Euthanasia laws and the powers of the territories

High profile constitutional law academic George Williams argues in today’s SMH that  the federal laws prohibiting self-governing Commonwealth territories (NT, ACT and Norfolk Island) from legalising voluntary euthanasia should be repealed.

As a Territorian and public law academic you’d expect me to agree, and indeed I do.  However I vehemently disagree with Williams’ principal rationale for this proposition:

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.

Why?  A territory is not a state and section 122 of the Constitution gives the Commonwealth almost unrestricted power to legislate for Commonwealth territories, including by granting them self-government on whatever terms the Commonwealth chooses, and by amending or even completely removing any grant of self-government.  Thus there is no doubt the Commonwealth has constitutionally conferred legislative power to restrict or remove the Territories’ power to legislate in any area including euthanasia.

Williams is instead arguing that some general political principle of democratic fairness should be regarded as making it illegitimate for the Commonwealth to treat territory legislatures differently from states.  But why?  It’s just a bald assertion.

And why should subsequent removal or restriction of a legislative power initially granted to a territory “call into question the good faith of the Commonwealth”?  Surely the very nature of a territory is such that the Commonwealth may form the view that it appears to have reached a stage of political, economic and social maturity which justifies a grant of self-government on such terms as the Commonwealth sees fit.  But it remains a Commonwealth territory and the Commonwealth retains its overriding legislative power under section 122.  It cannot be regarded as politically illegitimate per se if, as a result of a self-governing territory’s performance, the Commonwealth judges that it isn’t quite as mature as was hoped and forms the view that some additional restrictions on a territory parliament’s powers are needed at this stage of its development.  Surely something more is needed to allow a conclusion that the Commonwealth’s action against a territory is politically illegitimate.

I would argue that the key consideration is whether there is a sufficient national interest element to justify Commonwealth intervention in a self-governing territory to restrict its parliament’s powers.  For example, the Northern Territory’s constitutional powers were restricted from the outset on self-government by denying NT Ministers any executive authority over aboriginal land rights or uranium mining (section 35 of the Northern Territory (Self-Government) Act 1978 and Regulation 4 of the Northern Territory (Self-Government) Regulations).

In both cases one can see that there is a clear if contestable national interest element in the Commonwealth’s decision to restrict the new NT government’s powers in these two areas.  Uranium is very much a strategic mineral in both military security and economic terms and the NT was known to contain lots of it.  On aboriginal land rights, the dominant CLP political party at the time was well known to be deeply hostile to the entire concept so it was hardly unreasonable for the Commonwealth to restrict its powers in that area.  Indeed only a few years later an Aboriginal Land Commissioner and Federal Court judge accurately though unwisely observed:

[The NT government] has pretensions to be a government for all the people in the Northern Territory, to be about the business of building a new society, yet its actions consistently betray an underlying hostility to the basic principle of land rights for a dispossessed people. It does nothing to acknowledge the moral strength of any of their claims. It is this head in a hole in the ground attitude which continues to divide the community and which accounts for the absence of policies directed towards accommodating the special needs and aspirations of Aboriginal Territorians.

His Honour was held by a Full Bench of the Federal Court to have breached the bias rule in making that and other remarks, but no-one seriously suggested that they weren’t true.

More recently the Commonwealth legislated to enable it to take control of NT Indigenous communities as part of the Intervention following the revelations of the Little Children Are Sacred report.  One can certainly argue about the wisdom of some of the specific Intervention initiatives but you’d be hard pressed to make the case that the Commonwealth simply shouldn’t have intervened at all unless it was willing and able to enact that legislation for Australia as a whole.  Still less can one make a compelling case that the Commonwealth should under no circumstances intervene again now given the ongoing crisis in child protection in the NT (see last night’s graphic Four Corners program), unless it is willing and able to implement the same intervention in every State!  Apart from anything else the Commonwealth lacks the constitutional power to do so.

The problem with the Commonwealth’s legislation withdrawing territory powers over euthanasia, at least in my view,  was that it lacked any plausible national interest element.  The same was true of the Commonwealth’s overriding of the ACT’s gay marriage law in 2006.  Both are laws which predominantly affect only the local population of the Territory concerned.  The fact that some federal MPs harboured deep personal moral or religious objections to these laws is not sufficient to create a genuine national interest component.

The other reason why I take issue with Williams’ reasoning is a more general one, and slightly more constitutionally based.  While the 6 original States had effectively identical legislative powers granted to them by the UK Parliament at various dates in the 19th century, and the Commonwealth lacks any power to alter the existing States’ constitutional powers, the same is not true for any new states that may be established.  Section 121 expressly allows the Commonwealth Parliament to establish new states and to “make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit”.

