EUTHANASIA: LAWS IN AUSTRALIA

Overview of Law in Australian States and Territories

The laws affecting Euthanasia are complex and differ from State to State in Australia. These laws may change at any time (the recent changes to the Northern Territory Euthanasia legislation is a good example) and you should contact the relevant State Legal services to determine the current and exact specifications before taking any action. The information presented in these pages are for guidance only and is not given as legal advice.

Criminal law in Australia is mainly administered by the States and Territories, rather than the Commonwealth.

The States of New South Wales, Victoria and South Australia are called Common Law States. Their criminal laws include specific statutes as well as the common law (judge made law), inherited from England, but developed in Australia by decisions of judges.

The Australian Capital Territory applies the NSW Crimes Act and supplements it with local statues.

The States of Queensland, Western Australia and Tasmania, and the Northern Territory have criminal codes which oust the common law. They also have statutes which concern specific types of crimes such as narcotics offences.

In the present context, the civil law relating to medical treatment and contract law is relevant.

The States of Victoria and South Australia and the Northern Territory have enacted legislation concerning medical treatment. The Western Australian Government is currently considering legislation. A Medical Treatment Bill based on the Victorian Act has recently been rejected by the Tasmanian Parliament and the New South Wales Government has scrapped an earlier proposal to enact legislation based on the South Australian Natural Death Act.

Despite the existence of codes in some States and Territories, the laws relating to murder and manslaughter are similar throughout Australia. Euthanasia is a criminal offence in each Australian jurisdiction.

Suicide, the intentional taking of one's own life, is no longer an offence in any Australian jurisdiction.

Attempted Suicide is now an offence only in the Northern Territory. However it is an offence in all Australian jurisdictions to assist or encourage another to commit or attempt to commit suicide.

In New South Wales, Victoria, South Australia and the Australian Capital Territory statutory provisions preserve the power to use reasonable force to prevent suicide.

In Queensland and Western Australia this situation, although not specially covered, may fall within the power to use reasonable force to prevent a person of unsound mind from doing violence, although these provisions may be interpreted as being limited to controlling those who pose a threat to others and not themselves.

Under Tasmanian law, there is a power to use force to defend another, a codification of an aspect of the common law concerning self defence.

In the Northern Territory where the offence of attempted suicide still exists, a person may seek to prevent the commission of an offence by means of necessary force that is not likely to cause death or grievous bodily harm.

Northern Territory Euthanasia legislation

Law Concerning Medical Treatment.
Every competent patient has the right to refuse medical treatment provided he does not do so with the intention of committing suicide. Such a right has been long recognised by the common law. Up until recently it was generally accepted that except as provided in statutes or where treatment is sanctioned by a court, an adult person's consent is necessary for any surgery or other medical treatment on that adult. The law had recognised that a surgeon may perform an urgent operation on an unconscious patient who could not consent, where no next of kin was available, but even this area can have some risk of civil action for the doctor.