Euthanasia: Is the ACT getting left behind?
On 18 May 2021, the Queensland Government became the latest Australian state to announce they would be moving forward with legislating voluntary assisted dying (euthanasia). It is expected that the draft legislation to be developed by the Queensland Law Reform Commission will be tabled in parliament this week.
Queensland now joins Western Australia, Tasmania and Victoria as a state that has taken steps to permit and regulate voluntary assisted dying. This begs the question, why hasn’t the ACT taken any steps to do the same? This blog will examine the status of voluntary assisted dying laws in Australia and discuss why the ACT has not been able to enact legislation to govern voluntary assisted dying.
Voluntary assisted dying in Western Australia, Tasmania and Victoria
Voluntary assisted dying, also referred to as euthanasia, is the process by which medication is administered for the purposes of causing death. It is a process in which a person, either by themselves or with the assistance of a medical practitioner, uses medication to end their life at a time of their choosing.
Victoria was the first Australian state pass voluntary assisted dying laws, through the Voluntary Assisted Dying Act (2017). In Victoria, voluntary assisted dying is only available to people suffering from an incurable, advanced and progressive disease, illness or medial condition who are experiencing intolerable suffering. The condition must be assessed by two medical practitioners and be expected to cause death within six months. There is an exception, however, for those suffering from a neurodegenerative condition, where instead the condition must be expected to cause death within 12 months.  You must be over the age of 18, have resided in Victoria for at least 12 months, have decision making capacity and make a written declaration.
Western Australia has only recently passed legislation allowing voluntary assisted dying to become a choice, and it is expected be become available in mid-2021. The eligibility criteria are very similar to that in Victoria, however people must make three separate requests for voluntary assisted dying: a first request, a written declaration and a final request. 
Tasmania passed the End of Life Choices (Voluntary Assisted Dying) Bill 2020 on 23 March 2021. The laws are expected to become active within 18 months of the bill passing, with details of how the process will work in practice yet to be determined.
In the ACT, voluntary assisted dying is illegal. Pursuant to section 16 of the Crimes Act 1900 (ACT), it is not an offence to commit or attempt to commit suicide. However, pursuant to section 17 of the Crimes Act 1900 (ACT), a person who aids or abets the suicide or attempted suicide of another person is guilty of an offence, punishable on conviction by imprisonment of 10 years. The key here is that it is an offence to assist someone in ending their life. If a doctor, friend or family member is to be involved in someone ending their own life, they may be charged and convicted with an offence and face jail time.
Why hasn’t the ACT legalised voluntary assisted dying?
In short, the ACT hasn’t legalised voluntary assisted dying because they can’t.
The ACT has made three attempts dating back to 1993 to introduce voluntary assisted dying into the Territory, via the following bills:
- Voluntary and Natural Death Bill 1993;
- Medical Treatment (Amendment) Bill 1995; and
- Medical Treatment (Amendment) Bill 1997.
However, these bills were ultimately unsuccessful due to the power of the Federal Parliament over the laws of the ACT, awarded to them under the Australian Constitution.
Under section 122 of the Australian Constitution:
The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.
Section 122 of the Australian Constitution allows the Federal Parliament to make any laws in relation to the ACT as they see fit. Using this power, the Federal Parliament enacted the Australian Capital Territory (Self-Government) Act 1988 (Cth) and the Euthanasia Laws Act 1997 (Cth).
The Euthanasia Laws Act 1977 (Cth) was passed to amend the Australian Capital Territory (Self-Government) Act 1988 (Cth), the Northern Territory (Self-Government) Act 1978 (Cth) and the Norfolk Island Act 1979 (Cth). The Euthanasia Laws Act 1977 (Cth) caused the ACT, Northern Territory and Norfolk Island to be prohibited from passing legislation in relation to euthanasia.
Pursuant to section 23 (1A) of the Australian Capital Territory (Self-Government) Act 1988 (Cth), the Legislative Assembly has no power to
make laws permitting or having the effect of permitting (whether subject to conditions or not) the form of intentional killing of another called euthanasia (which included mercy killing) or the assisting of a person to terminate his or her life…
In order for the Legislative Assembly to be able to pass legislation in relation to voluntary assisted dying, sections of the Australian Capital Territory (Self-Government) Act 1988 (Cth) and schedule 2 of the Euthanasia Laws Act 1997 (Cth) would need to be repealed (removed).
