CHRISTOPHER JOHN WAKE and DJINIYINI GONDARRA v. NORTHERN TERRITORY OF AUSTRALIA and THE HONOURABLE KEITH JOHN AUSTIN ASCHE AC QC THE ADMINISTRATOR OF THE NORTHERN TERRITORY OF AUSTRALIA No. 112 of 1996 Number of pages - 63 (1996) 109 NTR 1 (1996) 5 NTLR 170

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CHRISTOPHER JOHN WAKE and DJINIYINI GONDARRA v. NORTHERN TERRITORY OF      
AUSTRALIA and THE HONOURABLE KEITH JOHN AUSTIN ASCHE AC QC THE ADMINISTRATOR
OF THE NORTHERN TERRITORY OF AUSTRALIA
No. 112 of 1996
Number of pages - 63
(1996) 109 NTR 1
(1996) 5 NTLR 170
COURT
SUPREME COURT OF THE NORTHERN TERRITORY
SUPREME COURT EXERCISING TERRITORY JURISDICTION
MARTIN(1) CJ, ANGEL(2) AND MILDREN(1) JJ

HRNG
DARWIN, 1 and 2 July 1996
#DATE 24:7:1996

  Counsel for the Plaintiffs:      Mr D.F. Jackson QC
                                   Mr C.R. McDonald
                                   Mr P.D. McNab

  Solicitors for the Plaintiffs:   Ward Keller

  Counsel for the Defendants:      Mr T. Pauling QC
                                   Mr J. Reeves
                                   Ms R. Webb

  Solicitors for the Defendants:   Solicitor for the NT

ORDER
  Action dismissed with costs.

JUDGE1
MARTIN CJ AND MILDREN J The plaintiffs in this action seek declarations that
the Rights of the Terminally Ill Act 1995 (NT) (as amended) has not been
lawfully assented to and is not a valid Act, or the Act is ultra vires the
legislative power of the Northern Territory and invalid.  The action is
brought against the Northern Territory of Australia and the Administrator of
the Northern Territory. The action originally joined the Commonwealth of
Australia as a defendant.  The action against the Commonwealth has been
discontinued with the Commonwealth's consent.  The Commonwealth has not sought
to intervene.  Pursuant to s21 of the Supreme Court Act (NT), the whole
proceeding has been referred to the Full Court which has accepted the
reference.

The Facts
2.  In 1995 the Legislative Assembly of the Northern Territory passed the
Rights of the Terminally Ill Act 1995 (NT).  The Administrator assented, or
purported to assent, to that Act on 16 June 1995.  The Rights of the
Terminally Ill Amendment Act was passed by the Legislative Assembly of the
Northern Territory in 1996 and the Administrator assented, or purported to
assent, to both Acts pursuant to s7(2)(a) of the Northern Territory (Self
Government) Act 1978 (Cth) ("the Self Government Act").  No Commonwealth
Minister of Territories or otherwise provided any advice or instruction to the
Administrator in relation to his assent to the Acts.  For convenience we will
refer to both Acts as "the Act".

3.  By notice in the Government Gazette on 13 June 1996, his Honour the
Administrator fixed, or purported to fix, 1 July 1996 as the date on which the
Act came into operation.

4.  There is no challenge to the plaintiffs' standing in the proceedings.
Although interlocutory injunctive relief had been sought by the plaintiffs, it
was not pursued after the referral of the substantive issues to this Court.

5.  A great deal of other material was sought to be placed before the Court in
the form of affidavits filed by and on behalf of the parties.  With the
exception of the material contained in the affidavit of Graham Richard
Nicholson (as to the procedures to advise the Administrator in relation to the
giving of assent pursuant to s35 of the Self Government Act), most of that
material is not presently relevant to the issues to be decided by the Court.
It goes to standing (not a matter of dispute) and the ethical, moral and
religious beliefs of the plaintiffs and those whom they claim to represent.
Included are sundry articles and reports on the subject of euthanasia and
related topics. A Short Statement of the Issues

6.  The plaintiffs challenge to the validity of the Act is on two broad
grounds.

7.  It is argued that the legislative competence of the Northern Territory
Legislative Assembly does not extend to the making of the law.  That argument
was supported on three general grounds.

8.  First it was said that the Act confers an element of judicial power on
persons who do not hold, and are not qualified to hold, judicial power in
terms of Chapter III of the Commonwealth of Australia Constitution Act 1900
("the Australian Constitution") and that accordingly the Act is invalid.  The
plaintiffs concede that this submission cannot succeed in this Court because
of the decision of the High Court in The King v Bernasconi (1915) 19 CLR 629;
the plaintiffs indicated, however, that they would seek to argue that that
case, and those cases following, should be overruled if this matter should
reach the High Court of Australia.  That concession was rightly made.  It is
not necessary for us to consider it any further.

9.  The second argument was that the Northern Territory's legislative power is
subject to a fundamental principle or value underlying the common law, the
Australian Constitution and the Self Government Act that there is an
inalienable right to life.  It was submitted that the Act violated that
inalienable right and was consequently invalid.  This argument was developed
in more than one way; as to which see below.

10.  Thirdly, it was submitted that the terms of the legislative power of the
Northern Territory Legislature expressed in s6 of the Self Government Act
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. Accordingly, it was submitted that if the Act was validly
assented to by the Administrator, it was ultra vires.

11.  The second attack on the legislation was that no valid assent had been
given to it.  The success or otherwise of this argument rests upon the proper
construction to be given to the terms of s7 of the Self Government Act and
reg4 made thereunder and involves consideration of ss32, 33 and 35.

The Rights of the Terminally Ill Act
12.  The preamble of the Act provides that it is:
    "An Act to confirm the right of a terminally ill person to
    request assistance from a medically qualified person to
    voluntarily terminate his or her life in a humane manner; to
    allow for such assistance to be given in certain
    circumstances without legal impediment to the person
    rendering the assistance; to provide procedural protection
    against the possibility of abuse of the rights recognised by
    this Act; and for related purposes."

13.  The provisions of the Act relating to the request for and giving of
assistance to terminate a person's life are:
    "A patient who, in the course of a terminal illness, is
    experiencing pain, suffering and/or distress to an extent
    unacceptable to the patient, may request the patient's
    medical practitioner to assist the patient to terminate the
    patient's life." (s4).
    "Terminal illness" is defined as meaning:
    "... an illness which, in reasonable medical judgment will,
    in the normal course, without the application of extraordinary
    measures or of treatment unacceptable to the patient, result in
    the death of the patient." (s3).

14.  A medical practitioner who receives a request referred to in s4, if
satisfied that the conditions of s7 have been met, but subject to s8, may
assist the patient to terminate the patient's life in accordance with the Act
or, for any reason and at any time, refuse to give that assistance (s5).

15.  It is an offence for a person to give or promise any reward or advantage
(other than a reasonable payment for medical services), or by any means to
cause or threaten to cause any disadvantage, to a medical practitioner or
other person for refusing to assist, or for the purpose of compelling or
persuading the medical practitioner or other person to assist or refuse to
assist, in the termination of a patient's life under the Act (s6(1)).

16.  A person to whom a reward or advantage is promised or given, as referred
to in subs(1), does not have the legal right or capacity to receive or retain
the reward or accept or exercise the advantage, whether or not, at the
relevant time, he or she was aware of the promise or the intention to give the
reward or advantage (s6(2)).

17.  A medical practitioner may assist a patient to end his or her life only
if all of the following conditions are met:
    (a) the patient has attained the age of 18 years;
    (b) the medical practitioner is satisfied, on reasonable
    grounds, that -
    (i) the patient is suffering from an illness that will, in the
    normal course and without the application of extraordinary
    measures, result in the death of the patient;
    (ii) in reasonable medical judgment, there is no medical
    measure acceptable to the patient that can reasonably be
    undertaken in the hope of effecting a cure; and
    (iii) any medical treatment reasonably available to the
    patient is confined to the relief of pain, suffering and/or
    distress with the object of allowing the patient to die a
    comfortable death;
    (c) two other persons, neither of whom is a relative or
    employee of, or a member of the same medical practice as, the
    first medical practitioner or each other -
    (i) one of whom is a medical practitioner who holds prescribed
    qualifications, or has prescribed experience, in the treatment of
    the terminal illness from which the patient is suffering; and
    (ii) the other who is a qualified psychiatrist, have examined
    the patient and have -
    (iii)in the case of the medical practitioner referred to in
    subpar(i), confirmed -
    (A) the first medical practitioner's opinion as to the
    existence and seriousness of the illness;
    (B) that the patient is likely to die as a result of the
    illness; and
    (C) the first medical practitioner's prognosis; and
    (iv) in the case of the qualified psychiatrist referred to in
    subpar(ii) - that the patient is not suffering from a treatable
    clinical depression in respect of the illness;
    (d) the illness is causing the patient severe pain or
    suffering;
    (e) the medical practitioner has informed the patient of the
    nature of the illness and its likely course, and the medical
    treatment, including palliative care, counselling and psychiatric
    support and extraordinary measures for keeping the patient alive,
    that might be available to the patient;
    (f) after being informed as referred to in par(e), the patient
    indicates to the medical practitioner that the patient has decided
    to end his or her life;
    (g) the medical practitioner is satisfied that the patient has
    considered the possible implications of the patient's decision to
    his or her family;
    (h) the medical practitioner is satisfied, on reasonable
    grounds, that the patient is of sound mind and that the patient's
    decision to end his or her life has been made freely, voluntarily
    and after due consideration;
    (i) the patient, or a person acting on the patient's behalf in
    accordance with s9, has, not earlier than 7 days after the patient
    has indicated to his or her medical practitioner as referred to in
    par(f), signed that part of the certificate of request required to
    be completed by or on behalf of the patient;
    (j) the medical practitioner has witnessed the patient's
    signature on the certificate of request or that of the person who
    signed on behalf of the patient, and has completed and signed the
    relevant declaration on the certificate;
    (k) the certificate of request has been signed in the presence
    of the patient and the first medical practitioner by another
    medical practitioner (who may be the medical practitioner referred
    to in par(c)(i) or any other medical practitioner) after that
    medical practitioner has discussed the case with the first medical
    practitioner and the patient and is satisfied, on reasonable
    grounds, that the certificate is in order, that the patient is of
    sound mind and the patient's decision to end his or her life has
    been made freely, voluntarily and after due consideration, and
    that the above conditions have been complied with;
    (l) where, in accordance with subs(4), an interpreter is
    required to be present at the signing of the certificate of
    request, the certificate of request has been signed by the
    interpreter confirming the patient's understanding of the request
    for assistance;
    (m) The medical practitioner has no reason to believe that he
    or she, the countersigning medical practitioner or a close
    relative or associate of either of them, will gain a financial or
    other advantage (other than a reasonable payment for medical
    services) directly or indirectly as a result of the death of the
    patient;
    (n) not less than 48 hours has elapsed since the signing of
    the completed certificate of request;
    (o) at no time before assisting the patient to end his or her
    life had the patient given to the medical practitioner an
    indication that it was no longer the patient's wish to end his or
    her life;
    (p) the medical practitioner himself or herself provides the
    assistance and/or is and remains present while the assistance is
    given and until the death of the patient.  (s7(1)).

