Should a religious aged care provider be able to operate in accordance with its religious convictions? This issue is being debated in NSW at the moment in the context of the law allowing “voluntary assisted dying”. The Voluntary Assisted Dying Act 2022 (NSW) allows persons with a terminal illness to choose death, which can be self-administered or administered by a health professional. Many health professionals have religious convictions which mean that they find the procedures for persons to choose death morally unacceptable. They do not wish to be involved in the process.

Under the legislation there is a right for individual health professionals to conscientiously object to the procedures, and to decline to be involved: see sections 9, 21 and 32. Faith-based hospitals may also decline to be involved in VAD procedures. However, at the moment faith-based aged care facilities are obliged to allow medical practitioners onto their premises to administer VAD.

A Private Member’s Bill has been introduced into the NSW Parliament which will amend the Act to allow faith-based residential aged care facilities the same choice as that available to faith-based hospitals, to decline to be involved in VAD or to decline to allow VAD to be administered on their premises. The Voluntary Assisted Dying Amendment (Residential Facilities) Bill 2025 is due to be debated soon.

In this comment, rather than deal with other policy issues as such, I want to address the claim that has been put forward that these amendments would be inoperative because they would bring about a clash with Commonwealth law. A legal opinion has been made available, prepared by Arthur Moses SC and Dr Patrick Keyzer, which asserts that the amending Act would be invalid due to the operation of s 109 of the Commonwealth Constitution (“the VAD Opinion”). In my view this is not correct. Whatever other reasons there may be for opposing the amending Bill, s 109 does not provide a good reason to do so.

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