment that the law in the Northern Territory is that you cannot have palliation and, if you do have palliation in the Northern Territory, it is illegal—against your Criminal Code. Mr Pauling—What we are saying is that if somebody is given a lethal dose of morphine, for example, on the basis that death is a likely outcome of that, that would be illegal. Senator ABETZ—But the double effect as well, so that if a doctor administers the morphine as we understand it with palliation you administer the morphine on the basis to relieve pain but also having the foresight and knowledge that the injection of that morphine may also, as a consequence, hasten the death? That is what we are talking about. Mr Pauling—Yes, and I am saying that in the Northern Territory, if those facts were proved and a jury was prepared to convict, that would constitute an offence.

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Senator ABETZ—Right. With the passage of the Rights of the Terminally Ill Act that has not changed one iota, has it, because if I am terminally ill and I asked the doctor for morphine to relieve my pain the doctor would not be allowed to prescribe the morphine to me unless I in fact made a specific request that I be killed or be put to death, because that is one of the requirements under the Rights of the Terminally Ill Act, is it not? Mr Pauling—I understand the arguments. The argument that Mr Hughes puts forward in his opinion is wrong. It is superficially attractive, but the— Senator ABETZ—Why is it wrong? Mr Pauling—The Rights of the Terminally Ill Act does not in the end affect it, because to say that what in practice happens—as we understand from all these submissions—and happens frequently is not the result of criminal proceedings may or may not be a conscious policy decision. It just does not happen. But what we are saying is that in truth, where a decision is made to increase morphine—to continue that example—to a level where the likelihood is that it will shorten life or kill immediately, in technical terms under the Northern Territory law that is a criminal offence. Senator ABETZ—But, with respect, it does not have to kill immediately, does it, for the assertion that you have been making in your submission and the one that is in Mr Karczewski’s submission? Mr Pauling—It does not have to kill immediately; just to shorten life. Senator ABETZ—Yes. To take you through it, if I am mentally incompetent, suffering from, say, severe cancer, I could not access the Rights of the Terminally Ill Act or, if I was under the age of 18, I could not access the provisions of this legislation, and you are saying to me that if my doctor were to prescribe to me high doses of morphine to alleviate the pain— with the knowledge that that would hasten my death—that would be against the territory’s Criminal Code? Mr Pauling—Yes. Senator ABETZ—If I, for example, were to be in a car accident, terminally injured and in terrible pain, and I were to say to the doctor, ‘I know I’m not going to live, but just give me a shot of morphine to get rid of the pain,’ the doctor would have to say, ‘No, no, no. Under the Rights of the Terminally Ill Act, we have to get the psychiatrist and all the other people, and we have to wait nine days,’ and by that time I would be dead anyway. So you are saying that, in all those circumstances, the people of the territory are denied by their Criminal Code the palliative care that I have just been referring to. I just find that amazing. Mr Pauling—With respect, you are confusing two issues. If the Rights of the Terminally Ill Act had never been passed and you said to me, ‘Would it be a criminal offence to give somebody a lethal dose of morphine?’ even though one of your aims was to alleviate pain, then the answer is yes. Technically speaking, that would constitute a criminal offence. Whether or not anything ever happened about it is quite another matter. To then say that the impact of the Rights of the Terminally Ill Act means that doctors cannot carry out their normal treatment of patients is wrong. The Rights of the Terminally Ill Act does not have that effect. Senator ABETZ—I know that the Rights of the Terminally Ill Act does not provide any comfort for the doctors. In your submission to us, you said that in your opinion the present law would give no comfort to a doctor. Right? Mr Pauling—Yes.

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Senator ABETZ—It would give no comfort to a doctor, even with the Rights of the Terminally Ill Act, who is treating an injured person—incompetent or under the age of 18— and wants to give them morphine which might have the double effect, because under the Criminal Code of the territory they might be committing an offence. Mr Burke—The issue is that the Andrews bill highlights this question of intent. It forbids any form of intentional killing in the Northern Territory. That then throws into question the Natural Death Act that exists in the Northern Territory, because under our Criminal Code intent can be by omission or commission. The Andrews bill highlights this issue of intent. To all intents and purposes, for doctors who would normally perform measures which could be called double effect and would not feel any sense of discomfort, these particular words in the Andrews bill of ‘intentional killing’ throws that issue into doubt. That is the problem. Senator ABETZ—That is what Mr Wild tells us in his submission on page 2. I have to say to you that it seems as though the interpretation of Mr Wild is somewhat round the wrong way inasmuch as the Andrews bill amends the Self-Government Act, which is in fact the enabling legislation which allows the subordinate legislation of the Criminal Code to come into effect, and, therefore, you do not interpret with respect to the Self-Government Act by reference to your Criminal Code but you interpret your Criminal Code by reference to the Self-Government Act. The basic rule of statutory interpretation is that, if the way you read a clause makes a nonsense of it, you do not read it in that way but you read it with a view to making it make sense. If you were to adopt that pretty basic rule of statutory interpretation, you would not have the problem that Mr Wild tried to highlight. Mr Pauling—Could I just say that I totally disagree with that as a proposition of law. The basic rule of interpretation he puts is quite wrong. Senator ABETZ—I think Justice Kitto had something to say along similar lines as I have just put. I cannot think of the citation at the moment. Mr Pauling—I will just have to disagree. Mr Stone—Could I just pick up the threads of what Senator Abetz said. Senator, have you not just advanced one of the most compelling arguments for the Rights of the Terminally Ill Act in the Northern Territory by the scenario that you have just taken us through in that we have removed it from the arena of uncertainty, from what might have been occurring in our hospital system or in a patient-doctor relationship, and there are now safeguards in place that have never existed in any jurisdiction anywhere in Australia? The way you took us through was one of the most compelling arguments for our legislation. Senator ABETZ—That is the most compelling argument as to why, if this were correct— that is, what I think is a contorted interpretation of the Criminal Code—there would be a moral duty on the territory to amend its Criminal Code immediately because the Rights of the Terminally Ill Act can only come into operation if the patient is mentally competent, over the age of 18 and requests the death. So it is of no comfort to my suffering that I do not ask the doctor to be killed—I only want my pain relieved—so I make no request for death. I am not looked after in any shape or form by the Northern Territory statutes, and I think that is a shame. Mr Stone—But to bring you back to where you were—we are both lawyers—we both know it is a question of intent, is it not?

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Senator ABETZ—Thank you very much! As soon as you acknowledge that, with respect, I think you have undermined Mr Pauling’s submission and Mr Wild’s submission to this committee because intent— Mr Stone—How? Senator ABETZ—How? Because the big thrust of the submission from Mr Tom Hughes QC was that intent was the fundamental proposition, yet we were told in the submission that intent had nothing to do with it just as long as ‘death was a foreseeable consequence’ of the action. Right? That is all, and I am quoting from page 3 of Mr Pauling’s submission—death was a foreseeable consequence. In every other jurisdiction the situation is that, if you administer pain relief for the purpose of pain relief and that is your intent, that is fine even if there is a consequence of hastening death. Now you are confirming all that to me and, with respect, undermining Mr Pauling. Mr Stone—Where I saw you coming from was that you were trying to paint a scenario of intent with a view to termination of life. Senator ABETZ—No, I was not. CHAIR—Whilst we are on this topic, it might be worth while to ask other members of the committee if they have any questions on it. I personally ask Senator McGauran if he has any question on this subject. Senator McGAURAN—Specifically not on this subject, no. CHAIR—Perhaps then other senators might want to ask questions on this subject. This goes squarely to one of the terms of our reference, which is an important one, and that is the effect the Andrews bill, if passed, would have on the Northern Territory laws. Senator Harradine or Senator Collins, do you have any questions on that? Senator BOB COLLINS—I have got one question—as a non-lawyer, thank God—if Mr Pauling, Mr Stone or anyone can explain in lay-terms where this is all going. I think that people would like to know—I am saying this as an opponent of euthanasia—whether it would not be possible to protect the legal position of a doctor who was providing, in the first instance, pain relief. This is just from conversations and from evidence I have seen from doctors. In the last stages of a dying patient’s life—I have been in that situation, as most of us have, on many occasions now—even though the intent of the doctor is not to kill the patient, there is certain knowledge that, with those levels of morphine, it is likely to have the effect of shortening the life. It must be possible to construct the laws of the Northern Territory in such a way that they protect properly the legal position of a doctor. As I understand it, that is the situation in South Australia. Indeed, it has been suggested to me—on the face of it, I can’t see the problem—that a much more responsible approach, from my perspective, would have been taken by the Northern Territory if legislation similar to that in South Australia had been enacted rather than a highly offensive act which, on the face of it, to me, provides a specific right for a doctor to kill a patient. In terms of the sloganeering that is going on, a lot of it I think has been emotional. But the one slogan where I do not think the truth can be avoided is that this is not a piece of legislation that gives people the right to die. It is, in legal terms, a piece of legislation that under certain circumstances gives doctors the right to kill their patients. Why couldn’t the Northern Territory legislature have enacted legislation similar to South Australia’s? Mr Pauling—There is no constitutional reason why not. Indeed, we are looking at the Consent to Medical Treatment and Palliative Care Act of South Australia to work up not all

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 11 parts of it but many parts of it. That will be stand-alone legislation. It will not interfere with the Rights of the Terminally Ill Act, but it will bring up lots of other areas and perhaps answer some of those difficulties. Part of the argument that Mr Hughes and others raise starts with the proposition that the law in England is that this double effect is somehow given legislative approval. The cases are mentioned; there is no point in going into them. It then moves to the proposition that, in interpreting our Criminal Code, you assume loosely that the words are a bit ambiguous and so you have to go to the common law to find out what they mean. That means you have brought all this English law into the Northern Territory Criminal Code, and that is the way you interpret it. That is how Mr Hughes does it. It is well done, as usual, but once you have analysed the way it is done then you see that it is fallacious. It is fallacious for this reason: the Criminal Code is not ambiguous. There are decisions of the Northern Territory Court of Criminal Appeal that say exactly what these sections do mean. That is all conveniently ignored. You go there and you say, ‘It doesn’t matter what the Northern Territory Supreme Court thinks. They’re probably like the parliament. You don’t have to worry about it.’ We have this argument that tries to bring in the Airedale v. Bland case and the direction to the jury in Cox and to bring in this English law. The fact of the matter is that Australian law is developing away more and more from English law. It is going its own way very much so. In the medical area, for example, the tests as to whether a doctor is liable—how do you find out whether a doctor is liable for poor treatment of a patient? The test in England is entirely different from the test that is applied here. The law in relation to who owns medical records is entirely different here than it is there. The assumption that one day the Northern Territory Supreme Court is going to say, ‘We’d better get some English common law going here,’ is a nonsense. Australian law is developing on its own. So the basic premise is a false one. Nonetheless, in South Australia, the same sort of notion is picked up in this legislation. That is what we are looking at. Senator BOB COLLINS—I won’t take it any further than this, and I know it is difficult to answer these hypothetical questions. If I were standing in the dock of a Northern Territory court having been charged under the Criminal Code because, with the best will in the world, I had given a big dose of morphine to a person who was in real strife and, in giving evidence, I said that it was absolutely my intent to simply relieve the suffering of that person, that I had no intention of either killing the patient or shortening the patient’s life, and I were then asked—I understand this to be the medical situation—‘But surely you were aware that with this dose of morphine it would be likely to have the effect of shortening the life of the patient?’ in scientific terms I would have to answer, ‘Yes, but it was not my intent to do so,’ would I be guilty of an offence? Mr Pauling—Not necessarily. There is something I should have mentioned earlier, and I did not. There is a further part to the whole question of foresight rather than intent, and that is the ultimate part of it is that it is only criminal if a reasonable man in similar circumstances would not have done the act. So Dr Collins standing there could theatrically cast a hand around and everyone would say, ‘Of course that is what he had to do.’ A reasonable man in those circumstances would have done it. Therefore, it is not criminal. Senator ABETZ—Therefore, does that not undermine, with respect, the propositions that you were advancing at the very beginning of my questioning of you as to whether that was the law in the territory? You said, ‘Yes, there was this absolute prohibition that the friend with

LEGAL AND CONSTITUTIONAL L&C 12 SENATE—Legislation Friday, 24 January 1997 the Polish name, Mr Karczewski, mentioned.’ Really, that is not the case in the territory at all, is it? On page 16 of his submission he says that it is the absolute prohibition that the Northern Territory Rights of the Terminally Ill Act addresses. But there is no such absolute prohibition, as you yourself have just indicated in response to Senator Collins. Mr Pauling—What is prohibited is conduct that is criminal, obviously. Senator ABETZ—That is what criminal codes are usually for. Mr Pauling—But the proposition that is put is that if a jury were satisfied that the person administering a lethal dose of morphine—a dose of morphine that is sure in medical estimation to kill the person—stands in that situation, that conduct is prohibited. In the course of any proceedings, it may be open on the evidence to find that a reasonable person, similarly circumstanced and having the foresight that the doctor had, would have proceeded with that conduct. In that event, like any other event, killing is prohibited in the Northern Territory, but if you kill in self-defence you are not guilty of an offence. Senator ABETZ—Where are those qualifications, with respect? Mr Pauling—Section 31 of the code. Senator ABETZ—No, in the submission that we have? Mr Pauling—I cannot take you to a page; I will take it on notice. Mr Karczewski certainly deals with it. CHAIR—Perhaps if you could get back to us, Mr Pauling. Although it is an important area, I want to get on to other areas. Before we leave it, can I just give you a question on notice and ask you to respond to it. The Commonwealth Attorney-General’s Department stated in its briefing note dated 10 December 1996 that it agrees generally with the opinion of Tom Hughes QC that the Andrews bill, if enacted, would not have serious implications for the Northern Territory. I wondered if you could respond to the arguments they put forward in their briefing note and perhaps give that to us on notice. Time does not permit today. They take a slightly different view to Tom Hughes. They say that they largely agree with his opinion on this point. Mr Pauling—Can I just say two things, Mr Chairman. That is a fair reading of the document. The summary says that they agree with Mr Hughes, but once you get into the nitty- gritty of it he or she in fact agrees with me. I do not know who the author is. CHAIR—Perhaps you could detail that in your further submission to the committee. Mr Pauling—Can I just answer Senator Abetz. I now understand what Mr Karczewski was getting at. He is getting at the provision of section 26(3) of the Northern Territory Criminal Code that says that a person cannot authorise or permit another to kill him or, except in the case of medical treatment, cause him grievous harm. That is an absolute prohibition. You will see that the Northern Territory Rights of the Terminally Ill Act specifically addresses that, notwithstanding that section. Senator McGAURAN—I want to direct my questions to Dr Hendy, and they are in regard to definitions within the Northern Territory act. My questions very much relate to the perceived weakness of the act and the crossover that may occur to the emotional state of the patient or subject. Dr Hendy, section 4 says that a person can have access to euthanasia under the legislation if the person is distressed. Is that singularly enough to be eligible for the legislation? Dr Hendy—Where is this? Senator McGAURAN—It says:

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A patient who, in the course of a terminal illness, is experiencing pain, suffering and/or distress. . . It is section 4 of the act. That may be a legal term. Firstly, is that singularly enough? Secondly, is that just an emotional state? Dr Hendy—I do not have in front of me a definition of the word ‘distress’. I am going to ask someone to comment on that from a legal point of view because I am not a lawyer and I did not draft the words. I am not aware of exactly what the definition was that people had in mind when they wrote it. However, I would interpret the word ‘distress’ as meaning in some ways existential pain or existential suffering, that is, a person wishes to die not only because they are terminally ill or because they are experiencing extreme physical pain; they may wish to die because they are extremely cachectic—they cannot eat and they have become extremely wasted, they have lost their independence, they are incontinent of urine and faeces. That can cause very great distress. I would not argue with the word ‘distress’. That is how I would interpret the word ‘distress’, as extreme existential suffering, if you like, about the state in which they find themselves. Senator McGAURAN—Is distress a medical state? Dr Hendy—I am not saying it is a medical definition. It is a word that I think all medical practitioners understand. Senator McGAURAN—There is such a thing as medical depression, isn’t there? Dr Hendy—Yes, clinical depression is something else. Senator McGAURAN—Which is worse? Dr Hendy—I would not like to say that one was worse than the other. The act discusses the issue of clinical depression which is treatable, which is a condition. Distress is not a condition; distress is a state in which a person finds themselves. It is a subjective state of being. It is not a description of a medical condition; you cannot look it up in the textbook and say there is a condition called distress. Senator McGAURAN—So medical depression is treatable and would not allow you access to the legislation? Dr Hendy—Yes, clinical treatable depression. There is such a medical condition. Senator McGAURAN—But distress is not treatable? Dr Hendy—Existential distress, where a patient is distressed, is not a treatable medical condition other than by providing palliative care to such an extent that a patient’s distress is alleviated. If a person is in a distressed state and one can provide sufficient emotional support and counselling support, then a patient may no longer be distressed. Senator McGAURAN—Mr Pauling, is being distressed under the definition as it is in section 4 singularly enough to access the legislation? Mr Pauling—You must have a terminal illness and, in addition, be suffering one or more of the three things that are added on there. Senator BOB COLLINS—Despite having a terminal illness. Senator McGAURAN—Thanks Bob! Setting up a situation, Mr Pauling, if someone was deemed to have a terminal illness, in a doctor’s opinion, that deteriorated over some six years and that had greatly distressed them, but immediately there was no deterioration—it is a slow, eating thing and we could even think of AIDS, which would be one of the worst examples.

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Could that person then access the legislation because they are distressed, six years out from the doctor’s prognosis? Dr Hendy—What we are saying is that it is distress that is intolerable to a patient who is terminally ill. That actually is a judgment that a medical specialist and a doctor make. I suppose I am getting a bit confused about legal definitions and an assessment that a doctor makes. It seems to me that whether the distress is of a sufficient level to justify this and is intolerable to the patient is a judgment that is going to be made by the patient, the specialist and those other doctors who are involved in this procedure. Senator McGAURAN—The legislation reads that it is unacceptable to the patient. It is not a prognosis by the doctor; it is the patient’s judgment. Dr Hendy—No, but the other aspects of this act mean that a doctor who does not believe and is not convinced that the distress is of sufficient severity, and that the patient is not in that phase of a terminal illness that would justify the use of this act, does not need to participate in it. Senator McGAURAN—I will not labour the point any more, but I would like an answer from Mr Pauling to that scenario. Mr Pauling—It is a legal question. What one has to do is look at how the act is structured with section 7 and the way the flow chart flows it around. I agree that in the end a patient may say, having made a request, ‘You have told me that I have got a terminal illness, and I want to take part in this act, and I am really distressed.’ The doctor may say, ‘I’m sorry, in my medical judgment I’m not satisfied. You can’t have access to this act through me.’ Mr Stone—That is the nub of your question, Senator, is it not—can you access this legislation based on distress alone? The answer is no. Senator HARRADINE—Mr Stone, we are charged with the responsibility of, inter alia, considering the desirability of the Euthanasia Laws Bill, the Andrews bill. What is your view of the Northern Territory legislation, the Rights of the Terminally Ill Act? Is it good legislation or bad legislation? Mr Stone—Senator, you would know that I am opposed to the principle of voluntary euthanasia. However, I see that I have a responsibility in terms of the legislation, having been properly passed, having followed due process, to give it an opportunity to work. I have stood by that through some fairly difficult periods. Senator HARRADINE—But is it good legislation or bad legislation? Mr Stone—I do not have the luxury of a personal view in all of this. Senator HARRADINE—Why not? Mr Stone—Because I am the Chief Minister and head of government of the Northern Territory and I defend the legislation of the parliament. Senator McGAURAN—Was it not a conscience vote? Mr Stone—It was a conscience vote but, that legislation having been passed into law, it is incumbent on the government of the day to administer the legislation. I made it very clear even before the vote, before the debate was concluded, that I would give the opportunity for it to be demonstrated that this legislation either would work or could not work. I have stood by that undertaking. Senator HARRADINE—Is the Euthanasia Laws Bill that we are considering good legislation or bad legislation?

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Mr Stone—The Andrews bill is bad legislation because it goes— Senator HARRADINE—So you are able to say that the Andrews bill is bad legislation on the basis of public policy, but you are not able to say to us whether you consider the Northern Territory legislation good legislation or bad legislation. We need to know that. Mr Stone—I defend this legislation. Senator HARRADINE—Yes, but is it good or bad policy on the basis of public policy? Is it good or bad legislation? Please help us. Mr Stone—You are asking me to impose my personal view over and above the responsibility that I believe I have as the head of government. I have never wavered from my view on voluntary euthanasia. Senator HARRADINE—No, but I am talking about the legislation. You are the Chief Minister of the Northern Territory and you are unable to tell the committee established by the Commonwealth parliament whether the legislation is good legislation or bad legislation. Mr Stone—Sorry, are you asking me about whether it is workable? Senator HARRADINE—No, I am asking whether, as a matter of public policy, the public policy basis for the legislation is good or bad? That is what I am asking. Mr Stone—No, I think if you are trying to ask me if this is workable legislation— Senator HARRADINE—No, I am not asking that. Mr Stone—Does it have safeguards— Senator HARRADINE—No, I am going to the more fundamental point. Senator ABETZ—You could answer on the Andrews bill—why not Senator Harradine’s question? Mr Stone—Because Senator Harradine is trying to draw from me my personal view at the expense of the responsibilities that I believe that I have to uphold legislation of the Northern Territory parliament. What you are trying to extract from me, Senator—and it is mischievous, in some ways, if I might say so— CHAIR—Order! Senator HARRADINE—I am sorry, Mr Chairman, could you draw the Chief Minister’s attention to the question that I asked. It was a simple question: whether the legislation in the Northern Territory, on the basis of public policy, is good or bad. Two thousand years ago you heard the question: what is truth? Are you washing your hands of answering this question? Mr Stone—I will tell you what is good public policy. Good public policy is when a parliament, after due process, having gone through all the forms of debate, including a select committee, having duly considered all the arguments, passes legislation according to the Westminster model. That is good public policy. Senator HARRADINE—But we are forever changing legislation because we say that it is bad, it is no good, aren’t we? We are doing that every day of the week. Sometimes we fail and sometimes we do not. But I notice that you have said in evidence to us today that you believe that legislation, once lawfully made, should not be changed in an indecent frame of time. You have obviously made a decision as to whether it is good or bad because you are going to allow it to be on the statute books. If you considered it to be bad you would attempt to have it removed from the statute books. In evidence to us today—this is important for our

LEGAL AND CONSTITUTIONAL L&C 16 SENATE—Legislation Friday, 24 January 1997 deliberations—you have said the legislation, once lawfully made, should not be changed in an indecent frame of time. What is a decent frame of time? Mr Stone—I take the view that the community is entitled to some certainty. If in fact parliaments were to pre-emptively introduce legislation and literally overturn it the next day, the community would have absolutely no confidence in the legislative framework. I say that as someone who has been in government and who recognises the importance of certainty. I said all along that, regardless of my personal views, I would give this legislation an opportunity to work. I believe this legislation is working. It has very strict guidelines. It has been demonstrated to be responsible. I have been prepared to keep an open mind on the issue rather than simply, to my own advantage, allow my own personal views to override what quite clearly has the overwhelming support of territorians. Senator HARRADINE—So you say that the legislation is good legislation? Mr Stone—I am saying the legislation is working. It has very good guidelines. Senator HARRADINE—But you will refuse to tell the committee— CHAIR—Senator Harradine and the honourable Chief Minister, I do not think we are going to get much further on this point. Senator HARRADINE—No, it is very important for the committee and for the Commonwealth parliament itself to know whether the Chief Minister of the Northern Territory considers the Northern Territory legislation—that is to say, the Rights of the Terminally Ill Act—is good or bad legislation. He is refusing to answer that simple question. Mr Stone—Senator, can I just say to you that in my role I administer a great deal of legislation. Some of it does not greatly appeal to me. Some of it could be improved. Some of it is outstanding. Rather, what I look for is to see whether it is effective and efficient legislation. You seem to be having difficulty with understanding that, when you are in government, you are charged with responsibilities that certainly are well over the top of any personal view you might have. You may well try to improve legislation from time to time— and we have done that with this legislation by the introduction of amendments to ensure that it did work more properly and effectively. Senator HARRADINE—I thought that what you just said sounded like the role of a public servant rather than a leader of a government. Mr Stone—Senator, I am here to serve the public, that is exactly the point. Senator TAMBLING—I address my question to the ministers or to Dr Hendy. A number of the submissions that we have received relate to issues of Aboriginal health. There has been quite a substantial argument expressed about a great deal of the apprehension and fear a number of Aborigines have in relation to the bill. Is there any evidence to suggest, from your records or from your experience at the moment, that territory Aborigines are using Northern Territory health facilities less frequently since the commencement of the euthanasia debate? Mr Burke—Certainly from my personal experience and all the evidence in front of me there is absolutely no evidence that there has been any lessening of Aboriginal access to services. For brevity, I have statistics here that can show you all of that data. I will table those statistics. Senator TAMBLING—Can I just take the issue a little bit further with Dr Hendy. I do not know whether you have had the opportunity to read many of the submissions that have been put forward, but what process of education and communication does the health department use when dealing through the health agencies in the more remote or Aboriginal communities?

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Dr Hendy—I do not want to repeat everything that is already in the submission. The submission does go into considerable detail about the education program that has been conducted in Aboriginal communities by Green Ant, a company that was selected by an Aboriginal reference group to carry out the work. The only, the primary, objective of that educational program was to present accurate and full information about the act. There was absolutely no objective to influence anyone’s views about euthanasia and whether they believed in that or whatever their personal, cultural or religious views might be. It was simply to present accurate information. Green Ant’s staff visited communities. They list exactly the communities that are here, so there is no point in repeating them all. There were three communities which said that they would prefer not to have the information at this time and would prefer to wait until these federal challenges had been resolved. There has also been education for nursing staff carried out by the Royal College of Nursing and education for doctors carried out by the Division of General Practice. So the message is getting out through medical practitioners and doctors as well. The general response from Aboriginal communities has been that, although many of them were hostile to the act and the concept for cultural reasons, they have all expressed considerable appreciation for the education program and said that they have an understanding of the act. I myself have interacted with quite a lot of Aboriginal people who have actually said—these are the words they use—‘We understand that it is okay for our children to have immunisation. It is all right for people to go to the clinic and have their treatment. It is okay for them to go to hospital without worrying.’ I am not for one moment going to say that there is not a single Aboriginal person out in the bush who does not still have some fear. The major fear that people had was that it could be involuntary, not voluntary. That fear is there because there is quite a lot of opposition to the act and there are individuals who continue to promulgate a view of the act that someone could kill you without your consent. I think there are always going to be some people who remain fearful. Our visiting staff—and we have a very wide network of community health centres, Aboriginal health workers and nurses in the bush—specifically ask about euthanasia and it does not seem to be an issue for them. I was out at an Aboriginal community last week, one of those which in fact has refused the education program for the time being, and no-one spoke to me about it. If you were to go out and ask, ‘What are the 10 most important problems you have in this community?’ I do not think anyone would say that euthanasia was one of their major concerns. The information we have is that people are not really talking about it. Senator TAMBLING—It appears to me that, in many Aboriginal communities in particular, other Northern Territory laws relating to cremation, organ transplants and sexually transmitted diseases—there is a whole range in the Natural Death Act—do not attract the degree of criticism that this legislation has. There seems to be a reliance and an acceptance in the Aboriginal community of Northern Territory laws in those other related Northern Territory issues. Do you see any difference in this legislation, particularly with relevance to Aboriginal communities? Dr Hendy—If you were to go and ask Aboriginal people whether they think euthanasia is a good idea or whether we should have this act, I think the majority of traditional Aboriginal people living in remote communities would say that they would prefer not to have this act.

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They would also say that none of them will ever use it and they would say that they understand that it poses no danger to them. That is the only answer I can give you. It is true that most of them would say that they do not want the act, but they would also say ‘and we are not going to use it and we do understand that it does not mean that we cannot go to hospital’. Certainly, there has been no fall-off in the statistics. Our health workers and nursing staff do not report any problems at all with people coming for treatment. Mr Reed—Can I make a contribution from my own experiences, having considerable contact with Aboriginal people and having not supported this legislation. It has been rather unfortunate, in my view, that the legislation has been presented to Aboriginal people in a very negative form by many people. Sadly, I think, Mr Andrews may even fall into that category. I use as an example when Mr Andrews came to the Northern Territory. The Chief Minister was in fact, I think, absent from the territory at the time and I was Acting Chief Minister. Mr Andrews had an appointment to meet with me as the Northern Territory government representative and he did not keep that appointment. But he did very much focus his attention on Aboriginal communities. From that point of view, I think you could say that even his approach was somewhat biased. Unfortunately, the emphasis that has been placed on this legislation and the way it has been put forward to Aboriginal people has not presented it in a fair way or in a way that people could gain a reasonable knowledge of the legislation. It has been presented in an adversarial way, in a negative way, and I think that has been rather unfortunate. As I say, I am not one who has been a supporter of the legislation, so I am not trying to present my own personal view in that regard. Senator TAMBLING—Chief Minister, what consequences do you see for future Commonwealth-Northern Territory government legislative arrangements, relations and the lead to statehood as a result of this legislation? Mr Stone—That is very similar to the initial question Senator McKiernan asked me as to whether it impeded the progress to statehood. In my view it does not. However, the whole process has been very damaging to relations between the Commonwealth parliament and the parliament of the Northern Territory—indeed, the people of the territory—because this whole exercise of the Andrews bill goes to the very issue of self-government and the rights of a group of Australians, although we might be small in number, after following due process, to have determined an issue for ourselves. The net effect of this legislation at the end of the day, if it is carried into law, will be to have potentially created one set of laws for one group of Australians and another set for another group in the event that any state of the Commonwealth were to legislate in a way that the territory has. So it has had its damaging effects in the confidence territorians have had in the Commonwealth parliament. They view it as an attempt to override the way they have gone about their legislative affairs in a legitimate, responsible and informed way. CHAIR—Thank you. Before I go on to Senator Heffernan and Senator Ferris, Senator Collins has indicated he has got one question he omitted to ask. Senator BOB COLLINS—I am happy to ask this question and forgo every other question that I was going to ask today, because I do appreciate the time. Not only I but my colleagues here at the table agree that the most important questions that were asked this morning were those questions asked by Senator Harradine, and it was simply the Chief Minister’s response

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 19 that has raised our interest. I know that this will be a concern of senators that are not on this committee. Senator Harradine asked the Chief Minister whether he considered this to be good or bad law. I think that is a perfectly appropriate question to ask. The Chief Minister said that he as Chief Minister has to defend laws, whether they are good or bad and so on, and that the government has done some wonderful things and some bad things. With the greatest respect, Chief Minister, I think there was a huge hole in your argument. In fact, I think that hole in your argument is greatly extenuated by the ministers in your cabinet that are sitting on either side of you. This was not a piece of government policy. This was not a debate in cabinet in which you, even as Chief Minister, may not have won the day. This law was not introduced into the Northern Territory’s parliament as a government bill. This was a private member’s bill in which your party room, as the Labor party room did, gave you the right of a conscience vote. That is, you did not vote on this bill—nor on the repeal bill, I might add—as the Chief Minister of the Northern Territory. You did so as an individual member of parliament whose vote was worth no more or less than any other member of parliament. You said, correctly, that you are a public opponent of this legislation—and you were. Minister Reed made the same point. But could I just point out to you the division list—and I have got it in front of me—on the repeal bill on which there was also a conscience vote. The first thing I would like to do is to repeat again the question Senator Harradine asked. You do not have the privilege, with respect, Chief Minister, of taking a chief minister’s position on this. You voted for the original act as an individual. It was a conscience vote on a private member’s bill. Therefore, Senator Harradine’s question was absolutely legitimate. I repeat it for the record: could you please tell the committee whether you as an individual— and you voted as an individual—consider this to be good or bad law? The last question is, I think, a very pertinent one. Minister Reed said, correctly, that he was also an opponent of this legislation. The opportunity came up properly in the Northern Territory parliament—I stress, the Northern Territory’s parliament, not the Senate—to repeal this legislation, and a conscience vote was given on that. Minister Reed, as the division list shows, voted for the repeal of this legislation. Minister Burke, who is the minister responsible for administering this act, also voted for its repeal. They exercised the conscious decision they had taken in respect of their strong position on this—as was yours—and voted against it. They are both ministers in your cabinet. Why didn’t you? Mr Stone—I would have thought it was fairly obvious, Senator Collins. I was firmly on the public record as saying that this legislation deserved to be given an opportunity as to whether it would work or not. The facts are that it having been passed, whether on a conscience vote—give me at least the courtesy of my full reply— Senator BOB COLLINS—I did not interrupt you, Chief Minister. I have not said a word. Mr Stone—I know exactly what you are up to in the way that you are framing the question. Let me make it very clear. You say I do not have the luxury of a chief minister’s position. It is not so much a luxury, it is a responsibility. It is a responsibility to uphold legislation that has been properly passed into law by the parliament, whether it was passed on a conscience vote or whether it was passed on party lines. At the end of the day, the assessment for me is whether the legislation is operable and whether it has the appropriate safeguards and guidelines. I am satisfied that it does.

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You can try to put the proposition that somehow this is a conflict for me because I might have a personal view, as opposed to the position that I take as Chief Minister. This legislation, having been properly passed, deserves the opportunity to work. I have given it that opportunity. I have defended this legislation, I am here defending it today and I will continue to defend it because there is no doubt in my mind, regardless of the personal views of Shane Stone, that territorians support this legislation. Senator BOB COLLINS—So you are saying you are the only member of the 25 who, in fact, in real terms, did not have a conscience vote. Mr Stone—No, I am not saying that at all. I exercised my conscience. You may take the view, Senator, that your conscience is determined simply on your personal view. You are wrong. It is not only on your personal view; it is on a raft of issues that you take into account. Senator BOB COLLINS—Chief Minister, the reason I asked the question is a very pertinent one—that is, in my view, wrongly and rightly, and I could be wrong, considering the fact that two ministers in your own cabinet voted to repeal this legislation, as they had the right to do on a conscience vote in the territory’s parliament, if you had exercised your conscience vote, as you could have as Chief Minister, and had given that leadership as Chief Minister, the repeal bill would have passed rather than failed. Mr Stone—You have just destroyed your own argument because what you are now appealing to is me providing leadership, as you would say, as Chief Minister. A moment ago you told me my vote was worth no more and no less than any other member of the legislative assembly. Senator BOB COLLINS—I am using your argument. Mr Stone—Oh, no. CHAIR—Gentlemen, we can leave it there. I think a matter of conscience is just that. It is a very personal matter and one which we make our own judgement on. Mr Reed—If I may just indulge a little, given that I was mentioned in Senator Collins’s comments initially. In my view, as someone who voted against this legislation on two occasions, as demonstrated by Senator Collins, we are here today supporting it in the context that it was passed by the legislature. We recognise that it was the Northern Territory Legislative Assembly that passed this legislation. I respect it from the point of view that the legislature has the right to pass that legislation. I am defending the right of territorians through their legislature to do that. From that point of view, the point should be made that we have the opportunity and responsibility to do that. As one who has opposed the legislation, I am here today strongly defending the right of the territory to make legislation. The territory legislature did pass legislation, and that is what I am supporting. I would ask senators to put the euthanasia question aside and focus for a little while on that particular issue. It is a very important one and it is a constitutional one that goes to the rights of territorians and all Australians. CHAIR—Thank you. Senator HEFFERNAN—These questions may also apply to the previous Chief Minister. Chief Minister, you would agree that this legislation is a world leader? Mr Stone—Indeed. Senator HEFFERNAN—You are unable to appropriately, as we see it, answer Senator Harradine’s question yes or no. I am just curious as to why, if you go to the trouble to have

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 21 world leading legislation, you did not actually ask the people with a referendum, given that you would have had the capacity to do whatever legislation was required to enable yourself to have a referendum. I just wonder why you did not go to that trouble. You take great comfort from the polls. You said that part of the justification last night at the forum and your justification this morning has been overwhelming support of territorians by polling, which is a very haphazard assessment of what it is all up to. Why didn’t you have a referendum? Mr Stone—It was actively canvassed. We looked at it as an option. Governments do not necessarily opt for a referendum every time they introduce innovative, world leading legislation. You are going to go through this whole process yourself in your own parliament on the republic issue. I understand that there is no great warmth for the referendum nationally, notwithstanding that that will be, at least in terms of the nation, quite different in terms of our own constitutional development as a country. The Northern Territory is a small community. We have very small electorates, as you would know. I can assure you that you do get a very good feel for what people are saying in your electorates. I can assure you, as someone who was very pro-active in the initial debates, that I was left in no misunderstanding as to what my own electorate thought on the issue. I do not truly believe that a referendum would deliver a result any different from what we believe to be the case. If you are suggesting to me that if we had held a referendum and if I had that information here in front of me that would be so compelling that this committee would go away and say that the Andrews bill should not be supported in the Senate, I would go out and commission a referendum tomorrow because I know what the results will be. But even the greatest proponents of euthanasia in the territory would concede that there is overwhelming public support. Senator HEFFERNAN—So Mr Chips MacKinolty, who is Green Ant, as you referred to it, has been out there in the Aboriginal community. I do not take any comfort from polling because I think it would be fair to say that most polling is conducted by telephone. I will bet that in the territory a lot of the Aboriginal community does not have a telephone and do not get the phone call. I think your assessment and your overwhelming comfort from that assessment is distorted. Perhaps it could be seen by the wider community to be even manipulative. I am of the view that in some way, given that roughly 25 per cent of the Northern Territory population is Aboriginal, the Aboriginal community has not had a 25 per cent input into phone polling because they probably have not got phones. Maybe some of the consideration of why there was not a referendum is that, if, according to Green Ant, there is almost universal opposition to this legislation amongst the Aboriginal community, in a referendum situation perhaps you would get a nasty surprise. If there was 25 per cent opposition mainly in the white community and the Aboriginal community were almost universal in their view, then who is to know where the referendum would lead? Perhaps you should put your money where your mouth is and have a referendum. Mr Stone—You may not be aware, but this legislation at the end of the day was carried on the vote of a traditional full blood Aboriginal member of the Legislative Assembly. It is wrong to say that there would be universal opposition to this legislation in Aboriginal communities. I accept that there is opposition— Senator HEFFERNAN—Almost.

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Mr Stone—I do not even accept ‘almost’ now. Senator HEFFERNAN—As I understand it, Green Ant was employed by the government, so you are not taking the advice of your own employee. Mr Stone—In my view, the legislation has had a real job done on it out in Aboriginal communities by people who have been less than honest about the way the legislation is intended to work. That is why Chips MacKinolty, through Green Ant, has encountered the opposition. As I said, we seriously considered the referendum. We are not being manipulative. We weighed up seriously whether anything would be served by holding a referendum— Senator HEFFERNAN—I think you have answered the question, but you can appreciate my question, given that it was world leading legislation that you did not actually go to the trouble to have a referendum. Senator FERRIS—I was concerned last night at the forum to hear one of the witnesses comment that a class of sixty 10- and 11-year-old children unanimously supported the concept of euthanasia. It led me to wonder whether the government has in any way prepared information for schools to help them understand this legislation. For the children to reach that view—60 of them at 10 and 11 years old—makes me wonder where they get their information from and how balanced it was. Mr Stone, have you or are you planning to in any way inform children of both sides of this debate as part of any school curriculum? Mr Stone—If you are concerned that my government is running around schools promoting euthanasia, we are not. Senator FERRIS—I am not concerned about that. I asked a question. Mr Stone—Try to understand this. This is a small community. This issue would have been canvassed in probably every household in the territory at some stage. People have had a lot to say and think about this issue. Some of you can shake your head and say, ‘Don’t believe it.’ The reality is that it has been very topical. In a city of our size, last night 450 people came along to express a point of view. Find a territorian that does not have a point of view on this one way or the other. The children would simply be reflecting the views of their parents or the discussions that they have had around the kitchen table. It has not been a case of any attempt to indoctrinate the children, or anyone else for that matter, because at the end of the day, whether you want to use this legislation or not, it is a matter of choice; it is a matter for you. If you do not believe in euthanasia, then you do not access it. Mr Reed—Can I make a contribution also as a local member. From the point of view of a parliamentarian, in a place like the Northern Territory, one is highly accessible. All members would have had approaches made to them in relation to this legislation from school groups, and I know that I did. Numbers of representatives of different schools have come to see me to obtain my views on the legislation and why I took the stand that I did. Similarly, representatives from those classrooms went to other members who supported the legislation. They have been very active in my experience in my electorate in pursuing that information because of the high level of awareness of the particular subject and their desire to formulate their own views on it. I think that we should be looking at this in the territory context rather than a national context. Senator FERRIS—Chief Minister, I would not want you to think in any way I was suggesting that. I am merely interested to know whether the children have access through the library in the school or through any classroom material to both sides of the issue. I just found it quite curious that sixty 10-year olds unanimously would support this concept. That seems

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 23 to me to be a very young age for children to have reached that position. I was interested in the process of their thinking. Mr Stone—Our community probably is a little bit different from other parts of Australia. Indonesian has been taught here for almost 20 years now as a second language. We have more computers per student than any other state or territory in Australia. Our libraries are well resourced and our kids are really well informed. You should not underestimate for one moment that this really has been a very topical issue in our community and everybody has had an opportunity to have their say. That is how I would explain the fact that those students have a view. Senator FERRIS—Thank you. Dr Hendy—Could I just add that many schools have in fact also called the health department to ask for information. Information has been distributed—the same information that I was discussing, information that is factual and accurate about the act, not seeking in any way to influence a person’s view. Senator HARRADINE—Could we have a copy of that information? Senator FERRIS—Yes, I would be interested, if that material could be made available to us. Dr Hendy—Yes, we can provide that. That is not a problem. CHAIR—That would be a great assistance to us. Just on that point, we have been provided with details of hospital services to Aboriginal people in the Northern Territory from 1993 to 1996 with various tables attached. I ask that the committee receive that into evidence. It is so moved. Senator HEFFERNAN—I ask Minister Burke as the Minister for Health, do you think, given the world leading nature of this legislation, that in time it will cause a paradigm shift in the world medical ethic? Mr Burke—Could you repeat the question please? Senator HEFFERNAN—In simple language, will this legislation cause a shift in the medical ethic? Mr Burke—No, I do not think so at all. I think if we get back to the underlying ethos of the act—and that is that it is voluntary for the person involved and voluntary for the doctors involved—and if we consider all the evidence worldwide that there certainly are doctors who have a very strong view for or against the concept of voluntary euthanasia, I do not think that much will change in terms of personal ethics. I do agree, though, that if this legislation is allowed to stand in the Northern Territory and it is allowed to be given time then you will have a change in law making in this regard throughout Australia and the world. We are now at a point in history—and we are basically in the hands of the Senate—where this legislation and this ability for people to access euthanasia is at a watershed. Senator BOB COLLINS—Do you think it is good law? Mr Burke—I do. I can say that absolutely. Senator BOB COLLINS—Then why did you vote for its repeal? Mr Burke—Because I did not believe that the bill was good when I had a chance to vote on it as an individual, but I have absolutely no difficulties at all recognising the fact that the democratic process has been played through twice and that the overwhelming majority of the

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Northern Territory population are in favour of this legislation, and I think more and more so. I take the view as a minister that, if you cannot stand the heat, get out of the kitchen. As an individual, I might have personal points of view, but as a politician I have responsibilities not only to parliament but also to my electorate. Senator McGAURAN—In conscience, would you like to see the Andrews bill go through the Senate? You would not be so upset in conscience if the Andrews bill was successful? Mr Burke—Which part of my conscience are you appealing to? Are you appealing to my conscience as a personal individual with no other considerations of anything or are you appealing to my conscience as a responsible member of parliament and a minister? Senator McGAURAN—I am appealing to your conscience. Mr Burke—I believe in conscience that this legislation should stand—absolutely. Senator McGAURAN—In conscience? Mr Burke—In conscience it should stand, because in conscience this Senate should put aside their personal points of view and their personal bigotry and understand the process that it has been through in the Northern Territory and discharge their personal responsibilities. Senator McGAURAN—Would you like to explain what you mean by the Senate’s ‘personal bigotry’? Senator BOB COLLINS—We do not have bigots in the Northern Territory; they are only in Canberra. Senator McGAURAN—Finally something we can agree on. Mr Burke—This is a charade at the end of the day if you—who now have the opportunity to be balanced in your approach—cannot put aside your personal point of view. I do not believe this legislation should be a conscience vote in the Senate. I have said it publicly on many occasions that it should not have been a conscience vote in the House of Representatives. But it was a conscience vote in the Northern Territory parliament twice and as individuals we exercised that. CHAIR—We will leave that question there. I think we have taken it as far as we can. Time is pressing, but before we conclude this section can I leave you with some questions on notice. Firstly, last night there was considerable comment about palliative care facilities in the Northern Territory. There was some criticism that at the time of the introduction of this legislation—the Rights of the Terminally Ill Act—that there was virtually no palliative care available, or at least very little, and that even now the facilities are very poor. I wonder the government could respond to that. Also, I wonder whether the Northern Territory government could respond to the proposition that the Commonwealth have the power to legislate to make any of those acts allowable under the Rights of the Terminally Ill Act to be an offence instead of withdrawing part of the legislative power of the Northern Territory Legislative Assembly. The alternative to withdrawing power is simply to legislate across it and say that anything done which that act does allow and any of those acts which are committed become an offence. Would the territory government agree that the Commonwealth could do that and, if it does agree, would it be more palatable to the territory that the Commonwealth in fact legislate across it rather than withdraw power? Mr Reed—Nationally?

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CHAIR—That is the question. Is there a difference in the territory’s attitude to that and does the territory agree that that could be done? Senator BOB COLLINS—I have moved an amendment in the Senate for that to happen, so I hope so. Mr Reed—If you have the conviction of what you are on about in relation to supporting the Andrews bill, then it should be applied nationally. CHAIR—What I am saying is that this is specifically in relation to the territories because the Commonwealth does not have the head of power constitutionally to do that to the states. Perhaps you might like to take that away and respond on notice, and also on the question on palliative care as well. Mr Stone—Perhaps you could have a referendum nationally first and then determine it on that basis. Senator BOB COLLINS—No, thanks. Senator ABETZ—I am sure there is a treaty lurking somewhere. CHAIR—That concludes this part of the day’s evidence. I want to thank the Chief Minister for coming along today with Minister Reed, the Attorney-General Denis Burke and the officers, Mr Pauling QC, Mr Nicholson and Dr Hendy. Thank you very much for your assistance today and we look forward to the responses to those other matters. [10.15 a.m.] HICKEY, Mrs Maggie, Leader of the Opposition, Territory Labor Party Parliamentary Wing, Parliament House, Darwin, Northern Territory CHAIR—I call the committee to order and welcome Mrs Maggie Hickey, the Leader of the Opposition in the Northern Territory Legislative Assembly. The committee has received your submission and, in accordance with the resolution of the committee, has made it public. I now invite you to make an opening statement. At the conclusion of your remarks, the committee might like to ask you questions. I understand that you have provided us with a copy of the speech you are to make today. Mrs Hickey—That is right. My aim today is to outline the main points within that submission and invite questions thereafter. CHAIR—What we will do is distribute that speech to all senators. Perhaps you would now like to make an opening statement. Mrs Hickey—I am the Leader of the Opposition in the Northern Territory and the member for Barkly. I thank you for allowing me the opportunity to address the inquiry of the Senate Legal and Constitutional Legislation Committee. I will confine my remarks to the issue of the private member’s bill proposed by Liberal MHR Kevin Andrews—the Euthanasia Laws Bill 1996. I do not intend to get into the merits or otherwise of active voluntary euthanasia. This was a matter of conscience for members of territory Labor and remains so. Territory Labor does, however, oppose enacting the Andrews bill, and we do so principally on the following four grounds: first, the territory gained self-government status from the Commonwealth in 1978; second, under the self-government act, the Northern Territory Legislative Assembly was given the power to legislate for these matters; third, the Commonwealth failed to utilise its intervention powers retained under the self-government act within the period required by that

LEGAL AND CONSTITUTIONAL L&C 26 SENATE—Legislation Friday, 24 January 1997 act; and, fourth, the historical role of the Senate in representing states and territories in the Commonwealth parliament. Mr Chairman, if that is sufficient for your committee, I will confine myself to those brief remarks and invite you to ask questions if you need to. CHAIR—Thank you. Firstly, is it the wish of the committee that a copy of Mrs Hickey’s speech be incorporated in the transcript of evidence? There being no objection, it is so ordered. The document read as follows— Mr Chairman Thank you for allowing me the opportunity to address this inquiry of the Senate Legal and Constitutional Legislation Committee. I will confine my comments to the issue of the private members bill proposed by Liberal MHR Kevin Andrews, the Euthanasia Laws Bill (1996). I do not intend to get into the merits or otherwise of active voluntary euthanasia. This was a matter of conscience for members of Territory Labor and remains so. Territory Labor does, however, oppose enacting the Andrews bill. We do so principally on the following four grounds: 1. The territory gained self government status from the Commonwealth in 1978. 2. Under the Self Government Act, the Northern Territory Legislative Assembly was given the power to legislate for these matters. 3. The Commonwealth failed to utilise its intervention powers retained under the Self Government Act within the period required by that act. 4. The historical role of the Senate in representing states and territories in the Commonwealth parliament. Senators: 1. The territory gained self government status from the Commonwealth in 1978. In 1978, the Commonwealth government granted the Northern Territory self government. It was not a rash act. It was not done on a whim. Self government was granted after a concerted campaign by territorians over many decades. I am very pleased to say that Territory Labor has a proud 100 year long history of struggle for constitutional enactment of these rights. The work done by seminal Territory Labor figures like Jock Nelson and Dick Ward asking, no demanding, additional rights for territorians, was critical in the setting up of the first legislative council in 1946. Other Territory Labor members, like John Waters, played influential roles, though largely unrecognised I might add, in pushing the Whitlam Government in 1972, to make one of its first acts, the creation of a fully elected assembly for the territory. In 1978 full self government followed, granted by the Fraser coalition government. When enacting this legislation neither Mr Whitlam nor Mr Fraser expressed any reservations about granting territorians these fundamental rights. They, and every Commonwealth parliament since, believed that territorians could be trusted with the powers granted to us under this legislation. Where the Commonwealth parliament believed issues should remain within their purview they excluded those powers from the Northern Territory Self Government Act. We, in the territory, all hold views about the limits of these powers. They underline our bipartisan approach to statehood. However, we do all recognise that until that is gained, there are some limits on what can be done by our parliament. Enacting legislation on the issue of voluntary euthanasia is not outside of those limits.

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2. Under the Self Government Act, the Northern Territory Legislative Assembly was given the power to legislate for these matters. Senators: My second point is that having given us limited powers in some areas the Commonwealth parliament did not curtail our ability to enact legislation dealing with the matter of active voluntary euthanasia. That long struggle for constitutional rights has embedded in all territorians a strong sense of local and regional identity. Part of that identity is a willingness to approach issues in a way that is sometimes unique in this nation. It is a matter of pride to all of us. However, this approach has been tempered by a respect from the Northern Territory Legislature for the limits of our powers. Under section six of the Self Government Act, the power to enact laws on this and other such matters was granted. This is the same section of the Self Government Act that gave us the right to enact a pro-choice position on abortion in 1978 and a natural death act in 1993, neither of which attracted the attention of the Commonwealth parliament. The full court of the Northern Territory Supreme Court reaffirmed the Northern Territory parliament’s right to enact such legislation for the good government of the territory. What the Self Government Act does command is that laws in the territory are enacted with what could be described as due process and in accordance with the traditions of our Westminster system. This has been stringently adhered to by the territory legislature. The legislation was created entirely appropriately in accordance with principles of responsible self- government under the Westminster system. That is, it was enacted with due process. There was widespread community debate about the bill. There was extensive debate, both publicly and within parliament. There was a formal parliamentary inquiry. There was extensive community education programmes about the bill. Democratically elected representatives of the people of the Northern Territory debated, voted upon and enacted the law. After all this the administrator provided his assent to the bill and it was enacted. 3. The Commonwealth failed to utilise its intervention powers retained under the Self Government Act within the period required by that act. Senators: My third point is the Commonwealth failed to utilise its intervention powers retained under the Self Government Act within the period required by that act. Having gone through the proper parliamentary process to enact this legislation, an avenue was still available to the Commonwealth parliament to extinguish it. Under section nine of the Self Government Act, the Commonwealth retains the power to order: Disallowance of enactments And I quote: 9.(1) Subject to this section, the governor-general may, within six months after the administrator’s assent to a proposed law, disallow the law or part of the law. Despite being lobbied to do so, the federal government of the day chose not to intervene in this way. The then Prime Minister, Mr Keating, determined correctly, that the Northern Territory Hansard the competence to enact this legislation. Regardless of what his private views on the matter may have been, Mr Keating objectively assessed the law and made this determination.

