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Hung parliament no place to be ham-fisted on euthanasia

Frank Brennan |  21 September 2010

Bob BrownIn 1995, the Northern Territory Parliament passed Australia's first euthanasia law: The Rights of the Terminally Ill Act (NT). In 1997, the Commonwealth Parliament overrode the Territory law with its own Euthanasia Laws Act. The Commonwealth law did not repeal the Territory law but it rendered it inoperative.

In 2008, Greens leader Senator Bob Brown took the opportunity, once the Howard Government was out of power and no longer in control of the Senate, to introduce his Rights of the Terminally Ill (Euthanasia Laws Repeal) Bill. It was a very shoddy piece of legislative drafting and went nowhere.

The introduction of the bill was ham-fisted. Even the Northern Territory Government opposed the bill. The Chief Minister of the Northern Territory, Paul Henderson, said at the time, 'I find it very high-handed and arrogant of Bob Brown from Tasmania to be introducing legislation in the Federal Parliament that affects the Northern Territory, without any consultation at all with the Territory Government, or the people of the Northern Territory.'

If the bill had been passed, it would have had the effect of resuming the operation of the original 1995 Territory law which by then even Dr Philip Nitschke had conceded in an article in The Lancet was defective legislation.

The NT law requires a psychiatrist to have 'confirmed that the patient is not suffering from a treatable clinical depression in respect of the illness' before a medical practitioner is allowed to administer the lethal injection. Nitschke and his co-author stated:

Confirmation was not easy since patients perceived such a mandatory assessment as a hurdle to be overcome. [Philip Nitschke] understood that every patient held that view. To what extent was the psychiatrist trusted with important data and able to build an appropriate alliance that permitted a genuine understanding of a patient's plight?

Some senators were concerned to learn that Dr Nitschke had personally paid the fee for the psychiatric assessment of one of the patients he euthanased.

So now we have a hung parliament and Brown wants to agitate the issue of euthanasia once again. There are three distinct issues.

First, the 1995 Northern Territory law is a bad law even for those who favour euthanasia with appropriate safeguards. So before any other step is taken the Northern Territory parliament should repeal the 1995 law, so we can start with a blank slate.

Second, since 1997 the legislatures of the Northern Territory, the ACT and Norfolk Island have been precluded by the Commonwealth parliament from passing laws providing for euthanasia. Presumably Brown will make sure he has the politicians and the people of the territories in the cart before he moves this time.

But there is no hurry. There is little pressure from the people and legislatures in these places about what is presently an academic issue. To date no state parliament has legislated for euthanasia. Two years ago, I said to the Senate committee:

[W]hat has changed in 10 years? In terms of what has changed, if you look at the United States, Oregon is still the only state which has euthanasia. Since the Commonwealth exercise the US Supreme Court has said there is no right to euthanasia. Lord Joffe's United Kingdom legislation has gone down, and we have had very clear statements from the medical authorities in the United Kingdom and a quite eloquent submission here from the AMA. So it would seem to me that on balance nothing has changed or, if anything, the anti-euthanasia case is probably slightly strengthened if we look at developments in equivalent jurisdictions.

Third, there is the difficulty of providing adequate safeguards for vulnerable individuals in their dying days. Last year there was a lot of attention on Christian Rossiter's request for termination of hydration and nutrition. The WA Supreme Court gave the go-ahead. But he decided not to continue the request.

A month after the judgment the media reported on Rossiter's condition, speculating that he might die soon from a respiratory infection. The Sunday Age reported:

The sad irony here, according to Dr Nitschke, 'is that [after the court case] he'd picked up a bit in himself, because people have been paying him attention'. He'd been particularly cheered by the ministrations of an outreach carer from Perth Home Care services. The Sunday Age understands the woman, who has been refused permission to speak to the media, had encouraged Mr Rossiter to record his life story, notably about his childhood in South Africa, with the idea of publishing a memoir.

What then was the court case about? He may well have been suffering intense pre-mortem loneliness, as distinct from depression. He died of a chest infection more than a month after the court gave the all clear for his carers to terminate hydration and nutrition should he request it.