18.  In assisting a patient under the Act a medical practitioner is to be
guided by appropriate medical standards and such guidelines, if any, as are
prescribed, and is to consider the appropriate pharmaceutical information
about any substance reasonably available for use in the circumstances.
(s7(2)).

19.  Where a patient's medical practitioner has no special qualifications in
the field of palliative care, the information to be provided to the patient on
the availability of palliative care is to be given by a medical practitioner
(who may be the medical practitioner referred to in subs(1)(c)(i) or any other
medical practitioner) who has such special qualifications in the field of
palliative care as are prescribed. (s7(3)).

20.  A medical practitioner is not to assist a patient under the Act where the
medical practitioner or any other medical practitioner or qualified
psychiatrist who is required under subs(1) or (3) to communicate with the
patient does not share the same first language as the patient, unless there is
present at the time of that communication and at the time the certificate of
request is signed by or on behalf of the patient, an interpreter who holds a
prescribed professional qualification for interpreters in the first language
of the patient.  (s7(4)).

21.  A medical practitioner is not to assist a patient under the Act if, in
his or her opinion and after considering the advice of the medical
practitioner referred to in s7(1)(c)(i) there are palliative care options
reasonably available to the patient to alleviate the patient's pain and
suffering to levels acceptable to the patient.  (s8(1)).

22.  Where a patient has requested assistance under the Act and has
subsequently been provided with palliative care that brings about the
remission of the patient's pain or suffering, the medical practitioner shall
not, in pursuance of the patient's original request for assistance, assist the
patient under this Act.  If subsequently the palliative care ceases to
alleviate the patient's pain and suffering to levels acceptable to the
patient, the medical practitioner may continue to assist the patient under
this Act only if the patient indicates to the medical practitioner the
patient's wish to proceed in pursuance of the request. (s8(2)).

23.  If a patient who has requested his or her medical practitioner to assist
the patient to end the patient's life is physically unable to sign the
certificate of request, any person who has attained the age of 18 years, other
than the medical practitioner or a medical practitioner or qualified
psychiatrist referred to in s7(1)(c), or a person who is likely to receive a
financial benefit directly or indirectly as a result of the death of the
patient, may, at the patient's request and in the presence of the patient and
both the medical practitioner witnesses (and where, in accordance with s7(4)
an interpreter has been used, also in the presence of the interpreter), sign
the certificate on behalf of the patient.  (s9(1)).

24.  A person who signs a certificate of request on behalf of a patient
forfeits any financial or other benefit the person would otherwise obtain,
directly or indirectly, as a result of the death of the patient.  (s9(2)).

25.  Notwithstanding anything in the Act, a patient may rescind a request for
assistance under the Act at any time and in any manner.  (s10(1)).

26.  When a patient rescinds a request, the patient's medical practitioner
shall, as soon as practicable, destroy the certificate of request and note
that fact on the patient's medical record.  (s10(2)).

27.  It is an offence punishable by a fine of up to $20,000 or imprisonment
for up to 4 years for a person by deception or improper influence to procure
the signing or witnessing of a certificate of request.  (s11(1)).

28.  A person found guilty of such an offence forfeits any financial or other
benefit the person would otherwise obtain, directly or indirectly, as a result
of the death of the patient, whether or not the death results from assistance
given under this Act.  (s11(2)).

29.  There are detailed provisions as to the medical records to be kept by the
medical practitioner who assists the patient.  As soon as practicable after
the death the medical practitioner is to report the death to the Coroner by
sending a copy of the death certificate and so much of the medical record of
the patient as relates to the terminal illness and death.  The Coroner is
obliged to advise the Attorney-General of the number of patients who died
under the Act and the Attorney-General is to report that number to the
Legislative Assembly (s14). The Coroner is empowered to report at any time on
the operation of the Act and the Attorney is obliged to table that report
(s15).

30.  Action taken in accordance with the Act by a medical practitioner, or
health care provider, does not constitute an offence under that part of the
Criminal Code including the offences of murder, manslaughter, attempted murder
or aiding suicide (s16)).

31.  Part IV of the Act, which is headed "Miscellaneous", protects medical
practitioners, and health care providers acting on the instructions of the
medical practitioners, from the sanctions of the criminal law, from civil or
criminal action or professional disciplinary action or other disadvantages.

32.  Nowhere does the Act require a medical practitioner to assist a patient
in the termination of the patient's life if he does not choose to do so; nor
is a health care provider under any duty or obligation to participate in the
provision to the patient of any assistance under the Act.

Is the Rights of the Terminally Ill Act Ultra Vires the powers of the
Legislative Assembly?
33.  The Legislative Assembly has power "to make laws for the peace, order and
good government of the Territory" (s6 Self Government Act).  The only express
limitation upon those powers lies in the requirement for the assent of the
Administrator or the Governor-General, an issue to be considered later.

34.  In Union Steamship Co of Australia Pty Ltd v The King (1988-89) 166 CLR 1
at 10, the Full High Court said, in a joint judgment of all of the judges:
    "These decisions and statements of high authority demonstrate
    that, within the limits of the grant, a power to make laws for
    the peace, order and good government of a territory is as ample
    and plenary as the power possessed by the Imperial Parliament
    itself.  That is, the words "for the peace, order and good
    government" are not words of limitation.  They did not confer on
    the courts of a colony, just as they do not confer on the courts
    of a State, jurisdiction to strike down legislation on the ground
    that, in the opinion of a court, the legislation does not promote
    or secure the peace, order and good government of the colony.
    Just as the courts of the United Kingdom cannot invalidate laws
    made by the Parliament of the United Kingdom on the ground that
    they do not secure the welfare and the public interest, so the
    exercise of its legislative power by the Parliament of New South
    Wales is not susceptible to judicial review on that score.
    Whether the exercise of that legislative power is subject to some
    restraints by reference to rights deeply rooted in our democratic
    system of government and the common law (see Drivers v. Road
    Carriers; Fraser v. State Services Commission; Taylor v. New
    Zealand Poultry Board), a view which Lord Reid firmly rejected in
    Pickin v British Railways Board, is another question which we
    need not explore".

35.  In Capital Duplicators Pty Ltd and Another v Australian Capital Territory
and Another (1992-93) 177 CLR 248 Brennan, Deane and Toohey JJ. said at
pp281-2:
    "Enactments are made under a power to make laws "for the
    peace, order and good government" of the Australian Capital
    Territory.  Such a power has been recognised as a plenary power,
    as this Court pointed out in Union Steamship Co. of Australia
    Pty. Ltd. v. The King, "even in an era when emphasis was given to
    the character of colonial legislatures as subordinate law making
    bodies".  The terms in which s22 confers power on the Legislative
    Assembly show - to adapt the language of Powell v Apollo Candle
    Co - that the Parliament did not intend the Legislative Assembly
    to exercise its powers "in any sense (as) an agent or delegate of
    the ... Parliament, but ... intended (the Legislative Assembly)
    to have plenary powers of legislation as large, and of the same
    nature, as those of Parliament itself" (emphasis added)."
    Their Honours went on to refer with approval to what was said by
    Wilson J. in Reg v Toohey; Ex Parte Northern Land Council (1981)
    151 CLR 170, at p279 at in regard to s6 of the Self Government
    Act (the provision corresponding with that there under
    consideration):
    "Section 6 invests the Legislative Assembly with power to make
    laws for the peace, order and good government of the Territory, a
    power which in my opinion, subject to the limits provided by the
    Act, is a plenary power of the same quality as, for example, that
    enjoyed by the legislatures of the States.  The constitution of
    the Territory as a self- governing community is no less
    efficacious because it emanates from a statute of the Parliament
    of the Commonwealth than was the constitution of the Australian
    colonies as self-governing communities in the nineteenth century
    by virtue of an Imperial statute."

36.  The plaintiffs asserted, in reliance on the obiter in the Union Steamship
case that what is called the "right to life" is a right "deeply rooted in our
democratic system of government and the common law" which imposes restraints
on "the exercise of legislative power", in contra-distinction to the existence
of the power.

37.  Whether such a constitutional (as opposed to political) restraint exists
or not has been postulated but not decided.  What the "deeply rooted" rights
are have not been further defined or identified except by way of exclusion of
certain rights from that class (see the New Zealand cases referred to in Union
Steamship v The King, at p10).  Whether a distinction can be drawn between the
"deeply rooted" rights and "fundamental rights" is yet to be decided, but so
far as the latter are concerned, it was recognised by Mason CJ., Brennan,
Gaudron and McHugh JJ. in Coco v The Queen (1993-94) 179 CLR 427 at 437 that
fundamental rights, freedoms and immunities can be abrogated by a State
Parliament provided that the intention of the Parliament is "clearly
manifested by unmistakable and unambiguous language".

