Senate Legal and Constitutional Legislation Committee Consideration of Legislation Referred to the Committee Euthanasia Laws Bill 1996 March 1997 The Parliament of the Commonwealth of Australia Senate Legal and Constitutional Legislation Committee Consideration of Legislation Referred to the Committee Euthanasia Laws Bill 1996 March 1997 © Commonwealth of Australia 1997 ISSN 1326-9364 This document was produced from camera-ready copy prepared by the Senate Legal and Constitutional Legislation Committee, and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra. Members of the Legislation Committee Members Senator E Abetz, Tasmania, Chair (Chair from 3 March 1997) Senator J McKiernan, Western Australia, Deputy Chair Senator the Hon N Bolkus, South Australia Senator H Coonan, New South Wales (from 26 February 1997: previously a Participating Member) Senator V Bourne, New South Wales (to 3 March 1997) Senator A Murray, Western Australia (from 3 March 1997) Senator W O’Chee, Queensland Participating Members All members of the Opposition: and Senator B Brown, Tasmania Senator M Colston, Queensland Senator the Hon C Ellison, Western Australia (from 26 February 1997: previously the Chair) Senator J Ferris, South Australia Senator B Harradine, Tasmania Senator W Heffernan, New South Wales Senator D Margetts, Western Australia Senator J McGauran, Victoria Senator the Hon N Minchin, South Australia Senator the Hon G Tambling, Northern Territory Senator J Woodley, Queensland Secretariat Mr Neil Bessell (Secretary to the Committee) Mr Steve Curran (Principal Research Officer) Mr Simon Taylor (Principal Research Officer) The Senate Parliament House CANBERRA ACT 2600 Tel: (06) 277 3560 Fax: (06) 277 5794 iii TABLE OF CONTENTS Members of the Committee iii PREFACE Introduction ix Senate Selection of Bills Committee ix “Terms of Reference” ix Conduct of the inquiry x Submissions x Public Hearings x Structure of the Report x Terminology xi Acknowledgments xii CHAPTER 1 THE BILL 1 What the Bill does 1 The History of the Bill 1 Senate Scrutiny of Bills Committee 3 CHAPTER 2 THE RIGHTS OF THE TERMINALLY ILL ACT 5 The Rights of the Terminally Ill Act (the RTI Act) 5 What the Rights of the Terminally Ill Act does 5 The enactment of the legislation 6 Further attempts to repeal and amend the legislation 8 Legal challenges to the RTI Act 8 Effect of the legal challenges on the scope of the Committee's report 10 The use made of the RTI Act 10 CHAPTER 3 CONSTITUTIONAL AND RELATED ISSUES 13 Constitutional arguments on whether the Commonwealth should exercise its power 13 Arguments supporting the Bill 13 Arguments opposing the Bill 17 The possibility of national legislation 22 CHAPTER 4 LEGAL ISSUES 25 Introduction 25 Claims that the Bill would produce uncertainty 25 The basis of the claims 25 An assessment of the extent of the uncertainty 27 Assessment of the practical impact of the uncertainty 33 Should the Bill be amended to reduce the uncertainty? 35 v Operation of the "for avoidance of doubt clause" 37 CHAPTER 5 ABORIGINAL ISSUES 39 Introduction 39 Aborigines and the Rights of the Terminally Ill Act 39 Consultation with Aborigines during the legislative process 40 Education campaign 41 Possible misinformation 44 The application of the Act to Aborigines 46 Aboriginal Attitudes to Euthanasia 47 Impact on Aborigines - Willingness to Access Medical Services 50 Other Considerations 53 Fear of Genocide 53 Sorcery 53 Payback 54 CHAPTER 6 EUTHANASIA LAWS BILL – FOR AND AGAINST 57 Introduction 57 Arguments for Euthanasia 57 Individual Rights and Autonomy 57 Choice 59 Compassion and Death with Dignity 61 Legalising what in reality is already common practice 62 Moral Equivalence 63 Arguments against euthanasia 65 Sanctity of life 65 Religious beliefs 67 The slippery slope 69 Erosion of medical ethics and the doctor - patient relationship 72 Palliative Care 74 CHAPTER 7 SURVEYS IN AUSTRALIA ON EUTHANASIA 81 Introduction 81 General Public Attitudes 81 The Morgan Polls 81 Newspoll 83 Practices and Attitudes of the Medical Profession 83 Kuhse & Singer, 1987 and Baume & O'Malley, 1994 84 Waddell et al., 1996 85 Flinders University, 1996 86 Kuhse, Singer and Baume 1997 87 AMA Questions - 1997 89 Steinberg et al., 1997 (Queensland) 90 Extent of Support for the Northern Territory Legislation 91 Steinberg et al., 1997 (Northern Territory) 91 CHAPTER 8 INTERNATIONAL DEVELOPMENTS 93 vi Introduction 93 House of Lords Select Committee 93 Canadian Special Senate Select Committee 95 New York State Task Force 95 The Netherlands 96 The Dutch Penal Code 97 Court Decisions 97 Guidelines 100 The 1991 and 1995 Studies 101 The Slippery Slope? - Differing Interpretations 102 Switzerland 106 Oregon's Death with Dignity Act 108 CHAPTER 9 SUMMARY 111 Introduction 111 The "Territory rights" issue 111 Legal issues – uncertainty 112 Aboriginal issues 113 General moral, philosophical, ethical and social issues 114 ADVICE TO THE SENATE by Senators Abetz, Bishop, J. Collins, Conroy, Ellison, Ferris, Harradine, Heffernan, Hogg, McGauran, Minchin, O'Chee