Alicia Payne, NT Labor backbencher to introduce territory rights bill

Peter Graves, you are correct, the “Andrews” Act (proper name ‘Euthanasia Laws Act 1997’) inserted sections in each of the acts for:
. ACT self-government – S23(1A) & 1(B),
. NT self-government – S50A, and
. Norfolk Island self-government – S19(2d) & 19(2A).

Those sections removed the power of each of the aforementioned territories to pass legislation allowing euthanasia/VAD. Specifically, it nullified the NT’s “Rights of the Terminally Ill Act 1995” – banning Northern Territorians from accessing VAD (beyond the 4 that had already done so before the nullification).

So, repealing the “Andrews Act” will result in the removal of those sections from each of the NT and ACT self-government acts (Norfolk Island self-government was abolished by the Feds in 2015) and therefore remove the impediment to those territories from enacting euthanasia legislation.

The NT “Rights of the Terminally Ill Act” has never been actually repealed is still on the Territory’s statutes. So if the proposal to repeal the “Andrews” Act is successful, then VAD will again be legal in the NT without the need for further legilsation. Obviously the ACT has never been through the process, so repeal of “Andrews” will allow the ACT LA to debate and potentially enact such legislation.

As you pointed out below S122 gives the Feds the power to override territory laws, and repealing “Andrews” will have no impact on that power. So down the track, it is possible a Kevin Andrews clone could submit similar legislation to the Federal Parliament – and if successful, any NT and ACT VAD legislation would be nullified.

I haven’t seen proposals from any of the protagonists for territory rights for a referendum to remove/reword S122 of The Constitution – but if there is, that’s a much harder ‘field to plough’.

Ah – many thanks Just Saying for teasing out the legal niceties. My quasi-legal mind stills asks the next 2 questions.

(1) Does repealing the Andrews Act automatically remove the three amendments you helpfully quoted ?

Or (2) is further – new legislation – required legally to amend those Acts, by formally deleting those Sections ?

And Yes – I’d agree that any further Government so minded could use S.122 of the Constitution to – yet again – over-ride the democratic powers of the ACT and the NT to determine their own laws.

As the States have been always able.

I’ll have to leave it to greater legal/quasi-legal minds than mine to answer those questions with certainty, Peter Graves, but my (totally unqualified) understanding is that as the Andrews Act “inserted” the prohibitive clauses into the respective self-government Acts, then repealing Andrews means the various self-government Acts will revert to the status quo prior to Andrews – i.e. the barrier will be removed.

The positive thing is that if there is some ‘administrative clean-up enactment’ required after the Feds repeal Andrews, one would assume it would be achieved without issue, as Andrews is the major hurdle.

Peter,
To answer your question, it will be very simple legislation.

It will be required to remove/amend the sections in the self government acts and likely will also wholly repeal the 1997 “Andrews Act”.

Repealing the Andrews Act by itself would not be sufficient.

There’s been legislation in parliament a number of times to do just that over the years, the Greens in 2010, Leyjonhelm in 2015, Leigh/Gosling 2018 etc.

You can find copies of those proposed laws on the APH website (eg):

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1030

https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6159

@chewy14 – Thank you for the clarification

I assume the Payne/Gosling bill will follow along the same lines of the Leigh/Gosling bill of 2018 which would have led to the repeal of the prohibitive sections/clauses in the two territory self-government Acts.

The Leyjohnhelm bill of 2015, in addition to the repeal of those sections/clauses also sought to repeal the “Andrews” Act. I’m not sure why the “Andrews” Act even needs to be repealed as all it did on eneactment was insert those prohibitive clauses into the (at the time) 3 self-government Acts.

Many thanks to both Just Saying and Chewy14 for this debate – especially to Chewy14 for finding those attempted amendments in 2015.. They are claused as I had been presuming. Much clearer now.

Just Saying,
As you say, the Andrews Bill doesn’t have to be repealed but by doing so it removes redundant legislation from the books which is mostly a good thing.

From a political perspective it would also look good considering the issue involved to remove the previous superseded legislation.

chewy14
Good point about removing redundant legislation from the statutes – especially as there is no effort involved.

Absolutely correct, Peter, repealing of the “Andrews ACT” alone will not give the Assemblies of either territory the right to debate VAD legislation. It is requires action on two Acts for both the ACT and NT – as the NT also has a similar prohibitive clause in its self-government act. (Section 50A was added to the Northern Territory (Self-Government) Act 1978, after the passing of the Andrews Bill, to prohibit the Northern Territory from making laws in respect of euthanasia).

