The great political and social turmoil surrounding the passing of the RTI Act and its effective repeal has been widely reported, both in Australia and overseas. A chronology of significant events is set out for the reader's benefit in the Appendix. Although this chronology is by no means exhaustive,

it does give some indication of the thousands of pages of printed articles, petitions, Parliamentary Reports and newspaper columns devoted to the topic, not to mention several marathon Parliamentary sittings and lengthy court submissions. Personalities also featured heavily in the process, including prominent politicians, doctors, lawyers, church leaders, academics and the patients who were lethally injected prior to the passing of the overriding Federal Act.

Constitutional Status of the Northern Territory

The Commonwealth of Australia is a federation comprising six states.(1) The Northern Territory, originally forming part of the State of New South Wales until 1863, was then administered by the State of South Australia for almost fifty years until it was surrendered to Commonwealth control in 1911.(2) The surrender, which had been suggested at federation, was already contemplated by sections 111 and 122 of the Commonwealth Constitution(3) and was relatively uncontroversial. Mr. Justice Mitchell, the Government Resident and judge of the Territory at the time, urged Territorians to expect even more rapid progress in their affairs from the fact that [i]n place of one guardian there are now six."(4)

The Commonwealth of Australia currently exercises power over nine territories(5) but only three of these enjoy any measure of self-government: Norfolk Island, the Northern Territory and the Australian Capital Territory.(6) The last of these is home to the federal capital city of Canberra.

The Northern Territory was the first of the three to gain such privileges with the passage in 1978 of the Northern Territory (Self-Government) Act (Commonwealth). The federal source of this Act is section 122 of the Commonwealth Constitution, which relevantly provides that "[t]he Parliament may make laws for the government of any territory surrendered by any State" and these words have been widely interpreted by the High Court of Australia as conferring plenary power "to endow a territory with the institutions appropriate to self government."(7)

The legislative power of the Northern Territory, however, is subject to some restriction. Section 6 of the Self-Government Act gives the Territory Legislative Assembly power to make laws for the "peace, order and good government of the Territory"--provided such laws receive the "assent of the Administrator or the Governor General." These two figures deserve a brief explanation. The executive power of the Commonwealth is vested, by the Constitution, in the Governor General, who is the Queen's representative in Australia.(8) The Administrator of the Northern Territory is appointed by the Governor-General by Commission under the Seal of Australia and, technically, holds office during the pleasure of the Governor-General. He or she is charged with the duty of administering the government of the Territory.(9) Neither figure takes an especially active role in political life, most duties being ceremonial. When action is taken, it is invariably upon the advice of the relevant government cabinet minister, although recent federal history has seen the, dismissal of a Prime Minister by the Governor-General in the extraordinary circumstances of an exercise of so-called "reserve powers."(10)

Returning to the Self-Government Act, section 7 expands on the important notion of assent. It provides that all laws must be presented to the Territory Administrator for assent and upon such presentation the Administrator has two options. On the one hand, in respect of laws making provision "for or in relation to a matter specified under section 35," the Administrator may either declare that he assents, or that he withholds assent, to the proposed law. On the other hand, in respect of any other law, he also has the third option of reserving the proposed law for the Governor General's pleasure. Section 35 states simply that "[t]he regulations may specify the matters in respect of which the Ministers of the Territory are to have executive authority."

The distinction between matters listed in the regulations which have been given over to the executive authority of the Ministers of the Territory, and those not so listed, is an important one. Regulation 4(1) of the Northern Territory (Self-Government) Regulations 1978, provides that "[subject to sub-regulations (2) and (4), the Ministers of the Territory are to have executive authority under section 35 of the Act in the following matters:. ..."

There follows immediately a broadly expressed list including such matters as "maintenance of law and order and the administration of justice," "private law," "civil liberties," "public health," "child, family and social welfare" and "community, cultural and ethnic affairs." This list is to be further interpreted in light of sub-regulation 4(5)(h) which gives Ministers of the Territory executive authority regarding "matters incidental to the execution of any executive authority vested in the Ministers" and sub-regulation 4(3) provides that subject to sub-regulations (2) and (4) "the inclusion of any matter in sub-regulation (1) (whether with another matter or as a separate matter) does not derogate from or affect the generality of any other matter specified in that sub-regulation."

Thus it is seen that the breadth of interpretation of such matters as "civil liberties" and "private law" will affect whether the Administrator has open to him the additional check and balance of referring a proposed law to the Governor General or whether he may simply assent (or, withhold assent) to it of his own accord. If a matter is not listed under section 35 and yet the Territory Parliament sees fit to pass a law on it, the Administrator's assent (or lack of it) will in all cases be subject to the advice he receives from the relevant Federal Minister.(11) These rather technical matters will become significant when considering the Northern Territory Supreme Court challenge to the RTI Act of 1995.

They are also significant because they provide a somewhat tortured constraint on legislative power: such power being at first sight plenary ("for the peace, order and good government etc.") but only in respect of matters for which executive authority has been granted to the Territory. Whilst the list of such matters is long (and the list's interpretation will be dealt with below) it has been aptly described by one commentator as a "removable feast."(12) For matters where no executive authority has been granted to the Territory the Assembly may pass the laws it chooses but the Administrator must then, as already mentioned, perform his functions"(13) in compliance with directions given by the relevant Federal Minister.(14) Whether the Federal Minister in fact interferes is of less importance, it is submitted, than the symbolic fact he is able to do so.

As a final comment it is noteworthy that none of the provisions of the Northern Territory (Self-Government) Act of 1978 are entrenched and so they may be removed or altered by the enactment of ordinary Commonwealth legislation without recourse to the people or any other additional requirements such as special parliamentary majorities.(15)

Rights of the Terminally Ill Act 1995--Passage and Provisions

The RTI Act was passed by the Northern Territory Legislative Assembly on May 25, 1995 and assented to on June 16th of the same year. Due to intervening delays the Bill did not finally commence operation until July 1, 1996.

The Bill was first debated on February 22, 1995 as a Private Member's Bill introduced by Mr. Marshall Perron, the Chief Minister. Immediately upon its introduction the Bill was referred to a Select Committee which received evidence and conducted hearings throughout the Northern Territory. The Committee delivered its report on May 16, 1995 but did not make a recommendation on whether it should be passed. In the event that the Legislative Assembly decided to proceed with the Bill, however, the Committee recommended a number of changes to the Bill.(16)

Subsequent to its passing but before commencement there were two attempts to repeal the Act; first by way of simple repeal and second by way of the insertion of a sunset clause. Both attempts were defeated.