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Mr Keating’s view was entirely consistent with the convention of self government in the Westminster system. Indeed, a submission made by the Commonwealth Attorney-General’s Department to the Joint Parliamentary Committee on the Northern Territory in 1974 stated that: ‘Whilst the Australian parliament can undo what a previous parliament has enacted in respect to constitutional development, the Attorney-General’s Department states that this has not happened in Australia’s history, that it would be politically unthinkable and would only be done in times of revolt or disorder’. Mr Chairman, there is no revolt or disorder. Yet the Euthanasia Laws Bill seeks to diminish the territory’s grant of self government. The author of the Attorney-General’s submission called such a manoeuvre ‘unthinkable’. Further, Senators, no member of the federal parliament challenged the legislation within the required time frame. Here Senators we get to the crux of Mr Andrews private members bill. It is evident that Mr Andrews himself has been aware of these issues. He has chosen not to challenge the legislation on the grounds of the competence of our parliament to enact the legislation. I can only assume that it was because he received advice similar to that available to Mr Keating and the previous government. In other words, despite all the limits on our power and all of the options available to the federal parliament under it, the only way that this private members bill can be successful is to alter what is fundamentally our constitution. To support his case, Mr Andrews and his supporters have tried to paint the rights of the terminally ill legislation as bad law. This is manifestly unfair. The act is good law in that it was established by the full democratic processes of the Northern Territory parliament as I have explained. For Territory Labor, the Euthanasia Laws Bill is bad law because it is a gross infringement upon the rights of territorians. Territorians deserve to be afforded the respect that other Australians receive. The thrust of the Euthanasia Laws Bill is to treat territorians as second class citizens, something given our proud history we can never countenance. Remember we are a federation and the overturning of the law of one legislature and not all legislatures in the federation equally surely undermines the very existence of the federation. The Euthanasia Laws Bill is not about making a law for the better government of all Australians. Far from it! It is about chucking out a law properly and responsibly enacted by a duly constituted legislature. More than just removing rights for territorians, the Euthanasia Laws Bill repeals the law itself and forever prohibits the Northern Territory Legislature or the Australian Capital Territory’s legislature or the Norfolk Island Assembly from ever enacting such laws again, despite the fact that the states may do so without any constitutional opportunity for the Commonwealth to oppose them. The Self Government Act intended the territory be given self determination. Once this concept is breached, where does it end? The enactment of the Euthanasia Laws Bill will have the effect of placing all of our laws under the spotlight. Which ones should be overridden next? I believe this has the consequence of creating great confusion regarding existing law in the territory, most notably the operation of the criminal code and most particularly those very important sections dealing with criminal responsibility. No judicial system can work if doubt exists about parts of the law that it is to administer. 4. The historical role of the Senate in representing states and territories in the Commonwealth parliament.

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Senators: My fourth point deals with the issues of self determination by a competent parliament and what I believe is the Senate’s historical role as the states house and what this requires of senators in assessing this bill. Mr Andrews, as I have said, seeks to fundamentally alter the constitutional framework of the Northern Territory. This is a course of action that has no precedent since the enactment of self government in 1978. He has that power. You in the federal government can do that. You could not do it to a state government because it would be outside of your power but you can do it to the territory. It may well be an old fashioned view but I believe the Senate has a role in standing up for the states and territories. That was certainly the basis for the construction of the Senate in its current form almost 100 years ago. I am sensible enough to recognise that the operations of political parties has reduced that role considerably in the years since federation but I believe a shred of this responsibility still remains. I believe that this is even more the case with this legislation because the operations of political parties has been suspended by all sides making this issue a matter of conscience. Senators: The members of the House of Representatives who voted this bill to you for consideration used their conscience to vote solely on the issue of euthanasia. Your conscience vote is perhaps more complex. Your conscience vote must also include the historical responsibility of being the states house and by being freed from party constraints you have an opportunity to exercise that historical opportunity. It is a rare opportunity. My plea to you is to focus on this responsibility in discharging your conscience and not on the issue of euthanasia itself. As I said at the outset, Territory Labor allowed all of its members a conscience vote on the issue of euthanasia. Some voted against and some voted for. We are, however, united in our opposition to the Andrews bill. That unity was borne out of the fact that even those members who have taken a very strong stand against this legislation believe it is our constitutional right to enact the law and to remove it in the future if they are successful in persuading the parliament to do so. And that is where the argument should be senators, in the Northern Territory, in consultation with territorians. Summary Senators: I do not pretend that the task you have before you is an easy one. I am only too aware that for some of you in this room, the idea of active voluntary euthanasia is repugnant. Your responsibility however extends beyond that view. It is to the way this nation and this federation governs itself. It is to those territorians who fought for our constitutional rights. It is to the previous governments who have granted those rights and responsibilities. It is to future parliamentarians who will be part of the evolutionary changes of our federation. The Euthanasia Laws Bill undermines our self government and creates serious obstacles for the future constitutional development of the territory and for the Australian Capital Territory and Norfolk Island as well. Over half a million Australians will be deprived constitutionally of rights enjoyed by all other Australians as a result of this proposed law. My forebears in Territory Labor gave their all to the constitutional development of the territory.

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Territory Labor would be less than worthy of that magnificent heritage if we did not resist with all our energy this unwarranted intrusion into the properly constituted affairs of a self governing territory. I implore you to reject the Euthanasia Laws Bill and thereby place yourselves firmly on the side of territorians wishing to continue their constitutional development and reject those who would reduce us to second class citizenry. Give us a fair go! Thank you. CHAIR—The first question I have relates to the general question of statehood of the territory, and I asked the Chief Minister this. Do you see the passing of the Andrews bill as posing any impediment to the territory’s progress to statehood? Mrs Hickey—I hope it will not, but I believe that it certainly casts doubt in the mind of territorians as to the intent and the thrust of the current government in terms of the enactment of statehood for the Northern Territory. The law that we are debating today, the Rights of the Terminally Ill Act, as opposed to the Andrews bill, is in fact a piece of legislation that was enacted, in my view and in the view of others within the Northern Territory, in a proper and thorough fashion. If this piece of legislation can be overturned, we believe that it does not augur well for statehood. CHAIR—Would you agree that this legislation in the Northern Territory is groundbreaking legislation and therefore does not really rely on the usual precedents set hitherto and that an unusual response could well be called for; that is, the Commonwealth intervening in a matter such as this. Mrs Hickey—This is legislation that touches on life and death, but I think one has to emphasise the fact that this is active voluntary euthanasia that we are talking about here. This is the decision of the person to seek to end their life and the requirement of a doctor to voluntarily go into that process along with that person. This is not the same as imposition of a death penalty, for instance. In my view it places even less obligation on the nation to observe that legislation than, for instance, abortion law reform, which one could argue is something that is imposed on an unborn foetus by someone else taking a decision. This is a decision that a person acting alone can make on their own behalf. CHAIR—One of the terms of reference relates to the views of Aboriginal communities in relation to this legislation. Is it your belief that there has been sufficient consultation and education in relation to this matter with Aboriginal communities? Do you believe there is a widely held concern by Aboriginal communities in the Northern Territory in relation to the rights of the terminally ill legislation? Mrs Hickey—I believe the government could have done more at an earlier stage to provide an education process out in Aboriginal communities and that this was done late, rather than early. However, I believe that this process, in order for it to be properly and thoroughly understood in remote areas where it is difficult to get to people, where people speak in languages other than English as their first tongue normally, is a process that could have taken years and might never be properly undertaken. I do not think it is just confined to the issue of the piece of legislation we are talking about today, the Rights of the Terminally Ill Act. I myself have a largely Aboriginal constituency. My view from my extensive travels through my electorate talking to people is that Aboriginal people now, while they have an aversion to the legislation at a personal level and while they are saying this is not something they would seek to access, they also understand that it is not something that is going to be imposed on them.

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I think that that is a view. The issue of whether this might be imposed by others outside has been something that has been mischievously bandied around. It certainly happened in Tenant Creek, in my home town, by a person who purported to support an anti-euthanasia viewpoint. I had witnesses giving me information in this regard. This person was actively telling Aboriginal people that if they went to hospital they were likely to get that needle. Of course that caused a lot of concern and alarm in the community, as in fact the whole issue of attending hospital for medical treatment can often cause people problems, Aboriginal people particularly, when they are going into a strange environment and having to deal in a language other than their own. However, it is my view, having looked at it over an extensive period now, that Aboriginal people are now saying, ‘It’s not something that need affect us.’ So I think that message has got through. Senator McKIERNAN—I have had the opportunity to quickly glance through your presentation here this morning, Mrs Hickey. As I read it, you are putting tremendous store in your third point: the fact that the Commonwealth parliament did not exercise its powers to overturn the Northern Territory act within the lawful constitutional rights of the Commonwealth government has available to it. Would you care to elaborate further on that point here? It does answer a question that was put to the Chief Minister and his other ministers about whether or not this is good law or bad law and you do not equivocate on that question here. Could you elaborate? Mrs Hickey—Senator, I do not equivocate on that issue. I do believe it is good law. My point in saying that the Commonwealth failed to utilise its intervention powers retained under the Northern Territory (Self-Government) Act within the period required by that act of course refers back to the time when this legislation first went through the territory parliament. My understanding is that the federal parliament had six months in which to overturn that law and it is also my understanding that approaches were made to the former Prime Minister, Mr Keating, in terms of a request that that legislation be looked at to be overturned and that it was Mr Keating’s firm view, irrespective of his particular and personal view on euthanasia, that the legislation was territory law and should be allowed to remain so, as indeed all Labor governments in the 13 years of Labor rule, and in fact governments before that, have allowed territory legislation to pass unfettered up until this time. Senator McKIERNAN—Assuming Mr Keating, the then Prime Minister, wanted to intervene and overturn the law, what would have been the process in order to do so? Mrs Hickey—I believe that he would have had to undertake the process of making objection to that particular legislation. We have probably rehearsed the technicalities of that before. I think that is contained within other submissions that are before us. The principle, and that is the issue that I am concentrating on, is that that was not done. Yet there is no doubt that many approaches were made, both individually and at a community level, that the legislation was objected to, within and outside of the Northern Territory, and that the federal government should take steps to intervene, and that did not happen. Senator McKIERNAN—Would it have been possible for a private member of the Commonwealth parliament, be they a senator or a member of the House of Representatives, to initiate action to bring about the overturning of the legislation within that six-month period? Mrs Hickey—Senator, I would have to take on notice a question about the technicalities of what the federal parliament can and cannot do. It is my understanding that the legislation could have been overturned by intervention within six months because that is the way in which

LEGAL AND CONSTITUTIONAL L&C 32 SENATE—Legislation Friday, 24 January 1997 the intervention powers that are retained work. That was not done, as it has not been done in any other case for the last 22 years. Senator McKIERNAN—The Rights of the Terminally Ill Act when it was passed in the first instance was carried by the slimmest margin. The move to repeal the act, again, was carried by a slim margin but when the remonstrance was carried, that was actually carried unanimously. Do you believe that the debate that arose around the Andrews bill, which was ongoing at that time, had any impact on the views and ultimately the votes of the members of the Northern Territory assembly when they voted on the remonstrance. Would the vote have been any different had the Andrews bill not been in existence at that time, do you believe? Mrs Hickey—Senator, had there not been the Andrews bill before us, there would not have been a remonstrance. The remonstrance was entirely to do with the issue of the intervention of the federal government in territory matters. But certainly, in terms of the issue of support or otherwise, there is an undivided view among parliamentarians in the Northern Territory that the Andrews bill is interference in the territory’s affairs and the territory’s right to enact its own properly constituted and properly voted upon legislation, legislation that has been debated by parliamentarians who have been elected in the due process in the Northern Territory. CHAIR—Senator Collins and Senator Abetz have a comment in relation to this matter of the intervention. Senator Collins, what was your understanding of the ability to intervene within six months of the passing of the right? Senator BOB COLLINS—I did not expect to be invited to— CHAIR—I am asking you to assist the chair. Senator BOB COLLINS—Yes, Mr Chairman, I can assist you. The provisions are laid out in the Northern Territory (Self-Government) Act. There is no role for the parliament in this matter. That needs to be clarified. It is the government. In fact it is the Executive Council, which effectively, of course, is the government. I can confirm that approaches were made to the former Prime Minister on this issue. He positively refused to intervene, I am pleased to say, on the grounds that so far as the former government was concerned, good law or bad law, that government recognised the parliament of the Northern Territory as the governing body for the Northern Territory. I just conclude quickly, because this is relevant and it has not been mentioned in debate. It is not the first time that requests have been made for federal intervention to overturn Northern Territory laws, as Marshall Perron and others are well aware. There have been many requests over the years, often on Aboriginal issues, for federal intervention, principally, might I say, because there was a Labor government in Canberra and a conservative government here. Way back in the early days of self-government, a very considered effort was made to invoke federal intervention to overturn sections of the Northern Territory’s new criminal code. The reason I make this point, Mr Chairman, is this was very, very early in the days of self- government, not when the Northern Territory’s parliament was 18 years old, but when it was just a few years old. On that occasion also, the federal government flatly refused to intervene on the grounds that the Northern Territory parliament was the appropriate legislative body for the Northern Territory. Senator TAMBLING—I would like to comment on the issue that has been raised. Whilst I acknowledge that Senator Collins has raised the formality of what is permissible and the process under the Northern Territory (Self-Government) Act, it does need to be pointed out that there was nothing to prohibit any member of the federal parliament, in the House of

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Representatives or the Senate, raising through the procedures of either place, through notice of motion, a request from the parliament to the executive to institute the process of disallowance. That was not done. It was not tested in that way. Certainly, some members may well have informally approached or written to the Prime Minister at the time, Mr Keating, and received some form of non-compliance. But there was no way in which the forms of the parliament which were open to any member or senator were tested. Just as the Andrews bill is in itself a private member’s bill within the context of the federal parliament, it is therefore now being tested under those processes. Similarly, any notice of motion could have been tested; nobody sought to do so. CHAIR—Thank you, Senator Tambling. Before I ask other senators, Mrs Hickey, do you have any comment on all that? Mrs Hickey—No, except to say that I think what Senator Collins had to say with regard to the time frame in which the territory parliament has been operating and the fact that there has been over the years several attempts, or certainly several moves, to overturn territory legislation—and, may I say, that has not been done in some very significant areas, such as the criminal code—and that that was not done I think argues a very strong case for the Senate to be looking very closely at whether it should be defying that convention in this case. Senator ABETZ—Mrs Hickey, do you in any way object to the right under the self- government act of the executive of the federal parliament to in effect outlaw any legislation passed by the Northern Territory legislature? Do you find that repulsive as a matter of principle or not? Mrs Hickey—I think the federal government has a duty to examine law that is enacted in territories. As things stand at the moment, we recognise and respect that right in the Northern Territory in the same way that we believe that this piece of legislation was passed in a properly ordered way and, in fact, was assented to by the Administrator in the Northern Territory. I do not have a problem with the ability of parliament to be doing that. I return to the point that the Commonwealth actually failed to utilise those intervention powers at the stage when they could properly have done so. Senator ABETZ—Would your objection have been any different if, say, the Prime Minister, sitting round the cabinet table with Senator Collins, decided, at the time, ‘We will just use our executive power and overturn it’? Would you have found that as abhorrent as a piece of legislation which will have exactly the same effect? Mrs Hickey—Of course, I have always supported this legislation. So, at a personal level— Senator ABETZ—Yes, but I am trying to deal with it as a matter of principle rather than the detail of the legislation. Mrs Hickey—Yes. I certainly think in terms of similar legislation, or even any legislation, provided it had gone through the processes that this legislation has gone through, provided it had been assented to by the Administrator in a proper way, I would have had very strong objections. Senator ABETZ—But some submissions here today seem to put some weight on the fact that the six-month period that the federal executive in fact had to overturn the legislation was not exercised. I am wondering if there is some different quality about the federal executive simply overriding the legislation, or the federal parliament, by way of a full vote involving every single member of parliament exercising some degree of power. Is there something uniquely different between these two methods?

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Mrs Hickey—Of course, in the first instance you are looking at, I suppose, a group effort and group decision-making of moving toward a position of opposition or objection to the legislation. In the second instance, what we have now is a private member’s bill raised to knock over what, in essence, was a private member’s bill within the Northern Territory, but which was embraced fully by the parliament under due process. Senator ABETZ—Yes. But is there any difference in the mechanism that may be employed to knock out a validly passed law of the territory, be it by the Governor-General signing a memorandum saying that the Rights of the Terminally Ill Act is null and void or the federal parliament passing legislation? What is the difference? Mrs Hickey—I think the difference is that the Northern Territory and the other territories— Norfolk Island and the ACT—have been vested with particular powers to enact legislation. Under normal circumstances, that legislation would pass through and, without objection, it would be the same sort of legislation which would be passed anywhere else. I think the principle and the point is that the Commonwealth has vested those powers in the Northern Territory and has given them the ability to enact legislation and not to be watched over, should I say, on issues of, in this case, a moral nature. Senator ABETZ—But why was the reserve power left in the self-government act, which simply allows the federal executive—not even the federal parliament, the whim of the Prime Minister and the Governor-General—to sign a document saying that law is going to be chucked out? Mrs Hickey—I assume because we were, at that stage, when the self-government act was decreed, a fledgling government. We have now had 22 years in which to enact our legislation. Let me also say that the sort of legislation that does deal with matters of morality—things like the abortion law reform, the Natural Death Act—has never been overturned. Never has the territory’s ability to enact legislation of that sort been challenged. Senator ABETZ—Yes, but you would agree with me that the Rights of the Terminally Ill Act is not the normal piece of legislation that you see throughout Western democracies, is it? It is somewhat unique. Mrs Hickey—There we do disagree slightly because, although it does deal with the issue of life and death—in fact, provision of death on request—it does deal with an individual person and an individual person’s choice. It is not something that is going to be imposed on another person. Therefore, I have to say that I do not find it the sort of far-reaching and dramatic legislation that some people do. I certainly believe that, in terms of those people in the territory who have been in favour of this legislation, they did not see this as something that was suddenly going to open up the floodgates to people accessing active voluntary euthanasia. They saw it as an ability for people who are in pain and suffering at the end of their life with terminal illness to be able to end their life with some dignity and some comfort. Senator ABETZ—I do not want to go into the detail of the legislation, but we were told earlier this morning that this was world leading legislation—I think the Chief Minister said that. The view in the territory is that this is somewhat unique legislation which has not been passed in a parliament elsewhere in Western democracy, is it not? Mrs Hickey—That is true. It has not been passed elsewhere, but I think that society has accorded it some very dramatic overtones that it need not necessarily have.

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Senator ABETZ—That is another argument. Can you accept that when the federal parliament gave limited self-government to the territory it reserved industrial relations, land rights, uranium mining, and a fourth one which escapes me at the moment. In 1978, if you were to ask every single member of the federal parliament at that time what they thought the Northern Territory legislature might exercise the powers that they were given on, euthanasia was not even a topic, was it? Mrs Hickey—No, it wasn’t. Senator ABETZ—It is something that has grown within the community at large as a discussion point. You people in the territory and the legislature have reacted to it. Similarly, doesn’t the Federal Parliament have a right to similarly react to this issue, having grown up in the community, and exercise its judgment and mind on it, whether it be right or wrong? Mrs Hickey—It has a right to do so. What we argue with is the validity of overturning properly constituted legislation in the Northern Territory. Senator ABETZ—If it is right, surely it is valid. Mrs Hickey—It is valid legislation as far as I am concerned. I am not with you, Senator. Senator ABETZ—You said that the federal parliament has the right to do it, but you disagree with the validity. Mrs Hickey—I beg your pardon. They have an opportunity to do it. I do not think that in this particular instance they should not do it, no. Senator HEFFERNAN—I was curious as to what your party’s view of a referendum was prior to the legislation. Did you discuss that in the party room? Mrs Hickey—It was discussed, on and off. Senator HEFFERNAN—What was the outcome? Mrs Hickey—I think most people just agreed that the polling that had been undertaken was probably giving a pretty strong indication of how a referendum would go. I think you posed a question to the previous speakers here with regard to Aboriginal communities and, for instance, telephone polling and the inability of those people to access telephone polling—which is quite correct, of course. My view would be that if a referendum were held in the Northern Territory, given the overwhelming support in the non-Aboriginal community, it would still have come out at a considerable vote in favour of euthanasia. Senator HEFFERNAN—Given the world leading nature of the legislation, do you think it would have been appropriate in your view to have a referendum? Mrs Hickey—I think it could have been done, yes. I do not have a strong view about it one way or the other, Senator. I suppose that we, as legislators and people who have been properly elected, have a reserve about having a referendum on any sort of issue, really, provided we feel that we have listened to the views of our constituents closely enough. Of course, the electorates of the Northern Territory, as you know, are very small—3,500 to 4,000 people. Any member who cannot get around their electorate and get a pretty clear view of the views of that electorate would be failing in their duty. I have to say that I have an electorate which has a high proportion of Aboriginal people. So, in my case, if I were following the dictates of my community, I would probably be split almost fifty-fifty. So the issue of whether one would go with the will of the people or with

LEGAL AND CONSTITUTIONAL L&C 36 SENATE—Legislation Friday, 24 January 1997 one’s own individual view was a difficult one for me and I think for some other members. I do not know whether that answers your question. Senator HEFFERNAN—Finally—just a quick yes or no—do you think this will change the medical ethic? Mrs Hickey—No. I think there are people who are going to support people who want to access active voluntary euthanasia and there are those whose consciences tell them that they find it repugnant and they cannot do it. Senator HEFFERNAN—If I asked you that question outside the room, with politics aside, would the answer be the same? Mrs Hickey—Yes. Senator ABETZ—Is that an invitation? Mrs Hickey—To come outside. Senator TAMBLING—I have only one question. Mrs Hickey, what do you perceive to be the view of territory women? Do you see them to be any different to men in this particular community? Have you had any discussions with the women’s advisory groups or the advisory groups of older women in the Northern Territory? Mrs Hickey—Senator Tambling, it has been my personal experience that the women’s groups that I have dealt with are almost more supportive of this legislation than are other either mixed groups or totally male groups. I think that comes back to some extent to the caring nature of women. In fact, if you look at the votes that were cast in the Northern Territory parliament, you will find that all four women in the Northern Territory parliament—three at the first instance and four at the next—voted in favour of the legislation. I think that is perhaps because women do deal with some of those issues. They do care for people in their declining years. They care for them at those stages of extreme illness and extreme anguish. Obviously, if you have a view that euthanasia is abhorrent, if you hold that strongly held view, then you are not going to be looking at it in that way. But the majority of women that I have spoken to have been in favour of it. I do not include in that Aboriginal women, with whom I found it difficult to talk about that issue. Senator BOB COLLINS—I have just one question and it requires only a yes or no answer. In view of the discussion that we have just had on the reserve powers in the Northern Territory (Self-Government) Act, which were of course properly put in that act as transitional powers when the parliament was new, wouldn’t you agree that, after 18 years of responsible self- government in the Northern Territory, those provisions themselves are now anachronistic and should be repealed? Mrs Hickey—Yes, indeed. Senator HARRADINE—On the basis of time, I have no questions for this witness. CHAIR—Senator Harradine, I think we can fit one or two questions in because we can take some time off our lunch break. Senator HARRADINE—And then you will blame me for that. CHAIR—No; everyone will blame the chairman. Senator HARRADINE—One question then. If I can refer you to the House of Lords Select Committee on Medical Ethics, that select committee concluded:

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Ultimately, however, we do not believe that these arguments— that is, those advanced in favour of euthanasia— are sufficient reason to weaken society’s prohibition on intentional killing. That prohibition is the cornerstone of law and of social relationships. It protects each one of us impartially, embodying the belief that all are equal. We do not wish that protection to be diminished... Mrs Hickey, I am very concerned about the effect of this. There have been a number of submissions made to us of the effect of this on the vulnerable and where it may lead to. Presumably you do not agree with the views of the Select Committee on Medical Ethics. Why did the House of Lords committee, the Canadian Senate committee and the New York State inquiry all get it wrong? Mrs Hickey—They were looking at sets of circumstances that were outside the legislation that has been enacted by the Northern Territory. If I for one moment thought— Senator HARRADINE—I am sorry? Mrs Hickey—Let me just elaborate on that. They were not considering these issues in terms of the territory legislation that we have enacted. I am saying that it is our belief in the territory that we tried very hard to ensure that this legislation would not be used in the wrong manner, would not be used unintentionally, would not be used in a coercive manner and would not be used in an illegal manner; that it would be used under very strict guidelines and under very closely monitored circumstances. We have tried very hard to avoid the pitfalls that we have seen in other legislation. I think that those who drafted the legislation and those who looked at amendments to it made every effort to ensure that problems with regard to unintentional or intentional abuse of the legislation would be eliminated from the legislation. I have to say that I would be the first person to object to a piece of legislation that I thought was liable to be abused, but I think that that applies across the board. There are all manner of pieces of legislation that we could apply that to. My belief is that we did a good job in the territory. We did as careful a job as we could to ensure that the legislation would not lead to the sorts of problems that I think that the House of Lords and those other committees looking at the issue of euthanasia were considering. Senator HARRADINE—Are you saying that the House of Lords report, the Canadian Senate report and the New York State report were not dealing with the same thing? I have the reports here in front of me. Time does not permit me to go into those, but I invite you to have a look at the reports afterwards, if you wish. They were dealing with precisely the same issues. The question of safeguards, the question of voluntaryism and all those matters were dealt with thoroughly in those reports. Why did they get it wrong and the Northern Territory parliament did not? That is all I am asking. All those that voted for the private members bill did not. Mrs Hickey—Perhaps I can put it this way: maybe it is a question that can only be answered if this piece of legislation is given an opportunity to work, and then we can see whether they got it right or they got it wrong. Senator BOB COLLINS—How many people die in the meantime? Senator McGAURAN—It is a pretty costly experiment. Mrs Hickey—You are suggesting that I have got a callous approach to this in terms of your question. My preamble to Senator Harradine was that I believe very sincerely that we have got it right, that we have got it as tight as we can in the Northern Territory and that there will be no opportunities for this legislation to be misused.

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Senator HARRADINE—Mr Chairman, I do not want the witness to consider that I was reflecting on any— Mrs Hickey—No, not you, Senator, I think Senator McGauran was the one who was suggesting that I was being— Senator BOB COLLINS—It is the exuberance of youth. Senator McKIERNAN—When you spoke earlier about your electorate communicating with you, you gave an example of the numbers of people within the electorate and said that your electorate was probably divided fifty-fifty. You also said that you have a high proportion of Aboriginal electors within your constituency. Of the 50 per cent who would be opposed to the territory legislation, how many of those would be Aboriginal? And, if a majority of them were Aboriginal, how did you take their views into consideration when you were forming your own views when you were voting on the two occasions? It is an important question for me because as a senator for Western Australia I too have a large proportion of my electorate who are Aboriginal and some of them have expressed views to me about the slippery slope—what is happening in the territory and how it can impact upon them. Mrs Hickey—When I talked to my constituents I was not saying baldly to them, ‘Do you agree or don’t you agree?’ because, for one thing, in my experience that is not the way you approach Aboriginal people with a question. The scenario that I was attempting to put was that this was a piece of legislation that was likely to be passed in the Northern Territory and that it meant that people could access it if they so desired. Bear in mind also that the legislation in the Northern Territory stipulates that people must have the legislation clearly explained to them in their language and that, by definition, excludes numbers of Aboriginal people because there are not translators in those languages. To ask them as a first question, ‘Do you think that the idea of ending your own life, or having somebody assist you to end your life, is something that you would support?’, most of them would say no. That was my experience. But if you said, ‘This law is not a compulsive law. Nobody is going to make you end your life. Nobody is going to coerce you to end your life. Do you think it is all right for other people if they so desire to access it?’, they would say—and lots of them have said to me—‘Well, there are people out there in other parts of the community who may want to access that legislation and that’s their business. That’s their business; it’s not our business’. Senator McKIERNAN—It has been put to us that Aboriginal people, particularly in outback regions right across Australia, just will not have access to this law in the territory even if it was kept confined to the territory and not allowed to be expanded to anywhere else because of those language difficulties and the difficulties in getting interpreters. What consideration was given to that discriminatory practice when you were considering your own legislation? Mrs Hickey—If I understand your question right, are you saying: did we deliberately include that as an aspect of the legislation in a way to prevent access of Aboriginal people? Senator McKIERNAN—My slant in asking the question is about access and equity rather than protection for Aboriginals. Mrs Hickey—I think it was understood that for anybody, whether they were Aboriginal or non-Aboriginal, the issue of ensuring that the requirements under the act were clearly understood by people should be provided to them in the language that they best understood.

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That applied equally to Aboriginal and non-Aboriginal people and it applied to other ethnic groups. There is no doubt that we lack qualified interpreters in many of the Aboriginal languages. As far as I am concerned, that is a very poor state of affairs and a reflection on our community in the Northern Territory. We should be putting more resources into translator services to enable people not only to access legislation but also to appear in court, which at the moment is very difficult because people do not always clearly understand what is being said to them in the English language. The issue goes back to what Senator Harradine was asking me about checks and balances on this legislation and the protection of people. It must be clear to whomever is seeking to access that legislation and they must know what it is that they are liable to undertake. While there may be deficiencies in the interpreter services, I do not think that should have prevented us from including that aspect in the legislation. CHAIR—Mrs Hickey, thank you very much for your attendance today and for assisting the committee with its deliberations. We will send a copy of the Hansard in due course. I now call Mr Marshall Perron to give evidence. [11.01 a.m.] PERRON, Mr Marshall Bruce, 28 Doctors Gully Road, Darwin, Northern Territory 0800 CHAIR—Mr Perron, welcome here today, and thank you for your attendance. The committee does have your written submission. Do you have anything further that you wish to tender at this stage? Mr Perron—I appear here as a private citizen. For the record, I am the architect of the Rights of the Terminally Ill Act as it was introduced into the parliament of the Northern Territory originally. I would like to make a few comments to open up, Mr Chairman, and then I would be happy to respond to questions from the committee. Firstly, I would like to commend the Senate for sending these terms of references to this committee. I hope that when it comes to a vote on the Euthanasia Laws Bill 1996 senators are better informed on the issues than were members of the House of Representatives when they voted. Some of the members of the House of Representatives quite clearly had no idea of the provisions of the Rights of the Terminally Ill Act, which they voted so overwhelmingly to overturn. For example, the member for Bowman said that it was a ‘state sanctioned murder’. The member for Richmond said that the old, the poor, the disabled and the mentally disadvantaged are gravely at risk of being euthanised. The member for Hinkler said that some of us will be perceived as valueless and taken out of circulation. The member for Hughes said that the people of the Northern Territory need care not death by administration. The member for Paterson said that doctors were being given supreme authority over life and death. The member for Cook implied that all the staff wearing white coats in a nursing home were authorised to give the elderly a lethal injection. The member for Dawson said that a frustrated family could decide that euthanasia was the best way out for a patient. The member for Moore did not know that the Northern Territory act is limited to competent adults. The member for Braddon claimed that the act opened up the possibility of 20-year-olds who feel depressed going to doctors to have their lives taken early. The member for Mitchell said that there is no such thing as voluntary euthanasia because for disabled people and infants it becomes an involuntary process.

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The member for Sturt said it could lead to active voluntary euthanasia where, at the request of a third person, action is taken to end a life. How the voluntary bit and the third person fit together I do not understand, but he was clearly up a tree. The member for Petrie believes that the Northern Territory act determines who lives and who dies. Even the sponsor of the legislation, the member for Menzies, made a series of absurd and inaccurate statements about what the Rights of the Terminally Ill Act does or does not do. Most of his arguments are demolished if the word ‘voluntary’ is put before euthanasia. ‘Voluntary’ is a word I have never heard Mr Andrews use. One of the things that he said, which I should point out to the committee, was this: ‘What we in this parliament—he was referring, obviously, to the federal parliament—legislate to allow, we approve and encourage.’ In saying that, he was referring, of course, to the Rights of the Terminally Ill Act and his Euthanasia Laws Bill. He was also suggesting that if the Euthanasia Laws Bill is not processed then the Commonwealth parliament could be seen as encouraging people to take advantage of the Rights of the Terminally Ill Act. That is an absurd statement. Governments regulate for all manner of things that they do not encourage. Indeed, in areas such as prostitution, you regulate them to control them carefully in the hope, I would suggest, that no one really does participate—certainly by way of being prostitutes anyway. Likewise, in the control of the termination of pregnancy, to suggest that because governments legislate in the field of abortion they therefore encourage the activity is clearly a nonsense. But it is typical of statements by the honourable member for Menzies, and his second reading speech is riddled with it. Criticising what the Rights of the Terminally Ill Act does is one thing. Alleging that it allows what it does not is a classic tactic of individuals opposed to voluntary euthanasia. Senators should be mindful of that tactic when they receive some of the submissions that they will. I have compiled a list of inaccurate, irrational or ignorant remarks by 28 members of the House of Representatives during the debate on the Euthanasia Laws Bill 1996. I would like to table that document if I may. I have 20 copies for the committee. CHAIR—Thank you. We can perhaps deal with that in a moment, if you would like to continue. Mr Perron—I will conclude by touching on two items. One is simply the issue that this has really never been done before. For that reason, there is an implication in many submissions that it should, therefore, never be done. The response to that, in my view, is that we have never in history lived so long or died so slowly. In 1900, the average life span in Australia was 51 years. Today it is 75 years for a male and about 80.9 years for a female. We have never died so slowly and, for a very few, we have never died so agonisingly. The future in medical science is going to be that this scenario becomes more so. We would all applaud the fact that lifespans will be extended further and medical science and the development of drugs will get better. We will also die more slowly, because eventually doctors will not have the excuses that they have today for using drugs such as morphine to control pain which have the double side effect of killing you. Drugs will get more efficient at controlling the pain while the physical and mental degeneration continues. We are moving to a situation where already a very significant number of the people who die in our society die as a result of human intervention. They die because doctors and families consult and decide to turn off life support machinery. In some cases, genuine voluntary euthanasia occurs where a patient appeals to doctors willing to risk their career and liberty and a patient is assisted to die in a comfortable way.

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However, the fact is that as time goes by more and more of us are going to die when somebody makes the decision that we can die. What I believe the Australian people are saying is that they want the right at least to be able to make that decision for themselves in advance of being in such a state that they cannot make the decision and others have that responsibility for them. In response to the view that it has never happened before and therefore we should not do it and it has such awful ramifications which cannot really be demonstrated so we will just jump at shadows, it is a little known fact that the Swiss have permitted and practised assisted suicide for 50 years without their society crumbling as predicted by the House of Lords and others. I tabled a document which gave an explanation of the Swiss system. Under Swiss law some 120 people per year are assisted to suicide completely legally. It is a practice. As I say, the law has been such for 50 years. It is not very well known. The Swiss are not generally people who go around the world bragging about their affairs, and honourable members may find this information to be quite new to them. I have been aware of this for some time, but it took me a while to get hold of some documentation which explains exactly how the Swiss go about assisted suicide. Members will find, when they have the time to peruse that document, that it is far wider than the Rights of the Terminally Ill Act inasmuch as it is not limited to any category of people. In fact, it is so open that their law does not make it an offence to assist another person to die if you do so without benefit to yourself. In other words, it is not limited to adults or to the competent, and it is not limited to a physician being the sole person who can assist another to die. Senator McGAURAN—So the Swiss way does include the incompetent. Mr Perron—Under their law I believe it would include the incompetent. However, there is an organisation called EXIT under which it appears almost all the assisted suicides take place—at least those that are condoned. EXIT’s criteria for assisting a patient are limited to a competent adult, but the law does not limit it to that. I understand that Switzerland is regarded as one of the most democratic of all countries in the world. I am not familiar with the nature of their governmental system of democracy, but I understand that it involves a very high degree of community participation in decision making. They are all the remarks I have to make. CHAIR—Thank you, Mr Perron. You attached a flow chart to your submission which detailed the steps which had to be taken in relation to the rights of the terminally ill. Was that made up by yourself or by the Northern Territory government on legal advice? Mr Perron—It was made up by an officer in the Northern Territory government in the Attorney-General’s Department. It was initially made up to be part of a package to educate territory doctors and nurses on the provisions on the act. CHAIR—The other question I would like to ask is in relation to the experience in the Netherlands. Last night at the open forum the situation in Holland was raised. What is your view of the relevance of the experience of euthanasia in that country compared to the situation in the territory? Mr Perron—I think that too much store is placed on the situation in the Netherlands in trying to describe where voluntary euthanasia may well lead us if we move down this path in Australia. In preparing legislative proposals, I specifically rejected the system in Holland as being appropriate for Australia. The thing that I found most objectionable was the concept

LEGAL AND CONSTITUTIONAL L&C 42 SENATE—Legislation Friday, 24 January 1997 of requiring doctors to break the law and requiring the system to operate with the good grace of crown prosecutors who simply would not bring charges if a doctor followed a set of rules. In a country where the rule of law supposedly is what governs our relationships, to some degree, between each other, it is important to have the rules laid down quite clearly in law and not expect people, in the normal course of their affairs, to break the law and operate on the assumption of good grace that the crown prosecutor will not follow you up. I think that is objectionable. Also, the Dutch system does not require a person to be terminally ill. I do not think that that is acceptable. The thing I admire the Dutch most for—there are lessons to be learnt for Australian parliaments—is that they are the only country in the world that has had the courage to do a most comprehensive government backed inquiry into how everybody dies and categorise those people. As a result of having done that and learning from that information, there are not only voluntary euthanasia cases taking place but there are involuntary euthanasia cases taking place and there are non-voluntary euthanasia cases taking place as well. They get severely criticised. Those figures are used regularly to say, ‘There, that is what is going to happen if you legislate for voluntary euthanasia in Australia.’ What proponents of that line of view have overlooked totally is that we have no idea whether the propensity and the frequency of voluntary and involuntary euthanasia in Australia is higher or lower than the incidence in the Netherlands. There is no reason whatsoever why we should believe that our figures would be any less. CHAIR—Do you think that that indicates the slippery slope that people talk about? Mr Perron—No, I think that it indicates that we only have statistics on one country in the world which has a good idea of what is happening out there in its hospitals and in the homes where people die. I think that it is treading on very thin ice to use those figures in your own country as a possible scenario of where you might end up, because we are not proposing the Dutch system of voluntary euthanasia here. I conclude by simply saying that I really think senators should carefully consider the question, irrespective of their other views on your terms of reference in reporting whether Australia ought to have an accurate and in-depth examination of how people die in Australia. At least after we have done that, we can then perhaps afford to throw some stones. CHAIR—Mr Perron, last night at the open forum a Mr Jerry Wood stated that you had brought in the last resort before trying the first resort. From my notes, Mr Wood stated that at the time the Northern Territory introduced this legislation palliative care in the territory was abysmal. I think what he was suggesting was that you should have tried improving your palliative care first, and seen how that went, before you went to the last resort. Can you comment on that? Mr Perron—Yes, indeed, Mr Chairman. I certainly agree that palliative care in the Northern Territory, prior to the introduction of this legislation, was deficient. I accept responsibility for that, having been Chief Minister for a number of years up until that time. I further confess that I was unfamiliar with what the term ‘palliative care’ really meant at that stage, and I think that is probably true of many of my colleagues in parliament and certainly true of much of the community. However, if there is something good to come out of it all, it is that we all—all the politicians and all the community—know what palliative care means now. There is a deal of focus on

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 43 it, of course. The government has rightly provided considerable additional resources for palliative care in the Northern Territory. I believe that with the advent of the Rights of the Terminally Ill Act, and for as long as it stays on foot—even if it does not stay on foot—there will continue to be a high level of knowledge of and focus on palliative care in the Northern Territory, even though because of our sheer population we will be unlikely to have the sorts of facilities that are available in much bigger, better resourced states. CHAIR—Thank you. Senator McKIERNAN—I want to take up that matter you raised earlier about the slippery slope. That is one of the issues that is raised in the many thousands of letters that are coming into my office as an individual senator. It is also included in many of the submissions that have been received by this Senate committee. You in your submission dismiss the slippery slope argument. You state that their arguments are strong on rhetoric and short on facts. What are the facts? Mr Perron—The first fact is that we do not live under a murderous, dictatorial regime as Germany did in the thirties. According to most of the arguments on slippery slope, and the submissions that you have been receiving, that is where you end up. In other words, the environment today is very different from the environment that they call upon when they want to demonstrate that, if you allow the Rights of the Terminally Ill Act to stay on foot, the end result is government established gas chambers. Another fact is that we seem to be able to handle in our society these days hovering over the dying to take their healthy organs. Without making it compulsory, I would have thought about a little bit of scaremongering and slippery slope as to what governments might do, given a bit of coercion, given a bit of human nature. Take one group of people in society, possibly some very affluent amongst them, whose life span is dictated totally by the availability of organs from other people. Of course, some who require organs are young and, apart from the organ that is giving them trouble, would otherwise possibly live a very long, substantial and rewarding life. We seem to be able to handle organ donations in society without any suggestion that the evils, the worst side of human nature, are coming to the fore. The fact is that we can have legislation that allows us to turn life support machines off comatose patients who have no hope of recovery without their consent, without slipping in to turn those machines off other patients, because the family want to get their hands on the estate or because the government wants to get its hands on the bed in the hospital. There is no suggestion that these practices which have been around for a long time, these routine medical procedures which I have described, mean we are in an environment where people are walking around looking for the very sick that we can help over the edge. It just does not exist in society today. The other thing that will stop us going down the slippery slope, in my view, is the huge community scrutiny of this action and this legislation. It is not going to go away if the Senate leaves it on foot. Between the politicians, the press and the coroners, the scrutiny of this legislation and these procedures will simply be intense. I think that the arguments about the slippery slope are flawed and cannot be demonstrated. Senator McKIERNAN—Even in a democracy—and we see an instance in a part of Europe now where the democracy is going bad, despite the scrutiny that is on the administration in that country, and I do not want to name the country; I think you could probably pick what it is because it has certainly been in the news enough—it is possible for the democratic

LEGAL AND CONSTITUTIONAL L&C 44 SENATE—Legislation Friday, 24 January 1997 process, despite all the scrutiny that is in existence, to go bad. But in Australia we have the Senate as protector of things at a federal level, or a Commonwealth level. There is no such protection or no second house in the territory to protect an administration that may or may not go bad. Is there not some legitimacy in the argument that perhaps the RTI legislation could be the start of the slippery slope? Mr Perron—No. I think that if we had an upper house, if we had two upper houses and if that legislation had been processed through all of them, we would still have the member for Menzies in federal parliament saying it is preposterous because it is a fundamental religious objection in his view and in the view of many others. It would not matter how many people supported it. With 99 per cent of the community to support it, those individuals never will and they will do all they can to ensure that legislation either does not get introduced or, like this, in this instance, is overturned. As far as whether this step, the Rights of the Terminally Ill Act, is the first step in the unpicking of society and democracy as we know it, which I think is the point of your question, the crossover line, if there is a crossover line which should not be crossed—I am just phrasing my words here—would be the slippery slope line of involuntary euthanasia. The statement is made ad nauseam by opponents to voluntary euthanasia that voluntary euthanasia must inevitably lead to involuntary euthanasia. That statement in itself is an absurd statement because voluntary euthanasia is based on the very principle of personal freedom and autonomy, which is the opposite to involuntary euthanasia. So how one can lead to the other is very hard to extrapolate in your mind, other than that it is specifically legislated for. I do not believe that the step the Northern Territory parliament has taken is the crucial step and that we should sit back and say, ‘This is a very dangerous process we are entering into here. There is no end to what is going to happen.’ That would apply if ever a parliament legislated for the next step—that is, involuntary euthanasia, third party decision making about the deliberate termination of life. That is not countenanced by anyone I know in the pro- euthanasia movement. Senator McKIERNAN—Thank you for that, Mr Perron. On page 14 of your submission you state that voluntary euthanasia is not an issue for the federal parliament. Surely that statement no longer stands up in the light of the debate that we are having now, the reference that this committee is obliged to undertake in the public hearings and the taking of submissions. The federal parliament is debating voluntary euthanasia, is it not? Mr Perron—Yes, you are. And when I said it is not an issue for you, I probably should have said it is not an issue you should be involved with. The point I was making was the one you know well, and that is that the federal parliament has no jurisdiction in this matter as far as the states are concerned. I acknowledge completely the authority of parliament to step on the Northern Territory. The point I am trying to make is that you should not be concerned with this issue just because you can be, technically, under the constitution. Senator McKIERNAN—I was actually asking the question in the context of the debate. There are many in the community that see this as a debate about euthanasia and not a debate so much about constitutional rights. It is a debate about euthanasia and not so much a debate about voluntary euthanasia. You yourself said in your submission here today, and in your tabled document, that Mr Andrews, the person who introduced the bill into the House of Representatives, does not mention the words ‘voluntary euthanasia’ there. Are we having an honest debate in Australia about this very important issue?

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Mr Perron—I am not quite sure what ‘an honest debate’ means but, to take your point, many people who are involved in the debate are not being honest, that is for sure, and I would put the honourable member for Menzies in that category—not least for some of the ways he has portrayed me and my motives in regard to this legislation. Also, I think statements he has made in the media and in his second reading speech were just appalling for a person who is running a campaign. I can understand and accept people who object to what the Rights of the Terminally Ill Act does, either in principle or in detail. I am happy to argue it or I am happy to have them record their views, but to portray the legislation as something that it is not or to say that it does something that it does not is dishonest unless you qualify it and say, ‘This legislation does not allow involuntary euthanasia but it will surely cause it.’ If you qualify a statement in that way you can say, ‘Oh, well, at least he is being honest enough from where he is coming.’ But the debate in Australia will go on. It is unstoppable. It was unstoppable even before I introduced the Rights of the Terminally Ill Bill. The ACT introduced the first legislation, which was defeated; South Australia was quick to follow. There is a world-wide movement that is growing daily. Society is changing. We do not live to 51 years any more, as I said. We have never lived so long or died so slowly and, in 20 years time, we will be able to keep everybody alive indefinitely in a coma. We will have to actually have some criteria on the wall as to when you switch them off. Everybody will require a decision to die. Before we get that far, the community is going to demand that they have a role in that decision-making process for themselves. Senator BOB COLLINS—You would agree that that statement is in a category pretty much with the statements that you put in here, is it not—the other way? That is not going to happen? Mr Perron—Let me qualify it. Air accident victims excepted, Bob—who will have to turn machines off to kill them. Senator McGAURAN—And that is passive euthanasia, is it not? We are talking active. Senator BOB COLLINS—I think sheer economics will take care of that situation. Mr Perron—It is involuntary euthanasia. Senator ABETZ—Thank you for this document from Meinrad Schar from Switzerland. Are you able to provide a source for that, other than this fellow that appears to have written it? Mr Perron—It came into my hands recently. Let me provide to the committee very shortly some background to the doctor and some more information. I met him in Melbourne recently. He gave that address to the World Federation of Right to Die Societies. He is, from recollection, the head or one of the executives of the organisation EXIT, which, as you see, has 60,000 members in Switzerland. Senator ABETZ—Can you confirm to me that if a doctor in the Northern Territory, under the Rights of the Terminally Ill Act, ends another person’s life for human motives, namely, for pity, at the serious and urgent request of that person, along with the other safeguards in the legislation, they would not be liable to prosecution under your legislation? Mr Perron—That is right. Senator ABETZ—Are you aware that article 114 of the Swiss law says: A person who ends another person’s life for human motives, namely for pity, at the serious and urgent request of that person, will be punished with imprisonment.

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That is hardly a ringing endorsement of the Northern Territory legislation, I would have thought. I think this gentleman is trying to change the laws in Switzerland rather than hold them up as a shining example. Mr Perron—Not so. Senator ABETZ—Can you tell me how I have got it wrong? Suppose I were a doctor in Switzerland. On page 4, table 2, article 114 says: A person— I assume that must include a doctor— who ends another person’s life for human motives, namely for pity, at the serious and urgent request of that person, will be punished with imprisonment. It is hardly a ringing endorsement for the doctor, is it? Mr Perron—But you are not reading the next one. That is one of the articles of Swiss law. Article 115 states: A person who, for selfish motives, persuades or assists another person to commit suicide will be punished, in case of completed or attempted suicide, with penal servitude up to five years or with imprisonment. Senator ABETZ—Yes, but it does not qualify article 114. Mr Perron—Under 115, though, if a doctor or an individual, not necessarily a doctor, acts without selfish motives they have not breached Swiss law. Senator ABETZ—Can you tell me where selfish motive is referred to in article 114? It is not there at all, is it? Mr Perron—No, and this might be where we are getting at cross-purposes. The Swiss system operates on assisted suicide. The assisting person cannot go further than to provide the means to suicide. I am glad you asked this question, because I want to explain. We had the option—and discussed it amongst some of us who were proposing the Rights of the Terminally Ill Act in the parliament—to limit it to assisted suicide alone. We went further than just providing for a doctor to provide the substances required to take life, to actually administering them for those people who are competent, terminally ill adults who, because of the nature of their illness, are unable to swallow or unable to use their arms to administer a lethal dose orally or intravenously. That is the sole reason why: we felt that it was unfair to those terminally ill adults who were so disabled not to allow in the law the doctor to not only supply and prepare the lethal drugs but also administer the lethal drugs required. I am advised by medical persons that probably 98 per cent of people who seek voluntary euthanasia under the legislation—those who fit the category of people under the legislation— will certainly be able to consciously and deliberately move a finger. If you are in at least that physical state, then you are able to use the sort of machinery which has been developed by Dr Nitschke. So that explains the difference between assisted suicide and— Senator ABETZ—So the territory legislation goes further than the Swiss situation? Mr Perron—It does. Senator ABETZ—Do you basically agree with the view of the Northern Territory legislation that it would be appropriate in the following circumstances—and allow me just to read a little segment: Altruism in the human species is instinctive, conferring evolutionary advantage. Parents will make enormous sacrifices for their children, thus we should not be surprised when parents who have become old and terminally ill ask to be allowed or helped to die rather than impose on the lives of their offspring.