38.  In our view, absent authoritative guidance, the exercise of legislative
power is not constrained in this case by reference to "rights deeply rooted in
our democratic system of government and the common law".  It may be
distinguished from a jurisdiction in which there is a constitutionally
enshrined Bill of Rights.  Whether or not the Act infringes any fundamental
right is a matter which we do not have to decide.  It is a matter about which
there is heated debate and strongly held differences of opinion indicating
that the true nature of the question is ethical, moral or political.  The
differences are identified and debated in detail in the material made
available to the Court, including the report of the New York State Task Force
on Life and the Law: "When Death Is Sought - Assisted Suicide and Euthanasia
in the Medical Context", May 1994, Euthanasia, Clinical Practice and the Law,
edited by Luke Gormally, the Director of the Linacre Centre for Health Care
Ethics being a submission to the Select Committee of the House of Lords on
Medical Ethics - June 1993, the Report of the Select Committee on Medical
Ethics of the House of Lords, 31 January 1994 and the Report of the Special
Senate Committee on Euthanasia and Assisted Suicide "Of Life and Death"
published under the authority of the Senate of Canada, May 1995.  Affidavit
material placed before us on the part of the plaintiffs and the defendants
also contains such divergence of opinion.  The Canadian report details some
"unsuccessful formal proposals that sought to legalize euthanasia and/or
assisted suicide" introduced into nine State legislatures in the United States
of America, and in reviewing the position in Australia referred to the Act as
well as a "Voluntary Euthanasia Act 1995" introduced into the South Australian
Parliament and draft legislation which was expected to be tabled in the
Australian Capital Territory Parliament, namely the "Voluntary and Natural
Death Bill 1993".

39.  In so far as the Act affects any abrogation of fundamental rights, its
language is clear and unambiguous.  We see no basis for differentiation
between the powers of a State Parliament to abrogate such rights, freedoms and
immunities and the powers of the Legislative Assembly to do so; see Capital
Duplicators case.  In our opinion this is an answer to the plaintiffs'
submissions as to the legislative competence of a Legislative Assembly in the
various forms in which the argument was presented.

Was valid assent given to the Act by the Administrator
40.  The circumstances and procedure for the assent of the Administrator or
Governor-General, as the case may be, as required by s6 of the Self Government
Act, is taken up in s7.
    7.(1) Every proposed law passed by the Legislative Assembly shall
    be presented to the Administrator for assent.
    (2) Upon the presentation of a proposed law to the
    Administrator for assent, the Administrator shall, subject to this
    section, declare:
    (a) in the case of a proposed law making provision only for or
    in relation to a matter specified under section 35:
    (i) that he assents to the proposed law; or
    (ii) that he withholds assent to the proposed law; or
    (b) in any other case:
    (i) that he assents to the proposed law;
    (ii that he withholds assent to the proposed law; or
    (iii) that he reserves the proposed law for the
    Governor-General's pleasure."

41.  Section 7(3) and (4) provide that the Administrator may return the
proposed law to the Legislative Assembly with amendments which he recommends
and provide what may happen in that event.

42.  Section 8 of the Self Government Act provides for the power of the
Governor-General where the Administrator reserves a proposed law for the
Governor-General's pleasure.  The Governor-General shall declare his assent to
the proposed law, declare that he withholds his assent to the proposed law or
that he withholds assent to part of the proposed law and assents to the
remainder of the proposed law.  There are provisions in s8(2), (3) and (4)
providing that the Governor-General may return the proposed law to the
Administrator with recommended amendments and what is to happen in that event.

43.  Section 9 of the Self Government Act provides that the Governor-General
may, within six months after the Administrator's assent to a proposed law,
disallow the law or part of the law or recommend to the Administrator any
amendments which the Governor-General considers to be desirable.  If
amendments are recommended, there is a further period of six months after
which the Governor-General may disallow the law.  Pursuant to subs(4), if a
law is disallowed, the disallowance has the same effect as a repeal; and
subs(5) provides that the disallowance revives any previous law amended or
repealed by the disallowed provision.

44.  Part IV of the Self Government Act provides for the administration of the
Northern Territory and deals with the Office of the Administrator, the
Executive Council, Ministerial offices and the transfer of functions from the
Commonwealth to the Territory Executive.  The Administrator is to be appointed
by the Governor-General and is charged with the duty of administering the
government of the Territory (s32).  Sub-section (3) of that section
importantly provides:
    "Subject to this Act, the Administrator shall exercise and perform
    all powers and functions that belong to his office, or that are
    conferred on him by or under a law in force in the Territory, in
    accordance with the tenor of his Commission and (in the case of
    powers and functions other than powers and functions relating to
    matters specified under section 35 and powers and functions under
    Sections 34 and 36) in accordance with such instructions as are
    given to him by the Minister."

45.  Section 35 provides:
    "The regulations may specify the matters in respect of which the
    Ministers of the Territory are to have executive authority."

46.  On the commencement of the Self Government Act on 1 July 1978,
regulations made under the Act, the Northern Territory (Self Government)
Regulations, ("the Self Government Regulations) came into operation.
Regulation 4(1) 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 respect of the following matters:".  Then follows a list of matters
expressed in broad terms.  They include "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".  Additionally, subreg4(5)(h) provides that the Ministers of the
Territory are to have executive authority in respect of "matters incidental to
the execution of any executive authority vested in the Ministers of the
Territory".  Further, subreg4(3) provides that subject to subregs(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".

47.  Some matters are specifically excluded by subreg(2), namely the mining of
uranium or other prescribed substances within the meaning of the Atomic Energy
Act 1953 and rights in respect of Aboriginal land under the Aboriginal Land
Rights (Northern Territory) Act 1976.  Sub-regulation (4) relates to
inconsistency and does not arise here.

48.  Put simply, the plaintiffs' argument is that the Act is not a proposed
law making provision only for or in relation to a matter specified under s35.
Accordingly, the Administrator could not assent to it pursuant to s7(2)(a) of
the Self Government Act and therefore the Act has not been validly assented
to. The plaintiffs further asserted that, notwithstanding the absence of any
instructions from the Minister given pursuant to s32(3) in relation to the
Act, even though the Administrator might have on his own initiative assented
to the Act pursuant to s7(2)(b), his Honour did not purport to do so.  It was
submitted therefore that the assent was only valid if the Act was one which
made provision "only for or in relation to a matter specified under section
35".  (It is not necessary for us to consider whether the Administrator may
act under s7(2)(b) of his own motion).

49.  The first critical question therefore is whether the Act is only for or
in relation to one or more of the matters set out in reg4(1) of the Self
Government Regulations.  If it is, the assent was validly given.  If it is
not, other considerations arise.  Counsel for the plaintiffs, Mr Jackson QC,
argued that the Act did not come within any of those matters whether
considered singly or together.  The thrust of his argument was that because
the Northern Territory has not been given the full powers of a State, the
intention being that it be given State-like powers gradually over time, the
heads of executive authority, by which "the matters" are defined, are not to
be given a broad meaning. Principles applicable to the interpretation of the
heads of power contained in ss51 and 52 of the Commonwealth Constitution have
no application in this regard. In support of that argument it was submitted
that a law of this kind had never been enacted anywhere in the world (save for
a law of the State of Oregon permitting a form of euthanasia, which law had
been restrained by the United States District Court and concerning which
appeals are pending). (So far as the law of the Netherlands is concerned, the
position is not governed by statute but by judge made law).  Mr Jackson QC
asserted that the Act violated the basic and fundamental human right to life
and that it could not have been in the contemplation of the Governor-General
when the Self Government Regulations were made that a law of this kind could
be assented to by the Administrator pursuant to s7(2)(a) of the Self
Government Act.  The matter was of such fundamental importance to all
Australians that it must have been in contemplation that the Administrator
would act solely on the advice of the Minister in accordance with s32(3) or,
in the absence of any such instructions, upon his own initiative.

50.  For the defendants, the Solicitor-General, Mr Pauling QC, submitted that
the heads of power contained in the Self Government Regulations should be
interpreted broadly to determine whether the pith and substance of the Act
comes within any of the relevant heads of executive authority, considered
singly or together.  He submitted that the pith and substance of the Act is to
allow assisted suicides by changes to the criminal law and accordingly it was
within such authority because it was a law in respect of the "maintenance of
law and order and the administration of justice". Alternatively it was
submitted that it fell within one or other of the several heads of authority
set out above.  As Kitto J put it in The Herald and Weekly Times Limited and
Another v The Commonwealth of Australia (1965-66) 115 CLR 418 at 436 "what,
then, is the law really doing ...?".

51.  In our opinion the substance of the Act relates to three matters
described in reg4(1) namely "maintenance of law and order and the
administration of justice", "private law" and "the regulation of businesses
and professions".  The principal purpose of the Act is to permit medical
practitioners and those assisting them to terminate the life of a terminally
ill patient, or to assist the patient to terminate his or her own life, and,
in either case, at the patient's request, without criminal sanction,
professional sanction or liability to civil action.

52.  We were referred by Mr Jackson QC to authorities in which the expression
"maintenance of law and order and the administration of justice" or
expressions such as that may be found.  Having examined those authorities, we
are unable to derive any useful assistance from them.  They are of limited
application to the circumstances under consideration in each case, and do not
go to the fullest meaning of the phrase.  We have no doubt that a law which
proscribes conduct and makes it criminal is a law in relation to or in respect
of the maintenance of law and order.  That is so even if the conduct is
victimless, consensual and designed to enforce religious, moral or ethical
beliefs: see Patrick Devlin, The Enforcement of Morals (Oxford University
Press, pp6-7).  Devlin observes at p7:
    "Euthanasia or the killing of another at his own request, suicide,
    attempted suicide and suicide pacts, duelling, abortion, incest
    between brother and sister, are all acts which can be done in
    private and without offence to others and need not involve the
    corruption or exploitation of others.  Many people think that the
    law on some of these subjects is in need of reform, but no one
    hitherto has gone so far as to suggest that they should all be left
    outside the criminal law as matters of private morality.  They can
    be brought within it only as a matter of moral principle."