The Act as originally passed underwent major renovation via the RTI Amendment Act 1996, which passed the territory Assembly on February 20, 1996 and commenced operation on July 1, 1996.

In its final form the RTI Act contained 21 sections divided into the following four Parts: Part 1--Preliminary, Part 2--Request For And Giving Of Assistance, Part 3--Records and Reporting of Death, and Part 4--Miscellaneous. An additional Schedule sets out four forms--two declarations to be given by assisting medical practitioners, one form of declaration of interpreter and one form of "Request for Assistance to End My Life in a Humane and Dignified Manner." Section 21 of the RTI Act provides for the making of regulations, eight of which were set down on June 28, 1996.(17) Three schedules to the Regulations deal with Guidelines for Medical Practitioners, Special Qualifications in Palliative Care (as required by Section 7 and Regulation 5), and a Checklist for Medical Practitioner Assisting Patient.

So far as penalties for killing another are concerned, the key provision of the RTI Act is section 20 which provides an immunity against criminal or civil action or professional disciplinary action "for anything done in good faith and without negligence in compliance with this Act."(18)

A number of drafting and procedural problems were raised in relation to the RTI Act's final form and readers are referred to commentaries on this topic.(19) Prime concerns included outdated and unclear terminology, inconsistency, availability of interpreters for Aboriginal people and difficulties with the role of the coroner once the Act has been used. Many of these difficulties have been attributed to the haste in which the RTI Act was passed.(20)

The First Challenge--Wake v. Northern Territory

In mid-1996, the RTI Act 1995 was challenged in the Northern Territory Supreme Court. The first plaintiff, Dr. Wake, was a physician entitled to practice in the Northern Territory and President of the Northern Territory Branch of the Australian Medical Association. The second plaintiff was Djintyinni Gondarra, a senior member of the Golumala-Dhurili-Ringgitj people and a Minister of the Uniting Church.(21) He had terminally ill Aboriginal people(22) under his pastoral care. The action was brought against both the Northern Territory itself and also against its Administrator. The result was that the plaintiffs were unsuccessful and the RTI Act 1995 was declared valid by a 2-1 majority.(23)

There were two major grounds upon which the RTI Act was challenged: the first regarding legislative competence and the second relating to the technicalities of Crown assent to the Act.

The first challenge was in three stages. First it was alleged that in giving someone other than a Federal judge the power to kill another, the Act conferred judicial power upon non-judicial persons in breach of the doctrine of the separation of powers.(24) Second, it was argued that a common law inalienable right to life underlay the legislative competencies of both the Commonwealth and the Northern Territory and that the euthanasia legislation was incompatible with such a right. Finally, it was submitted that the words conferring legislative power on the Territory Legislative Assembly should be read down "so as not to empower the making of laws which allow the abolition of the suggested fundamental right without more specific words, bearing in mind that the Northern Territory has not yet achieved complete self-government."(25)

The first of these attacks was quickly dismissed by the majority based on the High Court case of R v. Bernasconi.(26) This case, decided in 1915, held that when judicial power was exercised in a Territory it was done so pursuant to section 122 of the Constitution, rather than Chapter III of the Constitution, which provides for a federal separation of powers.(27) This case could of course be reconsidered in the event of a High Court appeal from Wake v. Northern Territory.

The second attack, based on a right to life was also dismissed by the majority. While not deciding whether such a right existed, the majority held that even if it did exist it was clearly abrogated by the clear and unambiguous language(28) of the Act. The case of Coco v. The Queen(29) was cited in support and the fact that Coco dealt only with State Parliaments was not considered a distinguishing factor--State and Territory legislatures were to be treated similarly in regard to the clear and unambiguous language doctrine. The concept of common law fundamental rights will be discussed below.

The last of the challenges relating to legislative competence was not dealt with in any detail by the court but was subsumed by the reasoning just outlined.

Arguments relating to Crown (Royal) assent hinged upon what interpretation should be given to the Northern Territory (Self-Government) Regulations 1978. Significantly this was the ground upon which justice Angel found in favour of the plaintiffs and the following draws upon those matters outlined at the beginning of this essay.

The essence of Justice Angel's reasoning is best expressed by His Honour.

The Rights of the Terminally III Act (as amended) is unique. It is sui

generis. It is a composite whole. It establishes a regulatory regime for

the intentional termination of human life in stipulated circumstances.

In doing so, it removes all criminal, civil and professional sanctions

otherwise applicable to a medical practitioner who intentionally

terminates a patient's life or aids a patient to commit suicide in

accordance with stipulated procedures. ... In my view, the heads of

power in reg[ulation] 4 of the Northern Territory (Self-Government)

Regulations 1978 (Commw.), whether read liberally or restrictively, give

no warrant to the legislative establishment of institutional termination

of human life other than as punishment.(30)

Once the Regulations are so interpreted, the Administrator's purported assent under section 7(2)(a) of the Northern Territory (Self-Government) Act becomes insufficient and the Act is invalid. Only assent under section 7(2)(b) would have then been sufficient.

The Wake case was appealed to the High Court of Australia and a Special Leave application was heard on November 15, 1996. This application was then stood over pending consideration of the Euthanasia Laws Bill 1996 by the Federal Parliament.(31)

Federal Intervention--the Andrews Bill

On September 9, 1996 the Euthanasia Laws Bill 1996 was introduced into the House of Representatives--the lower house of the Australian Parliament. The Bill was presented by Mr. Kevin Andrews, M.P., as a Private Member's Bill and was designed to override and effectively repeal the RTI Act 1995. The Bill would achieve this by amending the Northern Territory (Self-Government) Act 1978 in such a way as to remove "the form of intentional killing of another called euthanasia" from the Territory's legislative competence and further, by declaring the RTI Act of "no force or effect as a law of the Northern Territory."(32) The House passed the Bill on a conscience vote on December 9, 1996 and it then proceeded to the Senate which referred the Bill to the Senate Legal and Constitutional Legislation Committee on November 7, 1996. The Committee received well over 12,000 submissions and its report(33) is instructive on a number of the legal issues facing the Parliament.

