13 July 2021

Why isn't the ACT allowed to make our own laws about euthanasia?

| Genevieve Jacobs
Join the conversation
Senator Zed Seselja

Senator Zed Seselja’s decision not to support a territory rights bill has copped plenty of criticism. Photo: File

Comment and controversy continue to rage over Senator Zed Seselja’s decision not to support a private members’ bill being put forward by Northern Territory Senator Sam McMahon.

The senator, who lost her CLP pre-selection to Alice Springs deputy mayor Jacinta Price, wanted to make a parting gesture with a bill that would have allowed the two territories to legislate on voluntary assisted dying.

But what’s the basis for the ban on legislation around euthanasia in the ACT?

The Howard Government stripped both territories of the right under the Euthanasia Laws Act 1997, commonly known as the Andrews bill, after the NT had attempted to legislate on euthanasia.

When that legislation passed in 1997, it also blocked an attempt by the ACT Legislative Assembly to introduce a similar scheme. Several attempts have been made to dismantle the legislation, including the Restoring Territory Rights (Assisted Suicide Legislation) Bill, which spent three years in limbo from 2015 onwards.

In the interim, a number of Australian states have passed legislation concerning voluntary assisted dying, often after prolonged and impassioned debates and via conscience votes in the state houses. However, the ACT cannot move forward.

READ MORE Seselja ‘not keen’ on restoring the Territory’s right to legislate on voluntary assisted dying

Canberra-based constitutional law expert Professor George Williams, the Anthony Mason Professor of Law and Scientia Professor at UNSW, says that there’s nothing other than political will standing between the people of the ACT and their right to make their own laws around voluntary assisted dying.

“Essentially, this is a political call, not a major constitutional matter,” Professor Williams told Region Media.

“The 1997 legislation means the territories have a second-class status within the federation. They are subject to Commonwealth control and override in a way the states are not under Section 122 of the constitution. That allows the federal parent to make whatever laws it wants for the territories, and in the case of euthanasia, that’s what it’s done.”

Professor Williams says changing the legislation around the territories’ right to legislate on euthanasia is a simple matter, describing the McMahon bill as “a sensible and long-overdue piece of legislation”.

He’s dismissive of the argument that the Andrews bill was necessary because the ACT does not have an upper house of review to consider euthanasia legislation, pointing out that Queensland is also a unicameral system.

“Senator Seselja can make a judgement call about both euthanasia but also whether Canberrans should have the same democratic rights as the rest of the country,” he says.

“It makes no sense that you cross into Queanbeyan and people can make their own decisions but not on the Canberra side of the border. Canberrans are not any less capable of governing themselves than every other Australian”.

READ ALSO Zed Seselja is the worst and that’s great

Recently, ACT Labor and Greens politicians, and Opposition Leader Elizabeth Lee on behalf of the Canberra Liberals, signed a letter to all Australian MPs and Senators alerting them to the Legislative Assembly’s unanimous motion calling for their right to legislate on voluntary assisted dying to be restored.

“I have made the views of the Canberra Liberals Legislative Assembly team very clear to Senator Seselja and will continue to discuss this matter with him and other federal colleagues.

“The ACT Legislative Assembly is democratically elected by the people of Canberra. It should have the right to legislate on this matter on behalf of Canberrans, just as we have the right to legislate on a whole host of other matters dealt with by state and local governments across Australia,” Canberra Liberals leader Elizabeth Lee said.

Professor Williams believes it’s inevitable that the Territory will be given the power to make its own decisions because the arguments for its democratic rights are so strong.

“We are not at that point just yet because it’s unlikely without the support of the ACT’s own senator. But the arguments for giving Canberrans the right to make top their own minds are irresistible”.

Join the conversation

All Comments
  • All Comments
  • Website Comments

I think the regular contributors of comments on this site are very important people who are improving the lives of fellow Canberrans immensely. Without your keyboards we would be lost!

How about instead of whinging, people make the argument that our legislative systems are robust and that we should have the rights of a state because of………

The problem is that we aren’t a state and we don’t have the rights of a state for very good reasons. The whole point in the Feds being in charge of our laws in these types of areas is to prevent unchecked legislation in a small territory that is not in line with the wider Australian viewpoint.

Looking at the long term performance of self government in the ACT, it’s hard not to think Federal oversight is a good thing, whether you agree with this particular issue or not.