53.  Since those words were written, changes have been made to the law, not
only in the Northern Territory but elsewhere by eliminating the criminal
sanctions on homosexual acts between adults and abortion, in certain
circumstances.  In the Northern Territory, the criminality of attempted
suicide has been abolished.  If the Northern Territory Legislature can pass
laws making prescribed conduct an offence, it must also have the power to
prescribe the circumstances under which that conduct ceases to be an offence,
either completely or by reference to particular criteria.

54.  As to private law, we were referred by Mr Jackson QC to the definition of
that expression as found in the Oxford Companion to Law (Clarendon Press,
1980):
    "In general, however, private law may be defined as the part of the
    whole body of principles and rules included in a legal system which
    comprises the principles and rules dealing with the relations of
    ordinary individuals with one another, and also those dealing with
    the relations of the state or an agency thereof with an individual
    in circumstances where the state or its agency does not have any
    special position or privilege by virtue of being a department of
    state ... private law is entirely civil in character, administrative
    law and criminal law belonging entirely to the sphere of public
    law."

55.  The provisions of the Act which are contained in s20(2), for example,
clearly fall within the power to regulate the professions.  The power to
regulate is not confined to inhibition or prohibition of conduct.

56.  We are not persuaded that the various heads of executive authority set
out in reg4 should be given the narrow meanings contended for by the
plaintiffs.  We accept that the constitutional provisions are sui generis. It
is an historical fact that the intention was to progressively hand over
executive authority to the Northern Territory's Ministers.  The Self
Government Regulations show that this was done progressively by amendments to
reg4 in 1978, 1979 and 1980, there being no further amendments to reg4 since
then.  The rapid timing of these contemplated changes indicates why the
Commonwealth chose to prescribe matters by regulation rather than by
amendments to the Act.  The draftsman of the regulations may have expressed
executive power or authority differently, for example, by simply providing
that the Northern Territory Ministers shall have executive authority in all
matters except those contained in a list of matters and then progressively
deleted subjects from the list.  That was not done; instead the regulations
provided a long list of matters expressed in very broad and simple terms and
specifically excepted the two matters previously mentioned. Nevertheless,
there are some notable absences from the list: cf s51 of the Commonwealth
Constitution.

57.  Nothing is to be inferred by the fact that executive authority has been
granted by regulation.  In any event, it is by reference to the matter
specified therein that the powers of the Administrator and Governor-General
respectively in the legislative process are to be determined.

58.  In The Queen v Toohey; ex parte Northern Land Council (1982-83) 151 CLR
170 at 278-280, Wilson J examined the provisions of the Self Government Act,
the relationship between the Government of the Northern Territory and
Commonwealth Government, and the role and status of the Administrator in some
detail.  At pp 279-80, he said:
    "The status of the new polity is borne out by the provisions of the
    Self Government Act, which, contrary to the submission of the
    applicant, differs significantly from the earlier Administration
    Act.  The Administrator no longer administers the government of the
    Territory "on behalf of the Commonwealth"; that government is
    henceforth administered in its own right by the Administrator
    (s.32).  There is no longer any general subjection of the
    Administrator to the instructions of the Commonwealth Minister;
    henceforth such instructions are of force only in relation to the
    exercise of the powers and functions of the Administrator that fall
    outside ss.34 and 36 which cover decisions touching the size of the
    ministry and the participation of the members of the Legislative
    Council in that ministry, and in relation to matters which fall
    outside those in respect of which the Ministers of the Territory are
    to have executive authority (ss.32 and 35).  The range of matters
    which have been specified pursuant to s.35 is extensive.  The effect
    of the section is such as to limit the possible impact of
    ministerial instructions to a small compass."

59.  In Waters v Acting Administrator of the Northern Territory and Another
(1993) 46 FCR 462 at 465, Olney J said:
    "The process of self government in the NT has been achieved
    gradually.  The scheme which was adopted upon the passing of the
    Self-Government Act was to facilitate the transfer of executive
    authority from the Commonwealth to the NT in accordance with
    regulations made under s35.  Initially, only a relatively few items
    of executive authority were transferred but over a short period the
    scope of the executive authority of the Ministers was expanded so
    that (with a few exceptions) the legislative and executive functions
    and powers exercisable by the Legislative Assembly and Ministers
    largely correspond with the functions and powers of State
    parliaments and executive councils."

60.  We do not see that there is any necessary implication that the terms of
the heads of authority contained in reg4 of the Self Government Regulations
should be read down by reference to the fact that the Northern Territory is
not yet a State.  Although, as Lockhart J observed in Attorney-General (NT) v
Minister for Aboriginal Affairs and Others (1989) 90 ALR 59 at 74 "... a
substantial degree of autonomy has been granted by the Commonwealth to the
Northern Territory, it falls far short of statehood", there is no reason to
believe that the intention was to place limits upon the heads of executive
authority expressed in the Self Government Regulations.  The very fact that
they are expressed in such broad terms, combined with the provisions of
reg4(5)(h), would suggest otherwise. Moreover, the narrower the interpretation
to be given to the Regulations, the more likely it is that the Administrator
could be embarrassed by differences of opinion as to whether or not the
proposed law fell within s7(2)(a) or (b).

61.  There is no valid reason for reading down the width of the authority
contained in subreg4(1) by distinguishing between the words "in respect of"
appearing therein and the words "with respect to" appearing in s51 of the
Commonwealth Constitution.  We are unable to see any meaningful difference
between the two expressions.  In The Workers Compensation Board of Queensland
v Technical Products Pty Ltd (1988) 165 CLR 642 at 653-4, Deane, Dawson and
Toohey JJ said:
    "Undoubtedly the words "in respect of" have a wide meaning, although
    it is going somewhat too far to say, as Mann CJ in Trustees
    Executors and Agency Co Ltd v. Riley, that "they have the widest
    possible meaning of any expression intended to convey some
    connection or relation between the two subject matters to which the
    words refer".  The phrase gathers meaning from the context in which
    it appears and it is that context which will determine the matters
    to which it extends."

62.  See also State Government Insurance Office v Rees and Another (1979-80)
144 CLR 549 at 561 per Mason J.  The context here is that of a regulation
conferring under the broadest possible headings executive authority on
Territory Ministers. That regulation is intended to provide the substance of a
Constitutional provision.  What is required in considering heads of authority
under subreg4(1) is a "relevance to or connection with a subject assigned"
(Grannall v Marrickville Margarine Pty Ltd (1954-56) 93 CLR 55 at 77) or a
"substantial connexion" between the law and the relevant head of power; cf The
Commonwealth of Australia and Another v The State of Tasmania and Others ("the
Tasmanian Dam case") (1984-85) 158 CLR 1 at 152 per Mason J.  In our opinion
the Act has a substantial connection in that sense, and the law was validly
assented to by the Administrator.

Powers of Governor-General and the Commonwealth Parliament
63.  The Governor-General has a power of disallowance of any law pursuant to
s9 of the Self Government Act and in any event the Commonwealth Parliament may
pass specific legislation to undo the effect of a Territory Act in the
exercise of its powers under s122 of the Constitution.  To the extent that
there is any force in the argument that the Territory Parliament or Territory
Ministers are somehow not to be trusted with the full extent of legislative or
executive power which the wording of s6 or reg4 would plainly permit, either
because of the novelty of the proposed new law or because they, as in this
case, provide a limited power to do that which no other legislature in the
world has so far found fit to permit, or because it abrogates some fundamental
human right, the existence of the powers retained by the Commonwealth suggest
that these are matters which are to be determined by political and not legal
resolution.  The same may be said in respect of laws which adversely affect
Australia's image as a nation or the interests of Australians resident in the
States which the Commonwealth feels an obligation to protect.

Conclusion
64.  For these reasons we would dismiss the action with costs.

JUDGE2
ANGEL J  This is a reference to the Full Court pursuant to s21 of the Supreme
Court Act (NT).  The plaintiffs, whose standing to do so is not challenged,
seek declaratory relief to the effect that the Rights of the Terminally Ill
Act 1995 (NT) (as amended by the Rights of the Terminally Ill Amendment Act
1996 (NT)) is not a valid law of the Northern Territory.

2.  The plaintiffs first contend  that the law-making process required by the
Northern Territory (Self Government) Act 1978 (Cth) has not been followed in
that in so far as s6 of that Act requires the assent of his Honour the
Administrator or his Excellency the Governor-General as an essential part of
the legislative process, neither his Honour the Administrator nor his
Excellency the Governor-General has assented to the Rights of the Terminally
Ill Act (as amended) (NT) as required by law.  It is common ground that his
Excellency the Governor-General has not assented to the Act pursuant to s8 of
the Self Government Act and that his Honour the Administrator has only
assented to the Act pursuant to s7(2)(a) of the Self Government Act.  The
plaintiffs contend that only an assent by his Excellency the Governor-General
pursuant to s8 of the Self Government Act or an assent by His Honour the
Administrator pursuant to s7(2)(b) of the Self Government Act satisfy the
necessary law-making process required to complete the legislative process.
The plaintiffs also contend that, notwithstanding the plenary legislative
power of the Territory as expressed in s6 of the Self Government Act, the
Rights of the Terminally Ill Act (as amended) (NT) is ultra vires that
legislative power and invalid.

3.  I turn to the question of whether the assent of his Honour the
Administrator pursuant to s7(2)(a) of the Self Government Act was effectual.

4.  The Rights of the Terminally Ill Act (as amended) (NT) 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.  The Act institutionalises intentional killing which would
otherwise be murder; it institutionalises aiding suicide which would otherwise
be a crime.  In my view, the heads of power in reg4 of the Self Government
Regulations, whether read liberally or restrictively, give no warrant to the
legislative establishment of institutional termination of human life other
than as punishment.