The Euthanasia Laws Bill also removed legislative competence from the Assemblies of the Australian Capital Territory and Norfolk Island by similar measures. Both the Northern Territory and Norfolk Island Assemblies responded by issuing a remonstrance to the Federal Parliament protesting their democratic rights and urging that the Euthanasia Laws Bill 1996 be dropped by the House.(34) The Bill was passed by the Australian Senate on Monday, March 24, 1997 and received Royal Assent on March 27, 1997.(35)

The Potential Effect on States Rights

Federal tensions between the States and the Commonwealth have characterized the Australian Commonwealth since its inception.(36) So far as there is potential for conflict between federal and state legislatures, Chief Justice Latham has noted that:

A State has no means of protecting itself against Commonwealth

legislation if that Commonwealth legislation is valid. The position in

the case of the Commonwealth, however, is very different. ... [T]he

Commonwealth parliament is in a position to protect the

Commonwealth against State legislation which, in the opinion of the

parliament, impairs or interferes with the performance of

Commonwealth functions or the exercise of Commonwealth rights.(37)

Following the U.S. model, the Commonwealth has pow& to legislate in respect to a limited number of subject matters, set out in sections 51 and 52 of the Constitution.(38) The key to Commonwealth superiority is section 109 of the Commonwealth Constitution which provides that "[w]hen a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid." It is clear on its wording that this section has no application to the Northern Territory, save by way of analogy.

The interaction of Commonwealth and Territory legislation has, however, been dealt with on a number of occasions and these will now be considered. In Attorney General (Northern Territory) v. Hand(39) the interaction of Territory and Commonwealth law was considered by the full Federal Court. After discussing previous High Court decisions in the area, which unfortunately were not determinative on the issue, Justices Lockhart, Beaumont and von Doussa held in favour of Commonwealth primacy. In particular, Justice Lockhart was of the view that the tests surrounding section 109 are "helpful signposts" in the resolution of conflicts between Commonwealth and Territory laws. His Honour noted:

The very basis of self government of the Northern Territory is the

Self-Government Act which is a statute resulting from the exercise of the

Commonwealth's plenary power under s[ection] 122 of the

Constitution. Whether the Commonwealth would exercise its power to

revoke the Self-Government Act doubtless would depend upon

conventions and political practices.

Thus, although a substantial degree of autonomy has been granted by

the Commonwealth to the Northern Territory, it falls far short of

Statehood and must be regarded as a particular exercise of

Commonwealth power pursuant to s[ection] 122 of the Constitution.(40)

After considering the specific sections of the conflicting Acts in that case, his Honour concluded that:

Although it is true that the Northern Territory has been created as a

new body politic with substantial powers of self-government it remains

that the Land Rights Act is a statute of the Commonwealth Parliament

which operates alongside legislation of the Northern Territory; but the

operation of the laws of the Northern Territory Government must not

conflict with applicable laws of the Commonwealth. If conflict arises

the Commonwealth laws have primacy.(41)

In words reminiscent of colonial times, when state legislatures were subject to the British Parliament, his Honour continued that:

It is beyond the power of the Northern Territory of Australia to make

laws repugnant to or inconsistent with laws of the Commonwealth or to

exercise powers conferred by Northern Territory laws in a manner

inconsistent with, or repugnant to laws of the Commonwealth. It is not

a question of inconsistency between the two sets of laws which may

otherwise be valid, rather it is a question going to the competency of

the subordinate legislature to enact laws or to cause laws to operate in a

manner inconsistent with or repugnant to laws of the paramount

legislature.(42)

Hand's case related to a conflict between the Aboriginal Land Rights (Northern Territory) Act 1976 (Commonwealth) and the Northern Territory Crown Lands Act 1931. It was held that the Northern Territory could not grant an estate in land once a claim had been lodged by Aborigines under the Federal Act. It is submitted that similar principles would be applied to resolve the inevitable conflict between the RTI Act and the Euthanasia Laws Bill 1996 (Commw.).(43)

Whether the Commonwealth power to override should in fact be exercised remains an issue. This issue was addressed in a number of submissions to the Senate Legal and Constitutional Committee. Professor Tom Campbell of the Australian National University was against federal intervention when he stated:

If the intrusion of the Commonwealth Parliament into this matter is

justified by the argument made by the Bill's proposer, namely that this

is a matter of fundamental rights, then this introduces a novel

constitutional basis for the exercise of Commonwealth power. There is

nothing in our Constitution to require that fundamental rights are not

equally the responsibility of States and by extension of Territories. The

Northern Territory has a responsibility and right to determine for itself

the implication of human rights in relation to such specific issues as

euthanasia.(44)

Submissions responding to this argument were generally of two kinds. First, there were those that dismissed States rights analogies on the simple basis that the Northern Territory is not a State and that "[c]onsistent with the lesser autonomy of the Territories and the plenary grant of power in s[ection] 122 of the Constitution is a greater responsibility on the part of the Commonwealth for the laws and government of the Territories."(45)

Second, there were those that conceded some weight to the argument but still justified Commonwealth intervention in "very rare circumstances" such as:

where no State has similarly legislated; where the Territory law is a

grave departure from the law in all equivalent countries; where the

Territory law impacts on the national social fabric outside the Territory;

and where the Territory law has been enacted without sufficient regard

for the risks and added burdens to its own more vulnerable citizens,

especially Aborigines. This is such a circumstance.(46)

The resolution of the fundamental rights v. States rights argument calls for a judgment about the hierarchy of rights when decisions about living and dying come up against principles of democratic government.(47)

The charge that federal interference is undemocratic deserves closer attention, especially in the light of recent Australian constitutional history and more enduring theoretical reflections on the nature of democracy itself.

First, it must be remembered that the Commonwealth has and does override States rights regularly, though not without controversy. The most celebrated example of this is the Tasmanian Dam case(48) where the Commonwealth made use of various heads of its legislative power to prevent the State of Tasmania from proceeding with the construction of a dam in that State, the mandate for which was contained in State legislation.(49) The State of Queensland has also made the claim that the "the traditional balance of power between the Commonwealth and the States is being destroyed by the `expansionary interpretation' of Commonwealth power."(50) Another recent example of this is Mabo v. Queensland(51) where the High Court held that the Queensland Coast Islands Declaratory Act 1985 was invalid due to inconsistencies with the Racial Discrimination Act 1975 (Commonwealth). Both Mabo and Tasmanian Dam called for an application of section 109 of the Constitution discussed supra. Whilst not forgetting that the Northern Territory is not a State, even if it were, it could be made subject to Commonwealth laws in many circumstances.

