Thursday, 15 February 2018
Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015; Second Reading
I rise to speak on the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 and, of course, this is one of those very, very difficult issues of conscience. Can I say at the outset, before I make some personal remarks, I do want to set out some parameters and indicate that the government does not plan to repeal the Euthanasia Laws Act 1997 and has no intention of reconsidering the self-governing acts of the Northern Territory or the Australian Capital Territory at this time.
The Australian government recognises that members of the community have strong views about dying with dignity, compassion and minimal pain. The underlying principle of our investment in health services is quality of life, and this includes, of course, end-of-life care. The Australian government believes that people should have access to quality palliative care and relief from pain and suffering and that, where possible, people should be able to choose the extent of active medical treatment they receive.
The Australian government provides funding for a number of initiatives to encourage delivery of quality palliative care and to improve access to services for people who are dying, including advanced care planning and the documentation of end-of-life care wishes. The Australian government will monitor and consider the impacts of the Victorian voluntary assisted dying legislation on various programs, noting that the Victorian legislation will come into effect from mid-2019.
Euthanasia was unlawful in Australia in all states and territories until the passage of the Voluntary Assisted Dying Bill 2017 in Victoria in November 2017. State governments are generally responsible for laws pertaining to voluntary assisted dying and euthanasia. Recently, several states and territories have revisited their voluntary assisted dying and euthanasia laws. On 22 November in Victoria, the Voluntary Assisted Dying Bill 2017 passed the upper house, and it passed the lower house on 29 November 2017. As I said, the legislation comes into effect from 19 June 2019.
In New South Wales, the Voluntary Assisted Dying Bill 2017 was defeated in the New South Wales Legislative Council on 16 November 2017 by one vote—20 votes to 19—and I'm very pleased, as a senator from New South Wales, that that did happen.
In Western Australia, the parliament has established the Joint Select Committee on End of Life Choices to inquire into the need for laws in Western Australia to allow citizens to make informed decisions about their own end-of-life choices. The committee is due to report by 23 August 2018.
In the ACT, the government established a Legislative Assembly committee to examine end-of-life choices in the ACT. The committee will report its findings to the assembly by the last sitting week of 2018. The Commonwealth euthanasia laws would need to be repealed for the ACT to legislate for voluntary assisted dying. The Commonwealth Euthanasia Laws Act 1997, which inserted limited provisions into the self-government acts of the Australian Capital Territory and the Northern Territory, prohibits the legislative assemblies of the ACT and the Northern Territory from making laws permitting euthanasia.
The Commonwealth government is carefully considering any possible interaction between the Voluntary Assisted Dying Act 2017, which was recently passed in Victoria, and relevant Commonwealth provisions. We do not, as I said, support the establishment of national voluntary euthanasia laws. We don't propose to repeal those laws, and we have no intention of reconsidering the self-governing acts of the Northern Territory or the Australian Capital Territory at this time.
Under the Therapeutic Goods Administration and the Office of Drug Control, there are approved medicines that, in various combinations and in high doses, could be used to effect euthanasia; for example, anaesthetics, painkillers, sedatives and neuromuscular blockers. These medicines would not require specific import for this purpose.
The use of such existing medicines in those combinations would be considered an off-label use—that is, outside the current TGA registered indications for these products. This is not illegal, but off-label use must be in accordance with good medical practice. The Medical Board of Australia is responsible for defining such practice. Preparation of a specific combination of high-dose medicines could—but not necessarily—be carried out by a compounding pharmacist within the state of Victoria. Compounding by a pharmacist for an individual named patient is regulated by state law and not Commonwealth law.
The potential to import specific drugs to facilitate euthanasia rather than using combinations may require the issue of an import licence from the Office of Drug Control if the substance to be imported is otherwise a prohibited substance. There are provisions under the Therapeutic Goods Act 1989 whereby doctors may obtain access under the special access scheme to unregistered medicines where such use is medically required. The Medical Benefits Schedule does not provide specific benefits for specific euthanasia related services and, at present, the Pharmaceutical Benefits Advisory Committee, the PBAC, has not recommended a medicine for listing on the PBS for euthanasia purposes.
I wanted to give these parameters as a preface to our position, but I now want to add, if I can, some personal reflections on this issue. Recently, of course, we had the debate in the Victorian parliament. It was certainly a very emotional debate and it is—as it was in the New South Wales parliament. What was very clear from the Victorian debate was that there was opposition to this. In particular, the Australian Medical Association, Palliative Care Victoria and other organisations opposed it; and, of course, church members and faith leaders also came out against it.