Capital Retro8:29 am 14 Jul 21

Especially the last 20 years.

Chewy14, it’s a shame you don’t do a bit of research before you start typing. Like the ACT Assembly, the Queensland parliament is also unicameral and the Feds cannot prevent “unchecked” legislation there. As for size? The state of Tasmania is also a “small” jurisdiction, having a population not much larger than the ACT – again the Feds cannot override their Legislation. Then, you suggest that the Feds having oversight over the ACT government is a good thing. OK – so other than overturning (through the Governor General) the Civil Union Act and voting down a Senate motion to allow the ACT and NT to legislate on euthanasia, in what ways have the Feds prevented “ prevent unchecked legislation” in the ACT – unless you ate happy with everything else that successive ACT governments have done. Finally you advocate the Feds intervening where legislation “is not in line with the wider Australian viewpoint”. So why are you against the ACT being able to legislate on VAD when every main stream poll shows a majority of Australians are in favour of some form of VAD – and legislation enabling it has passed in three states?

Yes, the past 20 years have seen some pretty ordinary policies/legislation in the ACT, but isn’t that up to the citizens of the ACT to redress this at the ACT election?

“The problem is that we aren’t a state and we don’t have the rights of a state for very good reasons. The whole point in the Feds being in charge of our laws in these types of areas is to prevent unchecked legislation in a small territory that is not in line with the wider Australian viewpoint”

What precisely are those ‘very good reasons’ Chewy?

Why are the ~430,000 residents of the ACT (and indeed 250K in the NT) somehow inferior to those that live in other states, on the basis of geography alone? Because that’s exactly what the Commonwealth maintaining reserve powers in particular areas explicitly implies – that those elected to represent the community in those locations are somehow inferior to those elected in other jurisdictions, and thus can’t be trusted to make laws that reflect their electorate. I’m not arguing that our local politicians don’t leave a lot to be desired – but I think that argument could be applied to pretty much all State/Territory Governments at different points in times.

There may have been reasonable justification for such arrangements decades ago, but I don’t see any strong justification now. ‘Territory’ once had a genuine meaning in regards to the NT and the ACT – now I’m not so sure it really applies in the same way.

And its a shame you dont actually read my comments because you’ve made up a little pretty strawman in your rant there that doesn’t address my points.

Firstly, can’t see where I’ve mentioned QLD or Tasmania anywhere, nor suggested they have robust systems of governance.

In fact, if you did ask my opinion, I would say that there are problems with both. However, both being States, they have particular rights and powers conveyed upon them through Federation and the Consitution.

However, just because your neighbour jumps off a cliff, doesn’t mean you have to also.

You don’t fix previous mistakes by making more mistakes. Your argument needs to be a positive one as to why the ACT should have more rights than it currently does, rather than pointing out the flaws of other jurisdictions because I agree, they are flawed. But that isn’t the topic.

And my opinion is not related to single issues like yours seems to be, I think having Federal oversight is an inherently good thing because of the issues with the structure and format of the ACT government, electorates and elections.

The fact needs to be recognised that we are a small Territory where the seat of government is, so our status is better seen through a wider, national prism.

My opinion is that the performance of the ACT governments since self government has shown that it’s a good thing they don’t have the power of a state as they’ve consistently shown themselves to be inept. Theres a reason why self government wasn’t wanted and it seems to have been borne out over the last few decades.

As for what you think Australians believe, thats why we have elections. Make it a major national issue and get the law changed.

As I’ve explained to Grumpymark repeatedly, we don’t have different rights, we have different levels of government, where the appropriate level of democratically elected government has legislated on this specific issue.

Brisbane city council has 1.2 million people. Should they get to legislate on state level issues as well?

If you actually asked me what my ideal for overall government structure in Australia is, it would be 2 levels of government with larger council levels to cover all municipal and council level services and then a Federal level with the removal of the States entirely.

As we’ve seen through COVID, the existence of the State governments has caused significant levels of division through the country that leads to large problems in the delivery of efficient government and services to the entire country.

Finally I get it chewy14 – you don’t like self-government in the ACT, so everyone has to accept that and not hope for change which would allow the ACT to be able to legislate on matters without intervention from the Feds.
OK – but the Feds have only intervened once in the past … and that was to have the GG withhold royal assent on the Civil Unions Act. So how is “Federal oversight” working for you on a broad level then?

