Euthanasia in Australia

Assisted dying legislation status in Australian states and territories (as of 2021):

  Voluntary euthanasia and physician-assisted suicide illegal

  Voluntary euthanasia and physician-assisted suicide legal

Laws regarding euthanasia or assisted suicide in Australia are matters for state governments, and in the case of the territories, the federal government. As of October 2021 five of the six states have passed legislation creating an assisted suicide scheme for eligible individuals, two of which are now in effect. These laws typically refer to assisted suicide as "voluntary assisted dying".

In Victoria an assisted suicide scheme has been in place since June 2019,^[1] and a similar scheme came into effect in Western Australia in July 2021.^[2] Tasmania passed voluntary assisted dying legislation in March 2021 which is expected to go into effect in October 2022^[3] and South Australia passed similar legislation in June 2021.^[4] Queensland passed legislation in September 2021 that goes into effect in January 2023.^[5] Voluntary euthanasia and assisted suicide are illegal in all territories of Australia under federal law, and also in New South Wales under the Crimes Act 1900.

Euthanasia was legal for a period between 1996 and 1997 in the Northern Territory, until a federal law overturning the territory law (and removing the right of territories to legislate on euthanasia) was passed.^[6]

Throughout Australia a patient can elect not to receive any treatment for a terminal illness and can also elect to have their life support turned off.^[7] Advance care planning is also available throughout Australia.^[8]

History[]

Philip Nitschke, an Australian physician and author, is a prominent international campaigner on euthanasia.

Although historically it was usually a crime to assist in euthanasia and suicide, prosecutions were rare. In 2010, the New South Wales Court of Criminal Appeal quashed a manslaughter conviction of a Sydney woman who had previously been found guilty of killing her partner of 18 years with a euthanasia drug.^[9][10] In 2002, relatives and friends who provided moral support to an elderly woman who committed suicide were extensively investigated by police, but no charges were laid. The Howard Government subsequently tried to hinder euthanasia with the passage of the Criminal Code Amendment (Suicide Related Material Offences) Act 2005, which passed the Federal Parliament in June 2005,^[11] and made it a crime to use a telephone, fax, email or internet carriage service to discuss the practicalities of suicide/end-of-life options.^[12][13] In Tasmania in 2005 a nurse was convicted of assisting in the death of her elderly father, who had terminal cancer, and trying to kill her mother, who was in the early stages of dementia.^[14] She was sentenced to two and a half years in jail but the judge later suspended the conviction because he believed the community did not want the woman jailed. This sparked debate about decriminalising euthanasia.^[15] Decriminalisation of euthanasia in Australia is supported by multiple minor parties such as Jacqui Lambie Network, the Science Party,^[16] Australian Greens, the Secular Party of Australia, the Reason Party and the Liberal Democratic Party,.^[17] though it is usually a conscience vote for the major parties such as the Australian Labor Party and Liberal/National coalition.

In 2009 Shirley Justins and Caren Jennings, were found guilty of manslaughter and accessory to manslaughter respectively for providing Nembutal to former pilot Graeme Wylie in 2006. Justins stated that Wylie wanted to "die with dignity". The prosecution argued that Graeme Wylie did not have the mental capacity to make the crucial decision to end his life, classing it as involuntary euthanasia.^[18]

Exit International made TV ads arguing for voluntary euthanasia, which were banned just before they were scheduled to broadcast in September 2010.^[19] The following year the Supreme Court of New South Wales gave a two-year suspended sentence to a 66-year-old man who had facilitated the death of his long-term 78-year-old partner by helping her overdose on drugs and suffocating her. The deceased suffered from severe pain arising from a spinal condition. Furthermore, the deceased had expressed a wish to die in a suicide note written prior to her death. The court convicted the man of manslaughter. The court accounted for the accused's substantial impairment at the time the act was committed as well the fact that he voluntarily revealed his involvement in the commission of the offence.^[20]

As of November 2014, 29 bills had been presented in Australian parliaments that sought to legalise access to voluntary euthanasia or physician-assisted dying.^[21]

An omission to provide life-sustaining medical treatment is lawful in Australia, unless the patient is deemed mentally incapable of consent.^[22]

