Wednesday, 29 October 2025

Clause 8 further considered (15:08)

And Kathleen Matthews-Ward’s amendment:

5.   Clause 8, line 3, omit “(1)”.

Amendment defeated.

The SPEAKER: As the house has not agreed to the amendment, the member for Broadmeadows will not be able to move amendment 6, as it is consequential.

Before calling the member for Ringwood to move amendment 8 in his name, I advise that if his amendment is not agreed to, he cannot move amendments 9, 11, 13 to 15, 17 to 19, and 67, as they are consequential.

Will FOWLES: I move:

8.   Clause 8, line 10, omit “and” and insert ‘and”.’.

These amendments go to the eligibility requirement around Victorian residency. I begin by saying that if there was one rule within the government’s bill that was the most arbitrary, the most redundant, the silliest and the most bureaucratic, it would be this rule. We now have a situation with VAD in some form or another being on foot in every state and territory. The NT is coming; it is under active consideration. But every other state and territory has a voluntary assisted dying scheme. I appreciate, and I likely would have supported back in 2017, the need to have what is effectively an anti VAD tourism clause. But that need has totally disappeared. I want to bring the house’s and the minister’s attention to one particular case in Victoria, which concerns a man who had difficulty demonstrating he was ordinarily resident in Victoria. This is the case of NTJ v NTJ. It is known as BTR’s case. It involved a man referred to as BTR, who was born in Victoria and for the last 14 years of his life had been living in a caravan parked on a property owned by friends of his in Victoria – 14 years. He travelled regularly interstate on fishing trips, spending long periods away, particularly in Queensland during the colder months. He was in Queensland when he was diagnosed with incurable cancer and immediately returned to Victoria to be close to friends and family. Less than three weeks after returning to Victoria he made a request for VAD. BTR’s doctor, Dr NTJ, initially determined BTR had been ordinarily resident in Victoria for at least 12 months and assessed him as eligible for VAD. Over the next three weeks Safer Care Victoria, the government department responsible for administering the VAD legislation, made four requests for further information concerning BTR’s residence. Despite becoming an inpatient in hospital during that period, BTR, in support of his application, provided copies of his drivers licence, passport, medical letters and records, Centrelink income statement and various vehicle and vessel registration certificates as evidence of his Victorian address. He made a statutory declaration concerning his residence. The VAD navigator at the hospital where he was an inpatient made a statement, and the hospital responded to a list of questions from Safer Care Victoria, but these were insufficient to satisfy Safer Care Victoria’s request for further information. So eventually Dr NTJ had to make application to VCAT for determination of the issue.

Her Honour Justice Quigley concluded that despite his frequent absences for extended periods, BTR was ordinarily resident in Victoria and was therefore eligible for VAD. What an absolutely farcical process. We are now asking these same people who put BTR through that ridiculous and unnecessary process to be the arbiters of compassionate exemption for the residency requirement. There is no need for a residency requirement, and that is what my amendments do. They get this residency requirement out of this act. There is simply no need for it. It is absolutely reprehensible that Safer Care Victoria was hounding a dying man for more information – reprehensible and disgusting conduct from Safer Care Victoria. So why would we trust that agency with any responsibility for patients in this system? Why would we afford them that opportunity when the rule itself is completely redundant? It is completely redundant because there is VAD on foot in every jurisdiction in Australia – yes, except the Northern Territory, population 200,000-odd. I query how many of them would have a terminal illness at any one time and query whether any of them would bother coming to Victoria unless they actually had a substantial connection to the state, given the relative proximity of WA, Queensland and South Australia.

The fact that a doctor had to actually make application to VCAT on behalf of their patient rather than doctoring is reprehensible. We simply should be allowing doctors to care for their patients and using their medical expertise for medical matters, not having to use it for legal matters. This rule is completely redundant. The amendment I propose is simple and straightforward and easy to understand, and I urge members to adopt the amendment as I have tabled it.

Mary-Anne THOMAS: I do not support this amendment, and I will not apologise for the safeguards that exist within the scheme. Given not all Australian jurisdictions have legislated VAD schemes, the safeguard, as it is proposed, aligns Victoria with Queensland and New South Wales.

Will FOWLES: The minister has alluded to the fact that not all Australian jurisdictions have VAD schemes. Let us be very clear: one Australian jurisdiction does not have a VAD scheme, and it is the Northern Territory, with the smallest population of any state or territory in the nation – 200,000-odd people. They have it coming. We know that in all likelihood they will have a VAD scheme legislated within the next 12 months. If the intention is to come back and amend at that time, then it would be great if the minister could indicate that to the chamber. But my suspicion is it is not the intention to come back and make that amendment at that time. We are accepting surely that this redundant rule creates this onerous process on people who are in fact Victorian or have a substantial connection to family and friends in Victoria and ought be able to access the scheme here.

