COMMONWEALTH OF

PARLIAMENTARY DEBATES

SENATE

Official Committee Hansard

LEGAL AND CONSITUTIONAL LEGISLATION COMMITTEE

Reference: Laws Bill 1996

FRIDAY, 14 FEBRUARY 1997

BY AUTHORITY OF THE SENATE CANBERRA 1997

Friday, 14 February 1997 SENATE—Legislation L&C 247

SENATE Friday, 14 February 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 on 13 and 14 February 1997 Participating members: Senators Brown, Bob Collins, Colston, Coonan, Cooney, Ferris, Harradine, Heffernan, 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 8.25 a.m. Matter referred by the Senate: Euthanasia Laws Bill 1996. SOMERVILLE, Dr Margaret, Professor in the Faculty of Law and Faculty of Medicine, McGill University, Montreal, Canada CHAIR—The committee is continuing its inquiries into the Euthanasia Laws Bill 1996. Our next witness is Dr Margaret Somerville, who we are linking up with in Canada. I understand that Dr Somerville is now on the line. Dr Somerville can you hear me clearly? Dr Somerville—Yes, I can. CHAIR—Present here are myself, Senator Chris Ellison, a senator from , chairman of the committee; Senator Jim McKiernan, a senator from Western Australia who is deputy chair of the committee; Senator Brian Harradine, a senator from ; and we will be joined shortly by other senators who have been participating in these hearings. You are our first witness for today. I welcome you and thank you for giving your evidence. Would you please make an opening statement to the committee. Dr Somerville—I am resident in Montreal, Canada, but I am an Australian citizen. My current position is Gale Professor of Law and also a Professor in the Faculty of Medicine at McGill University. I am also the Founding Director of the McGill Centre for Medicine Ethics and Law. I have been involved in research, teaching and public work, particularly media work, in areas of medicine, ethics and law for over 20 years. I publish quite widely in the field. I have had a particular interest in euthanasia for the last six or seven years. CHAIR—Is there anything further you would like to say, by way of an opening statement? Dr Somerville—Perhaps just to summarise where I come from on this, because I do usually instruct my audiences that I think it is only honest for us all to put on the table what our own personal stance is on this issue. My own stance is that I think it is a very bad thing for society to legalise euthanasia. In other words, I am anti-euthanasia. Perhaps I should explain why I have come to that conclusion.

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One of the questions that I asked myself in researching this area was: why are we looking at legalising euthanasia now—right now—at the end of the 20th century? If you think about the condition of the person who wants euthanasia and the conditions that are advocated by people who believe that legalising euthanasia would be a good thing, the strongest case for it is: you have a person who is terminally ill, they are suffering, they are a competent adult and they know what they are doing, they request euthanasia, they consent to it and they want to die—and we are able to kill the person. There is nothing new in any of those factors, yet our type of society has prohibited euthanasia for at least 2,000 years. So I think we have to ask: why have we suddenly thought that this might be a good idea? I believe that the factors that are influencing this are very broad societal factors, even though what we normally see and debate are very personal individual factors. The reason that we debate through the individual is partly to do with the fact that our modern public square is television. You can put a dying person on television. I was in Australia a few weeks ago. I saw the woman who had the skin cancer. Your heart goes out to that woman and you can think, ‘Well, gosh, if I were in that situation, maybe that is what I would want too.’ We had exactly the same thing here in Canada with the most courageous, wonderful young woman dying of amyotropic lateral sclerosis, Lou Gehrig’s disease. She could not breathe. She could not swallow. She wanted euthanasia. That is a very powerful pull on all of us, whatever our position on euthanasia, towards thinking that, if it were to be legalised, these would be just the sorts of cases where that is what you would do. Yet I still believe that this would be a tremendous mistake for society. And taking this stance does not mean that you are not sympathetic to those people. The reason I believe this is because you look at the most fundamental norm or value on which our types of societies are based it is that we do not kill each other. No matter how compassionate and merciful your reasons for carrying out euthanasia, it still alters that norm that we do not kill each other to one where we do not usually, but in some cases we do. I simply do not think we can afford to do that because of what it would do to societal values. So it is not just because I am worried about abuse of it euthanasia were implemented, which is where a lot of people place their argument. They say, ‘Let’s put very stringent safeguards.’ I think it is inherently wrong to do it, so it is not a question of safeguards. It is only when something is inherently right that you then say, ‘Let’s make sure that, being inherently right, it is always used rightfully.’ So I am not even into that. I think it would be inherently wrong for us to do this, and that is why we should not do it. I would also add that—there is so much that one can say in this area, and I am sure you have heard a great deal of it—we have to be very careful with definition. I think there has been a very unfortunate and, I must say, at least in certain instances in North America, intentional blurring of the distinction between allowing someone to die when that is the right thing to do, because we have no right to impose treatment on them or to continue treatment, and calling that euthanasia and then saying, ‘It doesn’t matter how the person dies. What’s the difference between withdrawing a respirator and giving a lethal injection?’ I think there is a world of difference between those two situations and we have to be very careful to analyse and show those differences. The issue is not if we die; we all eventually die. Life is a lethal condition. The issue is how we die. There is one way of how people die that we have never permitted—that is, a physician,

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 249 in particular, kills them. Yet that is what we are thinking of doing in euthanasia. That is what you have done in the . As well, this blurring between suicide and is another example of the same blurring of distinctions to make something seem acceptable by association with something else. It is not that we do not find suicide unacceptable, but we do not criminalise it. I think it is right not to criminalise suicide, but there is an entirely different moral order involved when it is solely the person themselves. When you institutionalise this, moreover, particularly when you legalise it, you make it part of your fundamental societal values structure. There are many reasons to oppose euthanasia. One other thing I would like to add is that I am the strongest advocate of pain relief that you can imagine. In fact, I believe it should be a criminal offence to fail to give adequate pain relief to people. I also believe people have an absolute right to refuse treatment. I do not think, however, that you should say that because you like to call that a that means that they have a right to be killed. There is a very big difference between the fact that we all eventually die and whether somebody else is going to kill us. CHAIR—Thank you, Dr Somerville. Senator , representing Tasmania, has just joined us. May I start the questions by asking: is there no moral difference between, on the one hand, withdrawing or withholding treatment or administering a pain killer that may lead to death and, on the other, ? We have had evidence from Dr Helga Kuhse, Mr Peter Singer and various others who advanced the so-called moral equivalence argument, saying that there is no moral difference. What is your view? Dr Somerville—I think there is a major moral difference, but where the confusion can arise is that you can actually postulate an instance of euthanasia that is withdrawal of treatment. An example would be a case that we had here in Quebec of a young woman who had had irreversible Guillain-Barre syndrome. It left her totally paralysed, including her breathing muscles. She was on a respirator. As it happened, she wanted the respirator withdrawn. After lengthy hearings the Quebec Superior Court agreed—this has formed a precedent that is being used quite widely in Canada—that people have the right to refuse treatment even if immediately they will die. She immediately died when the respirator was withdrawn. Indeed, the court even ordered that she be given proper access to sedation and pain relief so that she did not suffer during the withdrawal of the respirator, which I think is appropriate too. Let’s just assume that that young woman had said, ‘I want to stay on this respirator.’ In some of our hospitals, when we decide that there is no chance of recovery for a person, we do withdraw respirators, on the basis that that treatment is futile—not because we think we are committing euthanasia. But here you have a competent young woman who, let’s say, said, ‘I want to stay on this respirator.’ If we withdrew that, that could be euthanasia. If we said, ‘Your life isn’t worth living; we think you shouldn’t live’—in fact, it would not just be euthanasia, it would be murder for us to do that. So you can think of situations like that. When a person says, ‘I don’t want treatment,’ the legal basis of their right to refuse that treatment is what is called the right to inviolability. It is their right not to be touched, without their consent to being touched. Our law recognises that in the crime of assault, and in the tort of assault and battery. That is what we call a negative content right. That says, ‘I have a right against you invading my body.’ Let’s assume, for instance, that an old person has a gangrenous leg—as indeed happens. They say, ‘I don’t care, I want to die with my leg on. I know I am going to die.’ You cannot operate on them if they keep refusing that, certainly not under our law here now in Canada.

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They have the right to refuse treatment. But when they ask for euthanasia and they say, ‘All I am doing is exercising my right to autonomy’—which is a different right—‘and in order to do that, I want you to do something to me: ‘kill me,’ that is a positive content right. I do not believe that that right exists. The problem is that the right to inviolability is labelled by these people as a right to autonomy, and then they say that autonomy can be either refusing something or requiring something, therefore these are the same. The two rights are the same if they are both autonomy. It is just that in one you say, ‘I do not want the respirator,’ in the other you say, ‘I want the lethal injection,’ therefore you cannot distinguish between them. But that the right to refuse treatment is not the right to autonomy primarily, it is the right to inviolability, at least that is what I believe it is. Indeed, in our Canadian Criminal Code there is an express provision that says that nobody may consent to have death inflicted upon them, and the consent has no impact on the liability of the person who inflicts death. That tells you that you cannot do that. It is not a legitimate part of a right to autonomy to require that death be inflicted on you. CHAIR—Thank you. We have now been joined by Senator Tambling, a senator from the Northern Territory, and Senator Cooney, a senator from . Senator McKiernan now wants to ask you some questions. Senator McKIERNAN—Dr Somerville, welcome to the hearing. Dr Somerville—Thank you. I wish I were in Australia. Senator McKIERNAN—Does euthanasia occur in Canada? Dr Somerville—No. Senator McKIERNAN—Not at all? Dr Somerville—Do you mean: do we have examples of where people have done it or do you mean is it allowed under the law? Senator McKIERNAN—I mean: does it happen? Dr Somerville—We have had prosecutions. Senator McKIERNAN—I am sorry. We are talking about euthanasia. My question was about euthanasia. Dr Somerville—Yes, I realise that. We have doctors who have killed people, yes. They have been prosecuted. Is that the question? Senator McKIERNAN—That is in part. I am asking: does it happen? Then I was going to ask: are there prosecutions arising from it, and are they cases where the law is overlooked and the practice is allowed to happen, as it seems to happen in a number of other countries like Australia? Dr Somerville—First of all, euthanasia is against the law in Canada. We had a Supreme Court of Canada case where a woman requested euthanasia. That is the person I referred to earlier who had Lou Gehrig’s disease—The case was Rodriguez v. the Attorney-General of Canada. Sue Rodriguez claimed that the prohibition in the Criminal Code on assisted suicide was constitutionally invalid under the Charter of Rights. Our Charter of Rights, which is overriding legislation, legislates a right to life, liberty and security. She said this prohibition on assisted suicide interfered with both the security of her person and liberty. The Supreme Court of Canada had previously held that the prohibition on abortion in the Criminal Code was constitutionally invalid under that section, which is section 7 of the Charter of Rights of Canada. The Supreme Court split five-four, and said that the law against any

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 251 assisted suicide was constitutionally valid. Therefore, euthanasia and physician assisted suicide are clearly illegal under our Criminal Code in Canada. We have a federal Criminal Code, so that applies to the whole country. Whether any physicians have given a person a lethal injection with the intention of killing them, yes, that has happened. In fact, in one case the person who wanted euthanasia announced to the media that he was going to do this, and there was a whole media furore about it. I cannot give you the exact facts of this. I think in the end this did not happen and he went off and, I believe, was one of Dr Kevorkian’s people—one of the people that Dr Kevorkian killed in the United States. We have had other cases. We had one here in Montreal where a young physician was desperately trying to look after a man who was dying of AIDS and in enormous pain. It was midnight and they ran out of narcotics. He did give this man a lethal injection, mainly because he did not know what else to do to relieve the pain. The lesson there is that it is criminal that we have a hospital where there are not sufficient narcotics available to relieve people’s pain. I heard about two weeks ago that the Chief Coroner of Ontario learnt that some physician deliberately gave an overdose to somebody. I believe there is a prosecution pending against that doctor. As well, we have a very highly publicised case where a man in Saskatchewan called Mr Latimer killed his seriously disabled 12-year-old daughter by putting the hose from the exhaust of a truck into the front of the truck. He killed her with carbon monoxide. He has been convicted of second-degree murder with a mandatory sentence of a minimum of 10 years in gaol. But the Supreme Court ruled last week that there has to be a new trial because there was jury tampering. Senator McKIERNAN—Thank you for that. It was not specifically addressing the question, but I will move on. Dr Somerville—I am sorry. Can you explain the question? I do not understand it. Senator McKIERNAN—On the last evening of our hearings, we were given evidence that some 30 per cent of the deaths that occur in Australia are medically assisted. We have seen earlier surveys which give different percentages. We have got evidence of surveys from other parts of the world where we are told euthanasia does happen. I was just wondering what the circumstance was in Canada. Dr Somerville—But you know that term ‘medically assisted’ is a much criticised term. I think if we look at all of it— Senator McKIERNAN—I actually did not ask about ‘medically assisted’; I asked about euthanasia. Dr Somerville—What do you mean by ‘medically assisted’? Senator McKIERNAN—I actually did not ask about ‘medically assisted’ so, in communication over this vast distance, that is perhaps where our difficulty is. Your submission to the committee seems to accept what we on the committee have termed ‘the slippery slope’ argument, that once euthanasia is legalised we will then start down a slippery slope and have ? Dr Somerville—No, that is not my main objection to it. My main objection to it is what it would do to the fundamental paradigm on which we base our society and to that norm which it contains namely, euthanasia that we do not kill each other. Whether or not you get a slippery slope probably depends on how well you can monitor it. However, there is very recent work out of the Netherlands that shows a very major slippery slope in terms of the types of people that they are now using euthanasia on. I am sure you have heard about all of these cases. The

LEGAL AND CONSTITUTIONAL L&C 252 SENATE—Legislation Friday, 14 February 1997 most recent one was a three-year-old boy with Down syndrome. There has been a case of a 53-year-old woman whose only clinical illness was serious depression, subsequent to some really awful life events: losing two children and— Senator McKIERNAN—Yes. Time is a problem here. What I was going to ask and did not get around to is this: there were two studies that have been done in Holland—is the five- year time span on those studies a sufficient time to reach the conclusions that seem to have been reached on the matter of the slippery slope? I am putting the individual cases to one side, because the individual cases tend to be very emotive. Dr Somerville—Are you talking about the Remmelink commission? Senator McKIERNAN—Yes, indeed. There are two of them, one in 1990 and one in 1995. Dr Somerville—I cannot answer that. I am not skilled in survey statistics and cannot say whether that is sufficient time to be scientifically valid. I can tell you about an incident that happened when I was chairing a debate on euthanasia at an international palliative care conference. The Dutch physician who spoke for euthanasia was Dr Pieter Admiral. He got up—this was in 1989, which is a lot longer than five years ago—and he said, ‘I personally have carried out over 1,200 cases of euthanasia.’ Even if one agrees with euthanasia, one would hope that it would be carried out by a physician who has a long-term close personal relationship with the person on whom the euthanasia is performed. That is meant to be the basis of the Dutch guidelines, if you read them. Apparently, that is not what happens. I was told that in some Dutch hospitals there is one doctor designated to carry out euthanasia. It is not necessarily the person’s personal physician who does this. I have recently been trying to find out whether that is correct or not, but I do not have evidence for it. I tried to check with Dr Herbert Hendin, who has just written a book on the Dutch experience. He is in New York and is the President of the American Suicide Foundation. He said that he had not been able to verify whether or not it was correct either. But, if you do—as I hope you do not—eventually decide to legalise euthanasia, there are a lot of things that we need to know about this. Senator HARRADINE—In your writings you refer to ‘ethical intuitions’ and ‘medical intuitions’. What exactly do you mean by those terms? Could you elaborate to the committee? Dr Somerville—There is quite a lot of work coming out at the moment about the sole reliance on reason as what we call, in general, a way of knowing for ourselves as humans. There is a lot of work being done in ethics and other areas as well, to try to recapture some of the other ways that we as humans can know things. There are two books that have been published recently by John Ralston Saul. One is called Voltaire’s Bastards, which is about the dominance of reason in western philosophical thinking and the other one—which I would recommend to everybody—is called The Unconscious Civilisation. The thesis is that, as well as reason, some of the ways that we as humans know include: what we can call memory, which is history, and we cannot just ignore history—we are not the first people that existed or faced these problems; commonsense; ethical intuition, which means deep psychological indications of what is right and wrong—I am not an expert on this, but there are sophisticated articles being published in this area within the ethics context; moral imagination and creativity; and ethics. So there are multiple ways in which we can know what we ought to do. Euthanasia is an interesting case study in this respect, because, if you look at euthanasia simply through the lens of reason, it comes out as a reasoned response to approve of it. It is logical, cognitive and rational to do so. You referred to Helga Kuhse and Peter Singer: they are analytic philosophers who are very wedded in their tradition to almost entire reliance on

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 253 reason as the way of knowing. If you only apply reason, you will come out with a pro- euthanasia stance. However, I suggest that when we apply these other faculties, including history or memory, and ask why for 2,000 years we have not done this and what our ethical feelings are about killing somebody else—and we use the straight language of killing—I believe we will come to different conclusions. Senator TAMBLING—I have one question relating to the Canadian experience and it relates to indigenous people. Can you advise if there have been any special or unusual cultural overtones to the debate or to your experience of indigenous Eskimo or other people of original ethnic association with Canada that is distinctly different to the debate elsewhere in Canada? Dr Somerville—In relation to euthanasia? Senator TAMBLING—Yes. Dr Somerville—Not that I know of, no. Except that one of the things which we are enormously concerned about here at the moment is the extremely high and increasing rate of suicide in what we would call the first people’s population and in the rest of our community as well and particularly among young people. There is a great deal of concern. I was at a conference two or three months ago in Toronto, which was the annual meeting of the Canadian Suicide Prevention Society. They asked me to speak on whether I thought that the legalisation of euthanasia would tend to inhibit suicide prevention strategy. I think it could. They were worried it could because they felt, putting it very simply, that if you give the message—which you necessarily give with euthanasia—that the solution is to kill yourself or have someone else kill you when you have unbearable problems. You are giving the message, ‘Why not solve your problems with suicide?’ Essentially, these young people—and other people who commit suicide—feel that the solution to their problem is suicide or killing themselves, wiping themselves out. So there is concern about that. Senator ABETZ—Thank you, Dr Somerville. Previously, you had indicated to you the so- called Australian survey which indicated that almost one-third of all Australian deaths were preceded by a medical decision explicitly intended to hasten death. In relation to ethics and medical understanding of these matters, is it accepted that an act is different from an omission in relation to life, so that the turning off of the life support system is in fact different to administering a substance designed to kill the person? Dr Somerville—That is a really difficult question. The law sometimes makes a distinction between acts and omissions. But if there is a pre-existing duty then there isn’t any distinction between an omission and an act. An omission can just as easily give rise to legal liability. To come back to what I explained before, the difference between administering a lethal substance and turning off the life support has to do with the reasons that support each of those actions and the ethical and legal analyses behind them. Where the person is competent and has told you they do not want this anymore or has left advanced directives that say, ‘If I am in this state, I do not want to be touched in this way. I don’t want this treatment,’ or their legally valid surrogate decision-maker says, standing in the shoes of this person—what we call substitute judgment—‘This is doing more harm than good and there is no ethical or legal obligation to continue this,’ then I think you turn off the life support system. At a certain point we humans, with much sadness, become unable to support the lives of other people whom we care for and love because there is just nothing more we can do. Life ends. That is very different from walking up to somebody and saying, ‘I am going to kill you’— even if the person says they want that—‘and I will give you a lethal injection.’ You have to see the difference in those situations. If you just do it on a rational basis, as I said before,

LEGAL AND CONSTITUTIONAL L&C 254 SENATE—Legislation Friday, 14 February 1997 maybe you can argue rationally those two things are the same: the person ends up dead. If you do it on any of the other bases that I suggested to you I think they are as different as the oldest saying in Australia: chalk and cheese. Our intentions and our reasons make an enormous difference morally and legally to what we do. Senator ABETZ—Do you see a difference between an intention not to prolong life and a decision to hasten death? Are they two different concepts? Dr Somerville—They fit exactly into the same type of analysis outlined above—they are different. Senator ABETZ—Can I just interrupt you? The Australian survey made no distinction between acts and omissions and doctors’ intentions to not prolong a life or hasten death. As a result we have this outrageously inflated figure which is being used by some warriors in the euthanasia debate to assist their cause. I was just interested to hear your view. Dr Somerville—I have been looking at these surveys for a very long time. That confusion is a technique for getting euthanasia approved. It was a technique that was consciously utilised. What happens is that there is a lack of definition of what euthanasia is and a lumping of all these things in together. In one case in Washington State, where they had a referendum on this—they went to the people—the question on the referendum said: do you agree with rights to refuse treatment, adequate pain relief treatment and physician assisted suicide? And you had to vote yes or no on the package. That is the sort of thing that is appalling. All of these things have extraordinarily important differences between them. Senator BROWN—Is death nature or God’s act of killing people? Dr Somerville—I don’t think it has to be either; I think there is a difference between death and killing. My definition of killing is when somebody else intervenes to destroy you, to end your life. Senator BROWN—If you do it to yourself it is not killing? Dr Somerville—When you intervene entirely by yourself to end your life I think morally that is a different situation from when someone else kills you. Senator BROWN—The situation in the Northern Territory, where Dr Nitschke has been providing a machine which people utilise themselves to ask a series of questions and then press a button, is different to the euthanasia you would be opposed to? Dr Somerville—No, I would put that in the same category because I think that is just adding a finesse to what I propose. But if somebody is pro-euthanasia and they are not brave enough to actually carry it out themselves—they feel the need to put technology between themselves and the act of killing—I would query why that person was doing that. We know a lot about what technology does psychologically. We use it to distance ourselves from the person. We use it so as to feel not responsible for the consequences that ensue from what we can do. We can say, ‘The technology caused it, I didn’t.’ But in that sort of situation you describe I think that is a facade. Senator BROWN—Are you aware that that is because the patients have asked to be able to determine that process themselves. Dr Somerville—No, I was not aware of that. Senator BROWN—Well, they have. Dr Somerville—That was an uncoerced request or was it suggested? Senator BROWN—Yes.

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Dr Somerville—Completely uncoerced? Senator BROWN—Yes, it has been a request from the patients. Dr Somerville—That is interesting. I would be very interested to see some further research on that. Senator BROWN—As an ethical matter, if I determined that I wanted to forgo three months of suffering which could not be allayed—beyond pain, indignity and awful circumstances—and I wanted that option of being able to terminate my life, do you feel you ought to be able to intervene and prevent me from having that option? Dr Somerville—If you were just going to commit suicide and you did not require me to be involved in it at all—and I don’t think the situation you have had in the Northern Territory is a situation in which the physician is uninvolved—then I would think your commission of suicide is your personal act. I certainly would not criminalise suicide or the person. The other thing you have to look at here is that what you have done in the Northern Territory by legalising euthanasia is that you have institutionalised that and the killing involved. You have held that up as one of the norms of your society. You don’t just have a situation of the individuals concerned—the people who die and the physicians who are involved; and we also have to think a lot about those individuals—you also have an impact of that at the societal level. This says, as a value and norm at the societal level, that in certain circumstances we do accept one person killing another person. Not only that, we accept that the person who does the killing is one of our physician healers, the people who normally carry the value of respect for life, and of trying to treat illness and prolong life. That is a very serious change to very important symbolism. Senator BROWN—You don’t mind the institutionalisation, though, of the denial of the right of an individual to make that choice and to seek the aid of a physician to allow her or him to carry out that choice in the most dignified way possible for them? Dr Somerville—I don’t think I understand your question. Do you mean because they do not object to suicide? Senator BROWN—Let me put it again. Institutionalising euthanasia is surely no different to institutionalising the denial of euthanasia. Dr Somerville—You do not institutionalise the denial of euthanasia. What you institutionalise is that anybody who kills somebody else in your society commits murder. You institutionalise the fact that you do not kill. It just so happens that, because euthanasia is killing, it is covered under the broad institutionalisation of the value of not killing each other. That is precisely why I am against euthanasia—because it detracts from that as an absolute value. What you also have to think about here is that if you institutionalise euthanasia you are going to have to teach your medical students to kill. Do you really want to do that? Senator BROWN—The fact is that it is an option that is available for those who want to and an option not available for those who do not. What we have found in Australia is that that is happening anyway without any reference to it at medical school, any skilling or any expertise at all. It is a broadscale fact of life in Australia. Senator COONEY—You are talking about the institutionalisation of euthanasia, and you are against that. Do you have any problems with the situation where juries return verdicts of not guilty in situations where many in the community would consider that perhaps it should have been otherwise?

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Dr Somerville—I may have trouble with the actual result—I might say, ‘I wish they hadn’t done that’—but I do not have any trouble with juries having the power to do that. The reason I would not change that discretionary power is that this one of the safeguards of our society and one of the deeply important mechanisms that we use, I suppose you could say, is to temper justice with mercy or sometimes to change social policy. Senator COONEY—So that, in fact, if you had a hard case which nevertheless fell into the category of unlawful euthanasia and the case was run and the jury said, ‘Not guilty,’ that is a fact of life about which you would not particularly want to do anything. Dr Somerville—That is right. I completely accept that and I think that that should be maintained. But you do have to realise that if you get a major sweep of those sorts of cases occurring often and juries continually returning that verdict, that is the way in which society changes its norms. That could happen with euthanasia. I do not know whether it will. I hope it will not, but it could certainly happen. ACTING CHAIR (Senator McKiernan)—Dr Somerville, on behalf of the committee, I thank you for the assistance you have given the committee, both in the written submissions and articles that you provided and particularly for joining us this morning and aiding the committee in its inquiry into this matter. We do search far and wide for evidence on Senate committees, and here is a living example of how far and wide we go. Dr Somerville—Thank you very much. I wish you good courage and good wisdom in your decision. Short adjournment [9.11 a.m.] CARNELL, Ms Kate, Chief Minister, Australian Capital Territory Legislative Assembly, London Circuit, Canberra HUMPHRIES, Mr Gary John, Attorney-General, Australian Capital Territory Legislative Assembly, London Circuit, Canberra KEADY, Mr Timothy, Chief Executive, Australian Capital Territory Attorney-General’s Department, City Walk, Civic, Australian Capital Territory PEEDOM, Mr Michael, Chief Solicitor, Australian Capital Territory Government, Canberra ACTING CHAIR—The committee has received a submission from the Australian Capital Territory government and, in accordance with a resolution of the committee, 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 which 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 one of the ministers. I now invite you, Chief Minister, to make an opening statement and, indeed, other officers, if you care to have them join you. Ms Carnell—Mr Chairman, members of the committee, I thank you for the opportunity to represent the ACT before this committee. It is not usual for a head of government to appear before a committee such as this, but what is at issue here is nothing less than the democratic rights of the citizens of the ACT, a matter of great concern to our government. It is important enough for the ACT government for me to be here, and for the Attorney-General to be here as well, to represent in the strongest terms our concern at the proposed passage of the Euthanasia Law Bill. Senators will have read our submission. I will not repeat it now. My

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 257 intention is to emphasise the long-term effects which passage of this bill will have on the integrity of the ACT system of self-government. We do not have legislation relating to active euthanasia, as the Northern Territory does, but we will be affected by this bill. It seems that members of the federal House of Representatives, in focusing on their own attitudes to euthanasia, have either ignored or discounted the collateral damage that would occur to territories by setting a precedent for limiting our self-governing powers. It would be particularly unfortunate if this precedent were to be followed in the Senate, the states house, and no less the territories house—we are represented here too. The role of the Senate is that of guardian of the constitutional rights of the states and, to no less an extent, the territories, and where, of all places, we should be sympathetically received when arguing for the same rights for our citizens as those enjoyed in other states. In asking you to consider our rights, I note that the ACT Legislative Assembly unanimously rejected the Euthanasia Laws Bill. I am not going to talk about the merits or otherwise of euthanasia. The critical issue is the attempt by federal parliament to amend the self-government legislation of the territories, thereby depriving citizens of democratic rights enjoyed by other Australians. Euthanasia is a very divisive issue. Every individual has his or her own view. The fact that a government in another part of Australia legislates on such a difficult social issue is no ground for federal parliament, which has no basis in votes, to override that legislation. Plainly the bill is inconsistent with self-government. It ignores the fact that the Australian Capital Territory is a body politic under the Crown with the same social and economic responsibilities as the states and the Northern Territory. If passed, the bill would ensure that the people of the territories have less democratic power than the people of the states. It would mean, for example, that people in the ACT would have fewer rights than their neighbours living in Queanbeyan. There would be some matters about which we would not be able to even consider making laws whereas over the border, 10 kilometres from here, they would have the right to contemplate such laws, even if they eventually rejected them. The Euthanasia Laws Bill is highly discriminatory in its effect. Its passage would mean that the roughly half a million people living in the territories would be deprived of the democratic rights enjoyed by other Australians simply because of their place of residence. There may have been some initial resistance by Canberrans to self-government. I have to say that is a slight understatement—there was significant resistance to self-government by Canberrans. Nonetheless, in 1989 the federal government passed self-government legislation and thrust it upon them, and it was accepted. The ACT was given fiscal responsibility for those matters that were also the responsibility of the Australian states and the Northern Territory. The Commonwealth claimed, when announcing self-government: It is the social right and responsibility of the people of Canberra to shoulder their own good government, as do other Australians. Canberra should pay its own way, as the rest of us do. The quickest way of doing this is to put the ACT on the same footing politically and financially as the rest of the nation. Senators from all parties at that time expressed the view that it is quite inappropriate that territorians should be treated on a different basis than people in other states. The Common- wealth expressed the intention at the time to ensure that ACT citizens have ‘a fair go’ and to remedy the fact that under the then current arrangements they—we—have no say in the decisions that affect their everyday lives. That was the reasoning behind thrusting self- government upon us.

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Having accepted self-government, it seems that ACT residents may not be able to exercise it. The ability to govern ourselves could be overridden merely because somebody in the federal parliament takes exception to our laws. We would always be subject to the possibility that the federal government would override our validly made laws at any time. This does potential violence to the rights of people who are being told that they are responsible for themselves financially but politically they are subject to the preferences of the federal parliament on matters for which those members are not their representatives and therefore are not answerable to the ACT community. It leads us to ask: what does self-government really mean? Does it mean picking up the bills but not having any particular powers? What will the effect of the precedent this bill sets be on our future? Can we expect that in the future, whenever our legislation exceeds the boundaries of the social expectations of federal parliament, it will be overridden? What makes us so different from the states that we are not able to govern ourselves without interference from the federal government whenever it sees fit? The Euthanasia Laws Bill smacks of paternalism. It seems that because we are small in number it is acceptable for our citizens’ rights to be overridden. Or is it that we are not considered mature enough somehow to make our own laws? I point out that the ACT is made up of some of the most highly qualified people in the nation, many of whom are your advisers. Collectively, we are more than capable of making our own decisions and our own laws. Again, the ACT has every capacity to make our own laws. I have to say that over the years since self-government structures have evolved and they have matured. There may have been times in history when the ability of some of our institutions was in question, but thankfully those days are behind us now. The ACT takes its place in national fora on all matters that come before the federal parliament, and it is simply untenable to say that the Commonwealth will again speak on our behalf. It is not insignificant that the ACT has been in the vanguard of views in the liberal position. People outside the ACT may have been annoyed by our approaches to social issues which have done nothing more than reflect the views of our own local community. It is something to do with democracy. It is inexcusable, however, for federal parliament to set aside the conditions for self- determination which it—you—created by imposing its will on the territory whenever members may decide it is convenient to do so. This is more so where there are no guiding principles and no recourse to any overriding concerns of national consistency in such an approach. We are not here to assert that the Commonwealth lacks the residual power to override the ACT. Like the reserve power of the Governor-General to dismiss a federal government, it is a given. I believe the question your committee must address is whether this is the occasion to take the unprecedented and critical step of altering the constitutional position of the territories by permanently reducing their—our—legislative capacity. However, if the federal parliament has now reconsidered the position of the territories, if it now takes a different view of the rights and responsibilities of the territories, the time has also come to reconsider the respective financial obligations of the Commonwealth government and the territories, because surely the old catchcry of ‘No taxation without representation’ is as relevant here as it was two centuries ago in Boston. It was intended that the power conferred on federal government under section 122 of the constitution would only be exercised in exceptional circumstances when self-government was established. It was surely not contemplated that there would be two classes of citizens with different rights of self-government. I would remind senators of the statements quoted in our

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 259 submission in relation to exercise of powers under section 122 of the constitution. Justice Gaudron said in the High Court: It is arguable that the relationship requires that section 122 be interpreted in a way that secures to territorians the same basic rights that the constitution confers on other Australians, unless the contrary is clearly indicated. The Commonwealth Attorney-General’s Department has said in relation to self-government that: It would be unthinkable for (a power) to be taken back unless some catastrophe came . . . violent bloodshed or something occurred...ortheLegislative Assembly broke up in disorder. That has not happened yet, it is all right; although there are some days, I have to tell you! A joint committee of the Commonwealth parliament has noted: Whilst the Australian Parliament can undo what a previous Parliament has enacted in respect to constitutional development in its Territories . . . 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. Again, it has not happened. In a democratic society, conventions stabilise the distribution of power and give citizens an expectation of what may or may not be done within the political process. This bill erodes public respect for the existing distribution of power. Members of the federal parliament, and, before federation, of the British parliament, have always put aside their personal feelings, regardless of the issue involved, to recognise the democratic convention that the right of a duly elected local parliament to make laws in accordance with its collective conscience by, for, and of the people of that community should be safeguarded. The proposed Euthanasia Laws Bill does not seek to establish a new law for all Australians. It would create a special constitutional limitation for a small proportion of Australian people made for the people of the territories but by the representatives of other jurisdictions. Discrimination on the basis of residence in a particular state or territory should be considered abhorrent. Some people might say that there is a precedent for the Euthanasia Laws Bill in the legislation passed by the Commonwealth government in response to anti-gay criminal laws in Tasmania. However, the Commonwealth Human Rights (Sexual Conduct) Act 1994 is not a precedent for the sort of law that has been proposed here. While it had the effect of overriding Tasmanian law, the sexual conduct act was enacted under the Commonwealth’s foreign affairs power conferred by the constitution. It was made in accordance with democratic conventions and principles by and for all the people of Australia. While it has the effect of overriding Tasmanian law, it would have a similar effect on the law of any other state or territory had contrary provisions existed in those states or territories. That act was made by Australian representatives to apply to all Australians and, therefore, is non-discriminatory. As I pointed out earlier, the ACT government is also concerned that, if the bill were passed in its current form, it would have a number of serious and unintended consequences. It would at least create uncertainty as to the status of the law relating to palliative care in the ACT. You have the arguments in our submission on that matter and I believe you have heard, and will hear, arguments that indicate the uncertainty of the law in this respect. However, our main concern here today is that the bill should not be passed at all as it is an erosion of our democratic rights, whatever its context. If it were to be passed, we would feel obliged, of course, to consider any options we may have to challenge it in the courts.

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This is the message I leave with the committee today: I hope that, as a result of our submission, my opening statement and comments that will be made from now on, you can see that, from an ACT perspective, we feel very strongly on this issue, not because of the issue of euthanasia but because we believe that as a self-governing territory we are expected to take responsibility for ourselves financially, which is very difficult at the moment, I have to say. On that basis, we must also have the right to pass laws when they are the laws that our voters, our constituents, want. ACTING CHAIR—I am pleased you drew attention to the fact that it is not often that a chief minister or a premier appears before a Senate committee and that was worth noting. I was going to make note of it myself. I also note that it is the second occasion in a matter of weeks that your Attorney has appeared before a Senate committee. That is something that does not happen too often. Your covering letter to the inquiry said that the submission was supported by a number of members of the ACT legislature. It also noted that it had not at that point been endorsed by the ALP—a Mr Paul Osborne. Have there been any developments in that area? Ms Carnell—No. Mr Osborne has determined not to vote either way on this. He has abstained from this particular issue. That is the reason the decision in the assembly to oppose the Euthanasia Laws Bill was unanimous. Mr Osborne abstained. ACTING CHAIR—That was my next question. The Northern Territory assembly has also discussed this bill and they carried a resolution which they forwarded to the Australian parliament in the form of what they call a ‘remonstrance’. How has the ACT legislature told the Commonwealth parliament of its views? Ms Carnell—Similarly, we have forwarded a resolution passed unanimously in the assembly. We were also present with the Northern Territory when the remonstrance was presented in this place. ACTING CHAIR—I understand that at the same time you were adopting your decisions you also adopted the report of the very powerful and influential Senate Scrutiny of Bills Committee— Ms Carnell—That’s right. ACTING CHAIR—of which Senator Cooney is an erstwhile member. Senator ABETZ—Can you tell me what current restrictions apply to self-government in the ACT? Mr Humphries—The Self-Government Act, of course, sets out the terms of self-government and there are some constitutional restrictions in that. That legislation amounts to the ACT’s constitution and, like any constitution, it sets limits on what can be done. Senator ABETZ—Who provided you with that constitution? Mr Humphries—The federal parliament, of course. Senator ABETZ—What restrictions on self-government are set out in the Self-Government Act as it applies to the ACT? Mr Humphries—There are some things over which the ACT parliament is not empowered to make decisions. Senator ABETZ—Can you enumerate them for us? Mr Humphries—They include power over corporations and power to classify materials for the purposes of censorship. There are some other restrictions.

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Ms Carnell—I think it is important to note that the first two were issues at the time of self- government. The Commonwealth was looking at consistent laws right across Australia, so the last thing they wanted to do at that stage was to create differences when they were looking at creating sameness. Senator ABETZ—It would be fair to say that there were other areas that the federal government was pursuing to get uniform laws around Australia but thought that the ACT would undoubtedly comply. But with a fairly minute area, such as classification of films, they undoubtedly thought the ACT might take a different approach which would then impact all around Australia just because one territory held out. Can I also ask you, isn’t there another important restriction in your self-government act: that is, the federal executive can veto any piece of legislation and any regulation determined by the ACT assembly? That is correct, isn’t it? Mr Humphries—The Governor-General, in counsel, can overrule legislation, yes. Senator ABETZ—In practical terms, what does that mean? The Prime Minister and a few members of cabinet going along to the Governor-General recommending that your laws be vetoed? Mr Humphries—I imagine that the reserve power exists for the federal government to do that. I would hope that they would exercise that power in some sort of orderly way— Senator ABETZ—Of course. But it is the federal executive. Mr Humphries—Yes. Senator ABETZ—As a matter of principle, if we were going to overrule something that the ACT was doing, do you think it is more desirable that it simply be taken by two or three individuals, as in the federal executive, or by the whole federal parliament, in which, of course, you people have five representatives? Mr Humphries—If you are asking me whether we would rather be mugged by the whole parliament than by a small number of members of the ministry, I suppose we would probably not choose to make a choice between those two things. The point we make is that undoubtedly the federal parliament has the power to pass this legislation—we do not argue with that. But we say that is undesirable, does great damage to the federal system and is inconsistent with the principles of self-government. Even with that reserve power, it has not been exercised since self-government, and I very much doubt that it would be. Senator ABETZ—I understand all that, but we heard a very emotive submission to us about the rights of the ACT as though you had unfettered self-government without any controls from the federal parliament. You have now just told us about all those restrictions. This question is to the Chief Minister or to the Attorney. You told us that the reserve powers of changing the situation should only be used in exceptional circumstances. Could you think of a more exceptional circumstance than one dealing with the life and death of Australian citizens? Is it as important as classification of films or the Corporations Law? Ethics, morality, community concern—what is more important? Mr Humphries—I would have thought that there are any number of laws that the ACT Assembly could pass. The entire body of the criminal law arguably consists of matters of greatly more significance than this particular area. We are led to believe that the legislation that the Northern Territory has passed affects potentially a very small number of people in any given year. I do not for one minute discount the significance of the effect on those people,

LEGAL AND CONSTITUTIONAL L&C 262 SENATE—Legislation Friday, 14 February 1997 but I would say in terms of impact that there are a number of things which could be more significant than this legislation. Senator ABETZ—Yes, but changing the whole law and ethic in relation to the right of another person to intentionally kill another person, albeit with consent, is a quantum leap in the ethics that we as a society have applied to the value on human life for the past I do not know how many hundreds of years. I find it astounding that you would put such a quantum leap into the same category as classification of films or Corporations Law. Can’t you see that no matter what side of the euthanasia debate you are on, you would have to say that that sort of shifting of ethics in a society would have to be categorised, to use the Chief Minister’s terms, as ‘an exceptional circumstance’? Ms Carnell—That sort of change in morality must come from the people. If you believe this is a quantum leap—there would be many people who do not, and many arguments that you would have heard to suggest that it is not a quantum leap at all—it really depends on what side of the debate you come down on. Changes in people and in the morality of a community must come from that community. What are accepted as community norms must come from the community itself. They must not ever be imposed by parliaments. Senator ABETZ—Why won’t you people give them the right to classify films? Mr Humphries—Because the federal government of the time wanted to engineer a nationally uniform scheme for classification of films, particularly videos, at that point in time. I know of no nationally uniform scheme that is proposed in respect of euthanasia and, with respect, the federal parliament has no jurisdiction to create a nationally uniform scheme in this area. That is the point of our submission. If it were part of a national uniform scheme we would be much more sanguine about what is being proposed, but this is discriminatory against just two or three territories. Senator ABETZ—But you would accept that there are significant constitutional differences between territories and states? Although, I am always tickled—I suppose that would be the appropriate word—when I read in the submission ‘the ACT and other states,’ and when I hear the Chief Minister talking on TV from time to time and saying, ‘The other Premiers and I,’ putting herself in the same category as a state Premier— Ms Carnell—It is funny—COAG does that. Senator ABETZ—And the ACT as a state. There are fundamental constitutional differences. The founding fathers, supported by the people of Australia in a referendum, said, ‘The federal parliament shall have jurisdiction over the legislative frameworks for the territories.’ In fact, your very constitution is a creation of the Commonwealth parliament. Mr Humphries—I will pose to you a case which I think would illustrate the point we are making. You have pointed out the theoretical powers that the federal parliament has over the ACT. AT least up until the passing of the— Senator ABETZ—Can I just interrupt you? You do accept that they are practical? You accept that, don’t you? Theoretical— Mr Humphries—Yes, I accept that they are powers which exist, but the argument we are putting is that the extent of their exercise is a matter for debate— Senator ABETZ—Of course. I accept that. Mr Humphries—Just as the power of the Governor-General to dismiss an elected government is a matter for question in the community as to how far that should go in its practical exercise.

