Several members of the Federal Coalition have some understandable reservations about the Northern Territory’s euthanasia law which comes into effect on Monday. The question is what should they do about it. The law is the first law in Australia and one of the first in the world that permits active euthanasia … that is, where a doctor takes some active step to end a patient’s life, after suitable arrangements for consent and a cooling off period.
Without intervention, the first death under the law could take place on Monday week. Various medical and legal forces in the Northern Territory have begun a court challenge to the law. That challenge will question the power of the Northern Territory legislature to make such a law, and it is the right of any Northern Territory resident to take such an action.
However, the position of federal MPs is slightly different. Liberal backbencher Kevin Andrews asked Prime Minister John Howard whether the Coalition would use the Federal Parliament’s powers to overturn the Northern Territory ACT.
The Federal Parliament clearly has the constitutional power to overturn any Act passed by the legislatures of the Northern Territory or the ACT, or indeed any Act applying to any territory. Section 122 of the Constitution provides: “The Parliament of the Commonwealth may make laws for the government of any territory.” That includes the power to veto existing law. However, it is not just a question of constitutional power. It is also a question of political appropriateness. Mr Howard wisely declined to throw the force of the Liberal Party or the Government behind a move to overturn the law, even though he expressed his personal distaste for the law and that he personally was strongly against it. Once a Federal Government starts to overturn territory laws unless there is some clear national concern, self-government for the territories becomes a farce. Some of those opposed to the law in the Northern Territory have argued it is a national matter because people can come in from other parts of Australia to use the law. That argument is sophistry and clutching at straws. Every state’s laws apply to people from other states who enter its borders. Other Northern Territory opponents of the law do not want federal intervention. They rightly see it as a matter for the Northern Territory.
Mr Howard, however, did not see it as a matter for the Northern Territory, but one that could be vetoed by the Federal Parliament, but on a conscience vote. Mr Andrews promptly announced that he would introduce a private members’ Bill to veto the law. Once again, once private members of the Federal Parliament start vetoing territory laws because of personal predilections, the basis of territory self-government is eroded, unless there is some clear national interest involved.
The national-interest test would fall roughly along the lines of present federal power with respect to the states. Federal law prevails. But in a federation, the national parliament should respect the wishes of the people of states and territories expressed through their parliaments on matters contained within the state or territory borders, in particular things like criminal law and most issues of planning and land use.
The Commonwealth is entitled to refuse to give Medicare funding to euthanasia, however small that gesture may turn out to be, but other than that, euthanasia is a matter for the people of the Northern Territory who representatives have voted for it and who will have to face their electorates before long.