Quite separate from Safer Care Victoria’s disgusting conduct in relation to BTR’s case, if we look to the issue of what it is that we are trying to stop happening here, we are talking about VAD tourism. The pool of potential tourists, if you like, is vanishingly small. It is residents of Darwin and Palmerston essentially. It is a tiny, tiny, tiny population that we are talking about who clearly, if they are going to exit the Northern Territory to access VAD, are far more likely to be accessing it in WA, South Australia or Queensland anyway given the relative proximity of those jurisdictions. It is a nonsense to say simply because the Northern Territory has not legislated VAD, we should continue to have this arbitrary rule, putting yet another block, yet another arbitrary bureaucratic hurdle, in the way of families and patients at their most difficult time.

It is probably a reflexive response of all ministers that they think that their bureaucracies, their departments, their agencies, conduct themselves well and honourably and efficiently and effectively all the time. But I think we know the lived experience looks a little bit different to that, and no more so than in BTR’s case, because in BTR’s case you had a person who had to go back four separate times, who provided all of the residency details, and still Safer Care Victoria said no and took him to VCAT. Ultimately it was concluded that despite his frequent absences for extended periods, BTR was ordinarily a resident of Victoria and therefore was eligible for VAD.

In addition to that I say that we ought be facilitating, as compassionate legislators, people who do live interstate for whatever reason – for work, for other reasons – who want to come home to Victoria if that is where their family are. If they choose to live in Victoria for the last period of their life, we should allow them to do that. We should not have a residency requirement that stands in the way of them accessing the VAD scheme simply because, for example, they have been on a two-year work posting to I will come back to Darwin and Palmerston or simply because they have been working in Perth or Brisbane or Sydney. We should not close the door to that or force them through this totally arbitrary compassionate exemption process when we know that the compassionate exemption decision-makers are the very ones who are most uncompassionately putting people like BTR through the absolute mill and treating them appallingly in trying to enforce the rules as they were.

It is absolutely insane that the government is not supporting this amendment. This amendment is a very straightforward amendment. It offers no risk to the scheme. It offers no risk of likely behaviour change. All it does is deny families and patients access to the care they need at an incredibly vulnerable time in their life. It is a very, very simple change and it is an important change. To that end, I ask the minister: if the secretary takes several weeks to determine a compassionate exemption, what does that do for the patient and their family while they are waiting?

Mary-Anne THOMAS: I have already responded to the amendment.

The DEPUTY SPEAKER: Because the amendment deletes a word from the clause, the question is:

That the word proposed to be omitted stand part of the clause.

All those supporting the amendment from the member from Ringwood should vote no.

Assembly divided on question:

The DEPUTY SPEAKER: As the house has not agreed to the amendment, the member for Ringwood will not be able to move amendments 9, 11, 13 to 15, 17 to 19 and 67, as they are consequential. My spidey sense is telling me the member for Preston is about to stand up.

Nathan LAMBERT: I advise the house that I am circulating amendments in substitution, following some discussions with colleagues.

The DEPUTY SPEAKER: The member for Ringwood’s amendment 10 and the member for Melbourne’s amendment 11 and the member for Richmond’s amendment 1 all seek to omit the same words. I will call the member for Melbourne, as a member from the largest party, to move her amendment 11, and I advise the members for Melbourne, Ringwood and Richmond to refer to all of their amendments when speaking to the principles of this amendment. I also advise that if this amendment is not agreed to, the member for Richmond cannot move her amendments 2 to 5, 7 to 9 and 11 to 13, as they are consequential.

Ellen SANDELL: I move:

11.   Clause 8, lines 26 to 28, omit all words and expressions on these lines and insert –

“(2) Section 9(1)(d)(iii) of the Principal Act is repealed.”.

This amendment deals with my proposal to remove the 12-month prognosis timeframe. I want to talk a little bit about why we are proposing this. I will speak briefly, because I know we are in a bit of a time crunch. This amendment would remove the eligibility criteria that requires that death is expected to occur within a very specific, time-based prognosis.

Let us be clear: all other eligibility requirements would remain, including that the illness is incurable, advanced, progressive, will cause death and is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable. We believe that these criteria constitute sufficient safeguards that would remain. But the thing is that time-based prognoses – that is a doctor saying, ‘Yes, you will die within 12 months’ – within VAD schemes are clinically and legally challenging.