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Senator ABETZ—If I can cut you short, I think we are agreed that those sorts of powers would only be exercised in exceptional circumstances. Mr Humphries—Indeed. Senator ABETZ—I do not have any argument with that. Ms Carnell—Can I make one point, then let Gary go on. Senator, the ACT was given, shall we say, equal rights or full status by the Loans Council in 1994. The ACT sits on COAG as an equal member of COAG with the other states. So to assume for a moment that somehow the ACT status at that level—at the Premier/Chief Minister level—is somehow different is simply wrong. Senator ABETZ—But the Australian people have not voted to change the constitutional structures. Just because a few people have got together to make administration somewhat easier with finances, et cetera, does not change the constitutional fabric of Australia, does it? Ms Carnell—I am just making the point that both the Chief Minister of the Northern Territory and I sit on loans councils, on COAG—all of those things—as equal members, and your comments indicated something different. Senator TAMBLING—Unlike Senator Abetz, I am not wedded to being tied to the constitutional parameters that were created in the 1890s, nor do I take paternalistic or sanctimonious attitudes to this issue. Obviously time has changed and lots of constitutional issues have moved on. I would like to ask two questions. The first relates to the reserve power. Did I hear the Attorney-General say that it has never yet been exercised? Flowing from that, back in 1974 when self-government was being contemplated for the Northern Territory and also in the lead-up to self-government in the ACT, I think the federal government and the federal Attorney-General’s Department gave the advice that once self-government were granted, it would be a breach of fundamental convention for the Commonwealth to withdraw or take away any of the grants of responsibility in self-government. Do you accept that that was the intent of the federal government and the federal Attorney-General’s Department at that time? Mr Humphries—I think it is absolutely clear from the debates in the parliament at the time of the granting of self- government—at least in the case of the ACT—that the legislative power of the Legislative Assembly of the ACT was established at the time of self-government. The limitations the Commonwealth wished to impose at that stage on our law making power were set out in the Self-Government Act. To again quote the Attorney-General of the day: It would be unthinkable for (a power) to be taken back unless some catastrophe came . . . violent bloodshed or something occurred...ortheLegislative Assembly broke up in disorder. I believe that those sentiments reflected the tenor of the debate in the whole parliament at the time. What they were saying, I believe, was that they wished to reserve things to the federal government, but beyond that the territory has the power to enact laws in the same fashion as states—for the peace, order and good government of its citizens. Senator TAMBLING—I turn to my second question. You are in a different situation from the Northern Territory. The Northern Territory has embarked on and is very clearly—I think with the acceptance of all principal parties in the Australian federal scene—on a path to statehood. That means that inevitably the legislation we are considering—the Andrews bill— will be tossed aside in a couple of years time when the Northern Territory will exercise its full rights under statehood and will be able to reinstitute the legislation anyway. You are not proposing to head to statehood. The ACT and Norfolk Island—the Indian Ocean territories are not picked up at all at this point—will then be in the unique situation of being singled out

LEGAL AND CONSTITUTIONAL L&C 264 SENATE—Legislation Friday, 14 February 1997 as one group of Australians more discriminated against than even the Northern Territory, which will inevitably get past this problem in a couple of years time. Do you have any concerns in that regard with respect to the ACT? Mr Humphries—I think we do, and I think that we would agree with that view of the discriminatory nature of the legislation. I would pose another circumstance to members of the committee. Supposing in 10 years time debate on euthanasia had progressed and some states had decided to embrace that concept. I might say that I am personally opposed to euthanasia. But let’s say for argument’s sake that other states had embraced it. What does the federal parliament do? Some states have euthanasia, some states do not. But the territories are unable to enter into this debate—assuming that you have not got statehood in the Northern Territory— because decisions on these matters, decisions being made by state representatives in state parliaments, cannot be made in the territory parliaments because of that reservation of power to the federal parliament. The federal parliament would have that— Senator McGAURAN—You are building up a straw case. Mr Humphries—With respect, I am highlighting the fact that by reserving this power to the Commonwealth—a power which is exercised in every equivalent situation by state parliaments—you create a rod for the collective back of the Senate and the federal parliament in that it must decide at what point— Senator McGAURAN—It is a scenario you have just revved up for 10 years hence. Mr Humphries—It could occur, Senator. I ask you to consider what would occur if that were the situation. Senator McGAURAN—A lot of things could occur. What about the situation as it is today? ACTING CHAIR—I would prefer it if we reverted to the practice we had adopted yesterday evening and today whereby when there is a question to the witness, the witness is given a chance to respond, then somebody else is called, rather than having an across the table argument. Senator McGAURAN—I was just hoping they could keep their discussions realistic. Senator TAMBLING—Ms Carnell, at the end of your comments you said that you probably foresaw some form of legal challenge. Do you think the ACT would contemplate that and that there are structural inefficiencies or weaknesses in the Andrews bill on which you could base a constitutional challenge? Ms Carnell—We would have no choice but to look at all options that were available to us at that stage. Gary, would you like to make a comment? Mr Humphries—I will make the comment that I think litigation—whether it is constitutional litigation or other litigation—arising out of the legislation is almost inevitable. We believe that the legislation is sufficiently ambiguous as to create uncertainty about the operation of our Medical Treatment Act in the ACT. That is an act designed to reinforce the protocols of the palliative care practices in the territory. Doctors and nurses involved in this area would undoubtedly be uncertain about the application of the law as a result of this legislation and would be, I think, much more likely to be involved in litigation of some sort as a result of the passing of this federal act. Senator TAMBLING—Can I draw your attention to the supplementary information that the Northern Territory government has made available to this committee, subsequent to the hearings in Darwin, in which I think that is very actively canvassed also. Therefore there will

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 265 be not only psychological implications from a subsequent challenge but also very serious financial implications to all administrations—federal and territory. Thank you, Mr Chairman. Senator HARRADINE—Schedule 2 of the Euthanasia Laws Bill relates to the ACT. Mr Humphries—Yes. Senator HARRADINE—If the Commonwealth parliament amended the bill, so as to remove schedule 2, would that satisfy you? Mr Humphries—For our own sakes, we would be satisfied. We would not, as Australian citizens, be particularly happy about discrimination being effected on the Northern Territory or Norfolk Island. But for our own sakes, we would be happy about that. Senator HARRADINE—So you would not agree then with legislation in the Common- wealth which would, in your words, discriminate? Ms Carnell—We would not agree. I think Mr Humphries put it appropriately. From the perspective of the ACT, we would not then be affected, but we find it abhorrent that any Australian should be treated differently from other Australians. We do not believe that two classes of Australian citizens are appropriate. Senator HARRADINE—I have heard what you have said and I have read what you have said. Ms Carnell—On that basis, to use your words, how could we agree? Senator HARRADINE—I note in your submission, on page 23 in our book that, in voicing your opinion on the Euthanasia Laws Bill 1996, members of the ACT Assembly are not concerned with the merits or otherwise of euthanasia. Mr Humphries—That is correct, Senator. There would be a variety of— Senator HARRADINE—But, please, you appreciate that we have to be. We have to be concerned about it, don’t we? We have to be concerned about the merits or otherwise of euthanasia when considering this measure. Mr Humphries—Senator, if you are concerned about a life and death matter— Senator HARRADINE—I am just asking you a question. I am just asking: do you agree that we should be concerned about the merits or otherwise of euthanasia? Mr Humphries—You should be concerned, as a citizen of Australia, to hold an opinion. But, with respect, you should not be concerned to impose your views on the self-governing citizens of the territories. Senator HARRADINE—But have you read the submissions that we have received? Mr Humphries—Yes, I have, Senator. Senator HARRADINE—All of them? Mr Humphries—No, Senator. Senator HARRADINE—Have you read the one from Chips Mackinolty from the Northern Territory? Do you know Chips Mackinolty? Mr Humphries—No, Senator. Senator HARRADINE—Did you not hear or were you not advised of his evidence given to us last night? Mr Humphries—No, Senator. It is not our inquiry, I am sorry. Ms Carnell—How could you have read it from last night?

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Senator HARRADINE—That evidence from a person said that the very existence of the Northern Territory law was a threat to the health of all of the Aboriginal population in the Northern Territory. Ms Carnell—I would have to say I have heard statements from others to the contrary. Senator HARRADINE—So you are entering the debate. You have read his evidence? Ms Carnell—I was saying that I have heard, personally, comments made by other members of the Aboriginal community that have been not along that same track. Senator HARRADINE—You have. This is a very important thing because I suggest that not only we but also you should consider this matter very carefully. We in the federal parliament have very special responsibilities imposed upon us by the people of Australia in respect of Aboriginal matters. When we are confronted with a very serious claim made by a person appointed by the Northern Territory government to educate the whole of the Aboriginal people about the effect of the Northern Territory laws and respected within the Northern Territory, and that person says that whether the legislation is good or bad for us as white fellas within our own cosmology is immaterial, the very existence of the legislation poses an unacceptable risk to the health of Aboriginal Territorians who may delay or refuse to access health care because of fears they have of the legislation. Those fears are deeply embedded in Aboriginal world views. Put simply, it has the potential to lead to premature deaths amongst a group of people whose life expectancy is already unacceptably low. How can you say in your submission that you are not concerned with the merits or otherwise of euthanasia? Can’t you understand that we need to be concerned about the evidence that is brought to us on this matter? Mr Humphries—Senator, I simply ask you to consider our position as a self-governing territory. Senator HARRADINE—I have asked a direct question of you. I am considering your question. I do understand your position except that I do not understand and do not believe, frankly, that you should come before us without having taken the trouble to read and examine the evidence that has been produced to us. If what you are saying is we excise schedule 2, that is another matter. CHAIR—In all fairness, Mr Mackinolty’s evidence was only received by the committee the day before yesterday, Senator Harradine. Is there any part of Senator Harradine’s question you have difficulty with? Mr Humphries—I would simply say that I respect the sincerity and the strength of views of other people making submissions. But we also feel very strongly that it is our decision as a self-governing territory to decide on matters on the welfare of people in our jurisdiction. The special case of Aborigines in the Northern Territory is another matter. I agree that the Commonwealth has special jurisdictional responsibility for Aboriginal people. But it has no equivalent head of power in respect of at least other people in the ACT’s case that would justify the making of a law that would override their wishes, through their elected representatives, to enact such laws. Ms Carnell—I think it is important to note that if this sort of legislation came before the ACT—and it has before—then the issues such as the views of Aborigines in our community and others would be taken on board by us, as the body that is empowered by the community to legislate on their behalf. That is the whole basis of democracy.

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The important part, again, is that these sorts of issues must be able to be debated at the community level. They must be the sorts of issues that members of the community can make presentation to their elected representatives on. What you are saying is that is not all right in the ACT or Northern Territory. They have no rights whatsoever. Senator HARRADINE—No, no. I am not saying that, Chief Minister. May I respectfully ask you to read the submission and understand what our responsibility is? Ms Carnell—Can I make a point here? This is not our inquiry. This is your inquiry. We are putting a position forward on behalf of the ACT—a very well thought through position. We all have our own views on euthanasia, one way or the other. We believe that the position we have put forward is in the best interests of the people of the ACT and the best interests of the community, and very much in line with the views, by the way, of our voters here in Canberra. That is our job. Senator HARRADINE—Would you be happy if we knocked off schedule 2? Mr Humphries—We would be happier than we are at the moment. Senator HARRADINE—I just want to know. I have two different views. CHAIR—They would be happier. Senator BROWN—I can reassure you that the Mackinolty evidence given to us was very narrowly focused. But it did, amongst other things, elicit the fact that the Aboriginal people in the Northern Territory have an acceptance of people being able to at least terminate their own lives without medical interference. That is accepted quite widely among Aboriginal people and there is a fair concern about the intrusion of western medicine and other western laws on the ability of the Aboriginal people to exercise their own right to their own laws. I would draw this— CHAIR—Order! I am going to give this committee some idea where we are going today. Senator Brown, you are taking much too long with your question. You are making a statement. I have to give you warning that I will ask for the cancellation of the Australian Catholic Bishops Conference and the of Organisations for Voluntary Euthanasia. This inquiry will not benefit if we have to ask them not to attend today. If we continue prolonging matters, we will have to do that because we have to catch planes at 5 o’clock this afternoon. I would ask all of you, and the witnesses, to give brevity your utmost attention and, when asking a question, please avoid making lengthy statements. Senator BROWN—Thank you, Chair. Having said that, I want to turn to the final part of your submission because it is very important. You have said here that health carers could be subject to prosecution under the criminal law requiring them to rely on the discretion of the DPP not to prosecute or on the compassion of the court. Both prospects may bring unwanted pressure on the health caring professions, nurses and doctors included. To what degree do you think this threat is going to hang over the heads of health care professionals in the territories as against those in the states, if this Andrews bill gets through? Mr Humphries—I think the effect would be very marked on the provision of palliative care in the ACT. Indeed, this process itself and the outcome of the legislation would accelerate the attention of workers in this area to the legal implications of what they do. Our advice is very clear, as we say in the submission: there are areas of uncertainty in the language used in the legislation that would result in doubt being thrown on the effect and the validity of the Medical Treatment Act in the ACT. I have also read the advice by the federal Attorney-General’s Department delivered to this committee which confirms the considerable uncertainty about

LEGAL AND CONSTITUTIONAL L&C 268 SENATE—Legislation Friday, 14 February 1997 the effect of the legislation. I would simply say to members of this committee that, whatever the committee’s views about the legislation, it is essential that they make laws which are precise and understandable from their very outset and not leave the territories in the position of not knowing exactly what the parameters and the effect of the legislation are on them. Senator BROWN—Is the Andrews bill precise and understandable? Mr Humphries—Absolutely not, Senator. Senator BROWN—Does that ‘absolutely not’ opinion relate to core parts of the Andrews bill? Mr Humphries—I think that could be said, yes. The reference to intentional killing, for example, in the legislation, is a matter which the High Court recently in the Crabbe decision has drawn attention to with respect to its uncertainty. I think the court made reference to the two possible interpretations of what that phrase means in respect, I think in that case, of the law of murder, and pointed out that it was not in a position or did not at that stage choose to make a choice between those two particular definitions of that phrase. That phrase or a very similar phrase is used in this legislation. It is essential to the core of that legislation. Senator BROWN—Why do you think that is not defined in the bill? Mr Humphries—I suggest it is very difficult to define what ‘intentional killing’ means. There were two references in the Crabbe case to possible definitions but I think it is possible for even one of those definitions to suffer from some imprecision and, if it does, then there is necessarily some problem as to its application and interpretation by people who are not necessarily lawyers—by ordinary health workers in the system who have to decide how far they can go and stay within the realm of the law. Senator BROWN—It is on the public record that a member of the assembly has the intention of introducing legislation to deal with similar matters to the Northern Territory legislation. Is there any feeling of concern, leaving aside the merits of that legislation, whether the Andrews bill is going to cut across the rights of the ACT legislature to be able to deal with such legislation? Mr Humphries—There undoubtedly is, Senator. Every member of the assembly, with one abstaining, joined in a resolution to oppose the Euthanasia Laws Bill, not because all members opposed or supported euthanasia—far from it. On the last occasion when the assembly was put to a vote on this issue most members voted against euthanasia, but members all felt that this imposed the views of the federal parliament on the ACT assembly where it felt it had the jurisdiction and the right to make a decision on behalf of its citizens. So, yes, there is very strong concern in the assembly from all quarters that this legislation would override the prerogatives and the privileges that are conferred on the territory. Senator BROWN—Is there any feeling that there is a fast forward occurring here that may even be motivated by the prospect of legislation in the ACT? Mr Humphries—I imagine that Mr Moore has been certain to bring forward his legislation in the ACT in order to highlight the need for the assembly to be able to exercise any powers it has quickly before they are withdrawn. I doubt that will be possible, frankly, but obviously there is a concern that these things are happening very quickly and, in the view of the assembly at least, without adequate consultation with the parties concerned. CHAIR—Thank you Senator Brown. Senator Cooney. Senator COONEY—The last time, most members of the assembly voted against euthanasia.

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Mr Humphries—Yes. Senator COONEY—If the Andrews bill was passed, does that mean that the Commonwealth could vote in favour of a euthanasia regime in the ACT, which would be contrary to what the assembly has voted for. Mr Humphries—Yes, indeed, that is theoretically possible, Senator. Senator COONEY—And could the Commonwealth introduce, say, capital punishment into the ACT? Mr Humphries—Indeed it could, yes. Senator COONEY—The big problem seems to be that the Commonwealth has power, and you have agreed with that, but what you say is that it should not exercise it because— theoretically, I suppose the British Parliament could undo a lot of the legislation and that is it. But I think, in his first play, Shakespeare had a line which said, and we have quoted this before: ‘He who holds the kingdom holds the power.’ I suppose that the United Kingdom does not hold the kingdom in Australia, but the Federal Parliament holds the kingdom in the ACT. I am trying to find out by what principles we should not use that. You have said people in Australia should not be treated differently, but they already are, aren’t they, because one state can pass one law and another state can pass another law. Indeed, on the issue of capital punishment, there were some states that had it and other states that did not. So I am just wondering how strong a point that is? Mr Humphries—Senator, on the question of the exercise of power, as I said before, we do not quibble or argue with the power of the Federal Parliament to pass the law. We would say that it is a question of the wisdom of the exercise of that power. Members need to ask what damage they will do to the federal relationship, which does now exist between the territories and the Commonwealth. It did not exist 20 years ago, but it does now. They should ask themselves what damage would be done to that relationship in those circumstances. Senator COONEY—In the end, doesn’t that mean that the Commonwealth has got to say, ‘Even though the law is written in a particular way, the reality is that the two territories now have to be treated as states.’ That is how the argument fundamentally goes. Mr Humphries—I would just like to quote what the Federal Attorney-General said at the time the legislation to enact self-government was passed through the Federal Parliament: While the Australian Parliament can undo what a previous parliament has enacted in respect to constitutional development in its territories, this has not happened in Australia’s history. It would be politically unthinkable and would only be done in times of revolt or disorder. I think, with respect, that he stated the view of the whole parliament. It is true that different states can enact different laws and, as a result, one might say that different citizens in different states enjoy different rights to each other. But that is not to say that, therefore, they are discriminated against. The territories and states, in that sense, are meant to be self-governing. If they make a law with respect to a particular right or privilege of a citizen, it is at least made democratically by that jurisdiction—not by people who are not accountable to that electorate. That is the distinction that exists in this case. Senator COONEY—I will tell you my problem and then you can comment. If you are going to have a democracy that works in a fair way I think you have to have more than simply a majority of citizens agreeing to a thing before it becomes right. There has to be, to make it work, some concept of the rule of law. I suppose the bill of rights is another name for that

LEGAL AND CONSTITUTIONAL L&C 270 SENATE—Legislation Friday, 14 February 1997 law; in any event a manifestation of that. What worries me about the particular act in the Northern Territory is this: it is unique in the world. There is something like it in Holland but it is pretty much unique in the world. If you are going to look at something that says it is a rule of law that should not be broken, on the evidence this seems to be one of those things. It says you should not terminate life, even where people consent. If it is a rule of law and it is one of those overarching principles, if as a federal parliament you have the power to stop that law being broken perhaps you should use it. It is a bit like being on the football field. Somebody playing his first game of league football suddenly got the ball in his hands and he said, ‘What am I going to do with it?’ He did not actually expect he would get it until he got it. But once he had it in his hands he had to do something. The federal parliament is a bit like that in my view. It has this issue which well may be a manifestation of the rule of law. Can I just throw the ball away or should I do something about it in protection of this overarching principle? Mr Humphries—It really is a question of how one approaches the principle at work. As that quote I have just given you from federal parliament’s debate indicates, there are circumstances where the federal parliament would be justified in intervening to uphold the rule of law. The case I put to you is that this is nowhere near that. We are a long way from being in disorder or from abrogating our responsibilities to our citizens. Legislation has been proposed in the Territory before. When it was proposed and put before the parliament there was strong debate in the community about it; but almost nobody threatened to move into upheaval or threatened the assembly with marching on it with an intent to burn it down because of this exercise of that power. The question of whether this is not within the power, and would not be expected to be within the power, of elected democratically elected representatives needs to be asked. I hesitate to mention this because, as I have said, I am an opponent personally of euthanasia, but the opinion polls I have heard quoted from time to time all emphasise that, apparently, a majority of people believe that terminally ill people ought to be able to choose at what point they die. So it emphasises the fact that, whatever parliaments might debate, there is at least a strong vein of sentiment in the community that such laws ought to exist and ought to be capable of being passed by parliaments. I take the view personally that they should not do that. They should ignore that kind of view. But to suggest that for a parliament to enact what a majority of its citizens might actually want in an area that is within its legislative competence is somehow a breach of the rule of law or goes beyond the expectation of what the parliament should be able to do is a difficult argument to sustain. Senator COONEY—I can follow that. On the other hand, with Australia as a whole—and I do not know how many voters are in the Northern Territory; I think it is around 100,000—it would help a bit if there had been a unanimous vote. But it was a fairly close run thing and, when Neil Bell brought it back, again it was a near run thing. There is a lot of worry and concern about it, both ways. When you look around the world, this is unique. It does make you wonder whether or not, since it is a fairly small group of people, this is one of those unique occasions. The ACT is a fairly small group of people—but, of course, highly intelligent—within the Australian context; and it is obviously affecting the Australian context. If there was an example of euthanasia being fairly prevalent around the world then you would have to go along with it. But that is not the situation. Mr Humphries—No, it is not. I suppose there is always legislation that some jurisdictions do not enjoy with others, that is unique or, arguably, the beginning of a trend. Someone has to break the ice. I hope that is not the case but it is possible. Supposing our Territory were

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 271 to lift restrictions currently placed on the performance of abortion. Someone argued that that affects many more lives, albeit unborn lives, than this legislation before the parliament. Would the federal parliament feel the need to intervene to prevent us from liberalising abortion laws? Indeed, the Territory did liberalise abortion laws a few years ago and made the regime somewhat more liberal than in some other jurisdictions in Australia. There have been proposals, from time to time, to liberalise it further. At what point does the federal parliament decide this is unacceptable? Senator COONEY—That is a good example but the fact is you have a prevalence of abortion throughout the world. It does not seem to be unique; it seems to fit into things. There is not a prevalence of euthanasia. Somebody put to me—I did not expect him to—that he supported euthanasia because he was against abortion. I asked him why that was and he said that with euthanasia people have a choice; with abortion, if you accept the foetus is human— and I know there is argument about that—there is none. That is not a bad distinction. But on the other hand you do have a prevalence of abortion throughout the world and of laws allowing it. But with euthanasia you do not; this is a fairly unique law. Mr Humphries—It may be that the law itself in the Northern Territory is almost unique. I am not sure of the situation in the Netherlands. I think the point needs to be made that dealing with a law on euthanasia is one thing; dealing with the practice of euthanasia, or at least of medical intervention or lack of intervention in the process of dying, is quite another. You may have seen the article this morning in the Morning Herald, which purports to show that a third of all Australian deaths over a 12-month period came about through an explicit medical decision to hasten the patient’s death, according to a study in the Medical Journal of Australia. It may be that no state or territory, apart from the Northern Territory, has legislation explicitly allowing euthanasia but, clearly, in every state and territory decisions are made almost on a daily basis about the extent of medical intervention or lack of intervention in someone’s death. It is for us to evacuate the field, to say that the Territory should not be able to legislate in this area. I would respectfully submit that the legislation does that: it throws into doubt our medical treatment act as well as the euthanasia law, if it comes forward. Otherwise, it leaves a very important issue unresolved in a way which it is not responsible of the federal parliament to do. Senator COONEY—I was just wondering whether it was being looked after. Perhaps it is being looked after at the moment by the jury system. Why do we need to interfere? Mr Humphries—The point has been made very strongly to us that the lack of certainty in this area is neither in the interests of health workers nor in the interests of the patients themselves. I believe there is a compelling case for the parliament not simply to push a particular problem to one side and say that if we do not legislate on something it will not be a real problem. It is a real problem. It is a real issue. If the legislation now before you is passed, you will be responsible for deciding on the ACT’s management of those sorts of cases. What are you going to do for us? How are you going to resolve the questions of people’s choices and medical practitioners’ problems in those sorts of circumstances? Senator COONEY—I think that is a fair question, which I will not answer. CHAIR—Before you go, I just want to clarify that quote you gave from AG’s. You were referring in fact to a quote contained in the report on constitutional development from 1974 where it stated the Attorney-General’s Department said: . . . this has not happened in Australia’s history, that it would be politically unthinkable and would only be done in times of revolt and disorder.

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That is the quote you were referring to, isn’t it? Mr Humphries—Yes. CHAIR—When you said earlier ‘AG’s’, you were not referring to Daryl Williams the Attorney-General, were you? Mr Humphries—No. I confess to having misled the committee, Senator. It is true. That was an Attorney-General’s Department opinion. CHAIR—Thank you very much Mr Peedom, Mr Humphries and Mr Keady for coming today. We do appreciate your assistance. We do have some witnesses waiting from the Attorney-General’s Department. We would ask them if they would be good enough to wait just a little bit longer. We do have some witnesses from the AMA who we are recalling from last night. That evidence should not take too long. [10.21 a.m.] NESPOLON, Dr Harry Michael, Director, Health Services and General Practice, Australian Medical Association, 42 Macquarie Street, Barton, Australian Capital Territory CHAIR—I welcome back Dr Nespolon. Thank you for coming back. The committee has thought about matters. I understand the secretary has been in touch with you and that you are now agreeable to give your evidence in public. Is that right? Dr Nespolon—Yes. I would just like to say thank you for the opportunity. Now that the article is in the public domain, I am able to give this evidence in public. I want to make it clear that the reason I wanted to do it in camera was not for any particular reason other than to maintain the protocol that an unpublished article should be left unpublished until it actually comes out. Senator COONEY—You want it to be fair. Dr Nespolon—Absolutely. CHAIR—I think the committee appreciates that. Dr Nespolon—I just want to make a few points. I really do not want to take up too much time. I realise that you are under pressure. First of all, has the committee got a copy of the article yet? Senator McKIERNAN—We do have a copy. It was provided to us on an embargoed basis. CHAIR—I can confirm that we have been given this paper and asked not to release it until 17 February, but it has not been circulated to members. Does that put you in a difficult position? Dr Nespolon—Other than not giving the senators an opportunity to read the article. As I said last night, I would ask you to take these comments on board when it actually is able to be read. I am happy to table the article if it would help. CHAIR—I think it would. Thank you very much, Doctor. I think you have explained your position of last night very well. Dr Nespolon—The points I want to make are brief. I do not know what evidence the authors of the article gave last night obviously because was it was in camera. This article talks about end of life decisions in a group of patients which are very different to the group of patients that the Rights of the Terminally Ill Act are going to apply to. These patients are patients who are, literally, at the very end of their lives.

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When you do get a chance to read the article, you will notice on page 194 there is a table. At the very bottom of the table almost 100 per cent of the patients, but not quite, all died within a week of that decision being made. The reported cases of those who have already used the Northern Territory act are patients whose life expectancy, although defined, would have been much longer than that period. I am only relying on newspaper reports. I can only go on that. The other point I want to make is that whenever you read an article it is just as easy to read the top abstract and take that as read. I implore you to read the article yourself—it is not that difficult an article to read in the sense that it does not contain a lot of scientific mumbo jumbo—and make your own conclusions. The editor of the Medical Journal of Australia says in his editorial, which I have not distributed, that this does not make the case for or against euthanasia and that you can make an argument either way, depending on your view about euthanasia. I suppose the point that I would like to make would be that, as has come up a few times in evidence, it is very difficult to write a law that is going to regulate everything. I think being law-makers you realise that you cannot put all issues in writing, especially issues like those of the Rights of the Terminally Ill Act. One of the criticisms of the act is that it extends beyond what it is aiming to do. I think Senator Collins made the point last night that with the patient that Senator Brown described he would have no problems—and I might be misquoting him—with the application of the euthanasia act but that he would have difficulty with a patient who is HIV positive or has got AIDS who potentially has anywhere between 10 to 12 years of life and to whom theoretically the act could apply. One last point is a question that the AMA was allowed by the authors to put to the doctors who answered this article, and I started my introduction with it last night. Only nine per cent of doctors felt that the law in their state actually impeded or in some way influenced the end of life decision that a particular patient made. CHAIR—Thank you, Doctor. Bearing in mind the time, could I ask that questions be brief. Senator McKIERNAN—Would a person determined as having HIV be able to access the Rights of the Terminally Ill Act in the Northern Territory? Dr Nespolon—I must say that the last time I read the act was virtually when it first came out several months ago. They do have a terminal illness. Every patient who is HIV positive will die. That is our understanding of it at the moment. They live longer but they will all die eventually, so they do have a terminal illness. Senator TAMBLING—That is not necessarily a qualification to be eligible under the Rights of the Terminally Act. There are very strict and stringent safeguards, checks and balances that would be required as part of that process. CHAIR—Do you agree with that statement? Dr Nespolon—No, I do not agree with that statement, because we need to keep thinking that terminally ill patients are not always in physical pain; there is also a psychological aspect to severe illness. If you talk about things like dignity, there are some people whose illnesses make them feel bad. For example—and I am not being disrespectful to people who have HIV—some people may feel very uncomfortable about the way they contracted their HIV, which would lead them to have that degree of distress that, as I recall, under the act would be enough for them to qualify under the act.

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Senator ABETZ—You have no doubt read the article. You are aware of the fact of 36 per cent not responding to the survey. Combined with that, are you aware of Professor Baume’s previous paper published in 1994 in the medical journal, in which he basically says—I don’t think I have it with me so I hope I do not do an injustice to him—that there is a greater likelihood that the non-respondents would be anti the proposition being put. And he followed up the non-respondents and in fact found that, whereas of those who voluntarily responded to his survey 59 per cent were in favour of a particular proposition he was putting, when those who did not respond were followed up personally only 18 per cent were in favour of the proposition—as juxtaposed to 59 per cent. He therefore drew what I think we would all agree was the proper conclusion: that those who did not respond are substantially more likely than not to be negative to the proposition put. So if you have 36 per cent of the numbers surveyed not responding, given that they are likely to be biased against the proposition being put, how do you think that has impacted on the results of this survey? Dr Nespolon—It is impossible to design a perfect trial. To give the authors their due, they actually point out in their discussion that there is always a problem with mail sent questionnaires. I must say, however, that a 64 per cent response rate is an exceptionally good response rate for any sort of questionnaire. If you look at national big response rates, they can be as low as five or six per cent; so it is a very good response rate. I did read the article yesterday but I must say it has gone from me a little bit—the earlier article by Professor Baume. That might be true, but I think you have to take the research on face value. They did spend a lot of time trying to make sure they got a very good stratified sample. It is impossible to have a perfect sample. You always run into problems where there will be groups of people who will either not want to or not respond to questionnaires that have been mailed, and that is just something that you have to accept. Depending on what side of the fence you sit on, you may want to follow your view of the non-responders. But to be fair to the authors, I think you have to take it at face value. It is a very difficult study to do. Senator ABETZ—But why should I draw any different conclusion than Professor Baume did in his 1994 study? He was concerned at the non-response rate, so he followed them up and found that those that did not respond were overwhelmingly against the proposition. What would have changed in the mind of doctors between 1994 and 1997? Dr Nespolon—I agree with your proposition but it depends on how persuasive you are. These are all bits of evidence, just like you are hearing over the inordinate hours that you are doing. Senator ABETZ—Of course. Dr Nespolon—You need to make your own conclusions about how persuasive particular articles are. Senator ABETZ—I accept that. Dr Nespolon—I wanted the opportunity to put the other side of this article. Senator ABETZ—Did you have the opportunity of looking at the questions that were asked in this questionnaire and the Dutch questionnaire to ascertain whether the comparisons being made are, in fact, appropriate comparisons? Dr Nespolon—I personally have not. This is a peer review article, so I presume that has been done.

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Senator BROWN—The earlier editorial said that you could make a case in either direction out of this paper. What is the case that the paper makes out against the euthanasia option? Dr Nespolon—Perhaps I can put it this way: if it is not broken why try to fix it? The argument that you can make from this article is that people in the community are getting the right opportunities to express their end of life decisions. I just want to take you back to what you are discussing, which is the Rights of the Terminally Ill Act. What you are doing is bringing back these decisions perhaps months or theoretically years before the actual death of the patient. Where that line is is up to the legislators. Senator BROWN—The case that you are saying could be made out from these figures is that the euthanasia option currently available through the services of medical practitioners without being codified is going okay. Dr Nespolon—I am not saying that at all. That is a value judgment. It goes back to the question about the law and what the law can do. To take the point that you have made, it is arguable that by codifying the law—if you believe in euthanasia and you accept that euthanasia is a right of a patient—there will be people who will fall outside of that law and may not have that option available to them. Senator BROWN—So you have a concern that people who are currently taking the euthanasia option might actually be restricted in their ability to do that were it codified. Dr Nespolon—That is an argument. I am not expressing it as my own personal argument. You put up a hypothetical case; I have returned it. Senator BROWN—Thank you for that. Do you accept, looking at this survey, whether or not the results are loaded because there was a 64 per cent response, that the practice of euthanasia is widespread in our community? Dr Nespolon—I think if you look at the article it says that 1.8 per cent of all Australian deaths were a result of euthanasia. I would obviously consider that not to be widespread. Senator BROWN—That figure in itself represents some thousands a year, doesn’t it? Dr Nespolon—I am not sure, to be honest. They actually do quote the figures at the beginning, but it would take me a few seconds to find it. But once again it is not an option that the vast majority of Australians are experiencing at the moment. Senator BROWN—But many thousands of Australians, nevertheless, each year are dying with that option, on these figures. Dr Nespolon—Yes, but I would also take you back to what the palliative care person, Dr Ravenscroft, said last night, that doctors are not always sure that they are actually euthanasing a patient. Senator TAMBLING—The breaking of protocol yesterday, where the AMA draft press release with an embargo clearly marked on it of Sunday, 16 February appeared together with the background briefing note from a particular perspective: did that embarrass your organisation in any way, or are you aware of any members of your organisation that contributed to that cowardly breaking of protocol? Dr Nespolon—I need to make it quite clear that the Medical Journal of Australia, although owned by the AMA, is totally independent. The AMA, other than financially through the corporate structure, has no effect on the publishing of the Medical Journal at all. If you look at the press release you are holding, it is actually from the Medical Journal of Australia, not from the Australian Medical Association. The MJA often publishes articles which are against

LEGAL AND CONSTITUTIONAL L&C 276 SENATE—Legislation Friday, 14 February 1997 the interests of the AMA, but is a peer reviewed, highly respected journal. It publishes what it feels it needs to publish and it goes through the usual protocols that a journal of this sort produces. So in that sense I need to make it quite clear that the AMA is quite separate from the Medical Journal of Australia. I am personally not aware of any member who has released this information earlier. I should tell you that the actual journal was posted yesterday morning and there will be some members in Sydney most probably who have received the actual journal today. The embargo you are talking about is a media embargo and, although not a journalist, I understand that these are not infrequently broken by the journalists, who have no connection with the Medical Journal or with the AMA. Senator TAMBLING—On the background briefing note, the person obviously had to have access to the wider information, and therefore their motives must have been very clear. Did it embarrass the AMA? Dr Nespolon—No, not in that sense. I think we have acted as responsibly as we can. We do get a copy of the journal before it is sent out. We keep it under wraps until it is released. No, we are not embarrassed in that sense of the word. Senator HARRADINE—Briefly, when were you made aware of the fact that, amongst others, Professors Kuhse, Baume and Singer were doing this survey? Dr Nespolon—It almost predates my coming to the AMA, but we were aware that this survey was being done because, as I understand it, it was being financed by the NHMRC. We were concerned as an organisation that we be given the opportunity to put some of our own questions to the people who were due to answer who were going to receive the questionnaire. So, before the questionnaire went out, I know we were aware of this research. It was public knowledge back then, I think. I am not sure. Senator HARRADINE—Were you involved at all, or were you asked by the NHMRC whether it was appropriate for your members to be asked questions on a survey conducted by very strong pro-euthanasia advocates? Dr Nespolon—I understand your concern, Senator, but— Senator HARRADINE—I am just asking a question. I have raised this matter in parliament, in respect of the money spent on it. Dr Nespolon—In answer to your question about whether the AMA would be concerned or not, it is important that people be allowed to ask doctors whatever questions they want. Senator HARRADINE—That was not the point. Why wouldn’t somebody more impartial be appointed to do the survey? Dr Nespolon—If I can answer it this way, there has been a concern that a few of the NHMRC working groups have not been impartial. In the past, the AMA has raised with representatives of the NHMRC the fact that the group of people doing these surveys need to be seen to be impartial. I am sorry, Senator, that is about the only way that I can answer your question. Senator FERRIS—A good deal of evidence arguing that people in the Northern Territory should have choice has come before the committee. Effectively, that means people in Australia should have choice about end of life decisions and that is one of the flaws of the argument about the Northern Territory bill. But, leaving aside the issue of bias, which other colleagues have raised, the final couple of paragraphs in the abstract here suggest:

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In 30% of all Australian deaths, a medical end-of-life decision was made with the explicit intention of ending the patient’s life, of which 4% were in response to a direct request from the patient. Overall, Australia had a higher rate of intentional ending of life without the patient’s request than the Netherlands. Conclusions: and this is the point I wanted to ask you to comment on— Australian law has not prevented doctors from practising euthanasia, or making medical end-of-life decisions explicitly intended to hasten the patient’s death, without the patient’s request. Surely that indicates that people are choosing to make this decision? The doctors are cooperating with it, and the patients are having choice about end of life decisions in Australia right now and have been for some time. Therefore, the argument that the Northern Territory legislation is giving patients a choice which they do not currently have is unsustainable, from this conclusion. Dr Nespolon—You put it much more eloquently than I did in answer to Senator Brown’s questions. As I say, you can conclude either that this is good for the euthanasia bill or against the euthanasia bill. I should also add that the largest group in this survey were not people who had a needle inserted into their arm and died. They were people for whom there was no active intervention. In other words, the people in the largest group were dying, and a decision was made by whomever not to treat. I think less than two per cent from this survey had any sort of active euthanasia or physician assisted suicide. Senator FERRIS—I have sought advice from a number of doctors on this issue. They have said to me that, if the Northern Territory law remains as it is, one of the difficult things that will arise is that it will codify these choices in a way that would make it a great deal more difficult for doctors to work outside the guidelines. That picks up the point that Dr Brown made a few moments ago. Do you have any comment to make on that? These people were all members of the AMA, I might say. Dr Nespolon—I agree with you. By codifying the law, you suddenly define what is right and what is wrong. By doing that, you limit the choice of patients, as I was trying to say to Senator Brown. CHAIR—Dr Nespolon, thank you again for coming before us. You have been of great assistance. [10.45 a.m.] BALKIN, Dr Rosalie Pam, Acting Senior Government Counsel, Office of International Law, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton, Australian Capital Territory DABB, Mr Geoffrey Preston Morrison, First Assistant Secretary, Criminal Law Division, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton MARRIS, Mr Frank Sidney, Acting Deputy General Counsel, Office of General Counsel, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton, Australian Capital Territory CHAIR—Welcome. The committee has received your submission and, in accordance with a resolution the committee has made 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. Would you like to make an opening statement?

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Mr Dabb—We are not representing any policy position on this piece of legislation. We are here to assist the committee on legal or constitutional matters that might arise. I was going to speak about certain criminal law issues that have been raised by certain of the submissions that I have read since we made our submission—which, by the way, was technically a note rather than a submission. We were not urging anything by way of a submission. Frank Marris is going to deal with any constitutional issues, and Dr Balkin is going to deal with the relevance of the external affairs power. She is an international law expert, as well as a constitutional expert. I have two points to make on the criminal law points, but I am in the hands of the committee. Do you wish to deal first with constitutional issues or criminal law issues? CHAIR—Perhaps we could start with the constitutional issues and then go to the criminal matters and take it from there. Mr Dabb—In that case, while we did have a couple of things to say on the criminal law side, we have no opening statement on the constitutional side. Frank and Rosalie are happy to handle any questions that the committee wants to raise. Senator TAMBLING—In 1974, in the lead up to self-government of the Northern Territory, your department gave evidence to the then Joint Parliamentary Committee on Constitutional Development of the Northern Territory. I was a member of the Northern Territory Legislative Assembly at that time and took a keen interest in that matter. Would you confirm that at that time it was your advice to government that, once granted self-government, it would be a breach of a fundamental convention of the grant of responsible self-government for the Common- wealth to withdraw or take away the implications that came with self-government? Mr Marris—Our department’s written submission at that stage did not refer to conventions in any respect. The written submission emphasised the plenary nature of section 122 of the constitution, which legally speaking enables the Commonwealth parliament to withdraw whatever it confers. The comments referred to in the Northern Territory government submission in relation to withdrawing powers once granted were made by Mr Ewart-Smith of our department in response to a question about whether, once a legislature was set up for a territory, the Commonwealth could subsequently withdraw or render void the powers conferred. His remark was made by way of a discussion of what he described as the ‘practical politics’ of the matter. To the forefront of his mind was the Papua New Guinea situation. That is indicated by the transcript. At that stage Papua New Guinea was still a territory of the Commonwealth but was on the verge of independence. At another part of the transcript he conceded that the question of what he described as ‘political realities’ was an area that was perhaps not his to comment on. He emphasised during his evidence that section 122 was a plenary power which, legally speaking, was available to allow withdrawal of powers that had been conferred. So far as conventions were concerned, his only comment was that there were conventions that could be made that might amount to much the same thing as conferring exclusive legislative powers on a territory, but that that was something that would be worked out in the course of time. Senator TAMBLING—I do not know whether you have seen the supplementary information that the Northern Territory government made available to the committee subsequent to the hearings in Darwin several weeks ago. I have got before me a copy of that information over

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 279 the signature of the Solicitor-General, Tom Pauling QC, dated 30 January. Mr Pauling makes the statement at the conclusion of that document: It all advances the view, supported by the Commonwealth’s own legal advisers, that if you make a grant of self-governing powers in an open and democratic but decentralised constitutional system such as we have in Australia, it is wrong for the national parliament to unilaterally seek thereafter to take that grant away or to otherwise adversely affect that grant, except in the most extreme circumstances such as war or civil commotion. Failure to observe this basic constitutional rule is bound to give rise to future difficulties and discontent and to bring the legislative body into disrepute. I have two questions. Firstly, do you agree with that statement? Secondly, I do not know whether you heard Chief Minister Carnell from the ACT a little earlier this morning saying that she believed that, if passed, the current legislation before this parliament—the Andrews bill—would inevitably lead to further constitutional and legal challenges. Do you see that that is likely to happen and, if so, will it be of major consequence or cost to the Commonwealth? Mr Marris—Dealing with the second question first, it is of course open to the ACT or any of the other territories to launch a constitutional challenge to the bill if it is passed. My view would be that such a challenge would not be successful, for the reason that I believe that section 122 provides adequate authority for the bill. With regard to the comments by Mr Pauling, I guess it is a matter of judgment as to whether it is appropriate for the Common- wealth parliament to be passing legislation of this kind. I think it is correct to say that there has been no previous Commonwealth legislation which withdraws the powers of territory legislatures, at least without their consent. So in that sense it would be without precedent. Senator TAMBLING—Do you have any concerns, with regard to uncertainty or unpredictability in the Andrews bill, that you might foresee the circumstances where it will result in a series of test cases or precedents that are likely to arise? Mr Dabb—Yes, I think as we explained in our notes, there will be an area of uncertainty created by the bill. But in our view there is already a large amount of uncertainty in the law in this area, because cases simply are not brought. If there are test cases it might demonstrate perhaps surprising, perhaps unwanted, aspects of the law, which might give rise to the need for further legislative amendment. Senator TAMBLING—You are almost anticipating that there will be a series of test cases and precedents to be checked? Mr Dabb—No, it is a possibility; I think that is all I could say. Senator TAMBLING—Have you had drawn to your attention recently the Northern Territory parliament’s progress on constitutional development through a special sessional committee and their draft constitution on the Northern Territory which includes, I think, some rather unique and very unusual new precedents in Australian constitutional law which pick up the issues of Aboriginal organic law, Aboriginal customary law and, in effect, certain bills of rights provisions? I gather this document has been floating around for some time. As the Northern Territory progresses to statehood, do you foresee the following situations? I am trying to cover two issues here. The first issue is the evidence we had last night from Mr Mackinolty which drew to our attention some very significant apprehensions and fears by Aboriginal people. I believe that will be accommodated in the new Northern Territory constitution, because for the first time in Australia we are going to have organic and customary law picked up and enshrined in a constitution. Will that be sufficient protection for Aboriginal people in that area? The second issue is: if this constitution were to be adopted, what impact do you think it will have on the subsequent rights of the Northern Territory state to make its own laws with regard to euthanasia?

