The Criminal Code Amendment (Equal Access to Voluntary Assisted Dying) Bill 2026 aims to resolve a conflict between Commonwealth criminal law and state-based voluntary assisted dying (VAD) frameworks. Currently, Subdivision G of Division 474 of the Criminal Code Act 1995 (Cth) makes it an offence to use a carriage service to 'counsel or incite suicide.' As noted in the explanatory memorandum:
The intention of the addition of this offence was to prevent cyberbullying and prohibit pro-suicide websites. It was not intended to block access to appointments with a medical professional or clinician in relation to VAD.However, the Federal Court in Carr v Attorney General (Cth) [2023] FCA 1500 ruled that VAD consultations via telehealth qualify as a criminal offence because the Code does not specifically exclude VAD from the meaning of 'suicide' [Explanatory Memo page 2].
The Bill introduces Section 474.29C, which provides that the relevant offences do not apply if the acts are carried out lawfully in accordance with state or territory VAD laws. Crucially, the Bill includes a retrospective application clause to protect medical professionals who may have used telehealth for VAD prior to the commencement of this legislation. The primary objective is to restore 'equal access to healthcare' by removing barriers for patients in rural, regional, and remote areas who cannot easily attend in-person appointments. The Bill does not alter existing state-level safeguards regarding informed choice or decision-making capacity, nor does it mandate the use of telehealth; rather, it 'permits trained clinicians to exercise their clinical judgement over the use of telehealth services' [Explanatory Memo page 2].
The 'For' case rests on the principle that individuals should have the right to make fundamental decisions about their own lives and medical care, including the timing and manner of their death when facing terminal illness. By restricting telehealth, the current law imposes a physical and logistical burden that effectively curtails the Individual Autonomy of those too ill or too remote to travel for face-to-face consultations [Judgment].
Furthermore, the current legal landscape creates a 'two-class medical system' that violates the principle of Egalitarianism. Patients in metropolitan areas can easily access VAD services, while those in regional and remote Australia are functionally excluded due to the tyranny of distance. This Bill ensures that 'equal access to healthcare' is a reality for all Australians, regardless of their postcode.
Finally, from a Legal Principle perspective, it is necessary to resolve the unintended conflict between Commonwealth and State laws. The original intent of the Criminal Code provisions was to target cyberbullying and harmful pro-suicide content, not to override the democratic decisions of state parliaments to implement regulated VAD schemes. This amendment restores the intended scope of the law and provides much-needed certainty for medical professionals [Judgment].
The 'Against' case raises a Value-Neutral / Epistemic Objection regarding the erosion of safeguards. Face-to-face consultations are a critical component of medical practice, particularly for irreversible decisions like VAD. They allow clinicians to better detect subtle signs of coercion, depression, or cognitive impairment that may be obscured via a screen or telephone call. Removing the federal prohibition may lead to a lower standard of clinical assessment, increasing the risk of wrongful death [Judgment].[1]
From a Communitarianism / Pro-Conformity perspective, the state has a profound interest in upholding the sanctity of life and maintaining a clear, unambiguous social norm against suicide. By blurring the lines between 'suicide' and 'assisted dying' in the Criminal Code, the law risks devaluing human life and weakening the collective moral framework that protects the vulnerable [Judgment].
Additionally, a Hobbesianism view suggests that the state's primary duty is the preservation of its citizens' lives. Allowing the use of 'carriage services'—which are inherently less secure and more prone to external influence—to facilitate the ending of life could be seen as a failure of the state to provide the highest level of protection for its subjects. The current restriction serves as a necessary 'brake' on a process that requires the utmost caution.
The Federal Court in Carr v Attorney General (Cth) [2023] FCA 1500 highlighted that the lack of a specific exclusion for VAD in the Code reflects a deliberate legislative choice to maintain broad protections against the promotion of suicide.
2026-08-13
Senate
Before Senate
HANSON-YOUNG, Sen Sarah
Unspecified
Criminal Law Reform, Healthcare, Discrimination / Human Rights