Second, the States have to date shown little desire to admit the Northern Territory to Statehood. In part this stems from a perception that the time is not yet ripe and additionally, such a development would substantially alter the balance of power in the federation, especially in the States' House of the Federal Parliament, the Australian Senate.(52)

Third, it is claimed that the Parliament of the Northern Territory is small by Australian standards and that the RTI Act was passed in haste and by a very narrow margin.(53) This could be termed the argument from democratic deficit.

Fourth, it is argued that laws such as the RTI Act are of national concern and are therefore properly within range of the Federal Parliament. This argument, in particular, raises the issue of whether the Federal Parliament could ever interfere with a state act which proposed to legalize euthanasia. The constitutional heads of power available to do this are few in number; possibilities include the external affairs power pursuant to some treaty entered into by the Federal Government, including the International Covenant on Civil and Political Rights, although experts before the Senate Committee did not foresee such reliance as likely to succeed.(54)

In addressing these four points it may be conceded that merely because States have been overridden in the past does not justify Commonwealth interference in the present case; that the States' reluctance to raise the Northern Territory to statehood is irrelevant; that the perceived democratic deficit is likewise irrelevant because beyond a certain threshold size neither adds nor subtracts democratic character; and finally that the preservation of democratic principles is of at least equal weight to the principle that matters of "national concern" deserve federal intervention.(55)

However, none of these concessions will be fatal to the justification of the Andrews Bill in the event that it can be demonstrated to be still essentially democratic in nature, once that term is properly understood. The following paragraphs will attempt to do this by examining what is meant by a democratic principle and highlighting its limits. In conclusion some thoughts will be offered on the role of fundamental or deep rights in the legislative and judicial process in an Australian context and the compatibility of such rights with the doctrine of Parliamentary sovereignty.

Democratic Government and Conflict Between Parliaments

Modern democracy is a system of government wherein authority and power are typically exercised by a few elected representatives. It is wrong, however, to suggest that those elected are able and obliged to respond to the wishes of the voters in every respect and on every issue. This notion is especially so in regard to laws made for the whole population; representatives are not mere coach drivers who respond always to the commands of those governed.(56) If this were the case a civil society would soon disintegrate. Yves Simon expressed this best in 1951 when he noted:

In the coach-driver theory ... my personal consent to the law is

essential. I feel obligated to abide by the law if, and only if, I wanted

the law to be what it is. Clearly, I abide by the law not on account of its

essence as law but because of my incidental approval of it. If the

coach-driver theory should ever be received in a spirit of strict

consistency, society would soon be destroyed by secession.(57)

It follows then that these elected representatives are charged with the task of government which in this sense means exercising an authority which finds its roots outside the bounds of the wishes of the individual voters. Thus, in one sense, once an election is completed the wishes of the people may become subordinate to the exigencies of government. This idea is quite different from arbitrary exercise of power and in Australian Parliaments is subject to all the conventions of the so-called Washminster system of government,(58) and to the sanction of the next election in the event that pre-election promises are broken.

In the case of the Andrews Bill, however, a special problem arises. It seems that two sets of representatives, or more particularly, two democratically elected Parliaments, are in conflict and the fact that one is seen to override the other calls for some acceptable theoretical resolution.

The resolution, it is submitted, lies in reconsidering the subordinate nature of the Territory Parliament and the relation Territorians have to the Federal Parliament. Under the Australian electoral system, Territory citizens are entitled to vote for Members who represent them in both the Australian Senate and the House of Representatives. This representation was granted under the power of section 122 of the Constitution as early as 1922(59) and has since been expanded to provide for one Member of the House of Representatives and two Senators to represent the Northern Territory.(60) This representation is significant because it confirms Territorians have a democratic representative voice in both the Territory and Federal Parliaments. Territorians participate in federal elections with the knowledge that the source of their participation is a federal Act based on the same section of the Constitution (section 122) which establishes the Northern Territory Parliament. Conflict between a Territory law and a Federal law, as in the case of the RTI Act (NT) and the Andrews Bill, can only be resolved in favour of the Commonwealth since it is the source, in a legal sense, of both Acts and also of the very mechanism whereby representatives are selected to exercise authority over and on behalf of Territorians.

Now, a return to the coach-driver theory of democracy. Territorians are permitted to vote in both Territory and Commonwealth elections and, if one accepts Simon's analysis, neither set of representatives is bound to the wishes of each individual voter. Putting this more positively, each representative has a mandate to govern in accordance with what they consider, in all the circumstances, to be for the "peace, welfare and good government" of the Territory and the Commonwealth as a whole. When seen in this light, problems of conflicting legislatures are overcome by the notion that one set of representatives, which to the full knowledge of voters occupies a superior position in the Constitutional hierarchy, decides that an inferior legislature has made a mistake and intervenes accordingly.

Deep Rights in a Democratic Context

Considering the remainder of Simon's Philosophy of Democratic Government is too great a task for this article. But it can surely be stated that for Simon the democratic principle is meant to serve the greater goal of good government. It is not an end or a good in itself but only in so far as it promotes the true freedom of persons and the community.

Recent comments by leading jurists in Australia and also in New Zealand have explored the role of the courts in defining the limits of power residing in the sanctuary of the democratic principle, the Parliament. Justice Michael Kirby of the High Court, in commenting on the deep rights theory expounded most notably by the former President of the New Zealand Court of Appeal, Lord Cooke,(61) branded as "a heresy" the concept that there could possibly be common law rights so deeply entrenched as to be beyond the reach of an elected Parliament.(62) In part this condemnation was prompted by Justice Cooke's comments in Fraser v. State Services Commission(63) that "some common law rights may go so deep that even Parliament cannot be accepted by the courts to have destroyed them." To date neither in Australia nor New Zealand has any statute been held invalid by a court for trenching on common law rights, yet the possibility remains open, as the very existence of the discussion indicates.

In an article in the New Zealand Law Journal published in 1988(64) President Cooke sets out a survey of modern authorities on the issue. At one end of the spectrum we observe Lord Reid's comments in Pickin v. British Railways Board.(65)

I must make it plain that there has been no attempt to question the

general supremacy of Parliament. In earlier times many learned lawyers

seem to have believed that an Act of Parliament could be disregarded in

so far as it was contrary to the law of God or the law of nature or

natural justice, but since the supremacy of Parliament was fully

demonstrated by the Revolution of 1688 any such idea has become

obsolete.