and Woodley 115 ADDITIONAL COMMENT by Senators Bolkus and McKiernan 131 ADDITIONAL STATEMENT by Senator Coonan 141 VOLUNTARY EUTHANASIA: A CRITICISM of the REPORT of the SENATE LEGAL and CONSTITUTIONAL COMMITTEE on the EUTHANASIA LAWS BILL 1996 by Senator Brown 145 ADDITIONAL COMMENTS BY THE NORTHERN TERRITORY SENATORS Senators B Collins and Tambling 179 COMMENTS by Senator Cooney 181 ADDITIONAL COMMENTS by Senator Ellison 187 APPENDIX 1 ANALYSIS OF SUBMISSIONS 189 APPENDIX 2 WITNESSES WHO APPEARED BEFORE THE COMMITTEE 193 vii APPENDIX 3 "HOSPITAL SERVICES SUPPLIED TO ABORIGINAL PEOPLE IN THE NT, 1993-96" 197 viii Page ix PREFACE Introduction In May 1995, the Legislative Assembly of the Northern Territory enacted the Rights of the Terminally Ill Act 1995 and the Act came into force on 1 July 1996. The Act allows a doctor in defined circumstances to comply with a request from a patient that the doctor end the patient's life or assist the patient to end his or her own life. The legislation has no precedent in Australia or overseas. It has proved to be highly controversial. In late June 1996, Mr Kevin Andrews, Member for Menzies in the House of Representatives, announced his intention to introduce a private member's Bill to override the Rights of the Terminally Ill Act. On 9 September 1996, he introduced the Bill entitled Euthanasia Laws Bill 1996 (the Bill) in the House. On 9 December 1996, the House of Representatives agreed to the Bill with amendments. Senate Selection of Bills Committee On 7 November 1996, while debate on the Bill continued in the House of Representatives, the Senate Selection of Bills Committee recommended and the Senate agreed that the provisions of the Bill be referred to the Senate Legal and Constitutional Legislation Committee for inquiry and report on or before 24 February 1997. This reporting date was subsequently extended to 6 March 1997. “Terms of Reference” A reference relating to the provisions of a Bill allows a Legislation Committee to undertake a wide ranging inquiry into the broad aspects of proposed legislation as well as specific technical matters arising from the Bill itself. It should be noted that, in its recommendation to refer the provisions of the Bill to the Legal and Constitutional Legislation Committee, the Selection of Bills Committee nominated four specific areas of inquiry, namely: • the desirability of the enactment of the provisions; • the constitutional implications for the Territories of the enactment of the provisions; • the impact of the enactment of the provisions on the Northern Territory criminal code; and • the impact on, and attitudes of, the Aboriginal community. Page x Preface Conduct of the inquiry On 16 November 1996, the Committee advertised the reference in The Australian, The Northern Territory Leader and The Canberra Times, inviting interested organisations and individuals to lodged submissions to the inquiry. A similar advertisement was placed in the Norfolk Island Islander. The Committee also formally invited approximately 200 individuals and groups to lodge submissions or to bring the inquiry to the attention of colleagues. The Committee requested that submissions be lodged by 12 December 1996. Submissions In response to this invitation, the Committee received 12,577 submissions from every State and Territory in Australia and from several overseas countries. Details of the submissions are available in volume 2 of this report. The response to this parliamentary inquiry has been unprecedented. The Committee understands that previous topical inquiries such as Aircraft Noise in Sydney and Child Support received 5,000 and 6,000 submissions respectively. A statistical analysis of the 12,577 submissions appears in Appendix 1. Public Hearings Public hearings were convened as follows: • Darwin 24 January 1997 • Canberra 13 February 1997 • Canberra 14 February 1997 A list of organisations and individuals who gave evidence at these hearings appears at Appendix 2. Two participating members of the Committee organised an open public forum on the Bill in Darwin on 23 January 1997. Other members of the Committee attended and a transcript was taken. The Committee subsequently resolved to incorporate this transcript as part of the oral evidence it received. Structure of the Report The Committee's approach to the inquiry and the structure of its report reflects the fact that the Senate referred the Bill to a committee having legal and constitutional matters as its focus. The report recognises, however, that these issues are part of a broader debate that embraces moral, philosophical, ethical and social issues. In Chapters 1 and 2, the Committee sets out what the Bill does, its history, and the main features and history of the Northern Territory law, the Rights of the Terminally Ill Act 1995, which gave rise to the Bill. Page xi In the remainder of the report the Committee addresses different aspects of the question whether the Commonwealth should exercise its constitutional power to enact the Bill.