Voluntary assisted dying now legalised across every Australian jurisdiction

Authored by: Maya Parbhoo (Partner), Cassandra Davis (Associate) and Karoon Arslan (Law Graduate), Kennedys

Background

Voluntary assisted dying (VAD) is the term used to describe the administration of VAD medication to an individual with a disease, illness or medical condition that is advanced, incurable and will cause death. The medication can be administered by the individual (self-administration) or by a health practitioner. The term ‘voluntary’ is integral in demonstrating that this path is the decision of the individual who can make such a decision, without the influence of others.

On 27 August 2026, the Northern Territory passed the Rights of the Terminally Ill Bill 2026, making VAD legal across all Australian jurisdictions. VAD is expected to be available to Northern Territory residents in 2028, following an 18-month clinical and administrative implementation process. The Northern Territory was the first jurisdiction in the world to legalise VAD, in 1995. The legislation was subsequently overturned by the federal government in 1997 through the introduction of the Euthanasia Laws Act 1997, which prevented Australian territories from legalising VAD until 2022.

Victoria was the first Australian state to enact VAD legislation in 2017, with other jurisdictions following suit, the most recent being the Australian Capital Territory.

Australian VAD Legislation Timeline

A summary of the Australian jurisdictions implementation of VAD programs is outlined below:

Victoria: Voluntary Assisted Dying Act 2017 — commenced in 2019;
Western Australia: Voluntary Assisted Dying Act 2019 (WA) — commenced in 2021;
Tasmania: End-of-life Choices (Voluntary Assisted Dying) Act 2021 — commenced in 2022;
South Australia: Voluntary Assisted Dying Act 2021 — commenced in 2023;
Queensland: Voluntary Assisted Dying Act 2021 — commenced in 2023;
New South Wales: Voluntary Assisted Dying Act 2022 (NSW) — commenced in 2023; and
Australian Capital Territory: Voluntary Assisted Dying Act 2024 (ACT) — commenced on 3 November 2025.

Recent Legislative Amendment

Victoria initially included a ‘gag clause’ in the 2017 Act, which prohibited a health practitioner from raising VAD as an option to a patient, even in the context of discussing the patient’s medical care and treatment choices. In November 2025, the Voluntary Assisted Dying Amendment Bill 2025 (Vic) was passed, making several changes to the 2017 Act, including removing the ‘gag clause’, amending residency eligibility and lengthening the prognosis timeframe from six months to 12 months. These changes will take effect on 19 April 2027. This restriction is currently in effect in South Australia, and the Northern Territory is expected to follow.

Eligibility Requirements

Although each jurisdiction has its own legislation and regulatory framework, all share the objective of providing an additional end-of-life choice to individuals who are suffering. Despite this shared objective, eligibility requirements differ between states and territories. Some key features of Australian VAD laws and eligibility requirements are set out below.

A person must:

be 18 years and over;
meet the relevant residential criteria in their jurisdiction. In Victoria, they must be an Australian Citizen or permanent resident, ordinarily reside in Victoria and at the time of making a first request for VAD, have been a resident for at least 12 months;
have decision-making capacity for VAD;
be diagnosed with a disease, illness or medical condition that is incurable and advanced, progressive and will cause death or is expected to cause death within weeks or months:
- Victoria: ‘not exceeding 6 months’[1] and 12 months for a condition which is neurodegenerative.
- Western Australia: ‘within a period of 6 months’[2] and 12 months for a condition which is neurodegenerative.
- Tasmania: ‘within 6 months or if the disease is neurodegenerative – within 12 months’.[3]
- South Australia: ‘not exceeding 6 months’[4] and not exceeding 12 months for a neurodegenerative disease.
- Queensland: ‘is expected to cause death within 12 months’.[5]
- New South Wales: ‘within a period of 6 months’[6] and within a period of 12 months for a neurodegenerative disease.
- Australian Capital Territory: ‘approaching end of life even if it is uncertain whether their relevant conditions will cause death within the next 12 months.’[7]
which is causing intolerable suffering to that person; and
be acting voluntarily and without coercion.

Patrick v Respondent VAD 1/2026

As VAD legislation continues to develop, courts and tribunals have begun interpreting it in practice. The decision in Patrick v Respondent[8] (Patrick) is the first reported Australian Capital Territory decision to consider the operation of the Voluntary Assisted Dying Act 2024 (2024 ACT Act).

The decision raised significant questions about the interpretation and operation of the 2024 ACT Act, including whether the Tribunal has jurisdiction to review determinations about the patient’s condition and decision-making capacity.

To access VAD, generally a patient must make three requests:

a first request, after which the person is assessed separately by a coordinating practitioner and a consulting practitioner;
a second request in writing confirming that the patient requests access to VAD; and
a final request which is followed by a final assessment.[9]

Application & Assessment

The patient had made a request to access VAD under the 2024 ACT Act on 27 January 2026. In the first assessment report, the doctor (appointed as the coordinating practitioner) concluded that the patient did not meet eligibility requirements set out in section 11 of the 2024 ACT Act. Particularly, that the patient did not have an advanced condition, was not approaching the end of his life and his condition was not expected to cause death. He was also uncertain whether the patient had decision-making capacity as required by section 11(1)(d).

