Page 3520 - Week 12 - Wednesday, 12 October 1994
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The fear, I suppose, of the Francis opinion is that a court may not have regard to these clarifications and these qualifications, that a court may not have regard to what has been said in this Assembly, because the court is overwhelmingly of the view that this was a Bill that authorised active euthanasia. But even Mr Francis has to say that that could occur only because the meaning is, however, at least sufficiently uncertain for a judge to form that view. If the judge takes the view that the meaning is uncertain, counsel have the ability to go to the debates. I was party to a case in the High Court in which counsel sought to say to the court, "You should not have recourse to the explanatory memorandum and the parliamentary debates, because in order to have such recourse there must be uncertainty, and in my submission to the bench there is no uncertainty". In response to that argument the bench said, "Well, counsel, you say one thing and your opponent says the other. There is uncertainty. We will go to the debates to see whether they are any help".
It is a fairly tortured argument to say that, in a matter involving such a fundamental issue as whether a Bill intended and publicly portrayed as a Bill to allow for natural death in fact authorises active euthanasia, a court could ever say, "There is no uncertainty here. We will not go to the Hansard". In every case you would have the party on one side saying, "Hang on! This is not about active euthanasia". Almost certainly, public interest groups would intervene, even if you had concert between the doctor and a patient, or a patient's family who were wanting active euthanasia and trying to slip the matter through. Almost certainly, you would have intervention by somebody seeking a court order to say that this was not appropriate. You would have somebody saying, "The law is not clear". The court would then say, "The law, as we have been told, is not clear. We will look at Hansard". A look at Hansard would show that my introductory remarks, which Mr Francis cites in his opinion, clarify that this is not a Bill about active euthanasia.
The Government is not supporting these amendments, because we think that this Bill is intended to override the law of murder or of suicide, and we are not supporting them, because we believe that they are redundant; but we are supporting the provisions in the Bill, because we believe that they sufficiently clarify the position.
Mr Stevenson: Madam Speaker, I seek leave to table the opinion by Charles Francis, QC.
Leave granted.
MR KAINE (12.08): Madam Speaker, this clause is one of those which concern me most about this Bill. It is headed, "Adequate pain relief". That is what it purports to talk about. The fact that the Attorney-General felt it so necessary to spend so long talking in some very detailed technical legal terms in justification of it terrifies me. If he feels it necessary to justify it in those terms here, you can imagine the debates that are going to go on in the courts in the future when this is a question of contention.
Mr Connolly and Mr Moore put this forward as an innocuous thing. If it is so innocuous, why do they think it necessary to set aside criminal law, and which criminal law do they purport to be setting aside? It is quite clear that they are setting aside those sections of the Crimes Act which talk about killing people. If that is not the case, which law do they
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