NSW passes voluntary assisted dying legislation

The Voluntary Assisted Dying Bill 2022 (NSW) (Bill) passed through New South Wales Parliament on 19 May 2022. The Bill, previously the Voluntary Assisted Dying Bill 2021, was introduced by Alex Greenwich MLA as a private member’s bill in October 2021. This followed previous unsuccessful attempts at passing such legislation in NSW, dating back to 2002, leaving NSW trailing behind all other states in this area.

The Bill was initially passed in the Legislative Assembly, with amendments, on 26 November 2021. In the Senate, it was passed with amendments on its third reading (access the second reading speech here). The explanatory memorandum can be found here.

The premise of the legislation has both passionate supporters and detractors and we don’t seek to deal with its philosophical basis here, rather, we outline its structure and key concepts below.

Eligibility

To be eligible for access to voluntary assisted dying, a person must be 18 years or older and be an Australian citizen. They must be likely to die from a neurodegenerative disease or condition within one year, or, from another condition within six months. The disease must cause suffering that cannot be relieved in a way that is tolerable to the person. The person seeking to access voluntary assisted dying must have capacity to make the decision for themselves, be acting voluntarily, without pressure and be assessed by two medical practitioners.

It should be noted that there are restrictions on health care workers initiating discussions about accessing voluntary assisted dying, unless accompanied by information about treatment options.

Role of medical practitioners

Medical practitioners who receive a request to access voluntary assisted dying must notify the Voluntary Assisted Dying Board (Board) of the request. If the medical practitioner accepts the request, that practitioner becomes the coordinating practitioner. The coordinating practitioner assesses the person against the eligibility criteria and must notify the Board after completing the assessment.

If eligible, the coordinating practitioner must refer the person to another practitioner for assessment. Again, the Board must be notified. If the medical practitioner accepts the referral, the practitioner becomes the consulting practitioner. The consulting practitioner also assesses the person against the eligibility criteria and must notify the Board after completing the assessment.

Medical practitioners may refuse a request on a number of grounds, including that they have a conscientious objection to voluntary assisted dying.

An eligible person may then make a declaration of their intention, capacity and that the request is voluntary, which must be witnessed.

A person who has made a declaration may then make a final request to access voluntary assisted dying to the coordinating practitioner. Again, the Board must be notified, as well as to the outcome of the final review.

The person then makes an administration decision, either for self-administration or administration by an administering practitioner. The coordinating practitioner then applies to the Board for a voluntary assisted dying substance authorisation for the person. The Board may decline if the required documents have not been provided or if it suspects the requirements of the legislation have not been met.

If authority is granted, the coordinating practitioner can prescribe the approved substance. Again, the Board must be notified throughout.

Health establishments and residential facilities

Health establishments and residential facilities may decide not to be involved in voluntary assisted dying and may refuse to have their employees involved, whilst at the facility or establishment. There are particular requirements around publication of notice of this election and requirements around not hindering access to information and services, particularly for residential facilities that have made an election.

Review by the Supreme Court

An eligible applicant (including the person) may apply to the Supreme Court for judicial review of a decision of the coordinating practitioner or the consulting practitioner in the first, consulting or final assessment. Decisions of the Board to decline authorisation are also subject to judicial review. Hearings are to be conducted in private.

General

There are a myriad of offences under the legislation, particularly around notifications to the Board. There are also significant protections for those who are acting in good faith and with reasonable care and skill. They do not incur civil or criminal liability and will not be regarded as having contravened professional ethics or conduct standards.

The way forward

At the date of this article, the Bill, as passed by both houses, awaits assent.

It will come into effect following an 18 month implementation period, during which NSW Health will confront the significant task of working together with the community and a range of health and aged care stakeholders to implement its framework. That will include the preparation of a regulation and other instruments, as well as the development of training for participating practitioners.

In the media

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Practice and courts

Commonwealth

AAT Bulletin Issue No. 8/2022 9 May 2022 The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT’s General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans’ Appeals Divisions. Read more here.