On the matter of levels of government, chewy14, I agree wholeheartedly that we only need 2 levels of government and would happily vote for a referendum to dissolve state governments. However, as I’m sure you would be aware, the chances of such a referendum passing in the foreseeable future are next to nil (given it would have to be initiated by the Feds and it’s not on their agenda.

The Federal oversight is working fine in my opinion, even though I disagree personally with the recent issues it was used on. It provides a good check to the wider Australian sentiment on issues, against the often reckless nature of our local government, who don’t properly consider issues or consequences.

You’ll note how we now have Same Sex marriages across the country correct?

Yes we do have same sex marriage, which came about because the Feds passed a law revising the definition of “marriage”. Prior to that the Feds overrode the ACT Assembly’s Civil Union (same sex marriage wearing a different coat) act – which did not mention the word “marriage” and as such was able to be passed. It was only the failure of the GG (at the insistence of the Feds) to give the bill royal assent that prevented it from becoming law. So I fail to see the relevance of your comment at all. But, yes I do note we have Same Sex marriages across the country.
Just as I note, despite the Feds having done nothing, we now have VAD legislation passed into law in 4 states. So you obviously agree, if the Feds removed the impediment to the ACT legislation (i.e. repealing The Andrews Bill and removing S27 (1A) of the ACT self govt act), that it would be OK for the the ACT to pass VAD legislation, as such legislation would not be reckless, but rather in step with “ the wider Australian sentiment” on the issue.
Oh and I’m pleased that you are happy with the thousands of pieces of legislation enacted by the ACT Assembly since the introduction of self government, which the Feds in their oversight role have not touched.

I think the local government’s foray into same sex marriage was clunky and outside their remit. It was good that there was oversight because it didn’t belong at the ACT government level.

My point was that just like we ended up with same sex marriage, we will end up with VAD at a later point in time. Attacking Zed over the issue is really silly considering it is an issue for the entire Federal parliament.

“Oh and I’m pleased that you are happy with the thousands of pieces of legislation enacted by the ACT Assembly since the introduction of self government, which the Feds in their oversight role have not touched.”

Nope, never said that. As above, I think the ACT government has shown itself to be woefully inept. I would prefer they had far less power than they currently do so they could focus on core service delivery to the ACT rather than constantly trying to believe they have a seat at the UN working on issues well outside of their sphere.

I get that you have an issue with the performance of the ACT government (who doesn’t?). However, while you can refuse to accept that the power to pass legislation (e.g. the 2006 Civil Union bill) belongs at the ACT government level, the reality is that the ACT Assembly did have the power to enact such legislation. Instead of challenging the new 2006 ACT law in the High Court (where disputes on legislative powers are adjudicated) the Feds had the GG annul the law. Even in 2013, when the Commonwealth of Australia challenged the Same Sex Marriage law passed by the ACT Assembly, the High Court found in favour of the Commonwealth because the law was “inconsistent with Commonwealth legislation and therefore was invalid” – supporting your “clunky” assertion. There was no challenge to the ACT’s authority to enact such legislation by the Commonwealth, because it was “within their (ACT’a) remit”. You’ll get no argument from me that this is not the only clunky legislation enacted by the ACT Assembly, but under the Australian Capital Territory (Self-Government) Act 1988 (Cwlth) the ACT Assembly is certainly empowered to pass such legislation. Disagreeing with them having the legislative power is your right, but denying they have “the remit” is simply avoiding the reality. However, as I’ve said previously, under the Self-Government Act, the ACT is expressly prohibited from enacting legislation relating to VAD. Which is why I am critical of Senator Seselja voting against legislation which would allow the territories to enact such legislation.

Further to the above, whether you like it or not, the passing of the Leyonhjelm bill by the Feds, would have empowered the ACT Assembly to consider VAD legislation. The fact that you would prefer the Assembly to have less power, is your prerogative but, like ACT Citizen Seselja, you have one vote to determine the makeup of the Assembly, not its power to enact legislation.
Now as a Senator for the ACT, Senator Seselja had the opportunity to allow those democratically elected by the ACT citizens to the Assembly, to consider legislation on a matter which directly affects them. For the record, the Leyonhjelm motion was defeated 36 all – motions require a majority to pass. Had Senator Seselja voted in favour, the motion would have passed. So, while you don’t believe the ACT Assembly should be able to consider such legislation, the fact is that passing of that motion would have moved them a step closer to being able to so. I should add, that had the motion passed the Senate, it’s unlikely that it would have then passed the House of Representatives. However, the fact that it had passed one Federal chamber would have brought the ACT one step closer to the inevitable passage of such ACT legislation.