Can I say that the taking of one's life—whether it be a son or a daughter, a brother or a sister, or a mother or a father—is a crime under the Commonwealth legislation and it is a crime under state law. I have spent many, many years involved in voluntary work in the community since the early eighties. At the age of 23, I was a founding board director of a nursing home in the Illawarra. So issues of ageing have been of particular concern to me, especially in culturally and linguistically diverse communities. To have a situation where potentially the sick, the disabled, the mentally ill and the elderly, often at the most vulnerable time in their life and often in circumstances where they cannot make decisions for themselves—to simply say that we can take that life, to me, is from a faith perspective not right. And from a humanity perspective it is not right either. Of course, we know that there are people who do want to push for voluntary assisted dying. I think it is the thin end of the wedge. We know that this has been the subject of consideration by various committees in the past. But I believe there is a silent majority in Australia who do not believe that voluntary assisted dying in our society is a road that we should be going down.
As I said, I have been involved since the early 1980s, and have seen so many different aspects of ageing and aged care. Indeed, I was a shadow minister for ageing. At that time, I had the opportunity to visit about a third of the aged-care facilities in this country. Of course, when you go through an aged-care facility, you often see people there who have no-one or who have only one or two people. One of the things that struck me very much, particularly now as we have so many people who have dementia, was that about two-thirds of the people who are in our nursing homes have dementia. It is one of the most heartbreaking things that I have seen.
There's another side to the whole ageing issue: I used to call it the 'three Gs' when I was the shadow minister. A former minister passed that to me and said, 'This is how I refer to it.' They are the three Gs: grief, because you are grieving—you are putting a loved one in an aged-care facility; guilt, because you feel that you can't look after them and you feel bad; and greed. Regrettably, if we have the situation where we do have euthanasia laws, I think that it is the third of these that could give licence to people who might be persuaded that this is the best thing for their mother, brother, sister or whoever—most especially their mother or father—and, therefore, they are encouraged to euthanase.
My father died a number of years ago through dementia. When I saw what he went through, particularly as an older person from a culturally and linguistically diverse background, it was very difficult. They're really the people in our society that I am particularly concerned about, because often they can't speak English very well. Sorry, this is a little difficult. They really are the people who I feel may be most vulnerable. Therefore, what I think is really important, as we consider these sorts of laws, is to make sure that we have good palliative care available—because, in the end, good palliative care is so important.
It's also very important that we provide support in our residential facilities to enable people to be comfortable at the end of life. Often, many people who have dementia get to a particular point when they say, 'That's it.' I don't know what happens. I know with my own dad that about three months before he passed away, he actually did recognise me, which was really good. My father had been suffering from dementia for about three or four years. And then one day he just suddenly decided that that was it, and he stopped eating. Then a week later he passed away. But my father was fortunate. He had good care; he had a family around him. He had somebody who understood the system and was able to ensure that he had the best of care. But not everybody is in those circumstances.
I know that we as legislators here always want to do the best; we always want to make sure that we put in place the best possible framework and the best possible parameters to assist people. This is an area that gives licence to take away a human life, particularly in certain circumstances; they may be financial or others. Unfortunately, if you do have this available, I think that it is the thin edge of the wedge. I think that it will lead to loss of life—taking life—in those circumstances. As a Christian and as somebody who doesn't believe in taking life like this, I think that it is something that will be very detrimental to our society.
I too thank Senator Fierravanti-Wells for her contribution—both the personal and the broader policy considerations. They are very pertinent.
I might commence by briefly reflecting on some of the background to this matter. I asked colleagues in the chamber earlier today about who still remained in the Senate from when we considered the Andrews bill in 1997. There are four of us: Senator Macdonald, who was in continuation on the last occasion when this matter was being discussed, Senator Carr, me and Senator Abetz. As we reflect on the relatively high turnover of the Senate in recent times, it is interesting to note that there are only four of us who were here in 1997—20 years ago—who still remain.
When I reflect on that discussion—and it is perhaps the last time I dealt with my own views on this issue—it happened in a different context and it was done in a different manner. Earlier this week I made a brief statement in relation to formal business, or housekeeping as we call it, and I'll make a similar reflection now. I thank Senator Leyonhjelm for raising this matter. It's a very important issue, and it certainly warrants senators discussing issues such as this regularly, but I'm not sure that the general business part of our program is the best way to proceed with a bill of this character. It will surprise Senator Leyonhjelm to know when the last occasion the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 was before us. It was as long as 12 months ago. Twelve months ago, 16 February, we had some second reading debate speeches and then nothing further in relation to the debate on this bill.