NSW

Supreme Court of NSW Decisions Reversed as at 20 May 2022. Read more here.

Published – articles, papers and reports

Days away from lightweight bag ban Marking a major pivot away from single-use plastics, the NSW Government’s ban on lightweight plastic bags will come into force next week (23 May 2022). Read more here.

Options available to the NSW House of Parliament regarding the withholding of remuneration and other entitlements of a Member suspended from the service of the House The Legislative Assembly Standing Committee on Parliamentary Privilege and Ethics has inquired into the options available to the House regarding the withholding of remuneration and other entitlements of a Member suspended from the service of the House, in accordance with the referral made to it by the House on 31 March 2022 (18 May 2022). Read more here.

Mobile speed camera enforcement programs in NSW The Committee hopes that the recommendations in this report ultimately strengthen community support for the mobile speed camera program so that, together with other speed management measures, increased safety can be achieved across the whole road network (18 May 2022). Read the report here.

$30 million for disaster risk reduction Grants of between $50,000 and $1.5 million are available to councils to help mitigate and manage the risks of future natural disasters. The Disaster Risk Reduction Fund is jointly funded by NSW and Australian governments and is targeted at locally led initiatives to keep communities safe (16 May 2022). Read more here.

Cases

FlyBlue Management Pty Ltd v NSW Crown Lands Department (Department of Planning and Environment) [2022] NSWCATAD 167ADMINISTRATIVE LAW - freedom of information - government information public access - public interest considerations - Government Information (Public Access) Act 2009 (NSW). Administrative Decisions Review Act (NSW) 1997; Civil and Administrative Tribunal Act 2013; Evidence Act (NSW) 1995; Government Information (Public Access) Act 2009.

Peel v Commissioner of Police [2022] NSWCATAD 162LICENSING – firearms – licence refusal – public interest – public safety; Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Firearms Act 1996 (NSW).

Hannam v State of New South Wales (No 9) [2022] NSWSC 648TORTS – Trespass to the person – Assault – whether police conduct caused plaintiff to fear police and attempt to flee; TORTS – Trespass to the person – whether Civil Liability Act 2002 (NSW) excluded by operation of s 3B(1)(a) – where intent was to cause injury not subject of claim; TORTS – Trespass to the person – Battery – Defences – whether actions constituting battery were lawful under various statutes – Crimes Act 1900 (NSW), Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Mental Health Act 2007 (NSW), Police Act 1990 (NSW) – where actions permitted under statute – where defences made out; TORTS – Trespass to the person – Battery – Defences – defences under Civil Liability Act 2002 (NSW) – intoxication, no award to criminals, self-defence; NEGLIGENCE – Duty of care – where no duty owed by defendant toward plaintiff; NEGLIGENCE – Defences – Illegality – use of illicit substances; NEGLIGENCE – Defences – Intoxication – illicit substance; NEGLIGENCE – Defences – Self-defence – where defendant attempting to protect plaintiff, bystanders and police; NEGLIGENCE – Defences – Voluntary assumption of risk – use of illicit substances; DAMAGES – where plaintiff self-employed tradesperson – where no evidence of past earnings or typical earnings – where plaintiff’s proposed use of average weekly earnings unsuitable; DAMAGES – where plaintiff sought aggravated and exemplary damages – where award excluded by Civil Liability Act 2002 (NSW), s 21 – where award not justified in any event even if not statute barred; Civil Liability Act 2002 (NSW), ss 3B, 5, 5L, 5O, 5R, 13, 16, 18, 21, 47, 48, 50, 52, 54; Civil Liability (Non-economic Loss) Amendment Order 2021 (NSW); Crimes Act 1900 (NSW), ss 31A, 574B; Drug Misuse and Trafficking Act 1985 (NSW), s 12; Evidence Act 1995 (NSW), s 69; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 230; Law Reform (Vicarious Liability) Act 1983 (NSW), s 9B(2); Mental Health Act 2007 (NSW), ss 22, 81; Police Act 1990 (NSW), s 6; Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Secretary, Department of Planning and Environment v Sell & Parker Pty Ltd [2022] NSWLEC 60ENVIRONMENTAL OFFENCES: offender charged with two offences of contravening ss 76A(1)(b) and 125(1) of the Environmental Planning and Assessment Act 1979 – determination of appropriate sentences – sentencing principles – extent of environmental harm caused by the commission of the offences – state of mind of the offender at the time of the commission of the offences – whether the defendant held a genuine and reasonable belief that the prosecutor had exercised its discretion not to prosecute and that it was entitled to continue to offend – De Simoni principle – objective seriousness of the commission of the offences – whether contrition and remorse demonstrated – specific and general deterrence warranted – comparable cases – application of the totality principle – defendant convicted and fined in respect of both offences – order for moiety made – publication order made; Blacktown Local Environmental Plan 2015, cl 2.1; Crimes (Sentencing Procedure) Act 1999, ss 3A, 21A(2), 21A(3), 22, 23; Criminal Procedure Act 1986, ss 257B, 257G; Environmental Planning and Assessment Act 1979, ss 5, 76A(1), 119J, 119K(3), 121B, 125, 125A, 125B, 126(2A); Fines Act 1996, ss 6, 122; Protection of the Environment Operations Act 1997, ss 64(1), 250(1)(a).

