Battle over voluntary euthanasia about to reignite – The Sydney Morning Herald

Momentum is building to legalise voluntary euthanasia in Australia. A state, most likely Victoria, could soon be the first jurisdiction to do so since the Northern Territory in 1995. National intervention scuttled the Northern Territory law, which begs an important question. Would a state euthanasia law also be short lived?

Several nations permit people to end their lives with medical assistance if they are terminally ill and suffering pain or incapacity. The first country to allow this was the Netherlands, with Canada authorising physician-assisted dying last year. New Zealand is expected to vote on the issue after its September 2017 election.

By contrast, state laws in Australia criminalise the practice. For example, the NSW Crimes Act makes a person liable to 10 years' imprisonment for helpingsomeone end their life. No exceptions are made for medical practitioners, although it has become accepted that palliative care that hastens a person's death is permissible where it eases pain and suffering. People may also end their lives by refusing medical intervention or sustenance.

Decades of activism have sought to change these laws. Every state, except Queensland, has seen attempts to introduce medically-assisted dying since 1995. More than 40 bills have been introduced, with 15 put in South Australia alone. That state has come the closest to passing such a law. Last November, its most recent attempt was backed by the state Premier and Opposition Leader, and resulted in a 23-all tie in the lower house of Parliament. The bill was defeated on the casting vote of the Speaker.

The next battlegrounds are NSW and Victoria, with both likely to see bills introduced in August. The NSW bill has cross-party support, but the Victorian proposal is more likely to pass. It is sponsored by Premier Dan Andrews and Health Minister Jill Hennessy, has supporters within government and the opposition, and has been backed by former premiers Steve Bracks and Jeff Kennett.

The passage of a state voluntary euthanasia law will lead church groups and other opponents to call for national intervention. This occurred in response to the 1995 legalisation of voluntary euthanasia in the Northern Territory. A private members bill introduced by Kevin Andrews overrode that measure, and withdrew power from the Northern Territory and ACT to ever pass such a law in the future. Kevin Andrews remains in Parliament, and might lead a second national debate to prevent voluntary euthanasia.

The constitution enables the federal Parliament to override any territory law. Parliament's power is not so clear in the case of a state, with federal interventions often ending up in the High Court.

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Nonetheless, it would seem likely that federal Parliament could overturn a state euthanasia law as the constitution grants it authority over the provision of medical services. Parliament could also use its power over external affairs to legislate for the right to life under the International Covenant on Civil and Political Rights.

The key question is whether Parliament would exercise this power. This would seem very unlikely. One reason is that the Commonwealth has always been more prepared to intervene in territory rather than state affairs. It has done so not only by overturning a euthanasia law, but by vetoing a 2006 attempt by the ACT to recognise and celebrate same-sex civil unions. The federal government also brought a successful High Court challenge to the ACT's recognition of same-sex marriage in 2013.

The Commonwealth has on occasion intervened to overturn a state policy or law. A famous example was the decision of the Hawke government in 1983 to make the Franklin River in Tasmania a World Heritage area to prevent the damming of that system. Such interventions though can come with a high political cost. Labor failed to win a single seat in Tasmania in the 1984 general election.

In this case, the cost of intervention could be felt across Australia. Community attitudes have moved on from when the Commonwealth last overturned a euthanasia law in the 1990s. Polls show that around three-quarters of Australians support the legalisation of physician-assisted dying, with many people feeling strongly about the issue.

The views of our politicians have also shifted. Kevin Andrews' bill secured support from an overwhelming number of parliamentarians, including the prime minister and leader of the opposition. He would not gather such support today given changing opinions on social issues. For example, two decades ago it was hard to find a parliamentarian willing to support same-sex marriage, yet today this could become law if Coalition MPs are given a free vote.

The bottom line is that the federal Parliament could seek to overturn a state law that authorises physician-assisted dying, but is unlikely to do so. This means that the push for a state to legalise euthanasia should result in a law that endures.

George Williams is Dean of Law at the University of New South Wales.

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Battle over voluntary euthanasia about to reignite - The Sydney Morning Herald