Fri Dec 2

Territories free to make their own voluntary assisted dying laws, in landmark decision. Here's what happens next

Written by: Ben White, Professor of End-of-Life Law and Regulation, Australian Centre for Health Law Research, Queensland University of Technology

Voluntary assisted dying will soon be an option for the Australian Capital Territory and Northern Territory, now the Senate has just passed a landmark bill.

The passing ^[1] of the Restoring Territory Rights Bill 2022 ^[2] removes the key legal barrier ^[3] for the ACT and NT to introduce their own voluntary assisted dying legislation, should they wish to do so.

This could see the territories join all six Australian states, which already have voluntary assisted dying legislation.

After extensive consultation, the ACT will introduce ^[4] its voluntary assisted dying legislation, with debate expected in late 2023 or early 2024. The NT government has stated ^[5] it has no plans to follow suit, at least during this parliamentary term.

The territories once led reform

Although the territories are now the only Australian jurisdictions without voluntary assisted dying laws, they once led reform in this area.

The ACT was the first Australian jurisdiction to attempt to legalise assisted dying, although its 1993 Voluntary and Natural Death Bill failed to pass ^[7].

Shortly after, in 1995, the NT parliament passed the Rights of the Terminally Ill Act ^[8] – the first operational voluntary assisted dying law, not only in Australia, but in the world.

However, it was the passing of this law that prompted the Commonwealth to remove the territories’ power to legislate in this field.

In 1997, the NT’s act was overturned by the Commonwealth parliament through the Euthanasia Laws Act ^[9], introduced by then Liberal backbencher Kevin Andrews. This act also aimed to prevent the territories passing such laws in the future.

The Commonwealth was only able to do this for the territories – not the states – because the Constitution gives the Commonwealth unlimited power to make laws “for the government of any territory ^[10]”.

Nine previous bills ^[11] aiming to restore territory rights on this issue have been introduced into the Commonwealth parliament, but all had failed, until now.

The ACT and NT can learn from the states

If the ACT and NT choose to legalise voluntary assisted dying, they must consider ^[12] the evidence ^[13] and data from states ^[14] where voluntary assisted dying is operational ^[15]. There is also an opportunity to select the best aspects from each state law.

For instance, for all states except Queensland ^[16], for a person to access voluntary assisted dying, they must be expected to die within six months (within 12 months for neurodegenerative conditions).

Given challenges with delays ^[17] in getting through the system, the 12-month period adopted by Queensland, or not imposing a specific time limit until death, may allow more time ^[18] for terminally ill people to navigate access.

Similarly, all states require a person to live in the state for 12 months before requesting assistance to die. Now voluntary assisted dying is lawful throughout most of Australia, there is little need for this requirement.

The territories may choose to impose minimum legal obligations ^[20] for how health-care and aged care facilities who do not participate in voluntary assisted dying handle such requests. This is the case in Queensland, South Australia and New South Wales ^[21].

The territories also may wish to allow eligible people to choose how the medication is administered – they can take it themselves or a health professional can administer it. This choice is permitted in NSW ^[22], whereas other states make self-administration the default method.

What now for the rest of Australia?

Of the six states ^[24] with voluntary assisted dying laws, those in Victoria, Western Australia and Tasmania are already operational.

Queensland’s laws will start on January 1 2023, with SA following on January 31. NSW, the final state to pass its laws, will start on November 28.

Should the territories propose their own legislation, we’d anticipate wide consultation and debate ^[25].

With territories now permitted to decide this matter for themselves, there is a real prospect for them to have access to voluntary assisted dying in the foreseeable future.

Katherine Waller, Project Coordinator, Australian Centre for Health Law Research, Queensland University of Technology, coauthored this article.