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Mr Dabb—For my part the answer is easy. I have not seen the document, I am afraid, and I am unable to answer questions about its effect. Mr Marris—I have not seen it either, I am afraid. Senator TAMBLING—Okay. It was tabled in August 1996, and it is a unique document. I tabled it here in the federal parliament in the course of last year. I drew attention to it, hoping that the Commonwealth would respond because I believe the very issues that were addressed to us last night are going to be recognised much more fundamentally in a constitutional sense. I asked the ACT witnesses the next question a little bit earlier this morning. If the Northern Territory progresses to statehood and we therefore get the rights back to make euthanasia law in our own right, the ACT and Norfolk Island would still be embraced by this Andrews bill. Also, the authors of the legislation have, strangely, totally left the Indian Ocean islands out of any attempt to legislate with regard to them. That surprises me, because it is part of my electorate. Do you have any comment on the Andrews bill application post-Northern Territory statehood? Mr Marris—So far as the ACT and Norfolk Island are concerned, their legislatures would still be subject to the effect of the Andrews bill. So far as the Indian Ocean territories are concerned, they were probably omitted from the bill because they are still under direct Commonwealth control. They do not have local legislative authorities. Does that cover the— Senator TAMBLING—It does, but the author of the bill, Mr Andrews, did not take the opportunity to embrace them within the bill. If he was really intent on stopping it where it could apply to the territories, he did not include a fourth schedule or something else to make application of some sort of situation to the Indian Ocean territories—he left it out. Mr Marris—Yes. He may have assumed that continuing Commonwealth control in relation to the Indian Ocean territories was sufficient. In other words, there is no local law-making body in relation to those territories. Senator TAMBLING—Yes, but he did not preclude the application of medical activities et cetera in that area. Mr Marris—That is right. Mr Dabb—It is a bill about the powers of legislative assemblies of the territories. So, if there is no separate legislative assembly, the way in which the bill is structured could not really work. Senator TAMBLING—Do you think the Andrews euthanasia law bill is good or bad legislation? Mr Dabb—I am afraid that is right outside our area. CHAIR—That is policy. Senator TAMBLING—It is not policy. Senator FERRIS—It is. Senator TAMBLING—It is a decision by people who are constitutional advisers to government. CHAIR—Is it drafted appropriately? Senator ABETZ—You can ask what effects it would have, and then it is up to us to determine whether they are good or bad effects.

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Senator TAMBLING—I asked you earlier and I think you confirmed that there was a degree of uncertainty and unpredictability with regard to the law. Therefore, do you see that it is structurally inadequate or inefficient? Mr Dabb—That does become a very technical question, and one on which there are quite marked differences of opinion, both about the existing law and the effect of the bill. I think the note we wrote on that really speaks for itself. But I was proposing to make a few further comments on the detail of that. Senator McKIERNAN—The note you wrote was really about the criminal law area. I think that the theme of Senator Tamblings’s questions was constitutional issues, so your note does not necessarily cover that. Mr Dabb—I was proposing to say something in a moment about the criminal law implications—that side of it. Procedurally, I thought we were dealing first with constitutional issues. I hope we have been fully responsive to Senator Tambling’s questions, to the extent that we can be. Senator McKIERNAN—I suppose that is a matter of opinion, whether you have or not. The question that Senator Tambling asked—I felt that you flicked that off to respond to it in terms of the notes you have made on criminal law. I thought his questions related more to constitutional law rather than criminal law. Mr Dabb—I think the background we are operating against is a common view that the Commonwealth parliament has power to enact this piece of legislation. It could enact it with different variations; it could make it more general or more specific. But the broad constitutional question, about the capacity of the Commonwealth to enact, I think has been answered fairly clearly. When we come to the specific terms of the bill and the effect it has, and in particular the meaning of this difficult expression ‘intentional killing,’ we were proposing to deal with that under the heading of ‘criminal law.’ Senator McKIERNAN—I understand that. I must say that I was very surprised when I opened what we have termed to be your submission and found that you were not addressing the matter of the constitutional impact of this bill in the note that you provided. Is there a particular reason why you did not do that? Was it a deliberate decision of the department not to do so? Mr Dabb—Yes. The purpose of the note was to respond to the issues that had been raised by the Northern Territory law officers in relation specifically to the criminal law aspects. They suggested the bill was going to have certain effects in relation of Northern Territory criminal law. Those were the particular issues that were then addressed in an opinion by Mr Tom Hughes QC and the debate has subsequently gone on. So the departmental note did not intend to set out to deal with constitutional issues but with those particular matters that had been raised by the competing opinions. Senator TAMBLING—But that is on the first lot of evidence, not with regard to the supplementary evidence that Mr Pauling gave in January. Mr Dabb—That is correct. We have not addressed that, as a matter of time, and if there are any further questions in that area, of a constitutional nature, we will try to address them now. Senator McKIERNAN—I suppose what I am saying is that there have been concerns expressed, not only by the Northern Territory government, the Northern Territory Legislative Assembly, and the other legislative assemblies that are impacted by the bill. There are

LEGAL AND CONSTITUTIONAL L&C 282 SENATE—Legislation Friday, 14 February 1997 constitutional concerns that have been raised which, I would assume, you are aware of, as you are aware of the concerns impacting on criminal law which have also been raised. Your note does not address the constitutional matter. Was it deliberate on your part not to address the constitutional matters in your note? Mr Dabb—In that case, I think the answer is—and Frank Marris can speak for himself but I think he is of the same view—that there is no substantive constitutional issue that has been raised in any of those submissions that needs addressing. It is within the power of the Commonwealth parliament to enact this bill. Senator ABETZ—The ACT Attorney-General agrees with that? Senator McKIERNAN—I do not know what point that makes, but I was not addressing that. Senator Tambling asked some questions about a draft constitution for the Northern Territory, which I recollect he said was tabled in the Northern Territory in August of last year—I hope I am right in the date—and since that time has been tabled in the Commonwealth parliament in the Senate. Senator TAMBLING—By me. Senator McKIERNAN—You were not aware of that document? Mr Dabb—No, I was not, myself. Senator McKIERNAN—Is it possible that a document such as that—which I have not seen and I was not aware of the tabling of—could have an impact or an effect, whether intended or consequential, on the matters addressed in the bill, on the constitution of the Northern Territory or, indeed, on the constitution of Australia? Mr Dabb—Without having read it, I cannot say. Perhaps the best answer I could give is if they are prepared to read it now and see if it does have any implications, but at the moment I cannot imagine what effect they could have on the constitutional power of the Common- wealth to enact this bill. CHAIR—Perhaps you could take it on notice. Senator McKIERNAN—I accept your response on that, but I do think that it is an inadequate response from the Attorney-General’s Department that you had not firstly addressed those questions, on your initiative, to the committee. I expected that; you have not done it, and I am disappointed you have not done it. However, that being the case, I accept what you have said now and will welcome a response, perhaps in writing at a later time, rather than an oral one now because of the pressure of time on the committee. Mr Dabb—All I can add to that, Senator, is that this bill is not a government measure. It is not as if the Attorney-General’s Department comes, in support of the government, to say why this measure is constitutional. It is a private member’s bill—it is not a government bill— and we have attempted to lend assistance—almost gratuitously, if you like—by commenting on certain controversial issues that have been raised; but not all of them. Senator McKIERNAN—You are right. You did that, but I may be wrong in deducing a certain slant in terms of the matters that you have not chosen to address. Either the bill is a private member’s bill—I would suggest perhaps you should not have addressed any matters on it, if you had taken that line. However, if you are taking the line that you have a right, an obligation or a duty to proffer a view on some of the controversial aspects of the bill, I would suggest that you should have addressed all of the controversial aspects of the bill; and those constitutional issues are indeed controversial, if not to the Commonwealth, certainly to the people of the three territories that it impacts upon.

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CHAIR—I think this is a little different to the normal appearance that you have before Senate committees where you are dealing with government legislation. Would you agree with that, Mr Dabb? Mr Dabb—Yes, Senator. Certainly. CHAIR—Can you remember when you last appeared on a private member’s bill, to give advice to a committee? Mr Dabb—No, I cannot. I doubt that I have, myself. I have certainly appeared in relation to a number of government measures. CHAIR—So it is a very unusual situation. Mr Dabb—True. Senator TAMBLING—Could we ask for a response, when the department has had time to look at the Pauling supplementary information and also the draft constitution? CHAIR—I will raise that now. Is that possible, to look at the supplementary submission that Senator Tambling has mentioned? Mr Dabb—Yes. I would rather not comment gratuitously on that material. I think we could help the committee better, particularly given the limited time, if there was a particular question the committee wanted addressed. For example, is the basic question: does the Commonwealth parliament have power to enact this bill, having regard to all the matters raised by Mr Pauling and raised in this document? That is a question that we could address. CHAIR—The committee did not ask you that when it wrote to you, did it? That was my fault more than anybody else’s. I should have known that. Mr Dabb—There were three particular matters you did mention that you would like us to address, and that was not one of them. CHAIR—If you could have a look at that, that would be good. Senator TAMBLING—The other question I would like addressed in that sense is whether the territory will—subsequent to statehood, particularly if it is in these terms—then have independent rights to re-legislate, if you say this bill will override it. But if the territory becomes a state in a year or two’s time, will it have the unfettered right to again legislate, as would any other state in Australia? Senator McKIERNAN—One question on notice in the same vein: will the Attorney- General’s Department be the department that administers the bill if it is passed in the parliament? Mr Dabb—Strictly speaking, departments do not administer bills. They are entrusted to ministers of state and departments assist ministers of state, so it depends on the arrangements. But it is quite possible, I imagine, that this might be an Attorney-General’s portfolio bill. Senator McKIERNAN—Quite possible. You might take that on notice and come back with something a bit more definitive. Mr Dabb—It is not really something that would be our decision or even our role to advise, I think, Senator. Senator McKIERNAN—If you could direct it to your minister; if you do not, we can direct it to other ministers in this place, using our powers and rights to do so. CHAIR—That decision would not be made for some time yet, would it—if it were to be made?

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Mr Dabb—It would be normal, after the passage of a bill, for it to be assigned to a minister of state who was responsible for its administration, which would be a matter for the Prime Minister and the Governor-General. CHAIR—But that is yet to be ascertained, where this will go. Mr Dabb—Yes. CHAIR—You have said that there is no constitutional issue, that is, the Commonwealth has the power to pass this bill. That is unequivocal, isn’t it? Mr Dabb—Yes. CHAIR—There is no constitutional argument whatsoever that you can see about this bill. Is that right? Mr Marris—None that I can see that would be successful before the High Court. Senator TAMBLING—But Ms Carnell and Mr Stone do not agree and therefore there may well be a challenge. CHAIR—Senator Tambling, let us leave that for them. I am asking the Attorney-General’s Department. It says that its view is as it has just stated it. Senator COONEY—I don’t think that— CHAIR—There is not any issue. Senator COONEY—I thought the Chief Minister said that they understood that the Commonwealth could make such laws. But then they went on and said, ‘Look, convention should be against it.’ Senator ABETZ—You have got the power, but you should not exercise it because of these principles. Senator COONEY—Yes, that is how they put it. CHAIR—I am grateful for that, Senator Cooney, because it does clarify the issue. Senator COONEY—To be fair to the Chief Minister, she came in and said, ‘Look, you have got the power. We don’t deny that, but you shouldn’t do it.’ CHAIR—With the passing of this bill, does the Northern Territory legislation remain on the books unaffected, does it cease to have effect from the date of the passing of the Commonwealth bill or does the law just become void ab initio? Mr Marris—The effect of the application clause, as I understand it, is that that particular law would cease to have force or effect as a law of the territory except as regards things done prior to the commencement of the Commonwealth law. CHAIR—My next question is off the constitutional aspect and perhaps goes more towards the criminal vein. Are there any other questions on the constitutional side of things before we get on to the criminal aspects? Senator COONEY—I have one. It is not in regard to the written constitution but concerns the build-up of constitutional conventions—the whole package of constitutional rights. Has a jury got a constitutional right to return such verdict as it feels appropriate? Mr Dabb—Could you put the question in another way? Senator COONEY—A jury verdict is challengeable. Take an illustration: you have somebody charged with murder and the evidence to an outsider seemed to be such as would compel a verdict of guilty but the jury returned a verdict of not guilty or guilty of

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 285 manslaughter. Is there anything that can be done about that or have they got the constitutional right to return such verdict as they want? Mr Dabb—When you say ‘constitutional right’, I imagine you are not speaking specifically about the Commonwealth constitution? Senator COONEY—No, that is why I said I was talking about the bundle of constitutions that go to make up our society. If it is any help, I remember years ago that Justice Starke—the son—of the Supreme Court of Victoria used that expression. What he was saying—and I just want to see whether you agree or disagree with this—was that a jury has control of a case. For example, in what people call ‘hard cases’—somebody who is prosecuted in a hard case— the jury has the constitutional right to return such verdict as it feels appropriate. Mr Dabb—That has certainly been the traditional view in the courts and in the practice of criminal justice. I suppose we are not really speaking about a constitutional right that might be tested in the event of a challenge. I suppose what we are speaking about is a basic principle of the administration of justice. Senator COONEY—Perhaps it goes even further than that. Can such a verdict be challenged in any way? Mr Dabb—It would depend on the law of the individual Australian state. There is no Commonwealth law in this area. Senator COONEY—Can you think of any state law? Mr Dabb—In a situation where the verdict of the jury is so outrageous or perverse and could not possibly be supported by the evidence on any view, I do not know of any precedent to the challenge of a jury decision in that situation. Senator COONEY—Can you think of any precedent where you might say, ‘Look, this has been an outrageous decision,’ where anything has been done about it, as distinct from having a royal commission do it or a judicial inquiry? Is there anything to stop a jury from saying in a hard case, ‘We are going to find this person not guilty.’ Mr Dabb—The difficulty, of course, is that no-one really knows the reasons for jury decisions. It is entirely a matter for the jury. No-one knows what goes on in a jury room. It may be that for some reason the jury chose to disbelieve every word of evidence. Senator COONEY—Aren’t you agreeing with me? Aren’t you saying, in effect, that there is no way you can challenge a jury? If you had a hard case—say, somebody charged with murder in a situation where doctors wanted to help someone to die—there is nothing to stop a jury saying, ‘Not guilty’? Mr Dabb—Of course not. I think our system accepts that juries can decide however they wish. Senator COONEY—Not only is it accepted; it is also part of a constitutional fabric of society that it should be so. Mr Dabb—It is certainly part of the criminal justice system. Senator COONEY—Is it part of our constitutional make-up? You have a think about it. Mr Dabb—Just using the word ‘constitutional’ suggests that the issue is in some way justiciable—that the High Court could decide the matter and decide that there is such a right. Senator COONEY—No, there is a whole group of constitutional matters—not in the formal sense. If you talk about the bridge that we have in the Westminster system, a lot of conventions come over with that and a lot of constitutional issues. In other words, if you have

LEGAL AND CONSTITUTIONAL L&C 286 SENATE—Legislation Friday, 14 February 1997 somebody who is charged with a crime and people say, ‘Look, the evidence looks fairly grim but there are all sorts of surrounding circumstances’—you would prefer that he or she was not convicted—the jury has the right to throw it out? Mr Dabb—Definitely. The jury is the ultimate safeguard that justice is done, if you like, in that situation. Senator BROWN—Before making this submission, were you approached by anybody for an opinion about the Andrews legislation or were you involved in any way in the consideration of that legislation or the drawing up of it? Mr Dabb—No, the circumstances in which the briefing note was prepared are that there were discussions with the Attorney-General and with his office. Some approaches had been made to the Commonwealth Attorney-General to express a view on the matters. Given the nature of the matters, it was thought appropriate to give some assistance by way of clarifying the issues for the purpose of the Commonwealth parliament and that the department should do this by preparing its note. So we were not approached by any other external protagonist in this at all. Senator BROWN—External from the parliament, you mean? Mr Dabb—External from the parliament or the government. Representations were, of course, made to the Attorney-General as they were to, I suppose, many Commonwealth ministers and parliamentarians. Senator BROWN—We heard this morning from the ACT representatives that their interpretation of the legislation creating the ACT was that the Commonwealth reserved powers to override laws or to intervene when such things as riots, conflagrations and so on were occurring. But they did not believe that it was envisaged, after the establishment of the territory, that there would be intervention of this sort. What is your opinion on that? Mr Marris—I think that is the issue that Senator Tambling raised earlier on in relation to the oral evidence given in 1974. Senator BROWN—I am just coming at it again. What do you feel now is the situation regarding it? Has the ACT got some validity there or is that simply an opinion you do not agree with? Mr Marris—Obviously, there is some merit in that view that it would be inappropriate for the Commonwealth parliament to be legislating in this area but, in the ultimate, that is a matter for the Commonwealth parliament itself to determine whether it feels that this legislation should be passed. Senator BROWN—You say in the submission that it might in future lead to trammelling— that is my term—of the ability of the territories to clarify such matters as the withdrawal of medical treatment, what is valid in that field and what is not. Would you elaborate on that? Mr Dabb—That is a reference to the department’s note which was addressing itself to the nature of the area closed to territory legislation by the Andrews bill and that raises the issue of the interpretation of these provisions, in particular the reference to intentional killing which is a closed area. There is, in my view, uncertainty about the precise ambit of that expression and how it might work in relation to particular laws. It does become quite complex and I am conscious that time is very short. I was going to go on to deal with the criminal law aspects I mentioned. CHAIR—We will get to that in a minute. We are still on the constitution and that is not constitutional. So we will put that aside until we go to it.

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Senator BROWN—I would like to follow up on the constitutional aspect of what we are talking about, that is, the ability of the Northern Territory to make further laws in the area of intentional or unintentional killing, or the withholding of treatment. There is a constitutional aspect to this, you say. It is just not a matter of the euthanasia debate. I want you to let the committee know, if you can, to what degree you think the Northern Territory’s hands could be tied, because of this legislation, in being able to formulate future legislation? Mr Dabb—That is exactly what I was going to come to in the area I indicated. CHAIR—We will get to that in a moment. Anything else? Senator BROWN—It is a constitutional area. CHAIR—No, it is not. Senator ABETZ—We are going to cover it. CHAIR—Does that lead into the aspect of the criminal matters? Mr Dabb—It does, yes. It goes right to the issues. Senator TAMBLING—Before we go to that, can I formally table this document, Final draft constitution for the Northern Territory, August 1996, and draw attention to sections 2.1 on Aboriginal customary law and 8.1 on language, social, cultural and religious matters. They are the two sections that I think apply very specifically to the issues I want to address. CHAIR—We will come to those matters in a moment. Senator BROWN—I have one final question, if I may. Will the Northern Territory act have any remnant efficacy if the Andrews bill is enacted? Mr Marris—As I said earlier, I think the effect of the application provision in schedule 1 of the bill is, in effect, to render the Northern Territory enactment of no force and effect as a law of the territory as from the commencement of the Commonwealth legislation. Senator BROWN—So it will be totally null and void. Mr Marris—I think that that is what it amounts to. Senator TAMBLING—If the legislation was about not voluntary euthanasia but about spending money on roads funding or the Northern Territory being forbidden from accessing the national railway system, would the constitutional advice flowing from AG’s be different? Mr Marris—Basically, section 122 is a very wide power which enables the Commonwealth parliament to legislate for any or all of its territories in such a way as it thinks fit. Without focusing specifically on possible examples, that would seem to enable the Commonwealth to make laws of the kind you have in mind. Senator TAMBLING—But in practice, which is where we started, it would just never be applied? Mr Marris—The practice, I guess, depends on what the Commonwealth parliament considers fit as regards legislation for its territories. CHAIR—Legally, it could pass that legislation? Mr Marris—That is correct. Senator ABETZ—Technically, it is within the power of the Commonwealth parliament to not only deal with roads and that but to repeal the whole of the self-government act of the Northern Territory. Mr Marris—As a matter of strict law that is correct.

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Senator TAMBLING—Just try and you will have another of these. CHAIR—This is, I suppose, a constitutional question. In the application provision of the bill, it says: For the avoidance of doubt, the enactment of the Legislative Assembly called the Rights of the Terminally Ill Act 1995 has no force or effect as a law of the Territory... That seems to take care of the territory situation, but the ACT has said that in relation to their Medical Treatment Act there might not be the avoidance of doubt as there is for the territory in this bill. So what I am asking you is: do you think they might have a point there? Mr Marris—As far as any legislation of another territory is concerned, that legislation would have to be tested against the powers that are being withdrawn and the powers which are being left to the legislative assembly of that territory. So it would be a matter of examining any territory law in that context and deciding whether it was covered by 50A or 23(1) of the Australian Capital Territory (Self Government) Act in the case of the ACT. CHAIR—Is the bare statement that the Rights of the Terminally Ill Act has no force really an attempt to repeal that law, or would the High Court say there is a difference between direct repeal and saying that a law is of no effect? Mr Marris—Repeal normally relates to an act of a particular legislature repealing an act of that same legislature, but I think in practical effect the application provision has the same result as a repeal would have. CHAIR—Would the High Court accept it? Mr Marris—I believe so. I believe they would consider this to be within the power conferred by section 122. CHAIR—Thank you. I think that covers the constitutional aspect. Now we move on to the criminal aspect of this. Mr Dabb, would you like to make your opening comments and then touch on the question raised by Senator Brown, and then we will put some other questions to you. Mr Dabb—I am aware that time is very short. There are perhaps three major questions hanging in the air as a result of submissions I have read on the areas covered by our note. I will try and deal very quickly with the first two; the third is more substantial. The first one is a very clear difference of opinion that has emerged about whether the High Court would say that certain common law propositions, certain common law defences, that exist in this area, would apply in a code jurisdiction such as the Northern Territory. On that particular proposition, the Northern Territory law officers say that there is no such room for the common law to operate. The departmental note and the opinions of Mr Hughes and of Mr Santamaria are to the effect that the High Court would say that on these fundamental matters the common law defence or rule applies. I am referring in particular to the suggested common law rule that a doctor who, in respect of a dying patient, administers treatment for the purpose of relieving pain is not criminally responsible if an incidental or additional effect is the death of the patient and the doctor knows that that will happen. So I am in the same camp as Mr Santamaria and Mr Hughes on that and against the Northern Territory officers. It is a question of just how the High Court would treat the common law in relation to criminal codes. I must say that it would be a matter for the Northern Territory legislature what the meaning of its criminal code was. If the Northern Territory legislature had intended to exclude every common law proposition, they would have had the legislative power to do so in this particular

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 289 area. It is a question of statutory interpretation whether they really meant to do so. And on that there is this difference of opinion. CHAIR—Thank you. I will ask for questions but, firstly: do you agree that the meaning given to the phrase ‘intentional killing’ is crucial for determining whether the bill will have unintended impacts on territory laws and powers to legislate? Mr Dabb—It is relevant to that. Uncertainty about the precise meaning of that expression does possibly create uncertainty in the Northern Territory, just as it might create some uncertainty in other territories. But of course in many areas some degree of uncertainty in the law, particularly when it is not rigorously enforced, is quite acceptable. So I am not saying that it is good or bad. Senator ABETZ—But there is a lot of uncertainty about the wording of our own federal constitution that has been around for 100 years, isn’t there? Lawyers are still making a lot of money arguing about the terms of the constitution in the High Court. So there is nothing unique about lawyers arguing about the meaning of words, is there? Mr Dabb—That is right. Could I go to my next point. The second point comes from the opinion of Mr Santamaria. Coincidentally, paragraph 34 of our note is the operative paragraph and it is paragraph 34 of Mr Santamaria’s submission that is the operative one. He does have some criticism of the departmental note. One thing he says is ‘Our note is incorrect in suggesting that there are real uncertainties in the law relating to palliative care’. As to that, I would have thought there was general agreement that there are uncertainties in what the law really is in that area, the extent to which there is no criminal liability for the administration of certain kinds of pain relief that causes death and what the limitations and qualifications are on that proposition. Without saying anything more about that now, I have prepared a short note, which I will table, dealing with that question of uncertainties under the existing law and also referring briefly to the position under the ACT Medical Treatment Act, which is involved too. That brings me to my third area of difficulty— Senator ABETZ—Before you move on, could you indicate what basic conclusions you come to in that document as to the effect on the ACT legislation? Mr Dabb—The particular point raised was in relation to the way in which the ACT Medical Treatment Act dealt with what is called palliative care. There is a very broad and rather vague section in the ACT act dealing with palliative care, and it is simply not possible to say with any precision what it means in relation to the criminal law, in my view. The act appears to me to be the subject of various drafting hands at different stages and the position in my view is quite obscure. Coming to the third point, the last one, the one where I think there has been most intense debate between the protagonists involved in this: that is, the meaning to be given to the expression in the Andrews bill where it says ‘The relevant legislatures may not legislate so as to permit the intentional killing of the patient, either in relation to withdrawal or withholding of medical or surgical measures for prolonging life or in relation to the provision of palliative care’. It is quite clear that this area is what is going to determine what is exactly the closed area, the area within which the territory legislatures may not make laws. Two views have emerged. One is that there is a broad meaning to be given to the expression ‘intentional killing’, in which case there will be a large area within which the legislatures may not legislate. The other view is that there is a very narrow meaning, in which case there would be quite a

LEGAL AND CONSTITUTIONAL L&C 290 SENATE—Legislation Friday, 14 February 1997 small area, and that obviously of itself is going to create uncertainty if the meaning of that expression is not specific. The view that was put forward by the department and was adopted by some others is that the expression ‘intentional killing’ probably applies to situations where someone does an act knowing that a result will certainly follow from that act, as well as the situation where the person does the act with the desire or wish to bring about that result. I might call that the broader view. The narrower view is that intentional killing only refers to cases where the person doing the act really wants and desires the result to come about, and of course here we are talking about the death of the patient. So the question is: could a territory law validly say, ‘A medical practitioner may administer treatment for the purpose of pain relief even though he or she knows that death will be a certain result of that act?’ Senator COONAN—Sorry to interrupt—or even probable? Mr Dabb—This is where confusion arises, and ‘probable’ raises other issues. I think even under the broad view of intentional killing, we would say that a person who does an act for a certain purpose, knowing that it is foreseeing only a possibility or even a probability, is probably not intentionally killing. That would be an extremely broad view. I think such conduct could be authorised by territory legislature consistently with the terms of this prohibition. But we are left with these two—the narrow compartment and the broad compartment—and which is it? This is something on which a lot of ink has been spilt, so the only contribution I want to make—having indicated that the department thinks that the broader view is at least probably open and may well be preferred by the courts, in which case there will be a larger area of uncertainty—is that I think I ought to bring to the attention of the committee what I have collated here: certain papers dealing with recent Commonwealth legislation in this area that I think very clearly illustrate the distinction between the broad view and the narrow view. These papers consist of a copy of the relevant parts of the Commonwealth Criminal Code Act that was enacted by this parliament in 1995 and which is the foundation stone for future Commonwealth legislation to which it is going to be progressively applied. It, in my view, represents properly the basis upon which the term ‘intentionally’ is used in Commonwealth statutes. If I could take the committee to page 4. The pages have been numbered in handwriting on the top right-hand corner. Page 4 of this bundle sets out the basic elements for the purposes of Commonwealth legislation. Possible fault elements are intention and recklessness. I think they are the two main ones we need to consider. There is also negligence, which brings in other considerations—that brings in objective standards. But let us just look at what is included in intention and what is included in recklessness. As regards intention, we only need to look at subsection 5.2(3). That is the only one that deals with the result. That says: (3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events. That is the broader view of intention. It is the one on which—in relation to Commonwealth statutes, in any event—we assume the courts will interpret intention or intentionally, and the word is used in that way. It encompasses the case where the person does not necessarily desire it, but note: ‘it will occur in the ordinary course of events’. That is to be contrasted with the mental element of recklessness, which is where we do get into the area of probability or possibility. This is quite a different thing. On page 5, 5.4(2) it says:

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(2) A person is reckless with respect to a result if: (a) he or she is aware of a substantial risk that the result will occur; and— there is also this additional element of justifiability, which is very important— (b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk. That is an important element where recklessness is involved. The significant thing is that, under the law of murder in Australia, the mental element encompasses both intention to cause and recklessness as to causing death. This is not the case in England, which has led to confusion in the way in which the various cases have been cited. Whether a person in Australia whose act kills someone is guilty of murder and it is not a case of intention depends on this concept of recklessness. A person drives at 120 kilometres down the Hume Highway and kills a pedestrian. No-one would really suggest that is murder. It is almost certainly manslaughter, but it would not be murder; the mental element is quite different. A person who speeds at 120 kilometres across a school playground full of children and kills a child will probably be guilty of murder on the basis of recklessness. It turns on the application of that limb: were they aware of a substantial risk that the death would occur and, having regard to the circumstances, unjustifiably took the risk? In some of the submissions there has been a confusion between these two notions of intention and recklessness. I do not suggest for a moment that the phrase ‘intentional killing’ would encompass recklessness. That is something quite different. That is the concept that was dealt with by the High Court in the case of Crabbe—the person who drove the semi-trailer into the motel bar. That was an illustration of murder under the recklessness limb, and does not really have anything to do with this debate. The proposition in the department’s note is that intentional killing would probably be interpreted as encompassing the scope of the slightly broader part of intention where a person knows that the death will occur in the ordinary course of events. The additional papers attached may be of some assistance. At page 6, I have attached the commentary of the expert committee that proposed that approach to fault elements. There is an explanation why that approach was preferred to a narrower approach. Senator ABETZ—I am sorry. Whereabouts are you? Mr Dabb—This is on page 6 of the bundle. Senator ABETZ—I have it. Thanks. Mr Dabb—On page 6 is the draft provision proposed by the committee and on page 7 is the commentary on the draft provision that sheds some more light on it. The ancestor of this provision was the United Kingdom law commission which had proposed a similar approach to the law in the United Kingdom. The UK law commission draft proposal is on page 9 of the bundle. Going over, pages 12, 13 and 14 have the commentary on the UK provision. That says in effect there are two views of this intention. Bear in mind the United Kingdom does not have this recklessness limb for murder. Looking at murder, they said intention to kill is one thing, but what about when someone does something and it is not really their main intention to kill a person but they know the act is certain to kill them? That is an area of debate in the United Kingdom and that is where the House of Lords decisions that have been cited come in. They say, ‘If he knows that it is certain to kill, does he really intend to kill or is that just evidence that the person intended to kill?’ It gets down to an extremely fine point which for practical, legislative purposes is simply unworkable.

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Anyone who has had experience of law in this area knows that it is extremely difficult to sustain that kind of proposition. I have included the common thread in the United Kingdom law commission there. Page 14 in particular sets out why they took that line. I hope that will help to clarify matters somewhat. CHAIR—You have been very helpful. Mr Dabb—One example from an Australian point of view of the use of the word ‘intentional’ is how we often use ‘intentional’ in the statute book as justifying a higher penalty, whereas if you are only ‘reckless’ there may be a lower penalty. Sometimes the offence is ‘intentionally’ or ‘recklessly’, sometimes ‘intentional’ means 10 years and ‘reckless’ two years. A typical kind of offence in the Commonwealth area is where a person intentionally discharges oil from a ship into the sea. Under this approach, a person would commit an offence if they deliberately, knowing what they were doing, discharged oil into the sea. That would be the offence. They would not be able to come along and say, ‘Oh no, intention is much narrower. Intention means that I have to really want this result and the only result I wanted was to get the oil out of my ship. I was cleaning the bilges and the last thing I wanted to happen was for the oil to go into the sea.’ It becomes unworkable from a legislative point of view. Senator ABETZ—You took two quick areas. Would the term ‘intentional killing’ in the Euthanasia Laws Bill 1996 not be read also in conjunction with the other wording which refers to euthanasia as: . . . intentional killing of another called euthanasia... It would be considered within the parameters of that, would it not? Mr Dabb—Yes, I would think so. I emphasise that the parliament, perhaps on the recommendation of this committee, can make this expression mean anything it wishes. In fact, possibly, calling up the provision of the Acts Interpretation Act on the significance to be attached to committee reports, the views expressed by the committee on this issue about what it meant to cover may well be decisive. I am not suggesting there is any conceptual limitation on what the committee should do here. I am solely talking about clarity of meaning and what we might do on that. It comes back to the difficult situation of ambiguous situations where the decision is to put the patient on the palliation program. The palliation program involves very high levels of morphine or sedation. There is no close attention paid to stopping death as a result of this, let alone reviving the patient if it appears that the pulse is getting a bit weak. It is ambiguous. Is the purpose of the palliation program to relieve pain or is it a train of events that is going to relieve pain and cause earlier death, which would be an intentional murder? If euthanasia is defined only as having that meaning—which I think it probably does have here where you really desire the death; it is not just a just a mixed kind of thing—then there is an argument that that does help to support the argument that a narrower view is given to intentional killing, but I think it is still very doubtful. Senator ABETZ—Can I ask our $64 question. Say, perchance, the Attorney-General’s Department was given instructions by the government of the day to have an outcome that the Andrews bill is intended to have. How would you have framed the Euthanasia Laws Bill? Would you have gone about it in a different way or employed different wording to effect the outcome?

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Forget the policy arguments. Let us say Kevin Andrews was the Attorney-General and he said, ‘Look, this is what I want to achieve. I’m the Attorney-General. Go ahead and do it.’ Would you have gone about it this way or do you have some other suggested approach that might make it clearer and get rid of some of the ambiguities and potential unintentional consequences that we have heard about? Mr Dabb—The bill has to me all the signs of being drafted with a high degree of professional competence and I would assume that expert legal advice has gone into the drafting of this bill. It seems to strike the right balance between simplicity and not becoming overcomplicated in trying to deal with every situation. Had I been doing it, I do not know that I could have done a better job from the outset. Senator ABETZ—So you were not sharpening your pencils in the Attorney-General’s Department to— Mr Dabb—The point having been made about the uncertainty of intentional killing, and given the fact that this is a very uncertain area of law in any event, prosecutions are simply not brought. Prosecutions are brought for traffic offences and driving under the influence every day of the week. We know exactly what the law is there. The questions in my first paper about uncertainties say you are legislating for that kind of area. On the particular point—and I am not making this as a concrete proposal—of the scope of unlawful killing, it would be a little clearer to me if it said ‘does not permit conduct for the purpose of killing the patient’. ‘Purpose’ to me would be a clearer word. That has got an ambiguity, which is here in any event, which is what about multipurpose acts? What if the purpose of the act is mainly to relieve pain, but the person administering the treatment thinks it is also quite a good outcome that this person will not wake up in the morning? Senator COONAN—Could you say ‘sole purpose’? Mr Dabb—That is clearer, but I think we can all imagine how mixed purposes would be suggested or could not be disproved. How could it ever be proved in a criminal case that a defendant did not have at least a partial purpose of achieving this objective? Senator COONAN—Maybe it could be ‘main purpose’. Senator ABETZ—I need something clarified, and, to do that, I will put a proposition to you. The term ‘intentional killing’ in the Euthanasia Laws Bill will not be determined by a reference to any Northern Territory legislation or ACT legislation that might deal with the term ‘intentional killing’, but, rather, to Commonwealth legislation and the law applying, because the self-government act is in fact the source of any criminal code that the territory might have. So, in interpreting the Euthanasia Laws Bill, there would not be a reference to the legislation that might be in the territories. Mr Dabb—People contending for a narrower or broader view would rely on any argument that was available and someone might well argue to that effect. I think a court would probably approach this by saying, ‘I have to get at the intention of the Commonwealth parliament in saying this. What really was the intention of the Commonwealth parliament?’ If every speaker who had spoken in support of the bill said, ‘Our clear understanding and purpose is that ‘intentional killing’ has a narrow meaning so it only catches an act for the purpose of killing,’ then I think that is likely to be a decisive consideration on how a court interpreted it. Senator ABETZ—We have to say that in all our second reading speeches, do we?

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Mr Dabb—It is certainly a consideration for the Commonwealth bringing forward legislation. The contents of explanatory memoranda and second reading speeches are often carefully drafted with the widest possible interpretation. Senator ABETZ—And you have read the explanatory memorandum as well? Mr Dabb—Yes. Senator ABETZ—Would say that was drafted with the same degree of professionalism, et cetera, as the bill itself? Mr Dabb—Without expressing a concluded view on how a court would interpret it, yes. I am not suggesting for a moment that this has been shabbily or incompetently done in any sense. Senator BROWN—I am interested in the aspect of the law turning a blind eye to the fact that, on evidence we have heard this session, maybe 100 people a day in Australia are being assisted to die earlier because of the withdrawal, denial or some other act or omission to act by their medical attendants and that three a day or so are, by deliberate act, being helped to an earlier death—one must assume without consultation with the person. Just in legal terms, what do you think about that situation? Mr Dabb—That is really a question of law enforcement policy. Our system entrusts a discretion to police whether they investigate a matter on their own initiative or on a particular complaint and, ultimately, prosecuting authorities take decisions whether cases should be brought before the court. Those factors applied to this area mean that the law is simply not being enforced. I think it is quite obvious from everything one reads. There are other areas where this is happening. In some areas of fraud or dishonesty offences in the business world probably many offences a day are being committed, but either complaints are not made or it is not worth the time of the victim to pursue it. So the end result of the process—how the prosecuting discretion and the investigating process work so that cases get before the courts—does not really bear rational analysis. You can only say that the community’s expectations of the proper degree of enforcement effort are ultimately reflected through parliament, politicians and so on. That is the result you get. Senator BROWN—What about the impact on the respect of a law that comes of a law that is breached daily, to which a deliberate blind eye is turned by society as a whole? Mr Dabb—That is an argument that is often made by people who wish to see more enforcement effort, and a particular area is perjury. How often in a criminal case does a defendant tell a story in their own defence which is completely inconsistent with the prosecution witnesses, so someone must be committing perjury? The suggestion is made in relation to the Family Court where this sort of thing happens all the time and there should be more enforcement effort. But that is just another area where it is not being enforced. It could be said that this means the law is in disrespect and these prohibitions ought not to exist. I do not think it follows. Senator BROWN—You do not think there is any difference in degree—major degree— between perjury and killing? Mr Dabb—I think it is an essential part of this debate that some people do not see the causing of death as something that ought to be prosecuted. Some kinds of killing are simply not regarded as serious, I think is the answer to the question. Senator BROWN—So there is some merit in the Northern Territory law—I can assume from that—but I want you to answer that question.

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Mr Dabb—I can see merits in the arguments on both sides. It is not for me to say which should prevail. Senator BROWN—You have gone into the term ‘intentional killing’ in quite a lot of detail. Why do you think it is not defined in the Andrews bill? Mr Dabb—The draftsperson may have thought that was near enough; the draftsperson may have had confidence that the courts would interpret that so as to achieve the result that the draftsperson had in mind; or maybe the draftsperson thought that that was a sufficiently elegant expression and they would leave well enough alone. Senator BROWN—But I think you have helped to show that it is open to interpretation. Mr Dabb—I think the main difficulty with it is that it is in a constitutive statute that deals with the powers of legislatures to make laws. If legislatures are going to legislate in this area, the uncertainty of the expression will create doubt about whether those laws are in force or not and how they should be applied. That is the difficulty I see with it. Senator BROWN—What do you think is the best thing there: do you think that the legislator ought to—when seeing this—take upon him or herself the responsibility of definition or that it is valid to leave it to the court to invent the definition when the time comes? Mr Dabb—Beyond pointing to the particular difficulty—I certainly think there is a difficulty—I would not necessarily suggest that something has to be done about it. There are many areas in legislation where fairly vague and imprecise expressions are used and the courts are left to apply them in a sensible way. Senator BROWN—This is a very special matter, though. Do you think it would have been a good thing for the legislator, the private member who introduced this bill—it is a single private member’s piece of legislation; it is not government legislation—to have defined what was meant by the term ‘intentional killing’? Mr Dabb—I think it would, from my perspective, be a better law if there were more precision in the definition but I am not saying that the proposer of the bill or the draftsperson was in error in choosing this particular approach. Senator BROWN—No, I think it was a very difficult thing for them to do. Mr Dabb—It is extremely difficult area. Senator BROWN—I think it is going to be a very difficult thing for a court to determine as well. Senator TAMBLING—And the Senate. Senator BROWN—As a matter of good principle—you might comment on this—legislators ought to be precise, not vague, when drawing legislation because the intent has to be circumscribed by their own words. Mr Dabb—I think it is difficult to lay that down as a general rule. There are some areas of terrible imprecision in legislation. Perhaps the best example is one familiar to Dr Balkin where parliament legislates to give effect to an international treaty which is extremely vague and uncertain; yet, in order to remain within the external affairs power, the Commonwealth needs to repeat these terribly vague, strange and possibly contradictory words. There are other examples where precision is simply not possible. Senator BROWN—Yes, except here we are dealing with individuals and in very serious circumstances where very serious charges could be brought. We are also dealing with the trammelling of the Northern Territory’s right to make laws about itself on behalf of its citizens.

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Mr Dabb—That is true. Senator BROWN—I believe under those circumstances there is a higher responsibility to be sure about the words that are being used and to offer definition about that. Don’t you think that is fair? Mr Dabb—I think the point you are putting to me can only be answered by saying that there may be advantage in trying to make the language more precise—that might improve it—but it would be an exercise of some difficulty and you would need to be precise about the result you wanted to achieve and confident that you were improving the language. If the answer is that the proposer of the bill or the draftsperson does not really think they can do much better than this, then maybe they stop at a point where there is a certain amount of uncertainty, and it is a matter for people who consider the bill whether they are prepared to pass the bill on that basis. Senator BROWN—And that leaves the difficulty for the Northern Territory— Mr Dabb—And the other territories. Senator BROWN—And the other territories, exactly. Thank you. Mr Dabb—The same kind of difficulty the Commonwealth of Australia has due to uncertainties in the Commonwealth constitution. CHAIR—Thank you, Senator Brown. Before we continue, I would like to call Father Frank Brennan and Mr George Williams to the table. It has been discussed with the witnesses and they are agreeable. Their input might be of assistance. [12.00 p.m.] BRENNAN, Father Frank Tenison, 24 Roslyn Street, Kings Cross, New South Wales 2011 WILLIAMS, Mr George John, Senior Lecturer in Law, Australian National University, Canberra, Australian Capital Territory CHAIR—I understand you might want to make some opening statements, but we will just finish off some questioning from Senator Coonan and then Senator Cooney. We will then call upon you to make an opening statement. If AG’s could remain, we would be grateful for any input. Senator COONAN—I just wanted to trouble you a bit further, if I may, with this vexed question of the meaning of the term ‘intentional killing’. I just wanted to go back to the supplementary opinion of Mr Santamaria at paragraph 57: It is also worth commenting briefly on . . . the Briefing Note of the Commonwealth Attorney-General’s Department provided to the Committee that "the provision [‘not so as to permit the intentional killing of the patient’] is part of a constitutive law, not a criminal statute, so no presumption requires a narrow interpretation of ‘intentional’. He says he agrees with that. A little further down the paragraph he then says: In my submission, the correct approach to interpretation of the word "intentional" is that, since the Bill deals with matters relating to the law of homicide, it is a logical starting point to assume that Parliament intends that the word "intentional" when used in the Bill has the same meaning as it does in relation to the law of homicide. What I wanted to explore with you is if the meaning of ‘intentional killing’ in the bill is defined by reference to the law of homicide, whose law of homicide are we applying—the jurisdiction of the Northern Territory, the ACT or common law? Can you just perhaps elaborate a bit on that.

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Mr Dabb—I think the only fair answer is that it is uncertain. One can imagine many different arguments being brought from different directions about the meaning of ‘intentional’. If it has a narrow meaning in a particular jurisdiction which serves the purpose of a party in litigation, no doubt they will contend that is the applicable one. But I would think the mere fact that the law of homicide varies considerably as between the jurisdictions concerned is a reasonably strong argument against saying that you simply go to what it means in the law of homicide. Senator COONAN—Do I take it from that that what you are really saying is that the bill means different things in different territories because homicide laws are different? Is that sensible or defensible—how would you see it? Mr Dabb—No, I would have difficulty with that proposition. I think the bill must be read as intending to prevent legislators making certain kinds of laws and that that kind of law that cannot be made is the same in all jurisdictions. I think logically you would have to take that view. Senator COONAN—It is a very difficult area though, isn’t it? It is not certain at all. Mr Dabb—Yes. In other words, if one were to produce a draft provision—I could give examples of provisions that might be valid or not depending on the view taken of intentional killing—they would either be valid or not in the ACT or in the Northern Territory. The result would not be different depending on where they were enacted. Senator COONAN—Just one other thing: I was interested in your view about how you would construe, if you can do this, the conditions under which a medical practitioner may assist in the Northern Territory legislation. There has been some suggestion during evidence before this committee and during discussion that has taken place between certain members of the committee and witnesses that there would be nothing to prevent a doctor—provided, no doubt, it was done on reasonable grounds—acceding to a request from a patient in circumstances where they may have just been diagnosed with an illness, say AIDS: they would be suffering from an illness that would ultimately result in their death; they might not wish to undergo treatment in the sense that there was no medical treatment acceptable to them; and the third leg is that any medical treatment reasonably available is confined to the relief of pain and alleviation of distress. What I was interested in, in a very longwinded way, is whether you think that those clauses are open to that sort of construction or whether there is an implicit requirement that somebody be in a very advanced stage of illness where they are looking at pain relief as the only drug regime that is appropriate in those circumstances. Mr Dabb—Given that that is a detailed question on the effect of the Northern Territory act, which I have not studied in great detail, I would rather not answer that off the cuff here. But I would be happy to have a look at that and give you an answer later. Senator COONAN—It is just that it has come up and it seems to me to be a very important point as to how that might be construed. Mr Dabb—May I have a look at that then? Senator COONAN—Yes. Thank you very much. Senator COONEY—Mr Dabb, if a person is being prosecuted for causing the death of a patient, he or she would be prosecuted for murder not for euthanasia. That would be right, wouldn’t it? There is not a crime of euthanasia; there is a crime of murder.