5.  It is said that suicide is a private matter.  It is not entirely private.
No man is an island.  The death of a person affects others, beneficiaries
under a will or upon an intestacy, joint property holders, the status of
spouses, life insurers, persons in business or commercial relations with the
deceased, the State in terms of taxation, and so on, to say nothing of the
emotional and moral feelings of relatives and friends occasioned by the time
and circumstances of death.  There is no clear demarcation between private and
public law.

6.  The role of a medical practitioner under the Act - to intentionally
terminate the life of a patient in accordance with the Act - is contrary to
the hitherto fundamental norm of the medical profession enshrined in the
Hippocratic oath.  It is not to the point that legislation can override
professional ethics. The point is that so fundamentally to change the medical
profession's norm is to change the profession of medicine rather than to
regulate it.

7.  I do not think the maintenance of law and order - which enables the
Legislative Assembly to pass laws with respect to crimes (criminal law) -
assists the defendants.  The decriminalisation of acts which would otherwise
constitute murder is only part of the overall legislative scheme. The
decriminalisation and immunity sections, s16(1) and s20(1), are in Part 4 of
the Act, headed "Miscellaneous".  They nevertheless are essential provisions,
for without them, medical practitioners who "assist" would, inter alia, be
guilty of a criminal offence.  They can not be said to be incidental, in the
sense of non-essential.  Were it not for the criminal and professional
sanctions applicable to the regulated conduct there would be no need for the
Act at all. Sections 16(1) and 20(1) are part of a compound of legal
provisions and stipulations and professional ethical and moral standpoints
which, as I have said, constitute a composite whole.  The excusing of killing
in self-defence or in defence of another is far removed from what this Act
comprehends.

8.  I am of the opinion there is no warrant for the legislative establishment
of an institution of intentional killing other than by way of punishment under
any or any combination of the heads of power in reg4 - whether read
restrictively, or "... with all the generality which the words used admit.":
The Queen v The Public Vehicles Licensing Appeal Tribunal of the State of
Tasmania and Others; ex parte Australian National Airways Pty Ltd (1964-65)
113 CLR 207 at 225.

9.  In my opinion, this unique Act, whether considered as a matter of form or
of substance, has no relevant substantial connection with any or any
combination of the heads of power in reg4, and I would add, that even if I am
wrong in that conclusion, I am of the view it can not be said that the matters
comprehended by the Act are proportional to any or any combination of those
heads of power. This conclusion accords with the Ministerial Statement of the
then Federal Minister for the Northern Territory of 14 September 1977, viz:

    "It is our intention that the new government should be given
    autonomy to conduct its own affairs subject only to the
    general oversight of the Commonwealth but without direction
    from it other than in exceptional circumstances."

10.  This Court may give consideration to that statement:  see s15AB(2)(e)
Acts Interpretation Act 1901 (Cth).

11.  Neither the plaintiffs nor the defendants argued that provisions of the
Act are severable, or ought to be severed.

12.  In my opinion, assent for the Act could only (if at all) be granted
pursuant to s7(2)(b) or s8 of the Self Government Act.  Such assent has not
been given.  It follows that the Rights of the Terminally Ill Act (as amended)
(NT) has not been lawfully assented to and has not passed in to law.

13.  In holding that the Act has not been lawfully assented to it is not
necessary for me to decide whether the Act is ultra vires the legislative
power of the Northern Territory and invalid.  The other members of the Court
have decided this question and it is appropriate that I say something on the
question.

14.  It is convenient and appropriate that I record the written submission of
the plaintiffs on this question in full:

    "7. The second matter concerns the Northern Territory's
    legislative power.  The plaintiffs accept that s. 6 of the
    Self-Government Act is widely framed, but contend:
    (a) That underlying the law lies the fundamental right,
    principle, value or doctrine that there is sanctity of life or
    that there is an inalienable right to life.  As a consequence,
    human life cannot be deliberately taken, even with the consent
    of the person to be killed.  At the very least, life cannot be
    taken, even with the consent of the person who is to die,
    without independent judicial inquiry or sanction.  (War and like
    circumstances, of course, are excluded).  Such a right is to be
    implied in the Commonwealth of Australia Constitution.
    (b) That the terms of s. 6 of the Self-Government Act,
    particularly bearing in mind that the Territory has not yet
    achieved complete self-government, should not be regarded as
    empowering the making of laws which allowed the abolition of the
    principle referred to in (a).  More specific words are
    necessary.

    ...

    C  FUNDAMENTAL RIGHTS

    19. The legislative power of the Territory as expressed in
    section 6 of the Self Government Act is subject to fundamental
    or underlying principles consistent with the rule of law which
    the Legislative Assembly cannot abrogate.

    20. It is a fundamental principle or value underlying the common
    law, the Australian Constitution and the Self-Government Act
    that there is a (sic) inalienable right to life.  Accordingly,
    the legislative power as expressed in section 6 of the
    Self-Government Act cannot override, detract from or impair that
    right.

    21. Alternatively, there is to be implied in the Commonwealth
    Constitution an inalienable right to life consistent with the
    rule of law such that ordinarily no act of legislative or
    executive authority can authorise a person to kill another.

    22. The Act is invalid and ultra vires the Legislative Assembly
    of the Northern Territory by reason of its inconsistency with
    and infringement of the matters referred to in paragraphs 30 and
    31 hereof.

    23. Further, the Act interferes with the principles and rights
    referred to in paragraphs 30 and 31 in a disproportionate and
    unreasonable manner.  The Act has a lack of proportion between
    the object of authorising a medical practitioner to kill or
    assist in killing a patient in that the means adopted do not pay
    sufficient regard to the state interest in preserving life in
    that:-

    (a) it does not provide for any judicial
    inquiry, sanction or other due process;

    (b) it does not adequately protect the weak
    and vulnerable;

    (c) it does not provide for any or any
    sufficient supervision, monitoring or inquiry by the state into
    the processes for killing under the Act;

    (d) otherwise, it fails to protect adequately
    the state interest in the protection and preservation of life;

    (e) fails to maintain the integrity of the
    medical profession."

15.  The plaintiffs' submission is far reaching and involves many and complex
issues.

16.  In Union Steamship Co of Australia Pty Ltd v King (1988-89) 166 CLR 1 at
10, the Court said:

    "These decisions and statements of high authority demonstrate
    that, within the limits of the grant, a power to make laws for
    the peace, order and good government of a territory is as ample
    and plenary as the power possessed by the Imperial Parliament
    itself.  That is, the words "for the peace, order and good
    government" are not words of limitation.  They did not confer on
    the courts of a colony, just as they do not confer on the courts
    of a State, jurisdiction to strike down legislation on the ground
    that, in the opinion of a court, the legislation does not promote
    or secure the peace, order and good government of the colony.
    Just as the courts of the United Kingdom cannot invalidate laws
    made by the Parliament of the United Kingdom on the ground that
    they do not secure the welfare and the public interest, so the
    exercise of its legislative power by the Parliament of New South
    Wales is not susceptible to judicial review on that score.
    Whether the exercise of that legislative power is subject to some
    restraints by reference to rights deeply rooted in our democratic
    system of government and the common law (see Drivers v. Road
    Carriers; Fraser v. State Services Commission; Taylor v New
    Zealand Poultry Board), a view which Lord Reid firmly rejected in
    Pickin v British Railways Board, is another question which we
    need not explore."

17.  The plaintiffs' submission calls for an answer to that question.

18.  The plaintiffs say that there are justiciable limits on state action; the
submission pre-supposes - pace so -called positivism and realism - that laws
are principled and more than mere rules, that there is a sacrosanct value or
right any interference with which is illegitimate; it assumes an intrinsic
good, unreferable to the wishes of society, and that the state is not the only
embodiment of the common good; it asserts something self-evident and
underivative such that any legislative interference therewith is wrong; it
asserts that such interference is a wrong per se and regardless of the
legislation's provenance, ie that the interference is wrong irrespective of
whether the 'law' is that of a democratic parliament or a despot; and it
asserts that such interference is wrong regardless of its consequences, ie the
interference is wrong whether the legislation is otherwise in the public
interest or not; the wrong of the legislative interference is not cured by
improving its effects.  See, generally J D Mabbott, 'The State and the
Citizen' 2nd Ed (1967) Ch 6, 7, 8 and 9.

19.  Implicit in the submission is that individuals have inherent moral
status, ie they are an end in themselves - rather than a means to an end - and
that treating people as ends in themselves requires more than (or other than)
respecting their autonomy.

20.  The plaintiffs' submission concerns a value said to underpin our society
apart from or alternatively as one implicit in the Self-Government Act and/or
the Australian Constitution.  The plaintiffs' submission appears to assume a
value, principle or norm that might be regarded as part of a public philosophy
implicit in society's institutions, including parliament, which can not be
invaded by the expression of a majority in parliament:  see, eg:  'The Public
Philosophy' by Walter Lippmann, Hamish Hamilton (1955); Sir Owen Dixon, 'The
Common Law as an Ultimate Constitutional Foundation' (1957-58) 31 ALJ 240;
Dworkin, 'Taking Rights Seriously' (1977) Ch 4.

21.  J W Harris, 'Legal Philosophies', Butterworths UK (1980) pp177-8, puts
the matter this way:

    "The community's true morality is not to be discovered by taking
    opinion polls about particular moral issues.  It is to be
    discovered by asking what answer to a particular issue would fit
    consistently with abstract rights to which the community has
    already committed itself in its constitution and institutional
    practices - such as rights to liberty, dignity, equality and
    respect."