The patient sought orders from the Tribunal to set aside the first assessment substituting a decision that the patient had met the eligibility requirements, specifically that his conditions were expected to cause death and allowing his application for VAD to proceed to the consulting assessment stage.

Tribunal Jurisdiction

The Tribunal held that it did not have jurisdiction to review the doctor’s decision that the patient did not meet the eligibility requirements relating to their conditions. The Tribunal reasoned that its jurisdiction is limited to that conferred by legislation; it does not have inherent jurisdiction, even to prevent what might be considered an injustice. The Tribunal accepted that this limitation on its jurisdiction under the 2024 ACT Act might mean that a patient applying for VAD, who has decision-making capacity but does not meet the relevant condition criteria may be unable to seek review by the Tribunal.

Decision-Making Capacity

The Tribunal explained that while the 2024 ACT Act requires the coordinating practitioner, in undertaking a first assessment, to consider whether the patient meets each of the eligibility requirements, it does not require the coordinating practitioner to reach a definitive view in relation to each of the eligibility requirements where they have concluded that one of the requirements is not met.

The Tribunal held that the patient had decision making capacity in relation to VAD. The Tribunal noted:[10]

‘…establishing a lack of decision-making capacity in relation to VAD similarly involves demonstrating that the [patient] Applicant lacks even a general kind of understanding about the nature of their conditions, including how it might develop and whether it might be expected to cause death. An Applicant [a patient] need not be able to understand that there are treatment options which might alleviate or contribute to their suffering, and palliative care or other legal options that may be alternatives to accessing VAD. Or an Applicant [a patient] need not be able, again at even a general level, recognise the risks and benefits of VAD and its alternatives so as to be able to say they have weighed up the consequences of the main choices’.

The Tribunal noted that the 2024 ACT Act does not preclude a patient from making a further application for VAD. A different coordinating practitioner may assess the patient’s eligibility differently, and the patient may also seek relief in the ACT Supreme Court, including by way of judicial review or a declaration of incompatibility. Whether the applicant will appeal the decision remains uncertain.

Key takeaways for Victorian Practitioners

With the Northern Territory’s recent passing of legislation, VAD is now legalised across all Australian jurisdictions. While the core eligibility requirements are similar across the states, there are important differences in condition requirements, residency criteria and safeguards such as the ‘gag clause’. The biggest change, coming in April 2027 for Victoria, is the removal of the ‘gag clause’. Victorian Practitioners should be mindful of this change and their ability to soon offer VAD and openly discuss it as an option to their patients.

The Tribunal’s decision in Patrick, despite being in a different jurisdiction, highlights that capacity and clinical eligibility need to be treated as distinct questions when assessing a patient seeking VAD.

A practitioner should be mindful to not conflate capacity with the eligibility requirements of a patient’s application for VAD. While practitioners must carefully assess the statutory condition requirements for a patient’s eligibility to access VAD, a careful clinical assessment of the patient’s decision-making capacity must also be made, which includes their understanding of their condition, prognosis and the consequences of seeking VAD.

As a practical risk-management measure, practitioners should carefully consider eligibility and sufficiently document the basis for their assessment of capacity and clinical eligibility rather than merely concluding whether a patient is eligible or ineligible. Should a patient be unsuccessful in their VAD application, the decision in Patrick affirms that the law does not preclude a patient from making future applications or potentially challenging previous decisions.

Sources

Legislation

End-of-life Choices (Voluntary Assisted Dying) Act 2021 (TAS)

Euthanasia Laws Act 1997

Rights of the Terminally Ill Bill 2026

Voluntary Assisted Dying Act 2017 (VIC)

Voluntary Assisted Dying Act 2019 (WA)

Voluntary Assisted Dying Act 2021 (QLD)

Voluntary Assisted Dying Act 2021 (SA)

Voluntary Assisted Dying Act 2022 (NSW)

Voluntary Assisted Dying Act 2024 (ACT)

Voluntary Assisted Dying Amendment Bill 2025 (Vic)

Secondary Sources

[1] Voluntary Assisted Dying Act 2017 (Victoria) s 9(1)(d)(iii).

[2] Voluntary Assisted Dying Act 2019 (Western Australia) s 16(1)(c)(ii).

[3] End-Of-Life Choices (Voluntary Assisted Dying) Act 2021(Tasmania) s 6(1)(c).

[4] Voluntary Assisted Dying Act 2021 (South Australia) s 26(1)(d)(iii).

[5] Voluntary Assisted Dying Act 2021 (Queensland) s 10(1)(a)(ii).

[6] Voluntary Assisted Dying Act 2022 (New South Wales) s 16(1)(ii)(B).

[7] Voluntary Assisted Dying Act 2024 (Australian Capital Territory) s 11(6).

[8] Patrick v Respondent VAD 1/2026 [226] ACAT 40.

[9] Ibid [12].

[10] n 8, paragraph 67