Page 3518 - Week 12 - Wednesday, 12 October 1994
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that there clearly could be confusion in this area that would be removed by the amendment. I do not think anyone would suggest that the amendment would cause other problems. Mr Moore might have something to say about that. I invite members to make their comments on this particular clause and amendment.
MR CONNOLLY (Attorney-General and Minister for Health) (11.59): Madam Speaker, the Government will not be supporting this amendment, because we believe that it is redundant. The amendments which have previously been put and explained make it clear - put it beyond doubt, if there were any doubt - that this is not a Bill about active euthanasia. The objection to that is based on an opinion from Mr Francis, QC, of the Melbourne Bar. Mr Francis's opinion acknowledges, at page 5, that if a court looks at the debates it will be clear from my statements in bringing in those amendments what the intention of the chamber was. He then says that you can go to the debate only if there is doubt and that a court may think that there is no doubt that clause 22 was meant to totally abolish the rules on murder and suicide and to mean active euthanasia. I think that is an enormous leap of faith. Having said that at page 6, he then goes on to say:
The meaning is, however, at least sufficiently uncertain for a judge, when determining its meaning, to be strongly influenced by his own personal views on euthanasia.
If the fear is that it is so uncertain, that is an acknowledgment that the legislative trigger for bringing in the external debates has been sprung and you go back to those paragraphs that Mr Francis himself quotes on page 5, which make it clear that it is not our intention.
On this question of double intent, as it has been referred to by the law, Mr Francis refers to Adams's case. Although he says that it is well established, he raises some doubts as to whether it would be changed by the enactment of clause 22. Again for the purposes of any court further looking at this, let me say undoubtedly that that is not the intent; that clause 22 is not meant to interfere with the law in Adams's case. While one lawyer does not like to criticise another lawyer, and in particular an Attorney-General does not like to criticise a queen's counsel, I find it striking that the advice does not refer - - -
Mr Humphries: That is why you abolished them.
MR CONNOLLY: I think it was you who suggested that in your committee report, Mr Humphries, and we tend to agree with it. I find it surprising that in this opinion - and it is a very learned discussion of the doctrine of double intent - Mr Francis does not refer to the most recent authority on the matter, which is a decision of the English House of Lords in 1993 in the Airedale National Health Service Trust against Bland, reported in the 1993 volume of the Appeal Cases at page 789. That decision very accurately restates the so-called doctrine of double intent. The leading speech of Lord Goff states:
The doctor who is caring for a [terminally ill patient] cannot, in my opinion, be under an absolute obligation to prolong his life by any means available to him, regardless of the quality of the patient's life. Common humanity requires otherwise, as do medical ethics and good medical practice accepted in this country and overseas.
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