Report No. 196
In regard to Australia, we shall first refer to statutes and then to the decided cases.
At the outset, it is necessary to refer to the fact that the Northern Territory enacted the 'Rights of the Terminally Ill Act, 1995', which legalized voluntary euthanasia and physician-assisted suicide. It came into force on 1 st July, 1996. Seven patients made use of the Act. But soon the law was invalidated by the Commonwealth statute passed on 25th March 1997, called the Voluntary Euthanasia Laws Act, 1997 stating that Territorial Legislature no longer has the power to pass laws legalizing euthanasia. (It did open the possibility of the Northern Territory enacting laws regarding withholding life support.)
There are no statutes in New South Wales, Tasmania and Western Australia on the subject. They depend only on 'dying with dignity guidelines'. South Australia, Queensland and Victoria and Commonwealth have laws which speak of 'natural death', providing for advanced directives and for appointment of agents or medical powers of attorney.
With the non-enforceability of the Rights of the Terminally Ill Act, 1995 of the Northern Territory, as stated above, the most relevant legislation that remained was the Natural Death Act, 1988 which permits a person to make a direction that he or she does not wish to have 'extraordinary measures' used if he or she is suffering from a terminal illness. The Act does not provide for the appointment of medical powers of attorney.
In criminal law, both euthanasia and physician-assisted suicide carry heavy penalties. A doctor found guilty of aiding or abetting suicide would be liable for 10 years imprisonment under section 31C of the Crimes Act, 1900. A doctor found guilty of engaging in active voluntary euthanasia could be convicted of murder and liable for life imprisonment. (see section 19A).
Murder may have been committed by 'acts' or 'omission'. Under section 18(1) of the above Act, "Murder shall be taken to have been committed when the act of the accused, or thing by him or her assisted to be done, causing the death charged, was done or assisted with reckless indifference to human life, or with intent to kill..." with the qualification under section 18 (2) that 'No act or omission which was not malicious, or for which the accused had lawful cause or excuse, shall be within this section'.
In 1993, the NSW Health Deptt. issued guidelines called 'Dying with Dignity: Interim Guidelines on Management'. In November 2000, it gave the "Dying with Dignity: Revised draft guidelines for clinical decisionmaking at the end of life, Discussion Document." See also, NSW Health Dept, Patient, Patient Information and Consent to Medical Treatment (Circular No. 99/10).
Since 1997, competent adults can now appoint 'enduring guardians' under ss 5, 6N of the Guardianship Act, 1987 (NSW). These guardians can make decisions about medical care and treatment on behalf of a person in the event that person ceases to be competent to make decisions for him or herself. Part 5 establishes a hierarchy for determining who is the 'person responsible' for a person unable to consent to treatment. If the incompetent person is not under guardianship, then it is the enduring guardian who makes decisions regarding medical care.
However, these arrangements are unlikely to have any bearing on either the active voluntary euthanasia debate or regarding decisions to withhold or withdraw treatment. This is because the purpose of the relevant provisions is to ensure that medical treatment is carried out on incompetent persons 'for the purpose of promoting and maintaining their health and well being'. (sec 32(b)). Neither the ending of a person's life nor the discontinuance of holding back treatment is contemplated by the Act.