And in contrast with this, Lord Wilberforce in Vesty v. IRC(66) opines:

The result of the preceding argument is that, if Congreve is correct in

this respect, a result is produced, the case of discretionary trusts, which

is arbitrary, unjust, and in my opinion unconstitutional. That must cast

doubt on the decision. For it is a well accepted principle that if one

interpretation of an Act of Parliament produces such a result, but

another avoids it, the latter is to be preferred.(67)

Where there is a written constitution a further complication arises when reliance on implications in the constitutional text are used to break Parliament's power.(68) Demonstrating this approach is the minority judgment of Sir Laurence Street, then Chief justice of the New South Wales Court of Appeal in Builders' Labourers Federation v. Minister of Industrial Relations.(69) Chief Justice Street commented on the New South Wales Constitution which gives Parliament power to "make laws for the peace, welfare and good government" of the State.(70)

For my own part, I prefer to look to the constitutional constraints of

`peace, welfare and good government' as the source of power in the courts

to exercise an ultimate authority to protect our parliamentary democracy,

not only against tyrannous excesses on the part of a legislature that may

have fallen under extremist control, but also in a general sense as limiting

the power of Parliament. I repeat what I have said earlier--laws inimical

to, or which do not serve, the peace, welfare and good government of our

parliamentary democracy, perceived in the sense I have previously indicated,

will be struck down by the courts as unconstitutional. There is here a field

on constitutional jurisprudence which has not as yet been explored and

developed.

However, reliance on the written text of the constitution in many ways simply begs the question by leaving open the meanings to be read into and implied from the words themselves. Recent High Court authority has turned decisively against the "notion that there are fundamental rights which must prevail against the will of the legislature."(71) Strong statements have also been made regarding the dangers of constitutional implications which are alleged to arise from doctrines that "underlie the constitution."(72) It may even be true to say that a stricter legalism is now at work as the Court is always "brought back to the text in the end."(73) These approaches are reminiscent of that of former Chief justice of the High Court, Sir Owen Dixon, one of the most prominent common lawyers of this century. Sir Owen saw "no other safe guide to judicial decisions in great conflicts than a strict and complete legalism."(74)

Leaving aside the academic puzzle of whether fundamental common law rights exist, whether they control or are controlled by a written constitution and when they may be invoked--they clearly played little role in the decision in Wake v. Northern Territory. Both Chief Justice Martin and Justice Mildren sitting in the original challenge to the RTI Act rejected a constraint on legislative power by reference to "rights deeply rooted in our democratic system of government and the common law." They went on to distinguish the situation before them from one in which a legislature was bound by a constitutional Bill of Rights, an innovation which the Australian body politic has thus far rejected.(75)

Conclusion

It is a happy fact that to date neither the Andrews Bill nor the RTI Act has been the subject of decision before the High Court of Australia. This is most appropriate in light of the difficulties of deep rights and the separation of powers issues just discussed because in matters like euthanasia, where views can be sincere, strongly held and completely polarized, the Parliament is a far more appropriate forum (it is the forum) for discussion and decision. That the third arm of government, the judiciary, is rarely called upon to adjudicate upon such matters in the Australian constitutional context is something for which Australians should be most grateful.(76) It is submitted that this fact should also be weighed by advocates of an Australian Bill of Rights.

The alternative, namely that the judiciary be confronted with and decide upon life and death issues, would justifiably lead to far greater angst and to offense against representative democracy as practiced in Australia.

Appendix--Chronology of Significant Events

Feb. 1, 1995

Marshall Perron, Chief Minister of the Northern Territory announces plan to legalize active voluntary euthanasia.

Feb. 22, 1995

Rights of Terminally Ill (RTI) Bill introduced to Northern Territory Legislative Assembly and Assembly establishes Select Committee to examine the Bill.

May 16, 1995

Territory Assembly Select Committee reports on the Bill.

May 24, 1995

Second reading vote on RTI Bill passes 13-12.

May 25, 1995

Third reading vote passes by 15-10 majority during early hours of the morning.

June 16, 1995

Administrator of the Northern Territory assents to the RTI Bill and it becomes law.

Oct. 8, 1995

The Australian Prime Minister, Hon. Paul Keating advises the NT Parliament that the legislation is within power and not a matter for disallowance under section 9 of the Northern Territory (Self Government) Act 1978.

Nov. 23, 1995

Rights of the Terminally Ill Amendment Bill introduced into NT Legislative Assembly.

Feb. 20, 1996

RTI Amendment Bill debated and passed.

May 15, 1996

Private Member's Bill introduced into NT Legislative Assembly to repeal the RTI Act (the Bell Bill).

June 6, 1996

Northern Territory Administrator fixes July 1, 1996 as the day on which the amended RTI Act will come into operation.

June 17, 1996

Dr. Wake and Rev. Gondarra commence proceedings in Supreme Court of Northern Territory seeking an injunction to stop proclamation of RTI Act.

June 21, 1996

Chief justice Martin of NT Supreme Court refuses injunction and refers matter to Full Court.

July 1, 1996

RTI Act comes into operation.

July 24, 1996

Supreme Court of Northern Territory decides 2-1 that the RTI Act is a valid law of the Territory. (Wake v. Northern Territory, 124 F.L.R. 298.)

Aug. 21, 1996

The Bell Bill (see May 15, 1996) debated and defeated 14-11.

Aug. 21, 1996

Mr. Eric Poole, Member of the Northern Territory Legislative Assembly, seeks to amend the RTI Act to stop it from operating in public hospitals and health clinics. This amendment is defeated 15-10.

Sept. 9, 1996

Andrews Private Members Bill introduced into Australian House of Representatives to effectively repeal RTI Act.

Sept. 22, 1996

Mr. Bob Dent is first person to self-administer a lethal injection under the Northern Territory law using a computer-controlled injection mechanism provided by Dr. Philip Nitschke. Subsequent deaths under the law occurred on January 2, 1997, January 20, 1997 and March 1, 1997.

Nov. 7, 1996

Senate Selection of Bills Committee recommends and Senate agrees to refer Andrews Bill to Senate Legal and Constitutional Legislation Committee for inquiry and report.

Dec. 10, 1996

The 148-seat Australian House of Representatives vote 88-35 in favor of the Andrews Bill. Twenty-five Members did not vote.

March 6, 1997

Senate Legal and Constitutional Committee Report released.

Mar. 25, 1997

The seventy-six-seat Australian Senate vote 38-33 in favor of Andrews Bill. Five Senators did not vote. The vote concluded after 1 a.m.

Mar. 27, 1997

Euthanasia Laws Bill receives Royal Assent and becomes law in the Commonwealth of Australia.