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As individuals in a community we are called upon constantly to make sacrifices, sometimes even our lives, for the greater good. Those who make the supreme sacrifice we call heroes and sing their praises for evermore so that others will follow their splendid example. Why disdain altruism by the terminally ill? Why shouldn’t we call them heroes too? Would you agree with the statement that we ought to allow this altruistic approach to this legislation, that just because you want to die, because you think you are going to be a burden to your children, you ought be allowed to die? Mr Perron—Yes, I do. But I must say that I think it is unbelievable arrogance to say that I agree that you are a competent adult but that I want to get behind the reason you are making this decision in your competency, to make further judgments as to whether, in my value judgment, they are appropriate. If a terminally ill, competent adult, presumably like us all around the table and hopefully all in the room, decides that they fulfil the criteria under the Rights of the Terminally Ill Act and that they want to be assisted to die, what business does any parliament or any politician have in saying, ‘How much of this decision is pain? How much is it that you want to relieve the burden that you might be on your wife or your family? How much is it that if you stay much longer your medical bills are going to chew up the estate and you are hoping that that will help your kids get through university?’ This is none of anybody’s business but the terminally ill, competent adult. That is exactly what I thought competence was supposed to mean—that you were regarded as having the mental faculties to be in control of your affairs and to make your own decisions. All this legislation does is acknowledge that point and say that that decision making process goes as far as taking your own life only if you fulfil the list of conditions and jump through hoops—the 20 steps in the safeguard which we make—then do somersaults and go through the nine days cooling off period just to bear it all, suffer a little longer. Let us see a few more tears in the eyes to be convinced that this competent, terminally ill adult really wants to die. I am very disappointed that the Rights of the Terminally Ill Act ended up as complex as it has for the patient seeking assistance. But that is political compromise. To get it through parliament, there were extensive amendments to my proposals, which I agreed with in order to get the support. That is where we have ended up. But don’t anyone think this is some glib, easy to access provision for a suffering Australian. It is hard to access that provision, and you will be a terrible mess before you even start it and worse when you finish it. Senator ABETZ—If it is so terribly arrogant for a parliament or whomever to make those sorts of judgements, why have you limited it to terminally ill. Why, if I am mentally competent, capable, able and have come to the decision that I have had enough, am not terminally ill but want to go, should I not be able to go to my doctor? Why are you so arrogant as to put into the legislation that your measures are only available to the terminally ill? Mr Perron—I agree with you entirely. I am glad you see my point completely. I am displaying a degree of arrogance in determining in my proposed legislation, as it was—the now law—that you do actually have to have a criteria to access for society to say, ‘We are going to unlock the cabinet that has the lethal drugs in it.’ If the community had access to lethal drugs over the counter in a chemist shop, we would not be talking about this legislation. People who, for whatever reason, when they get to a stage of saying ‘Life’s been too much for me; I’m gone,’ would go and get their pill, go to sleep and not wake up. But society says, ‘No. We can’t possibly allow you all to have that freedom.’ I do not advocate that we have that freedom because there is a human element to going through ups and downs in life and, obviously, people would take their lives—what I consider—unreasonably as well.

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Senator ABETZ—But that is your value judgement, is it not? Mr Perron—Yes. My value judgement is that once you reach the stage of being terminally ill and obviously suffering, then my arrogance is satisfied that you have satisfied the criteria and I will not demand that you suffer more. Senator ABETZ—Possibly we will have to agree that we are both arrogant and it is just simply a question of where you draw the line. Mr Perron—I will agree with that. Senator ABETZ—But you said that it was the person’s right to die. I might be in excruciating pain and distress—Senator McGauran went through this point earlier today—I might have all those symptoms but I simply cannot find a doctor. The doctors say, ‘Look, mate, we don’t think you’re that bad so we’re not going to allow this to happen.’ So I might have all those symptoms that are emotively described, but I cannot do it, can I? Mr Perron—No. Senator ABETZ—It is only a doctor and only if I can convince the doctor? Mr Perron—Yes. Senator ABETZ—So isn’t this legislation, as Senator Bob Collins has said, not the right of the terminally ill but really the rights of doctors to kill people? My right to be terminated does not exist unless I can find a doctor to do it for me. Mr Perron—Yes, it does. All of us who are physically capable of getting to a tall building can take our own lives. But if you want assistance to do it in some dignified and humane way, you do need access to the keys to the drug cupboard. We have laid down in legislation that you have to go through this criteria. Your scenario of what if you have all these symptoms but cannot convince a doctor, any doctor, to be part of the process with you is just one of the safeguards. I support that there should be safeguards. I think there are too many and they are too complex. Senator ABETZ—So it is not an absolute right? Mr Perron—It is a qualified right, but it is still a right that they did not have. CHAIR—Senator Abetz, we will leave it there. We have to keep moving. Senator McGauran has deferred to Senator Harradine. Senator Harradine, do you have some questions? Senator HARRADINE—I have a very brief question. I get the impression that you are proud of the Northern Territory legislation? Mr Perron—No. Proud is not a term that I would use, Senator. I have been asked many times whether I pleased to see people are using the act, whether I am delighted at this and delighted at the various stages that the thing has been through. I do not use any of those phrases. I introduced this legislation because I believed that we are not as caring and humane a society as we should be, that we witness the most horrendous suffering and that it is unnecessary. But I would not say that I am not proud of the legislation. Senator HARRADINE—I accept what you say, but I will ask you the question which is probably superfluous. Do you feel, in public policy terms, that this legislation is good legislation? Mr Perron—Yes. Senator HARRADINE—And you would feel that it ought to be used as a springboard for euthanasia laws to be enacted in various states of the Commonwealth?

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Mr Perron—Entirely up to others. I had a jurisdiction. It ended at the Northern Territory’s borders. Whether others seek to do similar is up to others, quite clearly. Senator HARRADINE—But you have been engaged in discussions—at least meetings—in various other places on the matter. Mr Perron—I have been invited and I have responded. I am not on a crusade to try to get the world to adopt voluntary euthanasia. Senator HARRADINE—No, I am just asking you simply. Mr Perron—I am just answering in case you want to know that much. I have responded to many requests, at other persons’ expense, to go and talk to them about my views and about what we did in the Northern Territory in processing the legislation. I have accepted many of those requests interstate and I think that is what you are referring to. Senator HARRADINE—And at those meetings you have indicated that the Northern Territory legislation is the way to go or not the way to go? Totally or with some amendments? Mr Perron—I firmly believe that this legislation will be Australia-wide in time—not necessarily in the identical form that it is in the Northern Territory. Indeed, I believe every state could have voluntary euthanasia different from each other, and quite legitimately so. But it is inevitable that every state will have voluntary euthanasia legislation in due course. Senator HARRADINE—But would you agree that the Northern Territory legislation is giving a great impetus to the move to have euthanasia legislation throughout Australia? Mr Perron—Yes. Senator HARRADINE—Thank you. Senator McGAURAN—Would you think that once this legislation, if kept in place, reached a maturity—whenever that would be, but several years down the track—you could look at changing it to accommodate others, as many of its advocates are already pushing, one being Professor Baume? For example, he already believes that people with disabilities should also have access to euthanasia. It is a similar point to the one Senator Abetz was making with you. Do you think that in time, with the maturity of this legislation, it should be amended so that other than the terminally ill can access it? Mr Perron—I think it is too early to make that judgment. Quite clearly, no-one can predict what a democratically elected group of people might do in years to come. Senator McGAURAN—You personally. Mr Perron—I believe there is a case to expand the legislation to other categories. But, quite clearly, the proposals as put forward in the Northern Territory were limited to a specific group. That leaves unanswered the misery and suffering which we see and that I object to in groups other than the competent terminally ill adult. The first group that comes to mind perhaps is the non-terminally ill competent adult, the quadriplegic, who might live for 20 or 30 years but be begging their carers—I believe many of them do—daily for release. I think what will happen if this legislation survives the Senate, or even if it does not survive the Senate, is that the debate will continue in our society—it is a healthy debate; we should not be afraid of addressing these issues and at least discussing them—as to what is an appropriate legislative response to these problems in our community, because they are not going to go away. They are going to get worse. Senator McGAURAN—That flow chart you had had all the hoops that someone has to go through to access the legislation. With those checks and balances that you are so proud of—

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Mr Perron—I did not say I was proud of it. Senator McGAURAN—The CLP government believes it is workable. Who is scrutinising those steps? Mr Perron—In what sense? Senator McGAURAN—Other than the parties involved in the act—the patient, the doctor, the family—who is scrutinising to make sure that those steps are being carried out? Mr Perron—That they are being carried out? Senator McGAURAN—Correctly, and according to law. Mr Perron—The coroner— Senator McGAURAN—At the end of the process? Mr Perron—Yes. Are you suggesting that we have—which is a possibility—an independent witness who hovers around the edges and adds the 25th step to the graph? You can go on adding safeguards to the point where only two people a year ever meet the criteria. You can go on absurdly. Senator McGAURAN—What would trigger a coroner to act? He acts by referring to the Attorney-General, does he? Mr Perron—No, not at all, and please do not believe the statement by Kevin Andrews that the coroner has no grounds to inquire into any voluntary euthanasia death that is reported to him. That is a preposterous statement by the sponsor of the federal legislation. The coroner has total unfettered powers to investigate any death, violent death, non-natural death in the Northern Territory. He is reported to after every death with complete medical records, and he has full authority to examine any aspect of the process—the now deceased patient’s medical history, the standing of the doctors, the standing of the psychiatrist. He can examine whether the appropriate cooling-off periods were allowed to process before these documents were all signed. If the coroner has any concerns about the operations of this act at any time—not annually but at any time—he or she shall report to the Attorney-General, who shall table it in parliament virtually forthwith. In addition to that, the coroner has an annual reporting responsibility under the act through the Attorney-General to parliament as well. Senator BOB COLLINS—I have just got one question. For the record, in terms of some of the extreme positions that are taken on this—and I do understand them—as different a view as I have from Marshall Perron on this question, I absolutely respect the conviction with which he has introduced this legislation. I do not question his motives in that sense. I agree that this is a fascinating paper. Mr Perron—The Swiss one? Senator BOB COLLINS—Yes. The reason that I was interested to see this is that I only knew about this in the last 48 hours. There are a number of journalists here in Darwin that have come to follow these proceedings and I was interviewed in my office by a Swiss journalist only two days ago who told me that this system existed. In a quick reading of this document—and I will access more information about it afterwards—the general thrust is starkly different from the Northern Territory situation. The fast track under the Northern Territory legislation is difficult at the moment, but let us make some assumptions: your GP can very quickly access the specialists he needs to get; the reports are provided within 24 hours because there is no time limit; so, apart from the nine-day

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 51 cooling-off period, if everything went just like that, what would be the maximum amount of time after the patient consulted his first doctor before he was able to die—including the nine- day period? Mr Perron—It would have to be nine days plus whatever consulting time was required. Senator BOB COLLINS—Exactly, but conceivably, if you had three doctors that perhaps even knew the patient’s condition, you could do that in a week, couldn’t you? Mr Perron—Yes. Senator BOB COLLINS—So perhaps if everything clicked over at the maximum, from the time the patient made that first step and said, ‘I want to die,’ to actually dying, it could be a fortnight? Mr Perron—Yes. Senator BOB COLLINS—I suggest it would be very interesting to look at the system in Switzerland as a positive, and I am speaking as an opponent of euthanasia. I note that with the organisation EXIT and its French-speaking counterpart, what you have to do if you wish to take your life is first of all join the organisation. One of the conditions is that before you are allowed to access the procedure you need a minimum period of three months membership of the organisation. The reason for that is clearly laid out here in what EXIT considers to be its major role. There are details in here of how it is done, which in fact is simply with tablets and a glass of water. It is on page 7. Under this system you decide that you want to end your life. You formally then join the organisation EXIT. You then must be a member of the organisation for a minimum of three months. During that time—this is what is happening; it is in the paragraph on page 7—it says: One of the main tasks of EXIT is the counselling of patients and assisting seriously sick and terminally ill patients to die. This organisation sees itself as a support organisation. Do you have any comment to make on that? I am sure you understand the reason I am asking the question. A concern of a lot of the senators who are in the middle of this debate, and others in the community, is that this is going to become some sort of a sausage factory once it starts clicking over. Technically, of course, it would be possible, once you have got a group of doctors together that have no moral qualms with this and do all the right things, to have the whole thing from go to whoa completed in a fortnight. Under the Swiss system I note that not just a minimum of three months has to elapse but a period of three months where you are an active member of an organisation which is actually counselling you and assisting you. Mr Perron—Also bear in mind that there is only one doctor required, not even a second doctor and not a specialist required, or a psychiatrist either. Senator BOB COLLINS—With respect, that is not entirely correct. Mr Perron—Page 5. Senator BOB COLLINS—I read that. We have all just scanned this and it is probably inappropriate to talk about it, but I would have to explore what is meant by ‘under some circumstances’. What is says is that under some circumstances this single doctor then consults

LEGAL AND CONSTITUTIONAL L&C 52 SENATE—Legislation Friday, 24 January 1997 a psychiatrist, a lawyer and another doctor. So there are actually three other people triggered by something that is not in here. Mr Perron—But without the patient. Probably the two other steps in safeguards you could add to what we have done, if you wanted to be so conservative, would be to require what EXIT do, and that is to be a member of an organisation prior to being able to access it. You could require someone to be a member of a voluntary euthanasia society, otherwise you just cannot access this legislation—do not even ask your doctor. That is what EXIT does. The other thing would be to require people to have signed an advance directive before they are diagnosed as terminally ill. That would remove, presumably, any possible suggestion of involuntary euthanasia, last minute decisions, making a decision solely when you are depressed. We would all have to fill in a form and lodge it with our lawyer or whoever before you are diagnosed, otherwise you cannot access it. It is possible to legislate this way. I think that would be quite unfair, to be honest, but it would be possible. The other one would be to require self-administration, which is what EXIT does as well, not administration. We have left ourselves, in a sense, vulnerable to the argument that the doctor can kill the patient. All of the anti submissions of course make huge play of this. And it is all for that one per cent or two per cent of people who cannot move their arms or who cannot swallow that the doctor can kill the patient. We could have avoided that entire line of attack on our legislation by requiring it to be patient administered—the doctor provides and prepares the substance but does not administer. Then you would have to drop the line—you would not drop the line with the antis—but the antis could not run the line that this allows a doctor to kill a patient. A combination of those things would make this legislation, sadly, a shadow of what it is, and that is advance directive, membership of an organisation and self-administration—all perfectly within the realm of a legislative regime. Senator BOB COLLINS—I have one final question. You are absolutely correct to say that in terms of the debate—and it is active in the federal parliament, in the corridors as well as in the chamber—this distinction regarding assisting suicide is one of the major nubs of the argument. I am sure that you would agree there is a question of shades of grey in this argument. It is a very difficult argument. Do you accept that there is a legitimate distinction between a legislative program like EXIT that allows for assisted suicide and legislation that allows doctors actively themselves to kill patients? Mr Perron—There is a very real difference, Senator, and, in political terms, huge is made out of it. I guess I am the practical person who has already eliminated those poor people who are not adults, those people who are not terminally ill, and said, ‘No, you are ruled out of the equation because what can reasonably be achieved?’ I wanted to achieve a piece of legislation that helped a group of people. Fortunately, the competent, terminally ill adult is a large group; it is not some little minority group. But we would have hived off even the poor competent, terminally ill adult who cannot swallow or who cannot move their hands if we did not provide for those cases a doctor to administer the drug, even though I believe—and history, if this law stays on foot, will demonstrate—that almost every case of using the Rights of the Terminally Ill Act will be patient administered. Senator TAMBLING—Attached to your submission were some charts that set out some statistical records relating to suicide by method, putting them over a four-year period. Can I ask—and I think your charts were limited to a particular age group—where you see the connection between the suicides of the elderly and ill persons and their inability to choose a peaceful ending to their life.

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Mr Perron—Yes. I was taken by the amount of correspondence and representation I received during the period I call the ‘campaign’, the period that the legislation was before the territory parliament in 1995. The representations from the elderly, many of them from interstate, were from people who wrote and said, ‘I’m in reasonable health now, but I live in daily anxiety at the way I may die, having witnessed bad deaths by others. The option of voluntary euthanasia, hopefully never to be taken, would relieve me of a huge burden every day.’ This was particularly from a 91- or 92-year-old man. That was one, and it was followed by a series of others on the same line from elsewhere. So it directed my attention to the elderly. I am aware that some elderly persons, very sadly, commit suicide because of the sort of life they feel that they are going to face. So I sought statistics on the subject and they are attached there—statistics of Australians over 75 who suicide. What I was particularly appalled at was not only the number of elderly Australians aged 75 and over who suicide, and in particular those who are 85 and older, but the methods that they choose. Unfortunately, the Bureau of Census and Statistics is only able to provide method of suicide—and senators will see some of the horrendous methods that our old people choose to die, including drinking agricultural chemicals and burning themselves and lying down before moving objects and so on—but I have no particular documentation to extrapolate that. I believe that many of these elderly people suicide because of the way they perceive they are going to die. I believe that the option of voluntary euthanasia would at least delay many of those suicides in our community, possibly by years. Some of them may well suicide outside a system of voluntary euthanasia; others will take the opportunity of voluntary euthanasia; others who are now suiciding may well find that their end is nowhere near as bad as they thought it might have been. From representations I have received from the not so elderly, from those who are from families who are short lived with high incidences of cancer at young ages and so on, people who have assembled the means to suicide are most angry at having to exercise that ability while they are still in reasonable shape prior to being hospitalised. They have to suicide if they are going to because once you are hospitalised it is then perceived that you are denied the ability to suicide. And that would be right in many cases. So I wonder how many of our suicides—not only of the elderly, but suicides generally in Australia—are of people who may have been diagnosed as terminally ill but are so terrified of the prognosis that they are going to take their own lives. Sadly, as we know, most citizens, unless they are a doctor or a chemist or know someone real close, you do not have access to the keys to the drug cabinet so by and large you will die by violent methods. Those appalling figures of the 650-odd over 75-year-old Australians who have suicided in the last five years I think are worthy of research to try and identify, if it is possible through coroners’ records, the reason for the suicide as distinct from the method of the suicide. Senator TAMBLING—Thank you. I know you are aware of the number of submissions that this committee has received from Aboriginal communities, Aboriginal people and with regard to Aboriginal interests. Can I ask you what consultations in the preparation of your legislation you had with the late Wes Lanhupuy or other prominent Aboriginal leaders in the community, and how do you react to some of the submissions that we have received that are very repetitive in many of the proposals that they have put forward in their submissions? Mr Perron—I did not seek out Aboriginal spokespersons or elders to discuss the proposal with. I introduced it into parliament as a private member relying on the basis that it would

LEGAL AND CONSTITUTIONAL L&C 54 SENATE—Legislation Friday, 24 January 1997 be a hotly debated subject. Having relatively small electorates, as territory MLAs do, I believed that individual members would consult their electorates and bring their electorates’ views back. I was not actually going around lobbying for the legislation. I was arguing its case, admittedly, but I was not doing a classic political job on trying to gain support. I believed that the proposals should stand on their own merits. It was to my great disappointment, of course, that very early after the introduction of the legislation the report came from a witness, who will be here this afternoon, that a group of influential Aborigines were told that the legislation basically meant that elderly people who went to hospital could be killed and that others with STDs or whatever may well be rounded up and killed. That appalling tactic by an anti-voluntary euthanasia individual, who has never been identified, spread like wildfire. It was not assisted, of course, by what I consider the religious influences in some of the Aboriginal settlements around the Northern Territory. In my view, there has quite clearly been a strong religious campaign—I hope not of misinformation, but I suspect it may well have been—amongst Aboriginal people at places like Daly River, Port Keats and possibly the Tiwi Islands. The submissions that I have seen from Aboriginal people are, to some extent, ignorant of the provisions of the legislation. I really do not think they understand it. I believe, to the limited extent that I understand Aboriginal culture—not that we should use such a bold statement, I guess—that if the legislation was explained to a tribal Aborigine and understood it completely, whilst they may well object to it as a matter of principle for themselves, I could not conceive of them objecting to it for me. If there was one thing I learnt about Aborigines it was that what is your business is your business. I just could not conceive of them saying that nobody, no human being anywhere, should have access to voluntary euthanasia, if they understood it. Senator FERRIS—Mr Perron, thank you for this document relating to the experience in Switzerland. Can I just take you to a couple of points below the points raised by Senator Bob Collins on page 6. When this legislation came before the Northern Territory parliament, did you realise it was going to be national legislation? Mr Perron—It is not national legislation. Senator FERRIS—The second person to use it came from South Australia; so, effectively, it is available to anybody. This here says. ‘Resident of Switzerland’. Mr Perron—Yes. Your latter statement is right in the sense that, theoretically, it is available to anyone. But it is not national legislation any more than the right to grow your own marijuana in South Australia gives every Australian the right to grow marijuana. It does only if you want to pack your bags and go and reside over the border in South Australia. We have no more legislated for the nation than that. Senator FERRIS—Can you understand that there might be a circumstance under which a person from another state might be denied the opportunity to use your legislation if they came to Darwin and fulfilled the criteria? Mr Perron—Be denied on the basis that they are from interstate? Senator FERRIS—Yes. Mr Perron—You are suggesting that no doctor would assist a particular individual who otherwise fulfilled the criteria but was from interstate? That has not proven to be the case for the second person who died under the act.

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Senator FERRIS—I guess it is a very fine line, is it not, between passing legislation in the Northern Territory and making it clearly available per se to people from other states. Mr Perron—But it is voluntary. There cannot be anything more voluntary than paying for an air fare and coming across Australia to access a piece of legislation. Senator FERRIS—I do not deny that. Mr Perron—I take your point. I know that it is genuinely put forward because it is made so often, particularly by the member for Menzies, who says that the Northern Territory has legislated for Australia. We have not. We in the Northern Territory do not have speed limits on our open roads, but we have not legislated for Australia that there shall be no speed limits outside towns. In Victoria, I think, the government has brothels included in their town planning process so that if you want to run a brothel you must get town planning approval. So they have legislated to have brothels. Most of the other states run a mile from legislating to have brothels. Instead, you regulate prostitutes as individuals working out of a phone book, hopefully, and you do not want to know about it. But that does not mean that Victoria has legislated that all Australians have access to a brothel—not unless you want to climb on a plane and go to Melbourne. The situation is in fact exactly the same as when South Australia, I understand, was the first jurisdiction in Australia to bring in what are considered modern, humane laws on termination of pregnancy. The suggestion then was that they had legislated for Australia. They had not, but no doubt there was a bit of traffic, of people going to South Australia to avail themselves of the South Australian law. That will be the case in the Northern Territory as well. But we have not legislated, and did not intend to legislate, for one millimetre outside our jurisdiction; that is, the borders of the Northern Territory. Senator FERRIS—Further down on table 4 I see that in Switzerland the requirement is ‘suffering from a serious illness and/or unbearable health troubles with poor prognosis’. I wonder if you could just give me your personal definition of what you see as terminal illness. Is terminal illness quadriplegia? I remember you referring to that a little while ago. Mr Perron—No, not in my opinion. I appreciate that the phrase ‘terminal illness’ could be debated. There is in fact a definition in the Rights of the Terminally Ill Act. I am testing my memory because I have not looked at the act for a little while, but basically it is a medical condition from which you will die. You do not die of quadriplegia; you die of complications that follow on. Whilst we could debate it forever, can I dispel the myth that a diabetic who refused to take their insulin and thereby became so ill that they might die could access voluntary euthanasia through the legislation. That would not be the case. Certainly, they would become seriously ill and die if they did not follow their regime of insulin, but the legislation requires a ‘without the addition of extraordinary measures application’ criterion to be applied to the terminal illness. That was put in because people like diabetics and others have a regime that will keep them healthy if they follow it. They are not extraordinary measures and no doctor would determine them to be extraordinary measures. If a doctor said, ‘You have an illness which is going to kill you within three months; however, we could amputate both legs and an arm and there will be also some other complications and you will be totally incapacitated,’ they would be extraordinary measures. A patient in those circumstances could say, ‘I reject the extraordinary measures and I would

LEGAL AND CONSTITUTIONAL L&C 56 SENATE—Legislation Friday, 24 January 1997 like to opt for voluntary euthanasia under those circumstances.’ That is the context of extraordinary measures. Senator FERRIS—I was just interested because of the comments earlier this morning from the Northern Territory’s medical officer in relation to distress, which I had not thought of as being potentially a terminal illness. Mr Perron—No, but it is not. They have got to be terminally ill and distressed. This should blow away another myth; that is, that most people seek voluntary euthanasia for reasons of unbearable pain. That is reflected in a lot of submissions you have received. We can draw some information from places such as the Netherlands, even though I am selective, because there is a lot of misuse of the information. Pain is very well controlled with today’s drugs with the exception of about five per cent of cancer patients. For the other 95 per cent the pain can be adequately controlled. Research shows that people who seek assisted suicide or seek voluntary euthanasia do so for a variety of reasons, of which pain is only one and not the predominant one. They could be related to, I guess, the indignity of it all, having had enough, having lived long enough and having so low a quality of life left. The ‘distress’ word was put into our legislation so that we got away from the concept that you could only access voluntary euthanasia if you were in terrible pain. Then it became ‘suffering’ and the debate was about what suffering covered. We wanted to ensure that it was more than just physical suffering, to cover no pain but the inconvenience of physical limitations. There is also distress. That is the distress of a person who is simply wasting away ever so slowly and reaches a point where they have no pain and no, in a sense, discomfort, but they have grossly distressed themselves. If you ever have the opportunity, you should see— if you have not already—the video of the Sue Rodriguez case in Canada, a woman who died from a motor neurone disease. If you do not think that there was a case for voluntary euthanasia there, where there was no pain involved, then you have no heart. Senator FERRIS—Could I ask one final very quick question. CHAIR—Could I ask you, Mr Perron, to keep your answers a bit brief please because we are about an hour over time— Senator PARER—Two. CHAIR—Before I came along, two; we have already done away with the committee’s lunch. Senator FERRIS—This will only be a very quick question. Your earlier comments related to your disappointment at some irresponsible dimensions in the debate. Do you see this legislation as having projected a positive or a negative image of the Northern Territory, internationally? Mr Perron—It depends entirely on whether you are pro or anti voluntary euthanasia. In ‘anti’ fields of course we are regarded as the worst place on earth, the most evil place on earth. In other forums we are regarded as the forerunners, the first people in the world, basically, who have been prepared to admit to what is happening out there—that voluntary and involuntary euthanasia are practised daily in Australia without safeguards—and that if ever there was a circumstance for abuse that was it. We have recognised that it has happened and we are moving to do something about it. Senator FERRIS—I take it that means positive from your point of view.

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Mr Perron—Oh, there is a hugely positive front to it. Whilst we will all be able to say ‘I told you so’ in some years to come, I think you will find that the world is moving down this path. We are moving from what will be in time seen as a dinosaur age where we were able to keep people alive almost indefinitely and we waited until people were, as described very well by a witness last night, ‘a skeleton with a thin web of skin on it’. We have moved from that—demanding that people remain in that situation—to one where they can exercise a humane judgment, and in years to come I think you will find this will be basically the case throughout the western world. Senator HEFFERNAN—Do you think the Australia-wide adoption of Northern Territory like legislation will assist in long-term budgeting for health care? Mr Perron—No, not necessarily. Do you mean assisted by easing the burden of financing? Senator HEFFERNAN—Shifting the burden, yes. Mr Perron—No. Senator HEFFERNAN—Do you think the medical profession is better equipped than a politician to judge the possibility of a shift in the medical ethic? Mr Perron—No, I do not. In fact, I specifically reject the view that doctors should retain their very privileged position of being the sole determinants, as they are today, in the final stages of life for most of our citizens. Senator HEFFERNAN—Do you think there will be a change in the medical ethic? Mr Perron—Yes, I do. Senator HEFFERNAN—What were the reasons for no referendum? Mr Perron—I do not believe there is any necessity to put the taxpayer to the expense of a referendum. What the Australian people think about this legislation is less relevant to me than what the Northern Territorians think about it. It is quite clear what the Northern Territorians think about it. But I will go further than that, which probably gets to the hub of your question. I would have introduced the Rights of the Terminally Ill Bill and tried to get it passed if it had had the support of two per cent of the population, because of the nature of the legislation. It is voluntary. It is there only for those people who want to use it. If only two people a year wanted to use it, then it should be there for those two people. The only reason we are where we are today is that some of my colleagues supported it on the floor of the parliament. It has subsequently generated a huge amount of hype around the country. That is because of the huge majority of support that voluntary euthanasia has amongst the Australian people. So I recognise that politically, but I say today again that this legislation should be on the books of every jurisdiction in Australia if two per cent of the people want it. Senator HEFFERNAN—You do not think the education process of the referendum would have been a benefit? Mr Perron—No. I think it would have— Senator HEFFERNAN—Thank you; that is all I need. I am trying to speed up the process. Did you discover palliative care before or after you decided to introduce the legislation? Mr Perron—After. Senator HEFFERNAN—Thank you. CHAIR—There being no further questions, thank you, Mr Perron, for coming here today. We appreciate your assistance.

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[12.35 p.m.] HARDIE, Mr Martin Patrick, Legal Adviser, Coalition Against Euthanasia, c/- PO Box 330, Darwin, Northern Territory KIELY, Mr Thomas Anthony, Member, Coalition Against Euthanasia, PO Box 41046, Casuarina, Northern Territory 0811 McCORMACK, Mr John, Member, Coalition Against Euthanasia, PO Box 41046, Casuarina, Northern Territory 0811 WAKE, Dr Christopher John, Member, Coalition Against Euthanasia, PO Box 41046, Casuarina, Northern Territory 0811 WILSON, Mr Harry, Member, Coalition Against Euthanasia, PO Box 41046, Casuarina, Northern Territory 0811 CHAIR—I welcome the representatives from the Coalition Against Euthanasia: Mr Martin Hardie, Mr Harry Wilson, Dr Chris Wake, Mr Tom Kiely and Mr John McCormack. The committee has received submissions from some of you and we now have some further submissions. I have a letter addressed to the committee from Mr Harry Wilson and a supplementary submission which has been prepared by the Coalition Against Euthanasia for the Senate inquiry into the Euthanasia Laws Bill. Is it the committee’s wish that that be accepted into evidence? There being no objection, it is so ordered. Also, I failed to table previous papers put forward by Mr Perron. They included a selection of inaccurate remarks by various members of the House of Representatives— Senator ABETZ—Allegedly. CHAIR—‘Allegedly’ says Senator Abetz—and a paper entitled Assisted Suicide in Switzerland. Is it the committee’s wish that they be tabled? Senator ABETZ—Yes. Senator TAMBLING—A point of procedure, if I may: it was indicated to us in the earlier distribution of agenda papers that included with this group of submissions was a paper from the Reverend Dr Djiniyini Gondarra. It was indicated that Dr Gondarra was going to be appearing. I notice he is in the body of the audience—or he certainly was this morning. Is it proposed that Dr Gondarra will be appearing to support his earlier paper? CHAIR—I understand he will be appearing with the Northern Territory Council of Churches. Senator TAMBLING—Thank you. CHAIR—I now invite you gentlemen to make an opening statement. Dr Wake—My name is Dr Christopher Wake. I am the coordinator of the group which calls itself the Coalition Against Euthanasia. I am the President of the Northern Territory Branch of the Australian Medical Association and I am one of the plaintiffs against the Northern Territory in the Supreme Court and High Court action in Australia. If I may, I will introduce my group. Mr Martin Hardie has been retained within the firm of Ward Keller of Darwin who represent the Reverend Gondarra and me before the courts in this matter. Mr Harry Wilson is the traditional owner from Peppimenarti of the Nungu Kurungal people. He was a major leader of the out-station movement in the Northern Territory through the 1960s and he was the former of the Palumpa out-station. He is an extremely important leader of his people in the Peppimenarti region, and he is the keeper of the ceremony, law and culture of the people from that region. You will note that we have given

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 59 you a supplementary submission, a one-page document, and we hope that you will avail yourself of Mr Harry Wilson’s expertise in the way in which this law has affected Aboriginal people of the territory. Also here are Mr Tom Kiely, a representative from the Northern Territory Right to Life group, and Mr John McCormack, a barrister from the Darwin bar. We have given you a secondary document, which I draw your attention to. It is basically a review of the Northern Territory government’s constitutional and legal arguments, which we have been through point by point. I do not expect to draw your attention to this now but appended to that is one of the only examples, I think, of opinion polling which was done independently in the Northern Territory. A review of 500 territorians was done out of South Australia by this group, and we submit that it shows two things: firstly, there is no clear understanding amongst Northern Territorians of the word ‘euthanasia’— Senator ABETZ—Sorry; what page? Dr Wake—That is an appendix. Senator ABETZ—Which one—A, B, C? Dr Wake—It is a very large appendix. It is almost half the document that you have before you. It takes some close reading. I submit that it shows two things: firstly, there is no uniform understanding of the word ‘euthanasia’; and, secondly, there is no understanding of the Natural Death Act of the Northern Territory and, as of the time of that polling, practically no understanding of the Rights of the Terminally Ill Act. I do not have more up-to-date information than that, but I have no personal reason to believe that those circumstances have changed. Because our submissions were really dot point submissions, I hope you will bear with us whilst we present two very short statements to the committee before we take your questions. Is that appropriate? CHAIR—Yes. As long as it can be kept brief, we would be much obliged. Dr Wake—The Rights of the Terminally Ill Act, as introduced by the Northern Territory parliament, was poorly conceived, inadequately constructed and in our belief is discriminatory. The act will most certainly lead to a deregulation in the way in which we treat matters of death and dying in modern Australia. The act, in our view, is based on four premises, each of which is wrong: firstly, that the purposeful killing of patients by doctors is a commonplace in Australia today; secondly, that palliative care is not an appropriate and proportional response to the majority, if not all, of death situations; thirdly, that voluntary euthanasia can be controlled and confined without deregulation to other forms of patient killing; and, lastly, that there is such a thing as an individual right to die, at law. The act has, in fact, far from providing safeguards, specifically removed all of those normal safeguards for individual human and medical rights associated with the medical treatment of patients. To be exact, I include the judiciary, the coroner, the medical boards, the Australian Medical Association, the royal colleges, the Department of Health, and even in some aspects, governmental control. The workings of this act occur in secret and they are beyond the control of all of the above agencies. The number of people who have used the act will be reported at the end of the financial year. The act envisages that having a consenting patient, plus three medical practitioner signatures, should be safeguard enough. We say this is unfortunately untrue. This

LEGAL AND CONSTITUTIONAL L&C 60 SENATE—Legislation Friday, 24 January 1997 act discriminates against those who are minors at law, or those who are incompetent, for if euthanasia is a good thing then it should not be limited to the competent adult. One of the most destructive features of this act upon society is the potential for flow-on effects, which I think are relatively easily explained. What is it about the specific situation of the competent adult who is terminally ill that should lead us to give them a lethal injection? Is it pain? If it is, then what about those who suffer with a host of non-terminal conditions that cause pain which they experience as unbearable? Should those people be killed? Is it the more general concept of human suffering? If it is, then what about those who suffer with a multitude of other non-terminal and chronic disease processes? By what logic should those people not be killed? Is there something about the terminal state that is important in allowing the lethal injection? If so, then by what logic do we deny a lethal injection to the incompetent patient or to the suffering child about to die? Can it be that we consider autonomy, one’s right to choose, is the most important point? If this is the case, then I believe there need be no controls whatsoever as one should be able to order a lethal injection as of right. In the modern development of euthanasia law there is a useful analogy to be drawn here and it is the abortion laws of Australia which bear very little relationship to the everyday practice of abortion. In fact, we have abortion on demand in Australia—a deregulated health issue, if you like, and an area, with respect, where I think politicians fear to tread, quite wisely. It is most certainly not unreasonable to suggest, given the intense views that surround this euthanasia issue, that we will see a patient killing practice within a decade that bears little or no resemblance to the written law. This deregulation of euthanasia practice can be seen in modern Holland and it can be read about in the writings of the various pro-euthanasia lobbyists, Kuhse, Singer and Baume. Two things need to be done. The law across the states and territories should be amended to clarify the responsibilities of doctors and nurses under the criminal laws and to give them adequate protection should they shorten a terminally ill patient’s life. Doctors and nurses should remain subject to all of the current rules and ethical and professional controls. The law should clearly reflect the rights and consent provisions for all classes of patients be they competent, incompetent, or minors at law, and under those circumstances I would submit that euthanasia becomes largely irrelevant. This type of legislation I have described as mature. It is already in place in South Australia in the South Australian Rights of Patient Consent and Palliative Care Act. The second matter is to provide proper palliative care services across the country. Palliative care services in the Northern Territory are inadequate. The current service depends upon community nurses who do an excellent job of caring but who are underresourced and underskilled. The initiating director of the service and the palliative care physician have both left the Northern Territory stating problems with the way the service is run. Currently in the Northern Territory there is no doctor involved in palliative care who is a specialist. There is no pain service provision for the people of the Northern Territory. We do not believe that a palliative care service without a pain service is worthy of the name. It is to our mind somewhat incongruous that the Northern Territory government will offer patients death without offering them any quality of life in their terminal illnesses. The Aboriginal people of the Northern Territory have been largely ignored in this debate. The Northern Territory government’s submission is a distortion of the true facts of their attempts to reach Aboriginal people with details of this euthanasia law. Euthanasia is against

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Aboriginal law and culture. This law is inimical to the best interests of the Aboriginal community and will further marginalise the people from the health professionals who seek to provide health services to our Aboriginal population. Our group says that the Northern Territory government has in fact acted illegally in passing the Rights of the Terminally Ill Act into law. We say that the grant of government to the Northern Territory by the Commonwealth under the self-government act was not a grant of government equivalent to a state, and the argument of the states and territories is therefore invalid. Mr Hardie—I would like to briefly address four propositions which underlie the Northern Territory government’s submissions to this committee. The first of those is that the Northern Territory is a component part of the Australian Federation; secondly, the Andrews bill discriminates against territorians; thirdly, the Andrews bill erodes territory power; and, fourthly, the Rights of the Terminally Ill Act is not contrary to international law. When the committee seeks to ask questions I will be happy to answer questions on the criminal code. I was interested to hear Senator Abetz’s exchange this morning with the Solicitor-General, and I substantially agree with Senator Abetz’s analysis of the criminal code and that of Tom Hughes. The first proposition upon which the Northern Territory builds its case is that the territory is a component part of the Federation. There is no constitutional authority for that proposition. The territory may become a new state and as such take its place within the Federation but, at present, it is not. The territory seeks to make out that this distinction does not exist at all. From there we move to their second proposition: that is, the Andrews bill discriminates against territorians. In fact, the bill treats all territorians equally. The question of the Commonwealth discriminating against territorians simply does not arise. Like things are to be treated alike; unlike things are to be treated differently. The Northern Territory is not a state; it is a product of the exercise of section 122 by the federal parliament. The Andrews bill cannot be construed in any way as discriminating because it does not treat territorians as if they were states. The third proposition is that the Andrews bill erodes territory power. It is our submission that no parliament in Australia is capable of enacting a law in the form of the Rights of the Terminally Ill Act. Chapter III of the constitution means that the authorisation of killing can only be achieved through judicial consideration. Legislation which makes no provision for judicial consideration contravenes the constitution and cannot be validly enacted by any state or territory. It is repugnant to the concept of the judicial power of the Commonwealth. Only courts can exercise that power; it cannot be exercised by a doctor or a parliament. Fourthly, the territory act provides for no independent or objective means by which a killing of a person can be measured. Even if a person can legally consent to be killed, the legislation provides no standard for measuring a person’s consent—that is, was it given fully voluntarily. The lack of objective or independent means are compounded when it is realised that the coroner’s power of inquiry is removed. The coroner cannot scrutinise killings at all under this act. From there we move to the notion that the territory says that the act is not contrary to international law. It is a fundamental norm of international law that no-one shall be deprived of their life arbitrarily. We say, because of the lack of judicial consideration and/or of the lack of independent means, that the killing under the Rights of the Terminally Ill Act is arbitrary.

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It is an extrajudicial killing, and this is what international law abhors. Extrajudicial killing equates with arbitrary deprivation of life. The coalition submits that the territory law institutionalises extrajudicial killing with no independent or objective means of assessing the decision to kill before or after the death. Senator ABETZ—What section of chapter 3 of the constitution are you referring to? Mr Hardie—I am referring to the concept of judicial power and the way it has been expounded by the High Court. The Boilermakers case is probably the best example of that where it said that a non-judicial body cannot exercise judicial powers and a judicial body cannot exercise non-judicial powers. There was some comment before about the coroner’s role and I would just briefly like to mention that. Section 13(2) of the Rights of the Terminally Ill Act says: A death as the result of assistance given under this Act shall not . . . be taken to be unexpected, unnatural or violent for the purposes of the definition of "reportable death" in the application of Part 4 of the Coroner’s Act... Part 4 of the Coroner’s Act gives the coroner jurisdiction only to inquire into reportable deaths. The result of section 13(2) of the Rights of the Terminally Ill Act is that the coroner is not allowed to inquire into the deaths after they have occurred. All he can do is receive the paper work and file them and report to parliament as to how many people have been killed. Those are the only submissions I would like to make. Harry Wilson is what we say in the territory, related to me through my relationship to Aboriginal people in Katherine. I call him father. He is not able really to read out his submission today and he really asks that you take some time now to consider what he has put on those 1½ pages and ask him questions from that. One thing that he has asked to make clear is that Aboriginal people’s objection to the Rights of the Terminally Ill Act is not based in any Christian religion. His community is not a Christian community, it is an Aboriginal community that does not have a church. They do not regard themselves as mission people. Their objection is based in Aboriginal law and custom. That is all I have to say. CHAIR—Thank you, Mr Hardie. Do you appear today as the solicitor for the coalition or as a member of it? Mr Hardie—As the solicitor for the coalition. CHAIR—Thank you. Dr Wake, you mentioned that Northern Territory Aboriginal people have been ignored and in your evidence stated that there is great concern about this legislation amongst Aboriginal people. It has been said that the churches have influenced Aboriginal opinion greatly and that a lot of misinformation is being deliberately fed to Aboriginal communities about the act in the Northern Territory. What would you say to that? Dr Wake—I think there are a number of facets in the argument, but to be brief I think the major thing which caused concern about the Aboriginal communities was the speed with which this issue was pushed through the parliament. There was no preamble. The matter was announced, in effect, to an unsuspecting public on 1 February 1995 and was through the parliament on the morning of 25 May. I would submit that the Northern Territory Aboriginal community, being as far flung as it is, must be one of the most difficult communities in the world to access with information. We have heard from the Leader of the Opposition today that if that was to be done well then she

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 63 says the process might take years, presumably one or two. My rejoinder to that would be ‘Good, let us take one or two years because this is 25 per cent of the population.’ Yes, some of our Aboriginal people do have a Christian tradition but they also have co- existing with that an Aboriginal law tradition, which Mr Wilson can tell us more about. One might as well say that the 65 per cent of territorians who have a Christian tradition may have been influenced in some way by that. I think it is a non-necessary suggestion to say that, yes, we have Christian Aboriginal people. CHAIR—Mr Wilson, is there anything you would like to add to that? Mr Wilson—About the church? CHAIR—The church and the time within which the euthanasia legislation in the Northern Territory was passed? Mr Wilson—We have not been consulted, for a start. The territory government has not sent anybody to talk to us about it. There are only these people here who have talked to us. My people do not want this to go ahead. CHAIR—Has the Christian church affected your views in any way? Mr Wilson—No. I put that in there with the church in it because at different times they have been blaming the church for interfering. That is why I put that down there. We started up with the church and then we parted from it because we wanted to have our own traditional law and ceremony. Senator McKIERNAN—Mr Wilson, you end your statement with the words, ‘Please get rid of this euthanasia law. It’s a bloody nuisance.’ How is it a nuisance? Mr Wilson—It is a nuisance to Aboriginal people. Aboriginal people do not have that. Senator McKIERNAN—But how is it a nuisance? Mr Wilson—We never had it before. This is a new tribe coming in with this, not us. Senator McKIERNAN—You said in response to the chair’s question that your community was not consulted about it; that the only people who spoke to you about it were these people here. Mr Wilson—Yes. Senator McKIERNAN—Who are ‘these people here’? Mr Wilson—This fellow here and another fellow behind there. They are the only people who came out and talked to us, because we wanted somebody to come and tell us what was happening. None of us knew what was happening until this mob came. Senator McKIERNAN—And now you know? Mr Wilson—I know now, yes. Senator McKIERNAN—Dr Wake, you are probably the one to whom I should address this question. You are the Coalition Against Euthanasia? Dr Wake—I am the coordinator of that group. Senator McKIERNAN—The group that is here at the table is the Coalition Against Euthanasia. Are you, within that name, the coalition against voluntary euthanasia? Dr Wake—No, we are not. The history of voluntary euthanasia is that the British Euthanasia Society adopted the voluntary euthanasia tag in order to diffuse away from themselves all of the odium attached to killing disabled people, minors at law and all the rest of it. So voluntary

LEGAL AND CONSTITUTIONAL L&C 64 SENATE—Legislation Friday, 24 January 1997 euthanasia was born specifically in about 1948 as the first step along the way to legalising the principle of euthanasia. The writings of the pro-euthanasia lobby are absolutely clear. They believe in the killing of disabled children and adults, particularly if they are demented. When you consider it, voluntary euthanasia legislation has to be the first logical step in a civilised country down that road. We heard the view from Marshall Perron just a short time ago that the act should be logically broadened. Senator McKIERNAN—Between you and me as mature adults, do you, as an individual, see the killing of demented persons and the killing of children in any shape or form as being voluntary euthanasia? Dr Wake—No, categorically not. Senator McKIERNAN—I wondered why you included it in your answer. The three people who have so far used the provisions of the RTI Act to end their lives all left notes behind— Dr Wake—No, you are wrong. The third person did not leave a note. Specifically that person did not want any publicity around the issue, so they did not leave a note. I am sure Dr Nitschke will confirm that. Senator McKIERNAN—I am not going to argue. Certainly the two earlier people did. Did the contents of those notes have any impact upon your thinking or the thinking of the Coalition Against Euthanasia? Dr Wake—No, none whatsoever. I thought that the prime purpose of those was publicity, clearly. They were for media consumption in order to sway sympathy. I think that the issues involved here, the issues of compassion, sit on both sides of this argument, whatever one thinks about euthanasia. I am sure that we all, everyone sitting in this room today, have a great respect for life. We all have views about compassion and death with dignity. It is just that we have a different set of concerns about what happens if you begin to legislate the killing of people—what happens to the law, what happens to disadvantaged people in our community and what the potential flow-on issues are. Senator McKIERNAN—Do you believe that the two people who left the notes were killed by other than their own hand? Dr Wake—Yes, I do. Senator McKIERNAN—I personally do not, but for the sake of time I am not going to continue the argument. Dr Wake—Should we say it was facilitated by other than their own hand. The difference between assisted suicide and voluntary euthanasia. Senator McKIERNAN—With all due respect, that was not my question. Dr Wake—Yes, I do believe they were killed by other than their own hand. Senator McKIERNAN—I am not going to labour the point here because my colleagues want to ask questions. I have a question for Mr Kiely. I note in the earlier submission the organisation that you represent is part of the coalition—and I do not know if you are the appropriate person to ask a question about the alleged leadership deal that was done within the territory assembly at the time in order to secure passage of the bill. Are you in a position to enlighten the committee further about the deal? I understand the story emanates from your organisation.

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Mr Kiely—You would have to identify the document because the document that I put in was three pages in a private capacity. Which organisation are you talking about? Senator McKIERNAN—The Right to Life organisation. Mr Kiely—Right to Life Victoria, Right to Life Australia or Right to Life Queensland—or the Federation of Right to Life associations? Senator McKIERNAN—Fine—if you can. Mr Kiely—If you give me the generic sense as well as identifying specific organisations. I have to be sure that I know what you are talking about. Senator McKIERNAN—I am not going to labour the point, but I did qualify my question to you at the beginning as to whether you were the appropriate person. I thought that, because the story has emanated from Right to Life—and don’t hold me to the point of which division of the organisation—somebody in the Northern Territory, somebody in Darwin who has got Right to Life attached to his name in the Coalition Against Euthanasia, may be the appropriate person. If you are not, fine, I accept that. Senator ABETZ—Can I ask Mr Wilson whether he believes that his community fully understands the Rights of the Terminally Ill Act? Mr Wilson—They do—and I do. Senator ABETZ—Because there have been certain suggestions made in evidence and submissions to us, if I can paraphrase, that Aborigines do not really understand or they have been led around by the nose; that there are people spreading misconceptions within the Aboriginal community, and that of course they do not really understand so they do not know better and as a result you cannot expect them to be anything other than opposed to the legislation. We heard from the Leader of the Opposition, when she was asked, words to the effect that you cannot really question them about it because that is not the way you undertake conversations with Aborigines—it would take years for them to fully understand, et cetera. Being an Aborigine yourself, are those sorts of comments applicable to the group that you represent? Or are you confident that the Aborigines that you represent are fully understanding of the legislation and have not been led around by the nose and all those other somewhat pejorative and paternalistic comments that have been made? Mr Wilson—I truly believe what I said today. We do not want anybody to give them a needle to die. We want to die normally. What better fellow than I am? I am Harry Wilson and I can talk their language. I talk to them in my language. I talk to them in English—in your language. I talk to them in my language and I talk in your language, which I was taught by you people. My people believe that they should not be touched by a doctor to die. Senator ABETZ—How many people in your community? Mr Wilson—Port Keats, Palumpa, Daly River. Senator ABETZ—Roughly are we talking hundreds, thousands? Mr Wilson—About 1,100 people. Senator ABETZ—And do you have contact with other Aboriginal communities in the surrounding areas?

