Opinion piece – Canberra Times 21 July 2021

How much unchecked power should 13 people have?

The question needs to be asked in the context of the debate over whether Territories should have the right to legislate on assisted suicide. Because make no mistake – those arguing for the ACT to be able to legislate on assisted suicide are arguing for unchecked power of 13 people to legislate on the taking of a life.

Those making this argument might not make the same arguments when confronted with a government or majority they disagree with.

An example of this occurred when a conservative Northern Territory government passed mandatory sentencing laws– and federal Labor sought to override these laws. Would Labor rule out using such powers in the future if they vehemently disagreed with the decision of a territory?

What if a territory government passed laws that brought back capital punishment? Would it be appropriate for the Commonwealth to overturn those laws?

Former Labor Finance Minister Lindsay Tanner, in making the argument against assisted suicide, certainly thought that Labor wouldn’t hesitate.

Few of the people making the argument that it is undemocratic for the Commonwealth Parliament to prevent 13 representatives from passing laws on assisted suicide would have any issue with the Australian Senate reviewing or blocking legislation passed in the 151 member House of Representatives. Yet both are deliberate features of our constitutional system of checks and balances.

It’s interesting to hear Senator Gallagher argue that a decision of both houses of the Australian parliament in a conscience vote is less democratic than the votes of 13 members of the Legislative Assembly, when she herself is part of a Senate opposition which routinely frustrates the will of a democratically elected government.

Checks and balances exist in a democracy in part to avoid a tyranny of the majority. So what are the constraints on 13 Members of the Assembly legislating as they like? Very few it turns out. Unlike 5 of the 6 states (Queensland being the outlier) there is no upper house to review or reject legislation. The only legislative constraint on the Assembly acting as it pleases is the Commonwealth Parliament exercising its constitutional power. This is a power that is rarely used.

When it was used in the Andrews’ bill it reflected the Commonwealth parliament’s judgment, on a conscience vote, that it did not support making assisted suicide legal.

How much do I trust 13 members of the Labor-Greens government to legislate without constraint on assisted suicide? Not at all. Their record in mismanaging our health system, their virtual invitation of bikie gangs into our city, and now their consideration of extreme laws which would decriminalise violence-inducing drugs such as ice, gives me no confidence at all.

What is inevitable is the fact that a repeal of the Andrews’ bill would result in assisted suicide being legalised in the ACT.

What is likely (based on the record of this Labor-Greens Government) is that we would have the most extreme assisted suicide legislation in the country, and could see the kind of results unfolding in parts of Europe and North America, where assisted suicide goes well beyond late stage terminal illness. In Belgium, it is available to children. In the Netherlands it’s available to children, new-born babies with serious disabilities and people with dementia and mental illness. Canada has also passed legislation to make assisted suicide available to those with mental illness.

Most concerningly, overseas experience demonstrates that the terminally ill feel pressured into assisted suicide so as not to be a burden. In Oregon in 2016 half the people killed under the scheme cited being a burden compared to just a third who cited inadequate pain management as a reason for requesting assisted suicide. So much for choice and autonomy.

The ACT Labor-Greens Government should focus their attention on fixing our mismanaged health system. Or focus on our palliative health system to ensure that those who need end of life care get the best care that is available.

Far from asking for the same rights as the states, the ACT Assembly is asking for more rights than that of 5 of the 6 states in Australia – to be able to legislate without any of the checks and balances imposed on it by a house of review. The reality is that the Commonwealth Parliament is the only legislative check on the Assembly.

When this vote last came to Parliament just a few months before the 2019 election, a majority of the Senate – from the Liberal Party, the Labor Party, the Nationals and One Nation – voted to oppose these laws on a conscience basis. I had only one vote (out of 76) in this process and I exercised it in a way that is consistent with the position I have held during my entire political career. I was heavily criticised for it by my political opponents who used it as part of their rationale to ‘dump Zed’. Despite this massive campaign, I was re-elected, and I will not now turn around and renege on the position which I have always held.