Then came the case of Mr JT in the ACT Supreme Court with doctors wanting to terminate treatment. Chief Justice Higgins said:

The patient here lacks both understanding of the proposed conduct and the capacity to give informed consent to it. Thus, those charged with JT's care remain under the common law duty to provide that care to the best of their skill and ability.

The Chief Justice had cause to comment on 'an outrageous approach to ethical standards' disclosed in the case.

The real quandary with assisted suicide through removal of nutrition and hydration is determining when the law will deem a decision to terminate life an act of informed consent, being irrevocable even though the patient has mood swings and moves in and out of consciousness. Not everyone who says, 'I wish to die. Please terminate all nutrition' will remain clearly of that resolve.

The law will need to specify the conditions for presuming that a patient has made an irrevocable choice for death even when no one would be adversely affected by the health provider complying with the later revoked wish of the failing patient clutching to life.

Presumably, there will be a need to impose an obligation on health professionals to ensure that the choice to die remains firm until loss of consciousness. If this obligation were always to be faithfully discharged (which it won't be), it would be very onerous.

I doubt that a hung parliament will have the time and resources to consider these complex issues in its early days. As Tony Abbott says, there are real 'bread and butter concerns' that this parliament needs to get its head around. Of the three issues raised, only the second is a Commonwealth concern.

Whether hung or not, the Commonwealth parliament needs to get on with its core business. Neither Rossiter nor Mr JT would have been helped by a repeat of the NT euthanasia law. Our leaders need to address the more urgent national questions.

Frank BrennanFr Frank Brennan SJ is Professor of Law at the Public Policy Institute, Australian Catholic University, and Adjunct Professor at the National Centre for Indigenous Studies, Australian National University. 



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Submitted comments

Not quite relevant I know but I'm reminded of Gough's response to a heckler at the back of the hall during a political debate. She kept shouting "What about abortion Mr Whitlam?" Gough, to his credit, ignored her for as long as possible and then replied in his inimitable fashion "Well, in your case madam, I believe it should be made retrospective"!

Ian 21 September 2010

Isn’t it funny! A few weeks ago, writers for Eureka Street argued that voting for the Greens would make sense. It was argued that the Greens would have a lot’s of “humane” policies. I argued that people in Germany had also made a “protest vote” during the 1930th and had voted for a man they did not really liked. It seems history is repeating itself and now we have Bob Brown with his extremist outlook in a very powerful position. I am sure nobody wanted him in a position of power and nobody could have taken Bob Brown seriously.

History and politics are not kind to voters for wasting their votes as a “protest”. Germany ended up with an unwanted Adolf and we are now stuck with Bob Brown. All Nations deserve their won Government and Australia deserves getting something as bad as Bob Brown, after all we were stupid enough to allow his party of tunnel visionaries to gain power.

Beat Odermatt 21 September 2010

Presumably any vote for anyone for whom Beat wouldn't vote is a wasted vote. How fortunate we are to have such a politically astute commentator!

Stephen Kellett 21 September 2010

Hung Parliament or not, the Green Party now has, for the first time, a seat in the House of Representatives and will have the balance of power in the Senate. The rise of a political party obsessed with killing people as a solution to their problems is deeply disquieting.

Sylvester 21 September 2010

Beat, your analysis of the German psyche in the 1920s and 1930s is way off line and, since your attempt to conflate Hitler with Bob Brown hinges on that comparison, the rest of your argument goes down the gurgler as well. There's plenty of historical evidence to indicate that there was no "protest vote" as such, unless, of course, you construe a wish to get rid of the incumbent giovernment as a protest vote. Hitler was seen as the best way Germany could rise to its perceived earlier greatness. I doubt that anyone voted for Hitler thinking "Well, I'll vote for him knowing he won't get in but it will show the big parties that I'm unhappy." That's what a protest vote is.

Erik H 21 September 2010

Now everybody, please take a deep breath. Brown's current proposal is that the Commonwealth allow the two Territories, which are allegedly self-governing, to be truly so, and to make their own laws without being overridden by the Commonwealth. As a resident of ACT I am very happy with that. If the issue of euthanasia comes up in this Territory I will vote against it, as will the Chief Minister, who is on the record as opposing it.The way to oppose euthanasia is the same as the way to oppose murder - by legislation and policing - not by manipulating the Constitution to deny some Australian citizens the right of self-government that all others have.

