Euthanasia – What is the law in Australia?

The recently released Australian movie, "Last Cab to Darwin", will generate conversations and recall the Northern Territory's Rights of the Terminally Ill Act 1995. This Act came into effect on 1 July 1996 and was subsequently overridden by the Commonwealth Parliament. Courts in Australia, Canada, the UK and the USA have all made it clear that there is no legal duty to continue medical treatment that is futile. These courts have also upheld the right of competent adults to decide to cease treatment that is keeping them alive.

Voluntary assisted suicide or euthanasia is qualitatively different. Voluntary euthanasia is generally where a person performs an act that intentionally ends the life of another person at the request of the other person. Assisted suicide is where a person dies after being provided by another person (often a health professional) with the means or knowledge required to kill themselves.

Terminology on this issue continues to create real difficulties. What is the difference between "active" and "passive" euthanasia - turning off the life support ventilator, as against administering the lethal drug? "Voluntary" and "involuntary" euthanasia - a legally competent person with a terminal illness directing that treatment cease, as against a person who is brain dead and relatives agreeing to withdrawal of life support?

Debate also continues over whether there is a legal "right to life", whether a person can agree to waive such a right, the interaction with the International Covenant on Civil and Political Rights (ICCPR)1 and whether a person can consent to an act that would end their life.

Legislation to regulate euthanasia has been in place for many years in the Netherlands, Belgium, Luxembourg and in Oregon, Washington and Vermont in the United States. The legal structure of these laws varies. For example, the 2002 Netherlands law2 did not remove the criminal offence of euthanasia, but created an exception for doctors who acted in accordance with the criteria and process set out in the law. Belgium adopted a similar approach. The Oregon Death with Dignity Act 1994 followed a referendum in 1994 and allows terminally ill persons to obtain and use prescription drugs from their physicians for self-administration. In 2014, 105 terminally ill people used this provision.3

In Australia, many moves have been made in State, Territory and Commonwealth parliaments to introduce bills to permit euthanasia. To date, all have been unsuccessful. Due to constitutional provisions, legislative change is required at a State and Territory level.

Euthanasia and assisting suicide can result in charges of murder or manslaughter under State and Territory criminal law. Suicide itself is not a crime, but aiding or abetting suicide...