The Commonwealth Criminal Code: Will It Restrict Access to Voluntary Assisted Dying in South Australia And Is There a Way Forward?

Abstract

South Australia's Voluntary Assisted Dying Act 2021 commenced operation on 31 January 2023. However, ss 474.29A and 474.29B of the Criminal Code Act 1995 (Cth) prohibit the use of "carriage services" to promote or provide instructions about suicide and may impede access to voluntary assisted dying (VAD). Attempts to clarify whether VAD is suicide have been unsuccessful and doctors risk prosecution if they use telehealth to participate in VAD. This article examines specific steps in the VAD pathway that are likely to breach the federal law. Although there have been attempts to clarify what information can permissibly be discussed using a carriage service, doctors risk breaching the federal law at multiple stages of the VAD process. This article concludes arguing that this conflict of laws must be resolved and calls upon the Commonwealth Government to amend the Criminal Code to exclude VAD from the definition of suicide.