29 July 2022

Lobbying campaign gathers steam ahead of Territory Rights bill introduction

| Lottie Twyford
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Alicia Payne

Labor backbencher Alicia Payne will introduce legislation to overturn the ban on the territories legislating on voluntary assisted dying, alongside her Northern Territory counterpart Luke Gosling. Photo: File.

Ahead of today’s expected introduction of a Territory Rights bill in Federal Parliament, opponents and supporters have made their positions clear.

ACT Labor backbencher Alicia Payne and Northern Territory backbencher Luke Gosling will introduce legislation to repeal the Andrews bill. If it passes, the ACT and the NT will be able to make their own laws around voluntary assisted dying – something they have been barred from doing since 1997.

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

“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.”

All other states and territories have passed voluntary assisted dying laws.

Work is already underway at a Territory level to prepare laws ahead of the expected repeal.

University of Canberra Vice-Chancellor Paddy Nixon has called for the Federal Government to end the ban on the territories legislating on voluntary assisted dying. Photo: Rohan Thomson.

University of Canberra Vice-Chancellor Paddy Nixon penned an open letter last week, calling on the Federal Government to rid itself of the “long-standing blight on Australian democracy”.

Professor Nixon made a joint statement alongside his counterpart at the Charles Darwin University in support of the bill.

The two universities are the only ones to have been created under territory legislation.

“UC is required by law to pay special attention to the needs of Canberrans and self-determination is a fundamental need of all people,” Professor Nixon said.

“It is not our usual practice to speak out on legislation before the Parliament, but this legislation is critical.”

READ ALSO Alicia Payne, NT Labor backbencher to introduce territory rights bill

On the same day, the Archbishop of Goulburn and Canberra Christopher Prowse wrote to federal politicians to urge them to consider the proposed bill in light of the fact it was only about allowing the Territories to “legislate for state-sanctioned killing”.

Archbishop Prowse did not directly urge politicians to vote against the bill but offered some thought for their “reflection”.

“The rationale for this proposed legislation is ensuring that Territory Assemblies have equal democratic prerogatives with the States. In my view, this argument is flawed and such an outcome is evidently not intended at all,” he wrote.

“My view is that a radical change to society’s most foundational law, overturning the prohibition on the intentional killing of citizens, is ethically unjustifiable, cannot ensure legal protection of the vulnerable, and would fail to uphold the dignity of the dying.”

Archbishop Prowse said if the bill passes, the Commonwealth would accept responsibility for sanctioning the killing of its citizens in jurisdictions where it has direct responsibility.

Labor has granted its members a conscience vote on the matter.

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This legislation is long overdue and will put residents of the two territories on equal footing with the rest of Australia.
I note David Pocock made this a matter that he would pursue if elected to the Senate.
I wonder, if Senator Pocock had not raised this issue during his campaign, whether ACT Labor backbencher Alicia Payne would have brought the matter forward. Strange, that it was also raised by Katy Gallagher shortly after Sentor Pocock announced to the media that he would make this issue a priority if he was elected. Don’t get me wrong, it doesn’t really matter who brings it forward. I think it is a good thing, no matter who brought it forward, but I really think the ACT branch of the Labor Party should gracefully acknowledge that it has acted to Senator Pocock’s initial stimulus.

These are clearly not “rights”. All levels of Australian government have demonstrated they don’t believe in individual, natural rights over the last two and a half years. That being the case, this is just political grandstanding, and shouldn’t be framed as a rights issue. That framing is just insulting after demonstrating that even freedom of association is not something that any Australian holds.

“they don’t believe in individual, natural rights”
I find it quite helpful not to believe in that which does not exist.

Even those things on which we so broadly agree that we write them down and call them general principles become debateable in specifics, when conflicts between them arise.

Then you’d agree it shouldn’t be called a “Territory Rights” bill.

As an assignment of certain rights of and by the Commonwealth Government to one of its Territories, it is sufficiently well named.

You just said rights don’t exist. If rights are not innate and inalienable, they are not rights.

You used the adjective “natural”, TheSilver, and that qualification is to what I clearly referred.

“Rights” are conferred or allowed by the State. If you do not like them as they are then your alternatives are to change the law, or the State, or move to another. Those are what people have been doing for tens of thousands of years. Hindsight is a wonderful contributor to what is considered “natural” but has merely become widely accepted.

That’s a bastardisation of the meaning of rights. What you are describing are clearly privileges, not rights.

Still wrong, TheSilver. You are so hooked on your notion that a right must be “natural” (or maybe “inalienable”) that you assume the qualifier is inherent in rights. Of course privileges are not rights (the former are usually transient or discriminatory). The State confers rights (see especially the Constitution) and mostly makes useful laws. Those with more or less universal acclaim pertaining to individuals acquire, with time, the status of “rights”, becoming essentially unquestioned; that is all.