Its all fine that you don’t like 3 levels of government and whatever else – that is your opinion.

But that doesn’t overide the fundamental point – we do have different rights to other citizens in other jurisdictions.

The very fact self-government was given to the ACT meant that the power to make laws was given for state level matters – if it was solely a local council level government as your false equivalence suggests, then it would not have that right. The fact the ACT/NT laws can be overturned in certain circumstances by the Commonwealth, whereas for other states the Commmonwealth holds zero such ability on exactly the same matters means by definition means our rights as citizens are different. There is no denying that fact.

And you can whine all you want about the State Governments and COVID, but the donkeys on the hill have hardly covered themselves in glory either…. be careful what you wish for if you think they’ll suddenly show capability to organise anything beyond a Maccas run.

limestonecowboy12:08 am 16 Jul 21

Grumpy Mark
Please stop trying to convince chewy 14 is wrong….all these facts will just confuse him…..more than he already is!

Except that’s wrong, our government wasn’t give “state level powers”, as this issue clearly shows, the Federal government retains control.

As your false equivalence shows, if we had state level powers, this wouldn’t be an issue.

Our government has been given powers in between those levels, with both some state and local government control.

So, there is no difference in democratic rights, just different levels of government with a different split of powers.

Which is the whole point. You and Grumpymark, wish our government had full state powers, I do not.

I’ve asked repeatedly now for someone to provide positive argument as to why our government should have those powers, how the governance structures are robust, how our processes are mature, outcomes are good etc. etc.

Yet none has been forthcoming. Only complaints about “rights”, which I’ve answered and responded to that I disagree because of the reasons above.

As for your comment around the Federal government’s performance through COVID, whilst not perfect, they have clearly been hamstrung by the current governance arrangements, which has lead to poorer outcomes for the nation.

If you consider this issue beyond single issues, current events or partisan politics, no matter who was in charge, a two level system of government would be superior.

Unfortunately, you have once again misrepresented the facts. I have never argued for the ACT to be given state powers. What I have done is drawn similarities between the state powers (conferred under the constitution) and ACT powers (conferred under the self-government act) – specifically on the matter of the power of both jurisdictions to enact VAD legislation. Just for one moment, put aside your prejudices against ACT self government and acknowledge that the only LEGAL impediments to the ACT Assembly being able to enact VAD legislation are S23(1A) of Australian Capital Territory (Self?Government) Act 1988 (please read it – https://www.legislation.gov.au/Details/C2016C00802) and the Euthanasia Laws Bill 1996 (“The Andrews Bill”). Why do you think the Feds included S23 (1A) into the ACT’s self-government legislation if they did not believe it would give the ACT the POWER to enact such legislation. So that’s what I’d like to see – removal of the impediments to the people elected to represent the citizens of the ACT to consider, debate and vote on legislation relating to VAD – nothing more, nothing less. Once such debate and voting on the legislation has taken place, if it is passed, the Feds still have the power to vote (by a majority in both chambers) to override said legislation – but that’s a debate for if/when that happens. I just want to get to first base – have the Assembly be able to consider VAD

If you don’t believe the ACT should have state powers, why do you think it’s undemocratic when you can freely petition the responsible level of government to remove the roadblocks for the law to be changed.

I have no problem with anyone lobbying the Federal government to change the laws, it’s the claims that our rights are being infringed on that’s the issue.

And I’ve read the legislation, there’s nothing new there. You ask what the specific provisions are for and the answer is simple:

Why does a parent put training wheels on a child’s bicycle? Why do we allow young people to have learner driver permits?

So they can safely gain experience whilst under the watchful eye of a responsible adult.

Although I must say I have no problem with the last part of your statements Grumpymark, that is a reasonable position to have for a process to see the change made. It would be perfectly democratic to see it occur, when and if the Federal government (whoever it is) believes it’s appropriate.