As I said in my speech, we are fortunate to have two medical doctors on the team as MPs with the Greens, and they have talked to us about how difficult it is in clinical practice to give a 12-month, time-based prognosis consistently. Estimates of prognosis are just that – estimates. Even really experienced clinicians have difficulty providing certain timeframes to death beyond, say, days or weeks, and when they do that, it is not actually intended to be a legal test.

Those kinds of prognoses, when a doctor might say ‘Look, you’ve got days’ or ‘You’ve got weeks’ or ‘You’ve got months’ are generally provided to patients to allow them to plan the remainder of their lives and to inform treatment decisions, but not as a legal test. By creating a law that references a specific timeframe, some clinicians might err on the side of caution and wait until they are more certain that death is approaching, for fear of breaching the law. For many people, that might be too late. I think we have seen cases of VAD where that has happened too late. People entering VAD at very advanced stages of their illness has been noted by the Voluntary Assisted Dying Review Board to be a particular issue in Victoria, with many people likely dying before they are able to get through the process in order to access VAD because of this specific barrier.

I know we have talked a lot about other jurisdictions. The ACT has removed this 12-month period and said instead it is a slightly more subjective prognosis. So it is not the specific 12 months, but as I said, you still have to have a condition that is causing suffering and that is incurable, advanced, progressive and will cause death within roughly that timeline – it is just not the specific 12 months. But it is not just the ACT that is talking about this. The NT’s Legal and Constitutional Affairs Committee has recommended the same for any VAD laws that that jurisdiction introduces. What I think may happen is that other states will follow suit based on what is actually practical for clinicians, and then Victoria will be left behind again. That is the reason why I am moving this amendment, and I hope that others in this place will support it.

Tim READ: I might just say a couple of quick words to follow on from the member for Melbourne, which is that doctors and researchers have very accurate information on the percentage of people who will be alive at a certain time – often five years or 12 months – but not how long those people will live. Time-based prognoses are just an extrapolation based on the 12-month survival probability or the five-year survival probability. That is why an estimate of ‘You’ve got six months to live’ or ‘You’ve got nine months to live’ is always an estimate.

Gabrielle DE VIETRI: I understand that if the member for Melbourne’s amendment fails, then my amendment will not be heard, so I will be commenting on the amendment that I circulated earlier, in this moment. My amendment 1 enables the Secretary of the Department of Health to grant an exception in exceptional circumstances and on compassionate grounds in relation to the 12-month prognosis timeframe. The government’s amendment to change that prognosis window to 12 months is a positive move, but there are still some conditions where there is inherent uncertainty about the timeframes to death but all other criteria are met. This amendment enables a person who meets all the eligibility criteria but the 12-month prognosis to apply to the secretary for an exemption. The secretary would then be required to seek certain information in order to inform a decision, including the relevant parts of the person’s medical record, and to seek expert advice.

This is a process that is already in place in Tasmania – it is a very similar process – so this amendment reflects that process that already exists there. It does differ from the Tasmanian process in some ways, the main one being that the voluntary assisted dying review board in Tasmania has more power. Our review board does not have those powers, and so the exemption pathway that has already been created by the government for residency and interpreter exemptions already exists. It is appropriate in this instance for that pathway to also be the pathway in this amendment, and it mirrors that pathway that already exists. We believe that creating such an exemption would also allow some data and experience to be gained about the number and nature of such applications, which in turn could inform future amendments to the laws with respect to eligibility criteria.

Will FOWLES: In my first 5-minute crack at this I just want to ask the minister a couple of questions regarding 12-month prognoses. Does the minister accept that having a fixed 12-month timeframe may unfairly exclude people with slowly progressive diseases? Secondly, why was a compassionate exemption not considered for this as it is, for example, for residency?

Mary-Anne THOMAS: Firstly, I might just respond and let the house know that I do not support the amendment. It is my belief that the 12-month period will allow people to begin the VAD process at a time that suits their condition and level of suffering without forcing them to wait until the final months or weeks. This change will bring Victoria more in line with Queensland. I am satisfied that it is a step in the right direction. Indeed this was the original proposal in the bill that came before this place in 2017. Therefore I do not accept the amendment.

Iwan WALTERS: Very briefly, in case there is not the opportunity to register this in a formal vote, I am opposed, like the minister, to the various amendments proposed by the Greens party to entirely sever the connection between eligibility and expected time of death. I am conscious of the ambiguities that the member for Brunswick talked about in the context of those diagnostic challenges, but I think the risks of removing timeframes are incredibly problematic. It is why I remain concerned about the proposal to increase the time limit from six months to 12 months in the first instance. I am also concerned that the conceptual justification for not moving further is quite difficult and that the pressure will remain to continue to push that time horizon out. I will be opposing this if it comes to a vote, and I want to register that in case it does not.