Legality by jurisdiction[]

Federal[]

As euthanasia is not a legislative power granted to the Federal Parliament under Section 51 of the Constitution of Australia, federal law cannot explicitly legalise or criminalise the practice. The subject is a matter for state parliaments. Under Section 122 of the Constitution of Australia however the Federal Parliament has the power override any law passed by a territory parliament.^[23] This occurred in 1997, when the Federal Parliament passed the Euthanasia Laws Act 1997. The legislation passed the Senate by 38 votes to 34, and passed the House of Representatives by 91 votes to 38.^[24][25] The law amended the Northern Territory (Self-Government) Act 1978 and Australian Capital Territory (Self-Government) Act 1988 to explicitly prevent the Northern Territory Parliament and Australian Capital Territory Legislative Assembly from legislating to allow euthanasia or assisted suicide.^[26][27] An identical ban was placed into the Norfolk Island Act 1979, which was later repealed as part of the abolition of self-government on Norfolk Island by the Abbott Government in 2015.^[28] As well as removing the power of those territories to legalise euthanasia, the Act specifically repealed the provisions of the Rights of the Terminally Ill Act 1995 (NT). The Euthanasia Laws Act remains in effect to this day, and the current Morrison Government has rejected requests by the Australian Capital Territory (ACT) and Northern Territory governments to repeal the law.^[29]

In 2018 Liberal Democratic Party Senator David Leyonhjelm introduced a bill into the Senate to remove the federal ban on the ACT and Northern Territory legislating for euthanasia. Leyonhjelm's bill was given priority in the Senate after he secured the Turnbull Government's agreement for a conscience vote in the Senate and possibly the House of Representatives (the question of the government permitting a vote in the House was unresolved),^[30] in exchange for support to reinstitute the Australian Building and Construction Commission.^[30] The Liberal/National Government, opposition Labor Party and several minor party crossbenchers held a conscience vote on the legislation. Despite Leyonhjelm expressing optimism for the bill's prospects,^[30] it was defeated in the Senate by 36 votes to 34.^[31][32]

New South Wales[]

On 21 September 2017 National Party MLC Trevor Khan introduced the Voluntary Assisted Dying Bill 2017 into the New South Wales Parliament. The Bill was modelled on the Oregon Death With Dignity Act, and was developed by a cross party working group that considered 72 "substantial" submissions.^[36] The Bill contained " a raft of safeguards" including a seven-person oversight board to review all assisted deaths.^[37] The upper house debated the bill throughout several sittings in November 2017, and on 16 November the bill was voted down 20 votes to 19.^[38]

In October 2021 independent MLA Alex Greenwich introduced the Voluntary Assisted Dying Bill 2021 into the lower house of the Parliament.^[39] The legislation was subjected to a cross-party conscience vote, after Premier and Liberal Party leader Dominic Perrottet indicated he would grant Liberal members a conscience vote.^[40][41] The legislation was passed in the Legislative Assembly on 26 November 2021 by 52 votes to 32, and now proceeds to the Legislative Council.^[39][42] The bill is expected to be voted on by the Council in the first quarter of 2022.^[42]

Under the provisions of the bill as it is currently drafted, a person may make a request for a voluntary assisted death to a specialist doctor, which is lodged with the Voluntary Assisted Dying Board.^[43] If the doctor is satisfied that the person has the capacity to make the decision and is doing so voluntarily and determines that the person meets the criteria (i.e: they have a terminal illness that will result in death within six months, or a neurodegenerative condition that wil result in death within 12 months, and whose suffering is such that it creates a painful condition that cannot be tolerably relieved), they can approve the request.^[43] The same process must then be followed by a second independent doctor.^[43] The person may then make a written request declaring their intention to end their life, which must be witnessed by two people and then be submitted to the board. A final request must be made five days later and a review done by the first doctor, who can then apply to the Voluntary Assisted Dying Board to allow access to a substance to end their patient's life.^[43] The person can choose to administer the relevant substance themselves or have a health practitioner do it.^[43]

Northern Territory[]

