The Andrews' Bill 20 years on - problems remain the same

By Paul Russell:

Next month will mark the twentieth anniversary of the introduction into the Australian Federal Parliament of the Euthanasia Laws Bill 1996. Introduced on the 9th of September 1996 by the Member for Menzies, Kevin Andrews MP, the bill was designed to remove from the Australian Self-Governing Territories the ability to pass legislation relating to euthanasia and assisted suicide:

"...the power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws which permit or have the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which includes mercy killing) or the assisting of a person to terminate his or her life."

The focus at that time was to effectively nullify the earlier passage of The Rights of the Terminally Ill Act (ROTTI) 1995 by the single-chamber Parliament of the Northern Territory. That Act commenced operation on 1 July 1996. Four people died under the provisions of the Act before it ceased operation.

ROTTI had earlier been unsuccessfully challenged in the NT Supreme Court and by an amendment bill and a repeal bill in the NT Assembly.

Following an extensive debate The Euthanasia Laws Act 1997 was passed by both houses on the 25 March 1997. It became the first and only legislative measure anywhere in the world to completely overturn existing euthanasia and assisted suicide legislation.

Over the ensuing decades the care of people with life-limiting illnesses has improved dramatically. In 2016, that people should experience significant pain as they approach death is more likely to be about some lack of services or lack of medical training than it is about the ability of palliative care to deliver such outcomes. And yet the argument persists.

And while the argument persists, those that argue for a change in the law cover their arguments with different euphemisms, different catch phrases to try to keep the debate fresh and to mute objection. The objections, however, remain very much the same.

These objections were put exceptionally well by MPs who supported Andrew's initiative, perhaps none better that by the Member for the seat of Melbourne, The Hon Lindsay Tanner MP.

Tanner came to politics through university student movements and into the Australian Labor Party's Victorian faction known as the Socialist Left or simply 'SL'. That Tanner, a self-identified and career-long progressive-thinking politician should oppose euthanasia and assisted suicide once again highlights the reality that opposition to legislative change is not characterised by a 'left-right' divide any more than it can be said to be a division along religious lines, as Tanner himself notes.

The following excerpts are from his speech supporting the 'Andrews' Bill' given in the House of Representatives on the 28 October 1996 (headings have been added):

On the question of autonomy:

"But there is a very different question at stake here; that is, not whether in some individual circumstances there is something morally wrong, but whether the state should legalise and indeed can safely legalise such practices. This debate should not be about one or two individual experiences, not about our own experiences, but about the broader social question. Just as the question of capital punishment cannot be determined by one or two murders, by one or two gross and appalling examples of killing, neither should our view on euthanasia be determined by our own experiences of one or two personal tragedies. We must look beyond those experiences to the broader view of the interests of society at large and the interests of the individuals who make up society."

On Church v State:

"It has been argued that this bill put forward by the member for Menzies (Mr Andrews) is about the separation between church and state. I would disagree with that analysis. I think it is also worth noting that just because the churches take a particular view does not therefore make it wrong. Most of us would probably agree with the churches on a few fundamental issues like murder, rape, assault and so forth. So whether the churches take a position is really neither here nor there.

"To me this is an issue about the relationship between state and citizen—not between church and state."

On the lack of safety:

"I am troubled by euthanasia because I think it is virtually impossible to draw safe boundaries, because I think it is virtually impossible to prevent abuses and mistakes and because I think it is virtually impossible to justify offering the option of assisted suicide to one category of people when you deny it to others. That is a necessary implication of the Northern Territory legislation."

Euthanasia as a misuse of power:

"I regard individual freedom in our society as essentially very fragile, as very vulnerable to misuse of state and bureaucratic power. Intrinsically, the state assuming the right to sanction killing of a citizen, for whatever reason, troubles me a great deal. Even with apparent consent, it worries me. I refer those in my part of the political spectrum, most of whom have a different point of view from me, to debates that have occurred on issues like the Australia Card (1), where the same sorts of concerns about fears of misuse—obviously not on the same life or death scale, but fundamentally the same framework—occurred. Others laughed and said, `You are paranoid, it is excessive,' and the like, but many on the Left had the same sorts of concerns there."

On vulnerability:

"I am very conscious of human fallibility, very conscious of the fact that euthanasia inevitably focuses on the most vulnerable members of our community. For those who think that `voluntary' amounts to an unimpeachable protection, I ask them to look at one or two examples where capital punishment has been meted out to people who have actually confessed to crimes they did not commit. The case of Timothy Evans(2) in Britain in the early 1950s is a very good example of how, in certain circumstances, the protection of a person having to ask to be killed may not quite be as strong as you think. It is very notable that the parliamentary inquiries that have examined these issues have very much focused on these concerns as a basis for rejecting euthanasia."