DTN v Commissioner of Police [2022] NSWCATAD 158PRIVACY – personal information – health information – s4(3)(j) Privacy and Personal Information Act 1998 – s5(3)(m) Health Records and Information Privacy Act 2002 – information or opinion about an individual’s suitability for appointment or employment as a public sector official; Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013 (NSW); Health Records and Information Privacy Act 2002 (NSW); Privacy and Personal Information Act 1998 (NSW).

Canterbury-Bankstown Council v Payce Communities Pty Ltd [2022] NSWCA 74BUILDING AND CONSTRUCTION – contract – whether claimed variations within contractual scope of work – builder’s margin – GST – no question of principle; Building and Construction Industry Security of Payment Act 1999 (NSW), s 32(3)(b); Disability Discrimination Act 1992 (Cth), s 23.

SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker; SENTENCING – objective seriousness – deterrence - aggravating factors – mitigating factors – adverse publicity order - good prospects of rehabilitation – remorse; Crimes (Sentencing Procedure) Act 1999; Evidence Act 1995; Work Health and Safety Act 2011.

Reid v NSW Land and Housing Corporation [2022] NSWCATAP 166LEASES AND TENANCIES – withdrawal of services, goods or facilities under s 44 of the Residential Tenancies Act 2010 (NSW) - damages for breach of covenant for quiet enjoyment; Civil and Administrative Tribunal Act 2013 (NSW); Residential Tenancies Act 2010 (NSW).

King v NSW Land and Housing Corporation [2022] NSWCATAP 165LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) -Social housing tenancy - Application for termination order- breach of conditions - cause or permit nuisance, interfere or permit interference with reasonable peace, comfort, privacy of neighbours - where Tribunal applied section 87 to make termination order – question of law – mandatory considerations – personal circumstances of and effect of order on tenant – where potential effects of eviction included destabilisation of tenant’s physical and mental health, relapse of diagnosed psychotic symptoms; Civil and Administrative Tribunal Act 2013 (NSW); section 80 (2), Sch 4 cl 12 (1); Residential Tenancies Act 1987 (NSW) s 63; Residential Tenancies Act 2010 (NSW); ss 87(4) & (5), 154E.

Smith v Secretary, Regional NSW on behalf of Greater Sydney Local Land Services [2022] NSWIRComm 1035EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – motion to set aside summons to produce – relevant principles – personal information; Industrial Relations Act 1996 (NSW).

