Euthanasia in Australia

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Euthanasia legislation status in Australian states and territories (as of 2020):
  Voluntary euthanasia and physician-assisted suicide illegal
  Voluntary euthanasia and/or 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. In Victoria an assisted suicide scheme has been in place since June 2019,[1] and a similar scheme will be in effect in Western Australia in mid-2021. Voluntary euthanasia and assisted suicide are illegal in all other Australian states and territories.

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.[2] In Australia the Federal Parliament can overturn laws passed by territories, whereas states retain the right to independently legislate on particular issues, such as healthcare.[3] States that have debated euthanasia legislation and failed to pass it include Tasmania, South Australia and New South Wales.

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.[4]

History[edit]

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

Although it is usually a crime to assist in euthanasia and suicide, prosecutions have been 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.[5][6] 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 Commonwealth government subsequently tried to hinder euthanasia with the passage of the Criminal Code Amendment (Suicide Related Materials Offences) Bill of 2004. 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.[7] 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.[8] Decriminalisation of Euthanasia in Australia is supported by the Science Party,[9] Australian Greens, the Secular Party of Australia, the Reason Party, and the Liberal Democratic Party.[10]

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.[11]

An omission to provide life-sustaining medical treatment is lawful in Australia, unless the patient is deemed mentally incapable of consent.[12]

In 2011 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.[13]

Exit International made TV ads arguing for voluntary euthanasia, which were banned just before they were scheduled to broadcast in September 2010.[14]

Legality by jurisdiction[edit]

Federal[edit]

In 2018 Liberal Democrats legislator David Leyonhjelm introduced a bill into the Senate to remove the federal ban on the Australian Capital Territory and Northern Territory legislating for euthanasia. The bill was given priority in the Senate and was subject to a conscience vote for both the Coalition Government and opposition Labor Party, though it was defeated at the second reading stage by 36 votes to 34.[15]

Senate vote - Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015Second Reading[16]
Party Votes for Votes against Absent [a]
Labor (26)
Liberal (25)
Greens (9)
National (6)
One Nation (2)
Centre Alliance (2)
Australian Conservatives (1)
Katter's Australian (1)
Palmer United (1)
Justice (1)
Liberal Democratic (1)
Independent (1)
Total (76) 34 36 6

New South Wales[edit]

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.[19] The Bill contained " a raft of safeguards" including a seven-person oversight board to review all assisted deaths.[20] 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.[21]

Northern Territory[edit]

Euthanasia was legalised in Australia's Northern Territory, by the Rights of the Terminally Ill Act 1995. It passed the Northern Territory Parliament 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.[22] The law was later voided by the federal Euthanasia Laws Act 1997 (Cth),[23] a statute of the Australian Parliament that amended the Northern Territory (Self-Government) Act 1978,[24] the Australian Capital Territory (Self-Government) Act 1988 (Cth),[25] and the Norfolk Island Act 1979 (Cth),[26] This law removed the power of each of those territories to legalise euthanasia, and specifically repealed the provisions of Rights of the Terminally Ill Act 1995 (NT). The powers of the Northern Territory, the Australian Capital Territory and the Norfolk Island legislatures, unlike those of the State legislatures, are not guaranteed by the Australian constitution and may be amended or overruled by the Commonwealth. However, before the Commonwealth government made this amendment, three people had already 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. Liberal Democrats Senator David Leyonhjelm attempted to repeal the Euthanasia Laws Act and in August 2018 introduced the Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015. The bill was rejected by the Senate by 36 votes to 34.[15][27]

Queensland[edit]

In November 2018, the Premier of Queensland launched an inquiry into the possibility of legalising voluntary assisted dying in her state. The inquiry will also take into account care of the aged, end of life, and palliative care.[28]

South Australia[edit]

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).[29]

Tasmania[edit]

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.[30]

In December 2019, independent Legislative Council member for Mersey Mike Gaffney announced his intention to introduce private members bill for voluntary assisted dying legislation early in 2020.[31]

Victoria[edit]

Victoria does not permit euthanasia, but 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.[32] The bill passed the parliament, with amendments made in the Legislative Council, on 29 November 2017.[33] 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.[33][34][35] Implementation of the legislation was an ongoing process which took approximately 18 months.[36][37] 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.[36]

Under the provisions of the legislation, assisted suicide (otherwise referred to as voluntary assisted dying) may be available in Victoria under the following conditions:[38]

  • 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.[38]

Western Australia[edit]

In November 2018 the McGowan Government announced it would introduce an assisted dying bill early in the new year.[39]

On 10 December 2019, the Voluntary Assisted Dying Act 2019 passed the West Australian Parliament.[40] The legislation had passed the Legislative Council by 24 votes to 11, having previously passed the Legislative Assembly 45 votes to 11.[41] 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.[40][42] The legislation goes into effect on a day to be fixed by proclamation, though the government has advised of an 18-month implementation period.[40][43]

