The Public Law and Policy Research Unit’s Dr Gabrielle Appleby, Anna Olijnyk and Professor John Williams have made a submission to the Senate Standing Committee on Legal and Constitutional Affairs on the Medical Services (Dying with Dignity) Exposure Draft Bill.
The submission is restricted to the constitutional issues that are raised by the proposed legislation. To be clear, we do not, in this submission, take a position as to the morality, humanity or otherwise of assisted and voluntary euthanasia, or the appropriateness of the proposed regulation of assisted and voluntary euthanasia, including the safeguards and requirements placed on medical practitioners who are willing to practice in this area as are proposed in this Bill. We leave those issues to others to address.
The submission considers the constitutional aspects of the Bill, including whether it is supported by the ‘sickness and hospital benefits’ and ‘medical services’ aspects of s 51(xxiiiA) of the Constitution, or by ss 122 (territories) or 51(xx) (corporations).
An important aspect of the Bill is providing immunity to those practitioners willing to practice in this area from liability under other laws, including State criminal laws. This requires the Bill to create an inconsistency with the relevant State legislation under s 109 of the Constitution, thus rendering the State laws inoperative. A number of immunities are granted in the Bill to medical practitioners who supply dying with dignity medical services. These provisions demonstrate that if the Bill is enacted and is found to be unconstitutional, there are serious consequences for an individual doctor involved. If the Bill is found to be valid but only on a narrow basis (for example, only in its operation in the Territories, or with respect to medical practitioners employed by constitutional corporations), other medical practitioners who had relied on the purported protections provided by the Bill will find themselves liable for prosecution under criminal homicide legislation.
It is our submission that the Dying with Dignity Bill is likely to be wholly supported under s 51(xxiiiA) of the Constitution. There are strong arguments in the alternative that it is supported in part by the territories power (s 122) and the corporations power (s 51(xx)). To the extent that it is supported by these heads of power, it will render any inconsistent State legislation invalid.
You can read the full submission here.