Richard Johnson 21 September 2010

I think the real issue is with regard to the democratic right of the Territories to pass legislation. Here in SA the Greens MLC Mark Parnell has come up with a Bill that is a big improvement on earlier efforts to legislate for euthanasia and my hunch is that it will pass, on a conscience vote. What will the feds do with State legislation?

paul finnane 21 September 2010

It is more deeply disquieting that in a secular society a minority of Christians support painful and inhumane death over the majority (including Christians) demand for death with dignity and in the process disparage the Greens who have faithfully championed asylum seekers, East Timor, anti Iraq and Afghanistan wars, and a sustainable safe earth.

Dr Vacy Vlazna 21 September 2010

Bob Brown and Hitler? Christians may be panicking about secularism in politics but this comparison is extremist and offensive - not only to the Greens I imagine but Jewish people and the many others others who suffered under the Nazis. As Catholics - a minority group in our community - we are often viewed as narrow minded, conservative and indeed ignorant. Comments like this only affirm that view.

Jo 21 September 2010

In one paragraph Brennan writes "I doubt that a hung parliament will have the time and resources to consider these complex issues in its early days" and in another " the Commonwealth parliament needs to get on with its core business". Is its core business not complex? Climate change?

Brown's position can't be called extremist since according to the polls most Australians agree with him. That would be most Christians, and I suspect, most Catholics. A bit like abortion, really.

Russell 21 September 2010

There is a cluster of issues which are so foundational to human dignity that they transcend lesser issues of majority and minority opinions, political trends, State and Territory right, hung or clear-majority parliaments - and one of them is the sacredness of human life from conception to natural death, or, if you don't like sacred language, call it the inviolability of human life.

It does not follow that a proposal is ethically acceptable if a majority of people support it. There is growing support for the re-introduction of the death penalty and 'turning back the boats' but are these policies right?

Once the principle of legalised euthanasia is conceded, we will immediately find ourselves on the slippery slope. I can remember the debate about the liberalisation of abortion in South Australia in the late 1960s. We were solemnly assured that abortion would be carried out only in accordance with the very strict guidelines laid down in the bill. In Australia today we have abortion on demand - legal in some States, de facto in others.

It will be the same with euthanasia. We will steadily move from voluntary killing to involuntary killing and the grounds for the procedure will be widened more and more. In the Netherlands and elsewhere the sick or frail elderly are being put down without their consent; 'easy death' is being offered to teenagers suffering from depression.

The anti-euthanasia case is not a 'Christian' point of view; it is opposed by people from a great variety of belief systems and backgrounds.

And, no, this is not support for 'painful and inhumane death'. Palliative care has made enormous advances.

Sylvester 21 September 2010

Dr Vacy Vlasna, you misrepresent this issue entirely when you say "the minority of Christians support painful and inhumane death over the majority (including Christians) demand for death with dignity".

Death with dignity is the entire point of palliative care. Noone is calling for people who are dying to go without pain relief or be left unsupported.

In fact, professionals in the field will tell you that for the vast majority of people with a terminal illness, the biggest issue is not actually pain but bad pain management. We can, and we should, care for people who are dying much better than we do.

This issue comes down to protecting some of the most vulnerable people in our society - the frail, old, sick and disabled.

Already now, they often feel like immense burdens on their families and the wider public. Legalise euthanasia and there is no doubt that they will face subtle, and perhaps not-so-subtle, pressure to "volunteer".

Think that's melodramatic? It's the same reason disability advocacy groups are invariably against voluntary euthanasia.

Because what gets sold as a "right to die" becomes a "duty to die". And safeguards to prevent that inevitably fail... (see: http://www.bioethicsanddisability.org/why.html)

Meg 21 September 2010

Of greater concern is that Abbott wants to try and overturn state legislation in Queensland that protects the Wild Rivers from being turned into the Murray Darling simply because Noel Pearson wants him to because Noel has a vested interest.