Kathleen MATTHEWS-WARD: As I have said before, I understand the comfort people feel in having the option available when they have had a terminal diagnosis and the fear of losing capacity before they are eligible to actually sign up for that capacity. I still have concerns about it going from six months to 12 months, which I have spoken about. I do think we are making some changes to this bill that actually improve access at the end, and the experts I have spoken to have said that is actually where a lot of the delays are. People want it often like an epidural. Maybe they want it later. The changes we are making from nine to five days and getting rid of that administrative form that changes from self-administration to practitioner administration reduce delays. I think this is the slippery slope. We know prognosis is inexact. As I have said before, my uncle had a prognosis, was eligible for VAD and is now no longer within 12 months of dying. That sort of thing happens all the time. Are we all not in some ways terminal? We are all going to die one day. Our job is to work out what the balance is. What is the balance here? Are we giving access to suicide drugs or are we giving access to end-of-life choices, which is the original intent of the bill? I do not support this amendment.

Will FOWLES: I now rise to offer up more substantive support for the member for Melbourne’s amendment, as proposed. I do make the procedural point that I followed very closely in 2017 this debate, even though I was not a member of the Parliament, and I followed very closely in particular Mr Jennings, the former member in the other place, and his approach to this. His approach was one of genuine and direct engagement with everyone who was asking questions during consideration in detail. I think it is unfortunate that the minister in this chamber and in this place is taking the approach of not answering questions, not engaging fulsomely and not actually defending the substance of the bill but actually simply evading those –

Luba Grigorovitch: On a point of order, Deputy Speaker, I would ask that that be withdrawn. That is completely unfair. The minister has been grilled for many, many hours now.

The DEPUTY SPEAKER: Order, that is not a point of order.

Will FOWLES: As I was saying, the minister is evading these questions. I asked a very straightforward question just before. She has chosen not to answer it. She has given expressions that express the joy which she feels when she does not answer those questions across the chamber, and that is the approach that she has taken. I think it is unfortunate. I think she has an opportunity to defend the substance of her bill, the opportunity to engage fulsomely across the chamber, and her refusal to –

Nathan Lambert: On a point of order, Deputy Speaker, I understand that we are here to debate the amendments and the clauses as per the consideration in detail. We are not here to wax lyrical about someone’s opinions about the minister.

The DEPUTY SPEAKER: Order! I cannot direct members on what to say. The member is debating on behalf of his amendments. The member to continue with the time he has got.

Will FOWLES: As I say, it is just a procedural point about the way in which this consideration in detail is being conducted. I think it is pretty unsatisfactory and unfortunate, the way in which the minister is engaging on it.

But in relation to these amendments, I think it is really, really important that we give people the certainty and the optionality around voluntary assisted dying without being arbitrarily constrained by a clinical timeframe that we know to be uncertain. It is really, really difficult to plot these things with absolute certainty. The other thing it does is: if the medical prognosis is, say, 13 months on any of a number of conditions, you can experience for whatever reason – by means of a fall or by means of just simple bad misfortune – a sudden deterioration in your symptoms and find yourself, because of all of the bureaucratic inefficiencies and difficulties that have been highlighted, in a position where you are no longer able to get through the very many difficult steps to access the voluntary assisted dying scheme. That is a bad outcome. It runs counter to the stated policy purpose, and it simply does not support patient choice at end of life.

I think the six-month timeframe was obviously a deal done last time around. Twelve months has, I think, some degree of logic to it perhaps. Clinically, I am told that it is actually largely to do with the way insurers operate in the US, this 12-month timeframe. The ability to access palliative care under the American insurance system is actually driven by a 12-month rule. It is going to be arbitrary wherever we drop the line. So what I say and what I think – without parsing the words of the member for Melbourne and what others say – is that the arbitrary timeline ought to be removed to allow the clinical assessment to proceed on a clinical basis and to not have to have this arbitrary statutory timeframe. If we are going to be putting patients through a scenario, as was the case in NTJ’s case, where agencies are arbitrarily putting people through process after process after process, whether the minister’s department is teeing off with doctors in VCAT instead of allowing people to care for their patients, then all the more reason to create a circumstance where you do not crack open that entire pit of potential litigation and difficulty.

The further thing – and, interestingly, it was the question the minister evaded – was why it is that a compassionate exemption was not considered to this. Apparently we can do compassionate exemptions for stupid residency requirements, but we cannot do compassionate exemptions for this very, very clinically important area where you might consider a compassionate exemption. So that is why I think the member for Richmond’s foreshadowed amendments are very important and warrant a discussion too. If you were ever going to do a compassionate exemption, it is for this. That is the model that operates in Tasmania. Only three, I think, compassionate exemptions have been allowed, and that is the model that the minister should have adopted and should have been bringing into this place. I would perhaps invite her again to address why the Tasmanian model was not adopted.

