The way we die in the ACT is determined by Constitutional, Federal and Territory law.
THE CONSTITUTION OF AUSTRALIA
DWDACT believes that two sections of the Constitution are relevant to this matter. The Federal Parliament used Section 122 of the Constitution to enact The Euthanasia Laws Act 1997.
Government of Territories
The Parliament may make laws for the government of any territory …..and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
DWDACT believes this law may be open to challenge by Section 116 of the Constitution. Current law that requires Australians to die of disease was enacted when the Australian parliament was even more populated by religious believers than it is today. Parliamentarians believed that not only do citizens belong to the nation but also that they belong to God and God requires that we die of disease. Requiring death by disease is part of the religious observance related to the practice of death in most religions.
Commonwealth not to legislate in respect of religion
The Commonwealth shall not make any law for….. imposing any religious observance….
The Federal Parliament incorporated the following section of the Euthanasia Laws Act 1997 into the ACT Self Government Act 1988. This prevents the ACT Legislative Assembly from making law on euthanasia. In order for the Assembly to have the capacity to take action on euthanasia the Federal Parliament would need to repeal this law.
Australian Capital Territory (Self Government) Act 1988
Part IV Powers of the Legislative Assembly
Section 23 Matters excluded from power to make laws
(1A) The Assembly has no power to make laws permitting or having 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.
Law in The Crimes Act 1900 determines how we die in the ACT. If the ACT Legislative Assembly were free (given the removal of Federal law, the Euthanasia Laws Act 1997, which prevents it from doing so) to reform the law to allow its citizens to have assistance to die, the following laws should be considered.
The Crimes Act 1900
Section 16 Suicide etc – not an offence
The rule of law that it is an offence to commit, or to attempt to commit, suicide is abolished.
DWDACT suggests that the ACT government add to Section 16 in the Crimes Act 1900 the following words; from the enactment of this amendment to the law the act of ending one’s life will no longer be called suicide. It will be called an elective death. Given that it is no longer a crime to end one’s own life it is an error to continue to call the act of doing so ‘suicide’ which means self murder which is a crime.
The Crimes Act 1900
Section 17 Suicide – aiding etc
- A person who aids or abets the suicide or attempted suicide of another person is guilty of an offence punishable, on conviction, by imprisonment for 10 years.
Section 17 of the Crimes Act privileges the opinion that people should endure a ‘natural’ death of the diseases of old age or submit to a degrading and usually painful manner of death or act unlawfully to obtain peaceful means of death and discriminates against those who hold the opinion that they should be able to undertake their deaths in a safe manner within a modern health system at a time of their choosing. Section 17 (1) of the Crimes Act is intentionally designed to make the act of ending one’s own life difficult or unlawful because the underlying ideological principle behind the law is that everyone should die of disease. Dying of disease is required for two reasons; 1) criminal; to establish the innocence of those around the dead body i.e. that the person was not murdered by another human being and 2) ideological; to establish that the death was a result of the action of God or nature. DWDACT suggests that the ACT government repeal or modify Section 17 with the concept of an elective death unit. DWDACT believes that Section 23 1A of the ACT Self Government Act and Section 17 of the ACT Crimes Act should be repealed and amended. This would mean that an elective death would no longer equate to murder.
(1) A person commits murder if he or she causes the death of another person—
- intending to cause the death of any person; or
- with reckless indifference to the probability of causing the death of any person;
ACT Human Rights Act
DWDACT suggests that the ACT government should bring the Crimes Act law into line with its Human Rights Act. We believe that the human rights of ACT citizens are being breached by the Crimes Act legislation. The following ACT Human Rights laws make the previous laws a basis for a claim of discrimination.
Section 8 Recognition before the law
Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
Article 26 of the International Covenant on Civil and Political Rights states that ‘All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’
DWDACT Commentary: Requiring ACT citizens to die of disease or hang, gas or shoot themselves is consistent with religious observance. Section 17 of the Crimes Act imposes this religious observance on us by criminalizing anyone who gives assistance to die thus denying us the right to die at a time and place of our choice and forcing death by disease on us. It is therefore discriminatory.
Human Right: Everyone has the right not to have his reputation unlawfully attacked.