Seriously, chewy14, are you now trying to convince me that the idiots in the Federal parliament are more responsible than the idiots in the ACT Assembly?
Wow – you really need to come to terms with the fact that self-government in the ACT is here to stay, or at least have that chip on your shoulder surgically removed.
At least you’ve stopped denying that the ACT Assembly could, if the roadblocks are removed, legislate on VAD.
Now, if only we could convince Senator Seselja to do his job, as a Senator for the (whole of the) ACT, and contribute to the removal of those roadblocks, it would truly demonstrate representational democracy in action.

I’ve never denied that the ACT “could” legislate on the issue if allowed.

And once again, you mistake my position. It is not related to any form of partisan politics. It wouldn’t matter to me who was in charge of the Federal government, or indeed who was in charge locally.

Why I’m readying is some think the ACT government is a council (3rd tier) when in fact it is both a 3rd and 2nd tier government. As such it should have all the rights that other 2nd tier, read state governments have. There is no reason why there still needs to be any federal oversight here and not on states.

The euthanasia ban was fully supported by Kim Beazley and the ALP.

Capital Retro8:30 am 14 Jul 21

Most of the Facebook hate squad on this thread wouldn’t know who Kim Beazley is (was).

Yes franky22, and more recently the Gillard government rejected the opportunity to enact same-sex marriage – but with the support of the Labor party, we now have it. In 1995, John Howard stated that “ There’s no way a GST will ever be part of our policy. Never ever. It’s dead.” – yet he introduced the GST in 2000. So exactly what is your point? Is it that once a position is stated, it can never be revised?

Yeh cause nothing ever changes in 25 years does it?

Because Zed and his group of religious zealots believe that their views are more important than the constituents in the ACT who elected him.

Holding your respective organisations to greater and more rigorous account for systematic child sexual abuse would be a far more constructive pursuit.

Keep your beliefs but stay out of my life!

Stephen Saunders5:38 pm 13 Jul 21

Reminder of how petty and nasty Howard was, how he delighted in imposing his private religious views on Australia at large.

Having said that, it is inconceivable that he could have botched COVID to the same extent as his acolyte Morrison.

Capital Retro9:51 pm 13 Jul 21

Australia has always been recognized as a Christian democracy.

Obviously you would prefer us to be something like an Islamic caliphate where private religious views are forbidden.

Actually CapitalRetro, you are wrong – while many (perhaps even the majority of) Australians choose to identify as Christians, Australia is not a Christian democracy, in fact separation of church and state is a corner stone of our democracy. And where did the Islamic caliphate come from? (For the record no nation has been ruled by a caliph for several centuries – but I digress). I believe the poster is expressing his ongoing belief in the separation of church and state and for you to infer anything else is drawing a very nasty long bow.

Christian democracy? Really?

One of the cornerstones of our democracy is that we are secular.

This is even one of the questions in the citizenship test.

While there are obviously many voters whose views do align with Zed’s, it is very sad how many vote for him just because he is a Liberal, even though his views go against theirs.

I was forced to vote for Zed at the last election because candidate after candidate who stood for the Senate in the ACT said that they supported climate change and action on climate change. Zed and the one nation candidates were the only ones who didn’t so I held my nose and voted for them.

Peter Graves9:41 am 13 Jul 21

What appears not to have drawn comment is that NT Senator Sam McMahon is also the Chair of the federal Parliament’s Joint Standing Committee on the National Capital and External Territories.

That means she also has a personal role in delivering national responsibilities for the ACT and its welfare. By acting on Senator Seselja’s personal views – ONLY – she has abrogated her professional responsibilities for the ACT.

As has Senator Seselja. Quite a remarkable feat – his also going against the welcome policy of the ACT Liberals.

Capital Retro9:59 am 13 Jul 21

The anti-Zed pile-on has now been extended.

Happy to keep extending it until he goes.

CapitalRetro. While I acknowledge that a lot of people on here have expressed a dislike for Senator, expressing dissatisfaction with the action Senator Seselja takes against the ACT, does not make people anti-Zed. I respect his right to have his religious views. What I don’t respect is when, as Senator for the ACT, he doesn’t support the wishes of the majority of people he represents and I think that’s the point Peter Graves has made.

Daily Digest

Want the best Canberra news delivered daily? Every day we package the most popular Riotact stories and send them straight to your inbox. Sign-up now for trusted local news that will never be behind a paywall.

By submitting your email address you are agreeing to Region Group's terms and conditions and privacy policy.