So last year was the last time, but there have been a few other occasions where this issue has also been raised; however, never with the priority that was accorded this matter when, back with the Andrews bill, the Howard government ceded government business time for that bill to be addressed as part of government business. Indeed, the program for the Senate during the time in which it was debated allowed time for all senators to seriously consider the issues, to inform themselves on the matter, to respond to the public debate on the issue, and, indeed, to form their views. I don't think the piecemeal way in which general business deals with issues, which is in snippets, is the best way for an issue as serious as this to be addressed and to be brought to the fore of the minds of all senators concerned.
Perhaps the other personal reflection I would make, Senator Fierravanti-Wells, still here in the chamber, is that my personal experience didn't really fit your 'three Gs' characterisation. I was very fortunate. I, like you, had all the resources of someone in senior public office. It was ahead of the period when I was the Minister for Mental Health and Ageing, but I'm a professionally qualified social worker; I know how to work systems. I could identify the elements that would best assist in the situation, but even I was confounded by the funding arrangements at the time. Of course, for families contemplating putting a family member into aged care, to understand even the basic funding arrangements, to make the financial arrangements to best care for their family member and then to supplement them with all the other known supports that will ensure quality of care is a matter, I think, we're yet to succeed on. Palliative care is the other side to that situation. But, even ahead of palliative care, the transition between acute hospital care and aged care is one where, if someone doesn't have a very proactive family member, it is all too easy for hospital teams to conclude that not much more can be done.
I remember my father, after his first stroke, went into rehabilitation arrangements, and we made a transition back home. I remember the next occasion when he had a stroke and ended up in acute care. The suggestion was that his cognitive capacity, due to dementia, was such that not much more could be done. We ignored that advice. Our government of the day, I think, had established a transitionary rehabilitation program where those things could be measured outside of an acute hospital environment. My father was able to return to one of the joys of older people, which is being able to consume good food rather than live the remainder of his life consuming slush, because he had family members that could advocate and could work within a system to ensure the quality of his care was the best he could receive.
The final point I'd like to make, without going into too much detail—though I probably could—is a credit to Villa Maria. He was placed in a nursing home that was established probably about 15 years prior as what we would regard as best practice. It had dated a little bit by then, and it wasn't the best practice in dementia care as we could consider it at the time. But the care and the preparedness to go above and beyond routines is what that home and that organisation offers a lot of elderly Australians, and I want to pay credit to them.
With that background, let me say that voluntary euthanasia is a serious issue with a profound effect on all in our community. All of us would have a story. Too often it is characterised by simplistic and emotional language and reporting which hampers a reasoned debate, which is part of my reflection on dealing with matters such as this in a piecemeal fashion. My opposition to voluntary euthanasia is twofold: firstly, that it cannot be safely legalised; and, secondly, that euthanasia laws pose profound risks to many people who are ill, vulnerable and/or disabled. I have the deepest sympathy for people in severe pain and distress who are terminally ill and seek relief from their suffering. Palliative care, as I mentioned earlier, is one area we can do much, must better. But I do not believe that euthanasia, where life can be legally extinguished by another human being, is the solution.
Euthanasia advocates argue that society should legalise what already occurs in the medical profession. But I'm not sure that characterises what happens in medicine particularly well, and also I don't think that's sufficient justification to change the law. If doctors are breaking the law when euthanasia is illegal, what realistic constraints are there were it to be legalised? I have grave concerns about the lack of protection for those seeking a lethal injection or assisted suicide. What protection does a person in pain and severe distress, who may ardently believe that they wish to die at the time that they make the request, have?
How is the administration of a lethal dose by a third party a matter of individual rights or liberalism? I think that, too, is a question that needs to be challenged. As politicians we must accept responsibility for the vulnerable and disadvantaged and offer them protection beyond a superficial freedom of choice.
It is argued that the right to die is a matter of individual rights, that it is an individual choice and a matter of personal dignity. I have a different view about what constitutes personal dignity. What the individual wishing to die is asking is to be killed by another party. What is being requested is for the doctor to determine whether a patient will have a worthwhile life. Should we as a society endorse some people's suicides and not others? We must always balance individual rights and the public interest. While many people may wish to have the right to choose the timing of their death and the circumstances, that in itself is not a strong basis for social policy.
Another argument is that doctors, as part of palliative care practice, are presently killing patients by administering pain relievers in doses that are lethal. This goes back to my earlier point about how well characterised existing medical practice is. The point here is that palliative care experts intend to relieve patient pain, not to kill, and that is critical. We need to invest more in good palliative care. A 2015 Victorian Auditor-General report found that, while access to palliative care in the state has improved:
… some metropolitan community palliative care services are struggling to cope with demand …
Indeed, aged-care facilities are also struggling to do this well.
