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Making Victoria’s euthanasia laws: a process to be shunned

Originally published in The Spectator Australia, 7 December 2017

By Robert Clark


Last month, Victoria became the only jurisdiction in the world to have voted to legalise euthanasia in 2017.  Why and how did such legislation come to be passed in Victoria, despite being rejected everywhere else?

Regrettably, what occurred in Victoria has been a stark example of the parliamentary process at its worst.  The proposal proceeded from a biased and superficial inquiry, from there to a partisan “expert” panel, thence to the browbeating of government MPs, and ending with each House of Parliament being forced to sit non-stop until it passed the Bill.

When other jurisdictions have contemplated such a fundamental change to societal norms, they have started (and often ended) with a careful and balanced parliamentary inquiry –- Scotland, New Zealand, the House of Lords, for example.

In Victoria, the process started with a majority report by the Legislative Council’s Legal and Social Issues Committee that reads more like a Dying with Dignity advocacy document than the report of an impartial and dispassionate parliamentary inquiry.

Any parliamentary committee that cites a euthanasia lobby group document as if it were the report of an official UK government commission while failing even to mention official UK parliamentary reports and debates concluding against euthanasia, hardly deserves credence.

The process continued with a hand-picked ministerial advisory panel headed by a former AMA president and NSW neurosurgeon seemingly recruited for his advocacy and lobbying skills rather than his specialist expertise, and with two maverick palliative care practitioners also brought in from interstate.

This skewed and unrepresentative panel proceeded behind closed doors, failing even to publish the submissions it received on its discussion paper.

Next followed a bill developed in secret over months and which, instead of being released as an exposure draft for public comment, was introduced straight into the parliament and brought on for debate the following sitting week.

The government then used its numbers to force both houses of parliament, in turn, to sit throughout the night and into the following day, requiring MPs to make decisions on matters of life and death in a state of sleep deprivation, all in order to push through legislation that is not even due to commence until mid-2019.

In the Legislative Council –- supposed to be Victoria’s house of review — proponents used their numbers to gag debate on clauses of the bill more times in just one day and night than in the entire known history of the Legislative Council beforehand.

For months, the Premier and Minister for Health pressed on with their “solution” of offering an early death to an estimated 150 Victorians a year, while refusing even to acknowledge the chronic shortfalls that see more than 10,000 Victorians a year die in needless pain because they can’t get palliative care.

Then, with numbers tight in the Legislative Council, the government scrambled together a belated and hopelessly inadequate package, a package that will barely meet the needs of one in seven of those currently missing out, leaving thousands to continue to die in needless pain each year. Hardly a display of the compassion that advocates of the bill spoke about so often.

After the government had previously claimed any amendments to the bill would compromise its “integrity”, the Legislative Council debate saw a torrent of amendments, counter-amendments, amendments substituted and amendments withdrawn, to the point where exhausted Legislative Council staff could not even publish the official schedule of amendments until several days later.

The resulting Act is a shambles not only of dangers but of flaws and anomalies. Unbelievably, the Act is so absurdly worded that once a person has been issued with a permit authorising them to obtain a lethal substance for their suicide, their cause of death must be officially recorded as the terminal illness from which they were suffering, even if they end up being killed by an extraneous cause such as a car crash.

Even more concerning are the Act’s deliberate exclusions of scrutiny and accountability.  As long as the paperwork is filled out correctly by the two assessing doctors, it will be ticked off by the Health Department bureaucracy and a permit will be issued to prescribe an “assisted dying substance”.  There are no obligations and no powers for the so-called “Voluntary Assisted Dying Review Board” to conduct any further scrutiny whatever, even after the event.

Disgracefully, the Act specifically excludes the coroner from investigating any death as long as the lethal substance is administered in accordance with the legislation.  A person could be finished off by being smothered with a pillow, or die writhing in agony because the lethal substance doesn’t work properly, and the coroner will not be permitted to investigate.

In other Westminster jurisdictions around the world, time and time again as MPs have looked carefully and closely at what is involved in legalising the deliberate taking of lives they have done the responsible thing and rejected it.

Regrettably, in Victoria, for many MPs, responsibility was overborne by politics.  The drive to implement the Parliamentary Committee’s recommendation on “voluntary assisted dying” came from a Premier seeking to reposition his party on the political spectrum and to revive his waning popularity, who then used every leverage at his disposal to induce and coerce his party’s MPs to vote for the bill despite party rules allowing a free vote.  Only a brave few government MPs felt able to resist.

If ever anyone wanted an example of how not to legislate on a complex and profound issue like this, Victoria has provided it. It has been a process more befitting a two-bit banana republic than what purports to be a mature Westminster democracy.

Whether or not one considers legalising assisted suicide or other euthanasia could be safe and desirable in some circumstances, the Victorian precedent is one to be shunned.

Robert Clark is a former Victorian Attorney-General and the Member for Box Hill in the Victorian Parliament.

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