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Mr Dabb—Yes, murder would be the obvious crime, I would think—certainly not euthanasia. Senator COONEY—We have had some evidence that there is a very significant degree of euthanasia in Australia going on. Do you know of any murder trial that has arisen out of an act of euthanasia? Can you think of any? Mr Dabb—No, I can’t. We are speaking here about a medical practitioner? Senator COONEY—Yes. Mr Dabb—There have been cases of euthanasia, of course, involving relatives and carers. Senator COONEY—Thanks for correcting me—medical euthanasia. Mr Dabb—I cannot absolutely say there has not been one in recent years but I certainly cannot recall one. Senator COONEY—If it is true that there is a significant number—somebody suggested one or even more in 100—then we certainly have not had any— Mr Dabb—The law obviously is not being enforced. Senator COONEY—We do not know, do we, because they might not have been euthanasia? How do we know without it being enforced that it was euthanasia? Mr Dabb—You are quite right, Senator. Senator COONEY—I don’t want to be smart but I did want to use that to move on to the next question: with prosecutorial policy with murder and what have you, is there an element, in addition to intent—the actual act of killing someone plus the intent to do so—of criminality that comes in? What I mean by that is that, with prosecutions and with the policing, even though you might have an act that looks as though it is a murder, they say, ‘Look, in the overall view of things, this has not been done with the sense of wanting to commit a crime or being conscious that you are doing the wrong thing.’ Mr Dabb—I think there are two answers to that. There is a question whether this English rule, the Adams Bland rule that accepts the legality of a medical practitioner who causes death knowing it will be a result of administering pain relief—it appears in various Australian text books and books on ethics, although not in any Australian cases—is probably a kind of working rule. I do not think the law enforcement authorities have bothered to test the limits of the law, and I am not suggesting that they should. They have not written to their DPP or their crown law adviser and said, ‘Lay out for me exactly the circumstances in which this person will get the benefit of the defence so that I can find cases and prosecute people who are outside of it.’ That simply does not happen. There has been no concern to test the limits of the law, so far as I am aware, by law enforcement authorities. The more general answer to your question as to whether there are circumstances where criminality could be excused so that it is not really an offence, is that it is possible that what is referred to as the doctrine of necessity might apply in cases like this. It is a very difficult area of law but there may be cases where a person faced with a choice can choose to do something for a certain purpose. The law is very difficult and it is extremely vague. Senator COONEY—Can I develop this a little, perhaps not the sense of criminality, but has a prosecutor, or has the system, for that matter, got to take into account whether or not it is likely that a conviction is going to be obtained? If you think this is not the sort of case that is likely to result in a conviction and that there is no point in pursuing it, is that sort of thing—

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Mr Dabb—Certainly prosecution policy would have regard to that, among all sorts of other public interest considerations. Senator COONEY—Do you know of any outcry at the moment that doctors are not being prosecuted enough? Mr Dabb—Not that I am aware of, although I must say—I think I mentioned this in the paper—that with strong feelings about this particular issue and concerns about the matter being resolved one way or the other, it is not inconceivable that what I might call test cases could arise. This could happen if, for example, as happened in the famous case involving abortion in the United Kingdom many years ago, the medical practitioner concerned said, ‘I’ve committed this act.’ He wrote to the Times saying, ‘I’ve committed it and I had the requisite intent. Prosecute me if you wish,’ and so forced a prosecution. It is not inconceivable that something like that could happen in this area and that would overcome any concerns about sufficiency of evidence and so on. Senator COONEY—That sort of thing came out of a crusade, in effect, conducted by one person or a group of people. Mr Dabb—There may be a parallel in this kind of situation. CHAIR—Now, if we could have an opening statement, Father Brennan and Mr Williams. Feel free to comment on anything you have heard in the evidence preceding this, especially in relation to the Attorney-General’s submission. Father Brennan—It seems to me in relation to this bill the Senate is wrestling with five questions. The first question is whether or not euthanasia is morally right or wrong—obviously there will be a diversity of viewpoints on that. The second question is whether there ought to be a law against it. The third is, given that the Northern Territory has so legislated, whether the Commonwealth has power to make a law to override what the Northern Territory has done. The fourth is, ought the Commonwealth exercise that power and the fifth is, is this bill a proper exercise of that power expressed with sufficient clarity and absence of doubt? I might just briefly say a few words on each of those. In terms of the morality of euthanasia, it will not be a surprise that I, as a Catholic priest, think euthanasia is morally wrong and that is simply to say that I, being able bodied, as I presently am, would not practice it upon myself or upon anybody else. But I, perhaps because I am a Jesuit and a lawyer, readily concede that there are other citizens who, of perfectly good faith, would take a decision in good conscience to commit a self-determining act to end their lives. I think it is a misinformed conscience but nonetheless I think it is a good conscientious decision which some citizens could make. So simply to argue whether or not euthanasia is right or wrong morally is not to answer the question whether or not there ought to be a law against it. In terms of considering whether there ought to be a law against it, I think, as with any issue of public policy, there is a need to weigh up benefits and disadvantages. The benefits are clear, that for the few individuals who would want to avail themselves of it, they could make a self- determined, freely chosen choice for a timely death with physician assistance. Going on some of the evidence this committee has heard, it seems that that is already done, despite the state of the law in Australia. Admittedly, with a law that permitted euthanasia, there would—for individuals like Mr Bell, who drove all the way from Broken Hill to the Northern Territory—be two added benefits. First, there would be society’s endorsement, some human companionship and state authorisation for that sort of behaviour. Secondly, there would be

LEGAL AND CONSTITUTIONAL L&C 300 SENATE—Legislation Friday, 14 February 1997 a guarantee of legal immunity from prosecution or damages claims for the doctors who presently engage in that process. Against that, I see fairly monumental disadvantages. The first disadvantage is a general one: namely, the removal of the social pressure against and legal obstacles to assisted suicide, thereby increasing the appeal of suicide not just to the terminally ill but also to persons who are depressed or ill. It would be fallacious to argue that the passage of euthanasia legislation, even though it is restricted in its terms to those who are terminally ill, does not mean a change of mind-set by a society in relation to the social acceptability of suicide and attempted suicide by people of all ages and conditions. The second disadvantage is that there would be a decreased institutional and state commitment to palliative care and an increased expectation that terminally ill people would take the cost-effective step. As senators who have to engage in budget discussions and ministers who have been involved in ERC discussions over the years would know, once we move to an institutional mind-set where a cheap and ready option—namely, euthanasia—is available, the arguments that can be put for palliative care being made available to those citizens who do not want to take that cheap and easy option will become more difficult in the longer term. The third disadvantage is that there will be increased pressure on all terminally ill persons to take the euthanasia option for the well-being of others: to maintain the family estate for the education of the grandchildren, to avoid inconveniencing relatives or other similar things. Any of us who have watched people die know it is a very traumatic time, It is a very considerable disadvantage to impose this added choice—which has to be made—on all individuals in society. The fourth disadvantage is the increased Aboriginal mistrust of and alienation from the health services provided by mainstream society. This may be said to be unique to the Northern Territory or at least to be most exacerbated there. Aboriginal confusion about causes of death is inevitably going to have an enormous impact, especially in the Northern Territory and especially where there are still strong notions of payback. There can be no doubt about this. I know that before this committee and elsewhere there have been speculations that some Aborigines have been set up by church groups to put these arguments. I quote from evidence by two individuals whose qualifications for being not in the church fold would be completely uncontested by all sane persons. The first was Harry Wilson, from whom you have heard. I have had the privilege to be the relieving priest at Daly River in the Northern Territory over Christmas periods a few times. Harry runs the show next-door at Peppimenarti. It would not be putting it too strongly to say that he hates the church. On 17 November you heard from him that this is about Aboriginal views, Aboriginal law, Aboriginal perceptions of cosmology and all of those sorts of things and has got nothing to do with church views or Christian law. Equally, you heard last night from Chips Mackinolty, who has proudly proclaimed that there have not been any baptisms in his family for many generations. Having known Chips from his work at the Northern Land Council, I can equally attest that he is not one of the Christian fold. But—as he has put before you—even if this is arguably the right legislation, it is certainly in the wrong jurisdiction, in that its impact on Aborigines and their mistrust of the health system will be very great, given their appalling health situation at the moment. Senator COONEY—To be fair to him, he said that the Catholic church was just as esoteric as the Aboriginal religion, so he did have some regard for it.

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Father Brennan—That probably reflects his discussions with me over the years. The final disadvantage I would note is the expectation that doctors providing a comprehensive service will be willing to administer death dealing treatment as well as life giving treatment. That is a problem to be looked at. I do not want to take up any of the ‘slippery slope’ arguments, but I would strongly contest the notion that the slippery slope goes up rather than down. Some of the evidence already given suggests that, because these things are already done, there will be fewer occurrences if we start regulating them. That is patently ridiculous. Having outlined the arguments about whether or not there ought to be a law against it, obviously I would be of the view that, if the Northern Territory were legislating, they should not legislate a law in respect of euthanasia. Given that such a law has been passed by the Northern Territory, we then come to the question of whether the Commonwealth has the power to pass a law banning euthanasia. I think it is uncontested that, under section 122 of the constitution, it has the power. Does it have the power to pass such a law in respect of any state that might engage in this sort of behaviour? I think equally the answer is no, unless there was a reference of the matter to the Commonwealth parliament under section 51(xxxvii). You might raise some esoteric arguments about the external affairs power and whether or not euthanasia is contrary to international law. There are experts at the table on that. Clearly, to argue that the taking of a person’s life at their request is an arbitrary taking of life is a very long bow. Even with the exigencies of international law, that would be a very big ask. Therefore, I do not think that under the external affairs power such a law could be passed. It may be that under the corporations power—or whatever—you could look at regulating this to some degree within the states. But the better view is that the Commonwealth does not have the power to pass laws to ban euthanasia in the states; it does have the power to pass laws banning euthanasia in the territories. Given it has power, should it exercise it? In a paragraph in my submission I set out what I see as the conditions for the Commonwealth ever exercising the power. Conceding that the power does exist, we now come to the question of whether the power ought to be exercised. As I say: Only in very rare circumstances: where no state has similarly legislated;— as is clearly the case— where the Territory law is a grave departure from the law in all equivalent countries;— that is also clearly the case: it was interesting to read the oral argument in the US Supreme Court last month in which, probably for the first time ever, Australia was mentioned. We are there, well and truly ahead of the field. I go on to say: where the Territory law impacts on the national social fabric outside of the territory;— and that is also clearly the case— and where the Territory law has been enacted without sufficient regard for the risks and added burdens to its own more vulnerable citizens, especially Aborigines. I would make the point to senators that if the Andrews bill goes down it has to be accepted that we will have on the books a euthanasia law which will be seen to be something that does great harm to the Aboriginal citizens of the Northern Territory. That has been heard all but universally by the Aboriginal citizens of the Northern Territory. I would suggest to Senator Tambling that for Aborigines of the Northern Territory it is no great consolation that there might be a draft constitution containing those clauses 2, 7 and 8 saying some things about the capacity for the recognition of self-determination and customary law, when clearly there has

LEGAL AND CONSTITUTIONAL L&C 302 SENATE—Legislation Friday, 14 February 1997 been no acknowledgment of the real concerns of Aboriginal Australians about a law of this sort. I would make a further observation. The conditions for the almost unique circumstances in which the Commonwealth parliament would take back some self-governing power of a territory are very strict. Given that they are fulfilled, we have, in this instance, another situation which highlights the need for a law of this sort. We are talking about a conscience vote which took place in the Northern Territory. Bearing in mind what was said during the debate on the repeal bill in the Northern Territory, if the members of the Northern Territory legislature had voted according to their conscience—or, if you want to avoid that term, had voted according to their views on euthanasia—they themselves would have repealed the Northern Territory act. The vote was 14 to 11. Mr Palmer and Mr Hatton have both expressed long held opposition to euthanasia. Mr Palmer said in the debate that he: . . . was not one to run from or kowtow to every two-bit politician from Canberra or Melbourne who decides to stick his or her nose into the legitimate business of the Northern Territory. Mr Hatton, also an opponent of euthanasia, said: I have never seen a decent territorian back away from a fight. What we have is a conscience vote on the repeal bill in the Northern Territory which is not carried because two members voted not on their views on euthanasia but on other issues—to say nothing of the curious views expressed by the Chief Minister as to why he could not vote for it, which once again had nothing to do with euthanasia. I would not say that these establish the condition of precedent for the exercise of the Commonwealth power but, given that the conditions I have outlined have been fulfilled and also taking into account those circumstances, clearly this is an instance where that power ought to be exercised. As for the question of whether this bill is a proper exercise of the power, expressed with sufficient clarity and absence of doubt, I too have been bamboozled by the extraordinary number of detailed legal opinions you have received about intentional killing. I will not trespass upon that ground, it not being an area of my expertise. But I would simply make this observation: as I read it, this proposed bill before the Senate is one which sets out that there are some things the legislative assemblies of the territories cannot do; there are other things they can do. For the avoidance of doubt, it is made clear that the Right of the Terminally Ill Act is to have no force or effect. There is no mention of what is to happen to the Natural Death Act or the Criminal Code Act of the Northern Territory; they remain on foot. So whatever the esoteric argument that is going on among the legal academics and the legal practitioners in the Northern Territory about what intentional killing might mean under the Territory code, it would seem to me that this can simply stand as an act which in no way would be seen to undermine the efficacy of the Northern Territory legislature to maintain in place its Natural Death Act, its Criminal Code Act and similar acts of the other territory legislatures. It is made very clear that the application of this act is simply to ensure that the Rights of the Terminally Ill Act does not apply. It is not incumbent on the federal parliament to relieve all areas of doubt about the ambiguities of all aspects of the criminal law that might exist in any territory before there can be an act of the Commonwealth parliament which simply negates the effect of euthanasia legislation. Mr Williams—I would like to make a statement that addresses four issues: firstly, the validity of the Andrews bill; secondly, some reasons why I think it should not be passed;

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 303 thirdly, issues relating to whether the Andrews bill could be extended to the states; and, fourthly, on the issue of the drafting of the bill. My first point is that I do not think that there are any strong arguments that could be put that might suggest that the Andrews bill would be unconstitutional. I would agree with the submissions that have come before this committee that section 122 would be wide enough to pass the Andrews bill; it is a plenary power. There is nothing in current High Court decisions which would suggest otherwise. The only argument that I could come up with that somebody might put that would be an arguable point for the High Court as to the unconstitutionality of the Andrews bill is that there might be some convention relating to self-government that might suggest that the bill would be invalid. However, the High Court itself has said that conventions are not enforceable in the sense of binding the federal parliament. At best, the argument might go along the lines of saying that, if you look at the status of the Northern Territory, it is in a similar status to the Commonwealth of Australia. The Northern Territory has a self-governing legislation passed by a higher parliament, as does the Commonwealth of Australia, our constitution being passed by the United Kingdom parliament. Just as with the Northern Territory (Self-Government) Act, the United Kingdom parliament left in certain mechanisms that allow it to annul laws of the Commonwealth parliament. Section 59 of the Commonwealth constitution clearly says that the Queen may annul, on the advice of, presumably, British ministers, an act of the Commonwealth parliament. Convention would say that is something which should not and could not be exercised. Whether or not the UK parliament would ever do that today is, of course, a moot point. But the point that should be made is that that could not be effective: the UK parliament could not, by that means, bind the Commonwealth parliament. You might seek to make exactly the same argument with the Northern Territory legislature. Again, I do not think that is a particularly strong argument but that is the strongest argument that I could come up with. My second point is—and this relates to that convention—that this is a bad law. I think primarily it is a bad law because it singles out the territories. As we heard in argument from the Australian Capital Territory this morning, if this law had been directed to one state I think there is little doubt it would be invalid under the constitution. There was a case in 1987 called the Queensland Electricity Commission case, which found that laws could not be directed to the states. However, I also take the argument that this is really not about states’ rights; this is a territory matter, after all. My perspective is that this law sends a message to territorian people that in some ways they are second-class citizens within the Commonwealth because this law has been directed at them and no attempt seems to have been made to direct it more widely. If it had only been directed at the Northern Territory, it might be argued that that was the only place to which the law needed to be directed. But in also encompassing two other territories, that suggests that only the territories have been singled out; that just because you live in Canberra as opposed to Queanbeyan suggests that you have different rights in the Australian federal system. This argument is strengthened when you look at recent Commonwealth legislation that has dealt with the issue of human rights. Human rights—and euthanasia is an example of this—is a national issue. It is not just a territory issue. I would certainly agree with that position. Other Commonwealth legislation such as that dealing with the Human Rights (Sexual Conduct) Act was expressed to operate throughout Australia. You can also look to some of the environmental legislation, such as the world heritage legislation. Again, that impacted upon Tasmania but

LEGAL AND CONSTITUTIONAL L&C 304 SENATE—Legislation Friday, 14 February 1997 it was expressed to operate throughout Australia. Those sorts of issues are the way, up until this point, the Commonwealth parliament has approached them. I would also agree with many of the submissions put in some of the Northern Territory documents that there are problems here in the lead-up to Northern Territory statehood. In all likelihood, if the Northern Territory became a state, there would be extreme difficulties with this legislation and there would be quite strong questions as to whether it could continue in force because of the special status of the Northern Territory as a state. Again, if we singled out the Northern Territory as a state, even if the law were passed prior to statehood, it might be that that law would subsequently become invalid at the time the Northern Territory passed into statehood. My final point on this second issue is that this sends a dangerous message to territorian citizens and does set a precedent on moral issues that the territories can be singled out; that their self-government is somehow more limited and their rights as citizens are somehow more limited than those of their state counterparts just across the border. It might be that territorian citizens see this as the first step in dealing with other issues such as the prostitution laws in the Australian Capital Territory or issues relating to X-rated videos. Again, these might be the sorts of messages that territory citizens are getting. My third point relates to whether a national response is possible in relation to euthanasia because I would accept that many of my arguments would be met if an attempt were sought to legislate nationally. I think Father Brennan is largely correct in saying that there are great problems with the Commonwealth seeking to legislate to cover the states as well as the territories. However, in this as well as in many other areas, the constitutional law is untested and the final result is unclear. If you look at, for example, the area of trade practices, the Commonwealth has legislated in that area in a very limited way but has sought to do so to the maximum extent possible under its constitutional powers. It could equally seek to regulate euthanasia in the states to a limited fashion by relying perhaps on the external affairs power, which is untested in this aspect. I think it is more likely than not that you could not rely on that power but, again, it is untested. As we have seen with many High Court decisions, it is only when it comes before the court that it is clear what the ambit of Commonwealth power is. There are other powers which could also be relied upon. The corporations power could be relied upon to regulate the activities of doctors who are members of a corporation. The spending power could be relied upon to deal with appropriations here. Perhaps even a nationhood power might be relevant here—another untested Commonwealth power. This does not seem to have been investigated and the message being sent to territorians on this point is they again seem to have been singled out. The fourth point I wanted to deal with was the drafting of the Andrews bill. I would strongly make the submission that the drafting of this legislation could be improved. I could refer the committee, for example, to many of the papers repaired to by Miss Cica that have been put out by the Parliamentary Research Service and also to the submission that has been put forward. I do not proclaim to be an expert on criminal law but there does seem to be some doubt here as to what the scope of this legislation is. If there is some doubt, I would suggest that the legislation should be amended to better reflect what the intentions of the parliament are. If that does not occur then it seems that what will happen is that we can merely second- guess what the courts will do with the legislation. We can predict according to the legal experts what they will decide the meaning is, particularly of the words ‘intentional killing’, but we cannot be certain what the courts will do.

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The second reason why I think the legislation needs to be clearer is that there is perhaps an even more important audience for the Andrews bill: the general public. In my view it is not clear to members of the general public as to exactly what this legislation seeks to achieve and exactly what forms of euthanasia would be outlawed and which ones would not be, particularly as regards passive and active euthanasia. If we put those together there are strong reasons why some redrafting should occur if the bill is to go forward, firstly, to get some more certainty as to what it would mean and, secondly, to simply allow members of the public to better understand exactly what this law is seeking to achieve. CHAIR—Mr Williams, you mentioned possible heads of power under which the Commonwealth could legislate with respect to the states. I do not think you mentioned the power to legislate with respect to Aboriginal people. Could the Commonwealth pass a law saying that euthanasia shall not apply to Aboriginal people—some concerns about this have been expressed? Of course, they would not apply to the rest of the community, but it certainly would throw a big spanner in the works, so to speak, if the states tried to pass voluntary euthanasia legislation. What do you think about that? Mr Williams—Section 51(xxvi) of the constitution says that the Commonwealth parliament can pass special laws with respect to people of any race. In my view, yes, you could pass a law that was directed to the identified special needs of Aboriginal people in Australia that did exempt them perhaps from the provisions of euthanasia laws Australia wide. So you could include the Northern Territory in that and you could extend that to the states as well. Of course, it would not need to be only Aboriginal people. There may be particular concerns from other people in the Australian community. Any people of any race that is identifiable within Australia could be protected, if that was the need identified, using this sort of power. CHAIR—With the corporations power, could the Commonwealth prohibit the manufacture or sale of any drug which might be used for a lethal injection? Mr Williams—Yes, that is one possibility. For example, in the area of the Workplace Relations Act there is still some uncertainty about exactly whether that is constitutionally valid. Again, there is some doubt as to exactly how far the Commonwealth can go. It seems that the Commonwealth can use corporations as a vehicle by which to regulate other matters. For example, if we look at legislation dealing with environmental issues, the Commonwealth has previously said that corporations cannot engage in certain activities, such as sandmining on Fraser Island, and it has used the corporation as a vehicle to regulate that. You could seek to achieve the same sort of thing here. CHAIR—Similarly, could the Commonwealth withdraw a Medicare provider number of any medical practitioner who practised euthanasia? Mr Williams—That is another possibility. Through the appropriations power they could limit remuneration for doctors who had engaged in, as we are seeing here, euthanasia. There is a range of creative responses that could be put forward, and that is certainly another one. Senator ABETZ—You have teased us a bit; you suggested that the bill could be worded in a better way but you did not then take the next step and provide us with that wording. Do you have a suggested form of words that you believe would make this bill tighter and more precise, et cetera?

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Mr Williams—No, unfortunately I do not. That is because I do not profess to be an expert on medical law. I do not profess to be an expert on criminal law. I am a lawyer, so I can see there is uncertainty in the law. My view is that I am not sure how far it would go. Senator ABETZ—I think we have the right person here—the parliamentary secretary for health and the Attorney-General. CHAIR—I point out for the record that this is a private member’s bill. There is some view that there is no conflict as such from my being here today. Due to time, I was unable to be replaced by the Senate. I just make that statement for the record. Senator COONEY—In my view there is absolutely no conflict. We are very pleased to have you here. CHAIR—Thank you, Senator Cooney. Senator McKIERNAN—Mr Williams, are you aware of the amendment that was sought to be moved by Mr Sinclair in the House of Representatives and by Senator Collins in the Senate to try to improve the legislation that is before the parliament? Mr Williams—Yes, I am. I am certainly aware of Mr Sinclair’s amendment in the House of Representatives, which I understand was defeated quite soundly. Again, this is part of my more general point that this is sending the wrong message to people who live in territories that somehow the effort is not being made to include their state counterparts, that they are being singled out. From the records that I am aware of, it does not seem that in that amendment or at other times efforts are being made to really fully investigate the constitutional powers in regard to the states, and perhaps that should be done. Senator McKIERNAN—Mr Sinclair, in speaking to his amendment when he moved it in the House of Representatives, said that it might be possible to put the matter before the Council of Australian Governments to see whether they could get unanimity on it. But he also recognised that it would probably require a referendum to determine whether or not the Commonwealth should or should not be enacting authority to deal with matters of this character. Do you have a view on Mr Sinclair’s suggestion? Mr Williams—Do you mean a referendum in the sense of a plebiscite to simply determine whether people are in favour or are against such a thing or a referendum to change the constitution? Senator McKIERNAN—To change the constitution and give a power. Mr Williams—Undoubtedly the Commonwealth lacks the power, as it does in many areas, to fully regulate euthanasia in all aspects. That is because it has no power that says you can legislate with regard to health or euthanasia. But, in my view, a referendum would not be needed to regulate many of the aspects dealing with euthanasia. Indeed, I think the Commonwealth parliament has the power at the moment to pass laws both for and against euthanasia and it is simply a matter of examining those. If it turned out in the fullness of time that the High Court found that certain aspects of that could not be supported, in my view it would be important to at least make that attempt again to send the right signals to people in territories about what sort of federation we have. Senator McKIERNAN—Father Brennan, Mr Williams has described this as a bad law. He has also described it as being discriminatory. You have some fairly strong views on discrimination. Would you agree with him with regard to what he said to the committee this afternoon?

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Father Brennan—No. In terms of it being a bad law, as I have already said, I do not think a law of this sort can dispel all the doubts that exist in all the different jurisdictions about the key elements of criminal law. If there were any real concern about that, I think that could readily be remedied by, for example, adding a clause, ‘For the avoidance of doubt, this act has no effect on various acts,’ and you could list them—the Natural Death Act, the Criminal Code Act et cetera. So I think the bad law point is not a good one. In terms of the discrimination one, I would concede that if any state had passed legislation in relation to euthanasia then for a law of this sort to stay on the books precluding the Northern Territory from so legislating would be discriminatory. But what I am saying is that we are in a situation now where nationally and in all equivalent countries like us we have maintained a common law and statutory tradition of a ban on euthanasia. My concern, as an Australian, in wanting to ensure not only non-discrimination but also good law, good public policy, is that the Northern Territory legislature, let’s just say, neutrally in the way that it administers itself, should not be in a situation, firstly, to imperil rights of vulnerable citizens in the Northern Territory and, secondly, to impact on the national ethos in a way which a responsible state legislature to date never has. So, to be perhaps a little bold in a political utterance, it would be to say that we are not talking about second-class citizens; we are talking about second-class legislators. I think it is nothing to the point to say that the second-class legislators in a territory in the long term may want to become a state. I would concede, if and when they do become a state, that, yes, they should enjoy full plenary state power in relation to issues such as euthanasia. But I, as an Australian citizen, who admittedly lives outside of the Northern Territory, say to the likes of the legislature of the Northern Territory, ‘As far as I am concerned, you haven’t yet established yourself as the sort of legislature which would exercise full plenary state power,’ and in the interest of ensuring good law, good policy and non-discrimination for all Australian citizens I do not think the Northern Territory legislature should be in the situation on a matter like euthanasia to dictate the pace. Senator McKIERNAN—That is fine as far as it goes with regard to the Northern Territory law. This bill, though, goes beyond the Northern Territory law. It is also depriving the citizens of the ACT, where we are at the moment, of the power of their democratically elected legislature to make laws of this nature for them in this territory, and we have not of course heard from the Northern Territory. Surely there is an element of discrimination in that. I say that in the sense that we have heard some noises coming from South Australia and Victoria that they are possibly thinking about a similar type of legislation. Father Brennan—Were such legislation to be passed by any state, I would readily concede that the Andrews bill, if passed, should be removed from the books. Senator McKIERNAN—On the basis that? Father Brennan—On the basis that a state jurisdiction would then have exercised its legislative power to pass a law in relation to euthanasia. Senator McKIERNAN—But the matter I am putting to you is the power to make laws. In 1A of schedule 2, it says that ‘the assembly has no power’. That is the discriminatory point. That is not in existence in any of the state constitutions. Father Brennan—But equally, Senator, and an issue dear to my heart, the Northern Territory has no power to make laws taking away Aboriginal land rights. I am an Australian citizen who says, ‘That is not an act of discrimination against citizens of the Northern

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Territory. Yet again in an instance like this, with its legislative making capacity, its regard for the rights and interests of its Aboriginal citizens, in my view as an Australian, is so minimal that there is still a need for a supervisory role by the Commonwealth parliament.’ What I have suggested in my submission is that there are certain criteria to be fulfilled to determine whether or not the Commonwealth would ever exercise this power. What I have stipulated there is that where no other state has legislated in this way and where all equivalent jurisdictions have not done so I think that is clearly an instance where the power of the Commonwealth ought be exercised and where the limit should be imposed on the Northern Territory legislature. Senator McKIERNAN—I am still not sure I agree with you; but it would not be the first time. Father Brennan—It would not be, Senator. Senator COONEY—Mr Williams, could I perhaps put that to you to give you a chance to answer it. You have been saying that there is discrimination against the people in the Northern Territory and the other states, and I think that is right. But the constitution itself sets out, I think—you can correct me if I am wrong—the process by which a particular area of land in Australia becomes a state. I do not think that has been done in respect of the Northern Territory or of the ACT. What I would like to hear from you is that, if there is that distinction and if there is a process through which they should go to become a state, why do we ignore the fact that that has not taken place when we say, ‘They’ve got to be treated as equal,’ when clearly they are not? From some evidence this morning, the people in the ACT did not rush, I do not think, to become a territory; a lot of them were reasonably happy. So it is not as if we have a situation where there is a big ambition in the ACT to be fully like the states. Also there is the fact that a considerable amount of the Northern Territory’s income comes from the Commonwealth in any event. In drawing a long bow, you could say that he who pays the piper can do whatever to the tune. I go to Father Brennan’s point. Given all that, as far as the constitutional situation goes, we are not doing something positive; we are reducing the area in which the crime of murder operates. It is not as if we are talking about some minor issue; we are talking about murder, which is a very big issue indeed. As Father Brennan says, it is an issue that could well affect the rest of Australia and the world. This is the first such legislation, as I understand it, in the world. We know the Dutch have gone down a particular path; but this is the first legislation in the world made by a parliament that was very divided on it. If you accept Father Brennan’s view on this, and I suppose we can, the legislation was then reaffirmed by a parliament that seemed to be voting against the general thrust of what most of the members would say about euthanasia if they were asked here. So you have all that uncertainty. We are then faced as a national parliament with the fact that we do have power. We have got power to do something about a very confused situation—a very worrying situation. We have the capability of doing it. You have said, ‘Look, the United Kingdom has the same sort of power in terms of the statute,’ but I think if you apply the constitutional law that Shakespeare applied in his play when he says, ‘He who holds the kingdom holds the law,’ it is fanciful to imagine on that basis that the United Kingdom parliament could do anything about Australia—fanciful as a matter of reality. But what worries me is that it is not fanciful that we can do something about the Northern Territory law. If it is of the quality that it is—it seems to be a law about murder, about an issue that has never been tested before—then, as

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Father Brennan says, isn’t it reasonable that we should vote for this law? That is a long rambling question. It was asked to give you a chance to reply to Father Brennan. Mr Williams—I think probably the main difference between the position taken by Father Brennan and that taken by me, and the basic premise that we perhaps disagree on, is that somehow Australians should be— CHAIR—I must say thank you to Father Brennan for coming. He has got to catch a plane, I am afraid. As usual you have been of great assistance. Sorry, Mr Williams. Please continue. I have interrupted you. Mr Williams—I was going to say that I think Father Brennan and I probably disagree on one basic premise: that is, in my view Australians should be in the same position as regards self-government whether they live in a territory or in a state. In my view, legislators are not, as Father Brennan put it ‘second-class legislators in the Northern Territory; self-government has been granted’. I take your point about the fanciful notion of the UK legislation. That was not so fanciful 50 years ago. If you look at the situation 50 years ago, you would say Australia itself was a second-class parliament if you were to apply that argument. We were in the same position then that the Northern Territory is in today. If the UK passed a law prior to the statute of Westminster in 1931, say, they could have passed a law, say, to destroy some law in Australia that was a world first, again on the premise that Australia had a second-class parliament. Also, I think that argument assumes that somehow democracy is different in the territories than it is in the states, and that, for that reason, the people’s representatives in the territories should be treated differently. For that reason, I would reject Father Brennan’s argument that, if this law had been passed by a state, then somehow this parliament should be seeking to treat it differently. Again, I would not adopt that argument. Your second point related to the seriousness of it, also the fact that this is a world first and that maybe there are some special circumstances. If that is the case, I would wonder why this law has been extended to Norfolk Island and the ACT. If we are dealing with a one-off situation in the Northern Territory, perhaps the law should have been limited to that territory. If we are dealing with something of more general concern, we should have extended it to the states as well. As the law is currently drafted, it singles out territorians even where they do not have a euthanasia law on their books. Again, that is, in my view, sending the wrong message. Again, this is about human rights and the rights of people who live in territories, not states. It puts people in the ACT in a particularly invidious position because, while the Northern Territory may well become a state in due course, the odds of that happening for the ACT are very low. There are real problems with that occurring, given that that is where the seat of government is, and there are some doubts as to whether it could ever occur. So does this mean that people who live in the ACT are perpetually in this state of having second-class representatives in their parliament? It is on that basic premise, I think, that I would take issue with Father Frank Brennan. Senator BROWN—I just want to put to you the question of the five per cent or so of people it is generally agreed have intractable and untreatable pain, and their right as individuals to seek to put an end to that pain when they are terminally ill and do not have a hope of remission. Do you think that that right ought not to exist? Mr Williams—If I were to answer that question the first thing I would try to do is to look to some of the international human rights laws that are in existence. Whether that right should exist or not is most unclear at international law. We have got the right to life in the

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International Covenant on Civil and Political Rights, which does not address the issue. If you look at the submissions before the committee, I would agree with the position that the international community has not dealt with it. So we do not have any statement internationally as to whether it is a right or not. Other than that, I could only go on my personal view, which I am still in the process of forming. It is not something I would put before the committee, because really my expertise lies in the area of constitutional law. My point is only that this, as a human right, is still being argued internationally, and there is no clear law on it either internationally or domestically either way. Senator BROWN—So it might as easily be there as not be there? Mr Williams—That is right. That is one of the problems with the external affairs power if we want to rely upon it: the international law is unclear as to whether it is a right or not. Perhaps it is something that will in the fullness of time emerge either way, but I do not think we have reached that point yet. Senator BROWN—Do you think the position is preferable to the Northern Territory situation? In Australia hundreds of people each year are being assisted to die without their knowledge—their death is hastened without their knowledge; in fact, they ‘are killed’—to use some other people’s terminology; I heard that in the last 24 hours—by their medical attendants, but the law does nothing about that, and they are not consulted. Mr Williams—I speak only from the point of view of perhaps what the law should say. In my view, it is dangerous for law to be on the books which is inconsistent with the practice which perhaps is widely practised and the general community would either support or believe should not be outlawed. Look at other laws around Australia which are seen to be wrong in some way. For example, Tasmania’s anti-homosexual law is a law that has never been enforced but remains on the books. Senator BROWN—Not in very recent times. Mr Williams—That is true. It has not been enforced in very recent times. But, if the view is that that law will not be enforced and should not be there, then it should be taken from the books because the law is meant to represent some statement of the community’s view as to what the law should be and if it is wrong, it should not be there. Senator BROWN—Conversely, do you think that, where there is a widespread practice that is occurring outside the law, it would be better to codify that practice? I am talking about euthanasia here. Mr Williams—Not necessarily. In many situations the best thing for the law to do is stay silent on an issue. The law does not need to deal with every aspect of Australian society but, in some circumstances, it may be that where the law does speak, it speaks in a way that is inconsistent with accepted practice. That might be a problem. But that does not mean you need to legalise something. Senator COONEY—Especially, I suppose, when the crime is that of murder. It might well be best to leave that to the juries and the community generally. Mr Williams—That may well be appropriate. Senator BROWN—What about the ethical position where not codifying it effectively is going to mean that in many cases doctors make a decision without consultation with the person who is dying whereas, when it is codified, there is clearly the avenue for openly making that decision in consultation with—or at the request of—the person who is dying?

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Mr Williams—I would have to say you are probably straying beyond my expertise in that I am not an expert on medical law or medical practice. I just do not feel equipped to get into those issues because I do not pretend to have read all the relevant materials or to know enough about it. If I could, I would avoid that question for that reason. CHAIR—Dr Balkin, do you have any comment about the international law aspect that Mr Williams spoke of? Can you give us a very brief 30-second answer? Dr Balkin—Perhaps I can just confirm what Mr Williams has said and, I think, Father Brennan too. In our view, the external affairs power would not support an anti-euthanasia measure. As the international law stands at the moment, there is no international customary law which obliges states to enact such anti-euthanasia laws. Some states have such practice, but for an international customary law to exist the practice is not enough. It must be carried out as a measure of legal obligation, which there is no evidence of. There is no express treaty provision which deals with euthanasia, so any law would have to be argued on the basis of an application of the right to life in article 6 of the International Covenant on Civil and Political Rights. It is clear from the travaux preparatoines, the preparatory works, that it was not intended at the time to cover euthanasia. It was regarded as too hard an issue for the international community to deal with. There is no international jurisprudence that we could find linking the right to life in the covenant with euthanasia. There is academic opinion expressed one way or the other as to whether the right to life as such prohibits euthanasia. But there are equally valid views expressed that the right to life would allow a right of euthanasia in the sense that it is the individual’s right to life, and part of that is the right to choose whether to continue with your own life or not. We do not believe that international law as such supports a pro- or an anti- euthanasia law. As it stands at the moment, we do not think the external affairs power could be based on that. Senator HARRADINE—I would like Mr Dabb to comment on the reference that was made to 51(xxvi). Mr Dabb—The people of any race power? Senator HARRADINE—Yes. Would the Andrews bill be properly based on the race power? Mr Dabb—I think that is probably more in the area of Mr Marris. The question would be, could a law like the Andrews bill be framed in relation to all the states but limited to Aboriginal persons? Senator HARRADINE—No. Bearing in mind the evidence we were given last night, the very existence of the law in the Northern Territory is a threat to Aboriginal health—the very existence. Mr Dabb—On the face of it, I would think it is possible that section 51(xxvi) could support such a law, but one would certainly need to look at the potentially discriminatory aspect at the same time. Mr Marris—It might be drawing a long bow to say that you could base a law such as this bill exclusively on the Aboriginal power for that reason. I think Mr Williams was suggesting something a little different in that you could apply this law in relation to Aboriginal persons as opposed to the general populace at large, and I would agree with him. There would be scope for that sort of law.

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CHAIR—Thank you very much Mr Marris, Dr Balkin, Mr Dabb and Mr Williams for your assistance. If there is any other matter you want to raise, perhaps you could put it on notice. Thank you. Sitting suspended from 1.02 p.m. to 1.42 p.m. [1.42 p.m.] BURKE, Mr Tony, Executive Director, Euthanasia-No, PO Box Q328 Sydney 1230 CLARK, Mrs Karin Siang Min, Representative, Euthanasia-No, PO Box Q328 Sydney 1230 MUIRDEN, Dr Nellie Marian, Member, Euthanasia-No, PO Box Q328 Sydney 1230 POLLARD, Dr Brian James, Member, Euthanasia-No, PO Box Q328 Sydney CHAIR—Welcome. Mr Burke, would you like to make an opening statement? Mr Burke—Thank you. Each of us here has been asked to appear on behalf of an office that goes by the title ‘Euthanasia-No’. It is a single issue organisation, a single issue office, which deals with the issue of euthanasia and no other. It opposes both voluntary and non- voluntary euthanasia. The reason for having the panel is that, given the whole range of issues involved in this debate, it was mentioned earlier on by the secretariat that it would be of assistance if we could provide some sort of overview of the case against legalisation of euthanasia. For that reason, I point out right at the beginning that Dr Brian Pollard, as the author of The Challenge of Euthanasia and someone who has made regular submissions to members of parliament, is across various issues relating to opinion polls and is also across the information contained in each of the three major international reports on the legalisation of euthanasia. Dr Nell Muirden is currently working as a palliative care doctor specifically concerned with cancer patients and is able to answer questions concerning what is currently happening on the ground in a palliative care situation. Karin Clark is a solicitor who has been writing for some time about laws relating to medical treatment and she is across all the contents of the Rights of the Terminally Ill Act. I know there have been a number of questions about what that act specifically does and does not allow. So Karin Clark is able to assist with that. I thank the committee for the opportunity for us to appear today. Given the high number of submissions, anyone who gets a guernsey at the committee can consider themselves very fortunate. I start with a basic framework of what the debate is about. The debate about voluntary euthanasia being legalised is about how you respond to someone who says,‘I want you to end my life.’ That is what the debate is about. There is a general protection against suicide which applies in all jurisdictions, which says that if someone asks you to end their life then in no way can you participate in doing so, you cannot incite them to do so and in fact you can take reasonable steps to prevent them from doing so. Legalised euthanasia says that for certain categories of people that response should be different. With the situation in the Northern Territory, precisely who those categories are is something that is defined in the Rights of the Terminally Ill Act. But nonetheless, by any definition, it involves a different response to that question ‘I want you to end my life’ from that which would normally be given. In what euthanasia itself involves, the first part involves the voluntariness of it but in what euthanasia itself involves—and a lot has been said about intention and there have been a lot

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 313 of questions about what is and what is not euthanasia. There is a very simple test which we have always put forward, which gives you an indication as to whether or not you are dealing with some form of euthanasia, voluntary or otherwise. The test is to ask what the doctor would do if the person lived. If you turn off a machine and the person continues to live then you continue to care for them. If you give somebody a pain-killer which may, under some people’s assessment, be something involving a double effect, if the person continues to live then you do not give them a further dose until they require it for more pain. If it is euthanasia and you give someone a lethal injection and for some reason after you have given it the person is still alive, the intention is clearly seen as different when you ask, ‘What do you do if the person lives?’ The answer is, of course, that you give a higher dose and keep going until the person is dead, because that is the objective you are trying to reach. Intention really does matter in this debate, and when you simply look at what you would do if the person were to live that becomes patently clear. Marshall Perron made a lot of criticisms of the way the debate has been handled when he appeared in Darwin. I do share some concerns in the way the legalisation of voluntary or non- voluntary euthanasia has been debated, and that is that the whole focus of the debate has been: very much on coming up with a scenario, a particular person in a particular situation, and saying, ‘What about that person? Should that person be able to access euthanasia? And what that does is involve people in an ethical debate, an interesting philosophical debate, but it does not address the issue at hand. The issue at hand is, should it or should it not be legalised? Legalisation carries with it a package of consequences. Unfortunately, during much of this debate those consequences have not been considered as part of the overall package. If I could, in dot point form, outline some of the consequences that come as part of that package with legalisation? The first, which is something which is probably more specific to the Northern Territory situation but is a situation with Aboriginal health, I would not pretend to in any way add to what Chips Mackinolty said last night. I have to say I have not known a more compelling witness to appear anywhere. But certainly the Aboriginal situation is part of the package and no-one can pretend that it is not. The loss of trust is something that has always been argued between doctor and patient, and it is something that the Aboriginal situation in the Northern Territory has merely highlighted. The issue of pressure does not demand, although it is certainly a concern, that people are going to be pressured by malicious relatives. The mere fact that an option of this nature is available is a pressure in itself on vulnerable people. This is an issue that Ian Gawler was hoping to raise but due to ill-health in his family he was not able to be here today. As people would be aware, Ian Gawler was given a three-month prognosis about 30 years ago. He has since then counselled thousands of people living, or dying, whichever term you want to use, with cancer. He says that his greatest concern with this is that people will be asked a question which they ought not be asked. People who never would have considered euthanasia when options are presented to them will be forced to consider an option which previously would never have come up. The next point is that some people—and this is irrefutable, and the capital punishment example is probably the strongest example you will ever get—will be killed who would have gone on to live and be glad to be alive. Accepting that they would be part of that package is necessary.