DWDACT Commentary: No one should be called a ‘suicide’ (a self-murderer) when suicide is no longer a crime.
Human Right: Protection from torture and cruel, inhuman or degrading treatment
1 b) No-one may be treated or punished in a cruel, inhuman or degrading way.
Section 16 of the Crimes Act makes it lawful for people to end their own lives. DWDACT believes that no one should be forced to hang themselves just because they do not want to live. Making a person who assists someone to die into a criminal inevitably results in people having to die in this and other unacceptable ways. Section 17 (1) forces people who want to die, to die horribly. This is a form of indirect assault by the state. Many people die bad deaths in hospitals, hospices, nursing homes or at home through neglectful treatment or because their particular diseases ravage their bodies and there is little that can be done by medical staff to alleviate their suffering. This has been documented systematically over time by many people in Australia and elsewhere.
Human Right: Right to Liberty and Security of person;
1) Everyone has the right to liberty and security of person.
DWDACT believes that Section 17 (1) denies the person wanting to die the liberty to undertake her/his death or to undertake it except by insecure means i.e. self-assault. This provision is inconsistent with modern views on the status of the human person.
Human Right: Every person has the right to life and has the right not to be arbitrarily deprived of life.
DWDACT notes that in February 2015, the Supreme Court of Canada, in a unanimous decision, confirmed that Canadians have the constitutional right to choose physician assistance in dying. This means that seriously and incurably ill Canadians who are suffering unbearably will have the choice to seek the assistance of a doctor to have a compassionate and peaceful death. Physician-assisted dying will now be recognized for what it is – a medical service.
The Court determined that the criminal laws violate the Canadian Charter of Rights and Freedoms. In particular, the Court found that the laws deprived the section 7 right to life, liberty, security of Gloria Taylor and others suffering from serious and incurable diseases. The laws deny the section 7 rights of individuals to have control over choices that are fundamental to their lives and cause unnecessary suffering.
The Court wrote, “Section 7 is rooted in a deep respect for the value of human life. But s.7 also encompasses life, liberty and security of the person during the passage to death. It is for this reason that the sanctity of life “is no longer seen to require that all human life be preserved at all costs.” And it is for this reason that the law has come to recognize that, in certain circumstances, an individual’s choice about the end of her life is entitled to respect.”
The Court determined that the deprivation of seriously ill Canadians’ rights to life, liberty and the security of the person is not in accordance with the principles of fundamental justice because the prohibition on assisted dying is overbroad.
Human Right: Human rights may be limited
- Human rights may be subject only to reasonable limits set by territory laws that can be demonstratively justified in a free and democratic society.
DWDACT believes that Section 17 is not a reasonable limit on the human right to die expressed by section 16. Swiss law has demonstrated that it is perfectly reasonable in law to assist a person to die. One purpose of the limitation posed by the ACT law is to prevent people dying early but it is not effective as people in the ACT continue to end their lives (about 30 every year) despite the law. The Swiss have demonstrated that it is possible to provide a reasonable less restrictive limitation. They have successfully argued with the European Human Rights Court that it is a human right to end one’s life.
ACT Human Rights Act; Application of human rights to Territory laws
Section 30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
DWDACT notes that the ACT government has made no attempt to do this so far.
Section 31 Interpretation of human rights
- International law and the judgement of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.
ACT Human Rights Act
Part 2 Section 7: This act is not exhaustive of the rights an individual may have under domestic or international law.
Part 3 Civil and political rights
The primary source of these rights is the International Covenant on Civil and Political Rights.
DWDACT has shown that Canadian law has been modified to comply with Canada’s Charter of Rights and Freedoms. The Swiss have taken action in the European Court of Human Rights to argue that giving assistance to die and ending one’s own life are actions that are consistent with human rights law.
The Universal Declaration of Human Rights
Human Right: Every person has the right not to be arbitrarily deprived of their property.
DWDACT believes that Section 17 (1) of the Crimes Act arbitrarily deprives people of their right to their most precious property, their bodies. They cannot dispose of their property (their bodies) as they see fit due to the exclusion by law of methods of death other than disease. Due to being required to die by disease they lose the ability to manage and dispose of their bodies themselves. Their bodies then become the property of others due to illness deliberately induced by the law.