It may just be lazy journalism from Ms Twyford, and the two MPs (Payne and Gosling) will follow the lead of former Senator McMahon. McMahon unsuccessfully attempted to introduce legislation into the Senate in the last Parliament to both repeal the “Andrews Act” and amend the NT Self-Government Act to pave the way for the NT Assembly to consider VAD legislation. You may recall that former Senator Seselja declined to have the ACT included in McMahon’s bill.

@Peter Graves Quite simply, as you have shown, it is “relevant and remaining as a residual CW power over the ACT” because it is embedded within the Constitution. Until the Constitution is changed the power remains.
So all you need to do to rectify this, is convince the rest of the Australian electorate to vote in favour of a change to the Constitution to repeal S122.

Because we aren’t a state and the governance structures we have in place are not as robust as they should be to manage all our affairs independently.

We have a trumped up city council, if anything, our government has shown they should have less power rather than more.

There you go again, chewy14, making statements based on your own prejudices rather than fact.

Actually, let me rephrase that.

Unless, I’m mistaken, chewy14, there is no statute that mentions any requirement the ACT government must meet before the removal/rewording of S122 can be put to a referendum of the Australian people. If there is, perhaps you would be so kind as to provide a reference to it.

Justsaying,
What on earth are you on about?

Can you point out where I’ve claimed that S122 can’t be changed.

The question raised was:

“Why is this still relevant and remaining as a residual CW power over the ACT ?”

To which I’ve given an answer on why the powers are still relevant and remain based on my opinion, the record of our local government and the reasons why they were not vested with the same powers of our state governments in the first place. I’ve never claimed anywhere the powers can’t be altered.

Do try to read first before jumping to strawmen.

Although in saying the above, in my opinion some of it also applies to the states. I’d be happy to be rid of them too, with only two levels of government.

With the Feds retaining the vast majority of power and creating far more harmonised legislation across the country.

Unlikely to happen though admittedly.

What I’m on about, chewy14, is that the ONLY reason it is “relevant and remaining as a residual CW power” is S122 … no strawmen there, just your sanctimonious commentary on the ACT government which is totally irrelevant

How narrow must your thinking be if that’s what you got out of the question from Peter.

In an article about changing legislation and a discussion around the separation of powers between levels of government outlined in the constitution, we aren’t allowed to discuss the actual topic according to Just saying.

The question was why are the powers still relevant and why do they still remain?

Your answer can’t possibly be “because that’s what the constitution currently says and it would need to be changed”

Peter has already quoted the exact section it comes from, you think he doesn’t already know that?

I know you were taking an attempt to jump on what you think was a mistake by me but the question clearly is talking about why the powers exist, what relevance they have today and why haven’t they been changed yet.

Perhaps you should slow down a bit before you jump the shark next time?

But anyway, back on topic:

Why does the ACT currently not have VAD yet?

Well, in my detailed assessment guided by the JS school of research and opinion, I’ve found that the sole and only reason is because it’s currently illegal.

QED.

/end thread.

yeah nice try, chewy14

My view is narrow, because that’s the reality – the Feds can overwrite, and have overwritten, territory legislation because of S122. Once it’s removed then the authority to overwrite said legislation will no longer exist – irrespective of whether or not you think that authority should remain in place “Because we aren’t a state and the governance structures we have in place are not as robust as they should be to manage all our affairs independently.” That’s your opinion and I’m sure every member of the federal parliament will take your opinion into account before they vote on whether or not to allow the referendum to be put to the people.

And I never never said you claimed that S122 could not be overwritten, I said you claimed that S122 remained in place because the ACT government had not met requirements that you have identified “We have a trumped up city council, if anything, our government has shown they should have less power rather than more”

Perhaps you should try to not to read into other’s posts a soap box that you can jump onto.

And you are absolutely correct – the ACT does not have VAD “because it’s currently illegal” – what other reason could there be? Not sure why you even saw the need to state that in your response to me – it’s simply a statement of fact, which I haven’t disputed anywhere.

Nevertheless, once the two impediments (Andrews Act and S23 of ACT Self Government Act) have been removed, the ACT Assembly will be able to debate VAD legislation and potentially enact it – and, I’m sure there will be a lot of community debate about it should the opportunity to legislate on VAD arise. Then if enacted VAD will be legal – unless, and until, the Fed’s invoke their right under S122, if they decide to do so.

I don’t need to “QED” anything as all I’m doing is stating facts.

And I know an “/end thread” tag is redundant – as you always need to have the final word.