Jane Hume (Victoria, Liberal Party) Share this | Hansard source

I rise today to speak on the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015, which was introduced into this place by our colleague from the Liberal Democratic Party Senator Leyonhjelm. I'd like to start by saying that I will be opposing the bill today. I have said in the past that I will consider any proposal to legislate for the right of a person to end their life provided that there are adequate safeguards in place to protect them from being guilted into doing so. I'm not confident that the bill today offers those safeguards. Indeed, it doesn't offer a model at all. I also appreciate the views expressed by some that this bill is ultimately about where federal legislative authority ends and where that of the territories begins. However, I do not believe that what is ultimately a discussion on assisted suicide is the appropriate forum for discussion on state rights versus territory rights.

Before I go any further, I cannot stress enough the sensitivity and the personal nature of this issue. It is encouraging that previous speakers on this bill are respecting that. I acknowledge the sincere words of Senator Rice, who spoke just before I rose. All of us in this place have the best intentions. But this is not a debate about intentions. It is, in fact, a debate about the decisions that we as lawmakers make and the implications of those decisions. So this is not a question of whether we should allow people to die with dignity. Indeed, as lawmakers, we take it as a given that everyone—and most of all us, the parliamentarians—wants to ensure Australians have dignity at all phases of their lives, including when they die. Rather, this debate is more about whether we should give the territories the unfettered ability to legislate for assisted suicide.

The legislation before us today provides no guarantees that those choosing to end their lives won't be guilted into doing so, and neither does the system of government employed by the territories. The respective legislatures affected by the proposed legislation are unicameral; like Queensland, they lack an upper house of review. The Northern Territory experience of the 1990s demonstrates very clearly just how easy it is to get the law on this issue wrong and why it can't be repeated again. When the Rights of the Terminally Ill Act 1995 was enacted, it was accompanied by a number of 'safeguards' that advocates of assisted suicide claimed would protect vulnerable people. In practice, they failed to do so.

Let me outline the implications of that. Two doctors both verify the existence and the terminal nature of a patient's illness. The second practitioner was required to have special expertise in the illness and fellowship in a specialist college in Australia. That was one of the safeguards. If the first doctor did not have a specialist qualification in palliative care, a third doctor, with palliative care expertise, was required to give the patient information on the availability of palliative care. And then, finally, a psychiatrist was required to examine the patient to certify that he or she did not have treatable clinical depression. We were told time and time again that these protocols would protect the most vulnerable members of our society from terminating their lives unless they were of sound mind and did not want to receive palliative care. No matter how well intentioned it may have been, the nine months during which euthanasia was practised—it was practised in the Northern Territory from July 1996 to March 1997—should in fact serve as a sufficient deterrent. That is because all the goodwill in the world could not have prevented the tragic implications of this legislation; it shows why we must get the law right.

In October 1998, a paper entitled 'Seven Deaths in Darwin: Case Studies under the Rights of The Terminally Ill Act Northern Territory of Australia' was published in TheLancet. This paper examined the cases of seven people who made formal use of the ROTI Act, four of whom died from assisted suicide. One of the authors of this paper was Philip Nitschke, a fervently pro assisted dying physician and activist. So it is not as if this paper was a blatant partisan exercise in criticising the practice of assisted suicide—far from it. As was expected would happen by many before the enactment of this act, despite only seven cases falling within its ambit, the Northern Territory still did not effectively apply its own law. As was identified by the paper published in The Lancet, three of the seven patients were socially isolated with depressive symptoms present in four of the seven. This depression clouded their judgement meaning that they were not of sound mind when they were requesting to end their lives through assisted suicide. The paper also said that when it came to pain management, four of the seven patients had controlled pain and the remaining three did not have prominent pain, and yet the law was intended to put an end to prolonged suffering. But perhaps most alarmingly, the requirement for there to be a consensus terminal diagnosis, arguably the most straightforward safeguard to implement, proved too difficult to administer for the Northern Territory government who allowed access to euthanasia for two patients who lacked a consensus terminal diagnosis. Even worse, one patient who was granted euthanasia did not have a terminal condition at all. The safeguards simply weren't in place.

I fully appreciate the sentiment of those who passionately support this bill and who view this bill as one that is meant to secure the dignity of the small number of people who suffer from terminal illness with refractory pain. The intentions of the territories, then and now, are not in question. But what the Northern Territory situation has proven is the need to ensure that the law is developed properly and in a manner that has far more than just adequate safeguards.

Much like the Northern Territory, overseas experiences of assisted suicide offer little comfort. Nowhere that has legalised euthanasia has demonstrated a viable model with those adequate safeguards. It sounds promising in theory but it is, in practice, quite insidious. In all major jurisdictions where euthanasia or assisted suicide is legal, there has been a sharp and sustained upward trend in the number of deaths over a long period of time. In no case, is there a sign of the frequency of the practice plateauing—it increases year on year on year.

In 2016, the Victorian parliament held an inquiry into end-of-life choices. Daniel Mulino, of the Legislative Council, the Labor Party member for Eastern Victoria, dissented from the majority report. Putting partisan allegiances aside for just one moment, this was an immensely valuable piece of research and one that will no doubt become a seminal work on the case against euthanasia.

In his dissenting report, Mr Mulino examined prominent cases of assisted suicide and euthanasia in major jurisdictions that have legalised either procedure. His findings were disquieting to say the least. In each of the three European countries that have legalised assisted suicide—Belgium, the Netherlands and Switzerland—there have been vast year-on-year increases in the number of people who have accessed euthanasia services, and this growth has been sustained over many years. In Switzerland, for instance, over the 16-year period of 1998 to 2014, the compound annual growth rate in cases was 19.2 per cent. I will say that again: the compound annual growth rate in assisted dying was 19.2 per cent year on year, compared to a meagre 0.3 per cent annual growth rate in deaths.

Similar results were observed over a 12-year period in Belgium, which has an identical annual growth rate in total deaths. To look at it another way, the total number of cases in Belgium increased by 756 per cent over that 12-year period. That is striking. That is striking indeed. In the Netherlands, the annual growth rate was lower at 13.1 per cent over a seven-year period but this is, nevertheless, a marked increase that occurred despite the total number of annual deaths decreasing year on year. Likewise, across the Atlantic Ocean in Oregon and in Washington, there has been strong, sustained year-on-year growth in the number of cases of euthanasia and assisted dying. And, again, annual growth in deaths in the USA is a mere 0.5 per cent.

I do not dare to do the individuals or the families involved the disrespect of questioning their decision, but the trend indicated by the evidence here really cannot be ignored when, as lawmakers, we are confronted with legislation akin to the one that we are presented with today.

How can we explain this phenomenon? It is certainly not plausible to attribute it to a growing awareness of end-of-life options. One only has to take a cursory glance at the graphical representations of the data from overseas to see that there has been no abatement in the growth rates in any of those five jurisdictions that I have discussed today. This strongly suggests that sustained growth is due to factors other than simply community awareness.

As I have discussed already, such a phenomenon cannot simply be dismissed by attributing it to an increase in the ageing population of the respective jurisdictions. There is evidence of scope creep in at least some jurisdictions, and this is particularly concerning. This has occurred both via legislative expansion of categories, such as in Belgium, and also non-legislative and informal extensions within an existing framework, such as in the Netherlands. Once the initial legislation is in place, it becomes that bit easier to justify liberalising the practice. One could ask many questions about whether the initial scope was appropriate in the first place. Is physical pain necessary to trigger justifiable action or is psychological pain also sufficient? Is explicit consent required? If assisted suicide is justified only for people suffering a terminal condition, what exactly does 'terminal' mean?

As Mr Mulino notes, the reason why the slippery slope argument has credibility in this context is that once euthanasia or assisted suicide are accepted for a limited subset of situations, there is very little by way of logical or philosophical argument to stop the expansion of those categories. Furthermore, the argument is that, once legalised, there will be a tendency for euthanasia and assisted suicide schemes to expand in scope since the logical and philosophical boundaries between the different types of proactive hastening of death are far weaker than the boundary between omissions and actions. Indeed, Senator Leyonhjelm himself noted in his opinion piece in The Australian Financial Review of 3 August this year that some people ought to have the option to end their lives when life has become merely 'unsatisfactory'. No doubt many of us will have some considerable concerns about a proposal such as that.

The slippery slope is, in fact, comprised of two slippery slopes. The first involves loosening the legislative criteria that one must satisfy to access euthanasia services. The second and, in my mind, far more concerning slope, involves the broad reinterpretation of existing legislative criteria by those outside the judicial and legislative arms of government. For instance, amendments to legalise physician assisted dying were introduced but ultimately rejected by the Belgian legislature. Nevertheless, physician assisted dying is now widely practised in Belgium, despite legislation that intentionally outlaws this practice.

As you can see, once legislation is enacted there really is no turning back. This is not—I think this is important for the chamber to recognise—an issue of federalism. The Federation of Australia was the process by which the six British self-governing colonies agreed to unite and form the Commonwealth of Australia. Neither the Northern Territory, nor the Australian Capital Territory nor any other territory was party to this. Section 122 of the Australian Constitution, regarding the government of territories, reads as follows:

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

As it is abundantly clear, and set out in the Constitution, the territories do not have the same rights as states. They are different from states. They do not have the same rights.

They are self-governed only by virtue of acts of the Commonwealth parliament. Of particular importance are the Northern Territory (Self-Government) Act 1978 and the Australian Capital Territory (Self-Government) Act 1988. The extent of the purview of such acts is determined at the sole discretion of the Commonwealth parliament. That can be amended by a majority vote of both this place and the other place at any time. The territories' legislative assemblies govern only by delegation of power of the Commonwealth government. They do not govern by way of constitutional right. As was their legal right at the time, the Northern Territory parliament enacted the Rights of the Terminally Ill Act 1995, which legalised euthanasia in the Northern Territory. And as was their right, the Commonwealth parliament enacted the Euthanasia Laws Act 1997, the so-called Andrews bill, which amended the territories' self-government acts to remove their powers to legalise euthanasia. This is how the territories have always been governed. As a conservative, it is my firm belief that this is how they always should be governed and should continue to be governed. I need not remind my Senate colleagues that in the year immediately following the enactment of the Andrews bill, the Northern Territory voted against becoming a state. The Northern Territory voted against becoming a state.

The legislation produced in the 1990s allowing territories an exemption to legislate on assisted suicide did not work. I am sad to say, and sad to see, that 20 years on we are here again merely revisiting the battles of the past in exactly the same manner, with a bill offering practically the same legal effect. Again, I cannot stress enough the personal connection that so many of us have on this issue, myself included. I respect that deeply, as I'm sure all of us in the chamber do, but we can have no confidence that we are producing legislation that ensures adequate safeguards for Australians who elect to end their own life or that we are getting the law right on this issue. That is why I will not be voting for this bill today. I thank the chamber for its indulgence.