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Mr Wilson—Yes. That is one group there, and then I talk to people on Bathurst. I was reared over there. I understand the eastern side and the western side. On the eastern side I understand the ceremony, and to some of them I talk Tiwi. Senator ABETZ—So you have got a wider understanding of Aboriginal communities than just the one of which you are an elder? Mr Wilson—I am an elder of Peppimenarti. Senator ABETZ—And so you have had this contact with— Mr Wilson—Other people, and I talk to them about this. Senator ABETZ—And what is their view? Mr Wilson—Their view that they want to die normally. They don’t want to be poisoned to die. Senator ABETZ—Thank you. Senator HARRADINE—Mr Wilson, after what you just said now, your letter to us says: The way it seems to us, when anybody is sick, to be asked if you want to die, the person is in pain and is not all there. It is not the whole person. The person is already sick, you should not take notice because the person is already sick. With that understanding, are you and your people afraid of the Northern Territory law? Are you afraid because your people might be looking, and the question might be asked of them, ‘Should we be killed by a doctor?’ Is that what it is? You realise that the Northern Territory law is that, if people want it, they can have it, but just now the injection is not going to be given to people who do not want it? That is possibly later but, just now, what is your concern about that? Mr Wilson—I believe what I said there, what it says there. Senator HARRADINE—That the person is in pain and is not all there, yes. Mr Wilson—Yes. You are sick, sick of anything, and mentally by that pain, and the person, the doctor, should not go and ask him whether he wants a needle. Senator HARRADINE—Or anybody? Mr Wilson—Or anybody. I am not only saying a doctor, but anybody, because he is already not all up there and he is not all himself either. He is sick. That is all. Senator TAMBLING—I have some questions for several of the witnesses, if I may. Mr Wilson, did you write the submission that you have given to us this morning? CHAIR—I am sorry—Senator Harradine, did you have another question? Senator HARRADINE—I cannot believe what I have just heard. That is a very patronising statement. CHAIR—He said he has written it. Senator HARRADINE—I should suggest that the witness should not respond. Senator TAMBLING—Okay, I will take your point. Senator HARRADINE—Next time that you send me a letter I will ask whether you wrote it. Senator TAMBLING—That is right. Senator HARRADINE—I assume—

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CHAIR—I think Mr Hardie perhaps can assist us. Mr Hardie—I think I can respond. Mr Wilson had the letter dictated, probably in the same fashion as you have many of your letters dictated. Senator HARRADINE—Great Scott! Senator TAMBLING—Thank you, that is fine. Mr Wilson, can I ask you if you have discussed your letter, the preparation and the issues in it, with a number of other Aboriginal communities? Mr Wilson—Yes. Senator TAMBLING—You have? Mr Wilson—Yes. Senator TAMBLING—And they have similar views? Mr Wilson—Yes. Senator TAMBLING—Thank you. My next question is to Mr Hardie. Mr Hardie, are you appearing as Ward Keller in your representation here, because it came in on a Ward Keller letterhead? That is, is it a Ward Keller representation or is it on behalf of the coalition? Mr Hardie—Senator Tambling, I am a lawyer who is employed by a firm of solicitors called Ward Keller. We have clients and, whenever clients come in, we act for those clients and we put their case. We put their case on our letterhead; they are not my views. Senator TAMBLING—So the views are those of the Northern Territory Coalition Against Euthanasia? Mr Hardie—Of course they are, Senator. Senator TAMBLING—That is fine. It is just that there were some issues relating to issues that were canvassed on behalf of this situation for this client that I was wanting to pursue probably in other places, because I did not quite see them as being consistent with submissions that I am aware your firm has made to other areas, particularly in native title. If you are representing them totally as a client I do not have any problem there. Mr Hardie—Of course we are. We have acted for the chamber of mines in the native title Senate committee and we have probably put submissions in on behalf of them. Senator TAMBLING—Okay, thank you. Mr Kiely, with regard to the submission from the Right to Life organisation, how many Territorians are members of the Right to Life association? Mr Kiely—Which Right to Life association? Please specify. Senator TAMBLING—The one you are representing. Mr Kiely—I represent, as a spokesperson, the Australian Federation of Right to Life Associations, and I think in the territory there are probably five or six at the most. Senator TAMBLING—Is that organisational groups or is that members? Mr Kiely—It is an entity. There is not an association. I go under the heading of Right to Life, Northern Territory. It is not an incorporated association and it does not have membership, but I am a member of the New South Wales Right to Life Association which is an organisation within the Australian Federation of Right to Life Associations, which is associated with the World Federation of Right to Life Associations. Senator TAMBLING—Sure, I respect that, but—

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Mr Kiely—There is another organisation which comes under the kind of generic title of Right to Life—and in expanding on this I did not want to seem to be getting away from Senator McKiernan’s question either—called LIFE, which I believe has about 22 members. It is incorporated in the Northern Territory; it is called LIFE—that is, Life Is For Everyone— Incorporated. Senator TAMBLING—But, in relation to the representations you have made to us, are they on behalf of a wider constituency group in the Northern Territory or just yourself as a member of the New South Wales Right to Life Association? Mr Kiely—No. In fact, the submission I have put in is simply on my own behalf as a private citizen. I have not put in a submission under the aegis of Right to Life. The federation has put in a submission, which I have seen. I would be happy to answer some questions, but I am not awfully familiar with the detail of it. Senator TAMBLING—Okay. In the Coalition Against Euthanasia submission, you were listed as Mr Tom Kiely, Right to Life, Northern Territory, and I am just trying to establish who you represent in that capacity. Mr Kiely—I represent the general idea of Right to Lifers, if you like. But, as I have already said, I in fact am Right to Life, Northern Territory, as an institution or an entity. Senator TAMBLING—Yourself? Mr Kiely—Yes. Senator TAMBLING—Thank you. Is your personal submission consistent with the national submissions that we are naturally receiving as a committee from Right to Life? Mr Kiely—I would hope so and I would suspect so. Senator TAMBLING—Have you liaised with them in the preparation of yours? Mr Kiely—No. As I said, I have not put one in under the title of Right to Life, but I have sent them a copy of my submission. Senator TAMBLING—Thank you. Dr Wake, in your capacity as a general practitioner have you ever done anything medically that could be construed as contributing to euthanasia or death of a patient? Dr Wake—I do not find that a comfortable question, Senator. CHAIR—Dr Wake, before you answer that, to say, ‘Have you contributed to the death of a patient?’ is a much wider question, Senator Tambling, and it may well lead to other things taking place. Perhaps you could separate the questions for a start; that might make it easier for the witness. Dr Wake—If you are asking me if I have ever utilised the double effect in the terminal care of my patients, then I think most doctors would give the same answer: they probably do not know, because when one is using medicines in the terminal situation there are two sets of circumstances operating. The first is the utility of the medicines and the second is the process for which the medicines are being used for terminal illness. So, typically, these medicines are only used in the almost immediate, peri-death situation. It is my belief that, under circumstances of good, modern palliative care, the double effect probably no longer exists. That is my firm belief. It is true to say that a decade ago, when high dose morphine was a common treatment, the double effect probably did exist, because many doctors only had the response of increasing the dose of morphine. Nowadays, of course, we use oral preparations of morphine which mean

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 69 the patients can drive cars, make love and live relatively normal lives until the natural progression of their disease process causes them to become effectively bed-bound. Under those circumstances and, or if, the process itself is making swallowing difficult, morphine would be used parenterally—that is, by injection or by intravenous access. But what is quite clear in the modern use of these medicines is that using larger and larger doses of morphine is an absolute waste of time in terms of actually improving the patient’s pain response. That is, there is a level of morphine which is effective, and as you push beyond that all you really do is give the patient various unpleasant side-effects, such as twitching of the muscles and what have you. So if what you are seeking from me is whether I have killed my patients with kindness, the answer is no, I have not. CHAIR—I think that answers the question. Senator TAMBLING—Okay—thank you. In the type of situation where death is a consequence of a series of events, would natural causes or other reasons have been the stated reasons on the death certificate? Dr Wake—I would always have written on the death certificate the cause of death as being the primary illness suffered. The death certificate might read: ‘Cancer of the lung. Secondary conditions: chronic bronchitis.’ But under no circumstances would I write on a death certificate that the medications killed the patient; or I have never seen fit to. Senator TAMBLING—Under the Rights of the Terminally Ill Act, what would you expect to see on a death certificate where a patient has exercised their rights under that act? Dr Wake—I regard that, of course, as intentional killing, and that killing occurs remote from the time at which natural death would have occurred. Therefore, in the former case that I have just outlined to you, where the cause of death was lung cancer, if that patient were given a lethal injection, either by computer or by the doctor’s hand at some time remote from the period when natural death would have occurred, then clearly what I would expect on the death certificate would be something amounting to ‘death by lethal injection’. Senator TAMBLING—I go to your comments before about the involvement of the federal parliament and the Northern Territory parliament and the different legislations. If the situation had been reversed and the Northern Territory Legislative Assembly had rejected the Rights of the Terminally Ill Act and if, then, the private member’s bill in the federal parliament was not sponsored by Mr Andrews but was perhaps sponsored by someone else who would have legislated for voluntary euthanasia, what would your reaction have been in that instance? Dr Wake—My reaction would have been to oppose the private member’s bill in the federal parliament. I have always viewed the issue of patient killing as infinitely more important than the political issues that the Northern Territory government has seemed to raise, subsequent to that issue becoming too hot for it to handle. CHAIR—At that point, we will conclude the evidence of these witnesses, save for one question. Your case in the High Court: where is that at the moment? Dr Wake—That is held over, Mr Chairman, pending the decision of the parliament. CHAIR—Has argument been put to the High Court, or did the High Court simply say, ‘We won’t hear anything until after the debate on the Andrews bill’? Dr Wake—Chief Justice Brennan has said quite clearly that there are questions of law to be decided, indicating that the legality of what the Northern Territory government has done is an issue. Therefore, his reason for not granting special leave at that time was simply to avoid embarrassment to the parliamentary process. I believe that there is an inference there that the

LEGAL AND CONSTITUTIONAL L&C 70 SENATE—Legislation Friday, 24 January 1997 proper place for law of the Northern Territory to be sorted out is in the federal parliament. There is a second clear inference that, if you do not do it, the High Court might. Senator ABETZ—The High Court ought to consider that option more often. CHAIR—On that note, I thank the Coalition Against Euthanasia. Mr Hardie, Mr Wilson, Dr Wake, Mr Kiely and Mr McCormack, thank you for your assistance to the committee today. Luncheon adjournment NITSCHKE, Dr Philip Haig, PO Box 37781, Winnellie, Northern Territory 0821 CHAIR—I call the committee to order and welcome Dr Philip Nitschke. In what capacity are you appearing before the committee? Dr Nitschke—As a private individual. CHAIR—Firstly, do you have any further submissions to put before the committee before you make an opening statement? Dr Nitschke—No. I have a printed copy of the opening statement, but it is not an addition. I have no other additions. CHAIR—Would you like to make an opening statement? Dr Nitschke—Thank you. I would like to take the opportunity to read an opening statement. CHAIR—We do have a time problem. Is that a lengthy statement? Dr Nitschke—No, it is not. It will be delivered very succinctly, I can assure you. I would like to thank you for providing me with this opportunity to address you and give you some unique information and insight into the workings of the world’s first legislation that allows a doctor to legally end the suffering of a terminally ill patient. The law has been in operation since 1 July 1996 and, at this stage, three of my patients have taken advantage of this unique and compassionate piece of legislation. Details of their experiences in taking advantage of this law and my observations throughout this period on this group and a larger group who have contacted me indicating their wish to take advantage of the law provide the basis for this address. I would point out that some of this information forms the basis of a paper in preparation for publication in medical literature and is presented here prematurely for the benefit of the Senate. I have deliberately chosen not to speak in any detail on the extensive research available on this topic based on the surveys and statistical analysis of results from overseas. Rather I would choose to speak about the personal observations of this small group who have had direct exposure to this territory legislation. Through their experiences one can learn much about how this law is impacting on the vulnerable group it was set up to serve and this surely should be a most important consideration—indeed the most important consideration—when the Senate prepares to vote on a piece of legislation whose sole aim is to overturn this territory law. I plan to speak only briefly so that there will be plenty of opportunity for senators to ask any questions they may have about the experiences and observations of my patients and myself throughout this period. First of all, who is it who wants to make use of this legislation? Since the passage of the bill in the Northern Territory Legislative Assembly in 1995, I have been contacted by approximately 40 patients who have asked me to review their situation and advise them as to whether or not they would be able to use this law. In the year following the passage of the bill, but before enactment, a number of terminally ill patients travelled to the territory expecting to be able to use the legislation. Some who were too sick to return to their homes

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 71 died in Darwin. Others were able to return. Most contacted me by phone and I was able to advise them not to travel until the bill had been enacted. Throughout that year I was able to visit many of these patients interstate. A number of territory residents contacted me and asked if they could become patients of mine so that they would be in a position to use this law after the enactment date. Several patients contacted me from overseas and provided details of their situation. Since 1 July—the enactment date—there has been an increasing number of contacts both local and interstate. In all, I was able to collect extensive information on approximately 30 patients. About one-third of those would not have been eligible to use this act. Commonly, these were people who were suffering considerably but not terminally ill. Some had significant psychiatric illness and their assessment would have been exceedingly difficult. Of the 20 who seemed after interview to be people that would satisfy the prerequisites of this act, a set of unifying characteristics were noted. In particular, it was found that this group were generally well-informed, intelligent people who would be described as being in control of their lives. Indeed, the need to be in control of their lives was often seen as the most important aspect of life. These were not people who would readily abdicate this control, and in many situations where such patients were presented with a choice of comfort or control, the choice was for control. As a group, they were generally not happy with their interaction with the medical profession, partly because they felt that their wish to be in control during the terminal phase of their lives had been ignored. Most have had requests for assistance to end their lives rejected by more than one doctor and a significant fraction—15 per cent—had previously attempted to end their lives by suicide. The view was commonly expressed that they really did not necessarily want a doctor to give them a lethal injection, but that they really wanted the ability to do it themselves. I will just add here that that was the sole reason for the development of the so-called machine which would enable a patient to administer their own lethal injection. This device was really designed to convert a situation of voluntary euthanasia into one of physician assisted suicide. The predominant diseases of those contacting me was cancer—90 per cent. The debilitating neurological diseases, motor neurone disease, et cetera, were the second largest group and HIV was the terminal illness in only one case. A significant sex difference was noticed, with 65 per cent of the requests coming from women. There was a disproportionate representation of rural people contacting me and the group could be generally described as being at the lower end of the socioeconomic spectrum. These were not people who were well connected, not people with brothers and sisters who are doctors and not people who are part of a club. I can speculate on the possible reasons for these observations if senators would like me to do so, but that is just an observed basis of this particular group of people. Who has used the act? At this stage three people have died using the Northern Territory Rights of the Terminally Ill Act. Two were from the Northern Territory, male and in the terminal stages of cancer. The other, Janet Mills, had a rare cancer—mycosis fungoides—and travelled to the Northern Territory from South Australia. All had experienced many years of suffering, all had extensive treatment, both surgical and medical, for their diseases and all had access to the best palliative care in Australia. In all cases they repeatedly requested that I assist them to end their lives and in all cases, as soon as the prerequisites were satisfied, they moved on to arrange that particular day to end their lives. In two cases detailed letters were left outlining why the ability to use this law was so important to them and why they did not want this law lost. Janet Mills, although critical of

LEGAL AND CONSTITUTIONAL L&C 72 SENATE—Legislation Friday, 24 January 1997 some aspects of the legislation, nevertheless welcomed the opportunity that this legislation had provided for her. Four days ago from today, the last person to use the legislation died in his home after leaving Darwin hospital. Although no letter was left, the constant topic of conservation with this man during the extensive contact I had with him in his last few days was that this law should be left alone and not interfered with by the Andrews bill. In relation to whether the legislation is working, clearly the legislation works. Three people have taken advantage of it and they have been exceedingly grateful for this. It has not, however, been an easy road and in each case a considerable effort was needed to establish eligibility under the act’s strict requirements. I would estimate that something like 50 hours of work per patient were needed to finally enable them to proceed. The problem is that the territory legislation is heavily medicalised, the attitude of the profession is generally hostile and there are few territory specialists available to access the individual patients. When the territory government produced regulations governing the operation of this act so that it was necessary for a territory resident specialist to assess the patients to make the statement on diagnosis and prognosis, difficulties were built into the operation of this law. It has been and will continue to be a significant problem with the operation of this legislation in the territory. If one has a medical as opposed to a surgical terminal disease—I will define this traditional division of diseases within medicine: medical diseases are traditionally those that are treated with drugs; and surgical diseases are traditionally those that are operated upon to resolve the situation—one is likely to fare less well as they search for a specialist to confirm diagnosis. Specialists in the case of medical diseases are physicians, and they are almost totally united and opposed to the operation of this legislation. For those with medical terminal illnesses, this can be an insurmountable problem. One is more fortunate if one is dying of a surgical illness. Nevertheless, as time passes some of the difficulties are resolved. People here may be familiar with Max Bell, a taxidriver with terminal stomach cancer—a surgical condition—who drove to Darwin to be here on 1 July to take advantage of the law. He had little chance of ever being able to use this most compassionate piece of legislation. False claims by the Australian Medical Association that there would be some sort of legal penalty visited on those doctors who cooperated with this legislation and last minute changes to the regulations that made it mandatory to enlist the services of a territory specialist made it impossible for Max. He drove out of Darwin saying that he would use his last bit of strength to get out of the territory; and he died a lonely, horrible, out of control death in Broken Hill. The Four Corners show ‘Road to Nowhere’ had a very apt title. The last person to die also had stomach cancer—this was four days ago—but he had a much easier run than Max. Although constantly troubled as to whether he could ‘pass his exam’ to satisfy the psychiatrist and the specialist—and this is how he saw it—he had none of the problems of isolation and rejection that Max had experienced. It has become more humane, more workable, especially if one is a territorian and has a surgical illness, but it was never, as suggested by Marshall, ‘simply a matter of time’. The legislation is fragile and difficult, and the work required to make use of it immense. We still make the terminally ill jump through hoops in some macabre final test to demonstrate eligibility. This is some distance from the desired goal of putting the patients in control, but it is infinitely better than the backyard, illegal options available to the fortunate few who have contacts and connections. This egalitarian piece of legislation has directly affected the inequity and injustice that typifies the plight of the terminally ill elsewhere in Australia.

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I will briefly say a few words about palliative care. All of the patients who have gone ahead and made use of this law had extensive, sympathetic, competent advice and help from palliative care services in the Northern Territory. It is often claimed that, if adequate palliative care were available, no patient would wish to make use of voluntary euthanasia. This is clearly untrue. Interstate patients like Janet Mills had access to world standard palliative care and still chose to travel to the Northern Territory—and she did not come up here to access the Northern Territory palliative care services. The territory patients have access to excellent care, both here and interstate, through the constant phone communication that I engage in. The patients all benefited from palliative care but at some point realised that it was simply not enough. It was never an either/or choice. In each case, the palliative care services assisted to the point where the patient decided to end their life. The best example of this cooperation was shown in the case of Janet Mills’ last weeks of life. For three weeks she sought help from territory specialists to allow her to end her life. She was provided with in-patient care in a dedicated palliative care bed. She was given constant and competent nursing and medical advice, and at no time was she made to feel uncomfortable because of her choice to make use of the Rights of the Terminally Ill Act. In the letter she left, she was overwhelmingly grateful to the palliative care service and resented the constant public suggestion that there was something inadequate about the service provided and that this in some way was affecting her decision to end her life. I would like to say a few quick words about the media. The complex role played by the media in this euthanasia debate goes well beyond this presentation. But one aspect of the question is important though. The involvement of the media with the number of patients who have wished to use this legislation has been widely misunderstood. Specifically, it has been claimed that the so-called media circus that surrounded Max Bell’s time in Darwin, the release of information about Bob Dent and the public appeal of Janet Mills for specialist assistance in some ways worked against the operation of the act. The argument was run that if only there was no media attention to the plight of the early patients then the specialists would readily have come forward and involved themselves to make this law workable. The problem with this theory is that it completely misrepresents the basis of the problems that those wishing to use the act have experienced. Indeed, it was precisely because of the media attention to Max Bell that we were eventually able to obtain the prerequisites for Bob Dent. It was only after three weeks of silence with no help that Janet Mills took the exceedingly difficult step of making a public appeal—and that worked. It is likely that without the media attention and the public depiction of their private suffering that no-one would ever have been able to use this law. In recent days, the suggestion has been made again that, with the minimal media attention accompanying the last death four days ago, we now have a law working without difficulty. The problem with this analysis for me is that it once again creates false expectations in my client group of terminally ill patients who simply cannot understand why I am having trouble getting this working legislation to work for them. I draw the attention of senators to this point because this issue is constantly misrepresented by both those supporting and opposing the Andrews legislation. It has been convenient to blame the media for difficulties with the act, and their behaviour has not always been flawless. But, in general, the reporting of this important issue has been sensitive, relevant and usually helpful.

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I will finish off with some comments on the slippery slope. Senators will hear this many times throughout the hearings into this matter about the inevitable slippery slope that the Northern Territory is about to embark upon. Relevant to this argument, of course, are the surveys done in Holland, the Remmelink report, which I am sure you have heard of ad nauseam, done in 1990 and the more recently published information, a follow-up to the Remmelink report, in the New England Journal of Medicine, the Vandermas report done last year. I am sure you have had your attention drawn to the editorial in the New England Medical Journal which said, ‘It would be very hard to construe these findings as a descent into depravity.’ In Holland there has been no slippery slope. Is there any evidence of a very early slope in the Northern Territory? It has been claimed there is. Calls to free up some of the restrictive aspects of this territory legislation has been interpreted as just this. But it is not appropriate to have the terminally ill subject to such duress that they are compelled to try to drive 4,000 kilometres out of the territory or face a national media conference to try to get the act to work. Marshall Perron once said that he did not want the legislation to force the terminally ill to jump through hoops, and I can only agree. Legislative changes that make this law more accessible, fair, humane and less punitive should be considered. Any major new piece of legislation will have teething difficulties and these need to be addressed without the constant bleating from our opponents that these changes constitute the beginnings of the mythical slippery slope. It was very heartening to me to see the relief on the faces of the first two people to use the act when they eventually satisfied the prerequisite that would enable them to go ahead and have the lethal injection whenever they wanted it. The anxiety drained away at the time they achieved those requisite signatures. I remember those instances vividly. They were very significant breakthroughs. This is what they wanted: they wanted the knowledge that at any time they could simply indicate to me that they wished to end their lives and that I could help them. With this knowledge came a great degree of peace. They did not immediately race into using the law. Rather, they spent some time appreciating this new freedom and, they claimed, deriving more enjoyment from their lives now that that particular uncertainty had ended. Other patients of mine will be in this position before the Andrews bill is voted upon. The specific problem is this: the impending vote threatens to remove the right that these patients have fought hard to obtain. They will be placed in a situation of having to decide which way the Senate will vote, and then take a chance as to whether or not to act precipitously. This would impose unacceptable pressure on these patients, and this is one reason why I would urge the Senate to reject the Andrews bill. If, however, this is not going to be the case, the Senate should at least make the humane provision for those who will have satisfied those requirements of the act at that stage to at least allow them to proceed to end their lives at their choosing. I thank the Senate for the opportunity to discuss these issues. I would certainly be pleased to take any questions that you may have. CHAIR—Thank you. Dr Nitschke, you mentioned that there are 20 patients who qualify under the act. Are they awaiting your assistance? Dr Nitschke—No, those 20 patients are the statistics that have been gathered over a period ever since I have found myself being contacted by this group. Many of those patients have died in this time period. They were interstate patients in a period of time when the law was

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 75 not in operation. There was nothing I could do to help them other than travel to see them interstate and collect information about who they are and why it was that they thought the territory law would be of help. CHAIR—To your knowledge, how many people are waiting to terminate their life? Dr Nitschke—I have four patients. CHAIR—Would you be able to make an informed guess as to how many deaths there might be under this act each year? Dr Nitschke—It is not certain to me how many patients are accessing help from other doctors. I suspect that there are not many. I am already seeing evidence that doctors are referring patients to me for this particular reason. So I suspect that it is my patients who probably represent the bulk of the patients. I have four. I would estimate that one a month would seem to be perhaps realistic. Given the immense problems for interstate people to access this legislation, it is very hard to see that this will ever represent a significant avenue for people coming from interstate. CHAIR—One of the issues raised earlier this morning was the question of scrutiny of the procedures under the act. Mr Perron had a flowchart which outlined the step-by-step process involved. One aspect was an inquest by the coroner. In Mr Dent’s case, was there an inquest by the coroner? Dr Nitschke—In Mr Dent’s case the reason for that coronial inquiry—not a full coronial inquest—into the case of Mr Dent was that he insisted, or his widow insisted, that there be a cremation, and that immediately put it into a category which was not encompassed by the legislation. Had he chosen not to be cremated, or had his widow not insisted that there be a cremation, there would have been no inquiry. CHAIR—But then there would have been an inquest, wouldn’t there? Dr Nitschke—No, there would have been no inquest, and there has been no inquest in the cases of the other two patients. CHAIR—In Mr Perron’s flowchart—we are looking at how the act is working, of course— the final step states: Patients provided with assistance under the Act may not be cremated unless the Coroner has certified that he has conducted an inquest and no autopsy is necessary. The coroner did that, did he? Dr Nitschke—Yes. CHAIR—You say that there is some 50 hours of work involved in processing a patient under this act. Is that your work? Dr Nitschke—Yes. CHAIR—What other work is entailed by other people? Dr Nitschke—By other people or by— CHAIR—Apart from yourself. Is there any other work that has to be done? Dr Nitschke—No, I think the work as such consists of the constant attempts to try to obtain for the particular patients the necessary documentation from the various sources, to put it into a presentable form and to lobby the appropriate specialists to involve themselves in this particular patient’s plight. Obviously, this will get easier. The 50 hours is certainly the case with the first two patients. I certainly cannot continue to keep on working in this way. It is

LEGAL AND CONSTITUTIONAL L&C 76 SENATE—Legislation Friday, 24 January 1997 not a very satisfactory way to spend 50 hours per patient on this procedure, but that is what it takes currently to try to get the necessary documentation together. CHAIR—Is it correct that the procedures do not require any public notification? Dr Nitschke—Yes. CHAIR—I wonder if I could ask Senator McKiernan to take over the chair for a moment. Senator McKiernan, you no doubt have some questions as well. ACTING CHAIR (Senator McKiernan)—I was intrigued, when I first read your submission, that you headed your submission ‘Submission to Senate hearings on Euthanasia’. Did you, at the time of writing the submission dated 11 December 1996, think that the Senate was inquiring into euthanasia by virtue of this inquiry? Dr Nitschke—That was written on the last day that the submissions had to be in. It was written when I was prevailed upon to get something in writing so that I could indicate that I wished to give a verbal presentation. It was written on the run and it was written in a somewhat ill-considered fashion. So I cannot remember exactly what I was thinking when I typed that out, except that I knew I had to do it by 4 o’clock. I would hope that you might be more forgiving with respect to the wording. ACTING CHAIR—We are. The term that you are using—and you put another term in front of the committee here this afternoon—is ‘physician assisted suicide’. I would like from you an explanation of the definitions of physician assisted suicide, euthanasia and voluntary euthanasia. Dr Nitschke—I simply see euthanasia, from the nature of the word, from the composition of the word, as being a good death. Voluntary euthanasia I would see as a situation where the patient indicates that they wish to have assistance to end their lives. Physician assisted suicide is when we move a situation so that it becomes suicide, so that the patient is actually able to initiate and complete the event, but needs some assistance and that assistance comes from a physician or a doctor. ACTING CHAIR—Does voluntary euthanasia necessarily mean the assistance of a person with medical qualifications? Dr Nitschke—No, it does not. I mentioned that this particular machine was an attempt to try to convert the situation of voluntary euthanasia as indicated by the act, which was generally regarded as a patient with a doctor alongside them giving them a lethal injection, into a situation where the doctor no longer actually had to deliver the means which ended their life. The machine would do that. The patient would initiate the process and the doctor is somewhat removed from the process. I would see the distinction in those two instances as having a doctor giving a lethal injection when the patient is asking for it—voluntary euthanasia—or a patient connected to a machine, or a patient taking some tablets, as in the Swiss situation. That is a situation where it is assisted suicide. If a doctor is assisting, it becomes physician assisted suicide. ACTING CHAIR—Does it have to mean the relief of suffering, the relief of pain? Dr Nitschke—Does what have to mean this? ACTING CHAIR—Voluntary euthanasia. Dr Nitschke—In the context of the particular piece of legislation we are dealing with, a person has to be terminally ill and suffering. In those circumstances, they are able to access the law.

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ACTING CHAIR—Three people have taken advantage of the RTI legislation in the Northern Territory so far. With regard to these, how would you define the three definitions that I asked you to explain. Dr Nitschke—They would be described as physician assisted suicide or assisted suicide in the sense that they all made use of a machine which enabled them to initiate the process and allow the process to continue to completion. Obviously, there was a need for assistance in the sense that there was a need to introduce an intravenous cannular. I did that in every case. It would be unrealistic to expect that they could have done that themselves. So I would define it as assisted suicide. But, of course, there is some greyness between the two categories. ACTING CHAIR—My last act as acting chair is to call Senator Abetz. Senator ABETZ—There has been a lot of discussion about the rights of people to access the procedures under the legislation. Where would you draw the line in relation to those rights? Should it just be limited to the terminally ill or should it be extended to those who simply are suffering from distress from, let us say, chronic arthritis or are getting sick of taking their diabetic injection two, three or four times a day? Where should the line be drawn? Dr Nitschke—I think every person who gets asked this question finds themselves in a situation where they have to try to draw a line. It is convenient or helpful for those who work in the territory under this piece of legislation to have that line drawn for us—and it is in the legislation. Whether I personally would agree with that line I think is what you are asking me, and where do I personally draw the line. I suppose I personally feel that people who are suffering illnesses which may not necessarily be terminal but are clearly encompassed in the idea of intolerable pain and suffering should have access to this form of legislation. That is a personal view. I am quite happy, though, to operate within the current legal framework and it is very convenient to have those lines drawn. If people suggest that this be extended, I would certainly agree with that particular extension. Senator ABETZ—And what about a person in a nursing home spending a lot of money which might potentially stand to the credit of the estate and might help, let us say, with the grandchildren’s education, and simply for altruistic reasons the grandparent says, ‘Look, this is a waste of money; the chances are I will be dead in a year anyway.’ Should it be extended to those situations? Dr Nitschke—The question I think was quite well answered by Marshall Perron this morning. There is a degree of arrogance in coming along to someone and saying to them, ‘I think that your reasons are inappropriate or implausible.’ If they say to me that they are suffering, I am prepared to accept that they are suffering. I do not necessarily have to subject it to any exhaustive survey. In this case you are saying that they are not suffering at all; that they simply want to do it for financial reasons. I think that does not encompass the term ‘suffering’, so I do not think I could agree with it. Senator ABETZ—But distress? Dr Nitschke—Distress because their children are not getting an education? Senator ABETZ—No. I am asking you, not under the current legislation— Dr Nitschke—I understand. Senator ABETZ—Right. But would you broaden it out? Dr Nitschke—I have already indicated that I would broaden it out to some extent. I am not too sure I would be broadening it out to the extent that you are trying to lead me down. I am

LEGAL AND CONSTITUTIONAL L&C 78 SENATE—Legislation Friday, 24 January 1997 not particularly interested in these ideas that there be some sort of psychic pain—I think that is what you are trying to postulate—that there be some sort of distress as an appropriate motive and this distress perhaps is psychogenic. I do not think I like the sound of that particular piece of extension and I would not necessarily agree with that. Senator ABETZ—But doesn’t that make you just as arrogant, because you are saying, ‘Here are these people who are exercising their own mind validly. They are competent, capable individuals. Why should we deny them that right?’ So are you not engaged in the same type of arrogance and all we are really arguing about is where the arrogant would draw the line? Dr Nitschke—I understand the line you are putting. I suspect that one could ask every one of us where we draw that line and we would all have a somewhat different position, and I could ask that question straight back to you. I am personally of the opinion that that is not an appropriate reason for pursuing with providing that service. If that deems me to be arrogant, I guess that is the way it is. But I have little trouble in understanding if a person is suffering intolerably in a way that I would envisage—this is a person with some chronic disease process associated with a lot of pain, discomfort, incontinence and nausea, or whatever. I can understand their right. If you tell me that they are feeling some psychic pain because their grandchildren are not getting an education, I would reject that, arrogant though it be. Senator ABETZ—Right. Under the current legislation it is not really the right of the patient, is it, to have their life terminated, because you have to find a doctor prepared to do it and so each doctor, according to your description, has to arrogantly make a decision one way or the other—‘You fit into a category under my diagnosis’ or ‘You do not fit into the category under my diagnosis’; therefore one way their wish will be achieved or the other their wish will not be achieved. So it is not really the right of the terminally ill, is it? It is rather the right of the doctor to be able to do it. Dr Nitschke—I would dispute that. The guidelines are very clear in the act and the people that approach me fit within those guidelines eminently and will have no trouble, I would put it to you, to find a doctor eventually—even in the territory—who will agree with that. The reasons the doctors are not cooperating with this particular piece of legislation is because of ideological objections by many doctors to this particular piece of legislation. It is not that they dispute that the person is terminally ill. The specialist has to say that the person has a terminal illness and give some indication of prognosis. Any specialist can do that and if they were obliged to do that there would be no trouble with these patients accessing the legislation. What is happening, though, is a specialist saying, ‘I don’t want to do what I am eminently capable of doing—giving a diagnosis and prognosis—because I reject the whole concept of voluntary euthanasia.’ Senator ABETZ—We heard today from the architect of the legislation that he had not even heard of the concept of palliative care prior to the introduction of the bill. What is the state of palliative care in the territory? There have been assertions made on the front page of the Australian, for example, that Mr Dent’s symptoms could have been appropriately dealt with with appropriate palliative care. I am aware of some medical opinion—and I have got no idea whether it is right or wrong—that Janet Mills’s form of cancer was hardly likely to be terminal of itself and therefore there was a question of whether it was really a terminal illness for the purposes of the legislation. How sure can we be of these diagnoses that, at the end of the day, deal with people’s life and death? Dr Nitschke—I think you have asked three questions. The first was: what was my observation or comments about Marshall Perron’s suggestion that he had not heard of palliative

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 79 care? I think what Marshall was saying was that he may not have been familiar with the term, but I would imagine— Senator BOB COLLINS—That is what he said, in fact. With respect, I think it is important to put on the record that your interpretation is correct. Dr Nitschke—Yes. What he calls it is one thing but most people are aware of the idea of alleviating suffering. Senator BOB COLLINS—He said he was not aware of what the term meant. Senator ABETZ—He had not heard of it. Dr Nitschke—Had not heard of the word? Senator BOB COLLINS—It will be in the Hansard. Dr Nitschke—The second question was about the state of the Northern Territory Palliative Care Service. As indicated by Marshall, the service has gone through significant expansion, especially in that year, the period in which the law was not enacted, leading up to 1 July. There was some reference in the last submission that there is no medical staff currently in attendance at the Palliative Care Service. That is currently the situation. What they have done, though, is to make access to the interstate palliative care specialists exceedingly easy. I contact the interstate palliative care services on a regular basis and find out just about everything I need to know. It is arguable whether there would be much benefit in having necessarily a palliative care specialist resident actually in the Northern Territory when good communication is so readily available from the interstate services. Another suggestion you made was that there was some question about the diagnosis or the palliative care in the case of Bob Dent—a front page report in the Australian to the effect that ‘I could have saved this man from all his symptoms’, if I remember rightly, by a palliative care sister. For every person who makes a claim like that, there will be another dozen who will say, as did those who knew him—and there were some eminent palliative care people involved in the care of Bob Dent—that this is not a situation which readily lends itself to alleviation. The case is, as many palliative care people will tell you, that it is not simply a matter that everything can be relieved. The final question was about the medical treatment associated with Janet Mills, a suggestion at least— Senator ABETZ—The diagnosis. Dr Nitschke—No, the diagnosis was not in doubt; it was mycosis. The question you suggested was that there was some form of treatment available for mycosis which she maybe had not accessed. Again, she came from South Australia with considerable documentation from the most eminent oncologists in that state saying that, in their opinion, she had an aggressive form of the disease and had a life expectancy of a few weeks. Senator ABETZ—I now refer to a media story which appeared in my local paper on 7 January 1997. There is a lot of concern within the community about suicide, youth suicide, et cetera. There was a story by Matthew Horan in Canberra which stated: Euthanasia Dr Philip Nitschke’s suicide computer program is available on the Internet, with full instructions on how to build your own death machine. Do you think that was a good community service to provide on the Internet? Dr Nitschke—Have you visited the Internet site? Senator ABETZ—I am asking you whether you think it was a good community service.

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Dr Nitschke—This is relevant to my answer. If you have, I will answer it one way; if you have not, I will answer it a different way. If you have accessed the Internet site, I will be able to very clearly say to you that you will have seen there is no indication of how one administers the drugs in that particular instance. Providing those details is simply for the very purpose that this question has just been asked—it is to dispel that sort of ignorance which is being published. The fact is it is to demystify the particular concept of this machine. This machine was built out of the specific request of terminally ill patients and it provides a very useful function. We have used the Internet to provide that access widely in a way that the Australian, for example, has not been able to provide. It is a way of demystifying the concept so that people can visit the site, they can look at it and they can realise that it is not a computer assisted death machine, it is simply a way of allowing a patient to initiate the process which completes the lethal injection. There is no indication on the net site of the drugs that are used. Senator ABETZ—Do you think it is a good community service to provide? Dr Nitschke—Absolutely. Senator BOB COLLINS—The questions that I want to ask Dr Nitschke I consider by no means to be central issues. This is a side issue. As someone who is interested in computers and software, as I am, and as a politician who has worked on material, as all politicians have over 20 years, it is all designed to persuade people—particularly if they have not made up their minds about something—to go in a certain direction, I was fascinated with the screens themselves and I wanted to ask you about them. I concede that an extremist, as your patients were—as are all people in that condition—who had taken all of those steps to terminate their own lives would not be likely to change their minds in the last few minutes. Dr Nitschke—Yes. Senator BOB COLLINS—But, as you would know, there are many documented evidences of people who have changed their minds in the last few minutes. Dr Nitschke—Yes. Senator BOB COLLINS—So you would agree that it is certainly possible that people would do that, particularly under the circumstances where they are very ill and so on—that you could have a bedside change of mind? Dr Nitschke—Yes. Senator BOB COLLINS—That is the central reason why I wanted to ask you these questions. When the patient has a look at the first screen—and I apologise to the committee for not having the resources anymore to provide everybody else with these, but I would suggest the committee get them— CHAIR—Would you like to table those, Senator Collins? Senator BOB COLLINS—Yes, I will. You see on the screen ‘A program for patient controlled medically assisted suicide for the terminally ill’. You then get the internationally recognised icon for ‘continue’—a pointing finger—you point it and you go to the next screen. I was more and more reminded of how-to-vote cards as I went through here and that is what worried me. The next screen reads: Are you aware that if you go ahead to the last screen and press the Yes button, you will be given a lethal dose of medication and die?

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Underneath that message there are then two squares, one a great big ‘Yes’. There is no ‘No’; it does not appear on the screen. There is simply the pointing finger icon to exit the program. There is a big black arrow that points to the ‘Yes’ button; not the other button. There is a written instruction which relates only to answering ‘Yes’ and not to the alternative. It says this: Are you aware that if you go ahead to the last screen and press the Yes button, you will be given a lethal dose of medication and die? The message then reads: Press the space bar twice to answer Yes and move onto the next screen. Then it directs you to ‘Yes’, so you then go to the next screen. You then get a message that says: Are you certain you understand that if you proceed and press the Yes button on the next screen that you will die? Once again there is a big black arrow that points only to the ‘Yes’ button. There is no ‘No’ button on the screen. There is a written message which relates only to an instruction to press the ‘Yes’ button. You then go to the last screen. This has been a cartoonist’s delight. Dr Nitschke—It has. Senator BOB COLLINS—One of my favourites was the cartoon where a group of dying patients—there has been a lot of black humour associated with this—were all lying there in bed with laptop computers and one nurse was saying to the other nurse, ‘Yes, they were all dying but since we’ve given them these computers to practise with, they’ve all got a new lease on life’. They are all tapping away. So you go to the last screen. You finally get a ‘No’ option presented to you. But, to my fascination, it says this: In 15 seconds— That is why I said this reminded me of a how-to-vote card— you will be given a lethal injection. Underneath it again is the instruction, which only relates to the default option, obviously, of saying ‘Yes’ and it says: Press the space bar three times to bypass warning and answer yes. The ‘yes’ is twice as large as the ‘no’ and is surrounded by a border whereas the ‘no’ is unadorned. You can see it here clearly. It is half the size of the ‘yes’. I was just astonished that that particular format had been used. I know that you will not misunderstand the question. I am not suggesting that an intelligent person in extremis who had made a decision is going to be fooled by any of this, but I think it is inescapable, from a politician’s perspective, in terms of preparing material which is designed to lead someone in a particular direction, that there is a clear and unmistakable message given through this final program—basically, this is the last thing they see before they die—that the preferred option is to press the ‘yes’ button on each occasion. I am just curious as to why it was designed like that. Dr Nitschke—There are two points I would like to make. First of all, and this is not an excuse, but that is not the particular version of the program which is run on the program which is shown to the patients. I am not using that as an excuse, but it does not have those aspects. Any button other than the space bar cancels the program, and that is explained very clearly to the patients before they start. Basically, the space bar is yes; any other button is no and it stops. That is the first point.

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The second point is that when this machine was developed it had a press button. That is all it had. There was no laptop computer involved. It was simply a press button that started a syringe driver. That would seem to be pretty adequate. When a person decides that they want to die they have satisfied the very exhaustive requirements of the act. That is where the test is. That is not the test to decide whether or not you should access voluntary euthanasia. That is done with the medical reports and the like. This is simply a way to stop people falling over and pressing the button accidentally, because that was the line that was levelled at us. People said, ‘Oh, my God! A simple press button! What if I slip over and press the button?’ This way you do not slip over and press the button; you have to press a button three times and you have to be able to read so you have to be conscious. So there are a few safeguards in it. It is not quite as trite as you are suggesting and it is not the point that selects whether a person should use voluntary euthanasia or have access to it. That has all been done. Senator BOB COLLINS—I said that myself. Dr Nitschke—Good. Senator BOB COLLINS—Doctor Nitschke, could I just say, with respect, the reason why I asked the question is because Senator Abetz opened the question and you answered it with the Internet site. I accessed the Internet, so I did what you wanted me to do. Could I suggest to you, with the greatest respect, that it is not very helpful to me or anyone else who genuinely wants to know how this works to access information which you provided that is not what in fact happens. Dr Nitschke—All right, I accept that criticism. Senator HEFFERNAN—Go to the Powerhouse Museum. Senator BOB COLLINS—No, I cannot go to the Powerhouse Museum because Dr Nitschke has already said publicly that that machine is no longer the machine that is used. That will be an old version if it goes there. I wonder, for the benefit of us all, if you could update your home page. Dr Nitschke—Yes. I will do it immediately tonight. Senator BOB COLLINS—Thanks very much. Senator HARRADINE—Dr Nitschke, would you describe yourself as a vigorous advocate of euthanasia? Dr Nitschke—Yes. Senator HARRADINE—Do you see the Northern Territory RTI legislation as being a launching pad for similar legislation in other parts of Australia and perhaps the world? Dr Nitschke—Yes, I would see it as being somewhat similar to the introduction of the progressive abortion legislation in South Australia. There needs to be a place that is first and that particular place will always cop a lot of criticism, as South Australia did. But women moved across state boundaries to access progressive abortion law reform in that state. Nowadays women do not have to do that. There is progressive legislation in all states. I would hope that this legislation moves to other states so that people do not have to come up to the Northern Territory to access this progressive legislation. Senator HARRADINE—What sorts of steps are you taking to help that along? Dr Nitschke—Explaining the situation at inquiries such as this—obviously there is a political dimension to what I do—and producing the Internet site. Despite all the criticism,

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 83 it is a very accessed site. Most overwhelmingly, except for one or two exceptions, the feedback has been very positive. There is a degree of politicking going on to try to advocate this particular piece of social reform in other places other than the Northern Territory and, incidentally, to hopefully maintain the stability of the fragile Northern Territory legislation. So it is a multidimensional thing. On top of that, of course, there is the personal business of involving myself with the patients. I do both as best I can. Senator HARRADINE—So the Northern Territory legislation is seen by you as a catalyst? Dr Nitschke—Yes. Senator HARRADINE—Under those circumstances, is it not a matter also for consideration by the federal parliament? Dr Nitschke—I am not dismayed by the consideration of the legislation by the federal parliament at all. I find the unique situation that the territory finds itself in a little annoying. For example, when the South Australian legislation introduced abortion reform, there was no way that it would have been able to be overturned by the federal jurisdiction. That would have been very reassuring to the South Australian parliament. We do not have that luxury. Perhaps we will one day. But I am not opposed necessarily to this being subject to federal review. Senator HARRADINE—Do you think on matters like these, however, that there should be a general agreement between the states and territories before one state initiates them? For example, let us take heroin trials. Should one territory or state not go it alone? Dr Nitschke—If one uses that argument, one leaves a situation where very few things will ever happen. Senator HARRADINE—No, I am using the specific example of heroin. Do you think that it would be desirable for the territory or a particular state to go it alone on that without a degree of consensus? Dr Nitschke—It is appropriate for the ACT, for example, to go it alone with the heroin trial. I would have thoroughly endorsed that. If the territory government chose to go down that progressive road, I would thoroughly endorse it too. I see no evidence that this is going to happen though. Senator HARRADINE—What has the ACT done about it? Dr Nitschke—About the heroin trial? Senator HARRADINE—Yes. Dr Nitschke—Forgive me for being a little confused at what you are driving at. I am not exactly sure what has happened with the ACT heroin trial. Senator HARRADINE—Isn’t it a fact that they have waited? Dr Nitschke—Possibly. Waited for federal consensus? Senator HARRADINE—Yes, I think that is so. I could confirm it if you gave me two minutes. Dr Nitschke—No, I am prepared to accept that. If that is what they have chosen to do, I guess that is okay. It is a mistake. There will be a lot of people who will die because that particular delaying tactic and decision has been taken. Senator FERRIS—Dr Nitschke, do you have very many Aboriginal patients?

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Dr Nitschke—My practice is predominantly involved with intravenous drug use in Darwin. This group of people is a terminally ill group. It is a very small group, even though it takes up most of my time now. Amongst intravenous drug users, I have a small group of Aboriginal patients. Senator FERRIS—Would the number of Aboriginal patients that you have now changed since the publicity surrounding your practice? Dr Nitschke—No. I see what you are asking, but I think that more reflects the fact that it is very difficult to access doctors prepared to involve themselves in some of the aspects of intravenous drug use. I think possibly people have very little choice as far as doctors are concerned to deal in this issue. Certainly, I have seen no change. Senator FERRIS—I have been interested to note from the submissions that Aboriginal communities consider that they were not consulted and are poorly informed on this. I am wondering whether you have been out to speak to any of them or whether you have been invited to go to any of them. Dr Nitschke—I certainly have not been invited to go to any communities. I would quite happily have taken up such an option. As far as organising such a visit myself, I have not initiated that. Senator FERRIS—What proportion of your practice would now be involved with terminally ill patients as compared to perhaps before? Dr Nitschke—‘Before’ meaning before the announcement by Marshall when he was about to introduce his private member’s bill, I had several terminally ill patients because we do home visits only. As one of the only home visit services in Darwin— Senator BOB COLLINS—I didn’t know there was one. Dr Nitschke—There is. For that reason alone we had some involvement with terminally ill patients. That number has grown significantly since the involvement with this particular issue, not by people who are coming along and saying, ‘I want you to be the doctor because I want to make use of the Rights of the Terminally Ill Act’; rather I suspect—I have seen some evidence of it already—that people are accessing the service to position themselves with doctors who they know to be sympathetic to this particular issue should they ever find themselves in that position. I think that is what is going on. The number of terminally ill patients that I have now has gone up by a factor of four or five. Senator FERRIS—I was just interested to hear you say that you are spending about 50 hours on each of these patients. It would seem to me that that would leave you very little time to do any other general practice work. Would that be right? Dr Nitschke—Yes, it is true. The practice has just about collapsed as far as intravenous drug users are concerned because of the amount of time and work with these particular three patients—only three patients. There have been some changes. I do not think we will ever see again—I hope we will never see again—the amount of work that had to go into trying to get the situation for Janet Mills resolved. That was an exceedingly difficult situation. It took many hours of work. The situation in the recent death was much easier. In some ways the path is being made clearer. That is not to suggest that we are on a slippery slope; it is simply to suggest that the avenues are being made a little bit clearer. People feel a little bit calmer about the issue. The sky did not fall in after the first death. I think that we are seeing things a little bit easier. I would suspect that 50 hours will certainly come down.

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Senator FERRIS—In relation to the 50 hours, how is that paid for? How do you bill those patients? Where does Medicare come into that? Dr Nitschke—Medicare does not come into it very much at all. As far as how you bill it, I financed it myself. One of the reasons that I am currently in significant debt is because of the fact that I have worked almost non-stop on this particular issue. There is no remuneration. There is technically remuneration from Medicare. The practice bulk-bills exclusively, and so, every time one visits a terminally ill patient, one can in fact claim a home visit fee. However, that does not explain the next number of hours that you are on the phone or you are visiting specialists or you are doing all that intensive lobbying that needs to go on. There is no remuneration for that whatsoever. The final event, as you might call it—when a person actually does ask for the lethal injection—is specifically excluded from remuneration from Medicare. Senator FERRIS—I am not sure, Dr Nitschke, whether you were here when we were talking about the Swiss report— Dr Nitschke—Yes, I was. Senator FERRIS—But the exit club: would you like to make any comment on how you might see an exit club scheme working in the territory in relation to your legislation? Dr Nitschke—I think it is interesting for a number of reasons, and some of the comments made this morning were very interesting. I am familiar with the Swiss system. Marshall and I did attend the world right to die conference in Melbourne, and I did talk to the Swiss doctor involved. It is a very interesting concept. The idea that it is done remotely in the sense that tablets are prescribed and the doctor is not actually present is an unusual scheme. There are aspects of membership of a club, the three months and the like which I certainly would not be averse to in the territory situation. The three months is daunting, though, because I find that when people make a decision that the suffering is intolerable they really do wish to proceed. The nine days can often be nine days of hell. Waiting around trying to get signatures and what have you can similarly be a protracted torture. Even the pressing of the buttons: you get the feeling at times that if there were a fast forward or go to the last screen button people would just take it. So there is really an insistence that people have that they want to get going, and three months could seem like a lifetime. Senator FERRIS—Perhaps in some way the three months might be seen more as preventive by people once they reach a certain age. I am just skimming this. Dr Nitschke—Yes. Senator FERRIS—You made a comment at the beginning of your presentation that you describe the legislation as ‘fragile and difficult legislation’. Dr Nitschke—Yes. Senator FERRIS—How would you change it to make it less fragile and less difficult? Dr Nitschke—It is fragile because it is under threat. I see it under threat by the current Andrews bill, obviously. It is under threat from the High Court. Patients—who should not really have this added anxiety in this last stage of their lives—have got considerable anxiety. The first is the difficult nature of accessing the legislation, and then you have got these rather vague threats out there as to what is actually going to happen. So that is where it is fragile. As far as its difficulty is concerned, the difficulty revolves around this ongoing and probably unresolvable problem of the difficulty in getting medical support for a bill which has been heavily medicalised.

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There are probably arguments that you do not need to medicalise the bill to this extent. I would hope that some of the other models that will, I realise, be introduced at some stage in some other state jurisdictions, learn from what has happened in the territory, although this legislation would work quite well in a state where there are many more specialists. It really is to do with the dearth of specialists in the territory that it is difficult. Senator FERRIS—Do you have any comment on the basis for the Swiss legislation being ‘suffering from a serious illness and/or unbearable health troubles with poor prognosis’? Would you see that as being an area—if you were to change the legislation—you would like to move into or are you happy with the definition of qualification? Dr Nitschke—I am certainly happy with the definition we got because it makes it easy in the sense that one does not have to set oneself up to be some sort of arbiter on whether or not a person is eligible—very clear-cut guidelines. But I personally, as I indicated in answer to an earlier question, would have thought that there is room for extension into the areas of chronic suffering and chronic debilitating illness which do not necessarily fit the definition of terminal. Senator FERRIS—Thanks, Dr Nitschke. Senator HEFFERNAN—Do you think that there will be a shift in the medical ethic in Australia because of the Australia-wide introduction of Northern Territory-like legislation? Dr Nitschke—I hope so. Senator HEFFERNAN—Following on Senator Ferris’s questions, you say that your practice deals mainly with intravenous drug users and people that want to make use of the legislation. When you treat drug users, is that to save their lives? Dr Nitschke—Yes, sometimes. There are a lot of health problems associated with the intravenous drug using community and a lot of those services are certainly not in a life threatening situation. Occasionally one is called upon to attend overdoses when one does act to save people’s lives. Senator HEFFERNAN—So would it be fair to say then that you have neglected the life saving of drug users to participate more full time in the application of death to other patients? Dr Nitschke—It is a true statement, I suppose. I do not know how fair it is. The implication is, of course, that in some ways I have turned my back on the dying, drug using population only to end the lives of a few people who want to access this law, and that seems a dreadfully unfair interpretation. Senator HEFFERNAN—You say you agree that there should be a change in the medical ethic. Dr Nitschke—Yes. Senator HEFFERNAN—You said in an interview with the ABC in recent days that you are enjoying the publicity associated with your relationship— Dr Nitschke—I do not know— Senator HEFFERNAN—It is well documented. Senator BOB COLLINS—I heard it as well. Senator HEFFERNAN—Associated with the euthanasia program and your role in the whole process, you mentioned that you have had travel opportunities that you would not normally have had. You presented your first suicide machine—

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Senator BOB COLLINS—It was not the smartest interview that I have ever heard. Dr Nitschke—And it was done three months ago, if I recall. Senator BOB COLLINS—Really? Dr Nitschke—Yes. Senator HEFFERNAN—You have presented your suicide machine amidst great publicity to a Sydney museum. Dr Nitschke—I am sorry, I missed that bit. Senator HEFFERNAN—You presented your first suicide machine to the Powerhouse Museum, or to one of those museums in Sydney, and there was a lot of publicity associated with that. Do you accept public speaking engagements? Dr Nitschke—No, I do not. I have not accepted— Senator HEFFERNAN—Have you been to London or somewhere else speaking? Dr Nitschke—Yes. I went to London to do some television. I have never been paid for any public speaking. As far as the publicity associated with the museum, I find that a little upsetting. I made no statement about that, but it did attract attention. Senator HEFFERNAN—But, as you said in your ABC interview, you are enjoying the publicity? Dr Nitschke—I was saying in the ABC interview I was enjoying the publicity. I suppose I am saying that there was nothing about the particular focus of attention on this issue that I found distressing. That would be a better way of wording it. Senator HEFFERNAN—Thank you. I would just like to congratulate you as a person who is living testimony of what is going to happen to the medical ethic in Australia. That is all I have got. Dr Nitschke—That is very flattering. CHAIR—Thank you, Senator Heffernan. There being no further questions, thank you Dr Nitschke for coming before the committee and assisting it with your evidence. Dr Nitschke—Thank you. CHAIR—Order! It is not the custom of Senate committees to have applause, I remind the audience. Thank you. It is not a precedent we wish to set either. [2.49 p.m.] BRENNAN, Reverend Father Timothy John, President, Northern Territory Council of Churches, c/- Box 476, Darwin, Northern Territory 0801 GONDARRA, Reverend Doctor Djiniyini, Executive Officer, Northern Regional Council of the Uniting Aboriginal and Islander Christian Congress, Uniting Church in Australia, GPO Box 717, Darwin, Northern Territory 0801 McMILLAN, Mr Stuart John, Community Worker, Northern Regional Council of the Uniting Aboriginal and Islander Christian Congress, Uniting Church in Australia, GPO Box 717, Darwin, Northern Territory 0801 UIBO, Mrs Didamain, Anglican Church Representative, Northern Territory Council of Churches, c/- PO Box 6, Nightcliff, Northern Territory 0814 CHAIR—I welcome the representatives of the Northern Territory Council of Churches. Thank you for coming here this afternoon. We have a submission from you. I have been given

LEGAL AND CONSTITUTIONAL L&C 88 SENATE—Legislation Friday, 24 January 1997 a supplementary note, dated 24 January. Do you wish to tender that note to the committee? It will be accepted as evidence. I now invite you to make an opening statement. Father Brennan, would you like to start? Father Brennan—As a member of one of the churches in the Northern Territory, one of the distressing things for me in the whole unfolding of the euthanasia debate over the last few years has been an attempt to represent the churches as purely ideologically driven and to suggest that the place of compassion is something that is quite removed from the position adopted by churches in relation to euthanasia. I would remind senators that, if one goes to the hospitals, the cemeteries or the hospices for the dying around Australia today, very much in evidence will be members of the various Christian churches. In that capacity we constantly face the grief and the questions of people who are dying, their anger and sense of helplessness, and the sense of helplessness of those around the dying person. Members of the various Christian churches are very aware of the suffering that is very much part of dying on many occasions—both the suffering in the bed and the suffering of the family around the bed. So I wish to begin by saying that to suggest there is no compassion is something that we find particularly offensive and that flies in the face of any reasonable observation in any town or city of Australia. I would not be proposing that we try to range through the views of the Christian churches on euthanasia. I am sure that every senator has been deluged with the views of the Christian churches on euthanasia and does not need to have them aired again today. I would like to suggest that we use this opportunity to focus the discussion on the Northern Territory where 25 per cent of the population is Aboriginal and probably a similar percentage of church population, scattered in all corners of the Northern Territory, are also members of Christian churches. I would hope that, as the Senate addresses these issues, they would realise it is not a question of what people think of euthanasia in theory; it is a question of the implications of euthanasia in the Northern Territory and the unique population that is part of the Northern Territory—and I refer to the Aboriginal population. So it seemed that, rather than come here with a line of bishops to sit with the Senate inquiry, it was better to try to involve some members of the Christian churches in the Northern Territory who are Aboriginal and who would be happy to field questions and perhaps lay to rest some of the accusations early in the day that the Christian churches have gone around and misrepresented euthanasia legislation around the Territory. I would also like to say that, while there have been accusations of scaremongering by the Christian churches, today is the first day that anyone has ever named any specific communities in the Northern Territory. I would just draw to the senators’ attention that all the communities specifically named today were communities where the Catholic Church is present; and I take offence at that. It is interesting that, with that constant accusation, no-one has ever suggested a person, time or place when that misrepresentation and scaremongering has occurred. Whether it is in the Northern Territory parliament or here today, no person or specific incident has ever been able to be placed on record. The other thing I would like to say is that the Northern Territory churches, at the level of communities, have often been engaged very much in the debate about euthanasia, where members of the Christian churches have been called upon perhaps to seek to clarify what the matter is all about. I propose to leave it there. CHAIR—Thank you. Would anyone else like to make an opening statement?