22.  The plaintiffs' submission is contrary to Dicey's theory of the
sovereignty of parliament which was 'firmly' accepted by Lord Reid in British
Railways Board v Pickin (1974) AC 765.  The plaintiffs rely, inter alia, on
the remark of Lord Cross in respect of a Nazi law in Oppenheimer v Cattermole
(Inspector of Taxes) (1976) AC 249 at 278:  "To my mind a law of this sort
constitutes so grave an infringement of human rights that the courts of this
country ought to refuse to recognise it as a law at all."

23.  In Grace Bible Church v Reedman (1984) 36 SASR 376 at 387, White J
expressed the sovereignty of parliament doctrine thus:

    "... the opinion of the Parliament as to what laws are for the
    peace, welfare and good government of the State is paramount and
    conclusive as a matter of law.  The Parliament's opinion, as
    expressed in a particular statute, cannot be impugned in a court
    of Law as being an invalid exercise of Parliament's power."

24.  See, also at 383-384 per Zelling J , at 389-90 per Millhouse J.  This
doctrine has many critics, the Natural lawyers amongst them.  Sir Owen Dixon
has said that the common law is the source of parliament's authority, ie the
doctrine of parliamentary supremacy itself is a rule of the common law:  see
'The Common Law as an Ultimate Constitutional Foundation' (1957-58) 31 ALJ
240. The plaintiffs' recognise that Christianity is not part of the common
law: Bowman & Others v Secular Society, Limited (1917) AC 406.  Nevertheless
their submission raises the question whether, and if so how, courts are able
to introduce some, and if so what, moral check on legislation.  Many jurists
see a need for some means of controlling the substance of legislation, see eg
Dias, 'Jurisprudence', 4th Ed (1976) Butterworths UK Ch 4 and 21:  'The
Problem of Power'; Walker, 'The Rule of Law' (1988) Melbourne University Press
Ch 4 and 5; Walker,  'Dicey's Dubious Dogma of Parliamentary Sovereignty:  A
Recent Fray with Freedom of Religion' (1985) 59 ALJ 276; T R S Allan, 'Law
Liberty and Justice' (1993) Clarendon Press, especially Ch 4, 6 and 11.

25.  The Rights of the Terminally Ill Act is, to adopt the observations of
Lamer CJC in Rodriguez v B.C. (A-G) (1994) 107 DLR (4d) 342 at 374, both
"especially contentious" and "morally laden".

26.  Although the question before this Court is a legal one, given the nature
of the legislation in question any answer to the legal question inevitably
involves questions of moral and political philosophy.  As T R S Allen, supra,
says (at 265-6):

    "In short, the fundamental rule that accords legal validity to
    Acts of Parliament is not itself the foundation of the legal
    order, beyond which the lawyer is forbidden to look.  That
    fundamental rule derives its legal authority from the underlying
    moral or political theory to which it belongs.  The sterility and
    inconclusiveness of much of the debate about the nature of
    sovereignty stems largely from the attempt to divorce legal
    doctrine from political principle.  Legal questions which
    challenge the nature of our constitutional order can only be
    answered in terms of the political morality on which that order
    is based."

27.  McCardie J's celebrated dictum, 'This is not a court of morals', has no
place here.  I have elsewhere ventured the suggestion (see Justice D N Angel,
"Some Reflections on Privity, Consideration, Estoppel and Good Faith" (1992)
66 ALJ 484) that moral philosophy, despite its difficulties, might be employed
by judges to solve 'hard cases' in contract law.  In Airedale NHS Trust v
Bland (1993) AC 789, Hoffmann LJ (as he then was) - appropriately, if I may
say so with great respect - resorted to moral principles in order to make a
legal decision.  He said (at 825 ff):
    "This is not an area in which any difference can be allowed
    to exist between what is legal and what is morally right.  The
    decision of the court should be able to carry conviction with
    the ordinary person as being based not merely on legal precedent
    but also upon acceptable ethical values.  For this reason I
    shall start by trying to explain why I think it would be not
    only lawful but right to let Anthony Bland die.  In the course
    of doing so I shall also try to explain why the principles upon
    which this judgment rests do not make it a precedent for morally
    unacceptable decisions in the future.

    To argue from moral rather than purely legal principles is a
    somewhat unusual enterprise for a judge to undertake.  It is not
    the function of judges to lay down systems of morals and nothing
    which I say is intended to do so.  But is seemed to me that in
    such an unusual case as this, it would clarify my own thought
    and perhaps help others, if I tried to examine the underlying
    moral principles which have led me to the conclusion at which I
    have arrived.  In doing so, I must acknowledge the assistance I
    have received from reading the manuscript of Professor Ronald
    Dworkin's forthcoming book Life's Dominion and from
    conversations with him and Professor Bernard Williams.

    I start with the concept of the sanctity of life.  Why do we
    think it would be a tragedy to allow Anthony Bland to die?  It
    could be said that the entire tragedy took place at Hillsborough
    and that the curtain was brought down when Anthony Bland passed
    into a persistent vegetative state.  Until then, his life was
    precious to him and his family.  But since then, he has had no
    consciousness of his life and it could be said to be a matter of
    indifference to him whether he lives or dies.  But the fact is
    that Anthony Bland is still alive.  The mere fact that he is
    still a living organism means that there remains an epilogue of
    the tragedy which is being played out.  This is because we have
    a strong feeling that there is an intrinsic value in human life,
    irrespective of whether it is valuable to the person concerned
    or indeed to anyone else.  Those who adhere to religious faiths
    which believe in the sanctity of all God's creation and in
    particular that human life was created in the image of God
    himself will have no difficulty with the concept of the
    intrinsic value of human life.  But even those without any
    religious belief think in the same way.  In a case like this we
    should not try to analyse the rationality of such feelings.
    What matters is that, in one form or another, they form part of
    almost everyone's intuitive values.  No law which ignores them
    can possibly hope to be acceptable.

    Our belief in the sanctity of life explains why we think it is
    almost always wrong to cause the death of another human being,
    even one who is terminally ill or so disabled that we think that
    if we were in his position we would rather be dead.  Still less
    do we tolerate laws such as existed in Nazi Germany, by which
    handicapped people or inferior races could be put to death
    because someone else thought that their lives were useless.

    But the sanctity of life is only one of a cluster of ethical
    principles which we apply to decisions about how we should live.
    Another is respect for the individual human being and in
    particular for his right to choose how he should live his own
    life.  We call this individual autonomy or the right of
    self-determination.  And another principle, closely connected,
    is respect for the dignity of the individual human being:  our
    belief that quite irrespective of what the person concerned may
    think about it, it is wrong for someone to be humiliated or
    treated without respect for his value as a person.  The fact
    that the dignity of an individual is an intrinsic value is shown
    by the fact that we feel embarrassed and think it wrong when
    someone behaves in a way which we think demeaning to himself,
    which does not show sufficient respect for himself as a person.

    No one I think, would quarrel with these deeply rooted ethical
    principles.  But what is not always realised, and what is
    critical in this case, is that they are not always compatible
    with each other.  Take, for example, the sanctity of life and
    the right of self-determination.  We all believe in them and yet
    we cannot always have them both.  The patient who refuses
    medical treatment which is necessary to save his life is
    exercising his right to self-determination.  But allowing him,
    in effect, to choose to die, is something which many people will
    believe offends the principle of the sanctity of life.  Suicide
    is no longer a crime, but its decriminalisation was a
    recognition that the principle of self-determination should in
    that case prevail over the sanctity of life.

    I accept that the sanctity of life is a complex notion, often
    linked to religion, on which differing views may be held.  The
    Jehovah's Witness who refuses a blood transfusion even though he
    knows this may result in his death, would probably not consider
    that he was sacrificing the principle of the sanctity of life to
    his own right of self-determination.  He would probably say that
    a life which involved receiving a transfusion was so defiled as
    no longer to be an object of sanctity at all.  But someone else
    might think that his death was a tragic waste and did offend
    against the sanctity of life. I do not think it would be a
    satisfactory answer to such a person to say that if he could
    only see it from the point of view of the Jehovah's Witness, he
    would  realise that the principle of the sanctity of life had
    not been sacrificed but triumphantly upheld.  Similarly it is
    possible to qualify the meaning of the sanctity of life by
    including, as some cultures do, concepts of dignity and
    fulfilment as part of the essence of life.  In this way one
    could argue that, properly understood, Anthony Bland's death
    would not offend against the sanctity of life.  But I do not
    think that this would satisfy the many people who feel strongly
    that it does.  I think it is better to accept this and confront
    it.

    A conflict between the principles of the sanctity of life and
    the individual's right of self-determination may therefore
    require a painful compromise to be made.  In the case of the
    person who refuses an operation without which he will certainly
    die, one or other principle must be scarified.  We may adopt a
    paternalist view, deny that his autonomy can be allowed to
    prevail in so extreme a case, and uphold the sanctity of life.
    Sometimes this looks an attractive solution, but it can have
    disturbing implications.  Do we insist upon patients accepting
    life-saving treatment which is contrary to their strongly held
    religious beliefs?  Should one force-feed prisoners on hunger
    strike?  English law is, as one would expect, paternalist
    towards minors.  But it upholds the autonomy of adults.  A
    person of full age may refuse treatment for any reason or no
    reason at all, even if it appears certain that the result will
    be his death.

    I do not suggest that the position which English law has taken
    is the only morally correct solution.  Some might think that in
    cases of life and death, the law should be more paternalist even
    to adults.  The point to be emphasised is that there is no
    morally correct solution which can be deduced from a single
    ethical principle like the sanctity of life or the right of
    self-determination.  There must be an accommodation between
    principles, both of which seem rational and good, but which have
    come into conflict with each other.

    ...

