ISSUES IN LAW & MEDICINE
Spring 2000, pp. 291-305
Reprinted by permission of the publisher, ISSUES IN LAW & MEDICINE, Vol. 15, No. 3, Spring 2000. Copyright (c) 2000 by the National Legal Center for the Medically Dependent and Disabled, Inc.
DEATH, DYING, AND EUTHANASIA: AUSTRALIA VERSUS THE NORTHERN TERRITORY by John I. Fleming, Ph.D.
"I am dying with the help of too many physicians." [Alexander the Great (4th century BC)]
"Teach me to live, that I may dread
The grave as little as my bed." [Thomas Ken (17th-18th century, English Bishop)]
ABSTRACT: The purpose of this article is to explain what has happened in the euthanasia debate in the Australian States and Territories, and to give a more detailed account of how the Northern Territory's euthanasia laws were overturned by the Federal Government. Dr. Fleming begins with a review of euthanasia legislation in each State and Territory, then proceeds with an analysis of the events in the Northern Territory leading to reversal of its euthanasia laws, and includes the effect of the euthanasia law on the Aboriginal people. He concludes that the repeal of the 1995 Northern Territory's Rights of the Terminally Ill Act was a significant setback for the pro-euthanasia movement not only in Australia, but worldwide.
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Australians have been preoccupied with end-of-life decisions for most of the last ten years. This article explains what has happened in all Australian States and Territories, and in more detail to give an account of the way in which the Northern Territory's euthanasia laws were overturned by the Federal Government. It will be helpful to outline briefly the constitutional and legislative framework within which that law was enacted.
The Commonwealth of Australia is a federation of six States. It also contains three self-governing Territories. Each of the States has power to make law in relation to euthanasia, death, and dying according to its own Constitution which preexisted the Constitution of Australia.(1) Modern Australia came about as the result of British colonization. Each of the six self-governing colonies (2) had their own Constitution regulating the Legislature, the Executive Government, and the Judiciary. These six colonies became the six States of Australia under the federal system established by the Australian Constitution which was passed as part of a British Act of Parliament in 1900 and which took effect on January 1, 1901.
The continuing existence of the States, their Constitutions, and their laws are preserved in the Australian Constitution.(3) Under the constitutions of each of the States, a State Parliament may make laws on any relevant issue subject to a few exceptions.(4) The Commonwealth, however, can make laws only with regard to the matters specified, or covered, by section 51 of the Constitution. Where there is a conflict between the law of a State and a law of the Commonwealth, the Commonwealth law operates and the State law is invalid to the extent of any inconsistency.
The Territories have self-government pursuant to legislation enacted by the Federal Parliament. The Northern Territory received self-government in 1978, Norfolk Island in...