EHW v Secretary, Department of Education [2022] NSWCATAD 140ADMINISTRATIVE REVIEW - government information (public access) - conclusive presumption against disclosure – privileged communications – care and protection of children - public interest in favour of disclosure – personal information - information concerning applicant’s children - public interest against disclosure – disclosure that may prejudice the agency’s functions – disclosure that may reveal personal information – disclosure that may expose a person to risk of harm, serious harassment or intimidation – where disclosure not in the best interests of a child - information protection principle and meaning of public disclosure - balancing of public interests – public interest test - overriding public interest against disclosure – agency’s discretion to refuse to deal with access application – information previously produced under subpoena – unreasonable and substantial diversion of resources; Administrative Decisions Review Act 1997 (NSW); Children and Young Persons (Care and Protection) Act 1998 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Government Information (Public Access) Act 2009 (NSW); Health Records and Information Privacy Act 2002 (NSW); Inclosed Lands Protection Act 1901 (NSW); Privacy and Personal Information Protection Act 1998 (NSW).

Environment Protection Authority v Eastern Creek Operations Pty Limited [2022] NSWCCA 97CRIMINAL PROCEDURE – prosecution for non-compliance with statutory notice – ruling that notice invalid – classification of ruling as interlocutory or final – whether leave to appeal could be granted under s 5F Criminal Procedure Act 1986 (NSW); ENVIRONMENT – validity of notice purportedly issued under s 191 Protection of the Environment Operations Act 1997 (NSW) requiring addressee to furnish information – whether the notice sufficiently identified the material required to be produced and whether it showed that the addressor was entitled to require that production; COURTS AND JUDGES – jurisdiction – whether a judge presiding over a preliminary hearing convened in accordance with the case management provisions in the Criminal Procedure Act 1986 (NSW) has the power to summarily dismiss a summary prosecution prior to final hearing; Crimes (Appeal and Review) Act 2001 (NSW), s 107; Criminal Appeal Act 1912 (NSW), ss 5AE, 5C, 5F; Criminal Procedure Act 1986 (NSW), ss 139(5), 202, 247A, 247B, 247C, 247G, 247W, 249-252; Criminal Procedure Amendment (Summary Proceedings Case Management) Act 2012 (NSW); Evidence Act 1995 (NSW), ss 13, 18, 138; Income Tax Assessment Act 1936 (Cth), s 264; Interpretation Act 1987 (NSW), ss 13A, 35; Land and Environment Court Act 1979 (NSW), ss 22, 23; Land and Environment Court Rules 2007 (NSW), r 5; Protection of the Environment Administration Act 1991 (NSW), ss 5, 6, 7, 8, 9, 29, 30; Protection of the Environment Operations Act 1997 (NSW), ss 3, 48, 184, 191, 193, 194, 195, 211, Sch 1; Protection of the Environment Operations (Waste) Regulation 2014 (NSW), cll 91 to 96; Supreme Court Rules 1970 (NSW), r 11B; Supreme Court (Summary Jurisdiction) Act 1967 (NSW); Trade Practices Act 1974 (Cth), s 155.

Douglas v Commissioner of Police [2022] NSWCATAD 152ADMINISTRATIVE LAW – administrative review - Government Information – confidential information – refusal to confirm or deny that information held; Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Government Information (Public Access) Act 2009; Police Act 1990.

Legislation

NSW

Proclamations commencing Acts COVID-19 and Other Legislation Amendment (Regulatory Reforms) Act 2022 No 5 LW 13 May 2022 Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021 No 43 LW 13 May 2022

