If enacted, the Euthanasia Laws Bill 1996 will remove the power of the Australian Capital Territory, Norfolk Island and the Northern Territory to enact laws that permit euthanasia. In particular, the Bill will override the Northern Territory's Rights of the Terminally Ill Act 1995, which under certain conditions permits physician-assisted suicide and active voluntary euthanasia.
We believe that the Preface and Chapters 1-9 (excluding the Conclusion) set out a fair and representative summary of the evidence submitted to the Committee.
We are in no doubt that the Commonwealth Parliament has the power under section 122 of the Constitution (which gives the Commonwealth unfettered power to legislate in respect of the Territories) to enact the Euthanasia Laws Bill 1996. In our view therefore, the question is whether it is appropriate for the Parliament to do so.
Once the threshold question of Constitutional capacity is answered in the affirmative then the Senate then needs to address its collective mind to the question of whether the power ought to be exercised in any circumstances, and if so, in what circumstances.
We acknowledge that the Commonwealth Parliament should only withdraw legislative powers it has conferred on the Territories in exceptional circumstances. We consider that in this instance it is right for the Parliament to do so. In coming to this conclusion we have had regard to the following major issues:
We consider the Rights of the Terminally Ill Act 1995 represents a fundamental shift in Australia's ethos and social fabric. It has additional national significance as all Australians, indeed all people, can use the Act. It is therefore not just a matter for the people of the Northern Territory.
The Northern Territory Legislative Assembly decided the matter by only a single vote. A repeal Bill was defeated in the Territory's Legislative Assembly on the Territory Rights argument. However, the personal views of a majority of the Members of the Legislative Assembly was that they opposed euthanasia in principle. It appears that without the possibility of the Euthanasia Laws Bill 1996 the Northern Territory Legislative Assembly may have repealed the Rights of the Terminally Ill Act 1995 of its own volition without Commonwealth intervention. This would clearly have been the preferable course.
There appears to have been an inappropriate merging of the concepts of States' Rights and territories' Rights in some submissions. The Constitutional framework of Australia divides legislative responsibility between the States and the Commonwealth. The Territories derive their legislative capacity from the Commonwealth, whereas the States do not.
States therefore, are different to Territories. Territorians are therefore subjected to a different legislative process than are the residents of the various States.
We are of the view that it may be desirable to legislate on a Commonwealth level. However, such a power is not apparent to us. the Committee did not seek submissions on this specific point.
In those circumstances the only power open to the Commonwealth is to legislate in respect of its Territories.
Given that the Territories in question have been provided limited forms of self-government, we are agreed that the Commonwealth should not intervene other than in exceptional circumstances. It is difficult to envisage a more exceptional circumstance than euthanasia being as it is an issue that deals with the life and death of Australian citizens, indeed potentially all the people in the world.
As an aside, we are of the view that the Northern Territory's progress to Statehood should not be impeded by this issue or any vote which may override the Territory on this occasion.
The Bill withdraws the power of the Territories to make laws that permit "intentional killing".
The Bill does not define the term "intentional killing", and the Committee received evidence that the term has no generally accepted legal meaning.
In addressing this issue the Committee received advice from the Attorney-General's Department and submissions and opinions from eminent lawyers. During the course of the inquiry, two views on the meaning of "intentional killing" emerged. The Committee's report shows that this area of the law is complex and technical.
The first view, suggested by the Attorney-General's Department, maintained that "intentional killing" has an uncertain and broad meaning. On this view the Bill may interfere with the generally accepted practices in palliative care, including the withholding or withdrawal of burdensome and futile medical treatment. It may also create uncertainty about the validity of existing and future laws relating to aspects of medical end-of-life decisions.
The second view, supported in particular by Mr Tom Hughes QC and Mr Joseph Santamaria QC, maintained that "intentional killing" has a clear and narrow meaning. On this view, the Bill would not interfere with generally accepted medical practices. Moreover, the Bill would not lead to the uncertainties noted above.
We find the second of these views persuasive.
In reaching this conclusion, we note:
We further note that the Courts do have recourse to the Explanatory Memorandum and the Parliamentary debates which would clearly indicate that the legislature intended the "narrow" meaning. Uncertainty in legislation is to be avoided if possible but is also unavoidable. Our Constitution which has been in existence for nearly a century is still the daily subject of disputation in the Courts as to its meaning and intent. The Euthanasia Laws Bill 1996 like the Rights of the Terminally Ill Act 1995, both have potential uncertainties which will only be fully clarified through judicial interpretation.
In this context the following advice of Mr Geoffrey Dabb, First Assistant Secretary, Criminal Law Division of the Attorney-General's department, on the quality of the drafting of the Bill is instructive:
The Bill has to me has 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 over complicated in trying to deal with every situation.Footnote1
Another argument of uncertainty is whether it is feasible to codify in statute form the circumstances in which a life can be legally extinguished. The Premier of new South Wales, Hon Bob Carr MLA rhetorically asked that question in the New South Wales parliamentary debate and responded as follows:
"Is it possible to reduce to black and white on the pages of a statute book the circumstances, and the safeguards, in which we would allow the taking of a life? I have spoken to many experts, people engaged on both sides of this argument, and what has shaped my bottom line conclusion is the view that it is not possible to codify in law the safeguards, the circumstances, in which the extinguishing of a human life would be possible."Footnote2
Indeed many witnesses highlighted difficulties with the Rights of the Terminally Ill Act 1995.
On one interpretation a patient with diabetes could conceivably access the provisions of the Rights of the Terminally Ill Act 1995 and have their life terminated although their prognosis was for a full life. How do you protect against a misdiagnosis or inappropriate palliative care? What real checks are there? The safeguard of one psychiatric assessment is somewhat lessened when considered in the light of endless hours of argument and contradictory expert evidence given in the Courts each day concerning a deceased's testamentary capacity ie. was the maker of a will mentally competent at the time of signing it. In such cases, psychiatrists are found on each side of the case putting views which are diametrically opposed. Psychiatry is an inexact science. The possibility for abuse is ever present.
These uncertainties must then be viewed in the context that the only independent monitoring of the process takes place when the coroner receives the relevant paperwork subsequent to the termination of the patient's life.
The Committee heard conflicting evidence on whether traditional Aboriginal culture recognises euthanasia and also on the attitude of Aboriginal communities to the Northern Territory's Rights of the Terminally Ill Act 1995 . In this context, allegations were made that certain church groups were conducting a misinformation campaign amongst Aborigines. No actual evidence was brought forward and was specifically rejected.
Indeed evidence showed that Aboriginal communities without any church involvement were just as opposed to euthanasia as those with a Christian ethic. It is therefore apparent that the overwhelming Aboriginal opposition to the Rights of the Terminally Ill Act 1995 is not necessarily influenced by the involvement of the Christian Church in some Aboriginal communities. Even if they were so influenced it is not ground to reject those views especially when during the course of the inquiry, a major concern emerged about the Northern Territory legislation's impact on the willingness of Aborigines to access medical services, given their attitudes to euthanasia and western medicine.
The Northern Territory Government denied there has been any decrease in the use of medical facilities by Aborigines and provided statistics to support this view.
The Committee also heard convincing evidence from Mr Chips Mackinolty, who was engaged by the Northern Territory Government to provide an unbiased and factual education campaign on euthanasia to Aboriginal communities, following the enactment of the legislation. Mr Mackinolty told the Committee that, even though he personally supported his own right to euthanasia as a non-Aboriginal, his experience in conducting the education campaign had brought him to the view that the Northern Territory's Rights of the Terminally Ill Act 1995 should be repealed because of its potential to deter Aborigines from seeking prompt medical attention. Mr Mackinolty expressed the view that the very existence of the Northern Territory legislation is a significant threat to Aboriginal health.
We found the evidence of Mr Mackinolty compelling and note that it was corroborated by other evidence from Aboriginal community groups.
The only positive evidence of misinformation which was provided to the Committee was that certain Aboriginal communities have been told that euthanasia could only occur in Darwin so as to put them at ease in using local health clinics. Evidence was provided from Papunya Community via Alice Springs that these statements had been provided by local doctors:
"The doctor here told us it was OK and that the clinic would never have the needle like that available. We were told that Alice Springs would not have it either. Only in Darwin. But a lot of people are still a bit scared."
It was also stated by Valda Shannon of Julalikari Council who acted as the interpreter for Chips MacKinolty during the Green Ant Consultations in Tennant Creek:
"We had to tell people that at Tennant Creek hospital and at Alice Springs hospital nothing like this could ever happen. Because we did not want people to decide that they were not safe at these hospitals. We had to tell them that it was only available in Darwin."
It is appreciated that this misinformation about the operation of the legislation was provided so as to encourage people to feel safe about using local health services. However it is important to note that this may pose dangers for the future if there is a death in accordance with the Rights of the Terminally Ill Act 1995 at Alice Springs (see Committee report, paragraphs 5.28 - 5.30).
The Committee recieved close to 200 submissions from Aboriginal communities, Aboriginal organisations and individuals who identified themselves as Aboriginal. Without exception, these submissions opposed the existence of the Rights of the Terminally Ill Act 1995 . Fear of seeking medical treatment because of legalised voluntary euthanasia was a consistent theme of these submissions.
We are of the view that the potential for the Northern Territory's Rights of the Terminally Ill Act 1995 to deter Aborigines from accessing medical services is a further persuasive reason for the Commonwealth Parliament to exercise its powers in relation to the Territories by enacting the Euthanasia Laws Bill 1996 .
The Committee heard well argued, considered and sincere views for and against euthanasia.
Proponents of voluntary euthanasia drew the Committee's attention to arguments based on individual rights, autonomy and choice. Those in favour of voluntary euthanasia maintain that the general public overwhelmingly support its legislation and that such a move will merely bring under stringent control and regulation what in reality is already happening in practice.
Opponents of voluntary euthanasia drew the Committee's attention to arguments based on the sanctity of life, religious beliefs, the "slippery slope" to involuntary euthanasia and the erosion of medical ethics.
Both sides of this debate recognise the importance of palliative care.
Opponents of voluntary euthanasia argue that palliative care neither hastens nor postpones death and therefore, voluntary euthanasia does not form part of any palliative care. No is it part of aged care, mental health or intellectual disability programs.
In assessing these arguments the Committee was referred to developments in The Netherlands, where euthanasia, although not legal, is openly practised.
Both sides of the debate used developments in the law as well as studies conducted in 1991 and 1995 to support their views on whether the Dutch experience provides evidence of the "slippery slope".
There seems to be no consensus on how to interpret the Dutch data in an Australian context.
The relevance of the Dutch experience to Australia provided further grounds for disagreement, particularly following the publication of an Australian survey purporting to replicate the Dutch studies by Professors Kuhse, Baume and Singer.
We are of the view that an assessment of the arguments relating to general moral, philosophical, ethical and social issues also supports the exercise of the Commonwealth Parliament's power in relation to the Territories by enacting the Euthanasia Laws Bill 1996 .
We share the views expressed by members of the House of Lords Select Committee, the Canadian Special Select Committee and the New York State Task Force that laws relating to euthanasia are unwise and dangerous public policy. Such laws pose profound risks to many individuals who are ill and vulnerable.
In particular we share the view of the House of Lords Select Committee on Medical Ethics which held that:
"Th[e] prohibition [of intentional killing] is the cornerstone of law and social relationships. It protects each one of us impartially, embodying the belief that we are all equal. We do not wish that prtection to be diminished..."
The Hon H.E. Cosgrove AM QC in his letter of December 2, 1996 relied on two long-established principles:
1. That private citizens are not permitted to destroy life. The State may do so, but only in carefully circumscribed circumstances.
