Voluntary Assisted Dying in Australia: What you need to know

NSW Legislation takes effect, ACT introduces Voluntary Assisted Dying Bill and Northern Territory consulting with community on proposed legislation.

Recent VAD developments

New South Wales recently passed Voluntary Assisted Dying (VAD) legislation which took effect on 28 November 2023, making VAD legal in every Australian state – but not in the Australian Capital Territory (ACT) or Northern Territory.

There have however also been significant developments in the Territories, which have been a step behind the states in Australia for largely historical reasons.

Originally, the Northern Territory was a pioneer in this area, being the first jurisdiction in the world where an individual could legally die by voluntary assisted dying in 1996 under the Territory’s Rights of the Terminally Ill Act 1995 (NT).

This was soon brought to an end with the Federal Government introducing the Euthanasia Laws Act 1997 (Cth) which once again outlawed the practice in the Northern Territory as well as the Australia Capital Territory.1

However, in 2022, after all states had moved to reform their legislation, Federal Government passed the Restoring Territory Rights Bill 2022, amending both the Northern Territory and ACT legislation to enable the Territories to legislate in relation to VAD once again.

The ACT has already conducted stakeholder and community consultations and has introduced the Voluntary Assisted Dying Bill 2023 (ACT). The bill is set to undergo a parliamentary committee inquiry before becoming law. Along with the bill, the ACT government has provided a proposed voluntary assisted dying framework.

The Northern Territory has begun community consultations with an expert advisory panel hearing Territorian’s feedback on the reintroduction of VAD legislation. A report which is due July 2024 to the Chief Minister will detail the community’s views on the issues. These community consultations indicate that one key issue which may set the Northern Territory legislation apart from other jurisdictions is whether VAD will be available to those diagnosed with dementia. This question has already prompted considerable debate.

Where is VAD legal?

At the time of publication, 6 jurisdictions in Australia allow individuals access to VAD subject to strict criteria and processes. With the proposed legislation in the ACT and community consultations in the NT, it is anticipated that in the not too distant future VAD will be legal in all jurisdictions across Australia.

Who can (or will be able to) access VAD in Australia?

Although the wording of the criteria for each state is different, broadly speaking the same eligibility requirements are consistent nationally. In order to access VAD individuals must be:

• Aged 18 years +
• An Australian citizen or permanent resident
• An ordinary resident of the state for at least 12 months
• Have decision making capacity
• Diagnosed with a disease, illness or medical condition that is advanced, progressive and will be expected to cause death within a specific time frame (excluding proposed ACT legislation).
• Suffering intolerably (or experiencing suffering that cannot be relieved in a tolerable manner)

How does the law compare between states?

There is no uniform national approach to legislating voluntary assisted dying in Australia. Instead, each state has its own legislation which has been carefully crafted and debated.

The Queensland scheme has some differences when compared to other states. Key areas which have attracted attention are:

1. Time frame for prognosis

The time frame of prognosis is largely consistent across all states except Queensland, where a longer general prognosis time is specified under the new legislation.

Unlike other VAD legislation across Australian jurisdictions, the ACT’s proposed legislation will not require a specific time frame prognosis for individuals to be eligible for VAD. Under the proposed legislation, an individual who is persistently suffering intolerably, including either physically, mentally, or both, from a relevant condition may satisfy the eligibility requirements provided they are considered to be ‘in the last stages of life’.

The proposed ACT legislation eligibility requirements require the individual to receive a diagnosis that is advanced, progressive, and expected to cause death (relevant condition). The eligibility requirements also exclude those who have a disability or mental disorder or illness.

2. Conscientious objections

The ability for institutions and individuals to decline to participate in the VAD process has been one of the key issues raised in debate during the rollout of VAD legislation across the states. South Australia, Queensland and the proposed legislation in the ACT are the only jurisdictions which specifically address institutional objects.

While the above table provides a snapshot of the law, it is important to note that each state has some differences in the types of services that can be objected to and how that objection can be communicated to patients.

Current and future issues regarding VAD

While there are technical differences within each jurisdiction, some common themes have arisen across jurisdictions. These include:

• Issues of conflict with federal laws, noting Commonwealth laws generally take precedence over state laws.
• In the Commonwealth Criminal Code it is an offence to use a 'carriage service' to access, transmit, publish or distribute information that counsels or incites suicide. The implications of this for telehealth VAD consultations were tested recently when an applicant doctor sought declarations from the Federal Court regarding the meaning of ‘suicide’ in the Commonwealth Criminal Code, the answer to which would determine whether the Code offence would extend to telehealth VAD consultations. The Court found that ‘suicide’ extended to VAD in the circumstances, and that telehealth for VAD – while legal under state laws – would contravene the Commonwealth criminal law. As Commonwealth law prevails over state law, the state legislation gives no protection, and practitioners using telehealth for VAD may be exposed to this criminal offence.2
• Jurisdictional issues for patients. Differences in each state mean there is potential for there to be differences between who can access what types of VAD services based on a person’s postcode. When people move interstate regularly (perhaps for a specific treatment) or are 'border residents', they may struggle to meet the residency requirement within the eligibility criteria.
• Uncertainties as to what is required when exercising the right to conscientiously object. In some states legislation is silent on the issue (such as Victoria), and others have specific requirements that need to be followed (such as Queensland).
• Conflict between individual practitioners’ opinions. Parts of the legislation, such as the requirement to have a specific time frame for prognosis and the requirement to have capacity, require definitive decisions from practitioners. What does a practitioner do when they aren’t entirely certain, or if another practitioner disagrees with their assessment?

Looking to the future: will the Northern Territory be the first jurisdiction to enable individuals suffering from dementia to access VAD – whereas decision making capacity at all stages has been a key foundation of the VAD process under all other legislation? Will the ACT omit prognosis timeframes from its eligibility criteria? And if so, will differences across jurisdictions lead to forum shopping or other unintended consequences?

We will be watching developments in 2024 with interest.

If you’d like to know more about VAD in your state or territory, or you’re after specific advice, please contact our Health Law experts.

1 Amending the Northern Territory (Self-Government) Act 1978 (Cth) and Australian Capital Territory (Self-Government) Act 1988 (Cth) to prohibit the territories from legalising VAD.
2 In the case of Carr v Attorney-General (Cth) [2023] FCA 1500 per Abraham J (on Federal Court)