COVER STORY Euthanasia: A truly counter-cultural perspective from history
by Paul Russell
News Weekly, April 9, 2016
Since the Canadian Supreme Court overturned the protections in law that prohibited both assisted suicide and euthanasia in February 2015, Canada has been in free fall. Quebec went on to create its own permissive regime, which was suspended and then re-instated by the courts. No consensus has risen yet on the form of national legislation to give voice to the will of the courts, and stakeholders both pro and con are engaging in a tug-of-war between protecting vulnerable people on the one hand, and open season on the other.
It reminded me of the time of the passage of the world’s first euthanasia legislation in the Northern Territory of Australia in 1995. The Rights of the Terminally Ill Bill 1995 (ROTI) was introduced into the NT debating chamber on February 22 that year by then chief minister Marshall Perron and was immediately referred to a committee of inquiry. The final vote in that single-chamber parliament was taken on May 25, 1995, and the act received assent on July 1, 1996.
In the interim, the bill was reviewed by the same chamber and amended in March 1996 so that the references to psychiatrists functioned as intended. Three other bills, all designed to repeal ROTI, were defeated at about the same time. In July 1996, shortly after ROTI was proclaimed the NT Supreme Court rejected an appeal against the law by then head of the AMA in the NT Christopher Wake and Aboriginal Yolgnu Elder Dr Djiniyini Gondarra.
An appeal to the High Court was planned but never executed as the Euthanasia Laws Act in Federal Parliament was passed in September 1996. In other words, far from settling the matter, the passage of the ROTI bill, like the Canadian Supreme Court decision, created more heat than light.
The NT’s ROTI bill passed at second reading by one solitary vote: 13 to 12. It has been recorded in various places that the vote of the Member for Arnhem, Wes Lanhupuy, was the crucial swing vote. Lanhupuy, the sole Aboriginal MP to support the bill, according to one source, was “convinced to vote for the bill on the personal urgings of Marshall Perron”.
I was reminded of this recently by an article about Canada’s Northwest Territories and the trouble the Inuit and First Nations people of the region are having coming to terms with the possibility of doctors legally killing someone and the practicalities of access to medical services generally. The parallels between Canada’s Northwest Territories and our own Northern Territory on this issue are striking; the Maori and Pacific peoples also share the conceptual and practical concerns.
Some years earlier, in the late 1970s, as a young bank clerk doing “country service” in Katherine, Northern Territory, I met and spent time with Wes Lanhupuy. I also played basketball with John Ah Kit, member of the Northern Land Council and the man who succeeded Lanhupuy in the NT Parliament in the seat of Arnhem when Lanhupuy died unexpectedly in 1995.
Ah Kit, also an Aboriginal man from East Arnhem Land, went on to support repeal bills and amendments that would have created a sunset for ROTI, but none were successful. His position was more in keeping with traditional Aboriginal law and culture which, I imagine, is not too distant from the Inuit and First Nations people of northwest Canada.
Jesuit priest, lawyer and human rights activist, Frank Brennan summed up the attitude of the NT’s Aborigines at that time: “Also many Aborigines from remote communities with traditional belief systems and fear of ‘white fella’ medicine will be even more afraid and confused by doctors and hospitals when the foreign medical technology is known to be used not just for sustaining life but also for imposing death. Even the late Wesley Lanhupuy, the one Aboriginal parliamentarian who supported the Perron bill, admitted in debate: ‘The people at every Aboriginal outstation that I visited told me to “give it away”.’
“If the legislation were passed, he wondered whether ‘suspicion will be held forever by the family because of the powers given to the doctor in this bill’.”
Reading Hansard it is evident that Marshall Perron drove the debate on ROTI very hard. Comments abound about a rushed process and not enough consultation, but from the distance of the years it is impossible to judge based on those comments alone whether they reflected reality or were perhaps themselves just part of the general argy-bargy and positioning that takes place in these kind of debates.
Perron created a few broadsides himself. In his closing speech at the second reading, he said: “The campaign by the AMA and right-to-life groups at least has been dishonest and, whoever told traditional Aboriginals that we would round up the sick people and put them down ought to be ashamed of themselves.”
That last comment is incredibly poignant and historically significant. There is no telling whether Perron’s recollection is verbatim or whether he is summarising and synthesising a number of anecdotes, but there is no doubt that issues raised by Aboriginal people and concern for Aboriginal peoples – their fears, their laws and culture, remoteness, low life expectancy – was a great part of the initial debate spilling over then into the federal debate on the Euthanasia Laws Act through 1996.
Syd Stirling, MP in the seat adjoining Lanhupuy’s (Nhulunbuy) came to oppose the ROTI bill after consulting his electorate: “Some 40 to 50 per cent of my constituents are Aboriginals whom I know to be opposed 100 per cent to the provisions of this bill. Clearly, therefore, the Nhulunbuy electorate would be opposed to the legislation in any case.