It would be wrong not to look at overseas experience. Legalisation begins with tight restrictions that get expanded over time. The Netherlands was the first country to legalise euthanasia, in 2001; now the age of eligible patients is 12. In Belgium there are no age restrictions. The category of what constitutes an illness is ever-expanding as well, with the Netherlands now considering euthanasia for—I don't know how you would define this—'completed life'. I agree with Senator Leyonhjelm when he said in his second reading speech that this is an issue about all of us; indeed, that is why I believe you must balance individual rights with the public interest.
I rise in support of the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015. In 1995 the Northern Territory Legislative Assembly enacted this legislation. It passed a law which reflected not only the will of Northern Territorians but also the strongly-held views of the majority of all Australians. It was the first time anywhere in the world that a legislature had authorised voluntary assisted dying. This was compassionate, groundbreaking policy. The Howard government decided to use its constitutional power to run over the Northern Territory assembly's right to make laws affecting Territorians. The Greens rejected that at the time, and we reject the idea that the Commonwealth can use its own constitutional power to change the laws that the federal government of the day disagrees with. It is on that basis that we believe this bill has merit.
This bill is about compassion and the right to end-of-life choices. This bill is about support for the rights of the terminally ill to choose the manner and timing of their death. Let us be clear: we are talking about terminally ill individuals who are experiencing unbearable suffering from an incurable illness. We are talking about adult individuals who wish to receive medical assistance to end their life peacefully at a time of their choosing. There are already so many countries around the world which take a compassionate approach—Switzerland, Belgium, Germany, Canada and parts of the USA, just to name a few. In 1995, Territorians voted to take the compassionate approach. It's time they were afforded the self-determination to do that.
Time and time again, we hear of opinion polls which demonstrate that the majority of Australians support voluntary assisted dying. In November last year, Roy Morgan found that 87 per cent of Australians support voluntary assisted dying. This support from voluntary assisted dying cuts across party lines. It cuts across gender and across age.
While the debate has been used by some politicians to divide us, it is quite clear that this is not a divisive issue. Australians support a compassionate approach to end-of-life choices. Having said that, I'm also a strong advocate for palliative care. Any debate around voluntary assisted dying must also acknowledge that, in conjunction with compassion and a compassionate approach to end-of-life choices, we also need a well-resourced palliative care system. We need to ensure that the palliative system is adequately funded, and that it stays that way. But even with the most well-funded palliative care system, Palliative Care Australia has acknowledged that it cannot relieve all pain and suffering, even with optimal care. This is why we need both: a strong palliative care system that delivers services across Australia and regional and rural communities, and access to robust, voluntary assisted dying measures for the terminally ill.
In 1997, Kevin Andrews succeeded in pushing a private member's bill through the parliament. It overturned the first legislation permitting assisted suicide in Australia, enacted in the Northern Territory. Since this time, my Greens colleagues in many states and territories and in this place have been working tirelessly on this issue, as have hundreds of enormously committed volunteers and workers in organisations right across the country. In my home state of Western Australia, the parliament established a joint select committee of the legislative assembly and legislative council to inquire into and report on laws in Western Australia to allow citizens to make informed decisions regarding their own end-of-life choices. I believe that Territorians should have the same right, and I look forward to restoring the rights of the territories. We support this bill.
We've just had three contributions on this matter from colleagues with a great depth of experience, both in this place and on this topic, that I can't hope to mirror, and it is very worthwhile. For me, as someone who has been in this place for five short months, it is good to hear the words of much more experienced colleagues on what is a very difficult policy area. Obviously, it is a matter that has been considered in this parliament and in various state and territory parliaments quite a few times over the years, and we've recently seen a very protracted debate on legislation in this area in Victoria.
As a starting point, though, I would point out that the bill we're currently looking at is not actually about euthanasia; it is more about state and territory rights. The bill is called the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015. The explanatory memorandum states:
The purpose of the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 is fourfold.
Second, it will encourage competitive federalism—the process whereby each state enacts laws in competition with the others—thereby refining and improving law-making.
Third, it recognises the right of the Australian Capital Territory and the Northern Territory to legislate for assisted suicide in their respective jurisdictions.
Fourth, it ensures that the Rights of the Terminally Ill Act (NT) is not automatically revivified, allowing the Parliament of the Northern Territory to revisit the issue in a time and manner of its choosing.
As previous speakers have said—and I think it is important to repeat—this is a very sensitive, complex topic; one that engenders a lot of strong community feelings, and one that's been extensively debated in this place. But the issue of territories' rights, in particular, is one that should not merely be viewed through the prism of states' rights.