    Thus it seems to me that we are faced with conflicting ethical
    principles.  On the one hand, Anthony Bland is alive and the
    principle of the sanctity of life says that we should not
    deliberately allow him to die.  On the other hand, Anthony Bland
    is an individual human being and the principle of
    self-determination says he should be allowed to choose for
    himself and that, if he is unable to express his choice, we
    should try our honest best to do what we think he would have
    chosen.  We cannot disclaim this choice because to go on is as
    much a choice as to stop.  Normally we would unquestioningly
    assume that anyone would wish to live rather than die.  But in
    the extraordinary case of Anthony Bland, we think it more likely
    that he would choose to put an end to the humiliation of his
    being and the distress of his family.  Finally, Anthony Bland is
    a person to whom respect is owed and we think that it would show
    greater respect to allow him to die and be mourned by his family
    than to keep him grotesquely alive.

    There is no formula for reconciling this conflict of principles
    and no easy answer.  It does no good to seize hold of one of
    them, such as the sanctity of life, and say that because it is
    valid and right, as it undoubtedly is, it must always prevail
    over other principles which are also valid and right.  Nor do I
    think it helps to say that these principles are all really
    different ways of looking at the same thing.  Counsel appearing
    as amicus said that there was "no inherent conflict between
    having regard to the quality of life and respecting the sanctity
    of life; on the contrary they are complementary; the principle
    of sanctity of life embraces the need for full respect to be
    accorded to the dignity and memory of the individual."  To my
    mind, this is rhetoric intended to dull the pain of having to
    choose.  For many people, the sanctity of life is not at all the
    same thing as the dignity of the individual.  We cannot smooth
    away the differences by interpretation.  Instead, we are faced
    with a situation which has been best expressed by Sir Isaiah
    Berlin:
    'The world that we encounter in ordinary experience is one in
    which we are faced with choices between ends equally ultimate,
    and claims equally absolute, the realisation of some of which
    must inevitably involve the sacrifice of others ... The
    knowledge that it is not merely in practice but in principle
    impossible to reach clear-cut and certain answers, even in an
    ideal world of wholly good and rational men and wholly clear
    ideas - may madden those who seek for final solutions and
    single, all-embracing systems, guaranteed to be eternal.
    Nevertheless it is a conclusion that cannot be escaped by those
    who, with Kant, have learnt the truth that out of the crooked
    timber of humanity no straight thing was ever made:'  see Two
    Concepts of Liberty (1969), at pp. 168, 170."

    In my view the choice which the law makes must reassure people
    that the courts do have full respect for life, but that they do
    not pursue the principle to the point at which it has become
    almost empty of any real content and when it involves the
    sacrifice of other important values such as human dignity and
    freedom of choice."

28.  In Rodriguez, supra, at 389, Sopinka J, speaking for the majority, said,
inter alia:
    "I find more merit in the argument that security of the
    person, by its nature, cannot encompass a right to take action
    that will end one's life as security of the person is
    intrinsically concerned with the well-being of the living
    person.  This argument focuses on the generally held and deeply
    rooted belief in our society that human life is sacred or
    inviolable (which terms I use in the non-religious sense
    described by Ronald Dworkin, Life's Dominion:  An Argument About
    Abortion, Euthanasia, and Individual Freedom (New York:  Knopf,
    1993), to mean that human life is seen to have a deep intrinsic
    value of its own).  As members of a society based upon respect
    for the intrinsic value of human life and on the inherent
    dignity of every human being, can we incorporate within the
    Constitution, which embodies our most fundamental values, a
    right to terminate one's own life in any circumstances?  This
    question in turn evokes other queries of fundamental importance
    such as the degree to which our conception of the sanctity of
    life includes notions of quality of life as well.

    Sanctity of life, as we will see, has been understood
    historically as excluding freedom of choice in the
    self-infliction of death and certainly in the involvement of
    others in carrying out that choice.  At the very least, no new
    consensus has emerged in society opposing the right of the state
    to regulate the involvement of others in exercising power over
    individuals ending their lives.

    The appellant suggests that for the terminally ill, the choice
    is one of time and manner of death rather than death itself
    since the latter is inevitable.  I disagree.  Rather it is one
    of choosing death instead of allowing natural forces to run
    their course.  The time and precise manner of death remain
    unknown until death actually occurs.  There can be no certainty
    in forecasting the precise circumstances of a death.  Death is,
    for all mortals, inevitable.  Even when death appears imminent,
    seeking to control the manner and timing of one's death
    constitutes a conscious choice of death over life.  It follows
    that life as a value is engaged even in the case of the
    terminally ill who seek to choose death over life.

    Indeed, it has been abundantly pointed out that such persons are
    particularly vulnerable as to their life and will to live and
    great concern has been expressed as to their adequate
    protection, as will be further set forth.

    I do not draw from this that in such circumstances life as a
    value must prevail over security of person or liberty as these
    have been understood under the Charter, but that it is one of
    the values engaged in the present case."

29.  When Airedale NHS Trust v Bland came before the House of Lords, their
Lordships were of the view that the Parliament of Westminster could legislate
to authorise euthanasia, see (1993) AC 789 at 865, 877, 878, 880, 890-1, 896.
Compare R v Brown (1994) 1 AC 212 at 273-274, 282 and Secretary Department of
Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218
at 231.

30.  The reference by Hoffmann LJ (as he then was) to a portion of one of Sir
Isaiah Berlin's four celebrated essays on liberty is significant.  Because of
the highly contentious nature of the unique legislation we are considering and
the intense public interest in it, it is best to expand upon the significance
of the point Sir Isaiah Berlin was making, a point germane to the plaintiffs'
submission that the parliament can not pass legislation of the type in
question. In the course of "The Pursuit of the Ideal" in 'The Crooked Timber
of Humanity' (1991), Fontana Press, Sir Isaiah Berlin said (at 11-14):
    "'I prefer coffee, you prefer champagne.  We have different
    tastes.  There is no more to be said.'  That is relativism.  But
    Herder's view, and Vico's, is not that:  it is what I should
    describe as pluralism - that is, the conception that there are
    many different ends that men may seek and still be fully
    rational, fully men, capable of understanding each other and
    sympathising  and deriving light from each other, as we derive
    it from reading Plato or the novels of medieval Japan - worlds,
    outlooks, very remote from our own.  Of course, if we did not
    have any values in common with these distant figures, each
    civilisation would be enclosed in its own impenetrable bubble,
    and we could not understand them at all; this is what Spengler's
    typology amounts to.  Intercommunication between cultures in
    time and space is only possible because what makes men human is
    common to them, and acts as a bridge between them.  But our
    values are ours, and theirs are theirs.  We are free to
    criticise the values of other cultures, to condemn them, but we
    cannot pretend not to understand them at all, or to regard them
    simply as subjective, the products of creatures in different
    circumstances with different tastes from our own, which do not
    speak to us at all.

    There is a world of objective values.  By this I mean those ends
    that men pursue for their own sakes, to which other things are
    means.  I am not blind to what the Greeks valued - their values
    may not be mine, but I can grasp what it would be like to live
    by their light, I can admire and respect them, and even imagine
    myself as pursuing them, although I do not - and do not wish to,
    and perhaps could not if I wished.  Forms of life differ.  Ends,
    moral principles, are many.  But not infinitely many:  they must
    be within the human horizon.  If they are not, then they are
    outside the human sphere.  If I find men who worship trees, not
    because they are symbols of fertility or because they are
    divine, with a mysterious life and powers of their own, or
    because this grove is sacred to Athena - but only because they
    are made of wood; and if when I ask them why they worship wood
    they say 'Because it is wood' and give no other answer; then I
    do not know what they mean.  If they are human, they are not
    beings with whom I can communicate - there is a real barrier.
    They are not human for me.  I cannot even call their values
    subjective if I cannot conceive what it would be like to pursue
    such a life.

    What is clear is that values can clash - that is why
    civilisations are incompatible.  They can be incompatible
    between cultures, or groups in the same culture, or between you
    and me.  You believe in always telling the truth, no matter
    what; I do not, because I believe that it can sometimes be too
    painful and too destructive.  We can discuss each other's point
    of view, we can try to reach common ground, but in the end what
    you pursue may not be reconcilable with the ends to which I find
    that I have dedicated my life.  Values may easily clash within
    the breast of a single individual; and it does not follow that,
    if they do, some must be true and others false.  Justice,
    rigorous justice, is for some people an absolute value, but it
    is not compatible with what may be no less ultimate values for
    them - mercy, compassion - as arises in concrete cases.

    Both liberty and equality are among the primary goals pursued by
    human beings through many centuries; but total liberty for
    wolves is death to the lambs, total liberty of the powerful, the
    gifted, is not compatible with the rights to a decent existence
    of the weak and the less gifted.  An artist, in order to create
    a masterpiece, may lead a life which plunges his family into
    misery and squalor to which he is indifferent.  We may condemn
    him and declare that the masterpiece should be sacrificed to
    human needs, or we may take his side - but both attitudes embody
    values which for some men or women are ultimate, and which are
    intelligible to us all if we have any sympathy or imagination or
    understanding of human beings.  Equality may demand the
    restraint of the liberty of those who wish to dominate; liberty
    - without some modicum of which there is no choice and therefore
    no possibility of remaining human as we understand the word -
    may have to be curtailed in order to make room for social
    welfare, to feed the hungry, to clothe the naked, to shelter the
    homeless, to leave room for the liberty of others, to allow
    justice or fairness to be exercised.

    ... Should a man resist a monstrous tyranny at all costs, at the
    expense of the lives of his parents or his children?  Should
    children be tortured to extract information about dangerous
    traitors or criminals?

    These collisions of values are of the essence of what they are
    and what we are.  If we are told that these contradictions will
    be solved in some perfect world in which all good things can be
    harmonised in principle, then we must answer, to those who say
    this, that the meanings they attach to the names which for us
    denote the conflicting values are not ours.  We must say that
    the world in which what we see as incompatible values are not in
    conflict is a world  altogether beyond our ken; that principles
    which are harmonised in this other world are not the principles
    with which, in our daily lives, we are acquainted; if they are
    transformed, it is into conceptions not known to us on earth.
    But it is on earth that we live, and it is here that we must
    believe and act.