2. That no person can consent to an assault on his person, unless the assault is done in order to save life or health.Footnote3
There is a powerful sentiment in that summary of the law. As soona s we allow another person to be involved in the death of a fellow human being we must have come to the conclusion that the life is not worth living. The concept of a life not worth living and justifying the involvement of a third party in taking that life challenges to the very core our notions of civilisation. As soon as such a concept takes hold within the psyche of our nation we will demean the value we place on human life. Indeed many witnesses supporting euthanasia told the Committee they personally would relax the "stringent requirements" of the Rights of the Terminally Ill Act 1995 , which includes a 48 hour cooling off period.
As the labor Premier of New South Wales, Hon Bob Carr MLA told the New South Wales Parliament on October 16, 1996:
"I wonder whether we as a Legislature are confident in making a value judgement about what the cooling off period should be for the taking of a human life. The legislative cooling off period for a person who has bought a set of encyclodedias from a door-to-door salesperson is 10 days. Are we happy to have a 48-hour cooling off period for the taking of a human life?"Footnote4
The individual rights and autonomy argument is at first glance persuasive. However even if one supports the principle of euthanasia the question needs to be asked: "Can we sufficiently codify the circumstances in which we would allow euthanasia?" We are of the view that it is impossible. The New South Wales Premier's previously quoted comment is apposite in this regard. (See Footnote 2)
Individuals have the unfettered right to forego medical treatment. Suicide is not a crime, although we as a community spend millions of dollars each year trying to counsel and dissuade the suicidal.
The Rights of the Terminally Ill Act 1995 does not so much change the law for the patient as it changes the law for the third party (the doctor). What is currently illegal for the doctor will become legal. This has the potential to fundamentally alter the doctor/patient relationship.
Ultimately, a new right is given to doctors to terminate the lives of those who are suicidal and terminally ill. To describe this as providing a "right to die" defies logic.
Further, most supporters of euthanasia do not see it as an absolute right. As such it is by definition only available to those individuals who have been deemed to be in such circumstances as to be considered better off dead. Whilst it is understandable that a patient may come to such a conclusion, a third party would also need to arrive at such a conclusion
and then be prepared to act upon that view, by administering or providing a substance with the intention of ending the patient's life.
The potential for "guilt feelings" for being a burden or too costly by those of our community who are in difficult circumstances, vis a vis their health, may become such that they perceive a subtle duty on them to exercise the euthanasia option. The choice may well become a perceived duty. This is especially so when considered in the context of comments by those such as former Governor General, Hon Bill Hayden's comments that there is a point when the succeeding generations deserve to be disencumbered -to coin a clumsy word - of some unproductive burdens".Footnote5
This emotive description in support of euthanasia is unfortunate. The dignity or otherwise of a death is not to be determined by the physical circumstances or degree of pain in which the patient finds themselves.
With very few exceptions, pro-euthanasia submissions which dealt with the term "dignity" described particular physical circumstances and described living or dying in such circumstances as necessarily involving a loss of dignity. These circumstances regularly included loss of continence and mobility.
This approach, in referring to various physical circumstances, consistently dealt with circumstances where the person had taken on certain disabilities and described such circumstances as involving a loss of dignity. A disturbing equation is thus drawn between having "dignity" and being "without disability". The term has been used as though there is a
loss of dignity if somebody who was previously without disability takes on a disability in the course of a terminal illness.
Whilst it was those concerned about the impact on people with disabilities who have highlighted this issue it needs to be noted that the impact is even broader. Any notion that those who choose the path of natural death or those who choose to live with disabilities are in some way taking the less dignified path should be abhorrent to any caring society.
Unfortunately, the attitude from certain quarters that dying with dignity demands that life ends before such circumstances begin carries a message which only serves to devalue those who live in such circumstances.