We are again jailing children, we are still killing Afghans, the climate is still changing.

I actually agree with voluntary euthanasia because it is no-one else's business if a person wants to die.

Marilyn 21 September 2010

The Commonwealth Parliament has no power to make laws about euthanasia nationally. It is a matter for the States. The Commonwealth Parliament does have power to make laws about euthanasia in the territories as they are not States. If and when a State legislates to permit physician assisted suicide by means of lethal injection, there may be a case for the Commonwealth allowing a territory legislature to do likewise. I was convinced that the Commonwealth Parliament should stop the NT legislature passing a defective euthanasia law back in 1995, in part, because of the fear it instilled in Aboriginal people in remote NT communities – a bit like maintaining a special Commonwealth land rights law to protect Aboriginal property rights in the NT.

The last thing the NT needs is for its defective 1995 law to be revived and administered by a doctor who is a partisan activist for euthanasia. The NT legislature would be well advised to repeal the 1995 law, wiping the slate clean. As for other matters, I think Julia Gillard would be well advised to leave well alone – and that would be my opinion for a new prime minister even if she wasn’t dealing with a hung parliament. Leave sleeping dogs lie, and start “moving forward” .

Frank Brennan SJ 21 September 2010

Marilyn - If a person is determined to take his/her own life and really believes, as you do, that 'it is no-one else's business', then he/she should take full responsibility for it and not presume to involve other people or the State in the decision. Suicide is gravely wrong but it has been with us since time immemorial and there is a myriad of ways of doing it effectively and painlessly. It is selfish in the extreme to expect the State to step in to sanction such an action with legislation that cannot but endanger the lives of others - the vulnerable elderly, frail, chronically ill, severely disabled. If the principle of euthanasia is admitted in law it will be impossible to contain or police, as we have seen in the Netherlands and elsewhere. Furthermore, as Meg wrote, the 'right to die' will inevitably become 'the duty to die' as people think - or are encouraged to think - of themselves as a burden on their families or society. People faced with grave health difficulties and end-of-life issues need to consider other people and not just themselves.

Sylvester 21 September 2010

It's sadly contradictory that a healthy young person wanting to die is offered counselling and medication amid pleas to live, whereas an old, ill or disabled person is not persuaded to live or interrogated about their reasons for wishing death.

A dear friend battles a terminal illness and is trying everything within her power to live for her kids. Do people choosing euthanasia believe they have nothing to live for?

I believe that in that situation, I would choose to live. I know that if my other loved ones were in that situation, I hope they would also choose to live. A 'death with dignity' is about good palliative care and being surrounded by loved ones.

As a side note, I would be interested to see the questions of the 'polls' about euthanasia. Anecdotally, it seems to me that many see euthanasia as the withdrawal of life support, rather than an action to cause death.

MBG 21 September 2010

In regards to Fr Frank Brennan's opinion for a new Prime Minister "Julia Gillard" to leave well alone the issue of Euthanasia, leave sleeping dogs die and start moving forward is wishful thinking. Julia Gillard cannot go forward or backward without the approval and direction of Bob Brown.

Remember the new coalition, "Labor and Greens". The inflated vote of the Greens was thanks to some Catholics. First we had the Catholic Relgious Australia (ex ACLRI) gathered in Hobart for the 2010 National Assembly having as guest speaker, Greens Senator Christine Milne. Senator Milne encouraged Religious leaders to initiate discussions on climate change. Sadly she did not explain to the Religious leaders the other Greens policies such as Abortion on demand, Euthanasia, Illicit drugs, same sex marriage and many others anti-Christian policies.

Then prior to the Federal Election some Catholic priests, religious and a large number of contibutors praised the Greens I remember some of the comments that were made by a priest."On some policy issues the Greens have a more Christian message that the major parties", or "A thoughtful Christian could give their first or second preference to a minor party like the Greens". It is sad that in the past so many Catholics dedicated their lives to defend our Holy Catholic Faith and promote Christianity in Australia and to see what is happening tody.