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Dr Gondarra—I am pleased to be able to speak with you today. I would like to briefly restate my concern as a Yolngu Aboriginal elder for what we term as ‘galka’. I have been given leadership as being a person who spoke on behalf of a people of one part of the territory and Arnhem Land. The Northern Territory act legislates what we define in customary law as a murder, as an action of sorcery which is illegal, with defined punishment at law. Why murder? Why killing? An act where one person’s life is taken by another, voluntarily or otherwise, other than as a legal sanction carried out in accordance with a court order, is murder. Why sorcery? The administering of a poison by injection is an action of galka, the term we use for sorcery or a sorcerer. The sorcerer can even place their victim under a spell so that they ask for or agree to take this action. That is why the ‘voluntary’ assertions in the act do not reassure us. The distinction between the practice our people follow and this form of euthanasia, which we define as sorcery and murder, is that in our practice there is no other person involved and there is no other substance involved. There is no other weapon, instrument, needle or machine involved in the person’s death. I thank you again for this opportunity and I welcome any questions. I would be happy to answer if any questions were directed to me. CHAIR—Any other opening statements? There being no other statements, can I ask what sort of consultation there was with the Aboriginal community in the Northern Territory in relation to the Rights of the Terminally Ill Act. Can you tell me, Reverend Gondarra? Dr Gondarra—To my knowledge, the reason I was able to come in to stand and talk against this particular legislation was that there was no consultation. People in many of the remote communities were ignorant because there was not much consultation, and they did not know what was going on in this parliament. I was able to enter first when the draft legislation came before the Northern Territory parliament. I have written a letter to all ministers asking them to please think about people in remote communities: they are ignorant and do not know what is happening. Only a few ministers have written back to me and said that they were prepared to do something about this. There has been no indication from the others that they will be able to go and consult people about this legislation. There has not been much consultation with Aboriginal people who have English as their second language; for them, this legislation was drafted in a foreign language. ACTING CHAIR (Senator McKIERNAN)—On this committee, I am getting used to talking to various Father Brennans about matters to do with Aboriginals. I notice the forename is different on this occasion. Part of the confusion surrounding the bill that this committee is charged with inquiring into and the issue of voluntary euthanasia generally is who the supporters and opponents of the various legislation are. From time to time, it is put to us that a very large percentage of the Australian community supports having euthanasia type legislation on the statute books. Some of the representations made to me as a member of parliament come from people who say they are part of church organisations, yet it could be said that the churches are amongst the leading bodies opposing the current legislation within the Northern Territory. I put my question to you, Father Brennan, in the first instance, and then to your fellow witnesses, if they want to supplement your response: where does your opposition come from? Does it come from the church as an identity in itself—I am aware of statements that come

LEGAL AND CONSTITUTIONAL L&C 90 SENATE—Legislation Friday, 24 January 1997 from the top, as it were—or does it come from the grassroots, from the lay people within the church? Father BRENNAN—I am sure it is true that within the ranks of every church there will be a range of opinions. Some of the submissions that I have seen are from church members whom I know personally and who hold a different view to myself. I understand that politicians are charged not just with trying to weigh up what people say but with trying to choose what is right. I believe in that theory of representative government. Senators and members of parliament are charged with trying to find what is the best; it is not just a matter of what groups have to say. A recent example of this would be the amount of talk last year about multicultural Australia and racism. Large numbers of people may have supported the views of one or other politician, and yet the Parliament of Australia came out to make a principled stand on what it saw as right. I see that as being at work here. ACTING CHAIR—Do any of your fellow witnesses want to comment? Mr McMILLAN—I want to comment in relation to Djiniyini’s position, because he is speaking as an Aboriginal elder, as the National Chairperson of UAICC—the Uniting Aboriginal and Islander Christian Congress—and as the Executive Officer of the Northern and Regional Council of Congress, which takes in the Northern Territory, the Pitjantjatjara region of the centre of Australia and the Kimberley area of Western Australia. Whilst most of what he will say relates to the Yolngu people and the traditional legal perspective, he also represents Aboriginal and Islander Christians within the Northern Territory. There would be a group of approximately 5,000 Aboriginal and Islander Christians within the Northern Territory. That gives you some indication of numbers in terms of Christian Aboriginal people or people who profess to be Christian. ACTING CHAIR—Can I address a question to Reverend Gondarra. An earlier Aboriginal witness at today’s hearing in Darwin, an elder, described the RTI Act on the statute books in the Northern Territory as a nuisance. Would you agree with that description? If not, could you have an alternate description for the Rights of the Terminally Ill Act and how it impacts on you and your people? Dr Gondarra—I think the reason why some of the elders had to go with me to Canberra last time was that we believed this particular act was a nuisance because it is not consistent. I would use the word ‘inconsistent’. The reason why our people do not like this legislation is that it goes against our customary law. We believe that our customary law is consistent. It is a law that everyone passed. Now this act has been passed by the Northern Territory parliament, there ought to have been an accurate sort of consultation. The word that we would use in Arnhem Land that I would like Stuart to say in English is that it seems to us that the Aboriginal people have not had input into this particular act. That is why Harry was saying that this act does not seem to be consistent or accurate. What I am trying to say is that that is why our people disagree that this particular act that has passed in the Northern Territory parliament is consistent. It does not fit into our customary law. It seems to be seen as a form of sorcery, that you are doing something to somebody else. You cannot create a law within a parliament to take somebody else’s life. According to Aboriginal customary law, it is not allowed that you do that in a law in the parliament. The word that we use is ‘ngada’. I think this particular act really ignores other people’s opinions, and there is a law that is pre-existent in this country, and I am talking about customary law. In my opinion, legislation has to be consistent, meaning that it must follow the foundation law.

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I have studied and I have learnt about the Westminster system of law. You have foundation law that would have fit from the federal constitution into the Northern Territory that would have been consistent. It is not. Mr McMillan—I will try to explain some of that. Go back to what Senator Harradine asked of the Chief Minister this morning, whether this is good law or bad law. Djiniyini is saying it is bad law. It is bad law because it does not follow any source of law. He is saying from the customary legal perspective it is impossible to imagine a law of this kind being made that follows any of the foundational or sources of law. He used the term ‘wanalupten’, which is to assent to the law, to go through a ceremony involving the people— Dr Gondarra—That is why I was saying this is all territory, and whether they are an Aboriginal or non-Aboriginal it is the same law. That is the question. Mr McMillan—Aboriginal people that still live under customary law as well as living under the contemporary law of this country have never assented to any of the contemporary law of this country. They have assented to all of the customary law that they live under and they do that through a particular ceremony where the actual objects of law are placed on top of the water and the people go under the water to signify that they are responsible to the law, they are not above the law. This piece of legislation is not something that the people that Djiniyini represents have assented to and it does not follow any source of law that they can see within their customary system. They ask themselves where is the source of law. Djiniyini has investigated the Westminster system and looked back through our sources of law, back to Magna Carta and prior, and said, ‘Where is the source of law that gives a government the right to make this type of legislation?’ And he cannot see it. He cannot see that any of the parliaments can make a law of this kind, and certainly in a customary way it is just something that is unthinkable. So when we talk about fear, which has been mentioned several times, and no doubt some of the senators have got some questions about that matter, the fear is not an uninformed fear; it is a fear of a system of government that starts making laws that do not follow the track of law—to back translate what he is saying—that do not come out of the sources of law. When the Supreme Court case was held, the source of law was a critical question. It was not fully investigated. No doubt it will be investigated more if it goes before the High Court. That is essentially what Djiniyini is talking about when he talks about consistency. Dr Gondarra—Peace, order and good government is in section 51 of the federal constitution. Does this particular act that has been passed in the Northern Territory emphasise peace, order and good government which we talk about in customary law? ‘Magaya’. ACTING CHAIR—Thank you for the very comprehensive response. I am not too sure that I did get an answer to the question that I asked. I want to move on, though, because we have enormous time pressures upon us. We have been told about the nil consultation, the lack of consultation, the minimum consultation, leading to the passage of the bill in the first instance. The bill has been on the statute book for some time now. The question I want to ask now is where you, as an individual, you as an elder of an Aboriginal tribe, got your information from about the content and effect of the RTI Bill and where you got the information about the content of the bill that this committee is inquiring into—the Euthanasia Laws Bill, the Andrews Bill. Where is that information coming to you or to Aboriginal people from? Dr Gondarra—We are getting this particular information. My role is also as an educator. That role is to try to educate our people and we get information through the territory government about what is happening. Then we have to pass that information on to the people

LEGAL AND CONSTITUTIONAL L&C 92 SENATE—Legislation Friday, 24 January 1997 because that is our role. I play that role; it is a very important, key role as an educator. My staff go and talk to people and we pass on the information that we get. Mr McMillan—I can add to that. We assisted the government in designing the information pamphlets about the legislation that were being used in the education package. Senator McKIERNAN—After it was passed? Mr McMillan—At the bill stage. Senator McKIERNAN—I am not going to get into an argument with you, but it is important. If you were able to participate in the education process at the bill stage, is that not part of the consultation process? Mr McMillan—At that stage it was with our organisation rather than with the broader Aboriginal public, so we were helping design an education package. That package was released only, I think, two weeks prior to the legislation being enacted. Senator McKIERNAN—But to participate in the development of the package you must have been involved at an earlier stage. There must have been some earlier consultations. Mr McMillan—There certainly were, and we put a submission in to the Northern Territory committee, as well. Our fears and concerns were raised at that time. Senator ABETZ—Father Brennan, I have a brief comment to make as a non-Catholic. I would disassociate myself from the attacks on the Catholic community and the snide comments that have been made about the Catholic community. I think to a large extent that those making those comments are displaying the intolerance of which they accuse the Catholic Church. I want to make that comment and not let these snide comments throughout go unresponded to. Reverend Gondarra, did you hear the evidence presented by Mr Harry Wilson this morning? Dr Gondarra—Yes. Senator ABETZ—Do you remember the question I asked him about the suggestions that the Aboriginal community was being misled by troublemakers about the euthanasia legislation—that the Aboriginal community was not understanding of it, and that if we were to try to communicate it to the Aboriginal community it might take some years? I think Ms Hickey made that comment. Do you have any comment to make? Does your community understand the legislation? Dr Gondarra—Some of the people think that Aboriginal people are being misled. I do not believe that Aboriginal people are being misled. They have been educated; they have been told exactly what is being written and what the legislation is that has been passed in the territory. The fear is not that they do not want to go to hospital. They have freedom of choice. Aboriginal people know that they are being told that it is their choice—just the same as any other citizen. They know exactly. The fear is not to do with the poison, that it is going to be used and given to them; the fear is that this act, as I have said before, does not seem to fit into their customary law. They do not allow euthanasia to be practised. It is against our customary law. It seems that many people in Arnhem Land are frightened to go to hospital. I just came back from hospital in the last couple of weeks. I have been in bed, and I have been looked after by the sisters and nurses and doctors. There is no such fear. That is a pack of lies that people are telling about Aboriginal people all around. We are not living 50 years ago, running around the bush; we are living in a community. There is communication. We are going and telling them the true story, the truth about this particular legislation.

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Senator ABETZ—You are a community leader who has just been to hospital, and your community undoubtedly would have been aware of that. So some of those myths, by your presence in a hospital, would have been dispelled. Nevertheless, you are of the view that your community is fully aware of the legislation and what it means without all the alleged myths associated with it, and your people oppose it. Dr Gondarra—What people in the community, the senior elders of the community, are saying is that this non-Aboriginal system of law they are creating is not an anarchist sort of law but a law that is going to serve the community—not kill other people. That is a real concern in our community. In the parliament we are creating a law to emphasise peace, order and good government—not killing people. That is the real concern that Aboriginal people have. Senator TAMBLING—I have a number of questions that will be general, and I have some specific ones for Dr Gondarra. I notice on your sheet today you have listed seven member churches—the Anglican Church, the Churches of Christ, the Greek Orthodox Church, the Lutheran Church, the Catholic Church, the Salvation Army and the Uniting Church. I declare my interest: I am a lay preacher within the Uniting Church. Have all the parishes, territory synods or church governing bodies of those member churches carried formal motions of support for your actions and your submissions here today? What polling and plebiscites have been conducted within your church congregations or church membership? Can I say I am not aware of any in my own. Father Brennan—The Northern Territory Council of Churches is established on the foundation that it is free to make public statements only when it has the approval of the leadership of the various churches, and the matter has been discussed at Northern Territory Council of Churches meetings intermittently for a period of about two years. If I were asked to demonstrate the processes of every individual church, I would not be able to do it. I also need to point out that I think there are different ways of being church in different churches— different ecclesiologies. So the methods that you would be suggesting, for example, would not be the methods of the Catholic Church while they may be of the Uniting Church. Senator TAMBLING—Would you be able to take on notice, to try to establish from those seven churches in the territory, their basis of support—whether it is leadership only or whether it does reflect the lay membership of the particular churches? I am sure Dr Gondarra is aware of some media in the last few days of division to this committee within the Uniting Church. We have received submissions interstate which hold a different perspective from that which he has filed. So that will have to be addressed obviously in our southern hearings when we meet with southern leadership within the Uniting Church. I am keen to establish, because I am certainly aware from the polling that has been conducted within the Northern Territory, that there are possibly a majority and percentage of Christian territorians who were polled who support the legislation. I am keen to know, in your reflection here, the basis on which you are speaking. I have no problem in finding out that it is leadership, but I would like to know that that is the reflection. Mr McMillan—Senator, I will take the question on notice, but I can clarify the Uniting Church’s position: there was a motion that was passed by consensus, but without complete agreement, at the Uniting Church’s synod meeting in September of last year, supporting Reverend Gondarra’s action and the Kevin Andrews bill. Senator TAMBLING—That was a synod meeting? That was not at the parish level, it was all congregational? Mr McMillan—That was at synod level.

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Dr Gondarra—It was synod: all the parishes have a representative at the synod. Senator TAMBLING—Has the Northern Territory Council of Churches conducted any consultancies on this matter? As a result of those consultancies, have you developed any strategies or campaigns either with regard to presentations to this committee or against the Northern Territory legislation? Father Brennan—There has not been a lot done at the level of the Northern Territory Council of Churches itself, but member churches have been encouraged to see what they can do to alert and encourage their members to participate. But there have been no consultancies by the Northern Territory Council of Churches, nor any coordinated efforts at that level. Senator TAMBLING—From perusing the first 300 submissions from the Northern Territory, I am aware that there are possibly hundreds from communities—largely Aboriginal communities—around the Northern Territory that reflect very common themes. The language styles are very different. Many of the typesets are identical. Are you aware of any church staff or members of church organisations having been involved in any of those? I am not denying their validity, but there is a very strong similarity in many of those submissions. Father Brennan—Senator, it does not surprise me that there would be common typefaces, given the limited resources of Aboriginal communities. As to the views of Aboriginal people, I can only encourage the committee to go and sit in those communities, hear it for themselves and lay the questions to rest. Senator TAMBLING—Father Brennan, this is a bit more of a theological question, which I think Senator McKiernan reflected on earlier. We live in a multicultural, largely secular society today, rather than in a church state where the church puts pressure on, and has a relationship with, the political system. In a lot of the submissions at the open forum last night, the people arguing against the euthanasia legislation in the territory were pushing a very strong theological line. Why would you argue that their views should be reflected, rather than the views we pick up in the community polls? Those views have a more general application to, and show support for, the legislation—as opposed to picking up stray Christian values in the legislation. Father Brennan—Senator, it is a democracy, and people are entitled to participate in the process. It is as simple as that. Senator TAMBLING—Thank you. Dr Gondarra, I refer to your personal submission— which I have read—headed ‘Yolnu law and euthanasia’. For whom, and with what authority, did you make that submission? Your accompanying letter was on the letterhead of the Northern Regional Council of the Uniting Aboriginal and Islander Christian Congress—incorporating Aboriginal resource and development services. Did you make the submission on behalf of that organisation or on behalf of yourself? What I am keen to establish is what geographic area you are speaking for when you reflect those Aboriginal views and opinion that are Yolnu? Dr Gondarra—I think I represent all the Yolnu Aboriginal people. My jurisdiction has been given to me as a leader as to the role I play as an executive officer and as national chairperson for the Uniting Aboriginal and Christian Congress. I am also an ndalkara, an elder of the tribe, which is a right which was given to me; not only given to me, but I was born into this— following my father and grandfather—and nobody can take that away from me. I speak with respect and honour which is bestowed upon me by my people. Senator TAMBLING—Is that just related to Galiwinku or is it north-east Arnhem Land, or is it the whole of northern Australia?

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Dr Gondarra—North-east Arnhem Land. As well, I have the role of executive officer, as I have indicated earlier in my speech—or as Stuart said—which covers also the Binjarri people in Central Australia, the Pitjantjatjara people, as well as in Western Australia. I have visited the Pitjantjatjara people and I heard the same sorts of concerns. Senator TAMBLING—So when you referred to the ancient law and madayin in your submission— Dr Gondarra—The foundation law is common for all Aboriginal people. Senator TAMBLING—So you believe your submission would stand and be fully accepted by the Aboriginal people of northern Arnhem Land and Central Australia. Dr Gondarra—We have talked about this particular law—customary law—and there were a lot of similarities as we talked. In the first article that I wrote, I compared that with the people at Port Keats. When they looked at it, they said, ‘Yes, this is similar.’ We had a conference in Tasmania, with the Uniting Aboriginal and Christian Congress, and we had some people from Wik, Aurukun and Mornington Island. I compared my paper dealing with customary law, and they said, ‘This is similar to ours.’ So there is a foundation rule that is similar that I believe Aboriginal people do have. Senator TAMBLING—You claim it as a similarity but not necessarily speaking for each. Dr Gondarra—I was not speaking for all the others, but I guess I was speaking particularly for people in Arnhem Land and was referring to some of those people who think that this particular act that was passed in the Northern Territory parliament does contradict, or seems to be not consistent with, Aboriginal foundation law, which is a common law, I believe, in this land. Senator TAMBLING—I notice when the Northern Territory conducted its own committee inquiry, which it reported back in May 1995, it conducted a series of hearings around the Northern Territory. These were all in 1995: 14 March in Darwin, 20 March in Alice Springs, 29 March in Darwin, 3 April in Hermannsburg, 3 April in Alice Springs, 4 April in Tennant Creek, 5 April in Katherine, 6 April in Yirrkala, 6 April in Nhulunbuy, 7 April in Milingimbi, 7 April in Nguiu, and 10 April in Darwin. A number of both church and Aboriginal organisations were obviously reflected at that time. Do you believe that the points and issues that you are now raising were addressed to that Northern Territory inquiry in those series of very wide consultations? Dr Gondarra—This committee was to do with this particular act? Senator TAMBLING—Yes. This was to do with Marshall Perron’s act in the Northern Territory prior to that legislation passing there. Dr Gondarra—So what is your question? Senator TAMBLING—Given the number of Aboriginal people and church people who made submissions in all of those inquiries, do you believe that they put forward and argued similar things to what you are now arguing here before us? Dr Gondarra—Yes, I think so. Senator TAMBLING—Thank you. I just want to ask a couple of questions with regard to your personal submission. In the second paragraph, you say: We believe the Northern Territory Legislative Assembly is a subordinate law-making body to our pre- existing Madayin and the Traditional Narra/Parliaments of Arnhem Land, therefore, the Northern Territory

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Legislative Assembly has no authority to make law that is contrary to, and which conflicts with, our ancient Law/Madayin. Does that statement enjoy the full support of those other Aboriginal groups you are mentioning elsewhere in northern Australia or Central Australia? Why do you believe it is superior, using your words, to both the federal and Northern Territory parliaments? Dr Gondarra—Senator, you should go and listen to the people in Arnhem Land, particularly the senior people. I am not making this statement for myself. This has occurred after consultation and sitting down with the old people—people who have a knowledge of madayin—the constitutional law. The reason I have put forward that statement is that that is the understanding of the people. It is to do with how much power the federal constitution allows the Northern Territory to be able to make law in a self-government act. At the moment it is a territory and territories have limited powers to be able to make law. If laws affect all the citizens of Australia, the federal constitution and the federal parliament should control that. That is the sort of understanding that we have. Aboriginal free existence, narra, parliament, is in three different levels. One we call Makarr garma. Mr McMillan—Which is more like local government. Dr Gondarra—Then we have a dhuni. Mr McMillan—Which is more like a territory. Dr Gondarra—Then we have a narra. Mr McMillan—Which is more like the Commonwealth parliament. Dr Gondarra—How much will the narra allow dhuni? How much power does the Northern Territory need to operate? That is the question that has been put. When I am speaking there, I am talking from that perspective—what is in our customary law in those three levels of narra. Senator TAMBLING—I understand, appreciate and support customary law and I appreciate that in the new draft Northern Territory constitution many of those issues are also being addressed for the future. You seem to be arguing in your submission that that law that does exist—the customary law within Arnhem Land—has superiority over the Northern Territory law and the federal law. I am really asking you: why has that been accepted? Has it been accepted by the courts at this particular point at both the supreme and High Court level? Mr McMillan—The paper does not say anything about the federal parliament. It mentions the Northern Territory Legislative Assembly and alludes to those arguments of the powers of a legislative assembly versus the powers of a parliament. It says that the powers of the Legislative Assembly are subordinate to the powers of the parliament, the traditional parliaments. It is certainly not a question of sovereignty, as one of the other senators interjected. Sovereignty is clearly lost. As I understand it, the international principle of law is that, whilst sovereignty may go, the law of the indigenous people of the country remains. I think that was the judgment in the High Court in the Mabo case. That was the recognition of the indigenous people of this country’s law. I do not think that is at question. Senator TAMBLING—There are a number of other very important Northern Territory laws that I do not understand Aboriginal people are seeking to change. I think they relate to prostitution, cremation, organ transplants and autopsies for Aboriginal people. How do you see them as being different to this law which relates to euthanasia? Dr Gondarra—This particular act is to do with killing. When people saw this and heard that this particular act had already passed the Northern Territory parliament, they started to jump around and talk about it, saying that it should not be. I think it is to do with their

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 97 ignorance—consultation again. People are starting to learn about a lot of what is happening in the Northern Territory parliament. They are citizens and they should be told what is going on. You mentioned all those other acts that have been passed in the Northern Territory before. Well, Aboriginal people live in communities and they do not know what is happening. Some of those laws have been passed in the belief that all citizens of the territory all know about it; that they have been consulted. So I think that it is to do with ignorance. Senator TAMBLING—Thank you. This morning, in the way our pack of papers came together, your submission came in under the banner of the Coalition Against Euthanasia and Dr Wake and his colleagues were here this morning; this afternoon you have switched camp and you have come in with the Council of Churches. Dr Gondarra—Senator, it is to do with a matter of time. Senator TAMBLING—No, I am just seeking to establish: does your paper really stand with the Coalition Against Euthanasia group of papers that we received, or does it enjoy the endorsement of the Northern Territory Council of Churches? Dr Gondarra—Maybe it is to do with the endorsement of the Northern Territory Council of Churches. Senator Collins—I think they are, to use a legal expression, ad idem on this matter. Senator TAMBLING—It goes to the crux of the question I was asking earlier about whether the churches and Christians of the community have accepted and endorsed the particular submission. Dr Gondarra—My position is that I am a Christian minister. Senator TAMBLING—And I am a Christian lay preacher and you are saying, ‘the same church as you’? Dr Gondarra—Whether I stand with the Northern Territory Council of Churches or whether I stand with the— CHAIR—I think I can clarify the position. It was the secretariat which put Reverend Gondarra’s submission in with the others. That was for convenience and it was a decision by the secretariat. It had nothing to do with Reverend Gondarra. Senator TAMBLING—Thank you. Senator McGAURAN—I will ask but one question to Father Tim Brennan. As you know, the nub of the argument for proponents of the legislation is somewhat attractive in that it is so simple—individual rights: who are they hurting but themselves, if they so choose? Picking up from Senator Tambling’s point about the surveys, that may have seduced many of the 70 per cent of Christians, or the Christians that make up the 70 per cent that seemingly support euthanasia in the polls. I would ask you, as a representative of the Catholic Church, what is the theological nub of your argument, putting aside the slippery slope argument which is not necessarily theological at all? Father Brennan—I think it grows out of the same conviction, in different terms, as the one that Djiniyini was talking about a moment ago. That is a sense that there are certain values, certain things that are given, so we would talk about the sanctity of life and we would talk about a fundamental law. I think there is a shared sense that there are some things that are held to be sacred, so that euthanasia is seen as a denial of that principle of the sacredness of life—that life is given and that I am not at liberty to choose to dispose of it.

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In secular terms, I suppose a lot of the argument today has been about individual rights, a sort of very strong emphasis on the individual. I would think that, in all of the Christian churches, they would not stand with that sort of philosophy but rather more with a communitarian one that would say—if I might quote the words of the present Minister for Health in the Northern Territory and the Attorney-General who, in opposing euthanasia in the Northern Territory, quoted John Donne—that no man is an island. Senator McGAURAN—Is that the theological argument though? I am after a succinct theological argument from you. Is that necessarily theological? For example, as I read, the Pope said recently in regard to the euthanasia debate: ‘It is a revolt against God.’ Can you explain that from your church’s point of view? Father Brennan—I would not attempt to rewrite the words of our Pope. Senator BOB COLLINS—That would be the end of a promising career. Senator McGAURAN—We have the Christian church—lay down your theological argument for the record. We can talk about compassion, we can talk about slippery slopes—none of them are necessarily theological. Father Brennan—The fundamental Christian argument is to say that life is a gift of God— that it is a gift of God, it is not mine. So I have a sense that my life is a gift of God, that it is in the hands of God—a benevolent God. I appreciate that other people do not share that and that they do not have those sureties. Senator BOB COLLINS—Father Brennan, this committee received this representation from the Northern Territory Council of Churches by way of a letter from you raising a number of concerns of the Council of Churches, signed by Tim Brennan. Did you write this letter yourself? It is moment of truth time—fess up. Senator TAMBLING—I hope everyone is objecting. Senator HARRADINE—I have raised this matter. In all of my time on Senate committees I have not heard that question raised before today. It was raised once and it is now raised again. I would have thought that the response that was evoked by the first raising of the matter should be the same now. Senator BOB COLLINS—I will ask you for your ruling, Mr Chairman. After all, the person I am asking is white this time, rather than black. CHAIR—Well— Senator BOB COLLINS—I will ask my second question and press on. CHAIR—I think the question has already been answered, hasn’t it? Senator BOB COLLINS—No. No. Father Brennan—I am happy to answer it. Senator BOB COLLINS—I think if the witness wants to answer— CHAIR—I thought Father Brennan had signed the letter. Senator BOB COLLINS—Yes, indeed. Did you actually write it? Senator TAMBLING—Mr Chairman, the other witness this morning was not allowed to answer. Senator BOB COLLINS—Exactly. Father Brennan—I have not answered it yet.

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Senator BOB COLLINS—My second question is this— CHAIR—There was an answer given. Senator ABETZ—Did you type this? Senator BOB COLLINS—Well, consistent with that, did you— Father Brennan—If the Chair rules it, I will answer it. I can tell you that I typed it up on my Mac computer and I sent it by fax. The signature is actually off my computer, but it is my signature originally. CHAIR—Thank you. Senator BOB COLLINS—My last question is this: Father Brennan, is it a fact, in this day of word processors and laser printers rather than Remingtons, that the font on this letter is similar to that on another 2,700 letters I have seen recently? Should the committee consider that that fact undermines either the standing or the authorship of this letter in your view? CHAIR—Are you able to answer that? Father Brennan—I am just waiting for the serious question. No, I don’t. I think it needs to be treated as being put forward in good faith and that people’s credentials are believed to be what comes forward. I accept that there is need for clarification. By all means, go into it. Senator BOB COLLINS—Mr Chair, I want to conclude with just a small point of clarification for the committee, in accordance with the clarification you sought before. I know that Mr Harry Wilson will confirm this. Senator McKiernan earlier asked some of my colleagues—quite reasonably—about the use of the word ‘nuisance’ by Harry Wilson when he used the word ‘nuisance’ to refer to this legislation. I just wanted to advise the committee that in the Daly River-Port Keats area, and particularly in cattle country, that word ‘nuisance’ and especially ‘bloody nuisance’—I can see Djiniyini nodding—has a much harder meaning and a much harder construct. It is a tougher word than the meaning that we place on it. CHAIR—I am obliged to you for that. Senator FERRIS—Dr Gondarra, my questions relate to issues of Aboriginal health. You will recall that, when I met you in Canberra, we talked quite a lot about your concern about the number of Aboriginal people who may not seek normal medical advice or may not go to clinics with their children because of apprehension about the ramifications of this piece of legislation. You talked quite a lot about that. Could you tell me whether you have changed your view at all on that? Is there any evidence about—and I think Mrs Uibo might have also said something—the number of women who might not want to take their children to clinics and that sort of thing? I ask that question because this morning we spoke a little about this with the Northern Territory government. We were subsequently given some information that showed, as they said, there was no evidence that there had been a change in the number of people going to hospitals. You both talked to us about visits to doctors and visits to clinics but they are not reflected in these numbers here. I would be interested if you could explain a little bit about that issue to me, please. Dr Gondarra—I think one of the things is that the numbers have not changed because we are starting to talk to the people. We have—particularly in eastern Arnhem Land—people who are talking to them, particularly the educators who are going and talking to women and explaining to them this situation in particular. Everyone has freedom. It is not going to affect individuals. Individuals have to be able to choose to be able to say yes to voluntary euthanasia

LEGAL AND CONSTITUTIONAL L&C 100 SENATE—Legislation Friday, 24 January 1997 or not. People are being encouraged to go to the hospital or take their children to the clinic. I have already indicated that the fear was not particularly that their life was going to be taken in the hospital. This is where the confusion is. The people are saying in the territory that some of us are going round and telling people this and so frightening people. We are not frightening people. We are telling them the truth about this legislation. But many of us still disagree about this particular legislation. That is, it is not consistent. People are being encouraged to go to the hospital. There is no problem with that. When the news first hit the whole territory, it was that legislation had been passed in the Northern Territory parliament to do with euthanasia and that people were going to be injected. But when the educators came forth, and started to talk with them, a lot of the things changed. But that has not changed the views of the Aboriginal people. They still disagree about this particular legislation that has been passed. Mr McMillan—Senator Ferris, I would like to add something to that. Just from my personal experience in three or four health patient interventions in the last couple of weeks, it is correct to say that more people are informed and that the education process is helping people not to have that same amount of fear, as Dr Gondarra has said. But the other way in which people are overcoming fear, and this is a bit taxing on the system, is that the number of people accompanying people to hospital—to make sure that nothing goes wrong—is certainly on the increase. The desire of people to sleep in the same room as their ill relative is certainly increasing. The number of people that need to be in the room when ultrasound scans and other such tests are being taken, just to ensure that things are okay, is also increasing. There is still a degree of concern among people who are not fully informed yet, and also among people who have lived for 200 years with promises being broken and want to make sure that promises are not going to be broken in terms of the safeguards of the act. Certainly, in the instances that I have been involved in, numbers of people have been wanting to sleep in the same rooms in hospitals and so forth just to assure themselves that this sort of thing is not going to happen. Senator FERRIS—Thank you very much. Given the importance of Aboriginal health in Australia, particularly in the territory, I am very interested to know about any increasing level of apprehension and that response has answered my question. Mrs Uibo, would you have anything to add to that? Mrs Uibo—As Stuart stated, I think that in the first place, before this legislation was made, they should have consulted Aboriginal people right across the remote communities. It just came from the parliament. The majority of Aboriginal people live in remote communities and therefore they are entitled to put their view of what they think. The other thing I would like to make a point about is that health workers in remote communities are the ones running some of the clinics with non-Aboriginal sisters or trained nurses. In the territory itself, a lot of consultation should go on. I heard someone say this morning that ‘it might take a year, it might take a couple of months’. Sure, you can wait for Aboriginal views to get across to the politicians instead of them making the decisions. I think it is very important to have the communication as well. Many young mothers are a bit wary of coming to Darwin or to Nhulunbuy or the main centres to have their baby. They would rather have their baby in the community where they would feel comfortable and they would know the people that would be dealing with them. In regard to the doctors that come into the community fortnightly or monthly, whatever the visitation that is made by the medical services, it should be done locally.

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The other big thing that is lacking in Darwin hospital is translation. An interpreting service should be used. I know that all other ethnic groups in the territory, as well as those interstate, have interpreting services. It would be a very good idea to use interpreting services. Many Aboriginal people from remote communities now live in Darwin in urban houses. They need to be looked at in a way that will make such people, coming to Darwin or to the big centres, feel comfortable. I might just add, in regard to the euthanasia issue, that I think it is very frightening to hear about it in the news and then have people say, ‘I won’t go into hospital; they might do something. I’m scared.’ They need someone there to help them along or to interpret or tell the patient—or whoever it is coming into hospital—and to make them aware. They want to be cured. They need to have some sort of medication. I feel that it is very important. I came here as a representative of the Anglican church and I know that, back in the fifties, thirties or forties, the churches were in service through missionaries before even welfare came in and then the patrol officers. Therefore, the people in remote communities know the churches and the people who were involved in setting up the missions or settlements right across the top of the Northern Territory—the remote communities. Senator HARRADINE—I have a couple of very brief questions following what the last speaker said. In your job you have a lot of dealings with young people. You are on the curriculum development project. The RTI is legalised assisted suicide legislation. What is that saying to young people? Are there many youth suicides in the Northern Territory? Are there many young people who commit suicide? Mrs Uibo—Not that I know of. I started doing health education from preschool up to year 10 or 12. That mainly involves health workers teaching how to deal with certain things. I will give you an example of what we did to give you an idea. We started off with the hearing problem. In all the Aboriginal community schools middle ear infections are a problem. We started off teaching them what they can do to look after their ears. Gradually it will build up. We do not teach about suicide. That is not part of what we teach the kids. There are certain things that they can know about and possibly when they get older they can use that. Senator HARRADINE—You may not have been here, but last night a teacher in one of the schools said that, of the 60 students with whom he had contact, most if not all of them— and they were in a young grade—supported the Northern Territory bill which legalises assisted suicide. What message do you think the Northern Territory legislation is giving to people about suicide? That is it okay to commit suicide? Mrs Uibo—No, I disagree with that information. First of all, there would have been teachers and parents involved making the decisions. The kids would have just heard about suicidal information; they all agree with that. I was not here last night, but in relation to what you mentioned I think it is not right to ask the kids about suicide, using drugs or whatever. They need to learn and understand from the beginning about what it is all about. I personally feel strongly about kids getting information or misinformation instead of knowing more details of it. It is up to the teachers. I attended a national drug education conference in the ACT about two years ago. A committee goes around to different high schools in Darwin talking about drug use in school to make the kids aware. Teachers and parents are on those committees. I was on one of those committees. There are other things going on apart from drugs, such as telling the kids how to be aware. Short adjournment CHAIR—I welcome the witnesses back to the table again. Senator Harradine was just about to put a question to the witnesses.

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Senator HARRADINE—I have forgotten what I was going to ask. Perhaps we ought to have more breaks. Mr McMillan—Djiniyini was going to complete the answer that Didamain Uibo started to give in relation to suicide, if that is acceptable. CHAIR—Certainly. If you would like to take that, Reverend Gondarra. Dr Gondarra—What I was saying, Mr Chairman, was particularly to do with the youth. I know that the youth in the Northern Territory—and I am talking from the Aboriginal perspective—support this legislation. But it is my understanding—and I guess there are several other people who might have observed this—that this particular act is really encouraging youth to say, ‘There is no such law. You can take your life; you can suicide; you can get drunk. Why worry about the law because a law has already been passed in the Northern Territory which is encouraging people to take their lives.’ The youth are looking for ways. My experience in Arnhem Land is that in the 1990s there have been a lot of Aboriginal people taking their lives, which is strange because it is against their customary law—it is against their customs. People are taking their own lives, young people, which would not have happened before. This sort of act, I believe, is encouraging young people to ask whether we live in a stage of anarchy and practise a law that is encouraging and tempting us to take our own lives. What are we really doing to the youth? Are we really encouraging them or are we saying to them, ‘You should not live in a stage of anarchy: live with the law. Don’t take drugs, don’t do all the sorts of things that are going to affect the communities.’ Or are we creating a law that is encouraging them and saying, ‘You’re allowed. The law now becomes a vehicle for you to take your life any time’? So I think the Aboriginal people are really concerned with this sort of approach. I would say that the reason why youth are supporting this particular law is that they want it to happen. They want to take their lives. When they are in a state of confusion, that is the vehicle for them. CHAIR—Mr McMillan, Reverend Gondarra, Father Brennan and Mrs Uibo, thank you very much for attending today and assisting the committee. [4.19 p.m.] CRACKNELL, Mrs Lynda Fay, President, Northern Territory Voluntary Euthanasia Society Inc., PO Box 2734, Darwin, Northern Territory CHAPMAN, Mr Andrew Lewis, Vice President, Northern Territory Voluntary Euthanasia Society Inc., PO Box 2734, Darwin, Northern Territory Mrs Cracknell—We are also speaking today to you as Australians and territorians when we say that the Euthanasia Laws Bill is unfair to territorians. We want to make a point that territorians are Australians, not some alien race who can be treated with contempt because we do not happen to live in an Australian state. Our population is less than 200,000 and we have only two senators. But most of us have relatives and close friends who live in the states— probably about one to two million people—and some would probably be constituents of senators here today. I remind you of this because I want to ask why my rights should be less than those of my brother, who lives in a state. Why should a law enacted by the parliamentarians I elect be subject to invalidation by the federal parliament when exactly the same law if enacted by a state would remain untouchable? You could give me the same answer as some members of the lower house: the federal parliament has the power under the constitution, so you will just have to wear it. Well, I say that is the answer of people whose arguments have no other

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 103 strength, the same as a boss discriminating badly against a worker and claiming that the boss’s position of power is the only reason needed. That would be inexcusable in today’s workplace and it is equally inexcusable in our parliaments. Not only is the Euthanasia Laws Bill discriminatory, but the processes by which it was passed in the lower house sit badly with many territorians. No attempt was made to disallow the RTI Act within the six-month period following assent by our Administrator—you have heard about that before—despite demands by the Northern Territory branch of the AMA that the Prime Minister do so. Instead, the then Prime Minister’s office advised our society that the law was valid and properly a matter for the Northern Territory. That letter of advice, sent to me from the Prime Minister’s office at the time, is on the record in your submissions. We also think that the RTI law is about as valid as a law can be. Not only was it passed after extensive public consultation, including the select committee inquiry which you have been hearing about, it has since withstood a repeal bill and a Supreme Court challenge. The people of the Northern Territory are understandably angry that the federal parliament chooses to intervene at this late stage. If the issue was so important, why was the debate sidelined to a secondary chamber? Why were the members expected to vote on such a crucial issue when they were not given an opportunity to hear all of the debate? No wonder the general public is cynical about the so-called conscience vote. I feel some sympathy for the new members who might have felt obliged to support the man—no less than the Prime Minister himself—on whose patronage their future depends. If that ascribes less than honourable motives to some members for voting the way they did, others go further and say that the sad and sordid Rodney Dent affair indicates more direct pressures may have been applied. We believe that the name of our lower house, the House of Representatives, is becoming a joke. Who were some of these federal members representing? Certainly not their constituents. Finally, we are concerned that the late amendments made to the Euthanasia Laws Bill may have introduced some problems for the future. If, as Andrews persistently claimed, his bill was not removing our right to pass natural death laws, then why specifically authorise us to do so? Wilson Tuckey put it well when he said in effect, ‘Why give back something that we are not even sure we have taken away?’ It is not often I agree with Wilson Tuckey. Even worse is the inclusion of the authority to remove sanctions on attempted suicide. That has nothing to do with euthanasia laws, unless you draw the rather sick but inevitable conclusion that the law is saying, ‘We’re not going to let you die with dignity but don’t worry, we’re removing the sanctions on attempted suicide so you can try to kill yourself with a gun instead. If you fail and end up a physical or mental cripple, don’t worry, the law won’t punish you, because that is how we believe the Andrews bill reads.’ Suicide is as far removed from euthanasia as abortion is, albeit both relate to death. Could a future court rule that the Andrews law is about unnatural death, not just euthanasia, and, by not giving specific authority to enact abortion laws, thereby make abortion illegal? I do not know. I expect that most senators here today are like me and would not even hazard a guess. If that is the case, why did our members of the lower House allow these amendments to go through without any legal opinion, let alone any worthwhile debate? Few of the written submissions received by the closing date could have included comments on these late amendments which relate to at least three of your terms of reference, I believe. I hope that the committee gives them some serious thought.

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The Aboriginal issue I believe we should leave up to Creed Lovegrove who will be speaking shortly. We will just say that we believe that the Aboriginal people have suffered at the hands of mischievous individuals who exploited Aboriginal cultural beliefs to generate an unreasoned fear. We remind you that the former Aboriginal member for Arnhem voted for the RTI act and, with the exception of Reverend Gondarra, we know of no other Aboriginal person who has spoken out through the media against the NT law. Despite the alleged fear of being euthanased without consent causing Aboriginal people to avoid hospitals, the chief health officer has reported no decrease in the number of Aboriginal people seeking medical treatment. Finally, I would like to have a word about some ethical issues as we see them. We believe they have some relevance to your committee. We would like to put the euthanasia laws into historical perspective and demonstrate that ethics and morals are not immutable. Augustine of Hippo is believed to have been the first Christian to condemn suicide. That was in around 400 AD. The church so oversold the glories of the afterlife that many Christians chose to end their lives immediately after baptism as a sure way to escape sin and get to heaven. To reverse this trend, which was decimating his flock, Augustine preached against the practice and instilled a fear of dying, resulting in the incorporation of suicide as a felony under English law. History also recounts that in Roman law a soldier who attempted suicide was found guilty and punished with death. I think that is a win-win situation, somehow! More recently, in reply to a question I asked about ethics, a US church minister wrote as follows: What’s ethical and/or legal varies from time to time and from location to location . . . In 1861, the US Presbyterian Church recorded in the minutes of its General Assembly that God thought slavery was OK: one hundred years later, we recorded that God had evidently changed his mind. The point we make is that society is constantly evolving. Many of the values previously held by society, such as acceptance of slavery and the lesser position of women, have changed and the law has changed accordingly. Maybe the church has a little trouble catching up on that last one, but we are getting there. The community has already demonstrated through innumerable polls its changing values about voluntary euthanasia. Senators may recall the words of Lord Mustell in the House of Lords, when he said: It is important, particularly in the area of criminal law which governs conduct , that society’s notions of what is the law and what is right should coincide. One role of the legislators is to detect any disparity between these notions and to take appropriate action to close the gap. We argue that the NT Rights of the Terminally Ill Act meets with society’s expectations and approval. If the Senate passes the Andrews bill, then there will be even more pressure by the community to introduce voluntary euthanasia legislation in the Australian states where it seems such legislation will be safe from federal interference. Please ask yourselves, senators, what you will really achieve by supporting enactment of the euthanasia laws bill. That is the end of the formal address. We thank you for listening. If it will help you in directing questions, Andy has personal experience with the death of his wife by metastatic cancer and has since written a book called There has to be a better way to die as a contribution to the VE debate. My motivation is a strong belief in our democratic system as well as a long-held support for the principle of voluntary euthanasia. Both of us have been

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 105 involved in supporting the NT Rights of the Terminally Ill Act since February 1995. Thank you. ACTING CHAIR (Senator McKiernan)—Thank you very much for your statement. Mr Chapman, do you have anything to say at this point? Mr Chapman—Not at this point, no. ACTING CHAIR—The chair before he left—he apologises; he is caught up in other business—informed me that he has no questions to ask. Being acutely aware of the time and recalling the last occasion when I sat in public hearings in Darwin until midnight, I am going to waive my right to ask questions not only of you but also of later witnesses. I would ask the rest of my colleagues on the committee to follow the leadership that is given by the chair and acting chair and contain their questions in the light of the enormous time pressures that are on the committee now. Senator ABETZ—Do you have any proof of this assertion that we now have heard a number of times today that there have been mischief-makers operating within the Aboriginal communities? Is there any proof that you can point to? Mrs Cracknell—Only by reputable hearsay, and that is why I would rather leave that issue to Creed Lovegrove, please. Senator ABETZ—All right. If the voluntary euthanasia society were to have drafted the Rights of the Terminally Ill Act, how would you have drafted it in relation to the question of where you draw the line? Mrs Cracknell—It is not a question we have turned our minds to. Society exists to support the law as it was passed by the parliament, so it is not a question that we have addressed as a society. I have no reason as an individual to feel uncomfortable with the line being drawn where it is at the moment. Senator ABETZ—What about Mr Chapman? Mr Chapman—I support the principle of choice. I have no real argument with the present restriction, although I do recognise that, in the case of someone like my late wife, it does discriminate against incompetent people. Senator ABETZ—Would you like to see the law being available for people, simply for altruistic reasons, who might want to terminate their life? Mr Chapman—Yes. I see no reason why it should not be available for such people. Senator ABETZ—So you see the current legislation just as, if you like, the first step in the right direction of where you would want to see the legislation develop? Mr Chapman—Yes. Senator TAMBLING—What polling are you aware of that has been taken in the Northern Territory? Did you as an association conduct any of it? What results have you been aware of as a result of it? Mrs Cracknell—I would have to take the question on notice. The polling figures were quite some time ago. We were mainly interested in community opinion in the territory back, as you would remember, in that February to May period in 1995. They are not figures I could give off the top of my head. Certainly, the territory polls were limited, so to some extent at that stage we had to rely on national polls and assume some commonality of view, but there have been others done. I am quite happy to look at my records and tell your committee afterwards what I find.