On the logic of 'incremental extension':

"I am also concerned at the nature of the boundary. Why is it that it is only the terminally ill? Why shouldn't it also be the severely disabled? For example, why shouldn't somebody who has been rendered quadriplegic have the opportunity to opt for assisted suicide? Why not somebody with an incurable mental illness that perhaps makes their life as unbearable or as difficult as a terminal physical illness makes life for the sort of people who are supposedly the subject of this legislation? Why not children who are terminally ill? Why shouldn't they have their guardian make the decision on their behalf, as we do, in so many circumstances in our society, allow an adult to make a decision on behalf of a child?

"Once this principle is established, it becomes very hard to draw lines. If you look at the detail of the legislation, for example, you will see that it is possible for somebody with a condition as relatively uncomplicated in modern terms as diabetes, if they refuse treatment, to then have that as a basis for achieving assisted suicide. I am not suggesting that that will necessarily happen, but I am using it as an illustration of how difficult it is to draw boundaries around these things which are safe."

On suicide prevention:

"Why is it that, on one hand, we put so much effort and concern into telling some people, `Don't kill yourself,' and we have so much concern now about youth suicide, yet on the other hand we are now shifting into a pattern where we are going to help certain other people, in effect, to commit suicide? There is an inherent subjectivity in all of this, and that is about the quality of life for people. It involves a subjective judgment which says that certain people in certain circumstances of a particular nature inherently have a lesser quality of life and therefore we are going to permit assisted suicide for those people, but not for other people."

The subjective nature of any law:

"If you look through the list of criteria in Marshall Perron's little flow chart which he sent around, you will see things which, when you read them carefully, are inherently subjective. `Have the implications been con sidered by the patient? Has the proper information been provided by the medical practitioner?' Any decision to opt for assisted suicide cannot be taken in isolation from the current mental state of the person, the quality of the care they are receiving, the attitudes of the carers, the attitudes of the family and friends whom they are with every day and, ultimately, the financial imperatives in the health system.

"It is impossible, in my view, to guarantee a genuinely pure decision to die based purely on the factors that are beyond human control, namely, the terminal illness. It will be inevitable that other factors which are within human control may impinge on such a decision. The emphasis on palliative care in our health system may be subtly altered as a result of the distorting signal that support for euthanasia sends through. Individuals may succumb to subtle pressure, or even imagined pressure, to do the right thing by relatives or even the system."

On subtle pressure:

"It is interesting that throughout this whole debate nobody has actually asked the question: what about the terminally ill who don't want to die? What impact does this have on those people who say, `No, I want to live, I want to hang in there and I want every bit of assistance I can have'? The message that this sends to those people is: you are downgraded in some way; you are devalued.

"We could even see situations where changes in health funding, changes to Medicare, could insert a substantial financial part into this equation which currently is not there. That is a big worry, in my view. If people ultimately are faced with choices such as, `Do I have to spend my children's inheritance to maintain my care?' then all of a sudden you have got a real problem with an equation that has got a capacity for assisted suicide there."

The problem with the polls:

"The argument in favour of euthanasia in this debate essentially rests on three key themes: individual rights, states rights and the fact that it happens anyway. In this great age of individualism, it is perhaps not surprising that the line of individual choice scores very well in opinion polls and that euthanasia is getting 75 to 80 per cent in the opinion polls. I think it is worth pointing out to some of those behind me, including some in my own faction, that the same theme also ensures that there are lots of people out there from whom, when you put the proposition to them, `Should individual workers have the right to negotiate their contract with their boss,' you get the same sort of result. It depends very much on what question you ask."

On equality:

"My final concern is that the Northern Territory law is a clear indication that there are two types of people, that there is not equality before the law with respect to these issues, that society values some citizens differently. If you are terminally ill then you are permitted access to assisted suicide but not if you are in another category. I think this fits in with a pattern that is extending right across our whole polity, right across many decisions to reduce people to atoms, to individuals, to take decisions that are not based on the society as a whole. I believe we should support the bill of the member for Menzies."

(1) The Australia Card was a planned Identity Card system for all Australians. It fell out of favour in the late 1980s.
(2) Timothy Evans was wrongly hanged for the murder of his wife and daughter. When the real killer was found three years later, it tiggered the eventual repeal of Capital Punishment in the UK.

Lindsay Tanner retired from parliament at the 2010 Federal Election and is now the Vice-Chancellor's Fellow and Adjunct Professor of the Victoria University, Advisor to Lazard Australia and Chairman of the Australian Rules Essendon Football Club.

See also:

Shakira Hussein: Why I don't support euthanasia (and you shouldn't either)
Discrimination of the vilest kind (on the history of the NT debate)