THE RIGHTS OF SELF-DETERMINATION IN AUSTRALIA
LEVELLING THE PLAYING FIELD FOR THE TERRITORIES IN AUSTRALIA A rarely passed Private Member’s Bill - The Restoring Territory Rights Bill – was introduced in the Australian Federal Parliament in 2022 which aims to restore the rights of self-determination to the people and Parliaments of the Australian Capital Territory (ACT) and the Northern Territory (NT). The two Federal Members of Parliament who co-sponsored the Bill explain its impact. For 25 years, Australians living in the two mainland Territories of Australia (Australian Capital Territory and the Northern Territory) have had fewer democratic rights than their neighbours who live in the States (New South Wales, Queensland, South Australia, Tasmania, Victoria, and Western Australia). This is because the Federal Parliament (known in Australia as the ‘Commonwealth Parliament’) passed laws in the 1990s to prohibit the elected Legislative Assemblies of the Northern Territory (NT) and Australian Capital Territory (ACT) from debating and legislating on voluntary assisted dying. It created a two-tier democracy in Australia, where the extent of your democracy was determined by your place of residence. This was possible by virtue of Australia’s Federation, in which the legislative powers of State Parliaments are enshrined in the Australian Constitution, whereas the powers of the Territories are enabled by Federal legislation and can be amended like any other law. While the NT and ACT have Legislatures that govern and make laws for their jurisdictions, the lack of constitutional protection means the Federal Parliament can place limits on their legislative powers whenever it sees fit.
While specifically targeting the Rights of the Terminally Ill Act, Mr Andrews made sure to include in his Bill the same prohibitions on the ACT, Australia’s most progressive jurisdiction. Had the Federal Parliament the constitutional power, we would probably have seen this prohibition extended to the State Parliaments as well. Indeed, one Member of the House of Representatives, Mr Terry Young MP, argued in the recent debate that: “We need to have a good conversation about the Constitution in this country, and we need to change a few things so that the federal government can take its rightful place and lead when it comes to... matters of conscience such as euthanasia... and not hand it to the States.” So, for over twenty years the NT and the ACT remained gagged and bound by this ban, despite many attempts by passionate campaigners and Parliamentarians to right this wrong. And while the Andrews Bill had the primary effect of stripping the Territory Parliaments of the right to legislate on this specific issue, the broader signal it sent to residents of the ACT and NT was clear: your democracy is fallible. Your democratic rights are not the same as those of your neighbours living on the other side of the border. You are second class citizens.
Background The issue of Territory Rights was thrust into the spotlight a quarter of a century ago when the Northern Territory passed the Rights of the Terminally Ill Act 1995, legalising voluntary assisted dying. The Northern Territory was the first jurisdiction to take this step anywhere in the world. In response, the then Federal Member for Menzies, Hon. Kevin Andrews, a conservative member of the Liberal Party, introduced the Euthanasia Laws Bill 1996 which amended the Northern Territory and Australian Capital Territory Self Government Acts. The effect of the amendment was to prohibit the Territories’ ability to legislate on matters relating to voluntary assisted dying. The Bill – which was commonly known as the Andrews Ban, Andrews Law or Andrews Bill – passed the Australian House of Representatives by 88 votes to 35 and the Australian Senate by 38 votes to 33.
Case for Change Since the Andrews Ban came into effect, many jurisdictions around the world have debated and legislated voluntary assisted dying. In 1995, the NT law was not only an Australian first but was world leading. One of the argued justifications for the discriminatory Andrews Law had been to stop the Territories from getting too far ahead of the rest of the country. But the political landscape around voluntary assisted dying laws has shifted significantly in the years since the 1990s. Every Australian state has now voted to introduce voluntary assisted dying laws, meaning the Territories were being left behind – held back by the Andrews Law. The battle to restore Territory rights has been waged ever since the Andrews Law came into effect, with eight attempts over 25 years to repeal the Andrews Law.
Hon. Alicia Payne, MP is the Australian Federal
MP for Canberra since 2019. Her background is in economics and social policy, and previously she worked as a Research Fellow at the National Centre for Social and Economic Modelling (NATSEM), at the Australian Treasury and as a policy adviser to the Federal Labor Party.
236 | The Parliamentarian | 2023: Issue Three | 100 years of publishing
Hon. Luke Gosling, OAM MP is the Australian
Federal MP for Solomon, which covers Darwin and Palmerston. He was elected in 2016, 2019 and 2022. Previously, he was a military officer in the Australian Army, in particular serving in Timor-Leste, then he was an Advisor to the President of Timor-Leste and CEO of the St Vincent de Paul Society.