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Senator TAMBLING—How many members are there in your association? What is the level of activity and discussion that you have conducted to ensure that you are representative of the community? Mrs Cracknell—Back in the critical stages of what we refer to loosely as ‘the campaign’— that February to May time frame in particular in 1995—we formed as a spontaneous community group to support Marshall Perron’s bill. It was something spontaneous within the community; it was not driven by Marshall Perron or any other group. A bunch of people who shared a view got together. At that stage, for the sake of having a handle, we were known as Operation TIAP—Terminally Ill Act Petition—because that it what we intended to do. The central group as it stood then was perhaps a little different in composition from the organisation as it exists now. In September 1995 it formed into the Northern Territory Voluntary Euthanasia Society Inc. and adopted objectives of supporting the legislation and working with the government to ensure its successful implementation and operation. In fact, we have an objective to promote improvements in palliative care, which may be of interest to you. So the objectives of the association as time went on were somewhat different. To answer your specific question about membership, I believe the membership is somewhere around 130 at the moment, though some of those members are not in the territory. Some of those members are in fact interstate. We have recently had some overseas people approach us to apply for membership. Senator TAMBLING—Would you like to give a guesstimate of how many are territory residents? Mrs Cracknell—I would say 85 per cent. CHAIR—There being no further questions, thank you Mrs Cracknell and Mr Chapman for coming today and assisting the committee in this inquiry. [4.40 p.m.] BEAUMONT, Dr Vicki, Member, Australian Medical Association, Northern Territory Branch, PO Box 41046, Casuarina, Northern Territory 0811 BOWDEN, Dr Francis Joseph, Member, Australian Medical Association, Northern Territory Branch, Darwin Private Hospital, Tiwi, Northern Territory 0810 CAHILL, Ms Robyn Patricia, Executive Officer, Australian Medical Association, Northern Territory Branch, PO Box 41046, Casuarina, Northern Territory 0811 HOWARD, Dr Diane Maree, Member, Australian Medical Association, Northern Territory Branch, PO Box 41046, Casuarina, Northern Territory 0811 KILBURN, Dr Charles Joseph John, Vice President, Australian Medical Association, Northern Territory Branch, PO Box 41046, Casuarina, Northern Territory 0811 SELVA-NAYAGAM, Dr Sudarshan Jayaprakash, Member, Australian Medical Association, Northern Territory Branch, Tiwi, Northern Territory 0810 WEERAMANTHRI, Dr Tarun Stephen, Member, Australian Medical Association, Northern Territory Branch, Tiwi, Northern Territory 0810 CHAIR—I welcome representatives of the Northern Territory branch of the Australian Medical Association. Thank you for coming this afternoon. I have been given a supplementary submission. We already have your previous submission, and I believe you wish to tender the supplementary submission to the committee. Resolved:

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That the committee receives as evidence the supplementary submission from the Northern Territory branch of the Australian Medical Association. I now invite you to make an opening statement. Dr Kilburn—I would firstly like to take the opportunity of thanking the Senate committee for the opportunity to address you. I will briefly introduce the other members of our delegation. My name is Charles Kilburn and I am currently Vice President of the Darwin branch of the Australian Medical Association. The other members of this delegation are not hard-core activist members of the AMA involved in the running of the branch or the setting of any agendas. Rather, they are all local practising physicians, both specialists and general practitioners intimately involved in the day-to-day care of patients affected directly and indirectly by this legislation. The combined professional experience of this group totals more than 60 years of patient care in the territory alone. We have not been coerced to join this delegation but have come together because of our opposition to the Rights of the Terminally Ill Act. The other members of this delegation are Dr Tarun Weeramanthri, a specialist community physician; Dr Diane Howard, one of the longest serving specialist physicians in the territory; Dr Vicki Beaumont, a general practitioner who has practised in the territory for 13 years; Dr Selva-Nayagam, a specialist physician with a special interest in blood disorders and cancer; and Dr Bowden, a specialist physician in HIV and AIDS. We submit to you that the Rights of the Terminally Ill Act does not address those rights of the terminally ill which we believe to be important. Rather, it concerns assisted suicide. It does not even concern euthanasia in the most popularly understood sense. For instance, it does not enable the withdrawal of futile treatment which needlessly prolongs life and suffering in the last days of life, nor does it enable the prescription of pain killing medication which may shorten life. This legislation enables a lethal injection to be given at a time far in advance—perhaps months or years in advance—of the estimated time of death. Our intention today is not to focus on the ethics of this issue but to give you our practical viewpoint as doctors working in the territory that the Rights of the Terminally Ill Act is a dangerous piece of legislation and deserves to be overturned because of its impact on Aboriginal health care, because of the lack of safeguards within the legislation, because of its impact on the doctors’ duty to care and because of the lack of local adequate palliative care services. We will develop these themes during discussion and hope to have time to refute some statements in earlier submissions. I would ask permission for Dr Bowden to make a brief statement in support of this submission. CHAIR—Certainly. Dr Bowden—I am a specialist physician who has been working in the field of HIV medicine for over 10 years. From both personal and professional experience, I have been closely involved with dying people in that time. I believe that the debate about end of life decisions is vitally important, but I have remained relatively quiet throughout this debate as I am the only HIV specialist in the Northern Territory and I have been concerned that my public opposition to euthanasia might compromise my relationship with patients who may believe that I am uncaring and determined to prolong life at all costs—something which is certainly far from the truth. I have been personally offended by much of the media comment from proponents of euthanasia. The respect that I give those with extensive clinical experience and those who hold considered ethical beliefs in support of euthanasia does not seem to be reciprocated. I may not always achieve my aspirations to be a competent and compassionate doctor, but to be

LEGAL AND CONSTITUTIONAL L&C 108 SENATE—Legislation Friday, 24 January 1997 portrayed in the media as uncaring and to be neglecting my duty of care saddens me. But it is for my colleagues that I am able to express anger, rather than sadness, at the nonsense that has been said about their professional behaviour. Senator McKIERNAN—I might intrude at this time. We have got a huge time problem. I note in the supplementary submission that the words Dr Bowden is espousing now are in print. We have accepted that submission. It would save time if you spoke in point form to it, and Dr Kilburn could speak in point form to the matters he wishes to raise. Our difficulty is that, at the end of the night, later sets of witnesses will not be getting the same fair treatment. The interchange of questions—I believe you would agree—would be of use. I suggest you deal with it in point form. Dr Bowden—It will take only two minutes. CHAIR—It will take only two minutes to finish? Dr Bowden—Yes. Those specialists who choose to work in the Northern Territory usually do so for specific reasons. The decision to move away from family and the so-called medical mainstream is carefully made. Doctors who work here are not, on average, from the conservative end of politics. As a generalisation, I would say that my colleagues demonstrate a commitment to their work which, for many of us, is primarily in the area of Aboriginal health. This borders on being vocational. Our portrayal as members of an industrial cartel, although ludicrous, is a cause of considerable hurt. I have no doubt that, if this legislation were operating in another state, the opposition of doctors such as me would be irrelevant. However, this law is being enacted here, where the overwhelming majority of medical practitioners and specialists are opposed to the law. We, as a medical community, are more interested in trying to redress gross disparities in health in the Northern Territory. For instance, Aboriginal people have a life expectancy 20 years less than their non-Aboriginal neighbours. It is a great irony that this Senate inquiry is not addressing that issue today. Two years ago, about the time that this debate began, my patients with HIV had access to only three HIV drugs. There was limited hope to be offered to a large number of my patients. Several of them would have qualified for euthanasia under the act. In that brief interval, we now have 10 anti-HIV drugs available. For the first time, we are seeing patients not just stabilise but actually improve. I do not know what their final outlook is, although some international authorities dare to mention a cure. This has consolidated my belief that medically assisted suicide—that is, the lethal injecting of patients at a time considerably removed from the likely time of their death—would have killed a number of my patients who are now living productive and fruitful lives. Because of what I am seeing now, I would not like to have been involved in the decision making for those patients had they opted for euthanasia. The definition of ‘terminal illness’ in the act is an illness which will in the normal course, without the application of extraordinary measures or of treatment unacceptable to the patient, result in the death of the patient. Many chronic illnesses fit that definition. There is no time specified as to how quickly the illness will lead to death. As a Northern Territorian, I feel manipulated by the whole process. The euthanasia debate is being run, in the main, by southern doctors—with the exception of Dr Nitschke—and by southern proponents of euthanasia, with a few obvious exceptions. Our Chief Minister and health minister are personally opposed to euthanasia but have been distracted by the states rights issue. Others from elsewhere are using the territory as a laboratory in which to conduct

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 109 a social experiment—an experiment that, if presented to our local medical ethics committee, would not be allowed to proceed. To be honest, I would not be a particularly active opponent of euthanasia if it were happening in Victoria or New South Wales, but I am becoming an active opponent of euthanasia in the Northern Territory. It is ridiculous for people who are dying to move from their homes down south to a difficult tropical climate and to be removed from their families and support. We, as a group, have a duty of care for people who need help, and this has not and will not be refused. But the number of people coming here will increase. I have already had inquiries from patients with HIV wanting to move here for euthanasia. We are not the best medically equipped service in the world. We have to send patients south for specialist care every day. We have fought hard to improve these medical services. I am dumbfounded that anyone would want as their legacy the establishment of a state in which death is our greatest medical achievement. This is still an experiment, and the Northern Territory is not the place to conduct it. CHAIR—Are there any other opening statements? Dr Kilburn—I think in the interests of time we will defer to questions. Senator ABETZ—Under the definition of ‘terminal illness’, what about diabetes? Dr Howard—You raise a very important point. This act is not restricted to people with recognised terminal illnesses who are facing imminent death. Under the terms of this act, people with diseases, such as heart disease, chronic lung disease, asthma and diabetes—all slowly progressive diseases—with complications that will lead to death would be eligible. No time interval is specified. It would be possible for a diabetic with perhaps 30, 40 or 50 years to live to apply for euthanasia under the terms of the act. Senator HEFFERNAN—We asked political people this morning about their view of a possible change in the medical ethic. The Chief Minister or the minister for health said that he did not think there would be one. Dr Nitschke is a living, walking example of a paradigm shift in the medical ethic. I would like to ask you, who I think should be eminently qualified to answer the question, and given that reply about diabetes, whether you think there will over time, if this is enacted around Australia, be a change in the medical ethic? Dr Howard—This is another important point. I doubt that there will be major changes in medical ethics. I think the community has to come to terms with the fact that there is a deeply ingrained objection in the medical community to this concept of killing. It is very much part of the reason they become doctors and is something that is reinforced by their training and subsequent work experience. We know, for example, of a recent survey in Western Australia of doctors across the nation. It is one of the few studies on euthanasia that has distinguished between the concepts usually covered by a natural death act versus bills such as the Northern Territory euthanasia bill. This study showed that almost 90 per cent of doctors across the board would not support killing in the sort of situation that the Northern Territory act permits; that is, assisted suicide. Indeed, over 95 per cent of specialists across the nation have that same feeling or objection. The community has to come to terms with the fact that this is the way doctors think. If the community thought a little harder about it, they would find that there might well be good reason for that. If you want to know whether a bridge or building is safe, you ask an engineer. If you want to know whether a car design is safe or a model should be released, you talk to

LEGAL AND CONSTITUTIONAL L&C 110 SENATE—Legislation Friday, 24 January 1997 people who know about road safety and automotive engineering. The medical profession in general are very good observers of human behaviour; we spend our days doing it all day. Those who are concerned about the risks of this act and the decision making that is going to be involved would be very wise to listen to the doctors. Senator TAMBLING—What is the numerical membership of the Northern Territory branch of the AMA? Ms Cahill—Our membership currently stands at 200. That represents a tripling of membership in the last two years. That is reflected fairly much in the debate that has gone on over the euthanasia issue. We have had a great interest in people becoming involved in what we do. To put that in context, that is out of a possible 360 to 370 doctors. So we have had quite a substantial growth in membership and representation. Senator TAMBLING—So you represent about half of the registered doctors in the Northern Territory? Ms Cahill—Just over half, yes. Dr Weeramanthri—We are here because, of course, we support the AMA position. However, other groupings of local doctors, such as Doctors Concerned about Euthanasia, formed independently of the AMA made submissions to the NT select committee. Members of that group, including me, have made a submission to your committee. Because of time constraints, you were not able to hear us separately, so we have pooled our resources. I wish to stress that point, because it is a mistake to think that the local AMA has in any way orchestrated opposition to the Rights of the Terminally Ill Act. Most local doctors seem opposed to the Rights of Terminally Ill Act, irrespective of whether they are or are not AMA members. We encompass the whole spectrum of religious and political beliefs. I want to lay to rest the misconception that in some way it is the AMA only that has been speaking out against the act in the Northern Territory. There has been a much wider opposition from doctors. Senator ABETZ—So there are some doctors who are not Catholic? Dr Weeramanthri—There are many doctors who are not Catholic. Senator TAMBLING—I appreciate that you are obviously reflecting a majority view in order to be here today and to make those statements. Is there dissent within your own organisation and debate amongst the AMA membership? Is there any grouping within your own forums? Ms Cahill—The last vote that was taken on that issue was an 80:1 vote in favour of the stance. They are group representations in favour of the stance that the AMA continues to have on the act of euthanasia. Senator TAMBLING—What is the AMA’s view concerning the need for the coroner to report to the Attorney-General whenever any concerns arise from activities under the Northern Territory act? Dr Kilburn—I might start on that issue. The act says that the coroner must report to the Attorney-General if there are any concerns. This report is done after the event. There is no process to review the paperwork or the enacting of the legislation before the event. This is an after the event situation, which we feel is very unsatisfactory. This does not constitute a full coronial inquiry. The coroner just has to look at the paperwork to assent that the paperwork has been correctly completed. That is the limit of his responsibilities under the act, as we understand it.

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Senator TAMBLING—Can I refer to your submission to the committee where on the second page you say: Further cause for concern is the emphasis that the pro-euthanasia lobbyists place on the voluntary aspects of the legislation. There is no way to check just how ‘voluntary’ agreement to partake on the act is. The act contains no meaningful safeguards to protect the rights of individual patients. How does that stack up against the flow charts that we have all been given that go through the various safeguards in the legislation? I think 22 or so checks and balances are required. Do you not think they are of sufficient merit or substance? Dr Kilburn—No, we do not. The checks and balances do not address this issue particularly well. For instance, a threatened or attempted suicide is most often a cry for help or of despair. The best therapeutic option for that is not necessarily to kill the patient. Just because a patient asks to be killed does not necessarily mean that that is the correct or the only therapeutic option for that patient. I do not believe that within this schema there is any requirement for impartial counselling of the patient about other options. They may be informed, but they do not have to undertake counselling. Dr Weeramanthri—Another point in that schema is, from memory, a box which says, ‘Has a palliative care specialist been involved?’ That has not necessarily been followed. In fact, it is very difficult to know whether that has been followed. You can imagine the difficulty a coroner would have in assessing those 20-odd points after the event. It is almost an impossible task. Just to clarify this for the public record, it seemed from one of the previous submissions that one of the senators at least thought that the requirements of the act were such that there would be a public coronial inquest after each death. For the record, that is not the case. The coroner merely has to make an inquiry. In 95 per cent of coronial cases generally, the coroner makes an inquiry and deems the public inquest unnecessary. Under the terms of the act, a death under the Rights of the Terminally Ill Act is deemed a natural death. Most of the deaths under the act have no public inquest. They would merely be reported to the government every year. Just to pick up the point about palliative care, we have some significant information to present on palliative care. Is that possible? CHAIR—Could you just hang on for a moment. Senator Tambling, what other line of questions did you wish to pursue? Senator TAMBLING—I only had one other, and I think it is the issue that is about to be raised. That was my last question. Is palliative care an appropriate response to the needs of the elderly and the dying in all situations, which probably feeds your question? Dr Selva-Nayagam—I am a specialist physician with an interest in the management of cancer. I see the bulk of the Northern Territory—Top End—cancer patients. There is a very dedicated group of nursing staff in the palliative care service who provide service to the best of their ability and excellence. The problem is that since September 1996 there has been no palliative care doctor in that service, let alone a palliative care specialist. I am quite disturbed by that in the sense that in any situation where you are giving people the option of ending their life to try to end suffering, you need to have the option of providing them with the utmost of care to ease that suffering as the primary goal. For that reason, I think you need to have world standard palliative care. I do not think that our palliative care services at this stage are adequate, let alone world standard. I really do not recognise the palliative care service that is described by a submission to you as being the actual practice in the community at the moment. There is excellent work going

LEGAL AND CONSTITUTIONAL L&C 112 SENATE—Legislation Friday, 24 January 1997 on but it is not enough really. There is no palliative care doctor at this stage. I really do not know how that flow sheet could then be fulfilled to that extent. I do not think the answer is to ring a palliative care specialist interstate. I think you need to have somebody here who can talk to the patients, counsel them and talk to their families. It needs time; it is not something that can be done in either 10 minutes or 15 minutes. It involves hours of work. I think that is really quite important. That service needs to be audited so that we are doing the right thing and providing the utmost of high standards. That would be my major point about the palliative care service. The other thing I would like to address is that I have been involved personally in caring for two of the patients who were assisted by the act. I looked after them in hospital for weeks and saw them on a daily basis while on call for them 24 hours a day. I was also personally offended by the assertion that specialists in the Northern Territory were refusing to see patients and not caring for them. I was very intimately involved in their care. I was not involved in their assisted suicide. That was for a conscience reason on my personal behalf and I made that clear to them. But I think it is patently false to say that the specialists in the Northern Territory were not involved and not caring for these patients. They will continue to be cared for. Senator FERRIS—I just have one question. Whichever of you is most involved with Aboriginal health could choose to answer it. There has been some evidence today that suggests an increasing level of apprehension among Aboriginal people in the more remote communities about going to hospital or going to clinics, having children born in hospital as distinct from out with the community because of this legislation. Can any of you substantiate those comments and could you provide us with any firm evidence of those suggestions? Dr Weeramanthri—We are not here to speak for Aboriginal people but we will speak as Northern Territory doctors who work day to day with many Aboriginal people in all kinds of settings. What we would like to get across is that it is really difficult work. It is difficult because we are trying to deliver high-class medical care, culturally appropriate medical care. We are trying to communicate well, earn people’s trust, and allay any fears or misconceptions that people might have about going to hospital or treatments or procedures. We do this on a day-to-day basis regardless of the act. We do not always succeed as individuals, and we do not always succeed as a health care system, and we all know that. The biggest example of this I can give you is that people present very late on with diseases that are incurable rather than presenting early on as you may be used to seeing down south. So once they come to us often there is nothing much we can do. The simplest example of that is cervical cancer which, as you would all know, is eminently preventable through pap smears. Aboriginal women present late with incurable disease and, as a result, their mortality from cervical cancer is 11½ times higher than non-Aboriginal women in the territory. We are not saying that we know the effect of this legislation on the health care system. We are saying if this legislation further endangers trust in the health care system, if it acts as a barrier to Aboriginal people accessing health care, as it well might—we do not have any evidence and we are not saying that it will—then that would compound a really disastrous situation which we live and work in every day. We are not willing to take that risk. Other people might be but we are not willing to take that risk. With reference to Djiniyini Gondarra’s comments that there is no specific fear of being killed in hospital, we accept that. I am sure there would be a variety of views and we do not seek to disagree, but what we are saying is you do not have to have a specific mistrust of that act to endanger trust in the system as a whole. If the system continues to bring in culturally alien

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 113 procedures and acts then the system as a whole is seen as culturally alien. You do not have to have a specific misconception about the act to be put off the system. So the act can, in a general sense, lead to problems in accessing health care. We do not have any evidence for that. We say it is a risk that we would prefer not to take. CHAIR—Thank you. Senator BOB COLLINS—I apologise in advance. I have been remarkably succinct today, which is very strange for me. This is an important group of people that are here in front of us in terms of this debate and I will try to be brief. I wanted to basically assess a view from all of them, but before I do that I want to put on the record something that has just been prompted by what we have just heard, and I do it with some misgivings. A great deal has been made today by a number of people, to my distress, about the crucial vote that was cast by the former member for Arnhem in this issue. He was my closest friend and he cast that vote utterly conscious of the fact that he was doing so against the wishes of most of his electorate. I spent the whole of the following day with him at Elcho Island. The reason for his position—and I understand it, which is why I understand people who support euthanasia—is that his wife died of cervical cancer and had a bad death at the age of 35. That was an entirely preventable situation which, with good health care for Aboriginal people in the Northern Territory had it been provided when it should have been, would not have happened. I thought that should go on the record. As an opponent of euthanasia, I do understand the position fully of people who support it. I can readily envisage situations in which I myself might be tempted to use it, even though I hope I would not. What concerns me about this act relates to something that Dr Bowden said this afternoon, and I just wanted to solicit a comment from you or anyone else that wants to, about something that really worries me about this act. I can see certain circumstances—and maybe even the ones that have happened to this point in time—where, as a member of this community and thinking that euthanasia diminishes this community as a whole, as I do, I would privately say, ‘Well, I can understand that.’ But what I fear about this act—and it has been confirmed, I am afraid, by what Dr Bowden and Dr Howard have said—is that this expression ‘terminal disease’ is so all-embracing. It can in fact take 20 years. We were all provided with a mass of material, and I do not know how many senators have looked at it. Among that material was information on the question of euthanasia from a medical media company that specialises in media for teaching hospitals and so on. They gave us a video of a debate that was in front of an expert medical audience. They then polled the audience and we got the results of the poll. This was not one of those useless, stupid newspaper polls with yes or no responses. This was a detailed poll to an audience, 75 per cent of whom could actually provide euthanasia if they believed they should and if they were requested to do so. One of the questions that was asked after a number of graded questions was this: ‘Would you have any difficulty, under certain circumstances, with killing a patient even when that patient had not given their consent?’ A small but significant number of that small audience of 200 said yes. I am not shocked by that and I understand their position. I can understand the circumstances, but that is a fact from an audience of 200 people.

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The situation is distorted in the territory, and that point has already been made. That is what worries me about this legislation. People are saying, ‘Let’s see this in New South Wales and Victoria.’ We have a peculiar situation here with a tiny group of specialists and so on. This is what I wanted to solicit some comment on. If this legislation, as it is currently, is enacted with these extraordinary provisions of terminal disease, with no time limits or anything else on it, I could conceive of a situation where, in a state like New South Wales or Victoria with a large number of doctors, many would have no difficulty—and I do not condemn them for it—with the concept of people being able to get assistance to kill themselves even if they had had a bad day basically. You know that to be true. As I say, I do not condemn them for it, but I disagree strongly with it. I am fearful of a situation with this act where the necessary so-called safeguards turn into nothing in real terms, and where people with conditions which are eminently treatable—even though they might be causing them distress and so on—are going to be ultimately killed because that is possible. We are talking about assisted suicide but, under this act, it is absolutely legal for the doctor to kill the patient. Deaths are going to occur, if I could use perhaps a less emotive expression, that in real terms should not have happened. Is that the view of anyone here at this table? The reason I am asking the question is that there has been great emphasis by the proponents of the act placed on the great difficulty of getting specialists to go along with it. Dr Howard—One of the things that has worried us from the outset is the vagueness of the definition of an acceptable illness. You are quite right: under the terms of the act, at least as we have been advised, patients with eminently treatable illnesses who decline to accept any treatment or for whom that treatment is not offered by their medical advisers can elect to undertake the pathway to euthanasia if they so wish. That to us is a very frightening situation, and it would indeed be a social tragedy. The denial of the treatment for these diseases that are eminently treatable may be the result of medical ignorance across the board, doctor or general practitioner ignorance, or the ignorance or attitude of the patient, and that would be a tragedy. Dr Kilburn—Essentially, what this act demands is that two doctors agree on the diagnosis and prognosis and that one doctor make an assessment of the patient’s mental state. It does not matter how many doctors disagree. It does not matter how many doctors might question the diagnosis or the prognosis. The proponents are able to shop around until they find the answer that they want and they then enable the act. There is no mechanism for appeal in this act if somebody disagrees not on the ethics of it but on a point of diagnosis or prognosis. Senator BOB COLLINS—Thank you for saying it far better than I did. That is my concern. Dr Bowden—The difficulty that people have in the territory is that they do not have a great choice of specialists, so they cannot do the doctor shopping. Senator BOB COLLINS—You mean in terms of numbers? Dr Bowden—In terms of numbers. As soon as it moves to a larger state or territory, there will be a lot of shopping going on. Senator BOB COLLINS—Exactly. Dr Bowden—I make no comment on the ethics of that, except to say that is going to be a reality. The point is—and I stress again to you—the importance of what the act already says. The act already allows that people who may live for five, 10, 15 or 20 years—and I use HIV here because this is what we are looking at—from the day of their diagnosis, may elect

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 115 euthanasia and would fulfil the criteria of the act. Again, I make no comment on that, except to give that information to you so you know that that is what we are talking about. As a doctor, one can have nothing but the greatest sympathy for the three people who have died so far under this act, and, believe me, I know that each person at this table has dealt with many, many numbers. It is also very important for people to realise that we are an experienced group of people. Some of the people involved in this debate are not as experienced and have not had as much time dealing with dying people over a long time. What we know, however, is that those three people were very deserving, and that the time they were part of the act was very close, in one case that I know, to his death. He would have died very soon. From the evidence of other people we know that people died very soon after not being able to take part in it. Therefore, the attention has been focused upon these cases. Imagine if the first case had been a 22-year-old HIV-positive man who became infected yesterday and whose life expectancy might be 20 years, or, possibly, if you believe what David Ho is talking about in the United States, that we may be on the brink of a cure. That person could be legally euthanised tomorrow, within the realms of the act. Senator BOB COLLINS—Provided you agree. Dr Bowden—Provided we agree. But I have no doubt, in a large pluralistic medical community, that those opinions would be found. Also, we are finding that, as it becomes a legal question and not an ethical question, people will push the extent of the law to its logical conclusions. So you will find that there will be very many people who will obtain legal opinion about, ‘Am I suitable for euthanasia?’ They will have a QC who says, ‘Yes, this person fits the rule. You have to do it,’ or ‘We’ve got the doctors to do it.’ So it is the slippery slope. We do not use that word. There is no need to use the word because we are not waiting for changes in the legislation. We are not waiting for the repeal or for the new bill to make things easier. It is easy today, it is just that the people who have used the law so far have been people very close to death, and nobody has anything but the greatest sympathy for that group. The great sadness for me is that in the territory we have not got a specialist palliative care doctor. I have dealt with a lot of dying people for a long time and I have great inadequacies in large areas about how I look after them. Palliative care doctors are not GPs who have looked after dying people, they are specialists who know how to do many different procedures, who have psychological, psychiatric training. We do not have that. So many people are dying in the territory right now who are not getting access to those things. I think it is really important that people know that and do not listen to the rhetoric which is being put forward over and over again that these people have had access to that palliative care, as though that is the statement which makes everything acceptable. I should stop there. CHAIR—Thank you, doctors, for your evidence. It has been of great value. The committee will consider your evidence. Before I call Mr Creed Lovegrove, I notice Dr Nitschke is still here. I wonder if he could come forward, because we have a question on notice which Senator Harradine has asked be put to you. It deals with the drug pancuronium, I think it is. Dr Nitschke, sorry to trouble you again. You might be able to answer it right now, or take it on notice. The question is: what dosage of the drug pancuronium was administered by you to the three persons who have availed themselves of the provisions of the rights of the terminally ill? Dr Nitschke—Twenty milligrams of pancuronium was delivered intravenously. CHAIR—Thank you. Is that all, Senator Harradine?

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Senator HARRADINE—Yes. [5.20 p.m.] LOVEGROVE, Mr Thomas Creed, 18 Ganley Court, Howard Springs, Northern Territory 0835 CHAIR—Mr Lovegrove, we have two submissions from you. Do you have any supplementary submissions to hand up at the outset? Mr Lovegrove—I do not have any further supplementary submissions. Depending on the questions I get, I may have something to offer, if it is acceptable. CHAIR—I invite you to make an opening address. Mr Lovegrove—I would like to briefly tell you the thrust of my submissions. They are pretty lengthy and I would not want to go through them all. CHAIR—Perhaps if you could keep your eye on the time and go through them in dot form. Mr Lovegrove—Yes, I will be about five minutes. For a start, I had no intention of becoming involved in the debate on the bill. I thought it would be better to sit on the fence, but I became irritated at the tactics of those who opposed it—that is, the name calling, the misinformation, the intellectual arrogance and the view that the ethical consideration was beyond the understanding of ordinary territorians. Strong petitions for a parliamentary inquiry seemed to be aimed at excluding ordinary territorians. Power groups had financial, legal and other resources to front such inquiries. Most ordinary territorians have neither the resources, the experience, the time nor the confidence to do this, but they did have firm views and wise advice to give. The majority of those I associated with in many walks of life supported Marshall Perron. I had at least the time and some experience to put forward some sort of a submission and I hoped it would be commonsense based. I say that because I am not a doctor or a lawyer and I do not have any profession—just a bit of experience. I support the Rights of the Terminally Ill Act because I believe it is aimed at those who most need it. There are adults over 18 years who have been told they have an incurable illness which will cause their death within a year and who are suffering in the many ways that are possible. They are people who, by their own evaluation and by that of most caring and concerned people, have decided that they no longer wish to face the awful reality of their suffering and now wish to be in control of the timing and the manner of their death. I believe the act is safe and will not precipitate another Nazi Germany or holocaust especially aimed at the elderly and Aboriginals, as has been suggested. Its basic and, indeed, total dependence on volition is its most attractive feature. This means that medicos who find it unacceptable need not be part of it. Christians or members of any other religion who find it abhorrent do not have to be part of it. Aboriginals who find it culturally incompatible can choose to avoid it. Indeed, if, as a whole, they reject it, they would probably get a sympathetic hearing if they asked that Aboriginals be excluded from its provisions. The danger with that, of course, is that it would be a step back towards the old paternalistic ‘dying pillow’ days when legislators excluded Aboriginals from certain laws because they thought they could not handle them. I think they would be better off accepting the right to choose, which is inherent in the act. This is not an act which everyone who qualifies for will want to use: some people are braver than others; some people endure pain and other indignities better than others; some people

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 117 have religious beliefs which make it unacceptable to use this act; some people may just fear death. But these are not sufficient reasons for denying it to those who want to use it. The Northern Territory has had a long battle to achieve constitutional equality with other Australians and there has been a lot of trauma in the process. We suffered from neglect and indifference by South Australia and from paternalism by absentee landlords in Canberra. There is no doubt that there has been dynamism in our progress since the advent of self-government. Though there are many territorians who have disagreed with some of their priorities, it is our legislature, we put them there and I am sure most of us would prefer to admonish them ourselves, at the appropriate time, if we do not like the way they are governing. We do not need a backbencher in Canberra to usurp the responsibilities of our legislature. So, on behalf of most loyal territorians, my plea to the Senate is: disallow the Euthanasia Laws Bill and let us get on with trying to be equal and equally good Australians. There are some Aboriginal people who say it is in conflict with their culture. I would not argue against that. It is also suggested that many of them don’t understand that they have a choice. When I see Aboriginals negotiating complex mining deals with hard-headed miners, or standing up for their rights against powerful pastoral groups, as they did yesterday, and when I see Aboriginals easily influencing governments, I wonder why it seems to be outside their ability to ensure that their people understand that they have a choice about going to hospital, they have a choice about whether they have an operation and they have a choice about using the provisions of this act. Thank you, senators. CHAIR—Thank you, Mr Lovegrove. Senator ABETZ—I think you indicated in your introduction that one of the qualifications under the legislation was that you had a terminal illness and you were diagnosed to die within 12 months— Mr Lovegrove—Within 12 months, yes. Senator ABETZ—Where do you read that in the legislation? Mr Lovegrove—I read it somewhere. But since I have listened to your discussion with the previous group I wondered whether that statement of mine was correct. But I did read it somewhere. Senator ABETZ—As I understand it, it was in the original bill, but then amended out of the bill. Mr Lovegrove—Yes, maybe that’s where I read it. Senator ABETZ—So you accept that is not the current position? Senator BOB COLLINS—It was in the original bill. Mr Lovegrove—Yes, I accept that I may be wrong—that I am wrong. Senator BOB COLLINS—Not entirely wrong; it was in the first bill. CHAIR—Senator Harradine, have you any questions? Senator HARRADINE—No. Mr Lovegrove has given us a 25-page submission which is self-explanatory, thank you. Senator TAMBLING—Mr Lovegrove, your long CV tells us your long history, particularly with the Aboriginal community in the Northern Territory, and I am aware that you were a member of the Northern Territory Sacred Sites Authority. What do you perceive as the Aboriginal attitude towards the Rights of the Terminally Ill Bill—the Perron/territory one—and the Andrews/Canberra bill?

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Mr Lovegrove—I do not think that you can just say that Aboriginals have a particular view on either of them. I think that I have made the point in my long submission that Aboriginality covers a very wide range of peoples and lifestyles, from tribal Aboriginals living almost in their original state to very wealthy middle-aged Australians. Therefore, to say, ‘This is the Aboriginal view’ I do not think is realistic. I do not visit communities any more because I am retired and I have not had a chance to ask them what they think about either bill. Senator TAMBLING—Sure. Again, from your own experience—I think you give some examples in your submissions of various experiences that you have encountered or been aware of—do you believe that Aboriginal culture allows for any form of euthanasia? Mr Lovegrove—I don’t think they saw it as euthanasia. I think there was a time—I am sure there was a time—when the withdrawal of care to hasten death was part of their life. But it may not be the case now, certainly with people who have been influenced by Christianity. I do not know whether they are influenced by any other religion. But it may well be the case with people who are living in a really tribal state, of whom there are very few left, I suppose. Senator TAMBLING—Are you in a position to comment on how accurate are the claims that we have heard today that some Aboriginal people are afraid to seek medical attention because of voluntary euthanasia? Have you encountered that in any situations that you have been in? Mr Lovegrove—In my experience of being in charge of some Aboriginal settlements— Warrabri for instance; this was back in about 1958 to 1960—we often had great difficulty in persuading Aboriginals that they needed to go into hospital; that they were too sick for us to look after them on the settlement. That is understandable, as I have said in my submission. Too many people who go to hospital die there. But then, again, too many people who go there are very ill when they go there. So, yes, there was a fear amongst Aboriginal people of going into hospital. I have my doubts that the Rights of the Terminally Ill Act has increased that fear. I think it will be still there for some of them when all this kerfuffle is over. Senator TAMBLING—You state in your original submission that some anthropologists delicately avoid the topic with regard to various practices relating to death. Would you like to expand on that a bit, please? Mr Lovegrove—I merely quoted, didn’t I— Senator TAMBLING—Yes, Blainey. Mr Lovegrove—Yes, I merely quoted Blainey. I cannot really expand on it any more. I used examples from his writings and the writings of other people just to relate to my own experiences, a couple of which I have mentioned in my submission. One was in relation to an elderly dying lady in the Top End here. I think the other one was in relation to infanticide, with which I had some experience. Because there was an unwillingness of some people to use the words ‘rights of the terminally ill’ or ‘voluntary euthanasia’- they preferred to use kill, killing, ‘the kill bill’ and things like that—I thought that I should have a look at what people have said in their writings about the attitude of tribal Aboriginals towards killing. That is why I did not confine my comments to just voluntary euthanasia and I covered all sorts of things. In many ways, it was a happy society. In many ways, it was a very violent and cruel society in those days. You will have noted that I have qualified that by saying that things have changed. The influence of Christianity and the social intercourse of Aboriginals have increased over recent years through their visits to Canberra to meet with other groups of people.

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Senator TAMBLING—My final question relates to the issue you opened your comments with about constitutional development in the Northern Territory. I note in your supplementary submission that you use the quaint phrase that it has become evident that we have Clayton’s self-government and that we should give the bottle back and say, ‘Thanks, but no thanks. We will wait for the real scotch.’ You were present last night at the open forum. I note that you did not participate. What do you feel is the perception of second and third generation territorians to the issues that you are addressing? Mr Lovegrove—I guess they are as varied as those of any other territorians. I have a female cousin who was born in the territory, so she has been here almost as long as I have. She is a few years younger. She is violently opposed to the act; I am not. We both come from about the same time as far as territorianism is concerned. The division between how people think does not seem to be breached. It is very hard to convince someone who is against it that they should be for it and vice versa. That applies to older territorians. I get the general impression from some of the older folks I have talked to and associated with in the rural area that most of them are supportive of the bill. Senator TAMBLING—Which bill, the Perron bill or the Andrews bill? Mr Lovegrove—The Perron act. They are against the Andrews bill. CHAIR—There being no other questions from the committee, I thank Mr Lovegrove for giving evidence today. [5.38 p.m.] LAWRIE, Ms Dawn, 8 Ixora Street, Nightcliff, Northern Territory CHAIR—I welcome Ms Lawrie to this committee. You are no stranger to it, having appeared before it yesterday on another matter. Is there anything you wish to tender to the committee at the outset? Ms Lawrie—I have nothing further to tender. I appear as a private citizen. I will not read my submission. You have the benefit of having had it. The submission addresses three points: the desirability of enacting a federal law to overturn or invalidate a Northern Territory law; the voluntary euthanasia legislation, that is, the Rights of the Terminally Ill Act; and the impact on and attitudes of the Aboriginal community. I smiled when I said I appear as a private citizen, because it is very difficult for me in the Northern Territory, and Darwin in particular, to be termed private. In my professional life, I am the Northern Territory Anti- Discrimination Commissioner. I am quite happy to take questions relating to one of the issues I have referred to in my submission, which was a public education program for Aboriginal people and people of a non-English speaking background. I would also say at this point that I am putting a third hat on: I appear as the widow of a man who died of cancer on 21 September last year after a long and very difficult illness. He died at home. I nursed him, being a good Celtic girl, because that is the way we both wanted it. At the time, there was a palliative care doctor and he was a palliative care patient. I welcome any questions from you on palliative care, as I certainly have first-hand knowledge of the palliative care services in the Northern Territory complete with a palliative care doctor. Having said that, am I allowed to refer to some evidence given earlier today? CHAIR—Yes. Ms Lawrie—One thing that excited my attention was the evidence of a solicitor from Ward Keller who said that in his opinion this went to the international instruments to which Australia

LEGAL AND CONSTITUTIONAL L&C 120 SENATE—Legislation Friday, 24 January 1997 is a signatory. He referred to the International Covenant on Civil and Political Rights. Specifically, he referred to article 6, which says: 1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life. I put it on the record that the definition of ‘arbitrarily’ excludes the operation of the ICCPR from the consideration of this bill in that context. ‘Arbitrarily’ means with insufficient reason, capriciously, unconstitutionally and despotically. ‘Arbitrariness’ means: The quality of being arbitrary or uncontrolled in the exercise of will; capriciousness; despotism. I wanted to put that on the record because I found the reference to ICCPR somewhat misleading. I am happy to answer any questions while wearing any of the three hats. Senator McKIERNAN—I am concerned about item No. 3. I will be provocative and say that you have been flippant in the manner and way you say it is very simple to educate Aboriginals by merely producing a video. I suggest that it is a flippant comment and needs further elaboration. I am not trying to be insulting, but I do not think that issue has received the attention due to it. Ms Lawrie—I do not accept your implied criticism. I have said that Aboriginal territorians have rights and responsibilities and that it is imperative that any confusion as to the impact of the act be dispelled in a fair and impartial manner free of prejudice, bias and emotion. Before we went on to produce the videos, which were funded by the taxpayer, we consulted widely as to the way in which information had been imparted to Aboriginal people; in other words, historical and contemporary evidence. The overwhelming evidence was that videos produced in their language was the most effective and immediate tool of communication in an educative sense. We had done a lot of research on it. That is why we went for the option of videos. We are also presenting other material. I gave one of your officers some information on that to be circulated to you. It is not restricted to videos. There are also audio tapes and pamphlets, et cetera. But videos in Aboriginal languages using Aboriginal actors to act out the message have been shown to be the most highly effective and immediate form of communication. That is why it was expressed like that. Senator McKIERNAN—The point you made was that this can be achieved in a relatively simple way. If that were true, it would have happened. If it happened and it were as simple as you suggest, this committee today sitting in Darwin would not have received criticisms from Aboriginal people. Ms Lawrie—You are right and you are wrong. It should have happened; that is my submission. I am a ground breaker in this area by producing a training video on law. The videos that have been produced by the Northern Territory government and other agencies were not specifically designed to inform Aboriginal people of their rights and responsibilities. We have heard a lot about consultation. It is extremely difficult to consult with people in remote communities whose first language, second or third language may not be English. I see it as my responsibility as Anti-Discrimination Commissioner to make sure that Aboriginal people throughout the territory are aware of their rights and responsibilities under my act. And that was one of the recommendations of the Royal Commission into Aboriginal Deaths in Custody, recommendation 211. So I put a submission to the Northern Territory government to fund this project, my project, more or less as a pilot. They accepted my advice and gave me the money. We now have the videos produced—we thought we had 11 languages but there is a hitch with one translation; we have got 10—and they are going out. We have trialled them

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 121 in some communities and we have trialled them in some languages and the response has been overwhelmingly positive. Without going into detail, because I am under some constraints, other secretaries of departments are wishing to follow up my initiative and have come to me for advice, and I know they are making submissions to government. I am sorry that it did not happen earlier in this case, but this is a fairly new initiative, for which I take full credit. I am hoping that more and more departments will follow this option, because it is one approved of by Aboriginal communities and welcomed by Aboriginal communities. It is not much use putting out information in a written form if they do not read. The whole purpose of the videos and the audio tapes is straightforward information on the act, not whether it is good, bad or indifferent. Get the information out is what I am on about. Aboriginal people are no different from any other group of people; they are just as able to make their own minds up once they have received the information. That is what I have done for my act and which will be followed through. I am putting it in here as a model for the lack of communication which seems to have occurred. Senator McKIERNAN—I am not going to take that argument any further. I am just going to take one other question, and that is that it is put to the committee and to individual members of the committee, individual senators, that the Rights of the Terminally Ill Act in the territory is actually discriminatory because—as a result of the nature and the process that people have to go through to access the provisions of the act—Aboriginal people, in the main, will not be able to utilise the services contained in it. Have you got a view on that proposition that has been put to us? Ms Lawrie—Yes, I tend to agree with it, that it is indirectly discriminatory in that the threshold for interpretive services is too high and cannot be met at present. I have been having a look at the definition and the regulations relating to interpreters. However, things are on the move there too. The qualifications for interpreters include accreditation as a conference interpreter from the National Accreditation Authority for Translators and Interpreters and accreditation as an interpreter from the National Accreditation Authority for Translators and Interpreters. So one is for an interpreter, one is for a conference interpreter. What has happened is that the Office of Aboriginal Development in the Northern Territory is compiling a register—this is a new initiative—of interpreters in Aboriginal languages. I might add that to get any message across the territory you do not have to have interpretation and translation for all the languages. Some are readily understood by many groups. We have identified 11 which would cover the territory. They have started to compile a register, and they are Batchelor College and the Institute of Aboriginal Development in Alice Springs. Batchelor College is just south of Darwin and services the Top End. The Institution of Aboriginal Development in Alice Springs and a group here attached to the Uniting Church are upgrading the skills of Aboriginal people in interpreting and translating. We have utilised those people to make my videos, or to translate the videos. So that too is a development, not necessarily because of this act but one which will hopefully assist the indirectly discriminatory provision to be overcome: that is, that there will be Aboriginal interpreters and translators of sufficient skill to enable them to access the act. The main impediment I see at the moment is the interpretation. Senator TAMBLING—Ms Lawrie, have other socially contentious issues, such as abortion, been subject to political and legislative interference in the Northern Territory?

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Ms Lawrie—No. It is interesting that the Abortion Law Reform Bill went through the Northern Territory Legislative Council—the precursor to the assembly—in 1974. At the time at which that bill was passed, there were appointed members, appointed by the federal government of the day, and there were elected members. I might add that that legislation mirrored the South Australian act. When it came to a vote on the bill, the official members— that is, the representatives of the federal government—were instructed not to vote, that the issue had to be left to the elected representatives of the Northern Territory. That was in 1974, which is 23 years ago. An equally contentious issue in my book is that some of the same arguments are being run—and, I might say, by some of the same people—and yet there was a deliberate decision by the federal government of the day not only not to intervene but to instruct its officers not to intervene. We have come 180 degrees. Senator TAMBLING—Can I draw on your experience not just from the assembly and the council but your experience on the human rights commission and in your current position? Are you aware of any other socially contentious issues that could be likened to the current euthanasia debate? Ms Lawrie—Yes. Female genital mutilation had to be handled with extraordinary sensitivity. That was agreed at SCAG meetings and, I think, by ministers of health as well. It has been incorporated into each state’s domestic law. That has had to go hand in hand with a public education program. That was an agreement to proceed. There are socially contentious issues which arise from time to time. In fact, somebody this morning raised the fact that this is new legislation—‘How can we possibly do something new?’ I repealed vagrancy. I think you were a fellow member at the time, Senator. It was the first time in Australia that vagrancy had been repealed. The Northern Territory led the rest of Australia. Vagrancy said it was a crime to be poor. It is not unique to us to do something new. I do not feel any shame at that—I take pride. Senator TAMBLING—Can I take you to another one of your incarnations when you were Administrator of the Cocos (Keeling) Islands. How do you see the Andrews legislation in the federal area and the impact that it should or could or does not have? I find it a strange inconsistency that the Andrews theme is not being applied to the Indian Ocean territories when it is being applied to Norfolk, the ACT and the NT. From your Cocos Island experience— Senator BOB COLLINS—There is a good reason for that: it is part of the electorate of the Northern Territory. Senator TAMBLING—No, but the law does not apply. Ms Lawrie—No, the law does not apply. Senator ABETZ—Western Australian law. CHAIR—Let the question be answered and then— Senator TAMBLING—Can I ask you, from your experience, two aspects: do you also see an inconsistency in the thrust of the Andrews bill and, secondly, how do you think it would be seen or perceived in the Indian Ocean territories? Ms Lawrie—The Commonwealth parliament has responsibility for the Cocos (Keeling) Islands and Christmas Island as external territories and may make laws for those islands. It is inconsistent that the Commonwealth parliament has decided to make a law referring to the mainland territories—which, after all, are self-governing—and has not seen fit to extend that law to Cocos and Christmas. That is inconsistent in itself. How it would be perceived on the islands is difficult to say. The Cocos Malay people are Muslim and seek to preserve some of

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 123 their traditions. They are also very accepting people and they would, in many circumstances, have put forward the opinion, ‘Well, as long as it doesn’t affect me, you can do what you like.’ They do not take offence readily. Some Western Australian laws have been extended to cover the Indian Ocean territories, but not all. The Commonwealth has the right to legislate for those territories but has not chosen to exercise it in this case, which I might say seems to target the three self-governing territories even more. Senator TAMBLING—From your experience, do women, especially migrant or Aboriginal women in the Northern Territory, fully understand the Rights of the Terminally Ill Act and its implications? Ms Lawrie—As far as women across the board, yes, they do. It is my opinion that the majority of them support it, but when we get down to special groups I was in an Aboriginal community not so long ago and I was asked the question by some Aboriginal women, one of whom is a very close friend, ‘What is this kill business, what’s that law?’ I said, ‘You mean the euthanasia act.’ We had a chat and, yes, that is indeed what she meant. I explained it in fairly straightforward terms, ‘Look, this is what it means.’ One of them laughed and said, ‘You have to be pretty sick, you’re going to die anyway,’ and the other one put her arm around me and laughed and said, ‘You might use it, but I don’t think I would.’ That feeling could be replicated through many communities. My concern is that Aboriginal people know about it and make an informed decision, and there is absolutely no reason why neither of those things should happen. The Reverend Gondarra and Creed Lovegrove were saying today that Aboriginal people are quite capable of dealing with issues and making up their own minds as long as they know what the issues are. As far as migrant women are concerned, there are two groups of migrant women throughout the territory. One group is reasonably familiar with what happens in the territory as far as the law goes and is reasonably familiar with the language. I have been surprised at the support that has come from some of those women in Darwin. I have not had the chance to go down the track yet, so I cannot say what is happening in Alice, Tennant Creek and Katherine, but certainly in Darwin some fairly recently arrived migrant women are in support. There is another group of migrant women who do not speak English very well and who are very much removed from access to lots of legislation and lots of knowledge. Several government departments are targeting them. I am one. Beside putting out information in my ancient Aboriginal languages, I do it in five others. The Office of Women’s Policy attached to the Department of Chief Minister is putting out pamphlets in those languages on domestic violence. The Territory Health Services is putting out information in those languages on accessible health services and targeting women with issues such as female genital mutilation and pap smears. They are trying to get the information out in their language and using a variety of mechanisms to do it. They are going to community groups. Sometimes they want to meet women only, and we do that. That concept is not new either, but it is a bit behind the eight ball with this act. It should have started a while ago, in my opinion, but it is getting going now. There has been a dearth of information. Senator TAMBLING—My final question is the one you alluded to in your introductory comments, and the very personal one. You were obviously throwing a line with regard to some of the comments earlier today on palliative care. I do not know whether you were referring to the evidence of the AMA or the implied criticism that because there is no current doctor

LEGAL AND CONSTITUTIONAL L&C 124 SENATE—Legislation Friday, 24 January 1997 in service there is an inadequacy in the service. Can you actually fill us in on the adequacy of the service and the importance of that in-house doctor role? Ms Lawrie—Yes. During our very difficult 1996 there was a palliative care doctor. As was pointed out by the government officials earlier, the practical side of palliative care is largely delivered by the community care nursing sisters. My husband and I chose for him to be at home and we were determined that he was going to stay at home and would not go to hospital. That meant that he was under the care of his own general practitioner. He was also, as a palliative care patient, under the care of the palliative care doctor and they consulted in our presence and involved us in the consultations and discussions. That brought into play visits from the community care nurses and the palliative care people. Palliative care means different things to different people and it is offered according to need. Palliative care people can offer a lot of counselling and a lot of assistance to the family, which is not what I wanted, not what my husband wanted and not what we needed, because we have family here and we did not need that level. They were very good. They would come and talk to us and help us through what can only be described as extraordinarily difficult times. But the main focus of care for us was the practical nursing care provided by the community care sisters under the direction of the palliative care doctor and our own general practitioner. Towards the end they were coming five times a day. Remember this was in the home, and it is extraordinarily stressful. I think they knew that, being me, I would lose my temper a few times and I would say, ‘Why has not something happened?’ and they would make allowances for that. One person said to me at one time, ‘Well, if he was in hospital, it would happen more quickly.’ I think I was arguing about a time delay. I said, ‘But he is not going into hospital. He is going to be looked after at home.’ There is a difference between palliative care provided in a hospital or hospice and that provided at home. It is not quite as easy at home, but it is infinitely preferable in my book. In your own home with your dog, your cat, your wife and your surroundings—whatever you want—that is the way to die. The palliative care was very good, but it is not to be confused with the rights of the terminally ill. They are separate issues. My husband’s distress was exacerbated by the debate which indicated that the Rights of the Terminally Ill Act may be lost to us. I repeat that we were in favour of this act before his diagnosis. It is too easy for senators to form the opinion that those of us who are in favour of the legislation are only in favour because of personal tragic circumstances. That is not so. Those circumstances have reinforced our feeling and our feelings about the act predated his diagnosis, his disease and his death. Senator TAMBLING—Can you comment about whether or not a doctor is important in that factor. The AMA seemed to be implying that there is a real big missing link at the moment. Ms Lawrie—In my opinion, a palliative care doctor is a help, but if you have a very good GP with whom you have a good relationship and there is somebody coordinating the delivery of the palliative care and the community care—and that does not have to be a medical practitioner—I feel that that is very good in itself. The people attracted to palliative care and community care nursing, which is coming to people’s homes and helping you with their death, are highly skilled. Somebody said today that they lacked skills. Well, that is wrong. These people have done extra qualifications on wound care, dying and assistance to the entire family. I completely refute that the community care nursing sisters in the territory who are nursing terminally ill

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 125 patients lack those skills. Some of them are studying part time for various certificates, but to say that they lack skills because there is not a palliative care doctor sitting there I completely reject. We had first-class nursing service in all its forms, from practical nursing to the attention to wounds, the administration of drugs, the care of mood swings and me. Everything was first class. It is nothing to do with the rights of the terminally ill. They are separate issues. I feel like I am an expert on the administration of morphine. This morning Dr Wake was talking about the dosage. The dosage of morphine is increased in line with the increase in the pain. They have to marry and they have to equalise. That is the whole point. Extraordinary attention is paid to that by all the nursing staff and the medical staff so that you hopefully get a balance. It is never a balance; it is just a balancing trick from day to day. But there is always the pain, there is always the distress and there is always the indignity. That is what no-one tells you about. If it happened to me, I do not care what you do, I will dispose of myself. If I cannot do it under a terminally ill act, I will do it in preparation for preserving my dignity, because I have seen it and it is not going to happen to me. I think you should take notice because there are lots of people like me. Senator HEFFERNAN—Have you got any kids? Ms Lawrie—I certainly have; I have three, and I have grandchildren. CHAIR—Thank you, Ms Lawrie, for your attendance this afternoon and your assistance to the committee. [6.06 p.m.] DODD, Mrs Topsy, Tribal Elder, Council Member, Daguragu Community Government, CMB Kalkaringi, via Katherine, Northern Territory 0852 INVERWAY, Mr Mick ‘Yana’, Tribal Elder, Council Member, Daguragu Community Government Council, CMB Kalkaringi, via Katherine, Northern Territory 0852 MORRIS, Ms Helen, Council President, Daguragu Community Government Council, CMB Kalkaringi, via Katherine, Northern Territory 0852 MUHLEN-SCHULTE, Ms Kim, Council Clerk, Daguragu Community Government Council, CMB Kalkaringi, via Katherine, Northern Territory 0852 MUHLEN-SCHULTE, Mr Roark, Anthropological Researcher, Daguragu Community Government Council, CMB Kalkaringi, via Katherine, Northern Territory 0852 ROY, Mr Robert, Recreation Officer, Daguragu Community Government Council, CMB Kalkaringi, via Katherine, Northern Territory 0852 CHAIR—I welcome the people from the Daguragu community. Would you like to introduce yourselves for Hansard. Ms Morris—I am the president of the council of the Daguragu community, which is 800 kilometres from here, and I am also an Aboriginal senior health worker for my community. Robert Roy is also an Aboriginal health worker. Mr Muhlen-Schulte—I am a postgraduate student at Latrobe University and I am doing anthropological research within the community. CHAIR—And you are working with the community? Mr Muhlen-Schulte—Yes. CHAIR—Would you like us to ask questions or would you like to make a statement about the euthanasia bill?

