5 July 2022

Alicia Payne, NT Labor backbencher to introduce territory rights bill

| Lottie Twyford
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Alicia Payne

Member for Canberra Alicia Payne will introduce a bill to overturn the Andrews bill in the first few weeks of Federal Parliament. Photo: Region.

Two Labor backbenchers, including the Member for Canberra Alicia Payne, will introduce private member’s legislation to Federal Parliament that would repeal the Andrews bill and clear the path for the territories to legislate on voluntary assisted dying.

The bill could be introduced in late July or early August.

Ms Payne said she expected the bill to be introduced “as soon as possible” after the resumption of Federal Parliament.

“All Australians should have equal democratic rights, whether they live in Canberra or Queanbeyan,” Ms Payne said.

“The reality is the Andrews bill makes residents of the ACT and NT second-class citizens, and I’m proud the Albanese Labor government will enable the parliament to vote on restoring territory rights.”

READ ALSO Labor to leave territory rights move to private member’s bill

Ms Payne will introduce the bill alongside her Darwin-based colleague, Member for Solomon Luke Gosling.

“Territorians should be able to decide for ourselves whether this is something we want, as Australians living in the states can do,” Mr Gosling said in a Facebook post.

Minister for Territories Kristy McBain confirmed last week she would not introduce the bill herself, but she would work alongside the member or senator who did so.

Member for Fenner Andrew Leigh had previously indicated he would like to introduce a similar bill. ACT Senator Katy Gallagher also supports the territories legislating on voluntary assisted dying.

During his campaign, now Senator David Pocock promised to move a private senator’s bill to restore the ACT’s right to legislate on voluntary assisted dying in his first weeks in the Senate.

A spokesperson for Mr Pocock confirmed last week he would be willing to work constructively on the bill with other members alongside Ms McBain and had already had conversations on the subject.

READ ALSO ACT Government needs to sate land hunger for family homes

The ACT Government is also commissioning draft voluntary assisted dying legislation ahead of an expected repeal of the Andrews bill.

Mr Barr told the ACT Legislative Assembly at the start of June that a consultation document alongside a draft bill would be prepared.

He described the former government’s treatment of Canberra as akin to “disdain”.

The so-called Andrews bill was enacted in the early 1990s to stop the territories from legalising euthanasia.

All Australian states have now passed voluntary assisted dying laws, with NSW the most recent to do so in May.

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Peter Graves5:07 pm 06 Jul 22

I really would like to know what the “Andrews Act” was, as it seems to me that it was an amending Act that inserted Paragraph (1A) into Section 23 of the AUSTRALIAN CAPITAL TERRITORY (SELF-GOVERNMENT) ACT 1988.

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’.

Peter Graves11:12 am 07 Jul 22

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.

Peter Graves4:47 pm 07 Jul 22

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.

Many people of Canberra Voluntarily Assisted in Zed’s political career Dying.
Thank GOD ( Goodness Of Democracy)

Stephen Saunders4:19 am 05 Jul 22

Congrats to my local member for taking up this cause. It is important, and it devastates ordinary people and their families.

Andrews is a religious bigot who revelled in imposing his extreme views on civil laws. As late as May 19, Morrison emphasised that he would never, ever, give ACT/NT a choice. Take their punitive worldview its logical conclusion – and you get today’s SCOTUS.

Peter Graves9:49 pm 04 Jul 22

As a PS, it’s also explicitly in the AUSTRALIAN CAPITAL TERRITORY (SELF-GOVERNMENT) ACT 1988
Section 23 Matters excluded from power to make laws
(1) Subject to this section, the Assembly has no power to make laws with respect to:
(a) the acquisition of property otherwise than on just terms;
(c) the provision by the Australian Federal Police of police services in relation to the Territory;
(d) the raising or maintaining of any naval, military or air force;
(e) the coining of money;
(g) the classification of materials for the purposes of censorship.

(1A) The Assembly has no power to make laws permitting or having the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life.

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 Graves9:46 pm 04 Jul 22

It’s not just about the ACT’s rights to legislate on VAD. Under Section 122 of the Constitution, the Commonwealth can make any law for the Territories:
“122. Government of territories
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.”

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

@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.

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