Ellen SANDELL: I just wanted to clarify something about these amendments in response in particular to the member for Broadmeadows. I understand this is a really emotional topic and an emotional debate when we are talking about life and death and the end of life. To the member for Broadmeadows, I respect the positions that you have brought to this chamber. But I did want to clarify, because the member for Broadmeadows talked about, ‘We are all going to die, and where do we draw the line?’ It is a really important question.

In order to access the VAD scheme the line is being drawn at being able to find a clinician who is willing to sign something that says that you are likely to die within 12 months even though that is often quite a difficult thing to say with any certainty. What we are proposing, simply, is to instead say that the disease must be incurable, advanced and progressive, will cause death and is causing suffering to the person that cannot be relieved in a manner that the person considers tolerable. We are not just saying that you can access these drugs at any point in your life; you need to meet these criteria of having a terminal illness. All we are saying is that an arbitrary 12-month prognosis is something that is a significant barrier to people accessing the scheme. The Voluntary Assisted Dying board has said it is a barrier in Victoria.

I just want to also clarify something about the interaction between my amendment and the amendment from the member for Richmond. My amendment is seeking to omit some words and to then insert words that remove the 12-month prognosis. If that fails, if that is not acceptable to the house, the member for Richmond will seek to insert words that are a bit of a step down. This says we understand if the house does not want to remove the 12-month prognosis. How about instead we have a compassionate exemption scheme? This would be where you cannot find a doctor that says it is a 12-month prognosis exactly but you do meet these other criteria and there is a compassionate reason. Perhaps the doctor cannot say you are going to die within the 12 months but it is going to be shortly after that, and you meet all these other criteria of intolerable suffering and a terminal illness. You can then can apply to the secretary for a compassionate exemption to be able to access VAD.

It does exist already in Tasmania. As the member for Ringwood has said, there have only been three times it has been used, so it is used on rare occasions. But can you imagine if you are or one of your loved ones is one of those three people and they want to access this scheme and they cannot. In Tasmania the process is appealing to a board. Rather than creating a new board, under our legislation the secretary has those kind of powers so we would propose, just for convenience sake to fit with the existing legislation, that you could apply to the secretary for that exemption.

If you do not agree with my amendment, but you do agree with a step-down amendment by the member for Richmond, you would vote for my amendment but then seek to insert the words that the member for Richmond is proposing.

Danny PEARSON: I, like the minister, do not support the amendment moved by the member for Melbourne for the reasons the minister has previously outlined. I just want to make one observation while I have the chance. We have been at this process now for a number of hours yesterday, last night, into the wee hours of this morning, this morning and this afternoon. The minister has sought to reassure this house at every opportunity in relation to the questions that have been asked of her. I appreciate and understand that sometimes people do not like the answers, and I appreciate and understand that there is a lot of content to cover here, but for members to come into this place and suggest that the Minister for Health is being disingenuous, that she is not engaging in this process fairly and she is not treating members with due regard and respect, I find deeply offensive.

I do not know how long I am going to be here for. I think I am going to be here for a while yet, and that is fine. My job here is to support the minister at the table, the Minister for Health, to get this legislation through. But I just would ask if we could just have a modicum of respect and recognise the fact that we have got different views, recognise we are all coming at this from a different lived experience and we all want to make a point, and I reckon that is totally fine. But if we can give the minister the respect that she is entitled to when she is doing the equivalent of running a marathon, I think that we all would welcome that. I would certainly welcome it.

Kathleen MATTHEWS-WARD: Just briefly, the intent of the original bill that the Parliament supported in 2017 was that people had access to voluntary assisted dying within weeks and months of their expected death. There have been arguments. I still have concerns about going from six months to 12 months, particularly, as I have said before, because of my uncle who had a prognosis and it was incorrect. There has also been plenty of examples of incorrect prognosis, and it is harder and harder to get that right the further you are out. If you are at 12 months, the prognosis is more unclear than at six months, and it is even more unclear at 24 months.

Our job as legislators is to get a balance. At this point in time the Parliament has decided that 12 months is that balance. I think this is absolutely too far, and I do not think the Victorian community would support it.

The DEPUTY SPEAKER: Because this amendment deletes words from the clause, the question is:

That the words proposed to be omitted stand part of the clause.

All those supporting the amendment from the member for Melbourne should vote no.

Assembly divided on question: