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David Leyonhjelm’s bill to permit the territories to pass assisted dying legislation was defeated despite argument it is as much about territory rights. By Karen Middleton.

Territory rights and assisted dying

David Leyonhjelm in the Senate this week.
Credit: AAP Image / Mick Tsikas

It is not often in parliament that an outspoken Greens senator from Tasmania and an equally outspoken Nationals senator from Queensland can find common ground, let alone empathy.

But a melancholy understanding passed between Nick McKim and Barry O’Sullivan in the Senate on Tuesday night as each revealed he had worked with doctors to hasten the death of someone he loved.

They were speaking during the debate of Liberal Democrat David Leyonhjelm’s private member’s bill aimed at restoring the right of the Northern Territory and the ACT to pass legislation on voluntary euthanasia, a right withdrawn when federal parliament passed another private member’s bill 21 years ago.

Despite his early confidence of success, Leyonhjelm’s bill was defeated on Wednesday night, 36 votes to 34.

Though McKim and O’Sullivan ended up on different sides of the vote, the stories they told on the way to their decisions were eerily similar and achingly sad.

McKim explained how compassionate medical staff had helped speed up the death of his terminally ill father.

“It’s very clear that this is going on in palliative care wards around the country,” he said.

“I’m not going to name the ward or the hospital, but I’m very happy to place on record that, last year, my father was euthanised at his request in a palliative care ward in Tasmania. I’m really pleased, and I thanked the medical professionals profoundly, from the bottom of my heart, for killing my father, because he wanted it, he was lucid, he was rational and it was the right thing to do, based on compassion and humanity.”

He went on to describe the terrible, degrading circumstances in which the terminally ill often found themselves and the agony of family members trying to help them in their dying days.

O’Sullivan spoke next.

While his views contrast with the Greens on this and many other issues he made sure to note the Tasmanian’s “difficult contribution”, adding: “Can I say that I’ve had a similar experience.

“This is a very difficult subject, a very emotive subject, that will test us all,” O’Sullivan said.

The Nationals senator revealed he had been burdened with decisions that helped end the lives of both his mother and his wife. When his 90-year-old mother descended into a coma, and with doctors advising him that they could not restore her to the life she’d been living, O’Sullivan instructed them not to prolong it. His mother died peacefully without intervention.

His wife’s passing proved more difficult. O’Sullivan battled his emotions in the Senate on Tuesday night as he explained the situation he faced when his wife suffered an aneurysm and also slipped into a coma.

“On all the best advice we had – upon which I relied – there was to be no return,” he said. “My wife potentially could have lived, according to the medical practitioners, for literally years in that state.”

Adopting McKim’s deliberately vague description of how and where the “events took place”, O’Sullivan declined to detail his conversations with medical staff on the night his wife died.

“But clearly during the course of that evening the administration of her medication, perhaps, promoted her departure earlier than nature would have ordered,” he said.

O’Sullivan’s experience led him to a different conclusion on euthanasia than Nick McKim.

“I’ve got to tell you that in those circumstances family are in no position to be able to think clearly, and any legislation into the future would need to recognise in detail the fact that family, next of kin and loved ones, at a time when they need to be able to think clearly and make clear decisions, have no capacity to do that. So, if we talk about the prospect of involuntary euthanasia – that’s to say that the person is in no position [to decide] what happens to them – we would need to be extremely careful around the environment that near and dear and loved ones find themselves in as they make that decision.”

O’Sullivan acknowledged the range of circumstances in which such decisions might be made and was concerned legislation could not cover all of them.

 “I don’t struggle with where I am – I know where I am,” he said. “But I struggle with the question when I hear so many strong arguments made by so many people who themselves have had experiences that I haven’t had.”

He pointed to “intelligent people like Senator McKim, whose real-life experiences” had informed his support for euthanasia.

“I’m afraid I can’t make that journey,” O’Sullivan said. “I won’t allow myself to make that journey because I fear that there will be so many cases where the application of legislation could be corrupted, where there’s human error and where, in certain circumstances, people take advantage of their power… and I really think that we need to proceed with great caution.”

McKim and O’Sullivan were among dozens of senators who put their views on the record in a debate that was frequently poignant and reflected the spectrum of community opinion on the sensitive issue.

As with other conscience matters, positions crossed party lines.

Some senators voted solely on the issue of the territories’ right to autonomy, and not on euthanasia at all. While the Commonwealth can’t overturn states’ laws, it has the constitutional power to override the territories. This was used to overturn the ACT’s same-sex marriage laws that operated briefly in 2013 and, before that, to enact a 1997 bill by Liberal MP Kevin Andrews to stop euthanasia in the NT.

Andrews’ bill was allowed to proceed to a vote after then prime minister John Howard gave it priority on the legislative list, which is the PM’s prerogative, though not one exercised by Malcolm Turnbull in Leyonhjelm’s case.

This week, NT Labor senator Malarndirri McCarthy said she – like many other Indigenous Australians – was deeply concerned about the idea of helping people die but that as a territory representative, she considered herself obliged to back the bill. Others including ACT Liberal senator Zed Seselja, who took the opposite position, were driven solely by their views on euthanasia.

New South Wales Labor senator Jenny McAllister said the challenge ultimately was to craft a health system that could manage these issues “with humanity and compassion” and grant people autonomy over their final months, not just their final moments.

“When death is robbed of the element of surprise, we have the chance to choose how to meet it,” McAllister said.

“And we should give people the opportunity to make these decisions.”

Queensland Liberal senator Amanda Stoker was equally convinced that legislating to allow voluntary euthanasia was wrong. “If passed, it is a fundamental change in the way that we approach human existence, the essence of life,” Stoker said.

“It sends a disturbing message that there are some people in our community who are better off dead.”

Many senators made their decisions based on a combination of the two issues.

South Australian Centre Alliance senator Stirling Griff said Kevin Andrews’ bill had been “an insult” to those in the parliaments of the NT and ACT.

“He had a moral objection to euthanasia, and so he used the biggest stick he could find to impose his will: the Constitution,” Griff said.

Earlier this year, Victoria became the first Australian state to legalise voluntary euthanasia. Western Australia is conducting a parliamentary inquiry into the issue and Tasmanian parliamentarians are contemplating what would be their fourth attempt. The state’s second attempt to legislate euthanasia, back in 2013, was defeated by a single vote.

Recently the NSW parliament also debated legalisation with the same result. But the territories remain unable to discuss it.

David Leyonhjelm has accused Prime Minister Malcolm Turnbull of ratting on a deal he says they made in 2016. In return for Leyonhjelm’s vote to re-establish the Australian Building and Construction Commission, the Liberal Democrat says Turnbull promised to allow his euthanasia and territories’ rights bill to be debated in the Senate with Coalition MPs granted a conscience vote.

But when the bill was introduced, the government tried to stop it being debated. Leyonhjelm had to secure Labor and Greens support to proceed.

He says Turnbull promised if the bill passed the Senate, he would allow debate in the House of Representatives too, also with a conscience vote.

Malcolm Turnbull denies there was a promise or a deal.

“I’ll be very clear,” he told the ABC last week. “David Leyonhjelm asked me if the government would vote to enable a vote to be held on this question in the Senate, and we did not do that. Actually, the vote to bring it on to the notice paper, as it were, was carried despite opposition from government members.”

Leyonhjelm says the government facilitated a group of doctors doing the rounds in Parliament House this week, lobbying against the bill.

He says he was told Turnbull could not afford another confrontation with the conservatives in his government, already pressuring him over the national energy guarantee and religious freedoms – an issue linked to the same-sex marriage debate.

“Apparently he is extremely alarmed about it,” Leyonhjelm told The Saturday Paper. “I’ve heard that now from both a staffer close to the prime minister and a minister.”

Leyonhjelm says another parliamentarian’s staff member, who he refuses to name, overheard a minister telling two Liberal senators they needed to “take one for the team” and vote against the bill.

But one of the senators allegedly involved told The Saturday Paper the conversation never took place.

Even before the Senate had voted on Leyonhjelm’s bill, another bill had sprung up separately in the lower house, co-sponsored by Labor MPs Luke Gosling, from the NT, and Andrew Leigh, from the ACT. It is due to be introduced next week, though the government appears likely to block further debate.

The two MPs have opposing views on euthanasia, with Leigh supporting legalisation and Gosling against it. But they are united in their belief that the territories’ lack of constitutional status compared with the states should not rob them of legislative independence.

“We’ve got to keep the pressure up on this,” Leigh told The Saturday Paper.

This week, the ACT and NT chief ministers, Andrew Barr and Michael Gunner, condemned the Senate’s decision.

Barr urged his federal Labor colleagues to contemplate a binding vote in future on grounds that, federally, the issue should be considered as one of territories’ rights, not euthanasia.

“There are more people who live in the territories than live in the great state of Tasmania,” Barr said. He predicted voluntary euthanasia would follow the trajectory of same-sex marriage, and be legislated eventually.

On Thursday, the ACT Legislative Assembly issued its first ever formal “remonstrance” – an objection lodged with a higher authority – sending a message of protest to the Senate and asking it to “reflect” on its decision.

But after having reflected all week, it’s likely to be a while before Senate does so again.

This article was first published in the print edition of The Saturday Paper on Aug 18, 2018 as "Territorial pressing". Subscribe here.

Karen Middleton
is The Saturday Paper’s chief political correspondent.