EXPLAINER: Why can’t a doctor discuss assisted dying over the phone?

Voluntary assisted dying is lawful across Australia — operating in every state and the ACT, and legislated in the Northern Territory, where it begins in 2028. A dying person who qualifies for it still can't always talk it through with the doctor assessing them (by phone, video call, or email) because a Commonwealth criminal law makes that conversation an offence.

In late October, the health ministers of five states and territories wrote to the Commonwealth asking it to lift the ban, a push reported on 2 November (The Medical Republic). Here is the law they want changed: where it came from, why it catches assisted dying at all, and why it has been so hard to fix.

How we got here

The offence was written for a different problem. In 2005 the Commonwealth added sections 474.29A and 474.29B to the Criminal Code, through the Criminal Code Amendment (Suicide Related Material Offences) Act, to stop people using the internet to counsel or promote suicide. The target was the pro-suicide websites and forums of the early 2000s (Parliamentary Library). They make it a crime to use a "carriage service" — a phone line, a mobile, email, a video call, the internet — to transmit or make available material that counsels or incites suicide.

When the states began legalising voluntary assisted dying (Victoria first, with a law passed in 2017, and every other state and territory since), no one amended those offences. The Code doesn't define "suicide", and that single undefined word is where assisted dying and the 2005 law collide.

The case that settled it

In 2023, a Melbourne doctor, Nicholas Carr, asked the Federal Court to declare that a lawful assisted-dying death is not "suicide" for the purposes of the Criminal Code, so that doctors could use telehealth. In November 2023, Justice Abraham decided the opposite. In Carr v Attorney-General (Cth), the court read "suicide" in its ordinary sense — the intentional taking of one's own life — and declared that it "does apply to the ending of a person's life in accordance with" a state assisted-dying law (Federal Court).

The ruling went further than a definition. The court found a direct inconsistency between the Commonwealth offences and Victoria's assisted-dying Act, because the state law authorises doctors to give information through carriage services that the Code prohibits. Under section 109 of the Constitution, where a state and a Commonwealth law conflict, the Commonwealth prevails, so the state law is "inoperative to the extent of the inconsistency". Wherever a state scheme lets a doctor discuss or facilitate assisted dying electronically, the Commonwealth ban overrides it.

What this means in practice

A carriage service is almost any electronic communication, so the reach is wide. A doctor assessing a patient’s eligibility, talking it through with them, or emailing a prescription can’t safely do any of it by phone, video call or email. And the ban isn’t confined to doctors: on its face the same sections can reach a patient or a family member who sends or receives that material, not only the doctor (though the offence requires an intention to counsel or promote a suicide, which an ordinary patient or family exchange won’t meet). Each offence carries a fine of 1,000 penalty units (current value around $364,000) and because one consultation can involve several communications, the exposure stacks up.

The effect falls hardest on the people least able to travel. A terminally ill patient in a regional town has to see the assessing doctor in person, or wait for the doctor to travel to them, for conversations any other medical consultation could hold by telehealth. Western Australia and Tasmania wrote telehealth into their own assisted-dying laws, but after Carr the Commonwealth offence overrides those provisions too.

Why it hasn't been fixed

Everyone who wants the ban lifted agrees the fix is federal: amend the Criminal Code so the offences don't catch lawful, state-authorised assisted dying. Getting there is the problem, because the 2005 offences still serve their original purpose of preventing the online promotion of suicide, and any carve-out for assisted dying has to avoid weakening that protection.

Independent MP Kate Chaney tried to revive her private member's bill in the House of Representatives on 11 August 2026; the House shut the debate down 74 votes to 12, with both Labor and the Coalition opposed and Health Minister Mark Butler saying Labor would not support it (The Weekly Source). Two days later, Greens senator Sarah Hanson-Young introduced the Criminal Code Amendment (Equal Access to Voluntary Assisted Dying) Bill 2026 in the Senate, which hasn't progressed (Australian Greens). The Prime Minister, who supports assisted dying, opposes delivering it by telehealth (The Medical Republic). The letter from five health ministers — Victoria, South Australia, Tasmania, Western Australia and the ACT — is the latest attempt to move the Commonwealth.

Opponents make two kinds of argument. Some treat it as a drafting problem: that an exemption has to be written to fit each state's different scheme. Others oppose assisted dying itself, a position held across the churches and by the Australian Christian Lobby, and the telehealth ban's practical effect is to make the service harder to reach. Reform divides parliament on the same lines assisted dying itself always has.

Where this connects

The telehealth ban runs alongside the other church-state argument in health this spring: who can reach lawful care from a regional address. When a Catholic operator takes over a region's private hospitals and withdraws assisted dying, and a Commonwealth law stops a country patient discussing it by phone, the result from the patient's side is the same: the service is lawful but out of reach. One is a religious operator's choice and the other a drafting accident no one has fixed, but both leave rural and remote patients travelling for what others can get locally and easily.

The bottom line

A law written to stop strangers pushing vulnerable people toward suicide online now stops a dying person from talking to their own doctor about a lawful healthcare choice. The courts have settled what the law says; only the Commonwealth parliament can change it, and that's where it is stuck.