Repealing the legislation would require a motion to be introduced and successfully passed in Federal Parliament to remove the relevant sections of legislation, which would effectively remove the ban on territories determining their own voluntary assisted dying laws.
Is there any progress?
In 2019, the Select Committee on End of Life Choice in the ACT published a report into the current end of life choices available in the ACT.  The committee received submissions from the public and other organisations in relation to voluntary assisted dying, which examined a range of opinions and submissions on the topic. Although the committee could not take any steps to legislate in relation to voluntary assisted dying, the committee made twenty-four recommendations to assist in the territory safeguarding and educating the population on the promotion of Advanced Care Planning and encouragement of the broader conversation of death and dying, to improve death literacy.
On 24 May 2021, Federal Labour MP Andrew Leigh called on the Federal Parliament to restore territory rights to determine their own assisted dying laws. Mr Leigh has previously tried to repeal the ban on territories making laws on euthanasia in 2018 but will again attempt to allow the ACT and Northern Territory to no longer be “held back” in making euthanasia legal.
What can we do instead?
At present, individuals can engage in Advanced Care Planning. Advanced Care Planning is a process by which individuals plan for their future health and personal care, so that their values, beliefs, and preferences are made known to guide future decision making. This is particularly important in circumstances where you become unable to make or communicate decisions for yourself.
Advance Care Planning can be undertaken through preparing the following documents:
- An Enduring Power of Attorney;
- Advanced Health Directive; and
- Advanced Care Plan Statement of Choices.
An Enduring Power of Attorney is one of the best ways to plan for how you will be cared for if you lose capacity. Under the Power of Attorney Act 2006, attorneys appointed to deal with health care are able to make decision about withholding or withdrawing life-sustaining treatment, but only in situations where starting the treatment, or continuing it, would be contrary to good medical practice. 
If you only appoint a guardian, they do not have the power to withhold or withdraw life sustaining treatment, even if that course of treatment would be in accordance with the wishes of that person.
Aulich offers Estate Planning Services, including Enduring Power of Attorneys that can assist with Advanced Care Planning. Should you wish to discuss your estate planning options, please do not hesitate to contact us on (02) 6279 4222.
Ben White & Lindy Willmott, ‘Voluntary assisted dying could soon be legal in Queensland. Here’s how its bill differs from other states’, The Conversation (Online, 19 May 2021) <https://theconversation.com/voluntary-assisted-dying-could-soon-be-legal-in-queensland-heres-how-its-bill-differs-from-other-states-161092>.
 Victoria State Government, ‘Voluntary Assisted Dying Overview’, Health.Vic (Web Page) <https://www2.health.vic.gov.au/hospitals-and-health-services/patient-care/end-of-life-care/voluntary-assisted-dying/vad-overview>
 Government of Western Australia, ‘Voluntary assisted dying’, Government of Western Australia Department of Health (Web Page) <https://ww2.health.wa.gov.au/voluntaryassisteddying>.
Peter Gutwein Premier of Tasmania, ‘Voluntary Assisted Dying Bill passes both Houses of Parliament’, Premier of Tasmania (Web Page) <http://www.premier.tas.gov.au/site_resources_2015/additional_releases/
 Select Committee on End of Life Choices in the ACT, pg 5 <https://www.parliament.act.gov.au/__data/assets/pdf_file/0004/1334992/9th-EOLC-Report.pdf >.
 Karen Barlow, ‘Assisted dying: Andrew Leigh calls on government to allow the ACT and NT to make assisted dying laws’, The Canberra Times (online, 24 May 2021) <https://www.canberratimes.com.au/story/7264699/leigh-to-push-on-laws-holding-back-territories-on-assisted-dying/?cs=14264>.
 Select Committee on End of Life Choices in the ACT, pg 25 <https://www.parliament.act.gov.au/__data/assets/pdf_file/0004/1334992/9th-EOLC-Report.pdf >.