Concrete law for the States is
but jelly for the territories

Irrelevant issues, such as euthanasia, should not derail the federal parliament debate over giving people from the ACT and NT equal rights to those enjoyed by Australians living in States, Prof George Williams says. The imbalance of voting power also needs attention, he says.

Concrete law for the States is but jelly for the territories

 By Professor George Williams*

Much of the debate around Bob Brown’s euthanasia Bill is misdirected. If enacted by the federal Parliament, it will not permit voluntary euthanasia. Nor will it restore the Northern Territory’s 1995 law on the topic. The Bill will only remove an impediment if the Territories seek to legislate on the topic in the future.

Brown’s euthanasia Bill ought to be passed, but not because it provides a step to legalising voluntary euthanasia. People who see the Bill in this light are likely be disappointed. Even if freed to do so, no current Territory government has indicated a desire to go down this path.

It is a State and not a Territory that is the most likely to permit voluntary euthanasia. Tasmanian Attorney-General and Deputy Premier Lara Giddings announced in June 2010 that she is committed to helping Tasmanians with a terminal illness die with dignity. This follows an earlier, unsuccessful Greens Bill, and a new government proposal is likely to be introduced into the Tasmanian Parliament in 2011 after an extensive period of consultation.

The reason that the Brown Bill ought to be passed federally is that it will remove unjustified discrimination against people living in the Territories. Unfortunately, hundreds of thousands of Australians living in these locations often receive a poor deal from our democracy.

The NT and the Australian Capital Territory were granted self-government in 1978 and 1988 respectively. However, this grant by the Commonwealth was grudging and ungenerous. The Territories were denied the independence of a State and were instead left in a status akin to a 19th century colonial possession.

The Territories are self-governing in name, but not always in practice. Most importantly, the federal government retains a veto over all Territory laws. This was used in 2006 when the Howard government overrode the ACT Civil Unions Act, a law which transgressed federal sensibilities by allowing a public ceremony for same-sex civil unions.

The use of the veto, and its subsequent threatened used by the Rudd government when the ACT sought to restore the Civil Unions Act, showed how easily Territory laws can be overridden. No reasons need be given, nor any consideration paid to the best interests or democratic rights of local residents.

The primary purpose of Brown’s Bill is to repeal the Euthanasia Laws Act. Championed in 1997 by then coalition backbencher Kevin Andrews, this federal Act was passed to override the legalisation of voluntary euthanasia in the NT. However, it went much further and also removed the power of the NT, the ACT and Norfolk Island to make future laws on the topic.

As a matter of democratic principle and good governance, the Commonwealth should not remove power from a self-governing jurisdiction. Removing power is a blunt instrument that prevents the making of any laws on a subject, whether for good or ill. It also calls into question the good faith of the Commonwealth in granting self-government to the Territories in the first place.

This is not to deny the role of the Commonwealth to govern for all Australians. Where issues arise in a Territory or State, the federal Parliament can be right to intervene. It should do so in the national interest by legislating for the country as a whole and not by opportunistically taking advantage of its power over the Territories.

The problem for the Territories is that they represent an easy target. They lack the same constitutional protections as the States, which cannot be singled out for special treatment. The Territories also have little representation in the federal Parliament and so only a small voice in the nation’s affairs.

The ACT in particular is grossly underrepresented. While Tasmania has 507,000 people and 17 members of the federal parliament, the ACT with 358,000 people has only four representatives. This is the same number as the NT, which has a population of 229,000 people.

The drive to oppose voluntary euthanasia in the NT in 1997 produced bad law. This should be remedied by freeing the Territories to again legislate in the area if they so wish. Opposition to euthanasia does not excuse a law that treats Australians living in the Territories as second-class citizens.

* George Williams is the Anthony Mason Professor of law at the University of NSW, and a member of CLA. This article first appeared in the SMH on 9 Nov 2010.

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