Greens motion on the Territory's right to legislate on euthanasia

Shane Rattenbury's speech on the ACT's right to legislate on euthanasia 

Madam Speaker, the people of the ACT, just like people in broader Australia, believe strongly that they should have the right to make choices over their own life and death.

 They believe that at the end of their life, at a time that is deeply personal and meaningful and often involves pain and suffering, they should have the right to die with dignity, how and when they choose.  To many people there are few choices more important.

 It’s well known that the Greens support the right of people to make decisions at the end of their life and we support the creation of a compassionate, safe and workable scheme for voluntary euthanasia.  In fact the majority of Australians agree and also support such a scheme.  Who wants to suffer at the end of their life, deprived of your dignity and most personal of choices?

 But this motion is not about establishing a euthanasia scheme in the ACT.

 If the ACT were to go down the path of allowing euthanasia it would of course involve extensive community consultation, input of experts and no doubt vigorous debate in the Assembly. It would involve all of the parliamentary and community engagement mechanisms that are appropriate for such an important change, and governed overall of course by the right of ACT citizens to vote its government in or out.

 But, critically, the ACT does not have the right to do this. This Assembly does not have the right to legalise euthanasia, even if it did follow all of the regular democratic and consultative processes.  Unlike the States of Australia, this democratically elected ACT parliament cannot make decisions on euthanasia for the benefit of the citizens who have elected us.

 So this motion is about re-establishing the right of the ACT Assembly to legislate on euthanasia if that is what it wanted to do as a democratically elected and competent parliament. It is about recognising that the people in the ACT should have the same rights as anyone else.  It asks this Assembly to agree that ACT residents shouldn’t be treated as second class citizens.

The limitation on the ACT’s right to legislate on euthanasia is due to a restriction, imposed by the Commonwealth in 1997 when the Australian Parliament amended the Territory’s self government act to specify that it couldn’t make laws on euthanasia.  The Commonwealth took back part of the legislative powers it had already conferred on the ACT when it granted self-government. Our grant of power allows us to make laws for the peace, order and good government of ACT residents, to look after health, education, prisons, courts and criminal laws, to hold our own elections, to determine the size of our Assembly.

 But then there is one clause inserted arbitrarily that says “you can’t make laws on Euthanasia”.  

 The rationale for this was purely political. The Federal Government at the time wished to find a way to prevent the operation of the Northern Territory’s newly passed Euthanasia Act. So, in an ad hoc reaction, it amended the Self Government Act to say that Territories couldn’t legislate on euthanasia.  This has remained in place ever since, and the Federal Government has not moved to remove it.

 To put it bluntly, I think this restriction is an outrage. It is anti-democratic, and it discriminates against ACT citizens.

 Unlike all the other Australian States, the ACT cannot legislate on euthanasia for the benefit of the people living in its jurisdiction, and for whom it is democratically elected to govern. People in the ACT are the same as people in any other state and suffer the same as people in any other state. Why can’t this Assembly govern for them on issues that are important? This would be no more or less than the rights currently enjoyed by people living in the Australian States.

 The restriction is also anachronistic, as the ACT has clearly proven it has a competent and effective parliament that should not be subject to arbitrary interference from the Commonwealth.  Just as Australia was initially established as a colony of Britain, the ACT was originally set up with some restrictions on its power.  Since then, the ACT has operated as an autonomous and effective Parliament, managing the same portfolios as states, such as health, education and corrections.

 And Federal Parliament has since recognised the ACT’s competence and autonomy by removing other restrictions on the ACT’s powers. The commonwealth executive can no longer unilaterally overturn legislation enacted by the legislative assemblies of the Territories.

The ACT Legislative Assembly now also has the power to determine the size of its Assembly without requiring the passage of Commonwealth laws.  I was on the Committee that looked into that issue.

 Mr Hanson was on there with me, and I’ll quote a comment he made. He said:

“Interestingly, the vast bulk if not all of the submissions and the people who appeared reflected the view that we are a well-operating Assembly. The majority saw the need for us to be given fewer restrictions and more ability to determine things like our own size… Based on a discussion of the evidence, I can see no reason why we should not have that power, which is similar to all other parliaments in Australia.”

 The ACT is not a colony of the Commonwealth and it should not be subject to arbitrary government interference, just as our Federal Government is no longer treated as a colony of Britain and can have confidence that its laws and decisions will not face arbitrary interference from its colonial power.

 And yet today, sitting there in the Self Government Act, random and out of place, is this politically motivated restriction that says that the ACT cannot make euthanasia laws. It’s time for that to be removed. A step in that process is this Assembly formally raising it with our Federal counterparts and telling them that we and the people of the ACT deserve to have that right reinstated.

