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Territories should have equal powers to legislate, says professor
Nationwide change to legalise voluntary assisted dying (VAD) has reignited the question of why Australia’s territories do not yet have equal self-governing powers.
Jess Feyder
All Australian states hold the right to form state laws, as protected by the constitution, yet Australia’s self-governing territories remain limited without holding legislative powers guaranteed by the constitution.
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Australia’s territories operate almost identically to states in that they can form parliament and create state laws. However, the Commonwealth can effectively override, limit, or repeal laws in the territories, or prevent them from legislating on a particular issue.
In 1995, when the Northern Territory legislated for VAD, the federal government made the decision to repeal the legislation in 1997.
There have been numerous, unsuccessful attempts over the years to repeal the federal government’s ruling, but now, as every state has passed laws enacting VAD, the pressure has mounted for territories to be granted equal powers to legislate on the issue.
“The unique situation of the territories in our federal system has led to calls for statehood for the territories,” said Professor Dr Alan Berman, Charles Darwin University’s dean of law.
“Every State Parliament can make decisions on assisted dying, but the territories have been left behind,” Dr Berman said to Lawyers Weekly.
”There is no justification for federal government’s treatment of Territorians as second-call citizens,” he said
The lack of self-determination allowed for the territories is in part a mark of colonial legacy, he noted.
The recent federal election campaign saw the Labor party declare that it would permit a conscience vote on a 2018 private member’s bill tabled by Luke Gosling, federal member for Solomon, to give the territories the power to enact their own legislation on VAD.
“This bill is designed to restore power to pass legislation on the issue of euthanasia,” Dr Berman said.
“The private member’s bill passed in the lower house with an overwhelming majority, it will now be considered by the Senate.
“Given the makeup of the Senate, it is likely to be enacted into law.
“If the private member’s bill passes in Federal Parliament, VAD would not automatically be legalised. The legislatures in the NT and ACT would need to pass their own laws on the issue.”
As Northern Territory Chief Minister Natasha Fyles stated: “Territorians know what is best for the Northern Territory.”