Thus not only can the Commonwealth treat territories in a different way than states, it can treat new states differently from existing ones and from each other.  Moreover, that degree of flexibility and the experimentation it facilitates is frequently argued to be one of the great advantages of federalism.  As another constitutional lawyer Geoffrey de Q Walker argues:

Federalism allows and encourages experimentation in political, social and economic matters. It is more conducive to rational progress because it enables the results of different approaches to be compared easily. The results of experience in one’s own country are also less easily ignored than evidence from foreign lands. All this is particularly important in times of rapid social change. As Karl Mannheim pointed out, ‘every major phase of social change constitutes a choice between alternatives’, and there is no way a legislator can be certain in advance which policy will work best.

Given ongoing debate about the appropriateness of the current constitutionally entrenched division of powers between Commonwealth and States,  there may be considerable benefits in creating new states with a different division of powers to see how a different form of federalism evolves in practice.  Many observers (including George Williams) argue that aspects of the current division of powers are inappropriate to modern times e.g. deficiencies in the Commonwealth’s power to legislate for the Murray-Darling river system.

Another example is that it might be desirable to create a new state with some form of elected governor, again to assess how that works in practice in the Australian system before we embark on another national republican referendum.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Gavin R. Putland
11 years ago

A law purporting to criminalize a particular behaviour is null and void if juries are not willing to convict people for that behaviour. Whatever the law says, whatever the judge says, and whatever the facts are, if the jury returns to the courtroom and says “Not guilty,” that is the end of the matter, and no further action can be taken against the defendant or the jurors. If a minority of jurors cannot persuade the others to acquit, they can still force a mistrial, and the expectation of repeated mistrials will force the prosecution to give up.

(It is precisely in order to facilitate such action that the law gives us the right to be judged by our peers. Why else would the law entrust the verdict to a bunch of ordinary citizens untrained in making findings of fact?)

Therefore, if the legalization of a particular behaviour has wide public support but insufficient support from politicians, those who support the legalization of that behaviour would be well advised to educate prospective jurors — i.e. the people at large — on their power to nullify laws.

Some people will say that the frustration of duly enacted laws by unelected jurors is contrary to democracy. Balderdash.

For one thing, the people don’t get to vote on specific laws unless they become jurors. As mere electors they only get to vote for candidates, each of whom comes with a package of views and loyalties which may not even be known at the time of the election.

For another, in every democratic organization, from the smallest club to the greatest nation-state, it is accepted that a more extreme decision requires a stronger mandate; for example, changing the constitution of the club probably requires more than an ordinary motion. And in a State that claims to be free, there are few decisions more extreme than to enact a law whereby persons who commit certain acts shall lose their freedom. If such a law, in order to be enforced in a particular case, must be approved not only by the legislature and the executive but also by whichever twelve citizens make up the jury, then that is just another example of a more extreme decision requiring a stronger mandate.

N.B.: I make the above remarks, not as a supporter of legalizing anything in particular, but as a supporter of jury nullification in principle. However, as a matter of interest, I am on record as supporting jury nullification for the purposes of upholding the presumption of innocence against legislation purporting to reverse the onus of proof.

Gavin R. Putland
11 years ago

P.S.: I also support jury nullification for the purpose of protecting whistleblowers. But if a newspaper runs a story on a whistleblower who has been prosecuting for revealing information to that paper, and if you write a letter to that paper suggesting that the media should promote awareness of jury nullification as a means of protecting their sources, the letter won’t be published.


George Williams
George Williams
11 years ago

Thanks for your robust and thoughtful response to my article. This is certainly a debate worth having.

The Commonwealth of course does have the constitutional powers to intervene. My only point is that just because it has the powers does not make it wise or sensible to exercise it in this way. I’m particularly concerned about removing power over a whole topic because that not only has the effect of nullifying the law in question, but also all other laws on that topic whatever they might say. It’s one thing to deal with a specific law on the books, it’s another to remove lawmaking power in this general way.

I think also that the Commonwealth has acted in a way that prevent an important convention from emerging that powers of this kind are not generally to be exercised. These conventions arise in the normal course when a jurisdiction is granted self-government, and even though a parental jurisdiction may well retain an oversight authority, this is commonly not exercised.

There is a similar power in section 59 of the federal Constitution that allows the Queen to annul within one year any law passed by Australia’s federal parliament. Fortunately, British Monarchs and their instructing British governments have had the sense never to use the power, and even though it still remains in the Constitution it has long since become obsolete.

James Farrell
James Farrell
11 years ago

I think most of us would want the Commonwealth to interevene in cases where basic morality or human rights were at stake — for example if the NT Assembly legislated to lower the age of consent to ten, for example, or to give police power to use torture when interviewing suspects.

There are two points to make about this.

The first is that these cases don’t seem to have anything to do with national interest either, except through their affect on Australia’s international standing.

Th second is that, given that the Commonwealth would be powerless in many cases to quash morally unconscionable legislation had that legislation been passed by a State parliament, it makes sense to describe quashing it in the case of territory as ‘opportunisitic’ — but there’s nothing wrong with that.

I would have thought that the point about voluntary euthansia laws is that they can’t reasonably be placed in that fundamentally morally impermissable category, except on religious grounds, and therefore ought to be left to Territorians to decide for themselves.