Eliana Close, Prof. Ben White, Lindy Willmott
On 29 November 2017, the Victorian Parliament passed the Voluntary Assisted Dying Act 2017 (Vic). The Act, which will permit assistance to die in limited circumstances, will not commence until 19 June 2019. An Implementation Taskforce has been appointed to oversee the process of preparing for this law to come into force.
This paper presents an initial regulatory analysis of the new Victorian legislation. It draws on two standards identified by Yeung (2012, King’s Law Journal) for assessing a regime’s regulatory legitimacy. They are: whether the regime achieves its stated policy goals effectively and whether its design and implementation comply with the principles of good governance. Achieving goals effectively includes having regard to the cost of implementing the regime, while good governance includes considerations such as transparency, accountability, due process and substantive fairness.
The regime performs well in relation to some aspects of these criteria but less well on others. For example, the very detailed set of safeguards set out in the legislation ensures close monitoring of the assisted dying process promoting the values of transparency and accountability. However, those same safeguards could have the effect of hindering access to assisted dying if they are so burdensome that the people who are eligible in principle to access assisted dying cannot do so in practice. Further, the value of substantive fairness may not be reflected in some aspects of the eligibility criteria. An example is having different timeframes within which a person’s death is expected, depending on the nature of the person’s illness.
While the terms of the law may now be set (at least in the foreseeable future), there may be scope for the implementation process to have regard to these considerations and perhaps ameliorate potential design issues to better advance the regulatory legitimacy of the regime. This analysis may also provide insights for other parliaments that may be considering assisted dying reform.
Biographies to come.