“I visited and spoke about this bill with Aboriginal people at Elcho Island, Yirrkala and Gunyangara in my electorate. ... I visited Hermannsburg, Milingimbi and Nguiu. The view of these people was unanimous. They stated very clearly that it was wrong. They said that, when old people knew they were going to die and the land knew they were going to die, they had to come home to die on their own land and to be with their own family. I will quote Wally Wunungmurra from Yirrkala, who gave evidence before the committee. He said: ‘Ethically, culturally and traditionally, it’s wrong as far as Aboriginal people are concerned.’
“That view was expressed in one form or another in every Aboriginal community we visited and by every Aboriginal individual to whom I spoke throughout my electorate.”
Stirling went on to complain that the lack of understanding evident in local Aboriginal communities was only exacerbated by the shortness of the consultation period (three months). He believed that the outcome might have been better had the parliament undertaken an “exhaustive educative program” over perhaps a full year.
Two key players later observed that it was not a lack of understanding nor the fearmongering that Perron alluded to that caused offence, but the inability of Aboriginal culture and law to find a way to deal with people being made dead legally at the hands of another.
Artist/activist Chips Mackinolty had worked as an adviser to NT Aboriginal organisations since the mid-1980s. He was commissioned to undertake an education program among Aboriginal communities about the operation of ROTI from June to October 1996.
Personally a supporter of euthanasia laws, Mackinolty reported that in 21 community meetings and 900 individual interviews, only two Aboriginal people expressed support for the law, and even then, only in private. He concluded that it was adherence to traditional views about life and death and not the influence of the Christian Churches that underpinned such overwhelming opposition.
Mackinolty gave testimony about his work and findings to the Senate Committee looking into the Euthanasia Laws Bill 1996 that eventually overturned ROTI in 1997. That testimony was summarised in an article in the Alternative Law Journal in 1997 (Vol. 22, No. 2, April 1997), where it becomes clear that his approach and objection is not so much about vulnerability as understood in the “whitefella” debate but a deeper problem with Aboriginals avoiding health services altogether out of fear of this strange medicine (and thereby exacerbating the already poor health outcomes for aboriginal people).
Six months earlier Rev Dr Djiniyini Gondarra had sent a “letter stick” to the Commonwealth Parliament urging MPs and senators to support the Federal Euthanasia Laws Bill (overturning ROTI), calling it a “sacred responsibility” to undo the “illegal action of sorcery” by the NT Parliament; which, he said, was an offence against Yolngu customary law.
Gondarra talked about the marrnggitj, or good doctor (healer), and the galka, or doctor-sorcerer, adding that Aboriginal peoples’ personification of good and evil in the doctors explained why the voluntary nature of ROTI made no difference to their thinking. (NB: the “letter stick”, or dharpa dhawumirr, is a message form of the Yolngu people of Arnhem Land)
Gondarra also explained that the Yolngu have a complete system of law that, in its observance, creates magaya, a state of peace, freedom from hostilities and justice for all. Western law has that aim also, though perhaps in the circumstances Gondarra could have been forgiven for thinking otherwise. But he does not; he cites to his great credit the Constitution of the Commonwealth of Australia and reminds us that section 51 holds a similar charge to “make laws for the peace, order, and good government” of the Commonwealth.
Mackinolty called it “right legislation: wrong jurisdiction”; a clear sign of his internal conflict and a conclusion drawn out of a very clear and deep love and respect for and understanding of Territory Aborigines. His candour is as refreshing as his priorities are sound. But I can’t help but think that this idea of a “state of peace, freedom from hostilities and justice for all” probably meant more back then in remote Territory camps and settlements than in urban Australia now.
There are bonds of kinship in Aboriginal culture that are difficult to describe in words. The sense of being in relationship with clan folk and the land has a sense of awe about it that speaks of the sacred and of profound respect.
Mackinolty explains: “I personally support my having access to euthanasia – but not in the Northern Territory. It is arguably the right legislation – but certainly in the wrong jurisdiction. My reasons for this are both simple and complex.
“Whether the legislation is good or bad for us, as whitefellas within our own cosmology, is immaterial. I believe the very existence of the legislation poses an unacceptable risk to the health of Aboriginal Territorians who may delay or refuse to access health care because of fears they have of the legislation. Those fears are deeply embedded in Aboriginal worldviews. Put simply, it has the potential to lead to premature deaths among a group of people whose life expectancy is already unacceptably low.”
This article is the first of two. In the second, Paul Russell takes up the views outlined here and applies them to another constituency who feel uneasy about legislating for death: the disabled.