Academic journal article Issues in Law & Medicine

Euthanasia in the Commonwealth of Australia

Academic journal article Issues in Law & Medicine

Euthanasia in the Commonwealth of Australia

Article excerpt

The great political and social turmoil surrounding the passing of the RTI Act and its effective repeal has been widely reported, both in Australia and overseas. A chronology of significant events is set out for the reader's benefit in the Appendix. Although this chronology is by no means exhaustive, it does give some indication of the thousands of pages of printed articles, petitions, Parliamentary Reports and newspaper columns devoted to the topic, not to mention several marathon Parliamentary sittings and lengthy court submissions. Personalities also featured heavily in the process, including prominent politicians, doctors, lawyers, church leaders, academics and the patients who were lethally injected prior to the passing of the overriding Federal Act.

Constitutional Status of the Northern Territory

The Commonwealth of Australia is a federation comprising six states.(1) The Northern Territory, originally forming part of the State of New South Wales until 1863, was then administered by the State of South Australia for almost fifty years until it was surrendered to Commonwealth control in 1911.(2) The surrender, which had been suggested at federation, was already contemplated by sections 111 and 122 of the Commonwealth Constitution(3) and was relatively uncontroversial. Mr. Justice Mitchell, the Government Resident and judge of the Territory at the time, urged Territorians to expect even more rapid progress in their affairs from the fact that [i]n place of one guardian there are now six."(4)

The Commonwealth of Australia currently exercises power over nine territories(5) but only three of these enjoy any measure of self-government: Norfolk Island, the Northern Territory and the Australian Capital Territory.(6) The last of these is home to the federal capital city of Canberra.

The Northern Territory was the first of the three to gain such privileges with the passage in 1978 of the Northern Territory (Self-Government) Act (Commonwealth). The federal source of this Act is section 122 of the Commonwealth Constitution, which relevantly provides that "[t]he Parliament may make laws for the government of any territory surrendered by any State" and these words have been widely interpreted by the High Court of Australia as conferring plenary power "to endow a territory with the institutions appropriate to self government."(7)

The legislative power of the Northern Territory, however, is subject to some restriction. Section 6 of the Self-Government Act gives the Territory Legislative Assembly power to make laws for the "peace, order and good government of the Territory"--provided such laws receive the "assent of the Administrator or the Governor General." These two figures deserve a brief explanation. The executive power of the Commonwealth is vested, by the Constitution, in the Governor General, who is the Queen's representative in Australia.(8) The Administrator of the Northern Territory is appointed by the Governor-General by Commission under the Seal of Australia and, technically, holds office during the pleasure of the Governor-General. He or she is charged with the duty of administering the government of the Territory.(9) Neither figure takes an especially active role in political life, most duties being ceremonial. When action is taken, it is invariably upon the advice of the relevant government cabinet minister, although recent federal history has seen the, dismissal of a Prime Minister by the Governor-General in the extraordinary circumstances of an exercise of so-called "reserve powers."(10)

Returning to the Self-Government Act, section 7 expands on the important notion of assent. It provides that all laws must be presented to the Territory Administrator for assent and upon such presentation the Administrator has two options. On the one hand, in respect of laws making provision "for or in relation to a matter specified under section 35," the Administrator may either declare that he assents, or that he withholds assent, to the proposed law. …

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