 I don’t question the ability of the Commonwealth Government to make a law like this. They can do so using the Territories power in the Constitution. What I am saying is that it is inappropriate, discriminatory and undemocratic to interfere and retract this law making power after self government was granted.

 One could compare our situation to the relationship between the Federal Parliament and Britain. Section 59 of the Australian Constitution, for example, still allows the Queen to “disallow any law within one year from the Governor-General’s assent”. It is convention that prevents the use of this power and this provides certainty and stability to the Government, and respects the democratic right of the Australian people.  Imagine if the Queen were to use this power and suddenly disallow a law that our democratic and autonomous Australian Parliament made.

 Having granted independence to Australia, the very strong convention is of course that Britain will not interfere with the Australian Parliament and its law making. And, in the same vain, the Commonwealth granted self-government to the Territories, it should not now derogate from that grant by revoking or interfering with the legislative power of the Territory. This is a view that is fundamental to our Westminster system of government.

 Let me emphasise one further fact to the Assembly: euthanasia and the ability of our local parliament to legislate on this issue is a very important issue to the people of Canberra. I’m sure that all members actually know this fact.  No matter what some members in here may say, people in Canberra care about more things than having potholes fixed or grass mowed.  To pretend that they do not care about a wider range of issues is doing them a real disservice. We are a legislative assembly with responsibility for a range of issues – local ones as well as what could refer to as state issues. This is not just a local government.

 I can pre-empt the argument of the Canberra Liberals who have already stated their view - via Mr Hanson - in the media. Mr Hanson said that we are allowing the euthanasia debate to get in the way of focussing on the current issues affecting Canberrans' daily lives. 

 Well actually the euthanasia debate - questions about life and death and people’s health and dignity -  is an issue that impacts on Canberrans’ daily lives in a very profound and meaningful way.  You only need to listen to Canberrans talk about the issue. It is frequently raised at health and aged forums. I’m sure members have seen the surveys showing 75 - 80% of Australians are in favour of allowing euthanasia.

 Mr Hanson also said the opposition does not believe such a complex social issue should be driven by the Legislative Assembly, and therefore does not support any change to current legislation that restricts the territories from implementing euthanasia.

 He then argued passionately that our Assembly, the Assembly that he is elected to, should be disempowered and frankly is not very good. He said “we’re a very small jurisdiction, we are not a state, we have the smallest parliament in Australia, we do not have an upper house, there is no governor or administrator and far fewer checks and balances."  I didn’t realise that we had such self-loathing members in this Assembly.

  I really challenge Mr Hanson to revise that view. It essentially says to the people of the ACT - the people who elected us to this Assembly - that we do not want to be able to make laws on an issue that is of deep importance to them. We’re not good enough. The Assembly isn’t worthy or isn’t capable. In my view this neglects a duty that we have to represent our constituents.  I wonder what other issues the Liberal Party think this Assembly is incompetent to deal with.

 I think it’s obvious that this an excuse to not talk about euthanasia. We know that the Liberal party does not support euthanasia. The local party is denied a conscience vote on the issue. So a way to ensure the issue is never debated is to argue that the ACT Parliament shouldn’t have the power to legislate – regardless of the fact that this is selling out ACT residents, selling out our Assembly, and selling out democratic and Westminster principles.

 A corollary to the argument that we’re an incompetent assembly is the suggestion that if people in the ACT want there to be euthanasia laws, they should rely on the Federal Parliament to nationally legislate on the issue. Not only is this inappropriate – for all the reasons I have already stated – but there is also uncertainty as to whether the Commonwealth even has the power to do this. Section 51 of the Commonwealth Constitution does not reserve any power to the Commonwealth to make laws in relation to health.

 So where does this leave ACT residents? It means that potentially there is no opportunity for a euthanasia scheme to be legislated for the ACT, either by the ACT Government or the Federal Government. Other States could legislate this, but not the ACT. An ACT resident would have nothing, no recourse, and no-one they can elect to represent them on this most important of issues. There is a clear discrimination against ACT resident. If this Assembly has the interest and the compassion then we will try to do something about it. 

 To conclude, I ask members of the Assembly to agree with this motion and request, as a whole and united Assembly, that the Federal Government repeal the limitation on our law making powers.

 It doesn’t mean you are supporting euthanasia.  It only means you agree we should be able to follow a democratic process on the issue of euthanasia, that we are a competent Parliament and that residents of the ACT should not be treated as second class citizens.