Bringing the Right to Die to the British Isles (Part II): The Cautionary Experience of Australia’s Northern Territory

by | Nov 29, 2023

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About Dominic Bielby

Dominic is a postgraduate international lawyer currently working at the International Court of Justice as a Judicial Fellow. He studied his undergraduate Law degree and postgraduate LLM in International Law at the University of Cambridge where he received the Whewell Scholarship in International Law. He is interested in public international law, including international human rights law.

Part I of this blog discussed the legality of assisted dying in the Isle of Man at present and the proposed legalisation of assisted dying and voluntary euthanasia under the Assisted Dying Bill 2023. If enacted, the Isle of Man will become the first jurisdiction in the British Isles to legalise any form of assisted dying, although the legislatures of the UK, Ireland, and Jersey are currently conducting consultations on such laws. However, there is precedent for a semi-independent jurisdiction, like the Isle of Man, spearheading the legalisation of assisted dying and voluntary euthanasia – and being reprimanded as a result.

Assisted dying and voluntary euthanasia in the Northern Territory

In 1995, Australia’s Northern Territory – a sparsely populated jurisdiction, a quarter of whose population identify as Aboriginal and Torres Strait Islanders – legalised assisted dying and voluntary euthanasia for terminally ill adults who were suffering unacceptable pain, suffering or distress, where a medical practitioner was satisfied on reasonable grounds that the patient was terminally ill, subject to verification by another medical practitioner and a psychiatrist.

Although self-governing since 1978, the Northern Territory is not a State like New South Wales or Queensland: along with the Australian Capital Territory, it is a Territory of the Commonwealth of Australia and, under Section 122 of the Australian Constitution, the Federal Parliament can repeal any Territorial law. Under the 1997 Euthanasia Laws Act, the Federal Parliament amended the Territories’ self-government legislation to exclude the Territories’ ability to enact any legislation on assisted dying and voluntary euthanasia. The ban was in spite of an alleged promise by Prime Minister Fraser, who oversaw the granting of self-government to the Northern Territory, that the Federal Government would never override the Territory’s laws. Before its repeal, four people ended their lives with medical assistance under the Northern Territory’s assisted dying regime.

The mood in Australia eventually shifted. Starting with Victoria in November 2017 and ending with New South Wales in May 2022, every State passed legislation permitting assisted dying in some form . However, it was not until December 2022 when the Federal Government repealed the 1997 ban on the Territories’ ability to enact their own such laws. As of yet, the Northern Territory has not reintroduced an assisting dying law, although the Australian Capital Territory’s government recently introduced such a bill.

Comparing the Northern Territory with the Isle of Man

There are clear similarities between the situation of the Northern Territory and the Isle of Man regarding assisted dying laws. Both are jurisdictions with self-government but limited legislative power whose legislative sovereign adopted/adopts a strict prohibition on assisted dying. In Australia, when the Northern Territory passed its assisted dying law, every State and Territory criminalised (and continue to criminalise outside of their assisted dying regimes) assisting a suicide. In England and Wales, assisted suicide is specifically criminalised and voluntary euthanasia is treated in law as homicide, notwithstanding the existence of governmental guidance regarding when such incidents should be prosecuted.

There is a logic behind why a country may be hesitant to allow the government of a territory under their jurisdiction to allow for assisted dying, namely, to prevent ‘suicide tourism’ in which country A’s residents travel to territory B to lawfully end their lives, therefore undermining country A’s government’s own prohibition. The Manx regime, unlike the Northern Territory’s regime, includes a residency requirement, but, as a part of the Common Travel Area, British and Irish citizens can freely reside in the Isle of Man – perhaps this will give rise to ‘suicide emigration’? Notwithstanding this concern, a country may simply be unwilling to allow for a territory under its jurisdiction to enact a morally and politically contentious policy that the country itself has rejected. For example, in 2015, the UK Parliament overwhelmingly rejected the Assisted Dying Bill (No. 2), which was much more restrictive than the Manx proposal: the bill would only have legalised assisted dying (not voluntary euthanasia) and would have required the approval of the High Court for assistance to be provided, alongside the requirement that the individual seeking assistance was an adult with legal capacity, suffering with a terminal illness with a life expectancy of less than six months, who had expressed a clear and settled intention to die.

Like the Northern Territory, the Isle of Man’s legislation can be blocked without its agreement: legislation passed by the Manx Parliament requires Royal Assent to become law, and the UK’s Justice Secretary can recommend that the King’s representative on the Isle of Man, the Lieutenant Governor, withhold Assent. In 2010, the UK House of Commons’ Justice Committee found that, although the power to withhold Assent could clearly be used in certain circumstances (e.g., where the Crown Dependencies’ legislation would conflict with the UK’s international legal obligations), the exact grounds for the power’s exercise are “not entirely clear” (see paras 50-51 of the 2010 Report). It is not unforeseeable, considering the UK Government’s current battle with the Scottish Government over proposed reforms to gender identification, that the Isle of Man may, like the Northern Territory, find its assisted dying law short-lived, if alive at all.

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