Euthanasia was legalised in Australia's Northern Territory, by the Rights of the Terminally Ill Act 1995. It passed the Northern Territory Legislative Assembly by a vote of 15 to 10. In August 1996 a repeal bill was brought before the Parliament but was defeated by 14 votes to 11.^[44] The law was later voided by the federal Euthanasia Laws Act 1997,^[45] which is a federal that remains in effect to this day and prevents the territory parliament from legalising euthanasia or assisted dying. Before the federal override occurred, three people died through physician assisted suicide under the legislation, aided by Dr Philip Nitschke. The first person was a carpenter, Bob Dent, who died on 22 September 1996.^[46]

Queensland[]

In November 2018, the Premier of Queensland, Annastacia Palaszczuk, launched an inquiry considering the possible legalisation of voluntary assisted dying in the state. The inquiry also took into account care of the aged, end of life, and palliative care.^[47]

In May 2021, Palaszczuk announced that voluntary assisted dying legislation would be introduced to the Queensland Parliament for consideration. If passed, the legislation could be enacted in 2023.^[48] The bill would allow euthanasia, if the patient meets the following criteria:^[49]

• Has an eligible condition that is advanced and progressive, with the potential for death within the subsequent 12 months;
• Is capable of making a decision with sound mind;
• Is acting voluntarily and without coercion;
• Is at least 18 years old; and
• Is a resident of Australia.

On 16 September 2021, the Queensland Legislative Assembly passed the Voluntary Assisted Dying Act 2021 with 61 votes in favour and 31 opposed.^[5] The legislation was subject to a conscience vote.^[50] It received royal assent on 23 September 2021 and will go into effect on 1 January 2023.^[51]

South Australia[]

In November 2016, the South Australian House of Assembly narrowly rejected a private member's bill which would have legalised a right to request voluntary euthanasia in circumstances where a person is in unbearable pain and suffering from a terminal illness. The bill was the first ever euthanasia bill to pass a second reading stage (27 votes to 19) though the bill was rejected during the clauses debate of the bill (23 votes all, with the Speaker's casting vote against the bill).^[54]

In late June 2021, a voluntary euthanasia bill similar to that of other states passed the Parliament of South Australia.^[55] The legislation mirrors most of the provisions of the Victorian law, though also allows private hospitals and individual practitioners to conscientiously object from participating in the scheme, provided they refer patients to a place where they can access the scheme. Residents in aged care and retirement villages can also access the scheme in their own homes or units.^[55] The Voluntary Assisted Dying Act 2021 will go into effect on a date to be fixed by proclamation.^[56]

Tasmania[]

Tasmania came close to legalising voluntary euthanasia in November 2013, when a Greens-initiated voluntary euthanasia bill was narrowly defeated in the House of Assembly by a vote of 13–12. The bill would have allowed terminally ill Tasmanians to end their lives 10 days after making three separate requests to their doctor. Although both major parties allowed a conscience vote, all ten Liberals voted against the legislation, with Labor splitting seven in favour and three against, and all five Greens voting in favour.^[59]

In December 2019, independent Legislative Council member Mike Gaffney announced he would introduce a private member's bill to legalise voluntary assisted dying the following year.^[60] The End of Life Choices (Voluntary Assisted Dying) Bill was introduced to the Council on 27 August and was passed on 10 November 2020, without a formal vote being recorded. It proceeded to the Legislative Assembly, where it was passed with amendments attached on 4 March 2021 by 16 votes to 6.^[61][62] After the Council approved of the Assembly's amendments,^[63] the legislation received royal assent on 22 April 2021. It will go into effect no later than 23 October 2022.^[64]

Under the provisions of the legislation, in order to access the scheme a person must be at least 18 years of age, have decision-making capacity, be acting voluntarily and be suffering intolerably from a medical condition that is advanced, incurable, irreversible and will cause the person's death in the next six months, or 12 months for neurodegenerative disorders.^[63] The person must also be an Australian citizen or have resided in the country for at least three continuous years, and for at least 12 months in Tasmania immediately before making their first request. In total three separate requests must be made to access the scheme, each of which comes with progressively more stringent checks and balances.^[63]

Victoria[]

