08 December 2023

A Federal Court hearing has highlighted inconsistencies between State and Commonwealth laws, ruling voluntary assisted dying (VAD) comes under the definition of suicide and, therefore, the use of telehealth and other communication carriages, such as phones and emails, is unlawful.

Justice Wendy Abraham presided over Carr v Attorney-General in the Federal Court on 30 November, where Victorian medical practitioner Dr Nicholas Carr had applied for a declaration to resolve a legal question regarding the meaning of “suicide”:

“Does the word “suicide”, as used in … the Criminal Code Act 1995 (Cth), apply to the ending of a person’s life in accordance with, and by means authorised by the Voluntary Assisted Dying Act 2017 (Vic) and Voluntary Assisted Dying Regulations 2018 (Vic).”

Justice Abraham found in the affirmative, concluding: “… voluntary assisted dying, while a means carefully regulated, and a societally approved means of a person intentionally taking their own life, remains a means of a person taking their own life”.

Under the Commonwealth Criminal Code, it is an offence to use a ‘carriage service’ – such as a phone or video call – to counsel or incite suicide.

Dr Carr said in a RACGP’s newsGP article he believed the ruling would have a detrimental impact on GPs who supported VAD.
“It is not an easy process for people to take part in, it’s poorly remunerated and there are lots of other barriers,” Dr Carr said. “And now with the threat of legal action for use of the telephone or internet for any form of voluntary assisted dying care, it’s certainly not going to help people feel enthusiastic about taking part.”

He added the ruling did not consider the human differences between VAD and suicide.

“‘The real human experience of what voluntary assisted dying is, and how gentle and peaceful and comforting it is, and how different that is from the awful realities of suicide, that human experience never got mentioned.”

While Justice Abraham acknowledged the inconsistencies of the law, she said: “Section 109 of the Constitution resolves that conflict by giving the Commonwealth law paramountcy…”.

Western Australian Independent MP Kate Chaney has said publicly she intends to introduce a private member’s bill in 2024 seeking to exempt VAD from the Criminal Code.

Read more:

RACGP’s newsGP

Read other responses:

VADANZ urges reform of Cth Criminal Code

‘Retrograde’ Federal Court ruling on telehealth and voluntary assisted dying will lead to further suffering

Download VAD resources:

Voluntary assisted dying