Voluntary Assisted Dying for (Some) Residents Only: Have States Infringed s 117 of the Constitution?

Abstract

All six Australian states have passed laws which now permit (or will, once commenced, permit) voluntary assisted dying ('VAD') in limited circumstances. One controversial feature of all these schemes is that access is restricted to patients who have been resident in the providing state for at least 12 months. We consider the possible justifications for this restricted access and, ultimately, whether it can be reconciled with s 117 of the Australian Constitution, which proscribes discrimination on the basis of out-of-state residence. We find that while excluding non-residents from VAD schemes may be proportionate to non-discriminatory policy goals, the exclusion of new residents of a state is harder to defend and leaves these laws open to constitutional challenge.