In the course of the inquiry, and in the course of the debate in the community, much has been made of anecdotal evidence of individuals dying in harsh circumstances. Such extraordinary circumstances warrant the most compassionate response for the person themselves and for the carers and family involved.
Regardless of whether or not euthanasia might be the appropriate response in such circumstances, the task before the Committee, and in turn before the Senate, is to determine how a change in the law so as to allow such a response, stands up as a matter of public policy. The parallel, often made to the inquiry in oral and written submissions, between legalised euthanasia and legalised capital punishment is particularly useful at this point. Supporters of capital punishment frequently refer to horrific crimes as the justification for a change in the law, in the same way that supporters of legalised euthanasia refer to horrific deaths. This approach could only carry any validity if the impact of the change in the law was entirely confined to people in such circumstances. Such an approach lacks credibility.
Whilst many a moving and passionate submission was presented detailing individual circumstances, we are of the view that:
No question as serious as euthanasia should be settled on individual cases. A general principal must be found which transcends particular cases. As with capital punishment, one principle which could be universally applied is that human life should be valued to the extent which puts it beyond the state.Footnote6
There was the inevitable provision of anecdotal evidence of those who had been misdiagnosed or made "miraculous recoveries" from a death bed situation, at which time they would have had access to euthanasia.
Also noteworthy was the overwhelming objection by doctors to euthanasia. As those at the "coal face" they would be only too aware of the misdiagnosis and other errors that can be made.
This may also explain why lawyers are disproportionately, as to the rest of the community, so strongly opposed to capital punishment.
This argument is logically weak. Whether euthanasia is a "common practice" is widely disputed. Even if it were it would not of itself provide a justification. Indeed, if it is widely practiced, although it is against the law, it highlights the real concerns of many opponents of euthanasia who argue that the illegal excesses of a minority of doctors will simply become commensurately worse, with pro-euthanasia legislation.
The view that Australia is a pluralist society with diverging values within its citizenry is no justification to uproot a foundation stone of our notions of civilisation and the value we place on human life. There are occasions where the legislature is called upon to provide leadership. Both sides of the debate acknowledge that whilst opinion polls are important as a guide to the legislature, polls of themselves cannot be the ultimate basis for or against legislation.
We join with the long established view that there are strong intuitive moral and clinical distinctions between stopping futile treatment and giving a lethal injection. To try to equate the two is disingenuous. As is the blurring of the concepts of not prolonging the life of, and killing, a patient. Dying is a natural process and all people have a right to refuse treatment. But that is not euthanasia. Nor is the administration of substances intended to alleviate pain and discomfort which may have the "double effect" of hastening death. The "intention" is the key factor.
Physician assisted suicide or euthanasia has one purpose - to kill the patient.
Those who blur these concepts seek to establish that legalised euthanasia is only a small step for a legislature to take. It needs to be recognised that the step taken by the Northern Territory is this: to move from a situation, where no citizen may intentionally take the life of another citizen, to a regime, where certain citizens are given a full legal sanction and Parliamentary endorsement, to intentionally take the lives of certain other citizens.
This by any objective analysis represents a major shift.
When the Euthanasia Laws Bill 1996 was referred to this Committee, the Selection of Bills Committee nominated four specific areas of inquiry.
These were:
We believe it is appropriate that our findings on these important issues be set out for the benefit of honourable Senators who charged the Committee to inquire into these areas.
Given the above evidence and conclusions, we advise that:
Finally, we thank the 12,559 organisations and individual Australians who made submissions to the Committee and the tireless efforts of the Committee Secretariat.
Evidence, Attorney-Generals Department, p. 202
Hon Bob Carr, Premier NSW, NSW Assembly Hansard, 16.10.1996 p.7.
Submission 3256, p 1.
Hon Bob Carr, Premier of NSW, NSW Assembly Hansard, 16.10.1996, p 7.
Hon Bill Hayden, Arthur Mills Oration 1995. p 8.
Evidence, Australian and New Zealand Society for Palliative Medicine, p135