I invite you to suggest to me an unconstrained right, and to trace its history for me to prove its “natural” condition. I will allow you the natural rights to think and to desire; after that, you are subject to constraints.

The privileges you describe definitely exist in Australia. Universal health care is one example, the ability to operate a vehicle on public roads is another example (to my chagrin). These are obviously not rights, and definitely in another class to things like freedom of association, freedom of movement or freedom of conscious.
Governments are clearly not the final authority on what is morally good or when they are violating the rights of its peoples. Rights clearly exist in a value hierarchy above governments. Otherwise you end up with absurdities like the Uyghurs don’t have a right to not be exterminated because that’s not a right “conferred” or “allowed” by the State. (China’s actions make perfect sense from a consequentialist position: China’s national security depends on control of the Xinjiang province from an energy security perspective, as it requires access to the oil producing regions around the Caspian Sea. That doesn’t morally justify China’s actions, nor mean that it is not violating the rights of its people.)
Natural rights have a long history in English Common Law (e.g. Somerset v Stewart), which Australia inherited.

You are quite right that the Uyghers lack rights and that is owing to the relevant government. They think and desire it were different but it will not be until the laws or government change or they succeed in escaping. You have completely confirmed the practical truth of my statements.

Whether you take a consequentialist position or incorporate Kantian dicta (ex the deontology) then it is straightforward to argue that the situation and the behaviours are not in the long term interests of them or the same case for others, so we can judge it morally wrong. That did not alter their current rights.

Noted that you do think people’s health and care for it by society should be seen as a privilege, not a right.

(continued after inadvertent posting)
“freedom of association, freedom of movement or freedom of conscious [sic]”
I allowed you freedom to think and desire. Obviously, the other two are constrained in every society, for the good of that society. Have you really considered the consequences if they were untrammelled?

What is above organisation of the State by the people? For all his failings with regard to kingship (having written 100 years before Ed Gibbon’s comment on power), Thomas Hobbes nailed that question about 400 years ago. If you have the hots for one or more of the thousands of identified gods, you can give away the discussion now; there is none to be had.

You seem to have inferred an absurd position onto me. Why would you think that that I think that rights have never been constrained? My argument is that when governments do so, that is almost always a precursor to great evil. The amount of harm that has been done in the name of the “greater good” is immense. The standard thought experiment is that of a doctor with 5 patients who require organ transplants, and whether that doctor is justified in killing 1 healthy person to save the lives of the 5. You seem to think the doctor is justified, I do not.

Health care requires trained doctors. For it to be considered a right would imply that people must provide labour on behalf of others. Similarly, housing cannot be a right because a house requires labour to construct (which is why the South African constitution is a mess). On the other hand, freedom of association requires no inputs. It is a free choice made by the people involved and just requires no action on behalf of others to exercise. More simply, only negative rights exists, positive rights do not.

Address the point please, TheSilver. I said that freedom of association and freedom of movement, your examples of “natural rights” are both constrained for the good of society (though not by much for the needs are small). Those were society’s decisions. You failed to explain their history and provenance, and what would be the “greater evil” arising? That such decisions do not meet your pet desires?

Your doctors / transplant question (a different presentation of the old trolley problem and less likely to receive affirmation in studies) is here just a context-free hypothetical for a different social order. Failing to provide a wealth of necessary information does not allow you to presume my response.

Some people do, in their own view, provide labour on behalf of others by having opportunity for exploitation constrained. See for example, health care, or consumer law. You think it unimportant. I think it reasonable to take that as an indicator of your values.

I have already declared that rights exist to the extent society, the State, allows them. You have agreed with that reality. Labelling some or others positive or negative makes no difference to the fact. I’ll call some of them a shade of maroon. Does that help?

A direct consequence in argument of negative rights is that the poor should not be prevented from taking from the rich their surplus wealth, for prevention would infringe their negative rights of non-interference. I never took you for such a revolutionary.
Fortunately, constraints are socially determined and not by simplistic blundering around the questions. You have taken abstract discussion of issues and wrapped writ around it. That fails.

As I suggested earlier, this discussion will go no further while you believe in non-existent things. Indeed, the nub is that you do.

You keep inferring bizarre claims onto what I’ve written. I never said that charity was unimportant, just that it can not be compelled. This is also a Kantian point: The act of compulsion destroys virtue. Society cannot decide to use people as means without also as ends. Ultimately, that is what infringement of Natural Rights comes down to.
I consider Natural Rights to be true enough to get the idea across, but they could be derived from evolution and the Piaget view of freely entered games and their importance for wellbeing optimisation.
Locke was obviously more correct than Hobbes (but both are vastly superior to Rousseau).
I also see no point continuing a discussion as you continue to argue in bad faith.

TheSilver wrote: “I never said that charity was unimportant”
I never referred to charity, directly or indirectly, unless you consider non-exploitation a charitable act? Possibly you do. You raised it, then went on a wild run about things not asserted by me.