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Ms Morris—Yes, I would like to make a brief statement. We are involved with this euthanasia debate because our people in the communities are really worried. Firstly, they came out and gave us a talk on 14 August 1996. CHAIR—Was that the government who gave you the talk? Who gave you the talk, Helen? Ms Morris—Yes, they came out. Our people in the community are really worried about this euthanasia law. They are really worried because it is the new law that has come in in the territory. Our people got really worried because before they came out on 14 August 1996 and after that they did not know anything about euthanasia. That is why they are really worried. CHAIR—They heard nothing more? Ms Morris—Heard nothing more after that. CHAIR—How many people does the council represent? Ms Morris—There are 12 on the council. Yes, we have got four ladies and eight men. CHAIR—Are you able to say the total number of people in the community? Ms Morris—About 600. CHAIR—When an old person is very sick, what do you do? How do you treat an old person who is very sick? Mr Inverway—I am from Kalkaringi. I am a tribal elder and I am a councillor. I am going to tell you an old story about the early days and what happened when I was a little boy. I remember coming into the station. From country to old station, we move out in the bush at the head of the Victoria River. When old people are sick, we treat them with a lot of bush tucker, and keep them quiet. They have got no blanket, nothing. That has been really good. That was in the early days. That happened when I was a little boy and when I was a grown-up too. We kept them all clean. There was no blanket. They had to make a lilly pilly one. There was a fire burning. The Aboriginal people were fanning and keeping the fire alight. That fire will keep them up all the time till the old people have passed away, and then we put them down. When we come back to Wave Hill Station and all the stations over the Northern Territory— every station—and old people are sick, the Aboriginal people plead, because the white man did not like to operate on them. They were treated in a different way. Take them to hospital in Darwin and they die straight away. CHAIR—Have things changed in the way old people who are very sick are being treated? Mr Inverway—No, nothing has changed. CHAIR—What do you do if you think someone is going to die? Are there any ceremonies? Mr Inverway—In the olden day when anybody die, we make ceremony with the dead man and a couple of others. After that, they would all meet up and cry. That is all, no more. One day when we came to Daguragu, while we were on at that place now, the old people had been there: ‘Good tough, boy!’ and ‘Good Australian!’ Of the old people who came there that day, ladies too, none of them went to the clinic. That day, the white man didn’t like the Aboriginal people. Old people came there until they passed away. They were digging a hole with crowbar and shovel. They had an old rubbish blanket, and a couple more got buried. This time, we worry about these old people—ladies and old men—near death when they are at the hospital. We like to see Grandad being brought back home. In Daguragu, we have

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 127 got a house put up there for the old people, with plenty there. We can keep them there until they pass away. CHAIR—Are people going to the clinic now? Ms Morris—Yes; we have got a clinic up at Daguragu. I am in charge of my clinic. CHAIR—Has euthanasia, which you have heard about, affected people going to the clinic? Ms Morris—They are really worried. Even when we make appointments for them in town, some of them are cancelling their appointments because they do not get the right information, especially with community consulting with the Aboriginal people. The languages Aboriginal people have got are English and their own language, so in our communities we have got five different languages. CHAIR—Five different languages? Ms Morris—Yes. CHAIR—So there are five first languages and then English is second? Ms Morris—English is their second one. CHAIR—When you were visited on 14 August last year, how was it explained to you: in English, or in the five languages? Ms Morris—They had a couple of people translating into the languages for the people— interpreters. CHAIR—Right. When you go to the clinic, do you have interpreters there? Ms Morris—Yes. CHAIR—And do people understand what is happening to them at the clinic when they go there? Ms Morris—Yes. CHAIR—With the community, is it a Christian community or does it work on traditional lines? Is the church at the community or not? Ms Morris—Yes. Some of us in our communities are Baptist. CHAIR—Some are Baptist? Ms Morris—Yes. CHAIR—And others are not Christian? Ms Morris—We are Baptist. Our communities are Baptist. It used to be the Uniting Church, but we are in one. CHAIR—Helen, what do you believe about the euthanasia law? Do you think it is good? Ms Morris—I think the euthanasia law is really frightening to us. Some of us agree with euthanasia, but with our people in our community—for example, if a patient has an illness such as AIDS or cancer—we don’t want them to go into hospital and have that euthanasia. We can have it in our community. If people want to die in my community, it is their choice. CHAIR—I see. Yes, Mick? Mr Inverway—That conduct is with the young, new generation of Aboriginals. In the olden days, in the beginning time, no-one belonging to the communities would agree with what happens here. It is a new day, a new generation. CHAIR—So things are different with the new generation?

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Mr Inverway—Yes. CHAIR—Helen, what happens when someone dies? Do you smoke their house? Ms Morris—Yes, we do, we smoke their house. We leave the house and then finally do the ceremony and smoke the house. CHAIR—If someone went to the hospital and used euthanasia to die, what would people do if someone did that? Ms Morris—The family members of that person would get really upset. Euthanasia is not our law. We stick to our rules that went in longer generations with us. Senator HARRADINE—Just following on from that, when you asked about euthanasia, I thought I heard Ms Morris say, ‘We can have it in our own community.’ You meant you can have a death in your own community, not euthanasia. Ms Morris—Yes. Senator HARRADINE—I must have misheard. Ms Morris—If I have a patient with cancer, if he wanted to pass away at home, he could pass away with the love and care of his family in our community. Senator TAMBLING—You say in your letter, ‘We believe we must die in our own community naturally and comfortably, according to our law’, totally in your own community in that area. Are you talking about the people dying at their family home or in the health centre? Is that important? Ms Morris—That is important. If the family choose for the patient to die in the clinic, it is up to the patient. If family members agree, we can keep them in the clinic or at home. Senator TAMBLING—I appreciate what you are saying for your community. But if I choose to die in my home here in Darwin, because I am very, very sick, and I want to die at my home or at the hospital but I am so sick that I want to give myself the needle and go ‘Bye, bye’, do you have any feeling about my decision? Is that my business? How do you feel about that? I respect your decision in your community but how do you feel about my decision? Ms Morris—I think that is your right, if you want to make up your own mind. Senator TAMBLING—That is important, Helen, because for me to do that, for me to be able to say, ‘I’m finished’, and that is what I want to do in my place, I need the law. I need the euthanasia law, otherwise it is against the law, it is illegal. But it is a matter of respect on both sides. Ms Morris—I agree with that. Senator TAMBLING—If the people in your community do not want it, they just say, ‘No, we don’t do it.’ But if the law says, ‘Okay, Tambling, that is your decision’, you do not mind? Ms Morris—I am not going to answer the question. Senator TAMBLING—So it is not your business? Ms Morris—No. Senator HARRADINE—You are asking Helen whether she minds whether you commit suicide? Is that it? Senator TAMBLING—That is right, yes. Senator HARRADINE—But that is a different matter from what we are talking about. We are talking about the euthanasia bill and the euthanasia law in the territory. Do you want the

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Senate committee to recommend that the Australian parliament overturn, get rid of, the Northern Territory euthanasia law? I think that is what you are saying here, isn’t it? CHAIR—Do you understand that question? Ms Morris—Yes. If our communities do not want the law, we will say no. That is for all Aboriginal people in our remote communities. Senator HARRADINE—Thanks. Senator McKIERNAN—You mentioned the meeting in August last year where you received some information about the euthanasia bill. Was that the only meeting where you received information about euthanasia? Ms Morris—Yes. Senator McKIERNAN—Were there any other people or bodies that gave you information about what euthanasia would do? Ms Morris—No. Senator TAMBLING—Did Tim Baldwin, who is the local member for Victoria River, come out to talk to some of the communities and the community leaders? I understood he did a tour to each of these communities. Senator BOB COLLINS—Yes. Ms Morris—When Tim Baldwin came out to my community I was not there; I was in the other meeting in Darwin. Mr Muhlen-Schulte—Could I cut across here? CHAIR—Yes, certainly. Mr Muhlen-Schulte—As far as I am aware—and, I think, from the way that Kim is indicating—there has not been any contact with Tim Baldwin and the community over this issue in recent times. Senator TAMBLING—In 1995, when the legislation was going through? Ms Morris—In 1995. Mr Muhlen-Schulte—No— Senator TAMBLING—But that was when the legislation was going through. Senator BOB COLLINS—Yes, I just wanted to make sure. I did not realise you were talking about the year before last. CHAIR—I think that was the end of last year. What about the year before last? Senator TAMBLING—Last year is arising out of the Green Ant consultation, isn’t it? Ms Morris—Yes. Mr Muhlen-Schulte—That is right—which is what Helen was referring to. Senator TAMBLING—But the question we were seeking an answer to, and the question I think Senator McKiernan was seeking an answer to, was whether there had been other discussion with regard to the Rights of the Terminally Ill Bill. That is what I am talking about—in 1995, when that was going through. I lost a book I had before with a number of other consultations. I do not know if there were any people from that community involved, but I understood that there were local members that went out and talked about it. Ms Morris—I did not see him when he came out there.

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Senator BOB COLLINS—Just to provide some clarification, Mr Chairman: is it a fact that none of the people that are here giving evidence today spoke to Tim Baldwin at all? Ms Morris—None of us have spoken to Tim Baldwin. Senator McKIERNAN—That makes the question about last year’s meeting in August very important. Was that the first time your community heard about the euthanasia bill? Ms Morris—Yes. That is the first time they came out and talked to us. Ever since that meeting they had in the community they have not heard anything after that. Senator TAMBLING—And that meeting was the one with the people from Lajamanu, Yarralin, Timber Creek and Daguragu? That is the one we are talking about, is it not? Ms Morris—Yes. Senator TAMBLING—In your letter you refer to 26 July. Other people have been talking about August, but it is essentially the same set of discussions? Ms Morris—Yes, the same meeting with our community. Senator TAMBLING—With the four communities together? Ms Morris—Yes. Senator TAMBLING—How many people attended from the other communities; do you know? Mr Muhlen-Schulte—My understanding is that at that meeting I attended in Daguragu, which was held in the recreation hall in Daguragu, there were people that came in from Yarralin by plane and people from Timber Creek but, as far as I am aware, there were not people from Lajamanu. Senator TAMBLING—But that is in your letter. Mr Muhlen-Schulte—Were there Lajamanu people? Senator TAMBLING—Your letter states those communities. Mr Muhlen-Schulte—I was not aware of them, but there were apparently people there. Senator TAMBLING—Do you recall the numbers that were there for the meeting? Mr Muhlen-Schulte—I would estimate 60 or 70, something like that. There were predominantly people from the Kalkarinji and Daguragu community there. CHAIR—Any other questions? Senator BOB COLLINS—The committee was given evidence today—and Senator McKiernan is right when he says that it is an extremely important issue—that the education program itself was only in fact completed a fortnight before the bill commenced its operation, which was the subject of a great deal of media attention here. I recall only too well an interview with the then minister for health, the honourable Fred Finch, on the Fred McHugh program on ABC Radio here, of which I have a transcript, saying that he could not understand why people were making such a fuss about it because his information was that most Aboriginal people would not utilise the legislation and, therefore, it should not really matter if they weren’t told about it. I am quite happy to provide the committee with a copy of that if I can retrieve it. CHAIR—Are there any other things that anyone would like to say? Mr Muhlen-Schulte—Could I just add that my understanding of the Aboriginal people’s sophistication about what this bill is and what it entails is negligible: they have a very

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 131 superficial understanding. The group of people that you have before you have sat down at numerous meetings with Kim Muhlen-Schulte and myself in the last two weeks or so, and we have discussed it at some length. It is only through those discussions that these people—having several people that are qualified in the health field—have come to understand exactly under what circumstances euthanasia could be enacted and by whom, that it required an individual’s choice. What I am saying more broadly is that in the community the actual nuts and bolts of what the euthanasia bill means is very poorly understood. That lack of understanding leads to other complications—like, as Helen mentioned, people not going to specialist appointments because they perceive that they are ill and then perceive that something might happen to them and they might die in hospital. Senator McKIERNAN—Do you have a personal view on the bill? Mr Muhlen-Schulte—I do have a personal view. I am choosing not to portray it. If you want to ask me what my personal view is I would give you an answer. Senator McKIERNAN—Is that important in the context of what you have just said though? Mr Muhlen-Schulte—I do not believe it is. Senator TAMBLING—Is your personal view known in the community? Mr Muhlen-Schulte—No, quite the contrary. From my own family experience of people with chronic illness—not actually cancer—and seeing people in a state where they need large amounts of care, I think it is very expensive in terms of taxpayers’ resources. I see situations where people are not having what I would call quality of life. Senator TAMBLING—I meant, is your view known to the people in the community of Daguragu? Mr Muhlen-Schulte—No. Senator TAMBLING—It is not something you have personally given. I do not know that you did give a final position. Mr Muhlen-Schulte—My personal position— Senator TAMBLING—I am not seeking it. CHAIR—You said that people in the community do not know, and you have kept it to yourself? Mr Muhlen-Schulte—That is correct. Senator BOB COLLINS—You have no requirement to answer that question. Mr Muhlen-Schulte—I really do not have a problem. My personal view is that I agree with euthanasia, but I have not discussed my personal views with people in the community. Senator TAMBLING—Do you mind if I ask you whether members in the community have ever asked you for your personal view? Mr Muhlen-Schulte—No. Senator TAMBLING—So it has not been their business to know your business, to know your issues or concerns? Mr Muhlen- Schulte—No, I presume not. CHAIR—Thank you. Unless there are any further questions, I thank everyone from the Daguragu community for coming here today—Mick, Robert, Helen, Topsy, Kim and Roark.

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You have travelled a long way. Eight hundred kilometres is a very long way to travel, and we appreciate you coming here this afternoon to assist the committee with its inquiries. We wish you a safe return home. Before we conclude the evidence, I do not think there is any other evidence or any documents to table, but I do want to thank members of the community and those witnesses today who gave evidence in a rational, cogent and forthright manner. I particularly want to thank the parliament and staff of the Northern Territory parliament who have helped us today—and, of course, Hansard and SAVO. Committee adjourned at 6.37 p.m.

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Pursuant to the resolution of the committee on 24 January 1997, the following proceedings of an open public forum conducted on 23 January 1997 were received as evidence to the inquiry.

The public forum commenced at 7.38 p.m.

Senator TAMBLING—Ladies and gentlemen, I sincerely welcome you all here for what is intended to be a very productive evening for the Northern Territory. As you are well aware, Bob Collins and I have felt a lot of pressure on this issue for the last year or so whilst the matter has been before the Northern Territory parliament. Now that the debate has switched to the federal scene and, more particularly, recently to the Senate, Bob Collins and I will have to represent you faithfully in the federal parliament. I welcome you all here. In particular, I also acknowledge that there are a number of Northern Territory politicians present. Nick Dondas, our federal colleague in the House of Representa- tives, is here with us. I have not seen Daryl Manzie yet, but I believe he is coming this evening. Eric Poole from Alice Springs is here, as is Loraine Braham. I was advised that Noel Padgham-Purich was going to attend. John Bailey, the member for Wanguri, is sitting next to Eric. Tim Baldwin has come in as well. So there are a number of territory politicians. Bob will introduce our federal colleagues shortly. We are still expecting another couple of them to turn up. I will now establish the grounds for this meeting. As you are well aware—and your presence highlights it—community interest is profound. This pile of books that is before us for tomorrow’s hearing are the submissions that have come before the Senate committee from the Northern Territory. Over the whole of Australia there are currently about 14,000 submissions for this inquiry, and about 600 have come in from the Northern Territory. Certainly a lot of them have similar interests, are easy to identify and have come from a particular forum— particularly from religious groups, both from the lay and the religious order—and a lot of those were very obvious in the way in which they came forward, and probably eight or nine other sub-groups in the area. There are a lot of interrelated issues that have to be addressed. That is the reason for this meeting. Given the numbers that are here, I will now set the tone for a few formalities for tonight that I think are important. This is a meeting that is owned by Territorians. It is as a result of your pressures and you all being present and participating that Bob and I felt it had to be called. It is hard to put a definition on euthanasia. If Bob and I were to try to agree on anything it would probably be that for the last four weeks, until a couple of days ago, I took a bit of a break here in Darwin and did not get on an aeroplane. Suddenly I realised that probably in the 10 years that we have been in the parliament, Bob, that was probably unprecedented for me. I realised that we are probably euthanasing ourselves just getting on those planes three or four times a week. I am sure that out of the 400 people that are here tonight there would probably be another 200 definitions. As this is a public meeting, it is your comments we are interested in. But one thing I would like to point out is that the comments tonight do not enjoy parliamentary privilege as will those that occur tomorrow morning in the formal hearings, which are part of a parliamentary hearing. This is an open public meeting. I must point out that, therefore, all of your comments must stand up to the laws of libel. Please be aware of that and be respectful of it. Please be

LEGAL AND CONSTITUTIONAL L&C 134 SENATE—Legislation Friday, 24 January 1997 courteous and respectful. We know the heat that this particular debate will bring out from your various criticisms. I ask all speakers, when you first come to the microphone—because we intend to throw it open and, essentially, it is for you tonight to speak—to identify yourselves. We are recording the proceedings. Bob and I will then make sure that that information is presented to the Senate committee. They may choose to take part of it on board as part of their formal hearings. It is important, therefore, that we do know your names and the comments that you might like to make. If you can speak about six inches from the microphones I think you will generally be heard. I ask the press and TV crews to be respectful of people speaking. It is often a bit disconcerting to have a camera shoved too close. We do appreciate that there is a lot of international and national interest in this particular issue here tonight. As I said, the proposed agenda is for Territorians to speak. Tonight is a way for you to address our Senate colleagues that are sitting here at the front table, whom Bob will introduce to you in a moment, about the issues, concerns and priorities that are coming up. About 12 or 13 witnesses will appear tomorrow at the formal hearings. If Bob and I show any bias tonight it will not be to give a preference to those who are giving submissions or making formal presentations to the committee tomorrow. You are welcome to attend tomorrow’s hearings at any stage. They are open and will also be in this room. Can I suggest two themes for tonight. Firstly, we should talk about the principles of euthanasia and the debates from this community’s perspective and how it would go. Secondly, we should talk about those issues that affect territory constitutional matters or issues affecting the parliament that I know many of you also feel strongly about. The final point I would make on a formality is that we should aim to finish at about 10 o’clock. If we set that as a target you may well conclude earlier, but, looking at the numbers, I doubt it. We will remind you when 10 o’clock strikes and we will see how the debate is going at that particular point and bring it together at that point. Thank you for attending. It is an honour to be part of this presentation and to work so closely with Bob Collins on it. Bob, over to you. Senator BOB COLLINS—I will be very focused. Thanks, Grant. I think it would be useful if I just briefly introduced the visiting senators that are here. The Tasmanian senator has just turned up. That is obviously because they are the furthest away. We have: Senator Brian Harradine from Tasmania; Senator Mal Colston from Queensland; Senator Jeannie Ferris from South Australia; Senator Bill Heffernan from New South Wales; Senator Chris Ellison from Western Australia—and I should just mention that Chris is the chair of this committee, and it will be Chris who presents the report of this committee to the Senate when it is concluded— Senator Jim McKiernan from Western Australia; and Senator Eric Abetz also from Tasmania. First of all, I welcome everyone who has come here tonight. I think it is worth while repeating quickly—because it is important—just one thing that Grant said. The meeting tonight is a matter of record. That is the purpose of it. It was organised tonight to give people who did not make written submissions and who are not appearing before the committee tomorrow an opportunity to have a say. It will be a matter of record. The Hansard staff are here to record it. But the proceedings tonight are not covered by parliamentary privilege. So if you want to be libellous, make sure you have a good lawyer and a lot of money.

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I will just conclude by advising you on what the current arrangements are with the committee. The committee is due, after taking evidence and preparing its report, to report to the Senate on 24 February. There has been a considerable amount of publicity in recent times that the Senate might rush to a vote on this prior to that date. I do not think there would be a dissenting senator at this table that would tell you that that is not going to happen before this committee reports. The reason I make that point is to assure you that what you say here tonight is important, worth while and will be considered by the Senate before it votes on this particular legislation. The other thing I want to raise—and I have not told my colleague this yet—is that I will actually remain standing. The reason for that is that we have now filled up that end of the room. I apologise in advance because this is going to happen. Grant and I will do our level best to ensure that there will be some degree of fairness with people who want to speak. I know there will be many here who will want to and we simply cannot, from this position, now see everyone in the room. So I will act as a bit of a spotter to make sure that, if there are people up there who want to speak, they are not left out. I might turn over the first session to Senator Tambling. I might just tell you that there is no formal agenda here tonight. We will simply take speakers from the floor. Obviously, we would like you to say what you want to say as quickly as you can. Before we continue, I also welcome Senator Julian McGauran from Victoria. Senator TAMBLING—Thank you, Bob. Those of you who received a letter from me back in December—and I think I sent out about 900 to people that had expressed interest in this issue—will know that I accompanied with that letter several library papers that addressed both the arguments for and against euthanasia. As this committee is receiving so many submissions from all over Australia, we are certainly going to be faced with a heavy debate. But if we could concentrate, for the first part of the meeting, on your views, Territorians who would like to express to senators personal points of view that you feel we should be addressing, I would remind you that the legislation before the parliament is a bill that was generated in the House of Representatives as a private member’s bill by Kevin Andrews. The key tenant of that bill, essentially, is to preclude the ACT, the Northern Territory and Norfolk Island legislatures from making legislation of this nature, and there are a lot of other ramifications flowing from that. So the bill before the parliament is to deny the legislatures of the territories the right to make legislation of this nature. But that in turn does not go away from Mr Andrews’ intent which is, as he has put it very generally across Australia, against the principle of euthanasia. Can I open the discussion and ask those of you that want to, and someone is going to have to be first, to walk forward to one of the microphones. SUE CARTER—My name is Sue Carter. I am a registered nurse. I am speaking tonight on a couple of points that come from my experience in nursing. The first point I want to make is that people make the comment that palliative care works and that doctors and nurses sort things out for patients. The problem with that is that no-one consults the patient in the ward about what is about to happen. What happens is that there is a discussion between nurses and doctors generally and a decision is made to ‘up the morphine’, as the comment is. No-one actually goes into the patient and says to them, ‘Look, Mr Jones, you are really suffering here; we are going to up this morphine. The end result of that is going to be that you will lapse into unconsciousness, we cannot say when, and eventually you will die.’ Nobody tells them that. So they are not giving their consent to the sort of activity that occurs at that moment, whereas voluntary euthanasia enables the patient to have control,

LEGAL AND CONSTITUTIONAL L&C 136 SENATE—Legislation Friday, 24 January 1997 enables them to talk to their families and to make an exit at a time that suits them. For that reason, I support it. The other thing that concerns me is that as a nurse I know certain things. One of the things I know is that, if I want to kill myself using tablets, I go down to Woolworths and I buy a nice big box of Panadol. I take them, I go to bed, I do not tell anybody about it for six hours, and then I say, ‘Hey, everybody, guess what I just did.’ Three days later, I will be dead. I will have died of renal failure and liver failure. It will have been very painful and very costly to this society. I object to the fact that certain people have access to nice drugs that enable them to be killed quickly and easily. In particular, I refer to doctors who have a very high success rate in killing themselves. So why should they have access to the nice drugs, and those of us who know have access to the yucky drugs, and those of us who do not know anything about it have to shoot ourselves or gas ourselves in a car? Thank you. HUGH TILBROOK—I am a private citizen of Darwin. Many thanks to Senator Collins and Senator Tambling for this opportunity to state my view on euthanasia. The politicians who instigated this Senate inquiry are to be congratulated. Thomas Jefferson said, ‘Difference of opinion leads to inquiry, and inquiry to truth.’ He also said, ‘If a nation expects to be ignorant and free, then it expects what never was and never will be.’ I hope this Senate inquiry will arrive at the truth and that Australia will not be seen as an ignorant country. It is wrong that the issue of euthanasia and the issue of statehood have been placed in the one basket. In my view, the Northern Territory law allowing assisted suicide establishes that the Northern Territory parliament is not mature enough to make decisions that may affect the whole of Australia. I am opposed to euthanasia in the form of assisted suicide. My reasons are many, but I object mainly because it is inevitable that there will be an expansion of conditions and target groups. Gilbert Meierlander maintains that most arguments supporting assisted suicide rest on the importance of personal autonomy, even a choice of death, and the need to relieve suffering when we can. He says these two criteria taken together are thought to authorise assisted suicide and at the same time to set limits to the practice. When a person who is suffering greatly states that he or she has a right to choose death, assisted suicide may be authorised. The limits are that the person must be suffering great pain but still be capable of making a rational decision. If suffering great pain is a criterion for the authorisation of assisted suicide, how can we justify allowing only those who are capable of making a rational decision to take part in assisted suicide? Are these the only people who suffer greatly? The answer of course is no. Logically, then, the class of candidates must be expanded. Meierlander argues that movement from assisted suicide to non-voluntary euthanasia is almost inevitable. History has a lesson for us. In Nazi Germany, euthanasia referred to death by medical means or death introduced by qualified personnel. Euthanasia was carried out to terminate suffering, to alleviate the burden of indignity of life not worth living, for reasons of eugenics, to provide more living space for Germans or to minimise waste resource on useless mouths. Cliff Baxter in the Catholic Weekly of January 1991 states that the estimate of those killed by euthanasia during 1990 in Holland varies from between 6,000 to 20,000 deaths. He quotes officials as saying that they fear that many patients are indeed being killed without consent.

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Peter J. Bernardy states that few people would have dreamt in 1973 that by 1993 the number of abortions in America would reach 1.6 million. He says that very few of these abortions have to do with hard cases of pregnancy as a result of rape, incest or the threat of a mother’s life. Most abortions are motivated by lifestyle reasons. The right to assist a suicide could be expanded to include many conditions and many targeted groups. Dr Kevorkian, in addressing the National Press Club in Washington DC on 27 October 1992, said, ‘Every disease that shortens life, no matter how much, is terminal’. According to him, terminal cancer patients who have only six months to live comprise 10 percent of the people who need assisted suicide. The larger needy group include quadriplegics, people with MS and sufferers of severe arthritis. Some Australian doctors who despair of curing the sick may be able to add to Dr Kevorkian’s list. Who’s going to judge the limits of assisted suicide? Dr God? Dr Carlo Kafari argues that if life is objectively unworthy of being lived it is no longer worthy of being defended. Just as truly, one cannot rule out as a matter of principle that it cannot be put down even when consent cannot be given. In a word, to recognise the right to suicide brings with it logically the right to homicide. Assisted suicide will lead to an expansion of conditions and targeted groups. The assertions of personal autonomy and the need to alleviate suffering are false. As history shows, euthanasia can be expanded to include murder. In Holland, it is feared that many are being killed without consent. In America, the 1.6 billion abortions from 1973 to 1993 demonstrate that society can and does expand conditions. Dr Kevorkian agrees that expansion of conditions and targeted groups for assisted suicide is essential. Finally, it is logical that, as Monsignor Carlo Kafari states, to recognise the right to suicide brings with it logically the right to homicide. Thank you, Senators, and fellow Australians here tonight, for listening without interruption to one of my views on assisted suicide. ROSLYN WILLS—I am a senior citizen in Darwin and I am 76 years of age. I am in favour of voluntary euthanasia. It seems to me that in all the histrionics one very important word has been forgotten—and that is the word ‘voluntary’. I listened with admiration to the previous speaker. I think he got lost in the fact that we are able to make decisions for ourselves. At 76, I probably have another decade to live—no-one knows what is to happen at the end of one’s life. I would like the option of voluntary euthanasia so that I could die in peace and harmony with my family and friends around me, rather than simply putting a plastic bag over my head, which would be very confusing and upsetting to my family. That is all I have to say. PETER HOWE—This is my eleventh year as a doctor and my fourth year in the Northern Territory. I am not here as an opponent of euthanasia, but I am very concerned about the Northern Territory legislation. There are three main issues. Firstly, to consider this in the territory, we should have world-class palliative care and that is certainly not the case. Secondly, if suicide is accepted by society, I do not see any reason why having a dignified suicide, as the other speakers have mentioned, should be withheld. Lastly, I really do not see any real need for the medical profession to be involved. Other than as a safety net for making sure the person is not in a situational crisis or not acutely depressed, it is asking doctors to make a sort of value judgment that this person is having a miserable enough time. I do not think that is well placed on the medical profession. Certainly, medical doctors are not trained for this. My training is in anaesthetics—and that

LEGAL AND CONSTITUTIONAL L&C 138 SENATE—Legislation Friday, 24 January 1997 is probably as close as it gets. We are not trained in lethal doses, and other sections of the community might have better expertise. It would save a lot of confusion if the doctor was one of the person’s caring support people, like their priest, their family member and their neighbour. But if you go to the hospital, this issue that is clouding could be quite easily removed. Thank you. SHIRLEY McKERROW—On a lighter note, I would just like to mention a joke somebody told me—that life itself is a sexually transmitted terminal disease. There are a couple of points I wanted to make. One is on this issue of palliative care. If the Northern Territory’s standard of palliative care is so bad, why is it that two-thirds of those who have already taken advantage of the Northern Territory law have come from interstate? I think that shows a reflection on palliative care in other places. I have some understanding and experience of palliative care. I looked after a 95-year-old aunt of my husband. She was almost blind and almost deaf. She was very old, had had bronchitis and was brought back to supposed health on three occasions. She wanted to die. Each morning she woke up in tears saying, ‘I asked Him to take me last night and I’m still here.’ She insisted on still trying to walk. Her circulation was dreadful, she had sores on her legs, she had sores on her arms and, when I tried to help her up to her feet, her skin would tear. It was like wet tissue paper. That was old, old age. I do not see how palliative care could have ever helped her with that. The other point I would like the senators to consider is the possible unintended consequences of this bill being passed. I know that Grant explained that the purpose of the bill is to prevent the territories from making such a law—I do not know what the definition of such a law is— but the whole point of overturning the Territory law establishes the principle that if a second tier of government within the federation enacts a law that is repugnant to the majority of members of federal parliament the members of federal parliament feel it is their moral duty to overturn that law. Once you have done that, what do you do when a state passes a similar law? Do you see through and are you consistent with your moral duty to try to overturn that law? We have seen what the Franklin Dam decision has done to the concept of state sovereignty. My prognosis is that if you overturn the Territory law a state will pass a similar law—it is inevitable; it will happen sooner or later. Then you will have to send the smart lawyers to find some way, some loophole somewhere—and there are smart lawyers; they do exist, believe me—and they will find something that will assist you to overturn that state’s law. You will be dismantling the whole structure of federalism and you will be changing the whole nature of our government in Australia. I hope that you will take that on board when you are making your deliberations. JOHN McELROY—I would like everyone to give this matter a bit of attention because I believe that this time for humanity is one of the most important that we have ever come to. The point is that the whole of society is based on the foundations of the Ten Command- ments—any historian knows that. ‘Thou shall not kill’ is the whole principle of society. Our law and our social ecological system are based on that. What we are doing in euthanasia is saying to kill someone. Doctors used to take a Hippocratic oath to preserve life. You are asking them to shift conscience; you are asking someone else to do it. If you want to die, that is fine. We have got the highest suicide rate in the world with our young people because of this music that is bombarding our children—suicide music—and our kids are killing themselves. They are doing it, the fact proves it. Monkey see; monkey do.

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The whole principle here with euthanasia is that life has no rights, life is not important. We want control. It is all about control. We want control of everything. We want control of our life and now we want control of our death. We want to control the environment—let us look and see what we have done to the world environment with all the multinational controllers. I had better be careful because of libel. The point is that all doctors who follow the Hippocratic oath—those who are true doctors— have an obligation to be true to their orientation and their commitment and their oath. If someone wants to kill themselves, they are going to be dead. Life after death experiences all over the world—and there are many of them—show that there is something else after. I do not think I want to be a quitter and I do not think I want to leave that message to my five children. Conscience today has changed. I can see the mood of all you people here tonight. I know where you are at: nowhere. And you can sue me for that. I can see a shift and change in conscience today. Very few people today are really moral and really believe in morality. You have got a life; you can do what you want with it but when you are dead you are going to have to face someone else and you will be facing yourself when you die. If you ask someone else to kill you, to murder you, you are shifting your conscience to them; you are asking them to carry that conscience for the rest of their life. You are asking the nursing community, doctors and all these sorts of people to do these things. It is about death. It is about the business of death. It is bringing death to the territory. We in the territory have the constitutional right to change the whole laws for the first time ever in the history of the world. Never before have we had this right to kill. It is the breakdown of the whole basis of society. It is a breakdown of the whole ethics of society. It is a breakdown of the whole concept of civilisation. You are in a very rocky boat here. I might add that, when a lot of the politicians spoke in the Territory about euthanasia or made the agreement, I noticed the plane was a little bit shaky up there and some people were making some important calls to people. I think you are back in that shaky boat. TERRY SECKER—I am a resident of the Northern Territory. First and foremost, I want to thank you for coming here. If the Northern Territory legislature had looked into it for as long and as thoroughly as you have, I feel quite certain that we would not need to be here tonight. If they had even looked at the evidence that was gathered by the South Australian parliament over months and months and at what the House of Lords gathered, they would not have passed this law in the Northern Territory. Another speaker has already touched on this: we have degenerated this into a Northern Territory statehood debate. I cannot put it more succinctly than just saying, ‘Poppycock’. We work in this nation under a constitution. I think under sections 122 and 129 the Northern Territory has whatever rights the federal government wants to give it. We are not a state. We have not got rights in that area. We will not become a state while we have got such laws on the statute books. We show ourselves before the whole world as irresponsible. This euthanasia law is not about the right to die. I have got the right to die. Everybody here in this room has got the right to die. We will all die. It is about the right to kill. Once the state gives this right to kill to private individuals, you lose every other right a nation that thinks it is democratic has. When you take that right and give it to private individuals, you immediately weaken the whole basis of our democracy. We have talked about where it could lead and all that sort of thing. My father-in-law died just under 12 months ago. He was 94 and said, ‘I wish I could die.’ In fact, when I was a

LEGAL AND CONSTITUTIONAL L&C 140 SENATE—Legislation Friday, 24 January 1997 young fellow I heard people say that on Saturday mornings. By the time we finished visiting my father-in-law—and we visited him quite often—he was so happy and was looking forward to the next visit. Of course people feel like they want to die. If people are not looked after properly in palliative care and if they do not feel loved, they will feel that way. But at this moment in time we have people feeling so miserable that the only hope they have got is a quick jab. Forget about us having a legislature that can pass laws. Fifty years ago, the Nuremberg trials—and I am not bringing the Nazis into it—said the state does not necessarily have full rights to make legislation. The defence of these people was that it was legal to do the things in the Holocaust and therefore they were innocent. The Nuremberg trials said ‘No, you’re not. Guilty’ and they executed them. Twenty years ago there are some Aboriginals here who said we are now people and we now have rights. Before that, they did not have too many. You take away the right to life and see what sort of mess we are walking into. Senator BOB COLLINS—Please do not feel the need to take the full five minutes. All donations will be gratefully accepted. Mr LINDSAY GRAY—Ladies and gentlemen, I have been in this Territory now for 20 years. I would like first of all to show the senators how many people have pride in the Northern Territory. Would you all put their hands up so these visitors can see who has got pride in where we live? If there are not too many down hands, we can show you we have got pride. The second thing that we did not have—a lot of us—when we first came here, and when I came 20 years ago, was fathers, mothers, daughters, sisters, aunties, uncles and grandchildren. We were here—a lot of us—on a short vacation or a transfer up for two years and home again, back to wherever we came from. Somebody like me has stayed and I have watched this Territory grow and I am proud of it. I am proud of the way that we have been able to build our legislature and how our people have governed so far to get this Territory where it is. I think we should make that very clear. My second point is this: I am a diabetic. I have been for 10 years. I live on two needles a day. I could even go for a third if I needed it, but I would like that right to go for the third one if I need it. I am single. I live on my own. What happens if I lose my eyesight through diabetes? What happens if I lose my legs through gangrene because of diabetes? Do I want to become a vegetable in a back paddock? No. I want to have the right that, if I want to, I can do it now—I can fix my dose and go out tomorrow. But I would like to go out gracefully at my choice. Thank you. Senator BOB COLLINS—Peter, I will give you the call next if you don’t mind, this lady has been waiting for some time. BRENDA ELFERINK—Ladies and gentlemen, I have lived in Darwin and the Northern Territory since 1969. I grew up here. I see this matter as being a matter of personal choice, not a matter of religious choice. We live in a society with a range of different religions and we hopefully live in a cohesive way. This is a matter for me. I am physically healthy and well, but I would like to think that, if I wasn’t and if I was not able to commit suicide on my own because I could no longer use my body but my mind was still working well, I could die in dignity. So what I am saying and what I am suggesting on the point of euthanasia is that this is a personal choice for people; this is not a religious choice.

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The fact is also that from all the surveys we have seen around Australia, 75 per cent of Australia’s population supports the Territory’s Rights of the Terminally Ill Act—I am not quite sure what the right words are. So we are talking about a democratic choice for the senators here to represent your constituents. If 75 per cent of this population is saying that to you, please support them. When it comes to the issue of state rights, I find it very, very upsetting indeed that the vote of the people that I elect to represent me is overturned by a person who lives a long way away. That is really what I have to say. It is my personal choice. It is my vote that counts. Thank you very much. Mr PETER SPILLETT—I want to ask a question of the committee. A number of times ‘killings’ and ‘murder’ have been mentioned. Could you clarify this? Aren’t we talking about voluntary euthanasia? Isn’t it the person individually? I think this is misdirection. Who puts the finger on the button? The doctor? Senator BOB COLLINS—The answer is yes. Have you got any other questions, Peter? Mr KEN ARMSTRONG—I am Ken Armstrong, a resident of the Territory. I, of course, support the euthanasia bill and I deeply resent Mr Andrews’ decision to introduce his legislation in the House. There is too much emotion in the ‘anti’ camp. Words like ‘killing’, ‘murder’, ‘opening the floodgates’, as one doctor said the other day, are emotive and are not helpful to the debate. The title of the legislation says it all—it is the rights of the terminally ill. They are the people who choose to take their own life. If they get medical assistance, that does not appear to me to change their view. It is the decision of the individual themselves. I find it totally irrational for religious groups to try and thrust their beliefs on everybody else within the community. It has to come back to the right of the individual. Ms MARY SUTHERLAND—My name is Mary Sutherland and I have been a resident of the Territory for 30 years. We have heard a lot about choosing tonight. None of us chose the day we were born and none of us chose the parents who nurtured and cared for us during the first years of our life so that we live to grow up. Life is a terminal illness—someone has already said that—but the process of our dying is a long one. It begins at our conception and it takes in the actions and choices of a whole lifetime. As we grow, we need to choose whether we will accept the gifts which life offers us or whether we will reject them. For much of their lives, many people deny that death comes at the end of it all. We make our choices with regard to our egos. If it feels good—do it. If it gives us pleasure—do it. We try to avoid things that will give us pain. We like to imagine that we can control our circumstances, our lifestyle, our job, our family, our recreation and relationships, at least some of the time. When someone does die, someone near us, we are confronted with the pain and the powerlessness with which we entered the world. We would rather not recognise that as part of life. We cannot make the pain better. We cannot fix the disease. We and the person dying are at the end of the road. Some healers would see themselves as failures at this point. One wonders whether the pain is greater for those people watching a person die than it is for the one dying. Shooting someone to put them out of their misery may do more for the person behind the gun than the person dying. When Mr Perron first thought of this law many people said: ‘Palliative care is not easily available in the Northern Territory.’ It still isn’t. In many people’s minds, the palliative carers are the experts who can teach the rest of us how to deal with this situation of pain and loss.

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Others may see them as people like babysitters, doing a caring, messy job which is too hard and too painful for the rest of us to do on our own. Our culture of the individual makes it hard for people who can no longer work, take control of their own life, or be of any economic value to the world. There are no longer any yardsticks by which to measure my value when I am dying. Someone else will have to care for me, then, as an infant at my birth. For many individuals the hardest thing can be to let go and allow others that privilege of care. The gift of letting go—another of life’s gifts—the gift of grief, the gift of powerlessness, the gift of saying goodbye, are part of the help that we should be able to give our dying. If we give them a glowing computer screen with a fatal message on it and a button to press, we are cutting short that process and leaving the dying person to a kind of despair. Assenting to a euthanasia law is taking the easy, adolescent way out. It is saying, ‘These things hurt too much. They are too painful. Let’s encourage this person out of sight as quickly as possible.’ Afterwards, the supplier of the means of destruction has to live with it. In the 1500s, John Donne put it this way: ‘No man is an island ...’andalso, ‘Any man’s death diminishes me, because I am involved in mankind. And therefore never send to know for whom the bell tolls; it tolls for thee.’ John Donne knew something about interdependence that we have forgotten. People today seem to ignore that and pretend independence. We are spending megamoney researching youth suicide and black deaths in custody; on the other hand, we are legislating to allow people to kill themselves in certain circumstances. We are confused about the value of the person. I ask the members of the Senate committee to give people in the NT the opportunity to grow up and to develop the maturity and compassion needed to accept the gifts of grief, pain and darkness, so that our caring for others can grow and mature. Please, do not push me under the carpet when my turn comes. Please, be there to hold my hand, love me, wash my body and value my dying. Help us not to remain a Territory of denying adolescents. Please, overturn this law. GWEN PHILLIPS—I came to the Territory in 1950 as a nurse. In the old days, people died much younger, their death was quicker and less painful. As the years have gone on, there are more people suffering from a long terminal illness. The medical profession intervenes and prolongs their suffering in many ways. I have seen people reach the extreme. Not everyone will. Those who die from a heart attack or a haemorrhage or an organ malfunction are the lucky ones. But the unfortunate ones will continue on until they are nothing more than a skeleton with skin stretched over it, their bones exposed in their joints. No amount of palliative care can stop that. They will be incontinent, suffering and begging to die. I congratulate the medical profession because, as the years went on, they did take action, although illegally. We all know they have been doing it. It has become an accepted and expected practice that, when the doctor considers that the patient has suffered enough and become weak enough, he will play God and give them the injection. He plays God, certainly. The patient has no say in it. Basically, palliative care is a manipulation of drugs. If you looked into it, you might find that the manipulation of drugs could be illegal and that, in actual fact, they are overdosing people. I do not criticise the medical profession for doing it; I congratulate them for doing it.

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The anti-euthanasia people insist on calling the Northern Territory measure a law. It is not a law; it is a legal option for people who have suffered enough and want to die with dignity. They do not want to look like some thing lying in a bed that instils horror into people who visit them. They want their loved ones to think of them with dignity, not with horror. Euthanasia is purely an option. When they say, ‘We’ve had enough, we’ll have it now’, rather than waiting for the doctor to give it to them, it may only be a matter of a few weeks or a few days. This is not a law; it is a humane option. The difference is that this is voluntary. In the last 40 or 50 years, the population of the Territory has come from all over Australia and the world. The population is very knowledgeable, very hardworking and very responsible. I admire them immensely and I am proud to be a Territorian. For the last six months, this euthanasia matter has been discussed thoroughly from all angles and viewpoints, in homes and in the street, by people with different attitudes and different lifestyles from all around the world. It has been discussed thoroughly and I think the assessment that 78 per cent of the people in the Territory want this euthanasia bill to stay is a very accurate one. Thank you. JOHN GOWA—I have been a Territorian for 20 years. The reason for my contribution is not to challenge the decision of the parliament or to embarrass ourselves against the constitution which is already in place. My argument is that the right to die is not the law of nature. The law of nature is natural death. Do not try to fight against nature because we are destined to fail. We are living under its law. The right to vote on this issue is not the luxury of our parliament in this beautiful building. It is an issue for the whole human race. Euthanasia is a religious issue. It is not a political issue by any means. If we still need the buildings of churches, mosques or temples to defend the consciences of people, then let those people who work under those buildings decide whether euthanasia can become law, not the dignitaries who work in this building for the well- being of the Northern Territory people. The votes of half plus one were gained with the vote of one who is not in this world with us now. Let us consider the one vote that made the difference. This one vote cannot represent the whole human race. Even the Aboriginal people, who are the owners of this land, have raised great concerns about euthanasia. We are the rational people—we try to rationalise the natural law for our convenience—but do not forget that we are also the people with faith, whoever we are, including those who claim they are atheists. We all know that there is life after death. Maybe only dogs and cats do not know this. Even if they do know, they will not ask for the injection to die. So do not force yourself to go to the next life if you are not called to go there. I was shut up once when I raised a similar issue in one of the public meetings, but because this is the right forum, I raise it again for a second time. What I raise today is not a question; it is just a concern. We are all proud Territorians. Do not make us the laughing stock of the world just for the sake of the omissions of one or two people in our parliament. I am against this law and I am always against it. GRAEME EVERINGHAM—I live in Darwin. I have lived here for the last 20 years or thereabouts. I am vehemently in favour of the choice embraced in the Northern Territory Rights of the Terminally Ill Act. The right specifically outlined in the Rights of the Terminally Ill Act is the right of choice of the terminally ill individual. The act empowers the terminally ill individual alone to make their own choice about the appropriate treatment for that individual’s terminal illness.

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I find it incredible that the major continuing argument against the need for the act involves the use of a fatal dose of pain-killer in the name of palliative care. The doctors who use this argument apparently have no ethical problem with killing a terminally ill patient over several days or weeks by a gradual increase of the palliative care drug to lethal levels. This is euthanasia by the choice of the palliative carer. But hold on: isn’t the other major argument against our law that it could in future open the floodgates to the killing of patients without reference to the patient’s consent or wishes? This has been called killing by the state. The palliative carer administers a dose of drug in the full knowledge that it is most probably lethal. There is no patient’s consent. There is no second doctor’s opinion. There is no specialist’s opinion. There are no rights of the terminally ill patient reflected in this procedure at all. Maybe the federal parliament should consider introducing legislation prohibiting palliative care! The Rights of the Terminally Ill Act most certainly gives the patient the choice of deciding the appropriate treatment for them after the terminal status is diagnosed. The decisions about the choices available under the act are very private. The choices made are very private. They should remain so. Opponents of the act rarely address their own right to choose. They are usually expressing concern about possible future changes to the law to allow persons other than the patient to decide the patient’s fate. This cannot happen under the law now. This must not be allowed to happen in the future. We must remain vigilant against future misuse of any law. Possible bad future law is not a reason to repeal good law now. The key word is still choice. As I said at the beginning, the Rights of the Terminally Ill Act empowers one person only to choose. It empowers the terminally ill individual alone to choose the appropriate treatment for their individual terminal illness. I currently have no rights—none at all—under the Rights of the Terminally Ill Act. I am not terminally ill. The Northern Territory act sets out a choice for me should I become terminally ill. I applaud the availability of that choice. I wish to retain the choice made available to me in the Rights of the Terminally Ill Act. Thank you. JUDY DENT—I am Bob Dent’s widow. My husband had been terminally ill for some time when he chose to use the Rights of the Terminally Ill Act to end his suffering and to end my suffering. The advent of Kevin Andrews’ bill upset my husband greatly. He was very relieved when the parliament of the Northern Territory passed the original legislation and so he was extremely upset to find that this compassionate, good piece of legislation might be overturned. Fortunately, it has not yet been overturned. I sincerely hope it will not be overturned. I know you said this was supposed to be for Territorians, but I have a statement here from the widower of Janet Mills, who also used the Rights of the Terminally Ill Act, and I would like to read that on his behalf. This is a statement from Dave Mills who lives at Naracoorte. I would like the Senate to know that my family totally supports the Northern Territory’s Rights of the Terminally Ill Act and hopes you will vote against the Kevin Andrews bill. It was so important for my wife Janet to have me and her youngest son present with her when she died so we could say our goodbyes with dignity. If Janet could not have used the law, she intended to take her own life. She was very worried about that because she felt that she would have to be alone to protect her family from legal problems. Janet was a very determined woman and a special person. She would have been so pleased that the third person to use the law found it easier than she did to find a specialist to confirm her illness. She was happy with the palliative care she received, but she had just had enough at the end.

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Even though we are not Territorians, Janet was so grateful to the Territory that she was able to use the law. It is still such a new thing and one day South Australia and other states might follow the Territory’s lead and there will be no need for people to travel interstate. I know she would want to thank Territorians for their thoughts and kindness in the past few weeks. RICK BAWDEN—I have been in the territory for 12 years but in that 12 years I have become fiercely proud to call myself a Territorian. I might not agree with everything that the CLP government up here does, but this one was right. They say you should die naturally, but how about living naturally? You are pumped up on drugs, your life is being prolonged unnaturally and, when you get to the point, who wants to make that choice to die? Nobody does, but maybe they are being pushed; they are so much pain because their life has been prolonged unnaturally. They should have gone a long time ago, but the medical profession would not let them. They had to live. They are in so much pain because their life has been prolonged unnaturally. They should have gone a long time ago, but the medical profession wouldn’t let them. They had to live. Can someone tell me what is ethical about telling a dying person, someone who is in pain and is suffering and wants to die and has asked to die, ‘No. Sorry, mate. You’ve got to live. But don’t worry about it, we’ve got these really good drugs that will have you so doped to the eyeballs you won’t be able to shower yourself, you won’t be able to toilet yourself and you won’t recognise anyone that walks in the room’? And they are still expected to pay for this. This is torture. When someone wants to sleep and wants peace, let them. If there is no choice, why prolong it? When I first saw the Andrews bill, to me it was democratic vandalism. This is democratically popular legislation. I doubt whether Andrews would spit on an Anzac’s grave, but why desecrate what they fought for: our right to choose—the same way we choose who represents us. Last time I saw it, 74 per cent of Australians were in favour, 19 per cent were against and seven per cent just did not know. Kim Beazley says that we have to get closer to the people, and yet he votes against it. John Howard is always spouting about mandates. This is a mandate that would give most politicians an orgasm. I feel that it comes down to a right of choice, a basic human right. People have said that you have a right to die, that we are all going to die. That is not a right. We do not have a choice in that. That is inevitable. It is the end of life. I am asking you guys—I am pleading with the Senate—to defeat this bill because we all want the right to choice. Who in this room wants the right to choice? If you do, just say ‘choice’. AUDIENCE MEMBERS—Choice! RICK BAWDEN—That is what Territorians want. Thank you. ARTHUR JONES—I am now a Territorian. I would like to put this case to you. For the last 10 years of my mother’s life, her body was wearing out. Her brain was not, but she was gradually losing all the natural functions of a human body. Many a time when I was visiting my mother in nursing homes, hospitals and so forth she would say, ‘I wish I could end it all.’ But of course down in Victoria she could not. I am sure she asked the doctors to, but they would not. Eventually, she got to the stage where she had to be picked up, put into a wheelchair, wheeled to her bed, lifted out of the wheelchair, put in the bed, and the same for everything else. She had to be taken to the toilet and put on the special potty chair and all the rest of it. On New Year’s Eve she died. She died happy. She saw one of her brothers coming for her and she said, ‘Les, you’ve come for me.’ My wife and I were beside her bed and she had a

LEGAL AND CONSTITUTIONAL L&C 146 SENATE—Legislation Friday, 24 January 1997 great smile on her face. Her body had turned itself off and she was happy. If she had been an animal—a dog or a cat—run over by a car, the 10 years would not have been. Everyone would have said, ‘Take it along to the vet and get it put down. It is suffering. The poor thing is suffering.’ If we had left it in the gutter we would have been in gaol for causing an animal to suffer. My mother suffered in varying degrees over the last 10 years of her life. I am sure that if she was in the territory—with Phil Nitschke’s button—she would have pressed it, about eight years prior. I hope that when I get to the stage where my body is not functioning properly, and I have to be carried to the toilet, I can have a button to push. I do not want to be a vegetable. I do not want to have a good brain in a worn-out body. How many people do? It is all very well the God botherers saying, ‘We can’t kill anyone.’ We have a right to death. We have a right to life. They are god-given things. With those few words, I will leave you. I hope you Senate gentlemen can kill the bill—if that is the only thing you want to see killed. NATHAN POULTER—First of all, I would like to say that I am Church of England, and that does not affect my opinion on this whatsoever. My opinion is that there should be the right to die, simply due to the fact that it is every person’s individual opinion whether or not they should die. Secondly, I would like to say that I doubt there is a single person in this room who knows exactly what they would do in that position. The odds are on that pretty much anybody in this room would say, ‘Yes, I want to die,’ and they probably would end up doing it. That is all I want to say. PATTI-JO CROCKETT—I am a fairly new Territorian, having been here only two years. When a gentleman earlier said something about choice and everybody said ‘choice,’ I was thinking, ‘Yes, this is what we are doing.’ A society chooses its values. We choose values as a group of people. I think at the moment we are in a time when it is not just an individual choice, because we are legislating; and we are here tonight to express something about what we are feeling about values in our society. I feel that is what we are in—a time of choice, examining one of the values that up until now has been an undergirding to our society and to the quality of life that we have chosen as Australians, as part of the Australian way of life. And there are very divided opinions in this room about where we are going with that. I think the value that is under discussion is life. What is it? It is quality. It is protection—in what circumstances? What is the dignity and the value of each person in this room? Because of that, it is not just each person in this room. To me, it is each person in Australia. It is a national issue for me because each one of us has to contend with an issue of life and death. Therefore, I would support the federal government in reviewing legislation—whether it is made by any state or any Territory—that has implications and ramifications for the whole of the nation. In my opinion, this would be one of those types of legislation. For myself, I am fairly concerned about the consequences. I really understand the pain of people in a dying situation. I was a nurse for a long time, and to me that was one of the most precious things—to stand by and be with someone in the passage from life to death. What I am concerned about is that some of the long-term implications of this particular legislation are that we are underrating values that have given quality to our society. It is not just an individual choice. We are making a society choice.