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Finally, it does devalue people with disabilities. A number of supplementary materials have been distributed, including some information on the decision of the Supreme Court of Oregon, the amicus curiae brief to the American Supreme Court from the group , a disability rights group in the United States, and the declaration on the rights of the disabled because that cross-references to some of the material contained in the submissions. I appreciate that with the funeral last Friday it ended up not being possible to hear all the witnesses it had originally been intended be heard, and for that reason Dr Christopher Newell was not able to be called to give the Australian perspective that has been so persuasive internationally about the way in which this sort of law does devalue people with disabilities. Certainly on any of those points I am more than happy to take questions. CHAIR—Thank you. On that point, could you explain how you say it does devalue the rights of disabled people? Mr Burke—The argument that has always been used is first of all when you deal with that general protection against suicide. That general protection is an important thing. If we talk about youth suicide statistics or a whole range of things, the fact is that if you are suicidal no-one will agree with you that, yes, your assessment of your life being valueless is right; no- one will say, ‘Your decision to end your life is so right that I am in fact going to help you do it.’ That makes a difference to the person who is suicidal. What legalised euthanasia does is say that that general protection is dropped if you meet certain physical requirements. Currently the limitation is in respect of terminal illness. We had the architect of the legislation and a number of people in Darwin argue quite specifically that it should be available on the grounds of disability. So you end up with, essentially, a situation where there are, say, two people: the first has no physical disability or illness at all; the second person has a serious disability and, dependent on continuing treatment, conforming to the Rights of the Terminally Ill Act as being terminally ill. If both those people go to the doctor, to Dr Nitschke for example, and say, ‘I want you to end my life,’ the first person will be told, ‘No, that is an irrational decision. You are valuable. We can help you through this.’ The second person with the exact same consent, identical request, identical autonomy, will be told, ‘Yes, that is a rational decision. We can help you do this.’ I do not see how you can set up categories that say, ‘If you fit this category and are suicidal we will consider it rational’ without devaluing the lives of the people in those categories. That is certainly the reason that the Oregon assisted suicide law has not been brought into force. It has been one of the key arguments before the US Supreme Court in its current deliberations and it was one of the most powerful considerations in the Canadian Senate inquiry. CHAIR—In relation to the Morgan poll which found that 75 per cent of Australians approved of euthanasia, I think it was in 1996, you dispute that as not being representative. Why do you say that? Mr Burke—The first thing I would say in terms of opinion polls is that if there is one jurisdiction where a decent opinion poll of the true population probably would not find a majority it is the Northern Territory. The second thing is that I have got to say I am not a huge believer in opinion polls as being a reason for governments passing or not passing laws. The supplementary materials we have provided include, dating back some 15 years, the consistency of opinion polls on capital punishment and on Asian immigration. Rule by mob is not always the way to go. By all means opinion polls are something to be taken into account, and they are probably increasingly important to some people as elections approach, but the reality is

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 315 that opinion polls do not always recognise the rights of the most vulnerable people in society— they just do not do that. Could I ask Brian Pollard to say something about opinion polls. CHAIR—Yes. Thank you, Dr Pollard. Dr Pollard—Euthanasia is an extremely complex subject, as everybody knows, and the understandings of different people vary across a very wide range of opinion. For some, emotional argument prevails, but for anybody the question of taking an innocent human life involves an ethical content. So an opinion poll of members of the public about an ethical issue—is it right, or is it not right—I do not think is an appropriate use of an opinion poll. They are for political purposes really. It is not the sort of thing that you can canvas an opinion about, and make decisive responses to, when the understanding of the people being polled is not known. In fact, it is unknowable. Their understanding of the issue is not known and is not knowable. You do not know what they know about it. So you think, ‘Now where did they get their information from?’ Most likely, most people get their information from the media. The media presentations generally are emotional, they are ratings driven, very often superficial and that is about the extent of the understanding of a lot of people about euthanasia. So an opinion poll is finding what the media have wanted people to know. Regarding the specific question, which is said to be a question in the Morgan poll, for example, in relation to euthanasia, it reads: If a hopelessly ill person in great pain with absolutely no chance of recovering asks for a lethal dose so as not to wake again, should the doctor be allowed to give the lethal dose or not, taking into account the current ability of palliative care to relieve, to a very large extent, the pain of terminal illness, and bearing in mind that the skills and attitudes of palliative care are really unduly low throughout the community? A paraphrase of that question would now read in this fashion: If a doctor is so negligent as to leave a terminally ill patient in severe pain, for whatever reason, severe enough to drive that person to ask to be killed, should that doctor then be able to compound his negligence by killing his patient instead of seeking expert help. It is not my view alone that failure to treat pain adequately in terminally ill patients can very often be categorised as an act of negligence. Doctors practices are governed by sections of the law which could be categorised as medical law. One of the requirements is that doctors practise at the standard expected of the peer group that they represent. General practitioners and doctors who treat cancer patients—people who are terminally ill—would thereby be expected to know, and if they do not know to find out, and if they do not care to find out to consult with others, and if they do not do that to send the patient on to somebody who is an expert before they would declare the patient’s pain to be irremediable. CHAIR—That’s right. Dr Pollard—Professor Margaret Somerville, from whom I think you heard this morning, when she was in Australia a number of years ago, said that it was her view, in view of the current capacities of palliative care in relation to physical pain, that if a doctor left his or her patient in severe unrelieved pain that would be unnecessary, cruel, probably negligent, and rather than being a reason taken at face value to take a patient’s life, it may well be better approached by getting an expert in to treat the pain and then to take the doctor to task for failing to do his medical duty. So the question in the Morgan poll, in my view, is not really a question about euthanasia, it is about standards of care for dying patients. For that to be interpreted as implying community approval of euthanasia is wrong as an interpretation, altogether apart from the

LEGAL AND CONSTITUTIONAL L&C 316 SENATE—Legislation Friday, 14 February 1997 fallacies inherent in polling people at random on complex ethical issues and making considered judgments as a result of what they say. Senator McKIERNAN—As a witness said in opening up, sometimes people look forward to appearing before Senate committees, but sometimes Senate committees look forward to witnesses appearing before them. And now I have Mr Burke shaking in his boots I will move on and say no more about that particular matter. Seriously, you mentioned that the debate has been going on for some considerable time. The debate really became open when notice was given of the proposal to establish the Rights of the Terminally Ill Act in the Northern Territory and it was referred off to a committee of the Northern Territory Legislative Assembly. That was really when the debate started. So would you accept that there is an informed community now, particularly in the Northern Territory, about the issue of what is contained in the act of parliament and also the general issue of euthanasia. And, for the moment, I want to put the Aboriginal people to one side. Mr Burke—The short answer is no, but I am only basing that on straw polls. I spent a short number of weeks in Darwin ever since this act was first passed. People consistently, for example, believe that a psychiatrist has to make a complete assessment about the person; the act does not provide for that. In fact I have had a member of the territory parliament—I should not name the person—say to me, ‘But it is only available if the person is going to die within 12 months.’ And that is among the legislators who actually passed the legislation. So I think, in terms of the specifics, if you find your most extreme situation: do they know that there is legislation to make euthanasia available in that instance? The answer is certainly yes. But in terms of once you get away from that situation, for example, somebody who has longer than 12 months to live, or in other sorts of scenarios, someone who is clinically depressed but for reasons other than in respect of the illness, there is no knowledge of that and people tend to be shocked and alarmed and think that you are mischaracterising the legislation if you offer any of those arguments. Senator McKIERNAN—Do you think there is a campaign of misinformation going on, surrounding the act of the parliament, the Andrews bill and the issue of euthanasia in general? Mr Burke—I actually think there was so much publicity in the lead-up to the vote that a lot of those references to which I have referred were actually changed on the night. So I think, to be honest, while it would be fun to say, ‘The territory government has had misinformation about it, to try to make it sound as though it is only for more extreme situations,’ I think the reality is that the media campaign ran on the bill that was presented to them. People made up their minds on the bill that was first presented to them. It was changed reasonably radically on the night of the vote and I think that has made a very significant difference to both what the bill allows and the discrepancy between what people understand the act or law to be and what it actually is. Senator McKIERNAN—Is that comment made in the context of the Northern Territory? Mr Burke—That is in the context of the Northern Territory. I presume in the rest of Australia the knowledge of the Rights of the Terminally Ill Act is less than it is in Darwin. Senator McKIERNAN—Do you, or your organisation, or the body corporate that forms your organisation, accept that euthanasia does happen in parts of Australia where there are no laws that allow for lawful or legal euthanasia? Mr Burke—Professor Baume, who appeared yesterday I understand, has said on different occasions that he has been involved in procedures of that nature. Other doctors have come

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 317 forward and have said they have been involved in procedures of that nature. I have no reason to disbelieve them, that in fact there is some sort of level. Senator McKIERNAN—So you accept that it is happening? The evidence is there. Mr Burke—Yes. Senator McKIERNAN—We now have, on the statute books from the Northern Territory, a law which allows for the lawful termination of an individual’s life, with their consent. It has been 7½ months in operation and we have had three people exercise their right with that law. What are the grave fears from your organisation to having such a law in place, with all the difficulties there are in accessing that law? Mr Burke—The difficulties in being able to access the law I think have been recently overstated, in the sense that the reason there have only been three is not because people are not able to qualify under the law. It is because of the fact that the specialist has to be a resident of the territory and the resident specialists, by and large, have been unwilling to participate in euthanasia. So I think that is the reason for that. The real concerns can be characterised in a couple of ways. It is who is affected by the law—and if it was only the three people who had been killed, I would have to say I would still be on this side of the table. But to get the same sort of support that our organisation has had, we would probably have to call ourselves Euthanasia Perhaps, or something like that. There is no doubt—and it came through with Senator Collins the other night—that a lot of people are not worried if it is only about those three people, but it is not. For a patient who never would have considered euthanasia, when the options are presented to them it is easy to say, ‘This is just another option.’ But I really do believe a patient is being asked a question which they ought not be asked. Somebody who would have no suicidal ideation is now being asked to choose an option and the doctor has got a duty to present the options. You can have this treatment, this treatment, or you can have death. That is not just another option. That demands that a patient think about things in a completely different way and they have entered, and they know it, a new category. All the other questions they are asked are questions like, ‘How do you feel about the value of this treatment?’ The euthanasia question is, ‘What about the value of your life?’ When people are considering whether or not they should be able to have a treatment or discontinue a treatment, the question is usually, ‘Is the treatment a burden?’ With euthanasia, we keep getting asked, ‘Is the person a burden?’ So for a vulnerable patient, who never would have requested euthanasia, the mere existence of the act—the mere existence of this as an option that has to be presented—is, in itself, a pressure. And that affects many more than three people. Senator McKIERNAN—But if your scenario were correct, were accurate, were precise, I would put it to you that there should be a lot more than three people who have taken advantage of it. Mr Burke—That is because of the specialists. You have got a limited number of specialists, currently, in the Northern Territory who are supportive of the act. If that changes—and it takes one cancer specialist to get there, and probably a resident psychiatrist who is in favour of it, so that they don’t have to fly people in each time—then a lot of people suddenly start meeting the requirements of the act. It is not the requirements of the act that are the problem; it is the opposition from the people who are being asked to perform it.

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Senator ABETZ—Dr Pollard, have you had an opportunity to read the article which is to be published on Monday, but I think is now circulating somewhat wider? Dr Pollard—I received a copy of it about 20 minutes before we came into this room and I purposely declined to read it because it would not have been fair to form any superficial judgments. I got the gist of it, that is all. Senator ABETZ—Could I invite you to read it and give it your consideration. I, for one— but I am sure the committee as a whole—would appreciate your written commentary on it within the next few days or so— Dr Pollard—I would be very happy to supply that. Senator ABETZ—I will ask you whether you agree with certain statements. The first statement is on the second page of the document you have. I am quoting from the media release of the Medical Journal of Australia. The first two paragraphs on that page read: In an editorial in the MJA Professor Michael Ashby, Monash University Professor of Palliative Care, draws a distinction between a doctor causing or hastening death by stopping "active" treatment or by palliative interventions and the administration of a lethal injection or the supply of the means to commit suicide at the request of a terminally ill patient. It goes on to state: Nobody benefits from lines of argument which equate the cessation of treatment or decisions not to treat when a person is dying with giving a lethal injection to end a life... Do you agree with those statements? Dr Pollard—Most certainly. Senator ABETZ—So any study or survey that merged the concepts of doctors doing an act or an omission as being one and the same thing, doctors intending not to prolong life and doctors intending to hasten death as being the same thing, if you took all those four concepts together—act, omission, not prolonging life and hastening death—and put that in the definition that has been used, namely ‘medical end of life decisions’, you will get a whole range or a lot larger category of deaths that would be categorised by ‘medical end of life decisions’ than would normally be understood within the community as involving euthanasia as it is understood by the active killing of a patient with the intention of killing them. Dr Pollard—That paragraph that you have just read out comes to the distinction which forms the basis of a great deal of critical care medicine, the things that doctors must do— remove futile treatment, and so on, because they are too expensive, it is not possible to continue them forever, and they have been shown to be failures and never will be able to succeed. To equate that sort of decision and action by a doctor with the administering of a lethal injection which can only have one outcome and one intention, which is the crime of murder in our current statute laws, is to make a mockery of a great deal that doctors do. If it is held that they are essentially the same kinds of action and there is not a distinction to made between them, then I ask you to read the comparison backwards, as it were. If you want to equate the giving of a lethal injection—which is murder by our current laws—with the removal of futile treatment then, if you read it back the other way, every time a doctor discontinues treatment, which is no longer of any benefit to the patient, he is committing an act tantamount in its gravity to murder. You can read that statement forwards and backwards. That, I think, illustrates the untenable nature of that kind of a concept. Modern medicine would not be able to proceed if, in fact, that were a true statement.

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Senator ABETZ—Professor Baume and Professor Kuhse are well known within medical circles for having a particular point of view in relation to euthanasia? Dr Pollard—They are. Senator BROWN—Mr Burke, do you agree with a women’s right to an abortion? Mr Burke—I know that I am known on a whole lot of issues from native title to a lot of stuff here. My opening statement said that we are all appearing on behalf of Euthanasia-No. It is a single issue group. I do not have the authority from that group to talk to you about native title, about the criminal code or about anything other than euthanasia. With respect, that is the position in which we have come here. Senator BROWN—You have given quite a bit of opinion though. Can I ask you as a personal matter, so that it will be on the record as such? Mr Burke—I was asked in what capacity I appear, and I answered that. In fact, if I were to answer the question, it probably would not assist the cause that you are looking to create anyway. Senator BROWN—You can leave it to me as to what cause I am trying to create. I am just simply trying to get an answer. Mr Burke—I have explained the capacity in which we appear. I cannot get around that. Senator BROWN—Then you will answer the same way on the personal matter of your own opinion on euthanasia; you do not have an opinion? Mr Burke—I am here on behalf of Euthanasia-No. I am here to state the position of Euthanasia-No. Senator BROWN—You did seem to have an opinion on democracy, or perhaps it may have been Euthanasia-No’s opinion. What did you mean when you said that ‘rule by mob’ is not always the way to go, when referring to opinion polls? Mr Burke—If you simply do whatever the majority wants on every issue, vulnerable people are going to get a very bad deal. Senator BROWN—So you should do what the minority wants? Mr Burke—In some circumstances, yes. I wish you could now ask me a question about my position on native title. Senator BROWN—What are the ways of defining, in a democracy, those circumstances? Mr Burke—The circumstances are simply that you look at what is the package of consequences of legislation, the same as I said in my opening statement. The three people who have received euthanasia in the Northern Territory are an absolutely important part of this debate, but you cannot look at them to the exclusion of the other effects. You have to include the situation with Aboriginal health; you have to include the situation of what sorts of questions will be put to patients who would never have asked for this; you have to ask the question about what sorts of pressures are going to be there. Then you have to make a judgment: are we letting down vulnerable people? Senator BROWN—Is there not a difference between a mob and a majority? Mr Burke—I think if the majority is walking over the top of vulnerable people, then a mob becomes a fair definition. Senator BROWN—Yes, but you are using a whole series of ill-definable terms there. The real question I am trying to put to you—

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Mr Burke—I am sure your concern about my use of the phrase ‘rule by mob’ is that it has a pejorative context. It has that pejorative context because I believe that this is a law where the majority opinion, as evidenced in opinion polls, would let down vulnerable people. That is why I have used that term. It is the vulnerable people who are the issue. If you disagree that it is going to let down vulnerable people, then ‘rule by mob’ obviously would not be an appropriate term. Senator BROWN—So it really comes down to the issue depending on how you see it. Mr Burke—No. You are the legislators, you are the people elected and, essentially, you are the people who are going to be charged with the job of deciding how this is going to impact on vulnerable people. Certainly I am here representing an organisation which has received delegations from lots of people who would not be considered beneficiaries of this sort of legislation. Senator BROWN—Then you believe that the people are not as important as the legislators in determining this matter? Mr Burke—I think the vulnerable people who will be the most affected are more important than the majority who might not be affected. Senator BROWN—Do you have the view then that in all matters we should have a single approach to everybody—and I am talking about euthanasia here, obviously—and there is not room for there to be an individual choice when it comes to such a matter? Mr Burke—None of the arguments I have raised presume that there would be anything other than voluntary euthanasia. There are good arguments to say there would be. But none of the objections I have raised in terms of impact on vulnerable people presume anything other than you are dealing with a situation where that choice is there. Senator BROWN—I repeat my question: you think there is not room in this for an individual to have the choice for herself or himself? Mr Burke—That choice is only available by the passage of a law. That law has a very serious impact on vulnerable people and, given that is the only way that choice can be made available, I think it ought not be. Senator BROWN—You are saying then that choice is not available in jurisdictions that do not have the law? We have had a lot of evidence put before us in the last 24 hours about hundreds, if not thousands, of acts of euthanasia taking place in this country year by year. Mr Burke—With respect, the quality of that evidence is something that I have not been allowed to look at until half an hour ago. I accept it in response to Senator McKiernan’s question earlier. But then you have to ask a question: okay, if you presume whatever level is happening out there now, what difference is legislation going to make? With respect, I just do not believe that people who are willing to say, ‘Well, I don’t like the current state of the law so I’m going to break it,’ are suddenly going to become good law abiding citizens because the Rights of the Terminally Ill Act has been passed. If they are in a situation where they believe that the safeguards are not appropriate, then they will go back to doing what they used to do. Former Senator Baume, Professor Baume, is a classic example of this. He said—and it is on the public record—that he gave advice to Dr Nitschke to go ahead without the extra signature: if you cannot meet the safeguards just go ahead and do it. I fail to see how that sort of a law regulates those particular people. But it does make a big difference as to whether or not people who are sick, who are vulnerable, are allowed to be asked this sort of question in the presentation of their options.

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Senator BROWN—Mr Burke, you are bouncing around quite a bit. The point—and it is a very critical point—in this whole debate that I want you to address is whether or not an individual has a right, she or he, to choose an option in the matter of euthanasia? Mr Burke—I cannot answer it differently from how I have, but I can do so more concisely. Senator BROWN—You could say yes or no. Mr Burke—No, I cannot, because you are presuming that it is not the case—and it is the case—that that sort of an option can only be made available through the passage of a law. Senator BROWN—I am not presuming anything. I am just saying, whether or not there is a law, has an individual got a right to make a determination, herself or himself, in the matter of euthanasia? Mr Burke—Are you asking me about a terminally ill person? Senator BROWN—If you like. Senator ABETZ—To assist the witness: what do you mean by ‘euthanasia’? People have the right to commit suicide. Are you talking about a third party involvement? Senator BROWN—Through you, Mr Chair: if you do not mind, I would like to ask the questions. CHAIR—Do you think, Mr Burke, for a start that third parties— Mr Burke—Does a third party have the right to intervene, or does a person have a right to end their own life? Senator BROWN—I am asking about an individual’s personal right to make a determination in this matter. Do they or do they not have that right? Mr Burke—As someone who has been very much aware—and pretty well anyone in my age group fits in this—through a lot of personal contact, of the youth suicide issue, something that you have to accept is that, if someone is going do it, they are going to do it, but your response to them should always be to try to talk them out of it. Senator BROWN—I am not going to get an answer there, so I will pursue another matter. You referred to the three people who have been killed in the Northern Territory. Who killed them? Mr Burke—Two people were directly involved in it, and that was Dr Nitschke and the person themselves. Without the involvement of either one of those, you can presume it would not have happened. Senator BROWN—The fact that the person triggered the mechanism which led to their own deaths is not germane in this? Mr Burke—I have to say, this is the distinction you are drawing between euthanasia and assisted suicide. Senator BROWN—I am not drawing any distinction; I am just asking about the people you referred to, the three who have been killed. Mr Burke—The people who were involved there would be involved in what technically would be called a case of assisted suicide. I do not think the fact that, in the chronology, the final action is performed by the person, the patient themselves, discounts the involvement of the doctor. I think both people being involved were absolutely intrinsic to that. To say that because the person flicked the switch they did the last thing, presumes that, as the person sat there at the laptop, answered yes to all the questions and then Dr Nitschke put

LEGAL AND CONSTITUTIONAL L&C 322 SENATE—Legislation Friday, 14 February 1997 the needle in, it would be somehow different. I do not believe it would be. Both were directly involved in the death. For a suicidal person, terminally ill or not, to have someone else agree with the assessment that their life is worthless is an extraordinarily powerful thing to happen. Senator BROWN—I think your term ‘assisted suicide’ is very helpful there. The conclusion of the group’s submission begins with this sentence, ‘The euthanasia debate is essentially about the response to a single question: How do you respond to the person who says I want to end my life?’ Do you think the euthanasia debate is really about the response to the person, and not about that person’s own wish to make a decision about what is going on in their life? Mr Burke—With respect, you have misquoted the submission. Senator BROWN—I have just read from it. Mr Burke—You said, ‘I want to end my life.’ It says, ‘I want you to end my life.’ Senator BROWN—I am sorry. It says, ‘I want you to end my life.’ Mr Burke—That is an extraordinary difference. Senator BROWN—I am glad you have corrected me because I meant to ask about what you have written there. Let me read it again and make this clear: The euthanasia debate is essentially about the response to a single question: How do you respond to the person who says I want you to end my life. I put it to you that the debate is about a person’s right to make a decision and ask for help if they want to. Your submission says, no it is not; it is about the response of the person they ask. There is a very big difference here. Is this debate about the individual, or is the debate about somebody else who has a right to make decisions over that individual? Mr Burke—I think, by definition, euthanasia is not only about the individual because, if it only involves the individual, then by definition it is not euthanasia. Senator BROWN—So you should have had more than one question in there then? Mr Burke—No, we are not purporting to make a submission about suicide. We want to make a submission about euthanasia, and the same response in that question applies to assisted suicide. Senator BROWN—The point I am making here is that the central question you are asking there is not from the individual who wants to seek the option of euthanasia; the question is coming from the person who is approached for aid. I am saying to you that you have the bull by the horns. I am saying to you that this is a question of an individual’s right. Euthanasia is centrally a question of an individual citizen’s right to an option, the option of euthanasia, and not about somebody else’s right to make the determination of how they respond to that. Mr Burke—I understand the position you are putting. I have to say that I fundamentally disagree with it. If what you are putting were correct, then a doctor would not have the right to not participate. The fact that a doctor has the right to not participate involves the fact that the doctor’s response is absolutely intrinsic to this. The doctor is not merely an agent of the person. Senator BROWN—I am not saying it is either/or. Of course the doctor has the response to say no, and that is vital and that is essential—and I would never agree to any other. But I am saying that you are missing the point here. The central point in this debate is about the rights of the individual. Mr Burke—I would have to suggest, with respect, that the way you are characterising this debate would be identical to a characterisation of a debate about suicide.

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Senator BROWN—But is this question about the way I am characterising it or the way you are characterising it? I am asking the questions about the way you are characterising this debate and— Mr Burke—If the way I am characterising it focuses on euthanasia— Senator BROWN—Let me finish. I am asking the questions about the way you are characterising this debate. What I am putting to you is that you have it the wrong way around. What I would like to hear from you is: why is it that the right of the individual is secondary in the way in which you—Euthanasia-No—approach this question, and how do you justify that? Mr Burke—You are asking about euthanasia. That question is not put in any sense as part of the argument. That question is a starting point. That question is what makes it euthanasia. That question is what makes it the bill we are talking about. You are wanting me to say that I have got it the wrong way around—that the debate is really about ‘this’. The ‘this’ that you are putting to me is a ‘this’ about suicide. The debate is not about suicide; the debate is about euthanasia. Every single instance of assisted suicide or euthanasia involves a doctor agreeing with someone’s assessment that their life is no longer worth having and I do not think that is an assessment that one person should ever make of another. Senator BROWN—I will not pursue this any further with you because I see that you are not going to respond to the point I was putting to you. I will move to the last sentence in your conclusion which says: There is nothing compassionate or dignified in telling people who feel worthless that they are right. Are we to assume from that that people who want to have voluntary euthanasia are people who feel worthless? Mr Burke—People who feel that their life lacks value, yes, that they do not have a worthwhile life. Senator BROWN—So you do not see these people as having dignity, as being responsible individuals with intelligence and the ability to make up their own minds about what is worth while? The point I am getting to here is that you are putting a pejorative term onto citizens who want to make a decision in their life that you do not agree with. Mr Burke—No, I am putting a pejorative term onto the doctor who is willing to do it. Senator BROWN—It is not about doctors. It says ‘people who feel worthless’. Mr Burke—Yes, but your objection was not to their assessment of themselves. You are asking whether I am saying that person is lacking in dignity. I think there is no dignity and no compassion in Dr Nitschke’s response. Senator BROWN—I am not talking about Dr Nitschke; I am talking about you. You say here ‘people who feel worthless’ and I say, ‘How dare you make that categorisation of people who want to select voluntary euthanasia for themselves.’ That is the point. Mr Burke—If I can only point out to you the difference between someone feeling worthless and me making the assessment that someone is worthless. I think that is the difference between the response that a doctor should make and the assessment that causes someone to say, ‘I want my life to end.’ Senator BROWN—The point is that you should be very careful about impugning other people with your assessment of them. Dr Pollard, I have heard you say here that an opinion

LEGAL AND CONSTITUTIONAL L&C 324 SENATE—Legislation Friday, 14 February 1997 poll is finding what the media want people to know. Could you elaborate on that for me, please? Dr Pollard—Perhaps are prepared or have let people know. I said that most people get their information about euthanasia from the media. The media present things in certain ways. They have their style, they have time limitations, they have limitations on what they want to do. They are not necessarily out there to inform the public with all of their presentations; they are out there to win the ratings war, to get controversy, interest and sponsors for their shows. So their shows are presented in a characteristic way with a heavy emotional input and almost consistently lacking in any presentation of what is available in terms of high quality care for dying people. That is the way people get their information for the most part and then they are asked a question about their views. So it is a circular process and I do not think that is any way to resolve severely or grave ethical issues. Senator BROWN—So when you said that an opinion poll is finding what the media want people to know, you were referring specifically to opinion polls on euthanasia, not other opinion polls in general. Dr Pollard—I was, yes. I thought that was the question I received earlier. Senator HARRADINE—Dr Muirden, what is your practice again, please? Dr Muirden—I work in pain control of cancer patients and palliative care for cancer patients. I have been doing this for 16 years. I think I should point out that the practice of palliative care is fairly recent, in about the last 30 years, since the work done by Dame Cicely Saunders and her colleagues at St Christopher’s Hospice. So there is a communication gap and there are many people who still are not versed in palliative care who have not been taught it during medical school—as I myself—and have learnt it since, but there still needs to be a lot of education. I think this is important in talking about surveys of doctors who have shortened life. Apart from this one that has been given to Dr Pollard, there have been a number of surveys. There have been the seven doctors who spoke to in Melbourne and said that they had performed euthanasia. While I have no doubt that some do actually perform euthanasia, I think that there is a lot of confusion. In fact, one of those seven doctors said to me, ‘Oh, look, you do it and I do it. We know what we do is the same but I call mine "euthanasia" and you don’t.’ When I spoke further to him, I discovered that what we do is not the same at all. There has been a lot of talk about using morphine and hastening death and about the double effect in relation to morphine. This is because people do not understand it. If you give morphine to a person with pain, it is not the only way of treating pain. But it is frequently used because it is a very good analgesic. What happens is that you give a person the dose for their type of pain. You titrate it. A different person has different doses, depending on the extent of their pain. The important thing about taking morphine is that they take it regularly so that it treats the pain. Before the pain comes back and before the effect wears off, you take the next dose so you get continuous pain relief. That is the aim. Then you give people a dose that they can take in the event of the pain coming back before the next dose. By working on that, you can increase the dose if it is not enough so that, hopefully, they have continuous pain relief. There has been a big scare about using morphine because it is supposed to depress respiration. When it is used for pain, it does not have that effect because the pain sort of

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 325 stimulates respiration. People also think morphine is going to make them addicts. Patients are scared to have it. They also think that it is only used when they are dying so they want to save it for when they are actually dying because they feel there will be nothing left to relieve their pain later on. Sometimes they say, ‘Oh, I am not that bad, am I?’ When patients are actually dying and become more drowsy, they will say, ‘Oh, is it the morphine? Can you drop the dose?’ So maybe you are pressured to drop the dose and then they get their pain back and they say, ‘Oh, okay, I see it’s not the morphine that is doing it.’ Senator McKIERNAN—That’s a comprehensive answer, brother! Dr Muirden—I think there is a lot of misunderstanding. Because of this talk about a double effect with morphine, doctors who have used morphine to relieve pain often think that they have hastened death. In fact, the patient has been dying of the disease and they have actually been keeping that person comfortable. CHAIR—Thank you. Senator ABETZ—There has been the suggestion of pejorative language being used, like the term ‘worthless.’ A term we often hear associated with euthanasia is ‘the right to a dignified death.’ Does not the converse follow: that if these people do not exercise euthanasia, to have a dignified death, their death must be undignified? Would you say that that would be making a negative assessment of the people who take the natural option of dying, rather than exercising euthanasia? By describing it as that somehow they are dying in an undignified way, would that not be a very pejorative and distasteful term to employ for those people in the very last stages of their life? Mr Burke—Absolutely yes and the ramifications are a lot broader than that. I probably should have raised this when I was asked about some of the perspectives from disability groups. One of the roles that we were asked to take on sometime ago now was to assist the New South Wales Disability Council in arriving at a position on this issue. One of the great concerns is looking at how dignity is constantly defined, how people talk about dignity. When people write letters to the editor, they describe certain conditions and say there is no dignity in that. If you look at what they are saying, dignity has become equated with the words ‘without disability’. People on the voluntary euthanasia side constantly say, ‘This person is incontinent and there is no dignity in that.’ For people with disabilities, who deal with these symptoms on a daily basis and live with them, being told that to die with them lacks dignity really has a devaluing connotation. Regardless of where this debate ends up, the language of it is extraordinarily powerful. Senator HARRADINE—I have to stand for politicians. Politicians rarely lose their capacity to speak. I am certainly not going to be the first. Do you go round to homes in your practice? Dr Muirden—I do not go to homes. The nurses visit homes. I deal with in-patients who are admitted to the hospital to have their symptoms controlled. Then they mostly go back home again and are looked after by the visiting nurses or, occasionally, they go to an in-patient hospice. Senator HARRADINE—Have you had the situation where a family member says of a cancer sufferer—say, three months before his or her death—that they just want to die? What is that cancer patient or sufferer saying to that relative? Dr Muirden—Sometimes it is expressed like, ‘I want to die,’ when it is a cry for help and it means that they want to have their suffering relieved. It might be in various ways. It might

LEGAL AND CONSTITUTIONAL L&C 326 SENATE—Legislation Friday, 14 February 1997 be the physical symptoms or they might feel lonely and scared and it is really a cry for help for various things that can be done for the patient. Senator HARRADINE—And that is what palliative medicine is about? Dr Muirden—Yes. CHAIR—Dr Pollard, Dr Muirden, Mr Burke and Mrs Clark, thank you for coming today and assisting the committee. [ 2.45 p.m.] DEWICK, Mrs Helen Rosemary, President, Voluntary Euthanasia Society of Queensland, Sunshine Coast Branch, P.O. Box 2610, Nambour West, Queensland 4560 ENDERBY, Mr Keppel Earl, Member, Voluntary Euthanasia Society of New South Wales, Sydney, New South Wales GREENWELL, Mr John Henry, Member, Canberra branch of the Voluntary Euthanasia Society of New South Wales, P.O. Box 4029, Kingston, Australian Capital Territory 2604 SWANTON, Dr David John, Canberra branch of the Voluntary Euthanasia Society of New South Wales, P.O. Box 4029, Kingston, Australian Capital Territory 2604 TAYLOR, Mr Gordon William, Chair, Canberra branch of the Voluntary Euthanasia Society of New South Wales, P.O. Box 4029, Kingston, Australian Capital Territory 2604 CHAIR—I welcome witnesses along from the voluntary euthanasia societies. Who would like to make an opening statement first? Mr Enderby—It has fallen to my lot. Very briefly, at the request of the society, I put in a written submission. I do not know whether anyone has had the chance of looking at that— CHAIR—We have that. It has been circulated and it has been made public. Mr Enderby—Thank you. My position put very shortly is this: having spent a lifetime in the law—that is not necessarily said to my credit—the Andrews bill has constitutional consequences that I think are drastic in the extreme. They worry me. I say that having, once upon a time, described myself as a centralist, which might sound a little bit surprising. But when responsible government was given to the territories—the ACT and the Northern Territory—I believe very strongly that it raised a legitimate expectation that they would be allowed to make their laws in their own way as long as they followed the legal procedures and the democratic processes. There was nothing said in any of the speeches that gave responsible government to the territories that the territories would only be allowed to make laws that met the will of the majority of this parliament. That is notwithstanding the fact that the territory power does exist—there is no doubt about that—and that the federal parliament does have power to override the laws of a territory. But to do that, it would mean writing into the law of the Northern Territory,—for example, a new prohibition on making laws dealing with what is loosely and often wrongly called ‘euthanasia’—putting something in their constitution, so to speak, which, if they ever do move to statehood, will lead to enormous and, what I think now, are unforeseen problems. It will be a limitation on their legislation making power that the state of New South Wales does not have, the state of Victoria does not have—none of the states has, including Tasmania. It will make them second-class citizens and that will be a source of grievance. When negotiations take place for the admission of the Northern Territory as a state, there will be arm twisting and concessions made to such an extent—in my submission—that a compromise will emerge that brings about a bastardisation of the proper processes.

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Having said that about the constitutional situation, which I do think is very serious, there is something equally important than that to me—but it is perhaps a personal thing. I have reached the ripe old age of being in my 71st year and I enjoy reasonably good health. But I can foresee a time when it could be that I might not enjoy good health. I, quite frankly, am offended if someone comes along and says to me, ‘You can’t in your own way and in possession of all your faculties decide to put an end to your life because you have lived a good life and you’re not enjoying it any more.’ Perhaps I might come to the view that I might be a burden on people and that I cannot put an end to it. I could, for totally different reasons, do what David Yeldham did in Sydney: go and start my motor car, get in, put a bit of a hose pipe on the back and try to kill myself from carbon monoxide poisoning. But I might botch the job. I am not an expert in such things. It is undignified; it is certainly not civilised; and I do not think it is desirable. I have a right to commit suicide now. Attempted suicide is not a crime in this country, and it has not been for many years. If it is not a crime for me to try to kill myself, why should it be a crime for someone else to help me—particularly when there is objectively and demonstrably good cause for me to have help so that I will not end up with brain damage or something of that sort and be a burden on others. That is all this law in the Northern Territory seeks to do. It does not legalise euthanasia in the strict sense of the word—which means, as I am sure you all know, to give an easy and a good death—it allows voluntary euthanasia. It is the giving what I consider a human, humane right to say to others who have the expertise, ‘Look, I have had enough; just help me put an end to it.’ I can well understand, from a parliament’s point of view that says we should not encourage that sort of thing because young people or mentally disturbed people might be tempted to do such things in temporary fits of depression or something like that. Life is about living—we are all taught that and it is a very important thing to remember—there is a strong argument that society should not encourage anyone who wants to put themselves down be allowed to do it and have help in doing it. It is the help that this Northern Territory law is all about. It is for that reason that the parliament of the Northern Territory put in all the safeguards. They are so strict that they are almost a deterrent against doing it. Psychiatrists, specialists—you name them, they are all there—but eventually the decision as to whether or not someone is going to allow themselves to have their life ended is the decision of that person. There is no possibility for abuse; there is no possibility for excesses; or there is no possibility for wicked doctors or wicked relatives getting at the person. May I finish with this note, Mr Chairman: on the way here I read some material that was sent to me. There was a legal opinion in which a gentleman argued that civilisation would come to an end—they were his words—if a law like the one in the Northern Territory were allowed to stay a law. I take issue with that very strongly, as strongly as I am capable of taking issue on any subject. As an individual, and I think it would reflect the views of the society of which I am a member, I find it offensive that there are people who do not want to use such a law themselves who want to prevent someone like me who might want to use such a law from using it. It is a human rights argument, a humane argument, an argument that should prevail. I thank you very much. CHAIR—Thank you, Mr Enderby. Dr Swanton—Good afternoon, senators. The debate on the Euthanasia Laws Bill 1996 has reached an intriguing stage. The arguments for voluntary euthanasia and overturning the bill

LEGAL AND CONSTITUTIONAL L&C 328 SENATE—Legislation Friday, 14 February 1997 appear compelling, those in favour of the bill specious; yet the voting intentions of parliamentarians still seem to be at odds with what over 75 per cent of Australians prefer. It is quite unbelievable. In the light of recent events, I offer the following to supplement my submission: leaving aside territory arguments, it is logical to assume that the bill’s supporters consider voluntary euthanasia to be a criminal offence. Consequently, those doctors who practice voluntary euthanasia should be convicted of some crime. It is equally clear, however, that the bill’s supporters have not tried to convict any of the 7,000 Australian doctors who have practised active voluntary euthanasia. This includes many doctors who have admitted this publicly. Therefore, the bill’s supporters are hypocritical. They claim on the one hand that voluntary euthanasia is a crime; but on the other hand they do not try to seek convictions. It is also apparent that the bill’s supporters seem to have an aversion to the other magic word—voluntary. The word ‘voluntary’, which is so central to this debate, has been rarely used in any of their Senate submissions and it has hardly been mentioned in the Hansard of their discussions. Yet euthanasia, as described under the Northern Territory Rights of the Terminally Ill Act, can only be performed at the patient’s request. If euthanasia is not voluntary, then euthanasia is not on. The bill’s supporters prefer to talk of killing. The difference between voluntary euthanasia and malicious killing is as plain as the difference between consensual sexual intercourse and rape: one is voluntary; the other is not. Most people with a modicum of intelligence can appreciate this difference. As reported in the Canberra Times on 9 February, both Mr Howard and Mr Beazley called for a tolerant Australian society. Enactment of the bill would guarantee that this would not occur, because discrimination against the physically disabled and certain religious groups would be entrenched in legislation. The problem is that the bill will prohibit a physically disabled, terminally ill patient from dying if they cannot do the deed themselves. They are allowed to die since passive euthanasia and suicide are permissible but they are not allowed to obtain help if they want to die and are unable to do so without assistance. This is blatant intolerance of terminally ill patients who are physically disabled. Furthermore, there are people whose religion is incompatible with the mainstream religions and more consistent with the primacy of the quality of life rather than the sanctity of life and existence for its own sake. The bill seeks to demand that all people must adhere to mainstream religious doctrine whether they like it or not. This is blatant intolerance of those who dare to have different values to the mainstream religions. It is hypocrisy and arrogance from the bill’s supporters to call for tolerance, when they offer none, and to presume that they know what is best for other people, when they do not. What I am asking is for tolerance to be shown to all members of society including terminally ill people who want voluntary euthanasia. To do this, euthanasia arguments must be comprehended with an open mind, devoid as far as possible of any cultural, religious or other bias. Australians deserve the best possible laws from our federal parliament. Clearly, from the above and as I have described in my submission, enacting the bill would not be good law. Thank you. Mr Greenwell—The ACT branch’s submission appears at page 60 of the folder of additional submissions for the Canberra hearing. In substance, it puts the view that the exercise of the territory’s power in this instance would be contrary to democratic principle. In the course of that submission, the branch suggested that the Rights of the Terminally Ill Act be additionally

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 329 limited in its operation so as to be confined to patients domiciled in the territory. This submission suggests ‘ordinarily resident for a period of one year’ be substituted for ‘domicile’. The legislative jurisdiction of the Rights of the Terminally Ill Act is perfectly conventional. It is not extraterritorial. The medical practitioner assisting is to be registered and resident in the territory, and the assistance itself is to take place there. In so far as it modifies the territory criminal law, its operation is local. Notwithstanding this, there are four reasons in combination which may justify a further limitation: there is no law permitting voluntary euthanasia in any other state or territory, voluntary euthanasia is strongly opposed by a minority in each of those other communities, terminally ill persons in out-of-territory communities are prepared to go to the Northern Territory in order to end their suffering by taking advantage of the act, and the application of the Northern Territory act to those persons is opposed. Whilst the future political influence of the act outside the territory affords no justification for overriding it, it is right—at least as a matter of comity—that the rights and liabilities created and imposed by it be restricted to the community whose elected representatives have enacted it. Batch domicile and ‘ordinarily resident’ are acceptable in principle to achieve that. Both require that the patient belong to the territory community. However, the latter is simpler to apply. Accordingly, the euthanasia laws bill should be rejected, except to provide that the Northern Territory act is to apply only where the patient was ordinarily resident there for a period of 12 months immediately before assistance is provided. Provision would need to be made to similarly limit the territorial powers of the ACT and Norfolk Island legislatures in regard to euthanasia. I made a personal submission, and I will be even briefer in regard to that. It appears at page 119 of the additional submissions folder. The point of that submission was that the misconception of the debate to a large extent was that it was assumed that the present law which upholds—if I might put it this way—the absolute right to life or duty in that regard was to be contrasted with the Northern Territory Rights of the Terminally Ill Act which would derogate from that. The point of my submission is, of course, the extent. The real point, I think, of the whole issue before the Senate is the extent to which the current law is being disregarded. In that respect, I refer to my submission at page 119 of the additional submissions folder before the committee for 14 February. That submission is to be read with the article from the Medical Journal of Australia recording the Baume and O’Malley survey, which is on page 141 of the folder entitled ‘Submissions and other material for the Canberra hearing’. Reference is also made to the statement by Professor Baume on page 145 of that folder that approximately 14 per cent or 7,000 doctors in Australia practice euthanasia contrary to the existing law. If I may, there is one final point I wish to make that derives from a reading of the Darwin transcript this morning and perhaps a few questions that Senator Abetz asked in the hearing where I was present this morning. That is, the suggestion that there is no logical stopping place in the voluntary euthanasia position in so far as it is based on the right to die—if I can put it that way—and that, therefore, there is no other logical stopping place but to allow everybody or to assist anybody who wants to die to do so. Voluntary euthanasia is not based just on the right to die; it is based upon a coexistence of the right to die and unbearable suffering. What is involved is the interaction of three values: the preservation of life, relief of suffering or compassion, and personal autonomy or the right to die. In our own law at the moment, the question is reflected, to some extent—so far as the

