Voluntary Assisted Dying in Australia: What you need to know

The latest piece of end-of-life legislation passed Australian State parliament in September, with Queensland’s Voluntary Assisted Dying Act being made accessible to eligible Queenslanders from 2023. This is now the fifth Australian state to pass legislation in this area.

The Australian “debate” around voluntary dying has been one charged with emotion, which is unsurprising considering the social and ethical considerations also in play.

Objectively, the laws mean that there will be changes in end-of-life healthcare in Australia. This will impact health practitioners, individuals, and institutions alike.

Where is VAD legal?

The only two jurisdictions in Australia where people can currently access Voluntary Assisted Dying (VAD) are Western Australia and Victoria.

Long implementation periods mean that VAD remains illegal in some states, even though they have passed the law (i.e., Queensland, Tasmania, South Australia).

VAD has not become law in New South Wales, Northern Territory or Australian Capital Territory.¹

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. Persons 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 or will be expected to cause death within a specific time frame
• Suffering intolerably (or 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, in particular, 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 prognosis time is specified under the new legislation.

2. Conscientious objections

The ability for institutions and individuals to decline to participate in the VAD process is one of the key issues raised in the debate. More recent legislation specifically addresses these issues, whereas the earlier laws offer less guidance.

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.

What are the implications of state-based laws on a national level?

While there are technical differences within each jurisdiction, similar considerations will impact the health law industry on a national level. We may see:

Conflict with federal laws. As Commonwealth laws generally take precedence to state laws, there is some uncertainty when:

• The Euthanasia Laws Act 1997 (Cth) is still in operation which prevents territories from legislating on the area.
• 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.⁷ This creates uncertainty as to what is and isn’t legal for medical practitioners operating in this space, particularly during a time where telehealth is so prominent.
• Jurisdictional issues for patients. Differences in each state mean there is potential for there to be stark 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. 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’ views. Parts of the legislation, such as the requirement to have a specific time frame for prognosis and the requirement to have capacity, require definitive black and white analysis from practitioners. What does a practitioner do when they aren’t entirely certain, or if another practitioner disagrees with their assessment?

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

¹ The Euthanasia Laws Act 1997 (Cth) prevents territories from being able to legislate in this area.
² Voluntary Assisted Dying Act 2017 (Vic).
³ Voluntary Assisted Dying Act 2019 (WA).
⁴ End-of-Life Choices (Voluntary Assisted Dying) Act 2021 (Tas).
⁵ Voluntary Assisted Dying Act 2021 (SA).
⁶ Voluntary Assisted Dying Bill 2021 (Qld) awaiting assent.
⁷ Criminal Code Act 1995 (Cth) s 474.29A.