Ron Cini 21 September 2010

Erik, in Germany the moderate parties did not seem to deliver what people wanted. The people did not want any of the extremists on the right or on the left to assume power. but they were rewarded with clear “protest votes”.

The big, difference today is that both Labor and the Coalition are actually doing a reasonable good job. Maybe some people made a “boredom vote” instead of a “protest vote”. The final outcome is the same. We have now a political party, which under the pretence of being “green”, managed to wiggle itself into a very powerful position. Australia has now to deal with a group of people, which is fully controlled by Bob Brown and his extreme policies.

Beat Odermatt 22 September 2010

I've never really understood the use of the word 'dignity' in the debate about euthanasia. It seems to be used in differing ways. If it means dying while receiving practical and emotional support from those around you (family, friends, healthcare workers..), then it makes sense. If it means dying without having to go through all the stages of a wretched disease, then I don't understand the term. There is nothing undignified about dying from a terminal illness, no matter how painful and awful that experience becomes.

GEW 22 September 2010

Thanks to Frank Brennan for offering us an enlightened position on the course and quality of the legislation surrounding euthanasia since 1995. As was stated a few weeks ago on Q and A, by the ex-Premier of OLD, with this tight situation of the hung Parliament the policies of all the parties will come under closer scrutiny. This is one such example. I believe Frank Brennan's article serves to inform such a scrutiny of the Green's policy in the area of Euthanasia. Surely this will lead us all to take a more responsible and informed stand on all issues especailly those which effect the deep moral fabric of our society.

Thanks Frank for keeping us vigilant and well informed in this vital area surrounding the mystery of the gift of all life.

Patty Andrew 22 September 2010

I've never really understood the use of the word 'dignity' in the debate about euthanasia. It seems to be used in differing ways. If it means dying while receiving practical and emotional support from those around you (family, friends, healthcare workers..), then it makes sense. If it means dying without having to go through all the stages of a wretched disease, then I don't understand the term. There is nothing undignified about dying from a terminal illness, no matter how painful and awful that experience becomes.

GEW 22 September 2010

"Euthanasia" is suicide! It is one of the greatest offences to God, the Father, Son and Holy Ghost.How any "catholic" can support this mortal sin, that sends souls to hell forever, means they are Catholics in name only.

We must carry our crosses, as Jesus carried His Cross, with true love for God as each accepted cross will bring us much Grace to help us on our way to Heaven. As God's creation, we have never needed euthanasia before and never will in the future.

Trent 23 September 2010

I would be unequivocally opposed to euthanasia legislation even without church teaching. But the legislation is actually about transferring responsibility to make the decision to the two territories. These bodies are smaller than most suburban councils and recruit modest political talent at best - yet their decisions would effectively bind the whole country. This is unacceptable and reduces the case for either to become full states at any time in the foreseeable future.

Robin Ryan 24 September 2010

Sylvester and Beat as usual live in another world which seems to be quite different from the one that Jesus seems to have lived in. Yes, many people apart from Roman Catholics are not in favour of or, like me, worry about euthanasia. But while relief of pain has made great strides it is my no means perfect. My wife died of cancer. The question and its morality needs consideration and is not as straight forward as these writers or Frank Brennan put forward.

The Nazi business is irrelevant like Joseph Ratzinger"s putting forward atheism as cause of Nazism. Consider the general support, with some notable exceptions, of RC hierarchy and clergy for Hitler's regime. A notable example is the admired theologian at the highest levels, Karl Adams.

Brian Poidevin 24 September 2010

Russell, do you really believe that most Australians agree with euthanasia, as the polls (what polls and how authentic might they be?) supposedly show.

There may be something called 'media manipulation' at work, do you think?

bernie 26 September 2010

You can hear last night's ABC discussion on euthanasia at http://www.abc.net.au/sundaynights/stories/s3022325.htm

Frank Brennan SJ 27 September 2010

Podcast of discussion with Rabbi Jeffrey Cohen, NSW Greens Member Cate Faehrmann and myself available at mpegmedia.abc.net.au/local/sundaynights/201009/r645744_4504129.mp3

Frank Brennan SJ 27 September 2010

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