(1) New South Wales (N.S.W.), Victoria (Vict.), South Australia (S. Austl.), Queensland (Queensl.), Tasmania (Tas.) and Western Australia (W. Austl.).

(2) See Northern Territory Surrender Act 1907 (S. Austl.) & Northern Territory Acceptance Act 19 10 (Commw). The Surrender Agreement was dated Dec. 7, 1907.

(3) Section 122 provides for the government of territories:

122. The Parliament may make laws for the government of any territory

surrendered by any State to and accepted by the Commonwealth, or of any

territory placed by the Queen under the authority of and accepted by the

Commonwealth, or otherwise acquired by the Commonwealth, and may allow the

representation of such territory in either House of the Parliament to the

extent and on the terms which it thinks fit.

The Constitution of the Commw. of Australia is contained in [sections] 9 of an Act of the British Parliament: 63 & 64 Vict., Ch. 12.

(4) NORTHERN TERRITORY TIMES, Palmerston, Jan. 6, 1911.

(5) Norfolk Island, the Australian Capital Territory, the Northern Territory, Ashmore and Cartier Islands, Australian Antarctic Territory, Heard and McDonald Islands, Cocos (Keeling) islands, Christmas Island and Coral Sea Islands.

(6) See Norfolk Island Act 1979 (Commw.); Northern Territory (Self-Gov't) Act 1978 (Commw.); & Australian Capital Territory (Self-Gov't) Act 1988 (Commw.).

(7) Cap. Duplicators Pty Ltd. v. Austl. Cap. Territory, 177 CLR 248, 265 (1992) (Mason, CJ., Dawson and McHugh, JJ.). See also G.R. Nicholson, The Constitutional Status of the Self-Governing Northern Territory, 59 AUSTL. L. J. 698 (1985). The Northern Territory's ultimate path to statehood remains, it would seem, unclouded by the controversy surrounding the RTI Act 1995 (NT) and progress has been steady in this direction since at least 1947.

(8) CONST., Ch. II, [sections] 61, " The Executive Government."

(9) Northern Territory (Self-Gov't) Act 1978 (Commw.), [sections] 32 (hereinafter "Self-Government Act").

(10) This event took place in 1975 when The Governor General, Sir John Kerr, dismissed Prime Minister Gough Whitlam in a crisis over supply. See generally GEOFFREY SAWER, FEDERATION UNDER STRAIN: AUSTRALIA, 1972-75 (1977).

(11) See Self Government Act, supra note 9.

(12) D. Whalan, Aspects of Northern Territory Law: Backbone or some Skeletons in the Constitutional Cupboard, in NORTHERN AUSTRALIA OPTIONS AND IMPLICATIONS, RSPacS (Rhys Jones ed., Austl. Nat'l U., Canberra, 1980). Other constraints on Territory Legislative power are also found in the Self Government Act, though of a different nature. See e.g., [sections] 50 which prescribes that any acquisition of property must be on just terms.

(13) Including assenting to the law, withholding assent or reserving the law for the Governor General's pleasure.

(14) See Self Government Act, supra note 9. To further complicate matters, [sections] 9 provides that the Governor General may disallow the whole or part of a law within six months of the Administrator's assent. This unconventional option was not considered in respect to the euthanasia law.

(15) This situation is to be compared with that in relation to the Commw. Constitution and limited aspects of state constitutions.

(16) See Northern Territory, Legislative Assembly, Report of the Inquiry by the Select Committee on Euthanasia, The Right of the Individual or the Common Good? (May 1995).

(17) Northern Territory of Austl., Regs No. 34 (1996).

(18) The full text of [sections] 20 reads as follows:

20. IMMUNITIES

(1) A person shall not be subject to civil or criminal action or

professional disciplinary action for anything done in good faith and without

negligence in compliance with this Act, including being present when a

patient takes a substance prescribed for or supplied to the patient as the

result of assistance under this Act to end the patient's life.

(2) A professional organization or association or health care provider

shall not subject a person to censure, discipline, suspension, loss of

licence, certificate or other authority to practice, loss of privilege,

loss of membership or other penalty for anything that, in good faith and

without negligence, was done or refused to be done by the person and which

may under this Act lawfully be done or refused to be done.

(3) A request by a patient for assistance under this Act, or giving of

such assistance in good faith by a medical practitioner in compliance with

this Act, shall not constitute neglect for any purpose of law or alone

constitute or indicate a disability for the purposes of an application under

section 8 of the Adult Guardianship Act.

(4) A health care provider is not under any duty, whether by contract,

statute or other legal requirement, to participate in the provision to a

patient of assistance under this Act, and if a health care provider is unable

or unwilling to carry out a direction of a medical practitioner for the

purpose of the medical practitioner assisting a patient under this Act and

the patient transfers his or her care to another health care provider, the

former health care provider shall, on request, transfer a copy of the

patient's relevant medical records to the new health care provider.

(19) See D. Mendelson, The Northern Territory's Euthanasia Legislation in Historical Perspective, 3 J. L. & MED. 136 (1995); Michael Ashbury, Hard Cases, Causation and Care of the Dying, 3 J. L. & MED. 152 (1995); David Ranson, The Coroner and the Rights of the Terminally Ill Act 1995 (NT), 3 J. L. & MED. 169 (1995); M. Eburn, Voluntary Euthanasia: Making the Law, 33 L. Soc'y J. 40 (NSW) (July 1995); K.S.M. Clark, Submission to Senate Committee. In respect of problems with a Bill introduced into the Australian Capital Territory's Legislative Assembly in 1993 (defeated 1995), see L. Bunney, A Right to Die: Has Patient Autonomy Gone Too Far? 2 AUSTL. HEALTH L. BULL. 1 (Oct. 1993).

(20) The Bill was reportedly debated "over 15 hours and the matter was referred to the Committee at 11 p.m. where discussion of 50 amendments to the original Bill lasted to 3:30 a.m." See Eburn, supra note 19.

(21) The Uniting Church was formed in 1977 with membership from the Methodist, Presbyterian and Congregational churches. The Reverend Gondarra also gave evidence before the Senate Legal and Constitutional Committee, See Committee Report on the Euthanasia Laws Bill 1996, at 54 (Mar. 1997).

(22) The euthanasia laws were of great concern to the Aboriginal community, as evidenced by the "Letter Stick" delivered to the Federal Parliament set out below. All of Ch. 5 of the Senate Report is devoted to this issue. For further detail on the recognition of Aboriginal customary laws see Report of the Australian Law Reform Commission, The Recognition Of Aboriginal Customary Laws, Rep. No. 31, Canberra (1986).

A Letter Stick For the Federal Parliament

This letter stick (darpa dhawumirri) is sent because it follows the ancient

practice of our people (Yolnu) when communicating with trading partners, in

diplomatic alliances, or between parliaments. This message is a special form

of communication between the Parliaments of the Yolnu Nation/States within

East Arnhem Land, and the Commonwealth Parliament of Australia. It contains,

within the markings, a reference to Magaya, which is the responsibility of

the Parliament to the citizens. Magaya is the peace, order and good

government afforded the people constitutionally under Customary Law in a

manner similar to the Australian Constitution as stated in section 51.

The Rights of the Terminally Ill Act of the Northern Territory is seen as

breaking these fundamental constitutional responsibilities placed upon the

parliament. Further, Yolnu Customary Law--`Common Law'--defines the

enactment of the NT Act as an illegal action of sorcery punishable at law.

For this reason this message endorses the action of Kevin Andrews MP to

bring a private member's Bill which will overturn the NT Act. Indeed it

is the sacred responsibility of this parliament to do this.

See Hansard, House of Representatives 5908 (Oct. 28, 1996).

(23) Chief justice Martin & Justice Mildren declared the Act valid justice Angel was in dissent.

(24) This doctrine is enshrined in Ch. III of the Commw. Constitution.

(25) 124 F.L.R. 298, 301 (1996) (Martin, C.J. & Mildren, J.).

(26) 19 C.L.R. 629 (1915).

(27) State courts have generally held that the doctrine of the separation of powers does not apply to State legislatures, State constitutions being generally silent on the matter. However the recent decision in Kable v. D.P.P. (NSW), 138 A.L.R. 577 (1996), would indicate otherwise, at least where a State court was exercising federal jurisdiction.

(28) 124 F.L.R. at 307 (1996).

(29) 179 C.L.R. 427, 437 (1993-94).

(30) 124 F.L.R. at 313-14. His Honour went on to provide further details as to why the Act was beyond power including the fact that it purported to fundamentally change the medical profession, rather than merely regulate it, that it mandated the decriminalization of acts which would otherwise constitute murder, and that the RTI Act was not "proportional" to any of the heads of power given to the NT Legislative Assembly.

(31) See Wake v. N. Territory, High Ct. of Austl., No. D 10 (1996).

(32) Note that it would not be possible, based on the High Ct. Authority of Cap. Duplicators Pty Ltd. v. Austl. Cap. Territory, No. 1, 177 C.L.R. 248 (1992), for the Commw. Parliament to directly repeal the Northern Territory statute. See also A. Twomey, Submission to Senate Legal and Constitutional Legislation Committee, Dec. 1996. The real effect of the Andrews Bill then is to leave the RTI Act lying dormant on the Northern Territory's statute books. The RTI Act may revive if the Commw. Parliament were ever to repeal the Andrews Bill, or possibly if the Northern Territory were to become a State. On this latter option see R.D. Lumb, The Northern Territory and Statehood, 52 AUSTL. L. J. 554-61 (1978).

The most important provisions of the Andrews Bill are set out in sections 1 and 2:

1 After section 50

Insert

50 A Laws concerning euthanasia

(1) Subject to this section the power of the Legislative Assembly conferred

by section 6 in relation to the making of laws does not extend to the making

of laws which permit or have the effect of permitting (whether subject to

conditions or not) the form of intentional killing of another called

euthanasia (which includes mercy killing) or the assisting of a person

to terminate his or her life.

(2) The Legislative Assembly does have power to make laws with respect to:

(a) the withdrawal or withholding of medical or surgical measures for

prolonging the life of a patient but not so as to permit the intentional

killing of the patient; and

(b) medical treatment in the provision of palliative care to a dying

patient, but not so as to permit the intentional killing of the patient; and

(c) the appointment of an agent by a patient who is authorized to make

decisions about the withdrawal or withholding of treatment; and

(d) the repealing of legal sanctions against attempted suicide.

2 Application

For the avoidance of doubt, the enactment of the Legislative Assembly called

the Rights of the Terminally III Act 1995 has no force or effect as a law

of the Territory, except as regards the lawfulness or validity of anything

done in accordance therewith prior to the commencement of this Act.

(33) See The Parliament of the Commw. of Austl. Senate Legal and Constitutional Legislation Committee--Euthanasia Laws Bill 1996, report issued Mar. 1997. The Report was not unanimous.

(34) See Hansard, supra note 22, at 5888.

(35) Act No. 17 of 1997.

(36) See e.g., the comments in HANKS, CONSTITUTIONAL LAW IN AUSTRALIA (1996): "The structure of our federal system, the wide-ranging activities of Commonwealth and State governments, and extensive Commonwealth and State regulatory legislation give rise to the fundamental problem of the legal or juristic relationship between Commonwealth and States." Id. at 228.

(37) See Uther v. Fed. Commissioner of Tax'n, 74 C.L.R. 508, 520 (1947) (Latham, C.J.).

(38) Section 51 lists 39 heads of power ranging across such topics as 51(i)--Trade and commerce with other countries, and among the states, 51(xv)--Weights and measures, 51(xxix)--External affairs. Section 52 gives the Commw. Parliament exclusive power to deal with such matters as the seat of government and the Commw. public service.

(39) 25 F.C.R. 345; 90 A.L.R. 59 (1989).

(40) Att'y Gen., N. Territory v. Hand, Minister, Aboriginal Aff. & Others, 25 F.C.R. 345, 365 (1989).

(41) Id. at 366.

(42) Id. at 366-67.

(43) A number of recent High Court cases have considered the Territories power, though without direct implications for the Hand decision. These cases include Cap. Duplicators Pty Ltd. v. Austl. Cap. Territory, 177 C.L.R. 248 (1992); Kruger v. Commw., 146 A.L.R. 126 (1997). The latter concerned a claim for compensation by Aboriginal people who were removed from their families as young children and placed in institutions or on reserves.

(44) Senate Legal and Constitutional Legislation Committee-Euthanasia Laws Bill 1996, Mar. 1997, [paragraph] 3.6.

(45) Senate Committee Submission No. 4021, Mr. M. Sneddon, Senior lecturer in law, Monash University, at 2, 3.

(46) Senate Committee Submission No. 7399, Father Frank Brennan S.J., at 11.

