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.

Section 109 of the Constitution provides a mechanism needed in any Federation which divides legislative power between different political entities (as does Australia’s Constitution), which is a way to resolve clashes. Under s 109, a valid Federal law will over-ride an inconsistent State law. I have previously written about this in the context of a clash between Federal and State laws on sexual orientation discrimination laws. I have also written about a prior case in which an aspect of VAD laws (on this occasion from Victoria) was found to have been invalid due to the operation of s 109. On that occasion the invalidity resulted because Commonwealth law prohibited using the telephone or internet to facilitate suicide, hence making it unlawful to communicate in these ways under State law to assist in VAD.

In the current situation the claimed s 109 clash is alleged to work in a different way. Rather than the State law authorising something that Commonwealth law forbids, here it is claimed that State law impairs a right that has been given to citizens under the Commonwealth law. In my previous comment on the clash between discrimination laws, I pointed out that this was a well-accepted version of s 109 clash.

However, in my view the recent VAD Opinion wrongly applies this principle, essentially because the relevant Commonwealth laws do not give a “right” to citizens to demand that VAD procedures be available wherever and whenever they want them. The VAD Opinion refers to a number of provisions of the recently commenced Aged Care Act 2024 (Cth) (“ACA”) and subordinate legislation made under that Act, the Aged Care Rules 2025 (Cth) (“ACR”). But, to summarise, in each case, despite the fact that the legislation refers to individual choice in aged care, and to the importance of understanding and respecting people’s preferences, at no point is there a clear legal right for someone in aged care to have their preferences always met. This is, of course, obvious. It will always be necessary for those running aged care services, while taking into account the wishes of those they care for, to make decisions balancing other interests- the sheer cost of providing care, the wishes and desires of other residents, and in the case of faith-based care providers, the underlying values of the faith communities who have established the institution.

So, for example, the VAD Opinion at para [15] refers to the “Aged Care Code of Conduct” (“Code”), set out in ACR ch 1, pt 5, the first principle of which (cl 14-5(a)) is that service providers must “act with respect for people’s rights to freedom of expression, self-determination and decision-making”. However, the VAD Opinion actually omits the phrase at the end of that clause: “in accordance with applicable laws and conventions”. This is an important qualification- after all, all rights to freedom of expression are subject to other laws such as defamation. And in particular, the need to “act with respect” for these rights, does not automatically mean that all requests must be immediately complied with. Other values may need to be considered and balanced with the expressed desires of residents.

Again, it can be accepted that under the “Aged Care Quality of Standards” (ACR ch 1, pt 6, Division 2), services should be as far as possible “tailored to, individuals, taking into account their needs, goals and preferences” (ACR 15-10(3))- but again, having taken these seriously into account, not every preference will be always met. Other obligations in relation to preferences of residents use similar language.

A provision emphasised by the VAD Opinion is the requirement to “recognise and address the needs, goals and preferences of individuals for palliative care and end-of-life care” (this is found in ACR 15-30(15), unfortunately wrongly cited in the VAD Opinion at their paras [16](l) and [18] as “15-35(15)”.) But despite the impression given by the Opinion, a requirement to “recognise and address” goals and preferences does not create a duty to comply with those goals or preferences. Indeed, this part of the ACR seems to positively count against a duty to allow VAD- because it refers explicitly to “end-of-life care“, which clearly implies ongoing care for at least some time, rather than simply providing or facilitating death.

Of course there are always difficult decisions to be made around palliative care and when it is appropriate to cease to provide further medical intervention. But the point is this- the Commonwealth law does not provide a “right” to VAD at whatever location is chosen by the resident. Decisions will be made in consultation with the local health professionals and family.

The fact that decisions will need to be made which balance various interests and rights is clearly seen in the ACA s 24(2):

24(2) It is the intention of the Parliament that registered providers delivering funded aged care services to individuals must take all reasonable and proportionate steps to act compatibly with the rights specified in section 23 in the delivery of funded aged care services, taking into account that limits on rights may be necessary to balance the following:
(a) competing or conflicting rights;
(b) the rights and freedoms of other individuals, including aged care workers of the registered provider and other individuals accessing funded aged care services;
(c) compliance with other laws of the Commonwealth, or of a State or Territory, including the Work Health and Safety Act 2011.

The section refers to a “balancing” process, to steps being “reasonable and proportionate”, and in particular it refers to “competing or conflicting rights”. Yes, of course, that allows consideration to be given to the rights of other individuals- other residents, staff members. But there seems no good reason to exclude the “rights” of the organisations running faith-based aged care services, to have the fundamental rights of the organisation, to act in accordance with its faith commitments, taken into account.

The VAD Opinion tries to ” head off” this argument by asserting at their para [23] that the “rights” referred to here must only be read as “human, personal rights”. Yet no persuasive reason is offered, other than that they assert that other references to “rights” in the laws are also individual and not corporate rights. Even if this were so (and I have not been able to check this assertion), the context of s 24(2) itself shows that when the drafters wanted to be specific about “individuals”, they could do so- see para 24(2)(b). The more general reference to “rights” in para 24(2)(a) can be seen as extending to the rights of organisations as well as of individuals.

The position under international human rights law, as set out in detail by Fowler and Deagon (2024), is that institutions are entitled to be recognised at law as holders of rights to religious freedom in order to properly give effect to these rights for the enjoyment of their members. As such, the right conferred under the Bill allows providers to decline to provide VAD services as a function of protecting the rights of individual employees of the provider to freedom of religion, including conscientious objection. With this background, an appropriate balance of the rights between individuals seeking services and the employees of the provider would be for the provider to facilitate the transfer to another site for VAD, as the Bill allows and as is consistent with the Commonwealth laws.

Indeed, when consideration is given to the explicit reference to “State laws” in para 24(2)(c) as part of the “balancing” framework, it seems clear (contrary to the assertions of the VAD Opinion) that the Commonwealth ACA recognises that State law may on occasion provide explicit limits on the exercise of “rights” under the ACA, which should be respected.

Hence, the best view is that the Commonwealth laws do not impose this requirement to always allow VAD on the premises of faith-based aged care institutions. The States, such as NSW, remain free to allow faith-based aged care providers to operate in accordance with their faith commitments, while allowing residents to be transferred elsewhere if they wish to access VAD. The Bill seems a modest and sensible proposal to bring the situation of residential aged care providers into line with that of faith-based hospitals.