LEGAL AND CONSTITUTIONAL L&C 330 SENATE—Legislation Friday, 14 February 1997 value of preservation of life is concerned—in the fact that we permit suicide in the sense that we do not make it an offence, nor do we make attempted suicide an offence. But yet in most jurisdictions assisted suicide is an offence. What that means is that we acknowledge the right, but we do not wish to encourage suicide. In the same way, what voluntary euthanasia is about is that it says that we wish to preserve life to that extent—assisted suicide generally remains. The victim’s consent is not, in general, a defence to murder, but where you have the co-existence of unbearable suffering and the right to die—where those two things exist—then it should be permitted. Mrs Dewick—Mr Chairman, senators, ladies and gentlemen, my name is Rosemary Dewick. I am a registered nurse who has worked in four states over the past 15 years. As a result of my professional and family experiences, last year I instigated the formation of the Sunshine Coast branch of the Voluntary Euthanasia Society of Queensland and currently hold the office of president. I am going to speak about a subject that has not been, I feel, dealt with sufficiently, either in Darwin or here, and that is what is termed ‘hard deaths’. It concerned me a great deal last night when I was here to listen to the palliative care team trying to decide what percentage of people suffer ‘hard deaths’. I felt that that was a rather futile exercise, if I might be so bold as to say so, because one to me is too many. I have witnessed many ‘hard deaths’ and I want to recount to you one of them today. Yes, voluntary euthanasia is not for everyone. It is only for any one of the seven ‘hard deaths’ each day in Australia who may choose to use the Northern Territory legislation. Picture a lively, happy, gentle lady in her late 40’s, being diagnosed with terminal cancer. She accepted the pain with courage and without complaint. She accepted the disruption to her life and that of her family serenely. Her downhill progression was relentless, but her smile stayed. She taught me a new meaning to the word ‘brave’. For one of the most refined people I have ever known, her final day was horrendous. Her screams could be heard outside the hospital. Her daughter covered her ears and buried her head, but nothing could muffle the piercing evidence of her agony. She had a good doctor—the best. She had all that palliative care and loving family and staff had to give her. And yes, we did love her. And yes, I ran up and down the ward, a practice forbidden in hospitals except in cardiac arrests, trying in vain to deliver morphine in small quantities, as ordered, to no avail. I might add she already had a syringe driver in situation—that means a small dose being delivered. Her ‘Help me, help me die!’ will be carved into my brain for the remainder of my days. What am I, made of stone? How was I supposed to sleep that night? How did her loved ones sleep that night? I ask each one of you, how would you sleep that night? How can any one of you, in the name of humanity, consider overturning one of the most potentially compassionate pieces of legislation ever created? Yes, I hastened her death. I would do it again in the same situation. What would you have done? Are you going to arrest me? How can we all be so sure that we are going to drift off peacefully in our sleep? How can we be so sure that we may not need to choose voluntary euthanasia to ease us through the situation that I have just described? I vehemently resent the prospect that the freedom that I have known all of my life should be taken from me at the moment I may need it most—at my death. I put it to you to consider what you want. Surely, we, the strong and able, are fighting for the rights of those too frail to defend themselves. If you senators had heard the cries, as I have heard them, you would

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 331 not hesitate in putting a match to the Euthanasia Laws Bill 1996. I humbly implore you to hear the pleas from the community, as I have heard them, and retain this pioneering, honest, humane and compassionate Rights of the Terminally Ill Act of the Northern Territory. Thank you for your attention. Mr Taylor—I want to make a few points that I picked up from listening to previous evidence, which I think needs contradiction. Mention was made of the effect of the Northern Territory legislation on the Aborigines. It seems to me that the problem that was raised, which was probably fair enough, may call for an education program to get these people to realise that they will not suffer under it; on the contrary, it might end up being useful to them. Time, of course, will also help to reassure them when they find that they can go to hospital with various diseases and complaints and come out cured; they did not get a needle. I think that objection to the Northern Territory legislation should be dismissed. A point was made about the standard of palliation in The Netherlands. I have read that the Dutch have a rather different way of dealing with their palliation problem. It is true that they do not have very many palliative clinics. The writer claimed that palliation is nonetheless available to them; it is performed at home. This is the way they work. The importance of the second doctor needs to be recognised. There is the issue of the second and third doctors in the Northern Territory. The need to have a statement from the other two doctors, not the primary one, as to what has happened is an important safeguard against abuse. What you would require for abuse would be conspiracy involving three doctors and presumably somebody else for whose benefit the conspiracy was being conducted. This is not going to happen. CHAIR—Thank you. We were told that there were five per cent of deaths where I think nothing could really be done for those people. Mrs Dewick, you have said one in seven is in fact the number of hard deaths. You cited the case of the lady who had morphine but it did not alleviate her position. Was there anything further in your opinion that could have been done medically to help her? Mrs Dewick—Yes; I would have liked to have seen some orders in place where if any one of us were to reach a situation like that we would be able to, at our own request, suggest that we be given a lethal dose, as is happening in the territory on request. It is her choice only and, if she had something written down and in place at the time, we could have helped her. As it was we could not help her through that last day—and it was not just half an hour or an hour; it was all day, hours upon hours. CHAIR—Did she have self-administration, a pump? Mrs Dewick—Yes, she had a syringe driver. CHAIR—You said there was an amount of morphine which was available to her. Was that unlimited? Mrs Dewick—Yes, it was an open-ended order. I was administering it and I did not have time to even obtain a second signature, as we normally do when we are writing up our drugs, because of her screams. It was just awful. People sit and talk about palliative care. Yes, it is 95 per cent, maybe higher; but we are not dealing with the issue of hard deaths. When Senator Brown was speaking last night about the lady he was describing, it took me all my time to stay in my seat because this is the reality; this is what actually happens. There are a certain number of people who cannot be treated with morphine. As he described last evening, and in relation to this lady I am describing, there are things like intractable nausea

LEGAL AND CONSTITUTIONAL L&C 332 SENATE—Legislation Friday, 14 February 1997 and vomiting. They sometimes cannot be treated with stemetil, maxolon, morphine, pethidine— try the lot, and they do not work because of the nature of the disease. I am sure that, if you wanted further information on some of the diseases that would cause this or lead to these symptoms, Dr Robert Marr might be able to fill you in. CHAIR—So you disagree with Professor Ravenscroft, who said that the number that could not be helped was as small as five per cent? Mrs Dewick—I believe it is about five per cent. That is the quote from Marshall Perron’s submission in Darwin. It was five per cent; about 2,500 a year in Australia. That is seven a day. I think one a day is too many to die like that and that is the issue I am trying to address here. CHAIR—I asked the anti-euthanasia group this next question, and I will ask you the same question. The Morgan poll last year found that 73 per cent of Australians were in favour of doctors being able to give a lethal dose if requested by a hopelessly ill patient experiencing unbelievable pain. What weight should the committee give to that poll? Mr Greenwell—There are two separate issues. The first issue is what I might call democratic principle: to what extent should the parliament give effect to that poll, assuming it to be accurate? The second issue, which is of equal importance, is that, even if you take a view that the parliament is not in any way constrained by that kind of majority in the attitude it takes as a matter of democracy, nevertheless it does reflect a change of values in the community. The importance of it is not just the one poll you have mentioned but is the succession of polls over 40 years. The support for voluntary euthanasia it was 40 per cent in 1940, it reached 60 per cent in about the 1970s and it climbed to about 75 per cent shortly after that. I am not going to say that the polls are an absolutely perfect reflection of a considered view on the part of every member of the community. But it is very difficult to say, in the face of that poll, that the community as a whole no longer accepts that the preservation of life should be an absolute. Rather, the community’s values now are that in certain circumstances, in the case of great suffering and a person wanting to die, that person should be allowed to do so. Mrs Dewick—Would I be able to add some figures, please, from the University of Queensland’s recent release, seeing that we are trying to cover other parts of Australia? CHAIR—Yes. Mrs Dewick—It has just been put together. It is entitled Healthy living, healthy dying: Community and health professional perspectives on end of life decision-making. On page 11, in the section of major findings of the study, it said that in the issue of control, it was also reflected in responses to the question about treatment decisions if participants were very ill, over 90 per cent wanted to make their own decisions. Further to that, it asked, ‘If good palliative care were freely available to everyone who needed it, do you think anyone would ever ask for assistance to end their lives?’ Seventy per cent said yes. These are quite important figures. This was recently released in Queensland. CHAIR—In Darwin it was put to a pro-euthanasia group that by allowing voluntary euthanasia for the terminally ill we were sending out a mixed message to the community. We have a problem with youth suicide, for instance. What do you think about that? Are we sending out a mixed message? Mr Enderby—That is surely the point, isn’t it, Mr Chairman? I tried to touch on it in the few words I said, perhaps unsuccessfully. If the message sent out was that suicide is in order,

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 333 then of course you are sending out a rather troubling message to young people, the troubled youth in these troubled times. But, when you create a law that before you can use it you have to be terminally ill and you have to have all the qualifications met, then no such message can be sent out, surely. CHAIR—What of a situation where a young person has a grandparent who is terminally ill and the young person is not aware of all the ramifications of the law. They see that their grandparent can avail themselves of the rights of the terminally ill and they think, ‘Why can’t I?’ Mr Enderby—Yes, but there is a vast difference between the terminally ill grandparent, who is probably suffering in some way because of the pain of the terminal illness, and some young person who might just be having difficulty finding a job or is in a temporary state of depression or something. CHAIR—If I can just put this to you: the young person who is suffering temporary depression might have his or her better judgment distorted by that. Mr Enderby—He or she might go out and commit suicide, but I do not think that person, in any rational way, could be expected to be given a right to use this sort of legislation. With great respect, you are taking a very narrow set of circumstances and applying them to a totally different situation. Dr Swanton—Passive euthanasia is permissible now. Without the Northern Territory act, the old grandparent can indulge in passive euthanasia and have life support withdrawn. That does not encourage young people to go out to commit suicide, so why should active euthanasia as permitted under the Northern Territory act? CHAIR—In that case, or in the rights of the terminally ill, the patient can actually engage the services of a third person to assist him or her. There is a difference, isn’t there? Dr Swanton—I think a young person can go and commit suicide. They are capable of doing that themselves. They have got a bit of get up and go. Senator COONEY—Unless you apply the tests applied by Mr Greenwell, you are going to be in real trouble, aren’t you? Do you agree with his three tests? Dr Swanton—According to the Northern Territory act, the patient has to be terminally ill. Senator COONEY—But you agree with the philosophical basis of all this? Dr Swanton—Essentially, yes, personal autonomy being the most important issue in this matter. CHAIR—Mr Taylor, do you wish to say something? Mr Taylor—I think the objections that are raised to voluntary euthanasia are all very minor compared with the problem that we have to try to solve of people who are suffering unbearably. Mr Enderby—There is another point too, Mr Chairman, if I may just add it. This is sometimes called the floodgates argument, isn’t it? That by allowing this law, tightly controlled and tightly regulated as it is, some day you will be on a slippery slope. I cannot see it myself. There is no evidence, that I know of, that the totally different system in the Netherlands has led to a slippery slope. I think also—although I cannot quote to you any precise figures—that there was a time when attempted suicide was a crime but when it ceased to be a crime I know of no evidence at all to suggest that there was an increase in the number of people trying to commit suicide or committing suicide. None at all.

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Senator BROWN—I think successful suicide was a crime and you were not allowed a burial in a proper church ground. It was common law. Senator McKIERNAN—Mr Chairman has reminded me that I have continually asked previous witnesses about the distinctions between voluntary euthanasia and euthanasia. I will take the needle out of the track and not ask it on this occasion because I think Dr Swanton does give an explanation of it. Mrs Dewick, I was very interested in your graphic description of the person dying. Where did that happen? Mrs Dewick—I prefer not to say where that happened. I had a discussion with the doctor concerned and he would prefer that I do not mention where it happened. Senator McKIERNAN—I respect your right in this matter. Mrs Dewick—The order was a perfectly legitimate one. It was an open order for morphine that I was administering as quickly as I could. It was quite a small order. Even though I have been speaking to him in recent days, he did state—I told him what I was going to do; that I would be going in front of the Senate—that he would prefer which state it was to be kept quiet. Senator McKIERNAN—I respect your right to answer the question in the way you answered it but, for the purpose of this hearing and the collecting of evidence, I am going to assume—be it correctly or incorrectly—that that occurred in the state of Queensland. As such, I will assume that the argument that you put forward here this afternoon was, in fact, a plea for the introduction of such laws in Queensland, rather than being a submission against the Andrews bill which is the subject matter which we are charged with examining. Mrs Dewick—On the contrary, with respect to you Senator McKiernan, I am diligently trying to protect the legislation in the Northern Territory because I think it has cut new ground and it is directed at the people who need it. If it stays in place in the territory and it is working in the territory, it is a framework for the other states to build on. Now there are other bills being prepared in other states, including Queensland, and it is just important that this legislation is available throughout Australia because that is what I have been asked for. I formed a branch and I have had people write to me, ring me and cry on my shoulder, literally begging that there be a law in Queensland where I am living at the moment. But having worked in four states, I have had pleas in those states from patients in beds and that is where I am coming from. I am coming from a nursing perspective, as I have seen it over 15 years. I might add that I was 40 when I started training—I did not do it when I was 18—so that training has meant a great deal to me. I have had cancer. My father died of cancer. My first husband died of cancer. I have it in the home; I have had it myself. I know about it and I know about how important it is to have good care, a good attitude and to get on with it. But sometimes that is not possible and it does not matter which state it is in. Senator McKIERNAN—With all due respect, I think it does because—from where I am coming from in regard to this bill—I think that people, like the set of witnesses who are in front of me, are going to be extremely disappointed people by the end of next month. I think that when the vote is taken on the bill, it is going to be lost. In that context, the Andrews bill is going to be supported and the Northern Territory legislation is going to be overturned. That is my opinion. I may be wrong and I have not decided yet how I am going to vote on the matter. In that context, I think it is a very important question because I have got to return to my state of Western Australia and to the people I represent over there. There is no impact of this Andrews legislation on my state. At the same time, in my state there are no initiatives

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 335 by the government to introduce a rights of the terminally ill bill to that legislature so it is important in that context. Mrs Dewick—To me, it is extremely important. I travelled to the territory, at my expense, to get a background to the legislation and to meet the gentleman, Marshall Perron, who initiated this legislation. I just feel that it is important for all Australian states because it was a world first. In Queensland, we are acutely aware of the importance of its retention in the territory. I am only speaking for my group where I come from. All my members are very keen that this legislation stays there. So you feel that it is not applicable to Western Australia. Well, where I come from in Queensland we feel it is vitally important for it to stay in the territory because it is an example, it is working and it is giving the person in the bed the right to choose when he or she has had enough. That is where I am coming from. Dr Swanton—I would say also that if senators feel that it is not applicable to their home states, they should not support the euthanasia bill because it applies to the Northern Territory. Senator McKIERNAN—Changing tack slightly, you mentioned in your submission, Mrs Dewick, and Mr Enderby mentioned in his oral submission to us, the matter of dignity in death. I think that is something that is extremely important, but in this debate is there not something undignified—maybe not quite as undignified as the scenario that you presented of the tube in the back of the car—in somebody putting a needle into one’s arm or another part of the body? Mrs Dewick—Senator McKiernan, if I may say so, that is practically a painless procedure. In competent hands it is completely painless. I have had it done competently—by the way, I have also had it done incompetently—but it is not a painful procedure and you can actually rub local anaesthetic on and you do not feel the needle go in. Do not screw your face up because it is not a steel needle! It is plastic coated. Senator McKIERNAN—It’s still a needle; it’s a needle! Mrs Dewick—We will have to arrange something different for you, Senator. The going off to sleep part is the part that is dignified. That is the part that I am on about. I am on about people screaming their way out of the world. That is undignified. I am on about what the lady in Darwin was talking about: skin over bones. I am sure you must remember that. It was an awful description, but it was true. That is what we are about. We are trying to protect those people who cannot help themselves so that they can go off to sleep peacefully, as we all wish we will do. But that does not always happen. I have seen that it does not always happen. Mr Enderby—I cannot imagine anything more dignified. If I ever come to the situation where I want to bring the whole thing to an end—which, I say again, is my right and no one else has the right to say no—I would like to have the dignity of having my family around me. I would like to have my son, my daughter and my grandchildren there. I would discuss it with them in advance. Circumstances differ. Perhaps I am painting too idealistic a picture, but that would give me the dignity that I would prefer to have. Not to go out screaming, like the patient Mrs Dewick mentioned a little while ago. That is totally lacking in dignity and, to my way of thinking and taste, uncivilised. Senator ABETZ—Time is getting on. I will make my questions very brief and I ask witnesses to respond briefly. Dr Swanton, you indicated that the 75 per cent support in polls should be persuasive to us, and Mr Taylor pursued that line as well. Dr Swanton—Not exactly. I mentioned the 75 per cent, and it certainly is persuasive. But even if it were 13 per cent, that would not detract from the logic of our argument.

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Senator ABETZ—All right. Fine. I have got that clear, thank you. Mr Taylor, you said that there were great safeguards in the Northern Territory, because a second and third doctor were necessary as well. Are you aware of Professor Baume’s advice to Dr Nitschke to dispense with the last doctor’s signature? In other words, the safeguards you are talking about are being ignored by those who are telling us to support the Northern Territory legislation. Mr Taylor—I do not think that happened. I did read Peter Baume’s advice to , but, to the best of my knowledge, that did not happen. Mr Enderby—Whatever the law is, the law is. Senator ABETZ—All right. Can I pursue another line. I think you, Mr Enderby, indicated that there was a right to die in the event of unbearable suffering. Mr Enderby—I probably said it, yes. Senator ABETZ—How would you define unbearable suffering? Does it have to be only physical pain, or can it be emotional pain and trauma as well? Mr Enderby—No. I think this is where you get into the problem of the slippery slope, if I can put it that way. That is why I think the Northern Territory legislation is a very good solution to overcome that slippery slope argument. The person has to be certified by competent doctors who are of certain opinions—and they are spelt out there and have passed their way through the Northern Territory parliament. Obviously, the individual himself is the most important person, because it is his or her decision that is going to be given effect to. Senator ABETZ—Do you think that somebody who is diagnosed with diabetes, but still given a life expectancy of 30 or 40 years should be described as having a terminal illness? Mr Enderby—Of course not. Senator ABETZ—Are you aware that, if you could find a doctor to administer it, that sort of scenario would be categorised under the definitions in the Rights of the Terminally Ill Act in the Northern Territory: they are ‘suffering from an illness which in reasonable medical judgement will in the normal course without ...’,andthen ‘the treatment being acceptable to the patient...’Ifthediabetic made the decision, ‘I do not want this trauma’— Mr Enderby—With respect, Senator, to use an expression which is well-known in a different context, that is drawing an extraordinarily long bow, Everyone knows that the law cannot cope in every circumstance. The law has to be administered by individuals. In the area of criminal law, prosecutors make decisions on whether or not to prosecute in grey areas. You can take a piece of legislation, and if you have got enough imagination you can read it in any way you like. Hopefully, in the long run doctors and people of good commonsense and goodwill will not read it in any way they want. They will read it in a proper, rational way. That is the way it was intended to be read. Senator ABETZ—Time is getting very short. CHAIR—Perhaps if Mr Enderby could just finish— Mr Enderby—I have finished. One of the things that strikes me as being a feature of this debate about the voluntary euthanasia legislation of the Northern Territory and the attempt to overthrow it is the attempt to muddy the water by a lot of people. I am not saying you, Senator; I do not know what your position on it is. But having followed the debate and the contributions of some people, even the people seeking to defend the Northern Territory legislation have lent over so far backwards to anticipate some attack that it is really unreal. They have muddied the water themselves to such

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 337 an extent that you get lengthy opinions from learned counsel like Tom Hughes answering really red herrings, furphies and so forth and so on that really only distract from the central issue, which is whether or not the Northern Territory has the right to make a law that a very significant number of people in this country think is a humane, progressive, wonderful law. They get angry when they see someone trying to take it away from them. Senator ABETZ—Can I ask you as a matter of general principle: do you agree that people do not destroy things which are considered of value or innate worth? Mr Enderby—That people do not destroy things that they like? Senator ABETZ—Yes. Mr Enderby—No, of course they do not destroy things that they like. Senator ABETZ—You do not destroy things which one values as a general principle? Mr Enderby—Hopefully not, no. Senator ABETZ—So does that mean when the doctor embarks upon the termination of that life— Mr Enderby—No, that is totally wrong— Senator ABETZ—that the doctor must have made the decision that that life is no longer worth— Mr Enderby—Certainly not. Dr Swanton—The patient makes that request. Mr Enderby—The patient does that. That is turning the argument. Senator ABETZ—So you say the doctor should be oblivious to his own judgment— Mr Enderby—No. The doctor simply says, ‘No, I will not give you that thing.’ There is nothing in that law that says a doctor has to give those certificates— Senator ABETZ—Therefore the doctor has to make the judgment, doesn’t he, that the life is no longer worth living? Mr Enderby—The doctor can say, ‘My religious views prevent me doing that sort of thing.’ Senator ABETZ—Ignore religion: if you do not destroy things which you value, then if you as a doctor are being asked to destroy or terminate a life, does it not follow that the doctor administering the substance has come to the conclusion that this is a life no longer worthy of being of value? Mr Enderby—Senator, with great respect, that is a nonsense argument. Senator ABETZ—All right, why? Mr Enderby—Because the doctor is faced with a situation where he is being asked to help a person who has extremely good cause to bring an end to his or her life. The doctor is simply saying, ‘I can well understand that,’ and the man comes within all the categories of the law which has been made by a democratically elected parliament. If the doctor has scruples or religious views that prevent him doing that, I can well understand. He says, ‘My conscience would not permit me to do it,’ but there are a lot of doctors who would be only too happy to help them alleviate suffering. Senator ABETZ—I have no difficulty that there are doctors that will do it—Dr Nitschke is a living example of it—but I am trying to get to the core point— Mr Enderby—There should be more of them.

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Senator ABETZ—of what value judgment must be made by the doctor who administers the substance. If we are agreed that you do not destroy things we value, then the doctor must have made a decision— Dr Swanton—The patient does not value his or her life. Senator ABETZ—Sure, the patient has asked him, but the doctor has to exercise an independent mind as well and then say, ‘Look, I reject it’—and that is fine—or if the doctor says, ‘I accept it,’ is it not implicit in his decision to follow the patient’s wish that he does not believe that life is valuable any more— Mr Enderby—No, certainly not. Dr Swanton—The doctor will only realise that the patient no longer values his or her life. The patient wants to end that life voluntarily and the doctor realises that. The doctor does need to make a judgment about the patient. Senator ABETZ—So he reinforces that by administering the needle that the life is worthless— Dr Swanton—It is the patient’s choice. CHAIR—I think we will have to agree to disagree there. Senator HARRADINE—Mr Chairman, I note the time—we are an hour and 10 minutes over time. CHAIR—No, we are only 10 minutes over time but do not take that as meaning that we can take a long time. Senator COONEY—I want to ask some questions. Senator HARRADINE—I defer to his Honour— Senator COONEY—Can I just ask Mr Greenwell some questions on the three factors that you put forward that you can build policy on as a matter of principle and the democratic manifestations of the group that is going to make the decision. One thing that worries me as a matter of policy is that nowhere else in the world—and this has been said this afternoon by the panel that is now before us—has gone down the path of changing the law of murder, because it is really a law about murder, so as to exclude the circumstances that we talked about. It worries me that across the worldwide community, no-one else has gone down that path. With your undoubted knowledge about international treaties, international affairs and the concept of internationalism, I would not mind you having a few words about that. Secondly, it seems to me that this hard case, as Mrs Dewick has so compassionately and very movingly described, has already been accommodated by the jury system. I do not know whether you were here this morning when Attorney-General’s more or less conceded in a roundabout way that juries do have a constitutional right to bring in the verdict that they feel is appropriate, and that seems to me to accommodate that. The problems seem to be accommodated by the system as it now operates and at the same time we could preserve what really is an international situation. I do not want to in any way denigrate the Northern Territory, but it was a close run thing. We have had very compelling evidence from people about the Aboriginals there. There is all this uncertainty around, which I think is being accommodated by the present situation without doing violence to the community by pressing forward with this in the way we are doing it. CHAIR—Is that the question? Senator COONEY—He understands it too. You might not, but he does.

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Mr Greenwell—I will take the second point first. You mentioned the jury and you relied upon that as accommodating what you might call the few hard cases. Senator COONEY—It accommodates the abortion situation. The Davidson decision is still law, is it not? It has not been legislated. Mr Greenwell—If I can just deal with that, because I suggest that leaving it to the jury in a trial for murder is not a good way of dealing with it and it does not accommodate the situation. If you accept that the two essential values that are required are not merely compassion and the relief of suffering but voluntariness, let us go to Senator Abetz’s question about the doctors as to why they are doing it. If you go to the case of the seven doctors in 1995 and read their statement, it is very revealing. But I suggest to you the reason doctors are doing it is compassion. They are concerned to relieve suffering. When Dr Brendan Nelson tells us that he has committed euthanasia on two occasions, I am sure he did it out of compassion. That and the change in values in the community is what is leading doctors to do it. But the problem in doing it this way is that it is not transparent. The fact is that doctors doing that are not inclined to give the weight to voluntariness and choice which is required, I should not think the average doctor would do it in the sense of involuntarily but he would tend to subordinate the suggestion of choice. There are a lot of other objections which I could come to, but I think you wanted to pick up on something. Senator COONEY—There was one other thing that I meant to ask you in my statement on the issue of democracy. I think democracy must be more than numbers—I do not know whether you agree—and the way that is overcome is usually by introducing the concept of the rule of law, natural law or whatever you like. When you are answering would you take that into account as well—whether you think that is a proposition that ought be supported, that there ought to be a rule of law. What I was thinking of particularly was that we have a lot of statistics here that say most people in Australia support hanging. Mr Greenwell—I appreciate the problem of time but it is a fairly large question. If I may just go back. The other thing about leaving it as it is in this twilight situation is that it is not transparent. We can trust doctors in general but we do not know how these deaths have occurred, what the circumstances are. As I mentioned in my submission, there is a fascinating little story of Senator Herron’s which I have recounted there which was cited as opposition to voluntary euthanasia. If Senator Herron had not made that anecdote public and if a doctor had have accepted the daughter’s suggestion, we would not know. But what you have under this act is that you are bringing it out into the open. Let me come to your other question about democracy. My view about the real point of the polls is that there has been a change in values and the current law is out of step with it. If I am right about that then, sooner or later, we are going to have constant illegality in relation to these few hard cases. We are going to have a prosecution where a doctor is convicted. We are going to have all this unsatisfactory sweeping it under the carpet— Senator COONEY—Which also could happen under the present legislation of the Northern Territory because the doctor did not comply with it. Mr Greenwell—Exactly, and those are the controls that you need. In other words, you bring the thing out; you accept the values of the community now, which are essentially voluntariness

LEGAL AND CONSTITUTIONAL L&C 340 SENATE—Legislation Friday, 14 February 1997 and compassion as qualifying preservation of life; and you accept these controls to make transparent what is happening. Senator COONEY—What would you do about the hanging situation? Mr Greenwell—The hanging? Senator COONEY—Ninety per cent of people want hanging and, in fact, according to some statistics that we have been given, a majority of people want the death penalty in place. Mr Enderby—That is where principles come in. Mr Greenwell—I do not know to what extent that does reflect the values. Senator COONEY—But say it does— Mr Greenwell—I thought it was a remarkable fact at the time. The question is whether the law—if you have a law that is out of kilter with the values—is going to create problems— Senator COONEY—Whether there should be an overriding— Mr Greenwell—It is not necessarily that there should be a divergence. But here where you have a divergence between the current law of murder in relation to what is happening in the medical field that we are talking about, you are going to have illegality, you are going to have it done in secret and you are not going to know. In the case of the death penalty, I would only mention this: I thought it remarkable in the case of the Port Arthur affair how fairly limited was the demand for the reintroduction of the death penalty in those circumstances. Senator COONEY—That is the first part of the question you have dodged. Presume that was the position and that these figures are accurate, what do you say about that? You can now say there is a majority of people in the community who want the imposition of that sort of death penalty. Mr Greenwell—Assuming the polls showed that, I would not be in favour of the reintroduction of the death penalty on the ground that I was putting; that is, the need for the law to be in conformity with values. We would not change the law in those circumstances. Senator COONEY—So there are some values that should override the will, if you like, of the majority at a particular time. Mr Greenwell—Yes, I would accept that. CHAIR—Thank you, Senator Cooney. We really do have to bring this part of the evidence to a close. Senator Brown, you have a question? Senator BROWN—Just a very brief question. CHAIR—Senator Coonan too. I have to say that we are definitely running over time and some people have to catch planes. It is very unfair to our witnesses if we blow it out too long. I ask you both to be brief. Senator BROWN—It is very frustrating that we have so little time and it is such an important matter. I wonder if individual rights come into the matter that Senator Cooney has been talking about where hanging is what we do to others and voluntary is what we choose for ourselves. Mr Greenwell—Yes, I would agree with that. That is a ground of distinction. The other ground of distinction is that you are not producing any divergence; you are not having to tolerate illegality, which is the position if you allow the current law in this field to continue, in contradiction to the values of the community. That is where you get into difficulties if the law is out of step with values.

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Senator BROWN—Dr Swanton, do you believe that in a properly run palliative care unit— Dr Swanton—I am not a medical doctor. Senator BROWN—Right. I might ask you, Mrs Dewick: do you believe that in a properly run palliative care situation, no-one need suffer in a way that would require voluntary euthanasia being their option? Mrs Dewick—I do not think it is possible for everybody to be treated with palliative care. That is why I am here today. It is most effective in most cases, but there are cases where it is just not effective. Senator BROWN—That is my experience too. The other thing that I found unusual—you must have spoken to a lot of your colleagues in the profession or at least talked to them about it at times—have you found a situation where not one of them in any institution was in favour of euthanasia or do you find this is something that is mixed? Mrs Dewick—I find that, because of the legal framework under which doctors and nurses work, there is a great reluctance within the medical profession to come out and speak openly on this issue. I have found that fairly much across the board, for instance, the fact that the doctor the other day requested that I particularly do not mention where that hospital was. I feel this is very sad, because at the moment euthanasia is occurring every day without the voluntary bit. I am wanting this law because it is voluntary; it is at the patient’s initiative. Often when the doctor ups the morphine, as they say, the patient is not aware of what is going to happen and that in fact they are going to die. The relatives do not know either. This is why the request must come from the patient somewhere along the line before they get too ill to be able to make a decision. Senator BROWN—Have you run into people where morphine itself is a problem and who in fact cannot have it? Mrs Dewick—Absolutely. Senator BROWN—Have you seen people who have been given morphine who have been having nightmares— Mrs Dewick—Hallucinating, gone right off. Senator BROWN—and have very distressing dreams as they move towards their death. In other words, they are put into another circumstance of real suffering because of morphine. Mrs Dewick—Exactly. A lot of people cannot tolerate morphine. I am sure Dr Robert Marr could probably answer this more competently than I can. But from where I sit as a registered nurse, I have seen horrendous episodes with morphine and interaction with other drugs, hallucinations and the trauma. It is made out that morphine will palliate anything. Senator BROWN—But that is not the case. Mrs Dewick—It is not true. Sometimes it does not even palliate the pain; it does not fix the pain. This happens sometimes—not all the time—but that is why I am trying to address the cases where the pain and the suffering cannot be controlled. Senator BROWN—Thank you. Senator COONAN—I am sorry that I am on the tail end of this session. I was interested in the discussion on transparency and this process being out in the open and that being one of the positive features, as you see it, under the bill. I was just wondering if you had caught up with the Netherlands experience which suggests that, despite it being a very permissive

LEGAL AND CONSTITUTIONAL L&C 342 SENATE—Legislation Friday, 14 February 1997 regime, if you like, in relation to euthanasia—it being well accepted as a concept and obviously availed of—so many doctors choose not to report it or not to avail themselves of the procedures to make the whole process transparent and in the open. I just wanted to give you an opportunity to make a comment about that. Mr Greenwell—In the Netherlands there are no controls in advance of the euthanasia. I think that is the critical point. It is solely a defence to the prosecution that you have conformed with the medical guidelines. Therefore, the doctor who has done it, whether rightly or wrongly, knows that it is only if he is discovered and then prosecuted that he has got a problem. Before the Remmelink report it was down to only 18 per cent who were reporting, because if they reported it the prosecutor would then have to examine what they had done. So many of them decided not to. What they have now done is to introduce a specific requirement for reporting and the requirement to answer a questionnaire. But it is still in marked contrast, in so far transparency and public control is concerned, to what we want embodied in the Rights of the Terminally Ill Act. In the NT legislation, you have not only these procedures in advance but also a certificate of request that must be signed, and the notes of the whole process must go to the coroner. So there are controls in advance of the euthanasia, which is the critical difference. CHAIR—Thank you. I would like to thank the witnesses for coming today and assisting the committee. [3.56 p.m.] FISHER, Rev. Dr Anthony Colin, Consultant, Australian Catholic Bishops Conference, GPO Box 368, Canberra, Australian Capital Territory 2601 HICKEY, Archbishop Barry James, Member of Central Commission, Australian Catholic Bishops Conference, 63 Currong Street, Braddon, Australian Capital Territory NEVILLE, Dr Warwick John, Head of Research Department, Australian Catholic Bishops Conference, GPO Box 368, Canberra, Australian Capital Territory 2601 NICOLETTI, Dr Margherita, Medical Officer ACT Hospice, Australian Catholic Bishops Conference, GPO Box 368, Canberra, Australian Capital Territory 2601 CHAIR—I welcome representatives of the Australian Catholic Bishops Conference and in particular Archbishop Hickey: thank you, Your Grace, for coming all the way from Western Australia. Do you have any comments to make on the capacity in which you appear? Archbishop Hickey—I am representing the Australian Catholic Bishops Conference in the absence of the president of conference, Cardinal Clancy. My background is in theology, psychology and social welfare. Dr Fisher—I am a lecturer in health care ethics and law at the Australian Catholic University in Melbourne and Ballarat. I am appearing today on behalf of the Australian Catholic Bishops Conference. It might be of interest to the committee to mention that I was the only Australian to appear before the House of Lords inquiry into euthanasia. I was a student in England at that time. CHAIR—Thank you. Dr Neville—I am responsible for the research department of the Australian Catholic Bishops Conference. My formal qualifications are in arts, law and moral theology. Dr Nicoletti—I am a medical officer at the ACT Hospice here and have been working full time in palliative care for the last two years.

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CHAIR—Perhaps if we could have an opening statement and then members of the committee will ask questions of you. Your Grace, would you like to make that statement? Archbishop Hickey—Certainly. The Australian Catholic Bishops Conference is grateful for this opportunity to appear before the Senate Legal and Constitutional Legislation Committee today. We said last September that the most important legislation which the 38th parliament would consider was the Euthanasia Laws Bill. The fact that this inquiry has received a record number of submissions indicates that many Australians sense how serious this moment is. Through you, Mr Chairman, may I express to all honourable senators our appreciation of the heavy responsibility that they carry as they prepare to vote. The Catholic church urges compassion for all who suffer, whoever they are and whatever has caused the suffering. The church gives practical expression to this by the conduct throughout Australia of 57 hospitals, most of which have dedicated palliative care units now; 600 aged care facilities; the provision of home hospice services; and stand-alone hospices. In broad terms, the church provides 70 per cent of non-government palliative care services. To this can be added the vast range of hospital and nursing home visitation and other practical support provided by members of groups like the St Vincent de Paul Society. These services are offered to all Australians whether they share our faith or not. We have a long history of attending the dying and believe that they have learnt something from it. Let me say simply that the dying need love and specialised care, not laws which threaten their security and sense of belonging. From the beginning, we opposed the passage of the Northern Territory’s Rights of the Terminally Ill Act which affected not only territorians but all Australians. While that act—the only one of its kind in the world—remains in force, it impairs the intricate system of relations which sustain our civilisation and our laws. A new disturbing element is introduced into the relationship between the doctor, nurse and patient; the family and its member facing death; the citizen and the state. The promoters of euthanasia say that those who are to die and those who are to kill under the legislation will always do so freely and willingly. These assurances are unconvincing enough in society as we now know it. What value would such assurances have in a society altered over time by legislation like the Rights of the Terminally Ill Act? Mr Chairman, the committee has our submission before it. We are ready to answer any questions you may have. CHAIR—Thank you. Might I say that your submission has now been made public. Can I also say at the outset that the committee received very many submissions from various denominations, Christian and others. Unfortunately, our timetable has not permitted everyone to attend before the committee, but I wondered if you could tell us whether the views that you have expressed are shared by your ecumenical colleagues. Archbishop Hickey—For the most part, yes. I am only aware of one small group that has had some publicity recently that holds contrary views. But my own experience of heads of church and conferences of other churches is that there is unanimity around Australia, apart from a very small splinter group. CHAIR—Thank you. In Darwin we had a question put to one of the local parish priests as to Catholic theology on the point of euthanasia. I wondered if you would be good enough to give us a brief outline of the position of the church in theological terms in relation to euthanasia.

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Archbishop Hickey—Yes, certainly. I might ask my colleague who is a professionally trained theologian to add to what I say. Very basically, it is a view drawn from a religious premise that human life comes from God and therefore God is the master of human life. It is not within our right to take human life. Therefore, we say it is sacred and that the day of our death is something that is not to be determined by ourselves but by God. That is the theological view. Our submission does not present just the theological view; it talks about the common good as well on the same issue. Senator McKIERNAN—Could I follow through on the point you raised on the theological view. That view is applicable to members of your faith—the Roman Catholic faith. Do you say that that view should be applicable to every other faith, and including those citizens of this country who do not practise any particular religion? Archbishop Hickey—We have no power to impose our views on others apart from the Catholic community, but in a democratic society we have every right to promote them and to hope that they be included in legislation, because we think that they are for the good of society. It is for that reason that we believe they are true, but it is also for the good of humanity that we advocate them and hope that they will be accepted by others and introduced into legislation. Senator McKIERNAN—In that context, you mentioned the number of submissions the committee has received. Has the church been instrumental in encouraging members of your flock to make submissions to the committee supporting the theological views that you have just outlined and are contained in much more detail in your submission? Archbishop Hickey—Certainly. In Perth, I have personally—I know other bishops have done so as well—encouraged people to put their views forward. You have received the views—I do not know what they say, but I have put in my own personal submission as well as being party to the bishop’s submission. I think that is a democratic right and I am very happy to do it. Senator McKIERNAN—We do appreciate receiving the submissions and, although it means a lot more work for us, we were pleased to receive them and receive the wide expressions of views. The Catholic Church would not be representative of the majority of the citizens of Australia, would they? Archbishop Hickey—No. We number about 26 per cent at the moment—the largest single denomination in Australia—but we are not the majority. Senator McKIERNAN—Twenty-six per cent, which would be more than the number of submissions that this committee has received on the euthanasia bills. Archbishop Hickey—It could represent the feeling that surrounds this issue. Senator McKIERNAN—Supposing—it is not true—all the submissions that we received came from members of the Catholic faith, we could be getting a very distorted view of what society wants of this committee and of the Senate in relation to the bill. Archbishop Hickey—That may be so. Are you implying that you will put forward legislation on the basis of what the majority of Australians want or would you be looking at the principles underlying the legislation? Senator McKIERNAN—I think we would have to do both. We do, when making decisions, have to be cognisant of the views of the majority but certainly we do have to have the underlying principles—

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Archbishop Hickey—I would think, therefore, that the submissions that come from Catholics generally would be about the principles underlying legislation and, if there are many from that quarter, then it is evident that they feel very strongly about those principles. They would not be acting on majority voting in this issue. Senator McKIERNAN—A further question on the same stream, if I could. Some of the submissions and some of the individual letters—it certainly would not be the majority—have been quite disturbing to me in the sense that they have equated the Northern Territory Rights of the Terminally Ill Act to the happenings in Germany during the Second World War. I felt that was somewhat extreme. I may be wrong in this, but I have taken the decision, for those constituents who have written to me on that, not to reply rather than starting a paper war between us. I found that a disturbing element in the campaign. I was even more disturbed in recent days when I read the submission that you put in and noticed that your churches have made reference to the happenings in the Second World War. Archbishop Hickey—Senator McKiernan, there is reference in our submission. There is a quote there from Malcolm Muggeridge who makes the claim that what was a war crime in Nuremburg is now, 50 years later, acceptable legislation. I think the people who get very upset about this do see a slippery slope argument that, however benign this present legislation in the Northern Territory appears to be on the surface, it breaches a principle in that it undermines the dignity of life. Who is to say that they are wrong and that one day we might not see the compulsory extermination of mentally handicapped people? Who knows what the result will be once the principle is breached. Upsetting as those submissions might be, and I certainly did not urge them to write in that vein, who is to say that they are wrong in 50 years time? Senator McKIERNAN—I hope I was not implying that you had urged people to write in that sense. I merely make the statement. Why, in the currency of this debate, did your submission need to go to those lengths to, in my terms, really scrape the bottom of the barrel to reinforce the argument, and I know it is only one element of a very large submission? Archbishop Hickey—We have here an example in the 20th century of the extraordinary things that can occur once the principle of the sanctity of life is breached. That is a 20th century example, not something from the Roman empire—the 20th century. There is no great object of proof that we have achieved any high pinnacle of civilisation yet when that can occur in our own century. So I think people who ring alarm bells have something to go on. Senator McKIERNAN—Finally, I think it is a very unfair comparison when you equate the three people who have terminated their lives in the Northern Territory with those horrific events back in history. I personally cannot accept it. Archbishop Hickey—I can understand the repugnance you feel at the comparison being made. I can only say that people feel very deeply on this issue. Our submission is about the breach of a principle that underlies this legislation: the principle that life is to be protected. That is already written into our laws for the common good. If the legislation in the Northern Territory does breach that principle, as indeed it does, then we will most certainly face other breaches in the future of the same principle. I hope we can hold the line, but I do not believe we can. I would not make the comparison with Nazi Germany, but that is a contemporary example of what can happen once a principle is breached.

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Senator COONAN—I can appreciate—indeed, I think I probably even agree—that what we are really looking at is all about principles and underpinnings rather than just individual cases, which is always a very dangerous way to look at how you change law and why you change law. I am still very troubled by the evidence we have had before us about the very small percentage of people who seem to have suffered what has been described to us as ‘hard deaths’—the people who either do not respond to palliative care, or do not receive it, and who have a very agonising end of life. How, within the theological and moral framework that I appreciate you are coming from, can we have any kind of practicable regime which could assist those number of people? I realise they are only a small number of people. But I must say that I am very troubled by the fact that, whereas I could get my head around the wild examples on either side, there is just a little core there that I would really appreciate some comment about. Archbishop Hickey—I can invite others on the panel to comment, because they are much closer to palliative care than I am. I would say that the church, as I mentioned at the beginning, is involved very much in palliative care services. It provides most of the non- government palliative care services in Australia. Therefore they face this problem each day. It would be good to hear a response to your question from people involved in palliative care. Dr Nicoletti—Physical pain is the easy thing to control. It is emotional and spiritual pain that is more difficult to control in someone who is terminally ill. When that physical pain cannot be controlled, it is often a manifestation of something that is going on in that person’s spirit. That needs to be and can be explored, if not by the doctor or the nurse, by the counsellor or someone else on that team. If you are saying that medicine cannot control all pain and all suffering, medicine also cannot determine when someone is going to die. We do not know. There have been many, many times when I would have thought that somebody would have died in the next few days or weeks and they have gone home from our hospice and come back a year later to die. They have had a year of fruitful life—worthwhile and fruitful—not just for them but for the people around them. Had we terminated their life when we thought they were going to die, because medical science said that they should have been dying because they had all this disease, they would have missed out on a huge amount of life that was very worth while. Palliative care is more than just morphine, I have got to say. Morphine plays a smaller and smaller part in palliative care science. There are other medications, other drugs; there are other ways of dealing with pain in particular. Pain is not the biggest issue in the dying. I think it is more a spiritual, a grief, an emotional thing. Often when people have pain which is out of control it is compounded by their other suffering, which can be addressed in other ways. Senator COONAN—Have you had experience of people who are dying in unbearable pain? Dr Nicoletti—I have had experience of people who are dying where some event has happened to them near the end of their life such that their pain has escalated. That pain has been controllable with various routes of administration, with intravenous medications, large doses—yes—of morphine and of other medications. But I firmly believe that it is a disease that took those people’s lives, not a dose of a drug that I have given to relieve suffering. Senator COONAN—I am not suggesting that; I am just interested in your comments. Subject to other members of the committee asking questions, if there is time, I would really like to hear a comment from anyone else on the panel who wishes to address this.