Organisations[edit]

The euthanasia advocacy group YourLastRight.com[44] is the peak organisation nationally representing the "Dying with Dignity" associations of Queensland, New South Wales, Victoria and Tasmania,[45] as well as the South Australian Voluntary Euthanasia Society (SAVES),[46] the Western Australian Voluntary Euthanasia Society (WAVES)[47] and the Northern Territory Voluntary Euthanasia Society (NTVES).[48]

Exit International is an Australian euthanasia advocacy group founded by Philip Nitschke. Other Australian groups include Christians Supporting Choice for Voluntary Euthanasia[49] and Doctors for Voluntary Euthanasia Choice.[50]

Australian institutions and organisations that oppose the legalisation of euthanasia include the Australian Medical Association,[51] HOPE,[52] Right to Life Australia[53] and the Australian Catholic Church.[54]

See also[edit]

Notes[edit]

  1. ^ Kimberley Kitching opposed the legislation but was absent from the chamber, so she was paired with Gavin Marshall who favoured the legislation.</ref>[17] Lee Rhiannon favoured the legislation but resigned her seat earlier that day, so she was paired with Bridget McKenzie who opposed the legislation. Arthur Sinodinos, whose position on the bill was unknown, was absent from the chamber due to illness and Kim Carr, who favoured the bill was also absent from the chamber.[18]

References[edit]