(47) See Senate Committee Submission No. 4051, Calvary Hospital, at 1 (stating that "There is a hierarchy of rights: States Rights cannot over-ride matters of life and death.").

(48) 158 C.L.R. 1 (1983).

(49) See Gordon River Hydro-Electric Power Development Act 1982 (Tas.); National Parks and Wildlife Conservation Act 1975 (Commw.); and World Heritage Properties Conservation Act 1983 (Commw.).

(50) See Submission of Queensland Premier to Constitutional Commission's Advisory Committee on the Distribution of Powers (1987), at 82.

(51) 166 C.L.R. 186 (1988).

(52) Note, however, recent softening by the state N.S.W. reported in THE AUSTRALIAN,Mar. 20, 1997, at 4. On the Northern Territory's push for statehood, see Select Committee on Constitutional Development, Discussion Paper on a Proposed New State Constitution for the Northern Territory, Oct. 1987. See generally AUSTRALIA'S SEVENTH STATE (P. Loveday & P. McNab eds., The Law Soc'y of the Northern Territory and the Northern Australia Research Unit, the Australian Nat'l U., 1988).

(53) The final vote was 13 to 12.

(54) See Senate Legal & Constitutional Legislation Committee--Euthanasia Laws Bill 1996, Mar. 1997, Att'y-Gen.'s Dept., Evidence, at 214.

(55) That is to say, a kind of "subsidiarity" doctrine should apply to preserve the Northern Territory's sovereignty against that of a larger Commw. which is not in as ideal a position to know what is good for Northern Territorians.

(56) E.g., the voters. The concept of the franchise is beyond the scope of this article, though it is conceded that there are citizens who do not vote and remain subject to the laws of an elected government. Voting is generally compulsory throughout Australia. See e.g., Commw. Electoral Act 1918, [sections] 245 (Commw.), Parliamentary Electorates and Elections Act 1912, [sections] 120 F (N.S.W.).

(57) Yves R. Simon, PHILOSOPHY OF DEMOCRATIC GOVERNMENT 153 (1993). Simon attributes the "coach driver" analogy to Paul-Louis Courier, whom he described as "a liberal, a rebel in the petty bourgeois style, a Voltairean, a humanist in perpetual revolt against church and state." Id. at 147.

(58) The Washminster system is an admixture of the English traditions found at Westminster, such as responsible government and the separation of powers, together with some aspects of the government of the United States of America such as a federal structure and a written constitution setting out a division of powers.

(59) Northern Territory Representation Act 1922 (Commw.).

(60) See Commw. Electoral Act f918, Part III, Div. 2 (Representation of the Territories in the Senate) & Part III, Div. 3 (Representation of the States and Territories in the House of Representatives).

(61) Lord Cooke took up a position with the British House of Lords in 1996.

(62) The Struggle for Simplicity-Lord Cooke and Fundamental Rights (paper presented at the New Zealand Legal Research Foundation, Auckland, Apr. 4-5, 1997).

(63) 1 N.Z.L.R. 116, 121 (1984). For variations on this theme see Brader v. ministry of Transport, 1 N.Z.L.R. 73 (1981); N.Z. Drivers' Ass'n v. N.Z. Road Carriers, 1 N.Z.L.R. 374 (1982); Taylor v. N.Z. Poultry Board, 1 N.Z.L.R. 394 (1984).

(64) Rt. Hon. Sir Robin Cooke, Fundamentals, N.Z.L.J. 158 (1988). See also PHILLIP A. JOSEPH, CONSTITUTIONAL AND ADMINISTRATIVE LAW IN NEW ZEALAND 443-45 (1993).

(65) A.C. 765, 782 (1974).

(66) A.C. 1148, 1174 (1980).

(67) Id. It is arguable whether this statement embodies a true limitation on Parliamentary power or merely states a rule of statutory interpretation.

(68) For example, the so-called "words of limitation" found in the grant of power under [section] 51 of the Commonwealth Constitution: "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to. ..."

(69) N.S.W.L.R. 372, 405 (1986). Chief justice Street's view was described as `somewhat surprising' by the High Court in Union Steamship Co, of Austl. v. King, 166 C.L.R. 1, 9 (1988).

(70) See CONST. Act 1902 (N.S.W.), [section] 5.

(71) Kable v. Dir., Pub. Prosecutions, 138 A.L.R. 577, 590 (1996) (Dawson, J.). His Honour also observes that "a legislature wishing to enact a statute ordering that all blue-eyed babies be killed would hardly be perturbed by a principle of law which purported to deny it that power." Id. See also comments in Kruger v. Commw., 146 A.L.R. 126.

(72) See McGinty v. W. Austl., 186 C.L.R. 140, 231-32 (1996) (McHugh, J.).

(73) See id., Justice Dawson's opinion, at 184. Immediately prior to this His Honour states "if implications are to be drawn, they must appear from the terms of the instrument itself and not from extrinsic circumstances. The distinction has been drawn between textual and structural implications, but I am not sure that the distinction is helpful. Whether or not an implication is categorised as structural or not, its existence must ultimately be drawn from the text." Id.

(74) Speech upon swearing in of Sir Owen Dixon as Chief Justice, 85 C.L.R. xiv (1952).

(75) See PETER BAILEY, HUMAN RIGHTS: AUSTRALIA IN AN INTERNATIONAL CONTEXT, Ch. 3 (1990). See also A. Mason, A Bill of Rights for Australia? 5 AUSTL'N Bar Rev. 79 (1989).

(76) Recent discussions in the United States show a high level of concern at the notion of judicial activism. See e.g., HADLEY ARKES, BEYOND THE CONSTITUTION (1990). For an excellent discussion of more philosophical issues, including some Australian perspectives on the U.S. situation, see Donald Robertson, The Withdrawal of Medical Treatment from Patients: Fundamental Legal Issues, 70 AUSTL'N L. J. 723-46 (1996).

Patrick Quirk, LL.B., LL.M., Assistant Professor of Law, Bond University Law School; B.A., LL.B. (Qld), LL.M. (Tubingen). Thanks to Associate Professor Gerard Carney, Adjunct Teaching Fellow Alexandra Merrett and my reviewers for their numerous helpful comments and suggestions on an earlier draft of this article. Thanks also to Jeffrey Wilks and Lyn Griffiths for assistance with research and to Jay Forder for technical assistance. Responsibility for views expressed remains with the author. This article is dedicated to my family.