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Dr Fisher—It strikes me that this case, which I think exercises many of us, of a person whose pain cannot be entirely relieved—or perhaps the pain has been relieved but they have other kinds of suffering and they loathe being alive any more—really presents us as a community with a very real challenge. What are we doing for people who are lonely, who have low self-esteem, who are angry and hurt and depressed? We are in a situation where we cannot even guarantee them palliative care, particularly in the Northern Territory—we can guarantee that they will not get it there, because it is just not available—let alone the whole range of health care and social supports, emotional supports, spiritual supports, things that people need when they are frail elderly, disabled, chronically sick or terminally sick. That is the real challenge this debate presents our community with. We should be looking for positive solutions for people suffering—the whole range of ways they suffer—rather than of dealing with misery by killing the miserable. Can’t we find a more positive, more creative way of addressing the suffering in people’s lives as a community? Dr Neville—Senator Coonan, I mention one particular part of the report of the New York state task force in which they address the issue of the state’s responsibility vis-a-vis the care to people who are in great suffering and pain. They deal with it, amongst other things, in the context of what they describe as improperly managed pain. Senator COONAN—Do you have the page reference? Dr Neville—Yes, I do. It begins at page 72 and goes through to page 75. There is a footnote on page 74. One very small part of that is seeking to respond to this whole question in terms of the legal debate that is going on here. It is saying, ‘Yes, this is a major problem. What is a legal response?’ The response is to the proposal that euthanasia is the answer. In their response—a very short sentence—they cite Ronald Dworkin’s book Life’s dominion. They say: Dworkin’s argument loses much of its force once it is recognised that the number of people genuinely harmed by laws prohibiting euthanasia or assisted suicide is extremely small. They say that legalising euthanasia or assisted suicide for the sake of these few, whatever safeguards are written into the law, would endanger the lives of a far greater group of individuals who might avail themselves of these options as a result of depression, coercion or untreated pain. Senator COONAN—I remember reading it. Thank you for bringing it to my attention. That really gets back to the principles as opposed to individual cases. I was interested, because of the experience of people on the panel with palliative care, in whether you had any other things to add to the sorts of graphic descriptions we have had here from people in favour of this bill who have been dealing with people in uncontrolled and very painful circumstances— whether they are being asphyxiated or whatever happens—that do not appear to respond to the traditional sorts of palliative care. I appreciate what you are saying. I just wondered whether there was anything you wanted to speak about in relation to the specific sorts of cases. Dr Neville—There is a book by Dame Cicely Saunders, which is basically a series of stories about her work in St Christopher’s Hospice. Some of the stories are really quite remarkable in terms of what might seem to us bizarre treatment. Senator COONAN—I am aware of some research whereby practitioners at St Christopher’s have said that requests for euthanasia decline to a very small percentage, in any event, where palliative care is extremely good. Whatever we get out of this debate, let’s hope we all agree that we have to look after palliative care in a better and more constructive way in this country. I have just one other question. I am sorry I have taken up a bit of time. What is the total percentage that Catholic organisations—if that is the right description, generically—provide

LEGAL AND CONSTITUTIONAL L&C 348 SENATE—Legislation Friday, 14 February 1997 in relation to palliative care, across the spectrum? What percentage would be provided by the church or church related organisations? Dr Neville—We might take that on notice. Senator BROWN—Did you support Australia’s involvement in the Vietnam war? CHAIR—I do not know whether that is a relevant question. Senator BROWN—It is. Archbishop Hickey—It is one of those issues where I kept debating in my own mind where I stood; perhaps I was avoiding the issue. I was even balloted in to go to the war. Somebody put my name in. I was well over the age, I can tell you. Senator BROWN—We must both be of the same vintage, in the same age bracket. You will remember that many senior figures in the Catholic Church did support Australia’s involvement. Archbishop Hickey—Indeed they did because they were opposed to communism and they felt that this was the beginning of a takeover of many countries in South-East Asia and the battle had to be won there. They had strong arguments on their side. On the other hand, I could see that it was virtually unwinnable. There was loss of life. It was a terrible situation. As I do in all wars, I urge first negotiation; but I had no voice that time. Senator BROWN—The point I am making is that there was a lot of suffering to hold the line on that occasion. Archbishop Hickey—Yes. Senator BROWN—I think we have to be very careful about simply holding the line with regard to the prospect of other things that might happen or might not happen. There is a very clear example of where the prospect of far worse things happening if the line was not held were found to be hollow by the passage of events. You said ‘love and specialised care, not laws which threaten their security and sense of belonging’—if I remember correctly—is what is required for the people who are dying. Could you tell me what you mean by ‘threaten their sense of belonging’? Archbishop Hickey—What I mean is belonging to the human community; feeling you have friends around you. I go often to nursing homes and I am appalled to find out the number of people who have no visitors. They must have their very depressive moments when they think, ‘I would like this all to end. Isn’t there anybody who can help me?’ What they are missing out on is the support of friends and relatives. With that support they would not feel that way. We talk of compassion: it is very important that elderly people, very sick people and terminally ill people still have the love and care of the human community around them. Senator BROWN—I could not agree more. We heard last night about somebody who had come to a hospice from a totally isolated background wanting to die and who found, for the first time, people who would give some loving care. He changed his mind. I thought a very clear and normal human reaction had occurred there. But we get to the difficulty of the small percentage of people who are ineluctably going to suffer great indignity and pain—from their perspective—in the dying process. One thing the committee has heard very clearly in submissions is that that small group of people exists, they are a reality and they are not able to have their suffering ended by the application of whatever cocktail of drugs—or lines or drips, as somebody put it last night. What about those folk?

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Archbishop Hickey—Medical care is not my field. I just repeat what I have been told, that people who are in desperate pain can even be made comatose and brought back for feeding, visiting friends and so forth. There are ways and means of easing the pain. Senator BROWN—But we have heard that there are no ways and means of easing the pain for that small number of people. Archbishop Hickey—I have not heard that from Dr Nicoletti on this panel. If the church has the majority of palliative care units around Australia, they are not putting forward submissions of this sort to you either. Maybe you should ask Dr Nicoletti what she says about this hard core of people who continue to suffer. Senator BROWN—I will in a moment. Dr Fisher—It strikes me that, even for those people, we have to examine what our willingness to provide euthanasia might be saying to them. If our community is saying, ‘We agree with you that your condition is so undignified that we think you would be better off dead,’ that ‘we are willing to help hurry that along’ we are willing to add killing to the series of rejections that the dying, the chronically ill, the handicapped and the frail elderly already suffer in various ways in our community, what might be well-meaning could end up being one more sign of rejection by our community for that person—that one per cent that you identified. So, while it is well meaning and kindly in its motivation, it is ultimately adding to their low self-esteem, and their sense of being a burden and of being in the way. Senator BROWN—Dr Fisher, you are jumping the boundaries of the debate—like others— by saying that this matter is one of us saying to people who are extremists, ‘We think you would be better off dead.’ I submit to you that it is a case of that person who is terminally ill being able to make a decision on her or his own behalf—because all of us are going to end up dead anyway—that they want to end their suffering at the end of a fully productive and, hopefully, happy and fulfilling life and that their sense of dignity says that is an option they should have. Would you deny them that? Dr Fisher—That it is not as simple as that is, I suppose, what I am saying. What happens here is a compact between at least two people and, in fact, more people to bring this about. It means that we all agree—you, the patient who is asking for this; me, the doctor who is willing to do it; and the broader community, which is willing to permit it legally and perhaps fund it and all the rest—with that decision, ot at least that that decision should go ahead. It is not just a single isolated individual saying, ‘I want this.’ Senator BROWN—But it is the individual’s choice that we should work upon, isn’t it? It is not somebody else looking in on them and saying, ‘You would be better off dead,’ or ‘You must, regardless of whatever, be denied the alternative of the euthanasia option—if you happen to be in the Northern Territory.’ Dr Fisher—We are not just isolated agents: we are a community of people who interact and who relate. These are decisions we make together. If we are to act on them, in this very particular case we are looking at, we have to act on them together; it cannot be done alone. It affects a lot of people; it is not just a single individual’s choice. Senator BROWN—I am just glad that you have brought the individual back into this picture and that it is not a case of us just saying, ‘You would be better off dead,’ because I do not think any of us would agree that we should be taking that attitude. Dr Nicoletti, you said that the pain can be explored by someone on the team. How long would that take?

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Dr Nicoletti—It might take days or it might take weeks. But often I have found that people who are in quite distressing pain—secondary to some emotional problem—because of a spiritual problem they are grappling with, when that is first breached and spoken about that pain diminishes radically, if not completely. Senator BROWN—I am much more on your side in the terminology. I like reference to a spiritual problem better than existential—and I think you might too. I found that a new application of the word ‘existential’ when I heard it from one of the hospice folk yesterday. Nevertheless, would you agree that there are people who take a long while to come to grips with pain and that suffering occurs over a long period? Dr Nicoletti—I do agree with that. But I would have thought euthanasia was a very easy way out and that that would limit us in learning new ways in the future to deal with the more complex pain issues. Senator BROWN—We do have this difficulty, however, of saying to folk that it may take days or weeks, but we will look for a way of circumventing your pain, let alone your spiritual distress which might otherwise be called indignity. That is right at the heart of this matter because sometimes people die while they are waiting. Dr Nicoletti—Sometimes people have very good quality time while they are grappling with their pain and they have very worthwhile experiences towards the end, even if they look, to me on the other side of that body, like someone who is suffering greatly. Many times I have seen people reunite with family members and have very rewarding experiences right at the end, and they have actually come good in their life through that suffering. Senator BROWN—Yes, I have too, but I have seen the others who have not. That is the problem: we have had recurrent evidence here that there is that small proportion of people for whom that does not work. Dr Nicoletti—If you euthanase that person today, how do you know that that person might not have had some very positive experience come out of their suffering two weeks down the track? You are robbing them of something that is very special. The end of someone’s life, no matter how difficult it may be, is a very special time both for the person who is dying and for the people around them who love them. Those people will be robbed of those experiences. Senator BROWN—I will put two things to you on that. First of all, I do not think the ‘you euthanase’ is much different to the ‘they are . . . ’—I have forgotten your term. It is a decision that comes from the person, not from people outside. Dr Nicoletti—It is a person who is pressured by— Senator BROWN—No. It is not a person who is pressured. Dr Nicoletti—But requests for euthanasia often come from people who feel that they are a burden and there is no point in their going on, because family members cannot get on with their lives, there are financial considerations and it is easier to get it over and done with. Senator BROWN—Is that your experience, or is that what you have heard? Dr Nicoletti—That is my experience. Senator McKIERNAN—Has that happened in all instances of your experience? Dr Nicoletti—No. Senator BROWN—Have all the people that you have been involved with who have made requests to end their lives been turned down?

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Dr Nicoletti—They have all been turned down by me, and another way has been found that has been satisfactory. Often it is a plea for help, and it is an opening into how to deal with the real problem that underlies the plea. Senator BROWN—It is broad territory though, because you are putting yourself in the position of being arbiter of what is good for that person and taking from that person her right to be arbiter of what is good for herself. That is the difficulty. I agree that there has to be the ability to explain options to people within the law, to give them time for consideration and to get in other opinions. But, at the end of the day, there comes a time when we have to be able to say to a person, ‘You have a right. This is your right. You have made this request.’ You have already made it clear that people do make these requests. Surely there has to be a time when you cannot keep dictating to that person that they have no right for their request to be heeded? Dr Nicoletti—I do not dictate to people. In palliative care, the patients’ rights are paramount. We try to accommodate what they want. However, in my two years working at the ACT Hospice, in every instance where I have had a request for euthanasia—and there have not been many, there have only been a handful—after discussion and exploration of the issue, it is not euthanasia that the patient really wanted. They wanted something else. One woman, who was a widow in her 60s with a very caring family, asked everyone else to leave the room and said the time for euthanasia was now because her family had to get on with their lives. She came into our hospice in a lot of pain and was vomiting and quite unwell. When we sorted all that out, and she had plateaued in her illness and was just waiting to die, she asked for euthanasia. I explored what was behind this request: she had a favourite son who had come from Canada to be with her—and he wanted to be there—but she knew that he had to go back to his family and his life and that the other adult children also had to get on with their lives, and she felt that she was a burden to them in that way. I explained that my perception of this son was that he wanted to be there and that every moment that he had with her was positive time and he was getting things out of being with her, even if she was lying in bed and not doing very much. She accepted that. Later I re-explored with her whether that was okay, and she said, ‘Fine’. The son had been sent out of that room for her to talk to me, and I promised her that I would keep that confidential. She did not want anyone to know that that was what we had talked about. I came in soon after she died, and her son was there with her, and he looked at me and asked me, ‘My mother asked to have her life taken that day, didn’t she?’ It had been playing on his mind and upsetting him tremendously. His estimation of his mother had gone right down, because he felt that she would not have done a thing like that, that she would have felt life was more valuable. I said, ‘Yes’, but I also explained that she had decided that it was not really what she wanted, and she had just wanted to talk about it. It was as if a burden had been taken off his shoulders, when he heard that his mother had not asked for that and did not want euthanasia. The knowledge that his mother had wanted to take her own life would have been too much for him to bear for the rest of his life. Senator BROWN—Therein is a problem, because for some people in our community—and I think religion plays a part in this and you might like to comment, Reverend Hickey—there is a very strong cultural inhibition. CHAIR—Senator Brown, can we bring it to a close, because you have had a run of about 20 minutes.

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Senator BROWN—I find this a very important session, and I would like to finish the couple of questions I have. CHAIR—It is, but some of us have to catch planes. Senator HARRADINE—We will not have time for the Coalition for Voluntary Euthanasia. CHAIR—I can turn them away and say that it was because of your questioning that we had to turn them away, but I would not want to do that. Senator BROWN—You leave me with no option but to end a questioning stream that I wanted to undertake. So be it. CHAIR—I am sorry, we have limited time. Senator BROWN—I submit that it is not good enough, Mr Chair. Senator COONEY—We all like to find things out, but we have got limited time, and people cannot get here again within sufficient time. Senator BROWN—This is an extremely important matter. The archbishop is spot on on that. It requires adequate time for us to be able to discuss it. I am finding that that time is not there, and I object to it. Senator COONEY—Do you want to try to see if we can send away the other group? Senator BROWN—No, I do not want to be the cause for their going. CHAIR—We can perhaps bring them back another day and have another hearing. We can try and squeeze it in on the night of a sitting day and do it that way. Senator HEFFERNAN——Mr Chairman, there have always been pressures on these committees and usually the chairman divides the time up amongst the people. All these questions and issues are important for all of us, Senator Brown. We are against the constraints of the clock, and maybe you would like to explore it after these people have moved away from the top table. Senator COONAN—I would like to hear it. Senator COONEY—I have two short sharp questions. I do not like state sanctioned killing, but in the history of religion or of any philosophy, there has always been an allowance made for the imposition of a death penalty. That philosophy, which—hopefully—should say that you should not take away life or stand by whilst life is taken away, seems to be contradicted by that. The other question, Dr Nicoletti, is that this palliative care takes a lot of time and would be very expensive, I take it, if doctors and nurses were properly paid for that time. Could I have an answer to those two questions? Archbishop Hickey—Yes. It is true that in the church teaching there is allowance made, in extreme cases, for three occasions when killing can happen. One is in legitimate war, another one is in self-defence, and the third one is capital punishment. Senator COONEY—I have not got any trouble with the law or self-defence, but here we have got the state actually going about the exercise of killing someone. Archbishop Hickey—In terms of your own challenge to our theology, I think they are connected because there do seem to be exceptions from our rule that life is sacred; life remains sacred. In the three instances I mentioned, we have the question of defence—defence of one’s own person. If the only means is to stop that person and, in doing so, kill that person, we say it is a legitimate way of defending. So also for the state in the case of war. If it is the only thing left, then it possibly can be legitimate. In capital punishment, the state does, in some

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 353 places in the world, legislate for taking the life of a guilty person. The teaching of the church there is that that can only be done in very extreme circumstances when the state itself is under threat. There we have the same concept of defence. But, in all three cases, it is the defence of life that is the underlying principle, even in what seem to be exceptions to the rule. But, in the case of the innocent, there are no exceptions. Senator COONEY—I must confess it still seems a bit like our sale of the Commonwealth Bank when we are trying to oppose Telstra. They keep bringing this up, and I think the example of capital punishment is a bit like that. I think it is not just the Catholic churches, but the church’s sale of the Commonwealth Bank. What about the other one? Dr Fisher—I think on this matter it should be very clear that it is absolutely the minimum necessary force to disable the threat to other people. That is why, for instance— Senator COONEY—Hold on. Throughout history, if you look at that, the evidence is quite contrary to what you are saying. Dr Fisher—It may be that throughout history various states and even churches— Senator COONEY—I will just say this, because we are short of time. If you look at the United States now, that is not— Dr Fisher—I would not condone that for a moment; I would agree with you. Senator COONEY—If I could have Dr Nicoletti— Dr Fisher—Could I point out, just by the way, that every time there is a move to execute someone in the United States there is a letter from the Pope to the governor of that state asking for clemency. The church was probably the major opponent that led to the law reform in Victoria that led to the abolition of capital punishment. Senator COONEY—That is a fairly modern tendency. Archbishop Hickey—The killings done through this sphere are not being done by the church; they are being done by the state. Senator COONEY—Anyway, I think we are pretty short of time. CHAIR—Senator Cooney, in fairness, execution in the United States has only recently been reintroduced. Senator COONEY—But there was only a gap there for about 10 years. CHAIR—Anyway, thank you for that. Dr Nicoletti. Senator COONEY—What about the cost? Can I just get a quick answer about cost? Dr Nicoletti—I cannot remember the name of the institution, but a large American teaching hospital wanted to introduce a palliative care facility. They opened up this palliative care within their hospital where the specialists—the oncologists, the cardiologists; whoever the doctors were of the patients—continued to look after their patient in the unit with consultation with the palliative care team. After a year, the running of that unit was revised. The thing that made the hospital board continue the use of that unit—I can later give you the names, if you wish—was the fact that it was much cheaper to keep a person in a palliative care facility than in an acute bed on a medical ward. Fewer interventions are taken. Although the cost of fentanyl or morphine or certain procedures may be a lot, a ventilator costs a lot more, and there is an infusion of other things. Senator COONEY—I will not pursue that.

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Senator HARRADINE—Just a very quick question to Dr Fisher. On page 13 of your submission you said: . . . the practice of euthanasia is profoundly corrupting and ultimately uncontrollable. Could you explain briefly to the committee? Dr Fisher—Yes. My principal area of interest on that matter has been to look at the Dutch situation, which I think you have heard a great deal about already. But it is not just the Dutch situation, I think we can point to some other times and places in history, and to other individual situations, where individuals and societies have decided that particular groups will no longer have the protection of law and it will be permissible to kill them. In each situation there have been supposed limits to this. It has never been a free-for-all. There has been no community where there has been a free-for-all on killing, but sometimes particular groups have been excluded from protection. Each time we look at that, and certainly if we look at Holland and what has happened there in the slide in the legal judgments, the group wo may be billed has grown and grown and grown. And the attempts to control it—no doubt, again, well meaning and honest attempts—have failed: what has happened is that people keep pushing at the boundaries. People keep making exceptions and it has ended up uncontrollable. Senator HARRADINE—Dr Neville, or any of the panel, what do you say to those people who say, ‘I am against euthanasia, but I believe in territory rights’? What is the response to that? Dr Neville—I would say, amongst other things, that there are some things which are so important to a country, to its citizens, et cetera, that they warrant consideration and attention by the national parliament. We would say that life and death—the intentional killing of fellow citizens—is one such matter. CHAIR—Thank you, Senator Harradine, that brings us to the conclusion of this part of the day’s hearings. May I thank the representatives from the Australian Catholic Bishops Conference: Dr Fisher, Archbishop Hickey, Dr Neville and Dr Nicoletti. Thank you for attending and assisting us with your evidence. [4.52 p.m.] MARR, Dr Robert, Doctors Reform Society, 687 Darling Street, Rozelle, New South Wales 2039 MEAGHER, Mr Bruce Michael, Secretary, AIDS Council of New South Wales, 9 Commonwealth Street, Surry Hills, New South Wales 2010 WRIGHT, Ms Pauline Jennifer, Management Committee Member, New South Wales Council for Civil Liberties, 149 St John’s Road, Glebe, New South Wales 2037 CHAIR—I call the committee to order and welcome the representatives of the Coalition of Organisations for Voluntary Euthanasia. The committee has received your submission, which has been made public. Who would like to make an opening statement? Dr Marr—I think we all have a little three minute— Ms Wright—I will start. Senator COONEY—What was the second organisation you are representing? Ms Wright—Young Lawyers. CHAIR—You used to be one, didn’t you, Barney. Senator COONEY—Oh God!

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Ms Wright—I am being told that I am fast becoming ‘unyoung’. From the point of view of the Council for Civil Liberties and Young Lawyers, there are two aspects to the issue under discussion, and they are: first, the desirability of voluntary euthanasia legislation, in particular the Northern Territory legislation, and secondly, the desirability or otherwise of the enactment of the Euthanasia Laws Bill. In our view, both of those aspects involve the issue of the rights of people to self-determination. Firstly, as to the desirability of voluntary euthanasia legislation, our view is that voluntary euthanasia is a matter for the individual. It is a matter for choice. Voluntariness is the crux of it and we believe that the Northern Territory legislation goes a long way to ensuring voluntariness. Those who are terminally ill, and who wish to, ought to have the choice to terminate their own lives with the assistance of medication. Most people will be able to self- administer medication, but for those who cannot, the assistance of a willing doctor in administration of the medication should be available. That is our view. Doctors who provide that assistance at the express request of a person must be immune from civil and criminal prosecution or liability. We believe that the Northern Territory legislation ensures this. Because voluntariness is the crux, the person’s choice to terminate his or her life must be fully informed and any doctor assisting must ensure that the person’s consent to the administration of medication is given on a fully informed basis. We think that the Northern Territory legislation ensures that. Informed consent means that the person should be informed of the alternatives. They should be informed of therapeutic care that is available, the availability of withdrawal of therapeutic care, the availability of palliative care, and the availability of voluntary euthanasia—should they choose it. We believe that the Northern Territory legislation ensures that a person seeking assistance under that Act is informed of those alternatives, because of the various steps that are enacted in that legislation. A request for voluntary euthanasia must be made freely, voluntarily and without duress. And it must be clearly expressed. There are safeguards built into the Northern Territory Act to ensure that vulnerable people are protected. The fact is that in New South Wales, in Australia, in the Northern Territory, in the Australian Capital Territory, euthanasia happens. Doctors are helping people to die at their request, and sometimes not at their request. Few people would argue that it is inappropriate for doctors to give larger and larger doses of, say morphine, to ease a person’s suffering. Few people would argue that that is a bad thing. But if we are really looking at the consent of the person whose life is at stake, that can happen without that person’s knowledge, and without their consent. It is, therefore, open to abuse. That is the situation that presently exists. That situation leaves people open to abuse much more than does the situation in the Northern Territory where people must go through rigorous regulation process before they can utilise the means under the Act. We believe that these practices ought to be regulated. The legislation has to ensure that it is voluntary. As Tom Pauling Q.C. said in his advice that was given last year, on 16 September I think: ‘The present situation is quite uncontrolled and does not require the knowledge, let alone the consent, of the patient before palliative care, practically certain to bring about hastened death, is given.’ Except in the Northern Territory, medical practitioners who are carrying out euthanasia are not subject to scrutiny or accountability. We believe scrutiny and accountability are essential to ensure voluntariness. If doctors are able to carry out euthanasia openly and without threat of criminal or civil liability, it also enables them to discuss alternatives that they had not thought of, with their

LEGAL AND CONSTITUTIONAL L&C 356 SENATE—Legislation Friday, 14 February 1997 peers. At the moment, and if the Northern Territory legislation were to be overturned, it has to be done secretly, without consultation, otherwise the doctor exposes himself. U nder common law a person may choose to die. They can refuse life sustaining treatment. There are many cases that support that—I have not brought them with me, they are in my other handbag. If they require active intervention, though, the law denies them this right, except in the Northern Territory. So this leaves only the undesirable option of suicide. Suicide is often violent. It is almost always done in the absence of any adequate counselling or discussion about alternatives, such as palliative care, psychiatric help or whatever. It is often unsuccessful and sometimes results in unexpected disabilities that render the person’s quality of life less favourable than it was before. But the option of voluntary euthanasia assisted by a doctor, regulated by law and requiring counselling, has obvious advantages. The Northern Territory requirement for counselling and information regarding palliative care may even encourage some people, who have thought they wanted voluntary euthanasia, to choose not to die. But if they do choose to die—if they still persist in their choice—it ensures that their death is as easy, as dignified and as painless as possible. Some people, of course, are so disabled by their disease that they cannot self-administer, they cannot suicide. For those people, medical assistance in the administration of the medication is their only choice if they want to die. They cannot choose to suicide. Palliative care is not always ideal and is not always a solution. You have, no doubt, all heard what Bob Dent said: I have no wish for further experimentation by the palliative care people in their efforts to control my pain . . . I cannot even get a hug in case my ribs crack. Being unable to live a normal life causes such mental and psychological pain which can never be relieved by medication. Many people would rather die than be at the mercy of other people to look after their most basic bodily functions: to defecate, to urinate—they need intervention. Many people do not want that. We submit that that is a matter for them; that is a matter of their choice. The moral argument that is most often advanced is that there is innate value in a human life. That is very hard to argue with. That is, of course, true. But so is the proposition that a person is in such suffering that they can no longer stand their life. Why should they be denied the right to terminate that life in a way that is as easy as possible? It is their choice. If they choose that, we ought not deny it to them. It all comes down to choice. If a person disagrees with voluntary euthanasia for a religious reason, whatever reason it might be, that person does not have to exercise the right, but I don’t think they should impose that moral or religious view— whatever their view might be—on those who do wish to die. Again, Bob Dent said: If you disagree with voluntary euthanasia, then don’t use it, but don’t deny me the right to use it if and when I want to. The second aspect is, of course, whether or not the enactment of the Euthanasia Laws Bill is desirable. We submit that it is not. The enactment of that bill will be a withdrawal of power from the Northern Territory parliament. Tom Pauling QC, in his advice of 16 September 1996, said: The withdrawal of the plenary grant of legislative power is unprecedented except in the case of civil insurrection and raises serious concerns as to the possible effects of such a withdrawal of power upon existing laws of the Northern Territory. It is clearly true that a withdrawal of power, such as is proposed, is contrary to more than 150 years of colonial history, parliamentary convention and practice. We submit that powers given to the Northern Territory on self-government in 1978 should not be taken away. The federal government could not enact this legislation to defeat the law

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 357 if the law had been passed by a state. The people of the Northern Territory, through their elected representatives, have a right to determine the laws in their territory. The Euthanasia Laws Bill seeks to take that right away. They could not take that right away if those people lived in a state. Should territory citizens have fewer rights than state citizens, just because they happen to live in a territory? The answer to that must be no. In summary, I say that the rights of the dying and the rights of the territory parliaments to govern their territories should not be blocked by people who, for personally held political, moral or religious views, do not agree with voluntary euthanasia. The Andrews bill seeks to nullify the will of the people of the Northern Territory as expressed by its elected representatives—not once but twice: first, when the law was enacted in May 1986 and, secondly, in August when a move to repeal it was defeated. We call upon the Senate to reject the bill for those reasons. CHAIR—Dr Marr, would you like to make a statement? Dr Marr—I will make a brief statement. Being a doctor, I will stick to things that I know about, so I will not talk too much about constitutional issues. Basically, the debate really comes down to a matter of how terminally ill people die—not their death, the manner of their dying. That is what we are talking about here today. At the end of the day we all have to die. That is something that unites us all but, tragically, how we die and the manner of our death will vary. I do not know how many people you have seen die: probably a loved one, maybe a couple of people. As a medical practitioner over 22 years, I have seen a fair few number of people die. I know how we all want to die. We all want to die as Senator Panizza apparently died: in his sleep. That is how we want to die. Tragically, that does not happen to all of us. David Niven, for example, died of motor neurone disease—a disease that slowly paralyses you until you cannot eat, swallow, breathe or move anything. You certainly cannot commit suicide because you are totally paralysed but your brain is still fully functional. David Niven died of that disease. He described it as a torture that no man could devise. My father also died of that disease. So I think we can see that there is a range of deaths that might await any one of us. We all hope that death will come quickly and easily but, tragically, it does not for some people. I am a great supporter of palliative care and I know it can relieve the suffering of many people, but even the palliative care experts say that they cannot relieve the suffering of somewhere between two and 10 per cent of dying patients. Perhaps some of you do not know some of the things that happen when somebody dies. If, for example, somebody is dying of cancer, sure we can relieve a lot of the pain and a lot of the suffering. An article in the Medical Journal of Australia on 6 January this year said: Delirium, or acute brain syndrome, is a common problem . . . affecting 77%-85% of dying cancer patients. . . . ‘terminal restlessness’ is a . . . [variant] of delirium observed in some patients in their last days . . . of their life...... Terminal restlessness is defined as agitated delirium in a dying patient, frequently associated with impaired consciousness . . . and affected patients may experience symptoms of central nervous system irritability (mental agitation, confusion, physical restlessness, moaning or crying out) and myoclonic spasms, twitching or convulsions.These are some of the things that we have to face, that will face you or me perhaps when we die. Death is not always a simple, easy process—that we die in our sleep or have a sudden heart attack. Quite often there are many symptoms that are only

LEGAL AND CONSTITUTIONAL L&C 358 SENATE—Legislation Friday, 14 February 1997 partially controllable in the actual process of dying. These symptoms can last certainly days and sometimes longer. As a practising doctor, I am very strongly supportive of palliative care. One of the great benefits of this debate for the nation has been a refocusing on palliative care and the need to put more funds into it. That is certainly going to be one of the positive things that I think we can all agree on. I notice that Senator Coonan mentioned this in a previous session. I think we can all agree that palliative care needs more funding in Australia. It would be an absolute hypocrisy of this federal parliament if it cut funding to palliative care or did not renew the federal palliative care program in this budget. We need not only continuous funding for palliative care but more funding. The two to 10 per cent of patients that palliative care cannot help is taking into account that everybody has access to palliative care. That is patently not true. We know that the Northern Territory does not have perfect palliative care but there are many rural areas that have far worse palliative care services than the Northern Territory. We just do not have enough money to employ enough doctors and nurses to really provide the palliative care that is possible in the best places in Australia. I would like to put on record that the study in the New England Journal late last year has knocked on the head the slippery slope phenomenon that has been talked about by some anti- euthanasia people. They have based some spurious argument on the original Remmelink study in the Netherlands to suggest that there was a certain amount of involuntary euthanasia in the Netherlands and that this was obviously due to their de-criminalising euthanasia and therefore we were on a slippery slope. Just to put it on the record, there has been a follow-up which some of you may have heard about: the van der Maas study, which was published in the New England Journal last year. To quote from the New England journal editorial: Are the Dutch on a slippery slope? It appears not. The first report, by van der Maas and colleagues, shows that the practices in 1995 were not much different from those in 1990. In fact, there was a slight decrease in the number of involuntary euthanasia cases recorded and a slight increase in the voluntary euthanasia cases—exactly what you would predict if you de-criminalise or legalise voluntary euthanasia, because you bring it out into the open. That brings me to the final point, which is the point that was mentioned on page 3 of the Herald today. We have many people undergoing euthanasia in Australia today. I know this study has not been totally published yet and we are only going on figures that have been leaked by anonymous sources, but on these figures alone: 1.8 per cent of deaths were from doctors administering or prescribing lethal drugs at a patient’s request. This is really what voluntary euthanasia is. This is going on in our country today. There are some other interesting statistics: 3.5 per cent of deaths involved administering drugs without a patient’s request. This is going on in our country today—secret euthanasia. Every doctor in Australia knows it. I think we need to bring it out into the open and stop sticking our heads in the sand and saying that this is not going on. I know that not all doctors, but some sections of the medical profession like the AMA, say, ‘Just leave it in the hands of doctors. Doctor knows best. We will always be acting out of compassionate concerns for the patient.’ I believe that mostly they are too. I believe that doctors are acting in a compassionate way in doing this, in helping patients. But we have gone past the day when we can leave things in doctors’ hands. Patients have rights, and what greater right should they have than a right to decide what happens to them

LEGAL AND CONSTITUTIONAL Friday, 14 February 1997 SENATE—Legislation L&C 359 at the end of their life? It is very similar to some of the other debates that have gone on in the past—the abortion and contraception debates. I notice Dr Somerville in her paper was talking about moving from chance to choice. It is going to happen in this country. Whether we knock this law on the head in the Northern Territory or not, the move to allow patients the right to decide for themselves what happens at the end of their life is going to happen. When you have 75 per cent of the population supporting the right of dying patients to be able to choose voluntary euthanasia if their suffering becomes too great, then inevitably society will move in that direction. The key thing for you honourable senators to consider is that voluntary and involuntary euthanasia is going on in Australia today and, if you are concerned about euthanasia, the best thing you can do is bring it out into the open, bring it under scrutiny, bring in safeguards and have patients having a right to have a say in what happens to them at the end of their life—not leaving it up to doctors. We cannot hide our head in the sand and say that voluntary euthanasia is not going on and that by passing the Andrews bill and overturning the Northern Territory law we are going to stop euthanasia. All that we are going to do is do an outrageous overturning of a territory law which will prevent the territorians from having this right. I notice Mr Jeff Kennett saying that he is considering introducing similar legislation or that he wants to consider how the Northern Territory law operates for a number of years to consider legislation in Victoria. It will be introduced by legislation or referendum. Those are the main points I would like to make. CHAIR—Thank you, Dr Marr. Mr Meagher—I will be extremely brief because I largely adopt the comments made by my colleagues. I suppose that I am here as part of an organisation, the AIDS Council, which represents a group within the community for whom this is a particularly pressing concern. I must say that a very large majority of people living with HIV and AIDS strongly believe that this is an option that should be available to them in a range of options. We have already had that discussion but certainly one of the issues about this is that it must not be seen to be a debate of palliative care versus euthanasia or other forms of treatment versus euthanasia; it is simply a question of a continuum. There are many people with HIV who get to that point in their illness where palliation does not do what they need—whether it is simply in terms of pain they cannot bear or the indignity they have to endure. I have seen people who have got to the point where they know two states: one is excruciating pain and indignities in terms of the way they have to be assisted to carry out the ordinary functions and the other is unconsciousness. Those are the only two states that they live in at that time, and some of them at that time say, ‘I will not put up with this any more.’ Frankly, I am not prepared to tell them that they have to and I do not see how a humane society would be making that sort of requirement of people. The second point I want to emphasise is that we need to recognise that people do not make this choice except after a lot of serious thought and consideration. It has already been stated that there are a very small number of people who would make such a request. My experience of people with HIV and AIDS is that they want to stay alive. Many of them are very young— they die in their twenties and their thirties. They feel robbed of life, they are angry and they fight. You have all seen footage of them raiding conferences, storming parliaments and trying to get access to drugs and funding for treatments. They want to stay alive. But some individuals get to the point where they decide that they cannot fight anymore, it is not worth their while and the pain and indignity are too much. When they have made that choice, I

LEGAL AND CONSTITUTIONAL L&C 360 SENATE—Legislation Friday, 14 February 1997 believe that choice should be respected. Those are the two main points I wanted to make in addition to the points that have been made before. Senator McKIERNAN—I direct the first question to Mr Meagher but Dr Marr may like to comment on it. Under the current terms of the Northern Territory legislation, would a person who is diagnosed as having HIV be able to access the provisions of the bill? Mr Meagher—Not on an initial HIV diagnosis, certainly not. And I would have thought that they would have to be very advanced in their illness and be demonstrating signs of other opportunistic infections or of having developed some cancer or pneumonia or any of the myriad conditions that a person with HIV might actually end up contracting. But the actual HIV diagnosis is not something that would fall, I would say, within the terms of the Northern Territory legislation—nor should it. Dr Marr—That is how I would understand it. People have to be at a state where they are actually going to die without extraordinary medical activity to be able to use the Northern Territory law. These days, many people with AIDS live for many years. It is not necessarily a fatal diagnosis. Senator McKIERNAN—Is there any documentation in relation to that matter? When we took evidence in Darwin we were told that a person with HIV could access the provisions of the bill and die, whereas there may be a cure around the corner or the person might live for 20 years. So it puts somewhat of a spin on the issue. I do not want to labour it now because there are time constraints, but if there is any literature on it it would be useful, because it did come from somebody who was introduced to us as an expert in HIV-AIDS. The matter of voluntariness is addressed in your written submission, Ms Wright. Is there a distinction in definition between voluntary euthanasia and euthanasia? Ms Wright—I think there is. Euthanasia by definition simply means ‘a gentle and easy death’. A lot of people understand euthanasia to be the administration of a gentle and easy death, but that does not say that the patient is making the choice. Voluntary euthanasia talks about it being the request of the patient for a gentle and easy death. That is the distinction. Senator McKIERNAN—Further down that page you talk about ‘ample incontrovertible evidence that euthanasia...’.What is that ample, incontrovertible evidence? Ms Wright—There is evidence from different surveys of doctors in New South Wales and in other parts of Australia who all say that they do carry out euthanasia. In the Australian today I believe there is more information that has come up again. Senator McKIERNAN—My reason for asking that question is that Professor Baume’s earlier studies have been challenged and there is some argument about the one that has not yet been published. We did, incidentally, meet with Professor Baume last evening and we also took some in camera evidence from him. At this stage the Professor Baume evidence is not incontrovertible. Dr Marr—I think there is no debate—there may be debate but, certainly as I understand, in the medical world there is no debate that some doctors undertake voluntary euthanasia. Just about everybody would admit that in the AIDS community it is almost well documented. There are seven doctors in Victoria who have come out openly and stated that they undertake it. We might debate about the statistics of it and whether it is totally comparable with the Netherlands, but certainly there is no debate that there is voluntary and involuntary euthanasia going on in Australia today and in quite substantial amounts.

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Senator McKIERNAN—I deliberately did not mention the Netherlands. Now a final question from me, although there could be many more. I thought on the latter page of your written submission that you were somewhat dismissive of the concerns with the Aboriginal community of Australia about the rights of the terminally ill. If I am wrong, give me a bucketing, but what evidence do you have to make the comment, particularly the comment in the first paragraph? Ms Wright—The comment in the first paragraph—I do not have my paper in front of me, which is very silly—from recollection, is that— Dr Marr—If I could pick up there, I read the transcript of the Darwin hearing where you had some very good submissions from Reverend Gondarra and other people who actually, I must admit, surprised me and stated quite clearly that they did not feel that there were Aboriginal people who were being frightened of attending hospitals or health services in any more increased way than they had been previously as a result of this law. If there are, then I think we have to address that with educational campaigns and information on the fact that this is voluntary euthanasia and there is nothing clearer than that the Aboriginal health situation in Australia also needs extra funding and they also need extra educational campaigns to encourage them to use the health system generally. There is a longstanding fear in the Aboriginal community of going into some health facilities. Senator COONEY—What Senator McKiernan is saying to you I can answer. If in fact—and we have some evidence of this—the Aboriginal community are very worried about this, are you saying that that is just their bad luck? Dr Marr—No, I am not saying that at all. I think it has to be taken into account. Senator COONEY—We have evidence that education may not make a difference, that this is something that is culturally and spiritually theirs. Dr Marr—Absolutely. Senator COONEY—Apropos what Senator McKiernan asked, I would just like an answer as to your attitude to that. Dr Marr—I read the transcripts and I understood one of their key concerns was not that it was putting them off going to the health system but that it was against their traditional law, which was one of their key concerns. Ultimately you just have to respect the right of any minority in society, whether it is the Aboriginal community or the Catholic community, or other people who may have a religious opposition. I understand the Tiwi people have an opposition to divorce but should we say that all the rest of the people in the Northern Territory cannot get divorced because the Tiwi people do not believe in it? I think that is the way we should approach it. Senator BROWN—We might be infringing on their sense of wellbeing just by having the law there, which is the argument being used here, that the very existence of this law is taking away a sense of wellbeing as far as the Aboriginal people are concerned. That argument is being used, but we cannot get information as to the impact of other laws. This law is being singled out. Dr Marr—From what I understand there are other laws like the divorce laws and there are certain aspects of cremation, various other aspects, that I think society operates on. Senator HARRADINE—You did not have the opportunity of seeing what Mr Mackinolty is saying. It went somewhat further than what Senator Brown is saying—the very existence

LEGAL AND CONSTITUTIONAL L&C 362 SENATE—Legislation Friday, 14 February 1997 of the law is a threat to Aboriginal health and is likely to result in premature death. That is what he said. Dr Marr—That is according to their traditional belief. Senator COONEY—This is according to the result of the survey. Senator HARRADINE—Perhaps in due course you can have a look at his submission. CHAIR—If you want to get back to us on it, please do. Ms Wright—I would like to put on record that I certainly did not mean to be dismissive in my submission, if it came across that way from the written material. The reason for that statement in the first paragraph was that we had seen some submissions from Aboriginal communities which indicated that the basis of their opposition was that they thought that, if they went to hospital, they could be killed without their consent. Those were the submissions that we saw and it was on that basis that we made that comment. That concerned us because, of course, the voluntary euthanasia legislation in the Northern Territory is voluntary and it depends upon the request of the person who is dying. Many Aboriginal communities may have objections on other grounds as well. I have not seen them; I would like to see them. Senator McKIERNAN—I am grateful to my colleague, Senator Harradine, for bringing that up. I was going to mention Mr Mackinolty’s appearance before the committee last evening and the interchange that took place. Also the written submission and some of the earlier documentation that were contained in the report are available. If you care to avail yourself of those, like the Chairman said, we would appreciate receiving further comment. Thank you. Senator HEFFERNAN—You say the rights of people in the Northern Territory would be diminished or overlooked if this bill overturns the Northern Territory legislation, against the background of some of the architects and witnesses to the legislation in evidence in the Northern Territory who did not think there was any need to consult the Aboriginal community because of universal opposition to it and they would not be using it. How do you think the Aboriginal people, who are 25 per cent of the people of the Northern Territory, would feel with your view? Ms Wright—The Aboriginal people ought to have been consulted. I must say it surprises me that they were not consulted at all. I read some of the material from the Northern Territory hearings on this issue and I understand that they were not consulted. Dr Marr—Reading some of the transcripts, though, I think there was some debate about whether or not they were consulted. There were some consultations but they were debated— Senator HEFFERNAN—What I am trying to highlight is the broad brush of your statement. I will not press you on that. You have put much weight in supporting the logic for the retention of the Northern Territory legislation in the practice of euthanasia in some form or another at the present time in all states, universally almost. Do you agree with that? Ms Wright—Sorry? Senator HEFFERNAN—You are saying that it is already practised out there in some hidden, unsupervised form, are you not? Ms Wright—Yes, I am. Senator HEFFERNAN—Are you saying that because of the introduction of the legislation in the territory it is going to cease in the territory? Ms Wright—That euthanasia will cease?

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Senator HEFFERNAN—The unsupervised practice. I do not want to argue the rights and wrongs of it, but I think it would be a quaint logic that said, because you introduce this legislation, that that practice would cease. Ms Wright—I believe that unsupervised euthanasia would become a lot less common. Dr Marr—What you do is bring it out in the open, you add safeguards. The key concept in this whole euthanasia debate is you shift the power from the doctor to make the decision to the patient to be able to legally, voluntarily request it, and that is the whole nub of this debate. It is just giving the patient the legal right to request it and receive it. At the moment they are receiving it but they are not necessarily requesting it. Senator COONEY—I want to develop the point that Senator Heffernan is making. We had some evidence last night from Dr Keown from England. He said that in Holland, because of the complications that you have to go through, people are skipping some of the steps. It seems to me from the evidence that we have had so far, and, indeed, from the evidence that we have had here, that it is a very tight regime we have to go through to get to the end point. Do you see any possibility—I am not saying probability—of people who want euthanasia voluntarily and the doctor who is going to give it to them skipping some of the steps? Dr Marr—That may happen, but that is not what we are legalising. This is the key. Senator COONEY—Exactly. I want to follow that up. If we are not legalising that, then is not your point about this being much easier to operate going to disappear? You see, you are immediately saying, ‘We legalise this but we do not legalise that.’ Once you start making distinctions, you are going to have some real problems of evidence. Ms Wright—But at the moment there is no regulation at all. Senator COONEY—I know that, but when you bring in the law there is going to be a situation where you have to make legal distinctions—and fine ones. What do you say to that? Dr Marr—But if you do legalise it, what you are saying is that these are the legal situations. Certainly, some will still happen outside the law. Senator COONEY—But as soon as you bring in legal situations— Dr Marr—There are blurred edges. Senator COONEY—Yes. Dr Marr—There are always blurred edges in everything. Senator COONEY—That is exactly right. Dr Marr—I am not a lawyer, but the lawyers get paid to differentiate. If you have several doctors involved—I think the Northern Territory law has excellent safeguards—then you are clarifying some of those aspects from a medical point of view. But, of course, there is no perfect law. Mr Meagher—Senator, the difference is that at the moment where this occurs, because there is no legal environment other than absolute prescription, the tendency is that there is no consequence because it never gets mentioned, it all gets covered up and there is never a prosecution. You can never detect those instances where a doctor has perhaps behaved improperly. This will not stop doctors or other people behaving improperly, but you will have a set of guidelines against which you can measure that. There will be a number of instances where you can, as objectively as you can, say, ‘That stands outside it and this is within it,’ having accepted the principle that the patient making the choice should be able to.