  1. ^ Cunningham, Melissa (19 June 2019). "'We're on the right side of history': Victoria's assisted dying laws come into effect for terminally ill". The Age. Retrieved 26 June 2019.
  2. ^ "Victoria first jurisdiction to allow euthanasia in over two decades". ABC Radio. 17 June 2019. Retrieved 26 June 2019.
  3. ^ "The Roles and Responsibilities of Federal, State and Local Governments". www.parliament.nsw.gov.au. Retrieved 26 June 2019.
  4. ^ "Advance Care Directives - South Australia". www.advancecaredirectives.sa.gov.au. Retrieved 19 October 2016.
  5. ^ "Conviction quashed in euthanasia case". Fairfax Media. 28 October 2010.
  6. ^ "Justins v Regina [2010] NSWCCA 242 (28 October 2010)". austlii.edu.au.
  7. ^ "Legal case reopens euthanasia debate". Australian Broadcasting Corporation. 20 December 2005. Retrieved 26 February 2012.
  8. ^ "Assisted suicide case prompts calls for euthanasia law review". Australian Broadcasting Corporation. 20 December 2005. Retrieved 25 February 2012.
  9. ^ "8 Freedom and Rights". Retrieved 26 February 2012.
  10. ^ "Assisted Suicide". Liberal Democratic Party. 2009. Archived from the original on 26 September 2010. Retrieved 27 September 2010.
  11. ^ Arlington, Kim (20 June 2008). "Graeme Wylie's partner Shirley Justins guilty of manslaughter". The Daily Telegraph. Retrieved 25 February 2012.
  12. ^ Australian Capital Territory v JT [2009] ACTSC 105 (28 August 2008), Supreme Court (ACT, Australia).
  13. ^ R v Mathews [2011] NSWSC 339 (28 April 2011), Supreme Court (NSW, Australia).
  14. ^ Alexander, Cathy (13 September 2010). "Pro-euthanasia TV ad ban 'a violation of free speech'". The Age. Retrieved 25 February 2011.
  15. ^ a b "Territories euthanasia bill sunk in Senate". SBS News. 15 August 2018.
  16. ^ "Restoring Territory Rights (Assisted Suicide Legislation) Bill 2015 – Second Reading". Australian Senate Hansard – 15 August 2018. Commonwealth of Australia: Senate. 15 August 2018. p. 4965-66.
  17. ^ {{Cite web|url=https://www.theaustralian.com.au/subscribe/news/1/?sourceCode=TAWEB_WRE170_a&dest=https%3A%2F%2Fwww.theaustralian.com.au%2Fnational-affairs%2Fthreat-to-malcolm-turnbull-as-euthanasia-cabinet-split-looms%2Fnews-story%2F9e292387c2a1ea790175e88c81f297b8&memtype=anonymous&mode=premium&nk=2363d430f02d23ac0d3df4abaa97de4d-1565795251%7Ctitle=Subscribe to The Australian | Newspaper home delivery, website, iPad, iPhone & Android apps|website=The Australian}
  18. ^ (refer to this article in The Australian), though note the article is behind a paywall.
  19. ^ "Emotions high as assisted dying bill lands". sbs.com.au. 21 September 2017. Archived from the original on 21 September 2017. Retrieved 21 September 2017.
  20. ^ Nicholls, Sean (19 September 2017). "Oversight safeguard added to proposed assisted dying laws in NSW". Archived from the original on 21 September 2017. Retrieved 21 September 2017.
  21. ^ "Euthanasia debate: NSW Parliament rejects bill on voluntary assisted dying". ABC News. 17 November 2017.
  22. ^ "Euthanasia and Assisted Suicide in Australia". The World Federation of Right to Die Societies. Retrieved 10 August 2014.
  23. ^ Euthanasia Laws Act 1997 (Cth)
  24. ^ Northern Territory (Self-Government) Act 1978 (Cth) s 50A Laws concerning euthanasia.
  25. ^ Australian Capital Territory (Self-Government) Act 1988 (Cth) s 23 Matters excluded from power to make laws.
  26. ^ "Norfolk Island Act 1979". (Cth) s 19 Legislative power of Legislative Assembly. Repealed as part of the abolition of self-government on Norfolk Island by the Norfolk Island Legislation Amendment Act 2015 (Cth).
  27. ^ "NT ACT euthanasia law ban must go: senator". The West Australian. 3 November 2017. Retrieved 4 November 2017.
  28. ^ "Premier launches inquiry into the legalisation of voluntary euthanasia". The Canberra Times. Retrieved 14 November 2018.
  29. ^ "Voluntary euthanasia: South Australian Parliament knocks back Death With Dignity euthanasia bill". ABC News. 17 November 2016.
  30. ^ "Voluntary euthanasia law defeated by two votes". ABC News. 26 November 2013.
  31. ^ "Voluntary Assisted Dying Tasmania 2020 campaign to step up in new year". 12 December 2019. Retrieved 12 December 2019.
  32. ^ Edwards, Jean (19 September 2017). "Victoria's assisted dying bill to hit Parliament, to be voted on by end of year". Australian Broadcasting Corporation. Archived from the original on 20 September 2017. Retrieved 20 September 2017.
  33. ^ a b "Euthanasia: Victoria becomes the first Australian state to legalise voluntary assisted dying". ABC News. 29 November 2017.
  34. ^ "Voluntary Assisted Dying Act 2017" (PDF). Legislation.vic.gov.au. 5 December 2017.
  35. ^ Melissa Cunningham (19 June 2019). "'We're on the right side of history': Victoria's assisted dying laws come into effect for terminally ill". The Age.
  36. ^ a b Close, Eliana; Willmott, Lindy; White, Ben P. (25 February 2019). "Victoria's voluntary assisted dying law: clinical implementation as the next challenge". The Medical Journal of Australia. 210 (5): 207–209.e1. doi:10.5694/mja2.50043. PMID 30801714.
  37. ^ "Voluntary Assisted Dying". Health.vic.
  38. ^ a b "Overview: voluntary assisted dying". Health.vic.
  39. ^ "McCusker drafted to write WA government's voluntary assisted dying law". Brisbane Times. Retrieved 12 November 2018.
  40. ^ a b c "Voluntary euthanasia becomes law in WA in emotional scenes at Parliament". ABC News. 10 December 2019.
  41. ^ "Voluntary euthanasia bill passes WA Upper House with laws set to take hold within days". ABC. 5 December 2019. Retrieved 5 December 2019.
  42. ^ "Voluntary assisted dying". Western Australia Department of Health.
  43. ^ "Voluntary Assisted Dying Act 2019" (PDF). legislation.wa.gov.au.
  44. ^ "Archived copy". Archived from the original on 22 June 2012. Retrieved 7 June 2012.CS1 maint: archived copy as title (link).
  45. ^ "Archived copy". Archived from the original on 17 March 2012. Retrieved 25 February 2012.CS1 maint: archived copy as title (link)
  46. ^ "Saves". www.saves.asn.au. Retrieved 19 October 2016.
  47. ^ "WAVES - West Australian Voluntary Euthanasia Society". www.waves.org.au. Retrieved 19 October 2016.
  48. ^ "NTVES". www.ntves.org.au. Retrieved 19 October 2016.
  49. ^ "Christians Supporting Choice for Voluntary Euthanasia". www.christiansforve.org.au. Retrieved 19 October 2016.
  50. ^ "Welcome | drs4vechoice.org". drs4vechoice.org. Retrieved 19 October 2016.
  51. ^ "On assisted dying". Australian Medical Association. 20 June 2016.
  52. ^ "Home - HOPE: No Euthanasia". www.noeuthanasia.org.au. Retrieved 19 October 2016.
  53. ^ Admin. "Euthanasia - Right To Life Australia". righttolife.com.au. Retrieved 13 June 2018.
  54. ^ Sutherland, Irene. "Euthanasia - Catholic Church in Australia". www.catholic.org.au. Retrieved 19 October 2016.

Further reading[edit]