    The notion of the perfect whole, the ultimate solution, in which
    all good things coexist, seems to me to be not merely
    unattainable - that is a truism - but conceptually incoherent; I
    do not know what is meant by a harmony of this kind.  Some among
    the Great Goods cannot live together.  That is a conceptual
    truth.  We are doomed to choose, and every choice may entail an
    irreparable loss.  Happy are those who live under a discipline
    which they accept without question, who freely obey the orders
    of leaders, spiritual or temporal, whose word is fully accepted
    as unbreakable law; or those who have, by their own methods,
    arrived at clear and unshakeable convictions about what to do
    and what to be that brook no possible doubt.  I can only say
    that those who rest on such comfortable beds of dogma are
    victims of forms of self-induced myopia, blinkers that may make
    for contentment, but not for understanding of what it is to be
    human."

31.  Of Sir Isaiah Berlin's thesis and his interpretation of life as
"pluralism", Lord Annan in his introduction to Sir Isaiah Berlin's 'Personal
Impressions' 1982 Oxford University Press (at pp xv - xviii) said:
    "... pluralism.  How the imagination droops at the mention
    of that dingy word]  'We live in a pluralist age' is the
    castrating cliche of our times.  Most people when they use the
    term mean that society is formed of numbers of minorities who
    are moved each by their own interest and values.  But since the
    interests of all these groups conflict they should tolerate each
    other's existence.  Indeed the institution which needs to
    exercise the greatest tolerance is the state itself:  although
    it has to express politically the highest common factor of
    agreement in society it must be especially sensitive in
    accommodating those whose views are opposed to the consensus.
    Not only the state.  Every controlling body, every institution,
    management in its various disguises, should respond to minority
    feelings.  But there is a difficulty in sustaining this theory
    in practice.  When government in all its forms is weakened and
    drained of blood by giving transfusions to enable minorities to
    live, it becomes incapable of resisting determined and ruthless
    interest-groups or parties.  Having benefited by the application
    of pluralism, they kick over the theory and elbow the government
    out by taking over its most important functions; they then
    blandly declare the interests of all minorities to be
    subordinate to their own.  Must not a government so hesitant
    about its legitimacy collapse when its power to give orders is
    challenged?

    Isaiah Berlin's interpretation of pluralism is far more
    profound.  He does not spend time conjecturing how far the state
    should or should not yield to pressure groups.  What fascinates
    him is not the political consequences of pluralism but its
    justification.  It needs to be justified not only against its
    enemies but against many of those who preen themselves on being
    pluralists but would be indignant if they became aware of the
    implications of what Berlin is saying.  For those who pay
    lip-service to pluralism fail to understand just how disturbing
    he is.  He believes that you cannot always pursue one good end
    without setting another on one side.  You cannot always exercise
    mercy without cheating justice.  Equality and freedom are both
    good ends but you rarely can have more of one without
    surrendering some part of the other.  This is dispiriting for
    progressives who like to believe that the particular goal which
    at present they are pursuing is not incompatible with all the
    other goals which they like to think they value as much.  But
    Berlin, disbelieving in panaceas or total solutions, is
    sceptical of many remedies which purport to cure social ills and
    to reintegrate those said to be alienated from their society.
    Masterful men and implacable women, planners, moving their
    fellow citizens about and disposing of the future of their
    children, determining how and where they should live in the name
    of efficiency or equality, justifying the brutality of their
    decisions by declaring how inescapable these decisions are, do
    not rejoice his heart.  Those whom Montesquieu called 'les
    grands decisionaires', technocrats who take pleasure in defining
    the rules and regulations which govern everyone else's jobs,
    awaken in him the suspicion that so far from fulfilling what
    people want they are more interested in manipulating them.  But
    if for him the ideals of the technocrat insult too wantonly the
    nature of man, he does not display much enthusiasm for the
    political movements which grew up in opposition to the gospel of
    efficiency.  He watches populism or syndicalism with the
    reservation of one who is concerned for the liberty of
    minorities.

    But these reservations give no comfort to conservatives.  Unlike
    Michael Oakeshott, Berlin is not sceptical of reason in politics
    or of theories as such.  He may have no views about monetarism
    or deficit budgeting or on other statistical or sociological
    analyses:  but he does not regard such efforts to apply reason
    to politics as valueless.  Such theories, the product of
    abstract reason and analysis, may, if put into practice,
    diminish the bruising and dispiriting conflicts between good
    ends.  Life is not one long struggle against impaling oneself on
    the horn of a dilemma:  peaceful trade-offs are possible, nor
    are they always agonising.  Sometimes equality and liberty may
    be reconciled; sometimes not; but Berlin disagrees with those
    who deny that tangles of this sort can be combed out.  Again,
    participatory populism  is not a form of political organisation
    likely to make the blood surge through his veins; but if it
    could be shown that it led to a clear advance towards greater
    equality he would not reject it.  Unlike even moderate
    conservatives he regards equality as one of the ultimate goals
    for men, a sacred value, obliged no doubt to yield when other
    sacred values would have to suffer if they were to collide with
    it, but to be realised so long as it cannot be shown to be doing
    irreparable damage.  If many people are starving and can be fed
    if the liberty of the few is curtailed, then the few must lose
    their liberty.  If that gives pain, well, pain must be given.
    All Berlin asks is that there should be no equivocation and it
    should be frankly admitted that liberty was curtailed - in a
    good cause.  Nor has he sympathy with the conservative notion
    that all culture is founded on inequality, or with a view dear
    to some intellectuals that art is the supreme value in life
    which must be protected and fostered at whatever cost.  If the
    agonising choice had to be made between the destruction of, say,
    Rome, glistening with the treasures of the ages, and the loss of
    the independence of a nation and the subjugation of its citizens
    to a tyranny, Berlin would throw his lot for scorched earth and
    resistance.  Some might guess that in his sympathy for Turgenev
    he would follow him in loathing the right and fearing the left;
    and faced with the alternatives which confronted Turgenev in
    nineteenth-century Russia the guess would be right.  Berlin
    finds reactionary regimes odious, and terrorist revolutionaries
    insupportable.  But within the range of western democratic
    politics he follows his fancy.

    The desire to maximise a particular virtue is common enough:
    the admission that it is not always possible to do this without
    fatally diminishing others is not.  Unfortunately people, Berlin
    argues, want to be assured that in fact they can always follow
    simultaneously all good ends, and therefore listen respectfully
    to political thinkers who declare that this can be done.  Such
    sages declare that they have discovered a better kind of
    freedom, positive freedom, which will reconcile the desire for
    justice, equality, opportunity for self-fulfilment, with their
    wish to be as free and live under as few prohibitions as
    possible.  Positive freedom is the benign name given to the
    theory which maintains that not merely wise philosophers but the
    state, indeed governments themselves, can identify what people
    would really want were they enlightened, if they possessed fully
    developed personalities and understood fully what was needed to
    promote a good, just and satisfying society.  For if it is true
    that this can be identified then surely the state is justified
    in ignoring what ordinary people say they desire or detest.
    What people say is the mere rumbling of their lower self, a
    pathetic underdeveloped persona insufficiently aware of all the
    possibilities of life, often the slave of evil passions.  Who in
    his senses would want to be a slave to the bottle?  Who would
    not agree that art is vital to anyone who wants to lead a full
    life?  But since all too many people are alcoholics and vast
    numbers of people care not at all for art, the state is
    compelled to enforce sobriety and propagate art so long as it is
    healthy and opens men's eyes to a better future.

    People are often convinced by this vision of freedom because
    they want to believe in a commonsense view of goodness.  Surely
    goodness must be indivisible, surely truth is beauty and beauty
    truth, surely the different aspects of truth and goodness can
    always be reconciled.  But Berlin declares that sometimes they
    cannot.  Ideology answers the questions 'How should I behave?'
    and 'How should I live?'  People want to believe that there is
    one irrefutable answer to these questions.  But there is not."

32.  I have said enough (inconclusive and little though it may be) and cited,
it may be, more than enough, to indicate the far reaching and complex nature
of the questions raised by the plaintiffs' submission.

33.  In a context such as the present, like Hoffmann LJ, I do not think that
the legal question can ignore the philosophical questions, both moral and
political, involved, and the values at stake.  The plaintiffs' submission, I
think, with respect, involves much deeper and broader questions than whether
parliament by clear words can abrogate a 'fundamental right'.

34.  I respectfully take leave to doubt the existence of a 'right' to life.
It seems to me to speak of a 'right' to life is essentially meaningless, if by
that expression is meant a legal right.  Legal rights are enforceable in
courts of law.  How is the 'right to life' to be enforced, by suing someone or
the state for sustenance?  As J D Mabbott ('The State and the Citizen', 2nd Ed
(1967) Hutchinson and Co at 58) enquires, is a 'right to life' distinct from a
right to liberty, to security, to happiness?

35.  Hohfeld, and others, have analysed the nature of rights.  It is not just
a question of semantics.  Significantly the plaintiffs' submission does not
only rest on a 'right to life', but embraces, and I have no doubt, was
intended to embrace, inter alia, the Natural lawyers' criticisms of the
sovereignty of parliament, and the view that parliament itself is subject to
the Rule of Law. In short, the plaintiffs' submission, in my respectful view,
extends beyond Coco v The Queen (1993-94) 179 CLR 427 at 437, which was relied
upon by the defendants.  The reasons for judgment in that case, in my view, do
not resolve, or purport to resolve, the question left open in Union Steamship
v King, supra.

36.  Having reached my conclusion on the first issue, it is unnecessary that I
express any final view on the second question.  I have digressed in to some of
the many issues raised by the plaintiffs' submission because of the great
public interest in this case and in order, in the words of Hoffmann LJ, to
"... clarify my own thought and perhaps help others."

37.  In my opinion, the Rights of the Terminally Ill Act (as amended) NT has
not been lawfully assented to and has not passed in to law.  I would so
declare.  I would wish to hear the parties on the form of declaratory relief
and as to any consequential relief and as to costs.