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Senator COONEY—If you have people who are not abiding by the guidelines at the moment—I suppose murder is what you are charged with if you are charged—why do you say that they are going to abide by them later on, particularly if the guidelines are complicated, as you say they are? Dr Marr—Some will not, but the key thing is that you are giving the power to the patient. That is the key concept. You are not actually forcing doctors to stick with these rules, as they are not sticking with the current rules. All this legislation is doing is giving the power to the patient to legally request the medical practitioner to do it. It does not force the doctor to do it. They are just giving that power to the patient to legally request that and for that request to be met. All this other euthanasia could keep going on as it is now. I have never been involved or heard of euthanasia going on for non-compassionate reasons—it possibly does—but I believe most of these cases are probably for compassionate reasons. That is really all we are talking about—giving power to the patient. Senator HEFFERNAN—Do you think there will be a change in medical ethics with the universal adoption of this legislation? Several of its architects—you will have read the transcript—think that not only will there be but that there should be. Dr Marr—What exactly do you mean by change in medical ethics? Senator HEFFERNAN—The way we mere commoners look at what being a doctor of medicine is all about, I guess. It is the bottom line ethics. For example, Dr Nitschke switched his practice from involving intravenous drug users, et cetera, and saving lives to taking lives. Dr Marr—I do not think there is any significant change or that there will be in medical ethics. I know he thought there might be. But the ethic that always governs doctors is not to prolong life for as long as possible. That is not what governs doctors. It is to always listen to their patients and ease their patient’s suffering, to heal wherever possible and to ease suffering wherever possible. Senator HEFFERNAN—Do you think there will be a temptation for hospital administrators and certainly doctors to use this legislation as a budgetary tool? Dr Marr—No, the key thing is that at the end of the day we all fight to stay alive. Nobody is going to be rushing to use this law unless they have very good personal reason for wanting to use it. Even in the Netherlands, where it is decriminalised, it is a matter of only a couple of per cent of people who actually use the law. The people themselves are not going to want to use this law unless they are in absolutely dire straits—they have tried palliative care and it is not relieving their suffering. Then they have got to go through the safeguards. The key thing I go back to is that it is giving the power to the patient. It is their choice. Then they have to go through these safeguards. Mr Meagher—If there is a change in medical ethics, then I think it is part of a broader movement in medicine. It would be that greater patient focus and less of the paternalistic view of the doctor saying, ‘I know best and I will make the decisions for you and I do not care about anything you tell me.’ Senator HEFFERNAN—But it is the doctor who makes the ultimate judgment though. Mr Meagher—That is true, and that is fine. There is a professional judgment to be made, and the doctor is the appropriate person to do that.

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Senator HEFFERNAN—Would you agree that there would be some variation in degrees of judgment? There would be some doctors who would have a more defined and a more relaxed attitude to all of those cases. Mr Meagher—That is the case at the moment. Senator HEFFERNAN—That is the human factor. It is a bit like us interfering in the weather. Ms Wright, we have heard from several witnesses, some of them the architects of the legislation, that this legislation should eventually move to include a much wider catchment: the disabled, the mentally disabled, the deformed, et cetera. Do you agree with that? Ms Wright—On a philosophical level, no, I do not. A quadriplegic person, for instance, who felt that their life was hell because they could not move and because they were completely dependent on other people for their existence, but their mind is still very active—similar to the motor neurone situation—is not necessarily going to die because of their quadriplegia. But I can see that there might be situations where a person would wish to avail themselves of that. I do not know. I do not think that we are ready to look at that though. I do think it takes it a step further. Senator HEFFERNAN—In the history of things with the nature of the desensitisation of violence and all the things that we go through in life, do you think there will be a desensitisation of that sort of issue? Will it be less for a new generation of doctor who is raised in a regime where there is already, as the federal President of the AMA says, ‘the licence to kill’? Where that is in the system, do you think it would be an easier transition for a young doctor to include the wider catchment? Dr Marr—I certainly do not think that that is what is going to happen. Senator HEFFERNAN—I was hoping that Ms Wright might answer the question. She is a young lawyer; you are an old doctor. Senator HARRADINE—Are speaking on behalf of the Council for Civil Liberties? Ms Wright—Yes, the Council for Civil Liberties. Senator HARRADINE—And you are now going to speak on their behalf, are you? Ms Wright—Yes. Senator HARRADINE—I will be interested to hear your response. Ms Wright—The view of the Council for Civil Liberties is that, philosophically, there should be no objection to a person—for whatever reason, if they find their life unbearable for quality of life reasons—availing themselves of it. I do not know that that is a view that is widely held in the community and I do not know that the passage of this legislation would ever change that view in the community. I do not know that it would make it easier for that transition. Some people would find that a difficult leap to make. Senator HEFFERNAN—Fair enough. Would you say, though, that the New South Wales Council for Civil Liberties is an opinion maker in the community? Senator COONEY—You have to say yes to that if you are representing them. Ms Wright—That is a loaded question. Yes. Senator HEFFERNAN—So what you are saying is that an opinion maker in the community has the view that it should be. Dr Marr—There are other groups that do not. Ms Wright—There are other groups who do not.

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Senator HEFFERNAN—Are you trying to put words into somebody else’s mouth? Ms Wright—I believe that, if a person’s quality of life is such that they find living unbearable, we ought not to deny them the right to do that. Senator BROWN—What is your viewpoint on that very widespread practice in New South Wales and elsewhere? We know that there is euthanasia—assisted death by doctors—all over the country, and there is a mixture there of people being helped to die on request and helped to die without any conversation about it all. Mr Meagher—I think that it is, in many circumstances, good medical practice to administer palliative care which will inevitably lead to the end of life, and that might be done in a circumstance where someone is unconscious or not able to give their consent. I think that doctors make those very difficult decisions all the time, do it compassionately and do it well. They fit that within a framework where they say, quite rightly, ‘This is about alleviating suffering, and that is what I am seeking to do.’ That inevitably leads to death. Senator COONEY—I want to follow on from what Senator Brown said. Do you accept that euthanasia is prevalent throughout Australia at the moment? Do you know anybody who has been successfully prosecuted over the last few years? I notice that you are shaking your head. Do you agree that the jury system and the prosecutorial system are working well? Do you agree with that? Mr Meagher—If the point of your question is why have a law if everything is working well at the moment— Senator COONEY—No, why tighten up on the law. Mr Meagher—I can tell you from practical experience that— Senator COONEY—It seems to me what you are arguing for is a tightening up of the law. It is interesting that the Council for Civil Liberties would be doing that. So you want to make the law more oppressive? Mr Meagher—We want to make the law certain and we want people to be free— Senator COONEY—Do you want to make it more oppressive as well? Mr Meagher—No. The point is that at the moment a person who wishes to have voluntary euthanasia feels under enormous strain because they cannot discuss that. They particularly feel that, if they discuss it with loved ones or with medical practitioners who might be prepared to help them, they would be putting that person, not themselves, at risk of prosecution. The result of that is that people either do not avail themselves of the option when they might want to or attempt to do so— Senator COONEY—I do not want to interrupt, but can you give us some evidence of that? Not now, but later on can you give us some evidence that that is happening? Mr Meagher—Sadly, very little of it is documented, for the very reason that to document it is to— Senator COONEY—Can you give us what evidence there is for the fact that people are not discussing the issues of euthanasia at the moment because of the— Dr Marr—I can assure you— Mr Meagher—The case history— Senator COONEY—Not now. Can you send it in later, because I think we are short of time. Can you send the evidence you have got about that to the committee at a later stage?

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Mr Meagher—Certainly. If I can complete what I was saying to Senator Brown, that practice occurs and it occurs appropriately in a great many cases. The thing that confuses me is the approach of a great number of doctors who oppose voluntary euthanasia. The approach that perhaps they take is that they will say, ‘It is good medical practice to behave in this way when the doctor makes the decision.’ The moment that the patient tries to be involved in that process it is, ‘The patient somehow does not know his or her own mind. They must be mad. Only a doctor can know when it is appropriate to administer care in that way.’ That, frankly, is arrogant and wrong. Dr Marr—That is the whole nub of the debate; that is all it is about. The involuntary euthanasia, all the euthanasia that is going on now, will continue going on even if the Northern Territory law survives. All the Northern Territory allows is the patient to have a say in the matter. Mr Meagher—Legally. Senator BROWN—It is a little more than that. Because it does it legally, it allows them to legitimately bring in their loved ones as well as the medical people and make a relaxed decision, without the fear that they are putting onto their loved ones a request which is illegal. We heard evidence just a while ago about a son and mother relationship where the son’s feeling about his mother was very much affected by the potential that she may have asked to have her life shortened. There are legal overtones involved in that too because it is illegal. Mr Meagher—I remember seeing a program on Lateline where a woman was interviewed about the fact that her husband, who had a brain tumour of some sort, was inevitably dying. He did not want his young daughters to have their last experience of him as a vegetable, he requested his wife to assist him and she did that. Her experience then, as she said, was that she went home and all she could do was worry about the knock on the door from the police. She could not grieve, which is what she wanted to do. That strikes me as an absurd situation. When what she actually did was an act of love entirely at his request, there she was trapped in this awful situation. I find that a bizarre and inhumane circumstance. Senator BROWN—Dr Marr, last night we heard from the AMA that they represent 30,000 doctors and that the opinion was opposed to euthanasia and in favour of the Andrews legislation. Can you imagine a community of 30,000 doctors who supported that position in a way where there was not another point of view being expressed. Dr Marr—You get two doctors in a room, you probably have three opinions—as with economists. There is certainly diversity of opinion on this issue. I would probably accept that, at the moment, the majority of the medical profession would be against giving patients the right to choose voluntary euthanasia but there is certainly diversity. Senator BROWN—Just on that point, what is it about at least some doctors that enables them to think that they can make this decision to terminate another person’s life, but they do not want that person to make the request for the decision that the life be terminated? Dr Marr—That is exactly what I go back to. It is the key nub of this whole debate. The debate is about taking power away from the doctor and giving it to the patient, and the medical profession never likes that. It puts stress on doctors to have patients making demands on them, whatever they are. I can guarantee you—and I would say this absolutely as a doctor—that it would increase my stress if patients have this right. I would say the most stressful thing I have ever been asked to do is to help a patient die. The medical profession does not want that. They would rather choose it and do it in their own way. But I think it is the time in our society where patients are demanding these sorts of rights.

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Senator BROWN—Would you say that that stress can be somewhat alleviated by having it codified? Dr Marr—Absolutely, that is the most important thing that could happen. Then, regardless of what my views are—whether I am for or against euthanasia—there is no compulsion on me but I know the patient has the right and I would be legally protected if I listened to my patient, which is what we all should do as a first priority in medical care. The real medical ethic is listening to our patients always. Senator BROWN—Mr Meagher, I have just thought of a question. AIDS is a terminal illness; therefore, the Northern Territory legislation could be used on anybody who has AIDS. That statement has been made here in the last 24 hours and it is being used quite effectively. Do you have a comment on that? Mr Meagher—I would not have thought that it would be responsible medical practice for a doctor to advise someone until they were in the very late stage of AIDS with a number of complications that euthanasia was an option that should be available to them. In fact, the incidence of people with HIV and AIDS availing themselves of euthanasia has—anecdotally anyway—declined drastically with the availability of new treatment drugs. The point is that the people with conditions like AIDS, if they do consider it, should be being counselled about the appropriate drugs. The most important thing is for them to have access to all the treatment options available to them. I do not believe that people will take the option of euthanasia until they get to the point where their actual physical condition is such that they cannot bear it any more. That is certainly not our experience. Therefore, I do not think that is a real issue, even if it is a remote theoretical possibility. Senator HARRADINE—Mr Chairman, could I ask a question following up on that to the AIDS Council of New South Wales. It appears from the three of you that you do see that there will be an extension of the categories further than is currently the case in the Northern Territory legislation. Ms Wright—No. Senator HARRADINE—What about your draft voluntary euthanasia bill; ACON, your organisation, wants it to go further. You want legalised euthanasia for those who have loosely defined terminal illness and people who are not terminally ill; namely, the disabled. Can you give us a copy of your draft euthanasia laws? Mr Meagher—Yes. Senator HARRADINE—And that is what it does, does it? Mr Meagher—That was a proposal that we thought merited serious debate. But that is not to say that there is any inevitability that the moment you have a piece of legislation such as the Northern Territory legislation any other proposals will be adopted— Senator HARRADINE—No, I am just wanting to know what you are on about. It is very important for us to know what you are on about. That was given a kick along, was not it, by the Les Hoddy case? Mr Meagher—Yes, but that was a different matter. That was not about— Senator HARRADINE—It was about an assisted suicide. Are you aware of what Mr Hoddy has said about ACON? Mr Meagher—No, I am not, Senator.

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Senator HARRADINE—If I could read it. In Talkabout of April 1996, Mr Hoddy, who was released on a good behaviour bond, said: I feel I was used by ACON to push their barrow— that is a man with AIDS— I feel that I was being used as their guinea pig. I didn’t plan to be an activist on this issue. A lot of people have commented that they feel I was being used. Are you not using some people with AIDS to suggest an extension of voluntary euthanasia to persons who are terminally ill but who would not fit within the categories at this stage of the Northern Territory legislation? Secondly, can you tell me which disability organisations did you consult before putting in your draft legislation the provision that euthanasia could be applied to persons with disabilities? Mr Meagher—As to the second question, I will take that on notice, if I may, because I was not personally involved in that consultation process. Senator HARRADINE—I can tell you now: nobody, nil. Mr Meagher—As for the first question, if you are suggesting that we have some sort of campaign to extend the provisions of the legislation at the moment, we certainly do not. Senator HARRADINE—No, not provisions of the Northern Territory legislation, but you are wanting the New South Wales legislature to adopt legislation which provides for euthanasia for the terminally ill but not those who are in pain and also for persons with disabilities. Mr Meagher—The draft bill that we proposed had restrictions in terms of terminally ill on the basis of a prognosis of less than 12 months. Senator HARRADINE—Perhaps you should send— Mr Meagher—I am happy to give that to the committee. Senator HEFFERNAN—If I were a quadriplegic or in some way I arrived at a decision in my life that, because I was a quadriplegic or badly disabled in some way but was not terminally ill, I wanted to die under the euthanasia law; would you agree to do me in? Dr Marr—No, not at this stage. Senator HEFFERNAN—But you were saying there a minute ago that it is my right; are you denying me my right? Dr Marr—Everybody can commit suicide, but it is not legal for a medical practitioner to assist the person in that situation. CHAIR—Thank you, Dr Marr. Before we close, the committee has received answers to questions taken on notice by the Chief Minister of the Northern Territory and the Northern Territory Solicitor-General. Is it the wish of the committee that the document be incorporated in the transcript of evidence? There being no objection, it is so ordered. The document read as follows— Chief Minister Office of Hon. Shane L. Stone MLA Supplementary Information Senate Legal and Constitutional Legislation Committee Part 1: Legal Questions on Notice to the Solicitor-General Question: Would the Solicitor-General provide a written response to the briefing note of 10 December 1996 from the Criminal Law Division of the Attorney-General’s Department (A-G’s note).

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Response: The A-G’s note addresses two legal systems; the common law in the ACT and the Criminal Code in the Northern Territory. In the summary it would appear that the opinion of Mr T.E.F. Hughes QC is preferred to that of Northern Territory officers but on analysis the anonymous author comes to the same conclusions as the Solicitor-General with regard to the phrase "but not so as to permit the intentional killing of the patient" namely that it renders the law uncertain and unpredictable. This view is shared in the opinions of Messrs Wild QC, Bennett QC and Karczewski as well as in the submissions of Dr Otlowski of the University of Tasmania and in the submission of Natasha Cica the author of the Research Papers3&4towhich reference has been made in the NT Submission. It was apparent during the Committee hearing that a number of concepts were confused and the subsequent media attempts to unravel these confusions makes it even clearer that some questions and assumptions were not logically linked. The first misconception revealed by the questioning was the belief that not only was the Northern Territory Criminal Code different to other codes but that it was the only Code under which it would be possible to prosecute a doctor for killing a patient by the use of such quantities and frequencies of analgesics that death was a probable outcome but where the doctor denied an express intention to kill. That is incorrect. See the discussion by Dr Otlowski in her submission to the Committee and revisit Mr Karczewski’s discussion. It is possible that the detailed analysis concerning intention as used in the Andrews Bill has been taken as indicating some difficulty with the Code. Yet it is the prohibition in the Andrews Bill which will (if passed) create the problems identified in the opinions attached to the NT Submissions a point upon which the author of the A-G’s note agrees. The second matter where there appears to be confusion concerns the prohibition referred to at page 16 of Mr Karczewski’s opinion. The Code in s26(3) provides that "A person cannot authorise or permit another to kill him or, except in the case of medical treatment, to cause him grievous harm." That provision is, so far as death is concerned, absolute in terms. For this reason s16 of the Rights of the Terminally Ill Act commences: "Notwithstanding section 26(3) of the Criminal Code,..." The potential criminal responsibility of a person whose action directly or indirectly causes the death of another and where foresight of consequence rather than intent to bring death is the requisite mental element is unaffected by the passage of the ROTI Act. Where medical treatment if given with the intention of relieving pain or distress (and note the use of these terms in s17 of the South Australian Consent to Medical Treatment and Palliative Care Act 1995) in the terminal phase of a terminal illness and an incidental effect of the treatment is to hasten the death of the patient any prosecution relying upon foresight in terms of s31(1)of the Code would have to overcome the excuse provision in s31(2). Once excuse was raised the Crown would have to negative it beyond a reasonable doubt. Thus the idea that a doctor could only alleviate pain or distress where death is a foreseeable but not necessarily desired result of the treatment only if the patient requested assistance under the ROTI Act is a trivial argument. The real question arises when a decision is taken to turn off the means by which an incompetent (eg unconscious) person is kept alive. The euphemism is that one is only allowing nature to take its course belies the nature of the act and necessitated the passage of Natural Death Acts to provide a means by which such conduct could, on conditions, be clearly lawful. Application of the Common Law to the Code As first noted the A-G’s note deals with two different legal regimes. The author makes the same elemental mistake as Hughes QC does. First he quotes dicta from the High Court in Boughey (set out at para 37) out of context and with an underlying assumption that despite the specificity of the NT Code the common law principles govern the meaning of the Code. The first duty is to interpret the statute and in the case of the Code the words supply the answer without needing to go to the present meanings given, from time to time by foreign courts. Mr Karczewski demonstrates this fallacy in detail. To compound the error the assertion or assumption of Mr Hughes is carried through that the law of England applies in Australia on this topic. That has no authority to support it and given the often dramatic departures from the common law of England by Australian courts (eg the rejection of DPP v Smith in Parker (referred to in para 20), the rejection of the test of medical negligence by the High Court in Rogers v Whittaker and the decidedly Australian development of all aspects of negligence quite at variance with developments in England) it is quite unjustified and indeed unlikely.

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From this point the anonymous author and Mr Hughes seem to diverge and close reading of paragraphs 43 to the conclusion establishes the uncertainties which the Andrews Bill will (if enacted) create and is quite in line with the opinions given with the NT Government submission. It is emphasised that the ROTI Act has not brought about uncertainty but the Andrews Bill clearly will given the great disagreement already as to what is encompassed by the expression "but not so as to permit the intentional killing of the patient" and how that will impact upon the Natural Death Act and upon the capacity of a Territory Legislature to enact any provisions similar to the South Australian Act referred to above. This doubt is not lessened by the suggestion of the anonymous author of the A-G’s note that trial prosecutions upon agreed facts may mark out the limits of the law. This is not a worthy suggestion when one considers that it is the duty of legislatures to spell out with clarity the circumstances of criminal responsibility and the circumstances when conduct will be lawful and not leave it to the courts for later exposition. Question: Where does it say in the submissions that palliative care or double effect treatment is not necessarily illegal? Response: Pages 96 and 97 of the combined submissions. Question: If the Euthanasia Laws Bill 1996 is enacted, will it impede the progress of the Northern Territory to Statehood, given that the Constitution prohibits certain forms of discrimination between States and residents of States? Could the powers of the Northern Territory as a new State be limited by Commonwealth legislation prohibiting voluntary euthanasia, or would the Northern Territory be on an equal footing with the existing States in this respect? Response: There are a number of relevant provisions in the Commonwealth Constitution prohibiting various forms of discrimination (or preferences) within Australia. For present purposes, the only one requiring serious consideration is section 117, imposing a prohibition on any disability or discrimination between residents of different States. It is the view of the Northern Territory Government that section 117 of the Constitution presently has no application to the Northern Territory as a self-governing Commonwealth territory, and hence the section does not prohibit the imposition of any disability or discrimination in a Northern Territory law as between residents of the Northern Territory and residents of a State. The basis for this view is that section 117 is expressly directed at a "State", not at a territory of the Commonwealth. The term "The States" is defined in section 6 of the Constitution Act in a manner directed at existing or new States, but not territories of the Commonwealth. You cannot contemporaneously have a State that is also a Commonwealth territory. The fact that "the northern territory of South Australia" is expressly referred to in this definition does not, it is submitted, mean that the Northern Territory is a "State" for the purposes of the Constitution. Clearly it is a territory of the Commonwealth, and not a State, as has been said on various occasions by courts, both before and after the grant of Self-government in 1978. The reason for the reference to "the northern territory of South Australia" in the abovementioned definition is clearly because at the inception of federation in 1901, and up until the surrender of the Northern Territory by South Australia to, and its acceptance by, the Commonwealth on 1 January 1911, the Northern Territory was a part of the State of South Australia. It clearly ceased to be part of the State of South Australia upon its surrender and acceptance in 1911, when it came under the jurisdiction of the Commonwealth as a Commonwealth territory and subject to section 122 of the Constitution. Even on the broadest constitutional view on the place of territories under the Constitution, illustrated by the views of Gaudron J in Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 284-290, the Northern Territory would not now, it is submitted, be treated as if it were a "State" for the purposes of section 117 of the Constitution. Even Gaudron J accepts that her argument that section 122 of the Constitution should be interpreted in a way that secures to Territorians the same basic rights that the Constitution confers on other Australians is subject to her Honour’s qualification "unless the contrary is clearly indicated" (at page 288). She does not specifically mention section 117, but it was not necessary for her to do so in that case. That section 117 of the Constitution does not apply to residents of Commonwealth territories was made clear from an early date by Higgins J in Australasian Temperance and General Mutual Life Assurance Society Ltd v Howe (1922) 31 CLR 290 at 330. In fact, the only judicial comment that has been made to the contrary was the view, expressed as obiter dicta by a single Judge of the Queensland Supreme Court when sitting with two other Judges, in Ex parte Veltmeyer (1989) 1 Qd R 462 at 474-476. The view of this Judge was based on the proposition that the definition of "The States" in section 6 of the Constitution

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Act was ambulatory in its reference to the "northern territory of South Australia", and hence the Northern Territory still remained a part of the State of South Australia for the purposes of the Constitution and section 117 in particular. This startling conclusion is, it is submitted, clearly wrong. It is not a view that would be likely to find support in the High Court if it was ever to be advanced in that Court. This being so, the Rights of the Terminally Ill Act would not offend against section 117 of the Constitution, either in its present form or if it were to be amended to insert a Territory residential quali- fication for persons seeking to access that Act, at least whilst the Northern Territory remained a territory of the Commonwealth. It is submitted, however, that this would most likely change when the Northern Territory became a new State, as is presently proposed. The method presently favoured for a grant of Statehood is under section 121 of the Constitution, by Act of the Commonwealth Parliament (see Final Report of the Northern Territory Statehood Working Group, prepared for COAG in 1996 and comprising senior Commonwealth and Northern Territory officials). That section enables the Commonwealth Parliament to admit or establish new States in the federation, and to make or impose upon such admission or establishment such terms and conditions as it thinks fit. Whilst a broad view of this power might suggest that this might enable the Commonwealth Parliament to impose such terms and conditions as it thinks fit without limitation, including by way of overriding express Constitutional guarantees applicable to States generally, the better view that this power is more limited. If it was not, it would in theory enable the Commonwealth Parliament to create a second-class form of Statehood in constitutional terms. Thus in the Final Report of the Northern Territory Statehood Working Group to COAG, it is stated: "It seems unlikely that the general power to make or impose terms and conditions under section 121 would allow the Commonwealth Parliament to qualify those express and specific provisions in the Constitution which by their terms apply, prima facie, to both Original and new States". The Final Report then refers to the address by Toohey J at the Conference in Darwin "Australia’s Seventh State" in 1986 entitled "New States and the Constitution: An Overview". In that address, His Honour stated that it is unlikely that the High Court would permit the imposition of any term or condition which derogated from the rights in relation to States as enshrined in the provisions of the Constitution. This, he specified, included section 117. He added: "There is nothing in the Constitution which supports a confinement of these provisions to original States; on the contrary, the Constitution evinces a clear intention that a reference to "States" is a reference to both original and new States. In the first place, the definition of "States" in clause 6 of the Constitution Act includes "such colonies or territories as may be admitted into or established by the Commonwealth as States". Furthermore, the scheme of the Constitution is to make express reference to "Original States" where it is intended that a provision be restricted in that regard eg ss.7 and 24. An additional qualification upon the ambit of the Commonwealth’s power to impose terms and conditions under s.121 may arise from a principle of constitutional construction recently endorsed by certain members of the High Court (Koowarta v Bjelke-Petersen (1982) 153 CLR 168—Gibbs CJ at 191-192, Mason J at 225, Murphy J at 240; R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 at 312; Commonwealth v Tasmania (1983) 158 CLR 1—the Franklin Dam case); Re Lee; Ex parte Harper (1986) 60 ALJR 441 at 444, 449. The principle is based upon implications drawn from the federal nature of the Constitution and operates to prevent the Commonwealth from discriminating against the States or any of them or from taking any action which interferes with their functioning or threatens their existence. The operation of the principle has thus far been in the context of Commonwealth legislative powers and considerable uncertainty still surrounds its degree of relevance in constitutional interpretation (see Douglas 1985, 105; Zines 1984, 277). If accepted as a legitimate and relevant principle of construction, it may be possible to call it in aid in delineating the extent of the Commonwealth’s power under s.121." (at pages 9-10). It follows, in the Northern Territory’s view, that if the Rights of the Terminally Ill Act is still a law of the Northern Territory at the time of the grant to it of Statehood, such that that Act is continued in force as a law of the new State, then it would become subject to the operation of section 117 of the Constitution irrespective of the terms and conditions of that grant of Statehood. If that Act at that time contained a Territory residential qualification for a person to access it, that Act would, on the broad test of section

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117 laid down in Street v Queensland Bar Association (1989) 168 CLR 461, be likely to be struck down in this respect by the High Court if challenged, on the basis that it infringed against section 117. The Northern Territory Legislative Assembly would therefore need to consider this prospect before it decided to insert a Territory residential requirement in the Rights of the Terminally Ill Act. If, on the other hand, the Euthanasia Laws Bill 1996 was to become law, prohibiting the enactment by the legislature of self-governing Commonwealth territory of a law as to the form of intentional killing of another called euthanasia, and invalidating the Rights of the Terminally Ill Act, and if the Euthanasia Laws Bill as an Act was otherwise a constitutionally valid Act, there would be no need to consider the operation of section 117 of the Constitution. The question of impermissible discrimination under that section would simply not arise whilst the Northern Territory remained a Commonwealth territory. This necessarily follows from the above view that section 117 of the Constitution has no operation as to residents of a Commonwealth territory. Nor does the implied constitutional principle preventing the Commonwealth Parliament from discriminating between States apply to the Northern Territory as a Commonwealth territory. The only question would be whether the Euthanasia Laws Act was otherwise constitutionally valid in so far as it purports to take away self-governing territory legislative power, a matter briefly referred to in the Response for the next succeeding Question. The Euthanasia Laws Act would, on its present terms as a Bill, only apply to the existing Legislative Assembly of the Northern Territory established under the Northern Territory (Self-Government) Act 1978. On present proposals, if the Northern Territory was to become a new State, that Legislative Assembly would almost certainly disappear, to be replaced by a new State Parliament under a new State constitution. In that event, unless the Euthanasia Laws Act was to be amended (perhaps as part of the terms and conditions of the grant of Statehood), such that that Act continued to operate on and from the grant of Statehood in respect of the new State Parliament and its legislative powers, then the Act would cease to have any further effect on the Northern Territory upon the grant of Statehood. However let it be assumed for the moment that the Commonwealth Parliament was to be insistent that the Euthanasia Laws Act should continue to operate in the Northern Territory on and from the grant of Statehood, and was prepared to legislate accordingly. And let it further be assumed that the people of the Northern Territory were prepared to accept a grant of Statehood with this as one of its terms (an unlikely event, discussed below). Then it could still be expected that there would be a later legal challenge to the validity of that Act as amended from the grant of Statehood. It is the view of the Northern Territory Government that such a court challenge may well succeed, on one or more grounds. These include: (a) that under the implied constitutional principle, now well established by the High Court, and spoken of by Toohey J in the quotation above, the Commonwealth Parliament cannot constitutionally discriminate between States. This principle almost certainly applies to new States as well as existing States. Unless the Commonwealth Parliament was prepared to extend the Euthanasia Laws Act to all States (assuming it has the constitutional power to do so, which is very doubtful), then by applying it to one State alone there would be a clear form of discrimination (and see Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192). Arguably, the power to impose terms and conditions on a grant of Statehood in section 121 of the Constitution does not include a power to alter or exclude constitutional guarantees, express or implied (see Toohey J above); (b) the ground that the Euthanasia Laws Act could not be supported under any federal head of legislative power in respect of ‘States’, which includes both existing and new States. In this regard, the Northern Territory submission has already stated that the Commonwealth Parliament has no available constitutional head of power to legislate as to voluntary euthanasia in a State. The only conceivable head of federal legislative power is the external affairs power (section 51(29) of the Constitution), but the stronger view is that this does not provide support for such legislation in a State (paragraph 2.1.42). This is the view in effect already expressed by Bailey (paragraph 2.1.51). It is also the view recently expressed by Professor George Zdenkowski, Associate Professor of Law and Director of the Australian Human Rights Information Centre of the University of New South Wales (see article "The International Covenant on Civil and Political Rights and Euthanasia", (1996) Vol 3 No. 1 Newsletter of the University of New South Wales Law Journal, 1 at 4). That being so, the Euthanasia Laws Act would be liable to be struck down by the High Court if it purported to apply in any State, new or otherwise.

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Further it is at least arguable that the terms and conditions power in section 121 of the Constitution could not be used to enable the Commonwealth Parliament to legislate to grant Statehood to the Northern Territory in a manner that altered the federal distribution of legislative power in section 51 of the Constitution in respect of that new State. This is a matter on which there are no authoritative judicial views in Australia, and upon which constitutional experts have differed (see the views of Byers versus the views of Howard, set out in the booklet "Australia’s 7th State" (1988), Law Society of NT and NARU). This matter is also discussed in the Northern Territory Statehood Working Group Final Report to COAG at pages 24-28. If this view is correct that section 51 cannot be altered for a new State, then the Euthanasia Laws Act could not be validly extended to a new State. (c) on the grounds that if the new State constitution conferred a power for the new State Parliament to legislate as to the peace, order and good government of the new State, unqualified by an reference to voluntary euthanasia, then it would be contrary to section 106 of the Constitution for the Commonwealth Parliament to try to override the provisions of the new State constitution by excluding new State legislative power as to voluntary euthanasia. Thus there are significant constitutional reasons why the Euthanasia Laws Act could not be validly continued in force in respect of the new State Parliament upon a grant of Statehood to the Northern Territory. But there is an even stronger practical reason why this could not occur. The Northern Territory proposal for Statehood, noted in the Northern Territory Statehood Working Group Final Report, is that, prior to the grant of Statehood, the Northern Territory and Commonwealth Governments would enter into a Heads of Agreement which would incorporate all the arrangements for the grant, including the terms and conditions of the grant under section 121 of the Constitution. On this basis, the people in the Northern Territory could freely choose in advance whether or not to enter into Statehood on the basis of a known new State constitution and known terms and conditions. There is no way that they would agree to a term or condition that sought to forcefully impose the continuance of the Euthanasia Laws Act in the Northern Territory after the grant to it of Statehood, even if the Act might be constitutionally valid. Apart from the majority of Territorians who support voluntary euthanasia, many Territorians not committed to the principle of voluntary euthanasia could be expected to strongly oppose any such use of force by the Commonwealth. For a term or condition to be forced on an unwilling self-governing people would almost certainly result in the total rejection of Statehood. In practical terms, the grant of Statehood would just not proceed. It is therefore possible to confidently predict that unless the Euthanasia Laws Act was limited in operation to the period while the Northern Territory remained a Commonwealth territory, any proposed continuance of that Act on and from Statehood, against the wishes of Territorians, would create an insuperable impediment to the grant of Statehood. If the Commonwealth Parliament now proceeds to enact this Act in the manner currently proposed, members should be under no illusions that the Act will only be of a transitional nature in the Northern Territory, and that it will not continue upon a grant of Statehood. Question: Does the Northern Territory agree that the Commonwealth Parliament has the requisite legislative power to legislate to make acts authorised by the Rights of the Terminally Ill Act a criminal offence (for example, by making the form of international killing called euthanasia a criminal offence), instead of legislating by way of withdrawing an aspect of the plenary legislative grant of power of the Northern Territory Legislative Assembly (such as is currently proposed). Would the former type of legislation be more palatable to the Northern Territory than the latter. Response: There is no doubt that as a matter of strict constitutional law, unencumbered by any considerations of the fundamental constitutional conventions associated with a grant of responsible self- government to a Commonwealth territory (such as that flowing from the Northern Territory (Self- Government Act 1978), that the Commonwealth Parliament could legislate with respect to the Northern Territory as a Commonwealth territory under section 122 of the Constitution to make acts authorised by the Rights of the Terminally Ill Act a criminal offence. If it did so, that Commonwealth legislation would be directly inconsistent with, or repugnant to, the Rights of the Terminally Ill Act and the Commonwealth legislation would prevail. The High Court and other courts have made it clear that whilst the legislature of a self-governing territory has a plenary, independent grant of legislative power with respect to that terri- tory, its legislation is still subordinate to any relevant Commonwealth legislation.

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However it does not follow that any such Commonwealth legislation on the former model would be acceptable to the Northern Territory. The Northern Territory is aware of, and has under consideration, the views of one academic who has raised before the committee the question whether Commonwealth laws which seek to revoke in whole or part self-governing Territory legislative power and to overturn existing Territory laws in matters the responsibility for which is transferred to that Territory may be constitutionally invalid. It is clear that the Commonwealth Parliament constitutionally cannot legislate in this manner in respect of State legislative power and existing State laws in non-federal matters (see the Northern Territory’s submission to the Senate Committee at paragraph 2.1.45). Whether the Commonwealth Parliament is similarly restricted in legislating in respect of self-governing territories is a moot point. The Northern Territory would be strongly of the view that any Commonwealth legislation which simply sought, under the first mentioned option, to create a new criminal offence in the Northern Territory and other self-governing territories in a transferred matter would be a direct breach of a fundamental convention of the grant of responsible self-government. This applies in much of the same way as the current Commonwealth Bill would (if enacted) be a breach of that fundamental constitutional convention, because the end result would be the same, that is, the Rights of the Terminally Ill Act would be overridden. True, it would not be a direct withdrawal of existing self-governing Territorial legislative power, but the Northern Territory continues to strongly object to any diminution of its existing self- governing powers, whether that is achieved directly or indirectly. The arguments advanced in the Northern Territory’s submission to the Senate Committee would therefore be similar, whichever legislative option was chosen by the Commonwealth Parliament. The former option would be a direct intrusion into the legitimate affairs of the Northern Territory, as already expressed through its own democratically elected legislative institution in respect of a transferred matter. The fact is that the Commonwealth Parliament would still be seeking to override an existing valid law of the Northern Territory, although doing it by adopting a different method. The Commonwealth Parliament could not constitutionally pass a law on euthanasia in respect of the States under either option. The Commonwealth would be seeking to rely solely on section 122 of the Constitution under either option, operative with respect to territories only. The first mentioned option, like the second, would be discriminatory, anti-democratic and highly improper, and would still deprive half a million Australian citizens of the constitutional and democratic rights enjoyed by other Australians. Accordingly, the Northern Territory would strongly oppose any such Commonwealth legislation. If the Commonwealth Parliament did seek to legislate in the manner first suggested to create a new criminal offence in territories, contrary to the views of the Northern Territory, then the Northern Territory would closely scrutinise any such proposed legislation to ensure that it would not impact on a wider range of actions which were otherwise lawful. It may well be difficult to draft an offence which achieved the desired Commonwealth result but which did not have wider ramifications. The history of present legislative attempts in the Commonwealth Parliament gives little ground for confidence on this point. It all advances the view, supported by the Commonwealth’s own legal advisers, that if you make a grant of self governing powers in an open and democratic but decentralised constitutional system such as we have in Australia, it is wrong for the national Parliament to unilaterally seek thereafter to take that grant away or to otherwise adversely affect that grant, except in the most extreme circumstances such as war or civil commotion. Failure to observe this basic constitutional rule is bound to give rise to future difficulties and discontent and to bring the legislating body into disrepute. Tom Pauling QC Solicitor-General 30 January 1997

Supplementary Information Senate Legal and Constitutional Legislation Committee Part 2.1 Palliative Care Facilities in the Northern Territory Palliative Care Palliative Care is the care of people and their families living with a terminal illness, where cure is not possible. Through co-ordinated medical, nursing and allied services, Palliative Care strives for the best quality of life by:

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. affirming life and regarding death as a natural process . providing relief from distressing symptoms . integrating physical, psychological, spiritual, cultural and social aspects of care . providing a support system that allows the terminally ill to live as actively as possible until death . supporting the family and carers to cope before, during and after the death . neither hastening nor postponing death Existential issues are central to the quality of life of a terminally ill person, and emotional and spiritual care are involved as much as relief of physical problems. Palliative care is integral to the care of terminally ill patients, not a separate service. Palliative care is traditionally provided by a network of carers, such as the patients general practitioner, home care teams of THS community health centres, the involved medical specialist, hospital staff, social services staff, community-based organisations, religious advisers, family, friends, etc. Territory Palliative Care Unit Since October 1995, the NT Government has provided an expert team (The Territory Palliative Care Unit) to link and support, not replace, these usual carer networks. Prior to this, specialist palliative care nurses were providing support, education and consultancy, with an after hours and on call service since 1987. It provides assessment services, advice & training to carers; community education; specialised equipment, and bereavement support for families; NT-wide after-hours 1800 number counselling and emotional support for clients; 24 hour palliative care nursing support in Darwin and Alice Springs. Palliative care in the Northern Territory offers people the choice of care with many electing to be cared for in their home. Of Darwin clients, 50% chose to die at home as did 40% of Alice Springs clients. A further 17% NT wide elected to die in the specialist palliative care rooms in Darwin and Alice Springs. Expert Palliative Care Teams Expert Palliative Care teams are based in Darwin and Alice Springs. Since November 1996, they have been backed up by Dr Mary Brooksbank, palliative care consultant, Mary Potter Hospice Adelaide, who visits approximately quarterly for training, advice, support, home visits to patients. Ongoing medical officer telephone support is also provided by Mary Potter Hospice and the Royal Adelaide Hospital as needed. Darwin based team—caseload around 30-35 clients/month; 137 new clients 1996 NT-wide manager & administrative officer 1 doctor 5 nurses 1 pastoral care worker 1 social worker 1 Aboriginal worker other expertise purchased as required eg. Occupational Therapy—currently a dedicated part-time occupational therapist Alice Springs based team—caseload around 11 clients/month; 43 new clients 1996 part time doctor 1 nurse 1 Aboriginal worker other expertise purchased as required eg pastoral care, occupational therapist, social worker Other Centres & Remote Communities These two teams provide telephone advice to carers, and also travel to provide training, advice, home visits and assessments in Katherine, Gove, Tennant Creek, and remote communities. Respite Symptom Control, Clients Who Wish to Die in Hospital Darwin Private Hospital has a dedicated palliative care bed (decorated through public and business donation) that GPs can admit to directly, with facilities for families.

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Royal Darwin Hospital usually has 3-5 palliative care patients at any time. Many are in hospital for treatment when they are referred to Palliative Care whilst others have short stays for symptom control and respite care. Some clients spend time in Royal Darwin Hospital as they have no family to provide adequate care for them at home. There is sufficient hostel accommodation or day respite in the Darwin area. Alice Springs Hospital has one room for palliative care clients, decorated by public and business donation. Katherine Hospital is setting up a dedicated bed in a room decorated by public and business donation. Tennant Creek & Gove Hospitals make a room available on a needs basis. Respite is also provided in the home through paid carers and registered nurses, funded by the Territory Palliative Care Unit. Part 2.2: Palliative Care Specialist There is no formally recognised speciality in palliative care in Australia. It is a new and evolving discipline and the Royal Australasian College of Physicians is exploring formal recognition of Palliative Care as a defined speciality. Specialists generally apply the term palliative care ‘specialist’ to doctors who are Fellows of the Royal Colleges such as Physicians (FRACP), Surgeons (FRACS) who are therefore ‘specialists’ and who have also completed the College of Physians training course in palliative care. There are very few in Australia (anecdotally, around three). Most also consider doctors who are Fellows of these Colleges who also have considerable palliative care experience and proven accepted expertise as palliative care ‘specialists’. They are also very small in numbers. Many specialists do not apply the term palliative care ‘specialist’ to general medical practitioners (GPs) with extensive palliative care experience, even if they hold a Fellowship of the Royal Australasian College of General Practitioners (FRACGP), because they are general practitioners, rather ‘specialists’. Some doctors regard an FRACGP as a specialist qualification in the practise of primary care general family medicine. NT situation Given the short supply of doctors who are considered to be palliative care ‘specialists’ across Australia, and the opportunities for palliative care practice in southern states, it is unlikely that the NT will be able to attract palliative care ‘specialists’ on the basis of a definition that excludes Fellows of the Royal College of General Practitioners or general practitioners with extensive experience in palliative care. At present, the palliative care medical officer position based in Darwin is vacant. It is about to be advertised nationally. The part-time palliative care medical officer position based in Alice Springs is held by a doctor with twenty-five years of experience including extensive experience in palliative care in domiciliary and hospice settings (specifically hospice care 1992-1995). She is frequently referred to as a ‘palliative care specialist’, though she has no specialist qualification in terms of fellowship of a College. Senator McKIERNAN—Before the chairman makes his last official act of thanking the witnesses and closing the hearing: on behalf of the rest of the members of the committee I think we should put our congratulations on the record upon his appointment as a parliamentary secretary. We look forward to working with him particularly in his new role as parliamentary secretary. CHAIR—Can I just thank my colleagues from this committee for what has been a most enjoyable experience over 3½ years. I thank Senator Cooney, Senator McKiernan, Senator Abetz and Senator O’Chee in particular. I also thank the secretariat—Neil Bessell, Jacqui and the two Stevens—and everyone else on the committee who have helped us. I think it has been a very good committee. It has fulfilled its duties with much merit. Thank you once again to Hansard. Thank you in particular to the witnesses—Mr Meagher, Ms Wright and Dr Marr—for coming here this afternoon and assisting us with the inquiry. I declare this hearing closed. Committee adjourned at 5.54 p.m.

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