“… continue to argue in bad faith”
Yes, you just did.

As a hint, what are your moral objectives? When you have those sorted and agreed, then you can examine what rights, laws both common and codified, are optimal toward achieving your and society’s agreed moral objectives. Notice how much these have changed over time, and that new knowledge changes both objectives and optimal rules, albeit we have a decent set of working and constrained principles going.

You still have not even attempted to meet my request for the history and provenance of your “natural” rights let alone that they should be unconstrained. I am not surprised. People who implicitly base their positions on fantasies never do meet that one.

Whilst I support euthanasia, the constant beating about not having the same rights as other Australians is just ridiculous.

The ACT is not a state, our local ACT Government does not have the same powers as a state. Considering their ongoing performance, I think that’s a very good thing to have greater Federal oversight.

But we do have the exact same democratic rights as other Australians, some people just don’t like that those powers are not vested with our local Government but rather remain at a Federal level.

Is it also undemocratic for local council areas to not be able to make laws on these types of issues as well? Or can we accept that we do have different levels of government, with distinctive powers at each level? And it’s not undemocratic in the slightest for this to occur.

There is a flaw in your analogy, chewy. That different levels of government have different powers is not analogous to whether all citizens have access to the same levels of government.

That Federally controlled territories do not and will not have that access is correct, so the argument, as in this case, is over what should properly be [de-]restricted.

Passing / repealing / whatever will not in future prevent repealing / passing / everwhat. Only States can be states, so to speak, so I agree with the gist of your post, just getting picky about the analogy.

Why do you persist with a comparison of the ACT government to local councils?

Can you cite one council where the Federal government has granted them the right to enact legislation? You won’t be able to do so, because control of the local councils is vested in state governments.

Yes there are different levels of government, in fact there are 3 tiers – federal, state/territory and local councils. The first two are empowered, by the consitution or acts of federal parliament, to enact legislation. It just so happens that under the NT and ACT self-government legislation, the feds retain the right to override their legislation.

Many Territorians (NT and ACT) are questioning if that federal override power should still exist. You believe it should (well at least in relation to the ACT because of your own personal bias against them). A lot of Territorians don’t. Some hold the opinion that because Terroritorians only vote for 5 (ACT) and 4 (NT) of the 227 federal MPs who ultimately adjudicate on the legislation of their locally elected Assembly, that it is undemocratic.

Nevertheless, the Territory Rights Bill will only address a specific prohibition applied to the ACT and NT Assemblies – their ability to debate and if passed, enact, legislation on VAD. It will not remove the right of the feds to override legislation enacted by the NT and ACT Assemblies. (As an aside, given the Feds have only exercised that power once (the Andrews Bill), I personally don’t think it’s ongloing existence is an issue.)

So, chewy14, surely, if you support euthenasia than you will support the Territory Rights Bill.

“Why do you persist with a comparison of the ACT government to local councils?”

Because it’s the exact same argument being used in comparing the ACT Government to the states in claiming the current situation is undemocratic. Our government isn’t a state just as much as it isn’t a council.

I’m glad we agree that there are different levels of government that are responsible for different things and have different powers vested to them. That’s my point.

You believe it should (well at least in relation to the ACT because of your own personal bias against them)

You can call it a “personal bias” if you want but I think it’s clearly borne out by the governance structures in place, our size as a territory, the performance to date of our government, our location as the seat of federal parliament and the fact that we voted against self government.

“A lot of Territorians don’t. Some hold the opinion that because Terroritorians only vote for 5 (ACT) and 4 (NT) of the 227 federal MPs who ultimately adjudicate on the legislation of their locally elected Assembly, that it is undemocratic.”

So you agree that we get to vote people to the democratically elected body responsible for these issues in our area? Not sure how you or they think it’s undemocratic then, they just don’t like the outcome that a different democratically elected body is responsible from what they believe should be the case.

“So, chewy14, surely, if you support euthenasia than you will support the Territory Rights Bill.”

I’ll be happy with the outcome because we will locally be allowed to have VAD, which I think is something that, whilst contentious, will lead to better outcomes for terminally ill patients.

Personally however, I would prefer that the Feds were more active in setting more consistent national legislation where they are able to (obviously within their own scope of powers), rather than leaving potentially differing legislation across states.

More consistent national legislation on this and many other issues would be a much better outcome.

It’s about time ACT and NT taxpayers had the same rights as other Australians – especially with regard to matters that affect private and informed choices of individuals and families.

Like abortion, end of life choices are matters for individuals and families, not ministers, governments or any proselyting faith based organisations.

The correct role of ministers and governments is to support private and informed choices of Australian individuals and families. On the other hand, faith based organisations function only as irrelevant guilt laden entities who interfere in public policies that absolutely do not concern them…fortunately, their proselyting is largely ignored by a better informed and more worldly Australian taxpayer.

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