Grattan on Friday: A reluctant Albanese is under pressure over telehealth for VAD

At last week’s Labor conference, which was totally under the prime minister’s thumb, only one issue was contested on the floor: support for the use of telehealth in voluntary assisted dying care.

The amendment in favour passed, but Anthony Albanese later flagged he was opposed to such a move. The measure would require changing the criminal code, which prohibits using a carriage service to promote or counsel on suicide. On the conference floor, Attorney-General Michelle Rowland expressed strong concerns.

Now, hard on the heels of the conference decision, Albanese is to be put on the spot: will he respect or flout the will of what is supposed to be Labor’s peak body?

Crossbencher Kate Chaney, from Western Australia, who is one of the teals, already has a private member’s bill on the notice paper that would remove the ban on the use of telehealth.

Chaney has written this week to Rowland, with copies to Albanese and Tony Burke, leader of the House of Representatives, saying she will seek a suspension of standing orders to bring on her bill when parliament resumes on Tuesday week.

“People are enduring exhausting and painful travel to access VAD. Every week this anomaly remains unaddressed is a week in which that needless suffering continues,” she writes.

“The fix in my Bill is simple: an amendment to the Commonwealth Criminal Code to make clear that lawful VAD care is not suicide.”

Chaney refers to a related resolution the Labor conference passed, saying any decision reached on VAD “is not binding on any member of the party”.

“I would ask that the Government provide Labor Members the opportunity of a free vote that the National Conference has endorsed, for the Suspension of Standing orders and on the Bill itself,” Chaney writes, more in hope than expectation.

No doubt Labor MPs would get to exercise their consciences if Chaney’s bill actually reached a vote. But solidarity will apply on any procedural votes to deal with it. The government can, if it chooses, simply shut down the move by refusing to allow the suspension.

Chaney’s next chance to bring forward her bill would be in September (there is a roster for private members’ bills). Then, she could give a speech but, unless the government chose otherwise, the bill would then just languish like almost all private members’ bills.

There may be efforts from some in government to persuade Chaney to hold off from acting on Tuesday week, with suggestions that a softly, softly approach might get better results. Chaney’s present inclination is to strike while the iron’s hot.

But Albanese has indicated not just his personal view but that he wants to keep tight control of the issue.

“I’m a supporter of voluntary euthanasia”, he told the ABC at the weekend.

“But it’s also important that protections be placed around it. Now, if someone has a heart attack or an acute health condition, they need a doctor, they can’t do that over telehealth, and I think that someone ending their life […] should be face-to-face recognition and face-to-face engagement”. Removing this ban would undermine support for VAD, he suggested.

Pressed on whether he would allow a vote in parliament, Albanese said: “What I will allow is for colleagues to express a view. […] It’s up to the cabinet to decide […] and cabinet makes decisions after and in consultation with the caucus.”

Those who have spoken to him in the past about the issue say he is very forceful in his view. He is said to believe telehealth could weaken the safeguards around VAD.

The ban on the use of a carriage service to transmit suicide-related messaging dates back far before the inception of telehealth. It was inserted when the criminal code was amended in reaction to the internet and suicide-related material.

Then Liberal attorney-general Philip Ruddock told parliament in 2005: “The bill seeks to protect vulnerable individuals […] but does not seek to stifle legitimate debate on euthanasia or suicide-related issues.

"These provisions make it clear that the offences only apply where the person intends to use the material concerned to counsel or incite suicide, or to promote or provide instruction on a method of committing suicide.”

A 2023 federal court decision ruled that VAD came under the definition of suicide, and so a telehealth consultation would contravene the law.

When the Albanese government granted the territories the right to legislate for VAD – removing the prohibition imposed under the Howard government in 1997 – Albanese was against changing the criminal law provision.

How the cabinet divides on the issue will be significant. Apart from Albanese and Rowland, Burke would presumably be against change – his political opposition to euthanasia goes back to when he worked closely with then Liberal MP the late Kevin Andrews to overturn the Northern Territory assisted dying law. Burke, not in federal parliament then, was executive director of Euthanasia No!.

But on the other side of the argument is a weighty voice – that of Health Minister Mark Butler. Butler reportedly was influential in getting the issue debated at the Labor conference, part of a trade off for the left going soft on other contentious matters.

Asked by The Conversation on Thursday about the conference decision and future action, Butler stuck to the formal dictum: “The national platform and resolutions of the party, represent short and long-term aspirations of the ALP. The government of the day sets government policies.”

In the Senate, the Greens’ Sarah Hanson-Young will bring a private senator’s bill forward in the first sitting fortnight of the coming session. “We could have this law fixed by the end of the year if there is willingness across all sides of the parliament to work together.”

But in government circles, advocates say there’s a long way to go, suggesting more would need to be done on clinical safeguards. And that’s assuming Albanese could eventually be got across the line.

Michelle Grattan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.