Since 19 June 2019, Victoria permits assisted dying. On 20 September 2017, the Voluntary Assisted Dying Bill 2017 was introduced into the Victorian Parliament by the Andrews Labor Government, permitting assisted suicide. The bill was modelled on the recommendations of an expert panel chaired by former Australian Medical Association president Professor Brian Owler.^[65] The bill passed the parliament, with amendments made in the Legislative Council, on 29 November 2017. The upper house voted in favour 22 votes to 18. The lower house voted in favour 47 votes to 37. ^[66] In passing the bill, Victoria became the first state to legislate for voluntary assisted dying (VAD). The law received royal assent on 5 December 2017 and came into effect on 19 June 2019.^[66][67][68] Implementation of the legislation was an ongoing process which took approximately 18 months.^[69][70] Challenges identified with implementation which were by noted by the Medical Journal of Australia included restricting access to those who were eligible, while ensuring it did not unfairly prevent those who were eligible from accessing it and translating the legislation into appropriate clinical practice, as well as supporting and managing doctors with conscientious objections.^[69]

Under the provisions of the legislation, assisted suicide (otherwise referred to as voluntary assisted dying) may be available in Victoria under the following conditions:^[71]

• A person must be suffering from an incurable, advanced and progressive disease, illness or medical condition, and experiencing intolerable suffering.
• The condition must be assessed by two medical practitioners to be expected to cause death within six months (an exception exists for a person suffering from a neurodegenerative condition, where instead the condition must be expected to cause death within 12 months).
• A person must be over the age of 18 and have lived in Victoria for at least 12 months and have decision-making capacity.
• Though mental illness or disability are not grounds for access, people who meet all other criteria and who have a disability or mental illness will not be denied access to assisted dying.

Other processes and safeguards associated with the scheme are in place.^[71]

Western Australia[]

In November 2018 the McGowan Government announced it would introduce an assisted dying bill early in the new year.^[74]

On 10 December 2019, the Voluntary Assisted Dying Act 2019 passed the Western Australian Parliament.^[75] The legislation had passed the Legislative Council by 24 votes to 11, having previously passed the Legislative Assembly 45 votes to 11.^[76] Under the legislation, an eligible person would have to be terminally ill with a condition that is causing intolerable suffering and is likely to cause death within six months, or 12 months for a neurodegenerative condition. The person would have to make two verbal requests and one written request, with each request signed off by two independent doctors. Self-administration of lethal medication is then permitted, though in a departure from the Victorian system, a patient can choose for a medical practitioner to administer the drug.^[75][77] The legislation goes into effect on a day to be fixed by proclamation, though the government has advised of an 18-month implementation period.^[75][78] The law went into effect on 1 July 2021.^[79]

Organisations[]

The euthanasia advocacy group YourLastRight.com^[80] is the peak organisation nationally representing the "Dying with Dignity" associations of Queensland, New South Wales, Victoria and Tasmania,^[81] as well as the South Australian Voluntary Euthanasia Society (SAVES),^[82] the Western Australian Voluntary Euthanasia Society (WAVES)^[83] and the Northern Territory Voluntary Euthanasia Society (NTVES).^[84]

Exit International is an Australian euthanasia advocacy group founded by Philip Nitschke. Other Australian groups include Christians Supporting Choice for Voluntary Euthanasia^[85] and Doctors for Voluntary Euthanasia Choice.^[86]

Australian institutions and organisations that oppose the legalisation of euthanasia include the Australian Medical Association,^[87] HOPE,^[88] Right to Life Australia^[89] and the Australian Catholic Church.^[90] A contemporary catholic viewpoint is available in a 2020 moral compass style document, expanding on the theme of the parable of the Good Samaritan. ^[91]

See Also[]

• Health care in Australia
• Oregon Death With Dignity Act
• California End of Life Option Act
• Voluntary Assisted Dying Act 2017 (Victoria)
• Voluntary Euthanasia Party
• Euthanasia in New Zealand

Notes[]

References[]

Further reading[]

• Bartels L, Otlowski M (February 2010). "A right to die? Euthanasia and the law in Australia". J Law Med. 17 (4): 532–55. PMID 20329456.
• Victoria's hub for health services and business - Voluntary Assisted Dying Bill