Regulations and other miscellaneous instruments Public Health Amendment (COVID-19 Air and Maritime Arrivals) Regulation 2022 LW 24 May 2022 Conveyancing (General) Amendment (AusNet Transmission Group Pty Ltd) Regulation 2022 LW 20 May 2022 Final Determination (2022-223) — published LW 20 May 2022 Government Sector Finance Amendment (Annual Reporting Requirements) Regulation 2022 LW 20 May 2022 Property NSW Amendment (Transfer of Property) Order 2022 LW 20 May 2022 Protection of the Environment Operations (Waste) Amendment Regulation 2022 LW 20 May 2022 Public Health Amendment (Scheduled Medical Conditions and Notifiable Diseases) Order 2022 LW 20 May 2022 Referable Debt Order LW 20 May 2022 Road Transport (General) Amendment Regulation 2022 LW 20 May 2022 Water Sharing Plan for the NSW Murray Darling Basin Fractured Rock Groundwater Sources Amendment Order 2022 LW 20 May 2022 Growth Centres (Development Corporations) Amendment (Northern Rivers Reconstruction Corporation) Order 2022 LW 13 May 2022 Harvestable Rights (central inland-draining catchments) Order 2022 LW 13 May 2022 Harvestable Rights (coastal-draining catchments) Order 2022 LW 13 May 2022 Local Government (General) Amendment (Temporary Emergency Accommodation) Regulation 2022 LW 13 May 2022 Local Land Services Amendment Regulation 2022 LW 13 May 2022 Long Service Leave Amendment (Regulatory Reform) Regulation 2022 LW 13 May 2022 Rural Fires Regulation 2022 LW 13 May 2022

Environmental Planning Instruments Ballina Local Environmental Plan 2012 (Map Amendment No 5) LW 20 May 2022 Clarence Valley Local Environmental Plan 2011 (Map Amendment No 2) LW 20 May 2022 Inverell Local Environmental Plan 2012 (Map Amendment No 1) LW 20 May 2022 Liverpool Local Environmental Plan 2008 (Amendment No 94) LW 20 May 2022 Orange Local Environmental Plan 2011 (Map Amendment No 4) LW 20 May 2022 Parramatta Local Environmental Plan 2011 (Amendment No 61) LW 20 May 2022 Port Stephens Local Environmental Plan 2013 (Map Amendment No 3) LW 20 May 2022 Port Stephens Local Environmental Plan 2013 (Map Amendment No 4) LW 20 May 2022 Tamworth Regional Local Environmental Plan 2010 (Amendment No 23) LW 20 May 2022 Wingecarribee Local Environmental Plan 2010 (Map Amendment No 4) LW 20 May 2022 Yass Valley Local Environmental Plan 2013 (Map Amendment No 3) LW 20 May 2022 Blue Mountains Local Environmental Plan 2015 (Amendment No 14) LW 13 May 2022 Gosford Local Environmental Plan 2014 (Map Amendment No 1) LW 13 May 2022 Ku-ring-gai Local Environmental Plan 2015 (Map Amendment No 2) LW 13 May 2022 Liverpool Local Environmental Plan 2008 (Map Amendment No 3) LW 13 May 2022 Tweed Local Environmental Plan 2014 (Amendment No 35) LW 13 May 2022 Willoughby Local Environmental Plan 2012 (Amendment No 23) LW 13 May 2022

Bills introduced Child Protection (Working with Children) Amendment Bill 2022 Children’s Guardian Amendment Bill 2022 Disability Inclusion Amendment Bill 2022 Statute Law (Miscellaneous Provisions) Bill 2022 Animal Research Amendment (Right to Release) Bill 2022 Water Management Amendment (Floodplain Harvesting Licences Compensation) Bill 2022 Dingo Cultural Heritage and Protection Bill 2022 Environmental Planning and Assessment Amendment (Climate Change Response) Bill 2022

Bills revised following amendment in Committee Mining and Petroleum Legislation Amendment Bill 2022 State Insurance and Care Legislation Amendment Bill 2022 Voluntary Assisted Dying Bill 2022 Public Health Amendment (Registered Nurses in Nursing Homes) Bill 2022 State Revenue and Fines Legislation Amendment (Miscellaneous) Bill 2022

Bills passed by both Houses of Parliament Firearms Legislation Amendment Bill 2022 Government Telecommunications Amendment Bill 2022 Mining and Petroleum Legislation Amendment Bill 2022 RSL NSW Amendment Bill 2022 Voluntary Assisted Dying Bill 2022 Electronic Conveyancing (Adoption of National Law) Amendment Bill 2022 Racing and Gambling Legislation Amendment Bill 2022 State Revenue and Fines Legislation Amendment (Miscellaneous) Bill 2022 Work Health and Safety (Mines and Petroleum Sites) Amendment Bill 2022