We do have a Federation, made up of six states and two territories. There is a reason why we have six states and two territories, not six states or eight states. The Federation came into existence on 1 January 1901—inspired by the US constitution, certainly. It was the coming together of the six British colonies seeking their independence from Great Britain, envisaging the benefits of unrestricted trade throughout the Federation and the benefits of a combined armed force, a single currency and a single rate of export excise. But they also wanted to retain certain powers for themselves, not to be usurped by a central government. Those of us who are federalists—and I acknowledge that Senator Leyonhjelm is a federalist—recognise that, over time, these powers have been significantly eroded by successive decisions of the High Court. The powers of the Commonwealth have been significantly expanded through that process, and the areas in which the Commonwealth has taken an active role have been significantly expanded.
However, I don't think we should, through that process, automatically assume that the rights of territories are those of states. As I've stated, legislation has recently been passed in Victoria in the area of euthanasia. That is completely correct, in that it was the right of the Victorian parliament to pass those laws, and of the citizens of Victoria to now live under those laws. However, the territories have a different status. They are a different legal entity under our Constitution, and were never envisaged to have the same rights or responsibilities as the states. I think there is a broader discussion that we should have, Senator Leyonhjelm, about the future of the territories within the Commonwealth and how that should change over time. But I think that is beyond the topic of this bill, and certainly beyond the more narrow issue of discussing euthanasia.
When you're dealing with euthanasia, I think it's very important to recognise that this is a topic that invokes a lot of passion. It's an area where, I think, people's views have changed over time and are probably different at different stages in their lives. I often think about this issue in parallel with the issue of capital punishment. As a younger man, I didn't have any particular moral objection to capital punishment. But, over time, I came to realise that, regardless of my position on capital punishment, the legal system could not be made robust enough for capital punishment to be used within Western societies in a way that would stand any sort of robust examination. We've seen in the US a number of states move away from capital punishment for that reason—because it has been shown that the legal system failed to provide adequate checks and balances to ensure that this ultimate punishment of the state could be used effectively.
And I think this is the problem many have in the area of euthanasia. Regardless of how you feel about the topic itself, can we be certain that we can craft a legal regime that will actually provide adequate protections to people, particularly those in the most vulnerable of circumstances: people with either a diagnosed or an undiagnosed mental illness or people who are in a lot of pain? We heard from previous speakers about the importance of palliative care and the importance of pain management, and I certainly would echo those thoughts. It's an area where I think that, as a society and as a medical profession and a health system, we probably need to look at doing more.
Pain is certainly one of those areas where there is some quite remarkable work being done by researchers. I was meeting in my office during National Science Week with a young researcher who was looking at some very new, highly targeted ways of delivering pain management drugs within the brain. Obviously, technologies like that are very exciting and can potentially be a significant game changer in this area, as we give people who are in very desperate circumstances new options, new opportunities, new ways of dealing with the very serious and confronting problems they face.
This is why it has to always be an underlying principle of any government, and certainly this government, to continue to invest in quality of life through our health systems and, as I said, particularly in palliative care and pain management. People need access to quality palliative care. They need to be able to gain relief from pain and suffering, and, where possible, they should be able to choose the extent of active medical treatment they receive.
Euthanasia has been a matter for state parliaments, and that is—as I stated earlier in terms of the place of federalism in our structures of government—how it should be dealt with. The territories, as I've stated, lie in a slightly different category. I think that we need to ensure that, when we consider these issues, we do so from a holistic viewpoint, not merely based on the idea that we are in some way restoring territories' rights. In my view of federalism, those rights did not exist in the way they are described in this bill in the first place. They were rights that were provided for in the Constitution for the states. The territories are not states, and therefore the rights do not flow in the same way.
The Commonwealth government is carefully considering the interaction between the Voluntary Assisted Dying Act 2017, which was recently passed in Victoria, and relevant Commonwealth provisions. I think that is something that we need, obviously, to keep an eye on. I think that as a parliament and as a government it's important to look at the operation of laws in other jurisdictions. Regardless of where you stand on the issue itself, we now have laws in place in Victoria. We need to monitor those. We need to watch how that is changing the environment for people who perhaps choose to act under those laws. I think we need to keep a watching brief on this topic.
But when this topic does come up in federal parliament at some point in the future, and I suspect it probably will, I think we do need to take a very holistic view of this issue and look at all the interactions of the various legal systems. In the main, I think this should be a matter that we leave to state governments. I don't think that we need to revisit the debates of the late nineties in this area at this point, and I don't think this bill would be the correct manner in which to do it. I seek leave to continue my remarks.
Leave granted; debate adjourned.