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I am also very concerned about—I will give you an example—how easy it is to make the shift from voluntary euthanasia to euthanasia in its true sense. I was fairly disturbed last year when we had a youth parliament here, and the young people from the Territory were debating this issue. One of the boys got up and said something fairly similar to the man who spoke before me. He said, ‘My dog was sick and I put my dog down. Why can’t I put my grandmother down?’ I am sorry, but I was horrified. Your grandmother, yourself, your son or your daughter is of much more value than a dog. I also have a concern over the quality of palliative care in the Territory. The more this legislation is taken up, what is actually going to happen to that quality of care? I would also see, from my point of view, that one of the functions of law in our society is to express, shape and protect the values of our society. Our law should do that. It should express, shape and protect the values of our society. I am a little bit concerned that public opinion has, to some degree, been misinformed. I think there is a good example in South Australia. Initially, when the legislation came up for debate, the majority of people were in favour of it but over time that whole thing turned around. From where I stand, because we—as a group of people and as a nation—are making a society choice about values for life, I would support the federal government’s review and I would ask you, gentlemen and ladies, to support the Andrews bill. SHEILA CLARKE—I am 80 years of age and I have lived in the Territory for 54 years. I am totally against voluntary euthanasia because, as one previous speaker said, we have no choice in entering life and I do not think we should have any choice in leaving it. You are talking about people suffering. Everybody suffers; this is life. If you do not have some suffering, how can you enjoy the better parts? It is by contrast. My big concern is that you have now legalised, or are attempting to legalise, a criminal act. Once you legalise anything—I do not care what it is—if it is against the natural law, the floodgates are open. I believe that it is very easy to forge signatures so anybody, if they thought I was getting in the way, could forge my signature and have me put away. I want to die when my time comes. I do not care when it is or how I go but I will take my risk at how I go and I think everybody else should do the same. Thank you. SEAN DE KRESTER—I am 28 and, as a young man, I would like to appeal to the committee not to bring these laws in, because something might happen to me when I get older and more vulnerable and things are getting harder and harder to cope with. Even as a young man, when I suffer it is very easy to have the temptation to commit suicide so it is not easy to go through the hard times at all when being young. I find the fear is that, as I get older, it is going to get very difficult. If these laws are in front of me, saying that there is a button to push, it will be very much easier for me to take this choice that is put before me. Rather, I desire to have—through my soul—the capacity to go through suffering because I have a firm belief that life is forever. I feel this is true in my heart, that there is nothing to be afraid of and that life continues after this death. As a young man, I would like to make this appeal to the committee. I know a few other people of my age who feel this way too, and who would like to be put on record as saying, ‘We don’t really want this law put in front of us.’ Thank you. KARYN WEERAMANTHRI—I would like to say that I think death is actually a very public act, not a private one. Everyone here tonight is, I think, testimony to that. We have heard a lot tonight about choice and the rights of the individual. What concerns me is the

LEGAL AND CONSTITUTIONAL L&C 148 SENATE—Legislation Friday, 24 January 1997 rights of the common good and the message that this legislation gives to people, as the young man has just said. The difficulty with this legislation is that you cannot legislate against the burnt chop syndrome. Mother always used to take the burnt chop, giving the good ones to you, and it is that message that this legislation gives in relation to too much suffering: ‘Look at the effect on my family, on my loved ones, on the doctors and on the nurses. It would be easier if I were to end my life now and end everyone’s suffering, not just my own.’ There have also been a lot of references to animals and how you would put down a dog. People have said you would not let a dog suffer; you would put it down. You then think of the reasons why we put down our animals. We put them down because it gets too hard to look after them, it costs too much to go to the vet, they get old and cranky and they might bite the neighbours’ kids. That is what I am concerned about, the message that this legislation gives to people, and you cannot legislate against human nature. That is all I have to say, thank you. CHARLES COOMBS—I am 60½ years old. I would not be here tonight but for my wife, who convinced me to come. My wife is almost blind. She suffers day in and day out. Once she lies down on that bed, there is no way she can get out unless she is assisted. She is not dying—at least I do not think so. She has been ill for 15 years. I watch her every night and I see her suffering and yet I do not wish her to be put down. She says, ‘Go there tonight, tell these people that we are not animals, we are not an "it".’ She says, ‘Tell them we are made in the image and likeness of God.’ It is not very easy for me to come out to talk to you tonight, because it is very emotional for me to see her suffer like that. Just before Christmas, I was in a school with children who were 10, 11 and 12 years of age. There were 60 of them. My job was teaching morals. One of the things I said was, ‘Thou shalt not kill. Tell me about it. Tell me about euthanasia.’ They all knew it—the children knew about euthanasia. So I went along with it and I said, ‘What do you think of it?’ To my surprise, the whole 60 of them were for euthanasia. Then I asked about abortion. They were not quite sure about that one, to be honest with you. But they all knew about euthanasia and they were all for it. So that tells you what kind of society we are making. Is that the kind of society we want? MARTIN JACOB—Senators, you have heard at length from the supporters of the Andrews bill and their belief in life. I wonder whether they would vote against war, whether they come from the same group—they appear to be from the same group—that would support the return of capital punishment for those who commit suicide. I am certain that the Senate is quite intelligent enough to see the real values and whether people should have a choice. I will tell you a story which is very close to me. My mother, when she was in her 90s, took an overdose of sleeping tablets. To make doubly sure, she put a plastic bag over her head and within a few hours she was dead. Life, as we have heard, is a terminal business. I hope that when I get to that stage I will have either the courage that my mother had or some other means like that which is currently available in the Northern Territory. PAUL ASSIMIANT—I am not very knowledgeable about the issue, but I just want to share a few thoughts of mine. I have lived in the Territory for a short while and I am very happy here and very proud of it. At the same time, I am concerned about this issue. This issue has been around for a long time and has been debated by many countries around the world and still we have not had it. I am very concerned that, in the Territory, 15 people or so have been able to come to that sort of decision. That is my area of concern, especially with a law the intent of which is really to get rid of people, to kill somebody. That is the essence of it.

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We have a Natural Death Act which allows people, in my opinion, to die in dignity. The problem that I have with the act is that it is an irreversible process. What about things like a misdiagnosis or times when people want to change their minds because things are not going too well? There isn’t the possibility of that. I find that although it is done with the best intention, I still believe it is morally wrong to do such a thing. I am concerned about the society we will be living in. I have young children myself, and I am concerned that we are not being seen as a caring and loving society. That is where I have my main problem. I have seen both my grandfather and my brother die of terminal illnesses and I have seen that when people are loved and cared for there is a desire to hang in there. I am concerned that people might feel they are being abandoned because life is getting too hard. I know it is hard but, at the same time, I do not believe it is really a choice we have. Things do get hard. I believe that we need to hang in there and that with good care, people who love us and people who support us, we should be okay. I put my trust in doctors and those who care, and my concern is that that might be eroded as well. I am also concerned about the pressure that the act will put on those who are weakest in our society. They might feel they are being rejected and left on their own. I defend human life in every form that it is. I am a Christian and I am proud of it, but I do not wish my views to be imposed on people. I defend human life. I support it. I want to be with people and help them when they are going through a hard patch. I want to be able to develop a caring and loving attitude so that we can help people as opposed to in a way disposing of them when they come to the end of their natural, economic or social life. In Australia, we live in a multicultural society. A lot of the people come here from cultures where euthanasia is totally unacceptable. I am concerned about the marginalisation or the alienation of these people. PAUL EWING—Senators, I have lived in the Territory for my 18 years and I am proud to say I am a Territorian. I feel myself as being reasonably non-aligned politically. I was the person who, in youth parliament, was described as equating my grandmother to a dog. I did not. I am not suggesting that Ms Clarke has selective memory; I am merely suggesting that she mistook my meaning. I loved my dog; I still do. It has been dead for nearly 10 years—but oh, well. I love my grandmother too, but my dog was dying; my grandmother might. My dog did not have a choice: it was dying, it was in pain, it was put down. My grandmother—if she is in pain, I want her to have a choice. She is a very proud and independent woman, but I want her to have a choice. She may choose yes, she may choose no—it is her choice—but she must have that choice. We are not talking about murder here in any sense of the word. We are talking about assisted suicide—ugly word that it is. We are just talking about one person who wants to top themselves—forgive the slang—but they need help to do it if they want it. I hope if I lose my ability to run, to jump, whatever—I have had a good life—if I am dying and if I am in pain, and if I am able to, I will kill myself. If I cannot use my legs I will still kill myself. But if I am strapped to a bed, drugged up to the eyeballs and I cannot even think for myself, I will probably want someone to help me. I would not ask someone who would feel guilty about it; I would not ask someone who would become a flagellant later because of it. I would ask someone who I love and respect to help me end my life and I would ask them to help me to do it with dignity and with respect. Thank you. STAN FENNING—I identify very strongly with the emotive cases which have been told to us tonight about people who are suffering. I am sure everybody, regardless of their opinion

LEGAL AND CONSTITUTIONAL L&C 150 SENATE—Legislation Friday, 24 January 1997 about euthanasia, can identify with suffering. I can relate emotive stories myself from my own family. If euthanasia was limited only to the terminally ill I would think twice about the decision I have come to. The decision is that I oppose euthanasia and I invite the intervention of the federal parliament via the Kevin Andrews bill. Every cause has an effect and it is incumbent upon us to think about this issue, not in a blinkered area of time but with the future in mind. There are precedents elsewhere which can help us to do this. I am willing to give Marshall Perron the benefit of the doubt because of the extensive safety networks he has built into the Territory legislation. But Marshall Perron’s intentions are irrelevant to the future of this legislation, because the future is out of his hands. He can no more control the future direction and application of euthanasia than he can direct the sun or the moon. We know from the Remmelink report from Holland, which is not from a right-wing conservative group but from the government, that in 1990 1,040 people died from involuntary euthanasia. That figure works out to three people a day, and that excludes people done away with through other means without their consent, such as double-dosing. Euthanasia accounted for 9.1 per cent of the annual death rate of Holland in 1990. The majority of deaths from euthanasia in Holland still are involuntary. Other developments in Holland include: moves to kill handicapped newborns; formal guidelines for killing without request; affirming euthanasia for psychiatric reasons like depression, regardless of whether the person is healthy or not; and encouraging doctors not to admit elderly patients to hospital but to lethally inject them instead. These are precedents which have happened—they are not allegations—and they are on record. We can already look into the future if we are prepared to look outside of the Territory and outside of Australia. Some people regard Dr Kevorkian in the United States as being crazy. The truth of the matter is he is simply being logically consistent with the fundamental principles of euthanasia: the principle that we have the right to determine how and when we want to die, and that our body belongs to us. Eighty thousand babies a year in Australia are aborted on the principle that a woman can do what she wants with her own body. Similarly, in euthanasia the underpinning right is that we can do what we want with our own body. Once we have established those principles, therefore, it is illogical to limit euthanasia, for example, to a Territorian who is mentally incompetent to make that decision for themselves, because their suffering is not different just because they are mentally incompetent. Having established the principle of personal freedom, there is no reason why a teenager at the age of 18 or 19, who simply no longer wishes to live, cannot take that right to die themselves and avail themselves of euthanasia. One of the most fundamental flaws of the Territory bill is that it is nonsensical to establish a law based on personal freedom which you then promptly restrict to a small minority—the terminally ill. Dr Jack Kevorkian would like to give prisoners in the United States sentenced to more than three years prison the right to be terminated by euthanasia; and also to people in their 20s and 30s who simply no longer want to live because they are depressed. He will find quite a lot of them in Australia, because the primary cause for death amongst males between the age of 16 and 25 is suicide. So he would not be short of inquiries. The current bill is riddled, as I have said, with safeguards, but it had to be designed like that just to get it on the statute books. Now that it is on, laws can be changed—and already there are calls for relaxations. The reason most deaths in Holland by euthanasia happen without knowledge or consent is because that is the logical consequence of the principle of euthanasia.

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That is why the federal government needs to intervene, via the Andrews bill, to prevent the Territory parliament from changing the course of moral history, not just in Darwin or the Territory or Australia, but in the world. If the Territory loses rights in the process, I do regard that as regrettable. But it is far better to lose some of our parliament’s powers than for the Territory parliament to usher Australia into the beginnings of a nightmare society. Thank you. COL FRIEL—I am a supporter of voluntary euthanasia and a great believer in freedom of choice. First, I want to deal with the legal aspects of this—the power of the federal government over the Northern Territory—and then with how much power the state should have over the individual. On the first aspect, what right has the federal government got to interfere with the duly elected government of the Northern Territory? Section 122 of the Australian constitution says, in part, that the federal parliament: . . . may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth... Obviously, that refers to the Northern Territory. But I put it to you that the laws it can make, and did make, under that section refer to the setting up of the government of the Northern Territory—that is, the Legislative Assembly—nothing else. The laws made by the Legislative Assembly are independent of any power held by the Commonwealth. In fact, I have a communication in writing from a minister in the previous Labor government, Senator John Faulkner, dated 20 December 1994, stating: The Commonwealth retained legislative responsibilities only in the areas of Aborigines, national parks, uranium and other prescribed substances, and industrial relations. I repeat those: Aborigines, national parks, uranium and other prescribed substances, and industrial relations. You will note that it is quite clear and quite specific. There is not a word about voluntary euthanasia—not a word at all. That is all that section 122 means: the setting up of the government of the Northern Territory, not the governing of the Northern Territory. Governing the Northern Territory is the prerogative of the Legislative Assembly, not the federal government, with those qualifications set out by Senator Faulkner. It would be not only odd but stupid to set up a government and then override it, unless it came under Australia’s international treaty obligations, such as in Tasmania. Let us have look at another aspect of this law—that is, the right of the state to interfere in the private affairs of the individual. Are we born slaves or are we born free? Are we nothing but pawns in the affairs of bigots? What right has the state got to tell us that we cannot commit suicide or that women cannot have an abortion or that we cannot watch whatever we want to see on videos or on the Internet or that we have to be a certain age before we are married? There is a wave of right-wing repression sweeping this country which began with Bob Hawke using the armed forces to break the pilots strike, and the Andrews legislation is a part of it. We must oppose it. Anybody with any concern for the rights of the individual must oppose it. The state is continually attacking the rights of the individual so as to make him or her conform to some perceived politically correct mould. It has to be continually opposed, as in this case. I now want to deal with some of the statements made by Mr Andrews in the federal parliament. I cannot deal with them all because of the five-minute limitation. Mr Andrews expresses concern that the Rights of the Terminally Ill Act has a direct impact on other

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Australians. So does every other piece of legislation passed by state and territory governments when citizens move from one state or territory to another. Mr Andrews said that the Northern Territory act is not about the discontinuous or futile heroic treatment. Of course it is. It is also about ‘the refusal of burdensome or unwanted medical attention’, despite his assertions to the contrary. It is about people with a terminal illness deciding that it is time to die. Mr Andrews said plans to legalise voluntary euthanasia in New South Wales were dropped in the face of overwhelming parliamentary opposition. He did not mention that it was abandoned despite public support for it. Mr Andrews said the national approach to rejecting the intentional killing of the terminally ill in assisted suicide is therefore reflected in the Commonwealth bill. This is an unprincipled statement for two reasons. Firstly, the killing of the terminally ill without their consent is not part of the Rights of the Terminally Ill Act. Secondly, the overwhelming majority of the people of this nation support assisted suicide, and that is the real national approach to the matter. YVONNE SUTHERLAND—My name is Yvonne Sutherland. I am a Territorian and a believer and a supporter of the Rights of the Terminally Ill Act. I am a believer in choice and I am a believer in the right of Territorians to live in a place that makes its laws and can believe that they can be upheld and not interfered with by federal parliament. However, apart from that, I would like to draw to people’s attention that the debate is not about ageing and terminal illness. Regardless of people’s puns on the issue, ageing people are not necessarily terminally ill and especially in the determination as used in the act. People seem to have forgotten that out of this debate are many young people who also suffer with a terminal illness, and fairly obvious to all of us should be those people who have HIV, for whom there is no return once they have passed that stage. It terrifies me to think—we have all seen enough documentaries of people who have been in those throes—that there is no way back. And I am a God botherer. People ought to have a right to be able to call it quits. Morphine infusion—I have witnessed plenty of it—is not my ideal way to die. Senator BOB COLLINS—Can I just say something briefly. Originally, when we opened, Grant said that people who would like to talk about euthanasia itself would do so in the first bit and people who actually wanted to talk about the constitutional state of the issue would do that in the second bit. Obviously, we are not going to be slavish about that, but I just wanted to remind people that if they are holding back for that reason then it is probably appropriate for them to come forward now to speak. I stress that by saying that anyone who wants to talk about euthanasia can of course do so. BILL ROWLEY—My name is Bill Lowrie. I was an orderly at the Royal Darwin Hospital for eight years. I have seen a lot of pain and suffering. I have had considerable pain and suffering myself. I rolled a wagon when I was bull catching in the early years—1984. I broke both legs, hips and pelvis and I am on my second hip replacement. I am a supporter of euthanasia—not that I am going to use it myself. My mother has cancer and she is probably going to want to use this in the future. If she needs to use it, I want her to be able to call her kids aside and say, ‘Look, I’ve had enough suffering. Could you support me in my right to die?’ If she wants that support, I will be there for her, and anybody else who needs it. That is all I want to say. PAMELA TROTMAN—I am a social worker of some 30 years experience. I come tonight, firstly, to say I do believe in the rights of the terminally ill. I do not like calling it euthanasia because I think that distorts the picture.

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I recall the issues about child protection that were about when I first came into social work. There was a big debate in the early 1970s in New South Wales about whether child abuse— particularly physical abuse—took place. I have it on record, though I cannot quote it exactly, that the then minister for child welfare in Victoria was quoted as saying that there was no child abuse and physical abuse of children in Victoria that it all happened north of the border. Since the early 1970s, I have seen the nation and the world come to grips with the unpleasantness of child abuse. In in-service courses I had to do, one of the things I first learnt was that the first case of child protection was taken out in a New York court by nuns for a child who had been severely neglected. This was in the early part of this century. The only legislation available to those nuns to protect the welfare of that child was for the protection of animals. They argued the case successfully on the basis that the child was a member of the animal kingdom. That has been very telling for me because since then I have seen a nation and the world come to grips, as I said earlier, with a most unpleasant, horrifying, distasteful situation. It is about recognising and acknowledging what goes on in our society; about not glossing it over with ‘this couldn’t happen, these people are too moral’. We have too many incidents, where supposedly people are moral and this is not happening any more, where major abuses of children and major perpetrators of child abuse have been found. What I see happening now in the Territory, and I applaud the Territory for this, is the Territory actually attempting through the course of this legislation to get Australians, and perhaps even the world, to come to grips with what it is like to live and die, and to think about that. Not necessarily so that we can have control in a selfish hedonistic way, but so we can make sure that we can live and die with respect and dignity for ourselves and each other. The child protection legislation makes sure of that. This is just another form of legislation which helps people protect their rights and their dignity in this world. Thank you. JOHN McCORMACK—I have lived in Darwin since 1968. I am not in a terminal state, as these crutches might suggest. I do not believe that this debate is what a lot of people here seem to think it is about: that is, the rights of an individual and freedom of choice. We all sympathise with the cases of Bob Dent and Janet Mills, and the citizen who was euthanased this week. But that is not the issue that the Coalition Against Euthanasia is concerned about. The issue is legislating and basing your legislation around hard cases and, in so doing, you are opening the gates to the legislation proceeding in directions that, with all the goodwill in the world here, nobody in the Northern Territory has possibly thought about. In the fullness of time, as our friend over there explained, it is almost inevitable it will happen as it has happened with the abortion law reform. We have had 80,000 abortions in this country—so the statistician tells us—in the last 12 months or so. The senators, as I understand from Bob and Grant, have told us that it is all kosher and that we should, in effect, ignore the euthanasia legislation and the circumstances of its passage in the name of states’ rights and tell the Senate to oppose passage of the Andrews bill. First of all, we are not a state. There are no states rights. I know the Northern Territory government says that it relies on the precedents of colonial legislatures and 150 years of non-interference; but colonial legislatures never passed legislation—or attempted to pass legislation—authorising doctors to kill patients. And that is the issue: authorising doctors to kill patients. The seriousness of the legislation and what it purports to do is a fundamental issue and it must be taken into account before people become preoccupied with states rights. It is obvious to me, and I think to any thinking citizen, that the parliament of the Northern Territory has

LEGAL AND CONSTITUTIONAL L&C 154 SENATE—Legislation Friday, 24 January 1997 no intention of back-pedalling at all. This meeting and the way I was lucky to get in, getting here at 7.25 p.m. tonight, suggests to me the Northern Territory government has made sure that the branches of the political parties are well represented here tonight. It was only through using a little bit of influence and expressing a bit of irritation that I got in. The denial suggests the truth of what I am saying. Anyway, we are not a state, as I have said. Senator Bob Collins—All those with Country Liberal Party membership tickets, hands up! JOHN McCORMACK—The way the legislation was passed is intriguing. Steve Hatton kicked off the debate in the parliament on 22 May. The report of the parliamentary select committee is dated May 1995. It bears the legend on the exterior that it was presented and ordered to be printed by the Legislative Assembly of the Northern Territory on 16 May 1995. The government printer is unlikely to have produced that in less than about one day before the debate. There were about another 1,800 pages of transcript of evidence taken by that select committee, its terms of reference being not to make any recommendation but simply to report. If the government printer produced that 1,800 pages as well as this report before parliament sat to debate this matter I would be astonished. Steve Hatton indicated that nobody knows what this debate is about. The community is ignorant. Politicians, one would have thought, would have gone to their electorates and explained to them the implications of the issue. But they left it on the basis of the Newspoll. The Newspoll asked, if somebody is terminally ill and their doctor is prepared to kill them, should he have the right to do it without criminal sanction. Of course, we would all say yes. But of course that is not the issue. Steve also talked about obscene haste from February to May—three months. Nobody knew anything about it. The Aboriginal communities were essentially disenfranchised in this debate, notwithstanding that they had elected members in the parliament. But this thing—the alleged conscience vote—was steamrolled. I like our Attorney-General suggesting there was no proper conscience vote in Canberra. I think Canberra could ask the same question of the Northern Territory. Leaving aside all of that—and I know the clock is running against me and I will have to be quick—the issue is: should the federal legislature put a spoke in the works of the Northern Territory legislature, adamant as the Northern Territory legislature is that it will not back down? It delivered a remonstrance and my answer to that is: the remonstrance was delivered by the parliament to Charles, not by Charles to the parliament. On that note, I leave you. ESTHER MANCINI—Good evening, everybody. I am just 14 years old. Many people tonight have talked about dignity, so I would like to say something about it, too. My dad has always told me that dignity is to confront your problem and to tackle it. People have talked tonight about dying with dignity. Now I am a bit confused and, if you allow me, even shocked because my belief has always been that to have dignity I should tackle all my problems like an adult. I would like to ask everyone a question: what is dignity? Is it running in front of your problems, which is suffering, or tackling it and not opting for voluntary euthanasia? Also, Paul—I think that is his name—said that if he was 20 years old and he lost both of his legs he would like to have the choice to press a button and end his illness. So does this mean that we should kill every abnormal human being—even babies? If babies are abnormal, maybe we should kill them, too. Why don’t we be just like Hitler and kill everything that is not perfect? I would just like to leave you again with my question: what is dignity? Thank you.

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ROBYN LESLEY—I am a Darwin resident of 27 years. The question of dignity is, in fact, a very good question, as is the issue of individual responsibility against community responsibility. There has been a lot of discussion tonight, which I think reflects an ignorance of the legislation in the first place and probably, from my perception, a fundamental ignorance of the underpinning of dignity for human life in all of its forms. I find it really interesting to reflect that the Northern Territory, being the first to look at the rights of the terminally ill, was also the first ‘state’ to protect the rights of the child in so far as introducing mandatory reporting. So, in that context, it shows of the Northern Territory, as a legislator as well as in the support of the public for its representatives, that it is very conscious of the dilemmas of life and of death. The rights of the terminally ill legislation requires a number of very fundamental issues to be met in order for you to be eligible to access it. It is not like a road regulation or legislation where everyone is required to wear seat belts. In order to access this legislation, you have to be dying; and the people access it in the last days, minutes or weeks of their life, and people do it based on a whole range of decisions about themselves and their particular circumstances. I had to confront this issue a number of years ago when my mother was dying of cancer—a particularly difficult death. She was a Roman Catholic—a very staunch Catholic—and she believed that if you killed yourself you went to hell. In the last days, because of the choices that she was facing as an adult, and given all of her life’s experiences and all of her religious and ethical backgrounds, she wanted desperately to die, for someone to help her. To me, one thing seems to me quite inconsistent with the debate that is going on in relation to this piece of legislation. We seem to be saying, or at least some people down south seem to be saying, that we are prepared to sacrifice the interests of those people, who want to make a choice in the last minutes of their lives, for the better good of the society. Now what does that say? What does that say about the values and ethics upon which the society is built? It says that we are prepared to sacrifice some people, putting them through a particular lot of pain and suffering, because we know better. I have every respect for anybody who has opposition to this legislation. I have respect for people who do not want to be involved in the process. That is their choice. However, what they are saying is, ‘We want to leave the issue of people who are facing terminal illness, in the last days and weeks of their lives, behind closed doors to doctors who are already making the decision, not with the families.’ We are saying, ‘We want someone else to accept the responsibility.’ My perception is that this legislation puts the responsibility where it properly lies and that is with the person who is making the choice about his or her life. I think it also says that to those people who are at their most vulnerable. Hopefully, we will back up this legislation with palliative care and with understanding about death and grieving, not only for the person who is going through it, but for the family and the people around it so that, as a society, we start to grow instead of denying and putting it behind closed doors. On the issue of decision-making, I feel really affronted when I consider that a legislature here in the Northern Territory—with members who personally oppose the concept but who listened to the electorate and dealt with the issue under very difficult circumstances over a long period of time—came to a decision that I believe represented the population that elected its members. I do not mean to discard the interests of the Aboriginal community or of those people who, for religious or other reasons, do not want to have anything to do with this legislation—they do not have to. They do not have to wear the seat belt; the legislation does not require it. I am looking for members of this Senate—which is, after all, the protector of

LEGAL AND CONSTITUTIONAL L&C 156 SENATE—Legislation Friday, 24 January 1997 states rights—to see ultimately that they have to put their personal interests and their personal beliefs aside and listen to what the public is saying. They must not sacrifice those very few people who want to access the legislation on the horns of their conscience. Senator BOB COLLINS—Thank you. I would just mention, before I call Eric Poole, that Grant said—when he opened the seminar tonight—that we were going to look to assess the situation at 10 o’clock and finish around about 10 if we could. Considering the way we are going at the moment, in terms of the numbers and the queues, I think there is a fair chance that we can. For the benefit of those people who might want to know, we can try to finish around 10 o’clock; I think we should. ERIC POOLE—I am the member for Araluen and a resident of Alice Springs. As some members of the committee would know, I was also the chairman of the Select Committee on Euthanasia in the Northern Territory Legislative Assembly. I want to try to correct a couple of things that were said tonight that I think were factually incorrect. The first concerns the printing of the select committee’s report and the comments that were made about the compilation of that report. They were printed in the parliament, as required. I am just pointing out that the records, as produced in the parliament of the Northern Territory by the select committee, were all correct. The only reason they did not appear in the listing was because some of the transcripts had not been verified by the people who had made them. But, certainly, the reports that were presented to the parliament were complete and were records of what was said to that committee. There were 1,126 submission papers, including 255 from within the Northern Territory. The committee was constituted by resolution of the assembly on 22 February 1995. It presented its report on 16 May 1995. I point that out because one of the early commentators said that the parliament did not really consider the question of euthanasia very thoroughly and the legislation was rushed through. I would like to assure honourable members that, in my opinion, the Northern Territory parliament is just as mature as any other parliament of Australia. I include the Senate in that comment. I am sure that the senators, seeing as two of them are graduates of the Northern Territory Legislative Assembly, would probably agree with me. But I believe that we have the right to decide our own laws in the Northern Territory. I point out that people have commented on such things as the Dutch experience. I ask the question as a supporter of voluntary euthanasia. You have a parliament of a country in Europe that I believe is a very civilised country. The Prime Minister is a Dutch Roman Catholic. He heads a party called the Christian Democratic Party. They voted overwhelmingly to put into law the guidelines under which the state prosecutor is not to prosecute doctors for carrying out voluntary euthanasia. Opinion polls in Holland as recent as about four months ago show that about 80 per cent of the electorate in Holland still supports that attitude to the laws on voluntary euthanasia. The latest report in 1995, called ‘The slippery slope argument’, suggests very strongly in the conclusions of that report that there is currently no evidence to suggest that the way in which they have been using voluntary euthanasia in Holland has increased or widened the guidelines of that experience whatsoever. With regard to the young lady who made the comment and asked the question about what is dignity or what is a dignified end, I would like to repeat something that I said in the House quite a few months ago. At some time in our lives we will all die. If we are lucky, we will die quickly or peacefully. If I do not die by accident, I hope that I will pass away comfortably, looked after by caring professionals and surrounded by people that I love. Unfortunately,

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 157 however, some of us will have an end that is anything but peaceful. We may suffer relentless vomiting, nausea or breathlessness. Our pain may be agonising. We may have to be sedated into oblivion for days or weeks or, in some cases, even months. Some of us may want to fight on to the end, getting every drop of what we can get out of the precious gift of life, despite the pain or discomfort. However, I am sure many of us may want to say goodbye to life on our terms and in our own time. We may want the freedom to weigh the options before us and then make an earlier but more peaceful exit. Surely we should have that choice. However, I am sure many of us may want to say goodbye to life on our terms in our own time. We may want the freedom to weigh the options before us and then make an earlier but more peaceful exit. Surely, we should have that choice. There should never be a right or a wrong way to die. One death should not be called dignified because the person swallowed pills or had a lethal injection and another undignified because he or she struggled to the bitter end. Dignity in death is solely to be defined by the individual and his or her own set of values. Undignified deaths are those in which the moral values of others are imposed on the dying individual against the values, judgment and wishes of the patient. A safe and effective approach to euthanasia should ensure that the doctor and the individual explore in openness and honesty how external influences, family pressures, unhappy marriages and the need to be in control exert their force on the request for euthanasia. If anything can be done about it, legalising euthanasia will give the patients the freedom to talk about options. MARY McDONOUGH—I am a Northern Territory octogenarian. There have been very many concepts put forward tonight. I would love to answer them all. I would like to say to the little girl who was here before me who asked the question about courage that courage is facing up to life. It does not mean that you cannot face up to death also. Death is not the worst thing in the world. I think that should be understood. There may not be an afterlife; we cannot be sure of that. During the evening people said that they wanted to choose the quality of life and the society that they lived in. Nobody referred to the possibility that we might have selected for ourselves a community in which cars are on the road and killing people every day. It does not worry us at all. They are killing young, healthy people. We have wars which kill people. We have strange, sick people who go into homes and murder people. There are lots of people—young, healthy, vibrant people—whose life is of great value to themselves and the community, parents of young children and innumerable people on whom the community depends. When we come to the end of our life it is really not so important to other people, so why is it that we can take without any effort or struggle all the real killings and the real murders and cruelties to children, and often within families, domestic cruelties, and call that the life we have chosen and the society we want? Yet we cannot choose a society which will permit people who have reached the end of their life, who have nothing more to give and nothing more to gain. Though we speak of having a caring community, with a great majority of the older people, especially when they are not able to see what is happening to them and those who do not have friends, and even those who have family, you will find daughters whose mothers and fathers are in old people’s homes jumping up and down at the lack of compassion and care in even some of the best homes. I recently had a friend who died in Perth. She loved very good music. She had her own private room and her own private music. She had everything. She put classical music on. Every

LEGAL AND CONSTITUTIONAL L&C 158 SENATE—Legislation Friday, 24 January 1997 time the nurses came in, they turned it off and put on pop music, which she hated. She had to live out her dying days with that. We are not getting the society we want. People say we will get rid of people because of money. Money is not a thing we can pass over either, because there is only so much money in public coffers. Perhaps if some of it went to police and roads and things like that we might save a few of the people, instead of giving it to the pharmaceutical companies to keep people, I cannot say alive, but breathing. I do hope people will learn and gain the ability to say people are permitted to die under the terminally ill act. Nobody is permitted to kill them or to murder them; they are permitted to die with compassionate assistance. Senator BOB COLLINS—After consultation with my colleague I have decided to ask, so that we will have an orderly conclusion to this, that all further speakers who wish to speak to join the queues at these three microphones. I will cut off the debate after that, otherwise we will be here in dribs and drabs all night. I do not think anyone in the audience wants that, let alone anyone on this side of the table. So could you please join the queues now, and I will call no further speakers after these people are finished. I now intend to cut the time down from five minutes to four and, if you are too longwinded, I will cut it down from four minutes to three. Thank you very much. ROHAN BENHAU—My name is Rohan Benhau. Like several people in this audience, I also work in the medical profession, having the misfortune to have spoken to people who have contemplated suicide, who have unsuccessfully attempted it and who have successfully attempted it. Of those people I have seen, they made the choice. I do not agree with suicide, but I believe everybody has that choice, that they choose to do what they choose. Bearing that in mind, it was the people of the Northern Territory that elected our members to parliament here and who have chosen to accept their decisions in this euthanasia bill. It has been brought forward and passed here in the Territory. I ask the members of the federal parliament to listen to the majority of the people in your electorate and accept their choice for yes or no. Listen to the people or the people may not listen to you next time. Make your choice for their benefit. Senator BOB COLLINS—Thank you very much. I would ask all the remaining speakers to be as succinct as they can as it is obvious to everyone we are losing our audience at this point in the evening. JOHN BAILEY—I am the member for Wanguri, and Deputy Leader of the Opposition in the Northern Territory. I was not going to get up and speak, but comments made about the process in the Northern Territory led me to believe that I should get up and make a comment with regard to the role of the Senate and, I believe, what the Northern Territory parliament did. The Northern Territory parliament had extensive submissions, as has already been said. Approximately 1,200 submissions were studied by parliamentarians. Extensive debate went on, and a decision was made by the elected members of the Northern Territory Legislative Assembly. The issue we have before us now is not one of euthanasia, I believe. I was a supporter of the euthanasia debate. Members of my party also opposed it. They will continue to oppose it within the Northern Territory and will continue to try to get the legislation changed. I will continue to try to support it. That is the role of the Northern Territory Legislative Assembly.

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If the federal parliament believes that the federal government has a role in euthanasia, then they should change the law for all of Australia, for all Australians, and not just for Territorians, people who live in the ACT and on Norfolk Island. It is my belief that if senators want to impose what they believe—that voluntary euthanasia is not an option for Territorians—then they should also say it is not an option for the people who live in the states that they come from. If they can’t do that, then they should not be making Territorians second-class citizens. SUZANNE CAVANAGH—I have lived in the Northern Territory for 44 years and I am very proud to say that I am a Territorian. At the outset, I would like to make it perfectly clear that I am an absolute opponent of euthanasia and I make no apology for the fact that I have strong religious beliefs that tell me that it is absolutely wrong. That is my choice to have those beliefs. This Senate committee is actually not just looking at the issue of euthanasia; they are also looking at the constitutional implications for the Northern Territory. I suppose I find myself in a very strange position: I do not support euthanasia but I certainly do not support what Kevin Andrews and the House of Representatives have done in Canberra. I, for once in my life, agree with John Bailey. The facts of the matter are these. This legislation was passed in the Northern Territory in 1995. The federal parliament had it within its power to overturn that legislation, as per our self-government act, within six months. None of them had the guts to do it and we all know why they did not—they were facing a federal election and they did not want this sort of issue muddying the waters, so they compromised their consciences way back there. So I wonder if we should believe their consciences are what they say they are today. Just to go on from what John Bailey was saying, I agree with him absolutely. To just single out the territories of Australia and say that in the territories of Australia you cannot have euthanasia but do absolutely nothing to make other Australians fall in with us to me is an absolute insult to us as individuals and as free-thinking Australians. The other matter I would like to raise, which someone mentioned earlier, is that they know they cannot overturn state legislation unless they call on external affairs powers. That is the only way they could overturn legislation, as they have in the last few years in Tasmania. So if South Australia proceeds with their legislation for euthanasia, Australia is stuck with it because there is nothing they can do about it. But what they can do is introduce some sort of legislation that circumvents that and make all Australians fall under the same mantle as they are trying to make us now. Senator BOB COLLINS—Before I call on the next speaker, could I please ask people not to keep coming up and joining the ends of the queues. They keep on getting longer. Senators are quite used to going all night, but it is going to turn into a very dreary exercise for everyone in the room if we are going to keep doing it. I really was serious about what I said. Can those people who are in the queues now stay there and, if anybody joins in, could somebody dob them in? After the people in the queues have finished, we will conclude tonight’s proceedings. Ms WENDY JACOB—I have been a resident in the Territory for 17 years. I have been interested tonight to hear a lot of views expressed which have echoed and reiterated things which have come up in discussions, mostly in my workplace. I seem to have heard a couple of things a number of times. People are perhaps trying to simplify the issues by either saying it is simply a matter of personal choice or it is simply a matter of valuing life.

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I value life. I would like to preserve life and I would like to nurture life. I also value personal choice. I would like to nurture personal choice and I would like to preserve personal choice. I think if we look at the democracy that we live in they are two essential elements. It is not an either-or situation. We have a democracy which values life and which values personal choice. That is why it is a democracy. I think there is no easy answer to a decision or an issue like this. I think the Territory has taken the issue and tried to work with a very difficult situation. It has tried to live by those two values. They are two values that I do not think are mutually exclusive. I think they are two essential values, and I think the Territory and the people of the Territory have come to a very difficult decision. I think it is a complicated decision. It is not simple. These are not simple issues. There will be lots of different individual cases. Individual people will make individual choices. I could quote personal stories about people who were denied choices—people who tried to make choices and were not able to. I think we should really look at the fact that democracy is about a lot of values, a lot of things. Making a democracy work is about trying to make those values and beliefs work together. I think that is what the Northern Territory legislation for voluntary euthanasia for the terminally ill is trying to do, and that is why I support it very strongly. TOM KIELY—I think that the Rights of the Terminally Ill Act is an atrocious act. It is bad law and it is dangerous. It does not afford protection to the people who are most at risk— the frail, the elderly and the most vulnerable. The fact that the Territory Legislative Assembly had an opportunity to repeal it and did not do so I think has put their authority at risk. There is no doubt that the assembly has subordinate legislation under the Northern Territory (Self- Government) Act. The Senate has the power and I think a duty to overturn bad law. You, Senator Collins, are on record as having said that you support the right of the Territory—I think you even said ‘unto death’—to make their own laws even if they be bad laws. That was on a drivetime ABC radio program one evening. I think the job of politicians is to make good laws for the good order, peace and good government of the communities that they represent—not for their own egos. If the NT parliament gets a little egg on their face, no harm will be done—life will go on, Shane Stone will not resign and in a year’s time it will all be forgotten, just like the Tasmanian dams and the other bits and pieces. Please, senators, overturn this bad law because it is bad law and because you have a duty to the citizens of Australia. We are not just Territorians. I have been here since 1974. Patriotism should not be the last refuge of a scoundrel. I do not want to be a scoundrel, and I will not be one. There is all this tripe about Territorians, Territorians, Territorians. We are all human beings. Overturn the legislation. Protect human beings and set an example for the rest of the world—the world that is watching you. Thank you very much. WARREN SMITH—For almost 13 years I have worked in domiciliary care looking after HIV positive people. I have seen a number of people die, including my lover and best friend. Both of them chose to suicide to stop their suffering. I felt the strong pain from their going. Even though I did not like them doing it, I support their right to do it. I believe that the government should allow people access to a legal means instead of those people putting themselves and their friends at risk when they have to make a decision like this. VICTORIA RYAN—I fully support voluntary euthanasia. I chose to be here. I chose to be born. I believe that everybody chose to be here. Let us face it: if you did not choose to be here, you should not have swum so fast—and to say it was dark is no excuse. If I was so sick

LEGAL AND CONSTITUTIONAL Friday, 24 January 1997 SENATE—Legislation L&C 161 that I had no hope for the future and I was in pain and I was putting my family through pain, since I chose to be here I would like to have the choice to be able to end my life the way I choose to. I am not asking anybody else to do the same. If you do not believe in it, do not choose it for yourself—but do not take away the right for us to choose for ourselves since we all chose to be here in the first place. Thank you very much for your time. KEN WU—I was born in the Territory and I have just come back from down south where I attended university. I found out our intelligence and education system is just as good as system any down south and in some areas much better. We run rings around some of the southern students, so I think our politicians are just as good as anybody else. This euthanasia debate, especially the arguments of the opponents, reminds me very much of the debate about heart transplants and things like that. They are very similar. The opponents then were saying ‘You are interfering with the right of natural death’ and they were arguing that people were going to be murdered for organs. It is a similar approach that is being taken to this: creating hysteria and fear in people’s minds. If you look at heart transplants today, no- one seems to care; it is accepted as a normal thing. What is going to happen is that in 20 years from now when other states have it, other countries will look on this debate and say, ‘What was that all about?’ It just seems to be a natural progression of humanity. DAVID SANDERSON—I am from the Northern Territory. When I was 21 my mother threw a party for me. Unfortunately my father was dead, he could not contribute. She gave me the key to the house and she said, ‘That key is also a key to life and it is your responsibility from here on in. Any decision you take is on your head.’ I would call on all of you to keep that particular little gift from my mother in mind when you go back to the Senate and you vote on this particular bill. I would also ask Senator McGauran, Senator Ferris and Senator McKiernan to consider this. In your states you make laws for your good government. How would you feel if a duly given power under the constitution was taken away from you? That is what you are doing here in the Northern Territory. If you take away from us the power to make this law, which was given to us under self-government, then you are doing us a great disservice in the name of democracy. Quite clearly, this power was not withheld by the federal parliament when they gave us self-government in the Northern Territory. They specifically excluded certain areas but health was not one of them. You specifically gave us the power to make laws about health in the Northern Territory. Thank you for your time. GERRY WOOD—I agree with the gentleman down the back who spoke about the Dutch situation. I am opposed to euthanasia. One of the saddest things about this whole debate is that it has been going on for so long and it has divided our community. There are friends here that are absolutely 180 degrees opposing one another and it is one of the saddest things I have found in the Territory. But be that as it may, it does not stop me from saying what I feel I should say. Some people criticise other people for being God botherers or Christians and say they should not bring in their religious beliefs but, if you look around Australia today, what group looks after the dying? It is the God botherers, the hospices. When the Northern Territory introduced this legislation, it had two nurses, one part-time doctor in Darwin and one bed in Alice Springs. That was the total palliative care. Marshall Perron’s idea was to bring in the last resort before we even tried the first resort, and that to me is a proper shame. The second thing I would like to say is that you gentlemen from the Senate are involved in making laws. For instance, suppose you had a law about domestic violence and you knew

LEGAL AND CONSTITUTIONAL L&C 162 SENATE—Legislation Friday, 24 January 1997 that a lot of women or partners get bashed up, sexually and physically abused. In a minority of cases, one of those partners will kill their partner. Do you go down the path of making a law which says it is okay to kill that person? You do not. You do not make a law for that exception. What you do is leave that up to the courts to decide. You do not break the basic principle of ‘Thou shalt not kill’, which is a fundamental principle of law, and that is exactly what euthanasia has done. It has taken a small part of a difficult area and decided to make a law about it. As that gentleman said, it is a discriminatory law. We have made it for people who are dying and in pain. So what happens to the poor people who are in pain all their life and not going to die? You have discriminated against them—they are not allowed to have it. A 17-year-old has to wait until they are 18 years old. You are discriminating against them. Is pain no worse for a young person, or a person that is healthy? Why is it just for the person that dies? I see that that is where it broadens. The principle may be to keep it very narrow, but I think if it is challenged it will spread out. It is a sad day. On the last point about the Senate overriding Territory laws, I am afraid I believe, as does John Anderson, the National Party Deputy Leader, who came here recently, that it is a matter of which morality: a higher morality? I believe euthanasia is a higher morality than the issue of states rights and I believe therefore you should overturn those rights. I am a proud Territorian but I will not stand and support a Territory based on a law which really gives us no foundation. If we have no leaders who will support it, I think it will be a sorry state. Mr MACMICHAEL—I am going to declare myself. I am the chairman of the Darwin Branch of the Northern Territory Country Liberal Party and I am a ticket holder. I represent a branch of about 150 members of the Territory community based around Darwin and we obviously, as a party, have not yet had,—and I do not think we will have—a full-on debate about the moral issues or otherwise of the legislation, the Rights of the Terminally Ill Act. It was a private member’s bill introduced by a private member, albeit a very long serving minister of the parliament and a very highly respected member of the Territory community and someone that the Northern Territory Country Liberal Party has great admiration for. As a consequence of that private member’s legislation, the division and the debate has reached the stage where in the precincts of this new Parliament House 380-odd Territorians are in fact demonstrating their right as Territorians to maturely discuss the issues of the Territory and its right to govern. One of the things that I particularly did put forward in this submission—which the honourable senators, I hope, amongst the 14,000 documents will have reference to, but I would like to just make a comment—is that for years the Northern Territory has been trying to develop its constitution and progress it constitutionally. Thousands and thousands of Territorians have contributed to the country, and the thing that is probably one of the great angsts amongst Territorians is that, if the Andrews bill is carried through the Senate and the legislation in the Territory is overturned, that is a great setback for Territorians in the Northern Territory, not in the other territories, who are working towards statehood and have been doing so for 18 years since self-government, and who particularly are hoping to be able to demonstrate through the maturity of its parliaments that we might be able to be able to be slotted in in the year 2001 to achieve the final result of becoming a state with the equal rights that other Australians have. I think that one of the things we are capable of showing you in this public forum tonight is that the Northern Territory is politically mature and it is our Rights of the Terminally Ill

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Act. It is in our backyard; we are the people who need to live with it. If we have got it wrong, we should be the ones to correct it. If we do not agree with what our elected members of our Legislative Assembly have done within the convention of the Westminster system then we should show our result at the ballot box and let it all be done within the Territory under the constitutional convention under which we were given self-government 18 years ago. I do not believe that in their sincerity of purpose the people here this evening will want to see the Andrews bill carried and the state that we have been fighting for for over a century lost. I want to make it very clear that I also have very private and strong views about the moral issues of euthanasia and great compassion and feeling for the many things that have been said around this room tonight. But I have a stronger compassion to know that my own children, who were born and have been with me in the Territory and are part of 30 years service to the community, are going to have a state in the future with equal rights among fellow Australians. LUCY JONES—I am a Territorian of 13 years. I believe euthanasia should be legalised because it is a choice. If you have a terminal disease, why can’t you die by euthanasia if you are in pain? If you don’t believe in it, don’t use it. I don’t say you have to use it. Thank you. ADINA STANDISH—I am a Territorian and many generations of my family have been Territorians. I would like know why it is that in a political sense we are treated as second-class citizens of Australia. I voted for members of the Northern Territory Legislative Assembly and, if the Senate overrides their decision, my vote was a waste of time and in fact the Legislative Assembly is shown to be obsolete. I do believe that this is not right. My decision to live in the Territory should not disadvantage me as an Australian. The Andrews bill does: it says that because I do not reside in a state I don’t count as a full Australian citizen. Senator BOB COLLINS—The next speaker is in that most fortunate of positions of having the last word. CAROL ATKINSON—I think it is unfortunate. I am also a Territorian. I am actually entering into this debate on the euthanasia side rather than on the issue of the political process, which I will not go into. I have been in a position of being a registered nurse in an oncology and haematology unit where many people have died. Of those people, what I learnt was that some would have chosen to exercise their choice through this bill; others would not have. That did not mean that not all of them suffered. They all did. With the decisions in their death, the way they faced up to it, all of those people were very active in their death. However, those who would have been able to choose to take this opportunity and use this bill are being incredibly active; they are not running away from their decisions about their death. They would have made that choice in what was at that stage a very high quality palliative care situation. I don’t know what decision I would make in their situation; what I would like to see is that I would have that choice. I would also like to say, as many others before me have said, that not everybody has to exercise that choice. It is there for you, should you wish to access it, and not otherwise. It is not forced on you. I respect other people’s religious and cultural beliefs and I would like them to respect mine. That is all I would like to say. Senator BOB COLLINS—Folks, can I bring this debate to a conclusion tonight by saying two quick things. I know that Grant also wants to say a few words. The first is this. Our guests here tonight, the senators from interstate, are here for the formal hearings of the Senate committee tomorrow. There was absolutely no requirement on any of them to be present here

LEGAL AND CONSTITUTIONAL L&C 164 SENATE—Legislation Friday, 24 January 1997 tonight. This was very much something that Grant and I established. So I know I speak on behalf of every one of you in thanking them for their courtesy and interest. Lastly—and I am sure I speak on behalf of everyone of my Senate colleagues—can I just say that I would certainly as a Territorian like to thank you all, irrespective of your position on this issue. The fact that you turned up here tonight in a standing room only situation I know has brought home to everybody in the Senate the depth of feeling—whatever that feeling is— that is here in the Territory. Can I also finally thank everyone here tonight for the quality of what was said and for the tolerance and courtesy that was shown to the opinions of others here. Senator TAMBLING—Ladies and gentlemen, can I second Bob’s comments tonight. It has been a real privilege to have acted as a co-host with Bob Collins for this forum. I join with him in thanking my colleagues. The fact that you’ve had a number of senators that have had to sit here on their hands tonight and say nothing is quite incredible. I invite any of you who would like to follow the debate to hear some of it tomorrow. The hearings will start at 8.30 in the morning. Shane Stone is the first witness to appear and then there are a number of witnesses right through the day until about 6 p.m. Naturally, the senators will be probing and asking questions. I also thank so many of you who have made these excellent written submissions. As I said, the secretariat have informed us that when the first half were analysed—that was when they got to about 7,000 nationally—there were 300 from the Northern Territory. So there are about 600 written submissions that you and your friends made right throughout the Northern Territory. They were invaluable. Can I also thank the 51 people who spoke tonight. I have kept notes, and there are different categories and different break-ups. It is fascinating in that respect. I would like to be a bit political and really add to some of the comments that were made about our own maturity and about our own community and the points and issues we want to state. I hope that the message to my colleagues was that this will be an example of what they could have in a forum like this. Anywhere else in Australia it would be a very similar debate. Can I also express thanks for the fact that there was no verbal contribution tonight from Marshall Perron, Philip Nitschke, Bishop Collins or Creed Lovegrove. They have all been here and they have all been very patient. They are all major players in this debate and they will have their turn tomorrow when they are probably going to be put on the mat in a much more difficult way. Again, thank you very much. It has been an honour to have hosted this forum. Please tell your friends that did not get in the door—and we are complimented by that—that unfortunately there are regulations and rules that permit certain numbers in certain rooms. Thank you very much. Forum concluded at 10. 22 p.m.

LEGAL AND CONSTITUTIONAL