• The Tribunal is satisfied that there is no process to grant an exemption from the duration of residence criterion in the VAD Act;
• The Tribunal is also satisfied that there is no discretion under the VAD Act for either the initial decision-maker or the Tribunal to reduce the residence timeframe period set out in s 26 (1) of the VAD Act;
• The Tribunal is satisfied that the applicant has not been ordinarily resident in South Australia for at least 12 months at the time of making a first request under the VAD Act;
• Having granted leave to the applicant for the application for review to be withdrawn, the Tribunal orders that the proceedings be dismissed.

Administrative Review - Voluntary Assisted Dying Act 2021 - Review of a decision of the coordinating medical practitioner - Eligibility criteria - Not ordinarily resident in South Australia for at least 12 months

South Australian Civil and Administrative Tribunal Act 2013 s 47(3)

Voluntary Assisted Dying Act 2021 ss 26, 38, 85, 86

This is an edited version of the Tribunal's decision pursuant to s 60 of the South Australian Civil and Administrative Tribunal Act 2013. The parties and participants of the proceedings have been de-identified in accordance with the Tribunal's anonymisation policy. Other facts and details that may lead to the identification of any person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

Dismissing on withdrawal of proceedings by applicant

Made under the South Australian Civil and Administrative Tribunal Act 2013 s 47(3)

1. This is an application for the review of a decision made by the coordinating medical practitioner under the Voluntary Assisted Dying Act 2021 (the VAD Act) that the applicant, NMT, does not meet all the eligibility criteria for access to voluntary assisted dying under the Act. The Tribunal has jurisdiction to consider the review under s 85 of the VAD Act.
2. The Tribunal notified the coordinating medical practitioner for the person (the first respondent), the Chief Executive of the Department for Health and Wellbeing (the second respondent - joined as a party by the Tribunal) and the Voluntary Assisted Dying Review Board about the application, as required under s 86 of the VAD Act. The Tribunal is also required to notify those entities about any order or determination by the Tribunal.
3. The decision under review was made by the coordinating medical practitioner, Dr Peter Allcroft, pursuant to s 38 of the VAD Act, on 14 April 2025.
4. The relevant aspect of the decision under review is the criterion concerning residence duration under s 26(1)(b)(iii) of the VAD Act which states:

the person must have been ordinarily resident in South Australia for at least 12 months at the time of making a first request (for access to voluntary assisted dying).

5. The grounds of review state that the applicant is seeking a review of a decision not to grant him access to voluntary assisted dying and to 'review the timeframe of 12 months residing in SA to be able to access VAD'.
6. The application for review was filed on 16 April 2025 and was initially listed for an urgent directions hearing to clarify the basis of the application, to deal with any procedural issues arising, and to discuss referring the matter to a full hearing.
7. At the first directions hearing counsel for the second respondent, Ms M Cattonar, submitted that the terms of the statute are clear and unambiguous that the duration of residency requirement was mandatory. I indicated that I was satisfied that that submission was correct as a matter of statutory interpretation.
8. I am satisfied that there is no process to grant an exemption from the duration of residence criterion in the VAD Act. I am also satisfied that there is no discretion under the VAD Act for either the initial decision-maker or the Tribunal to reduce the residence timeframe period set out in s 26 (1) of the VAD Act.
9. The Tribunal must act within the terms of the relevant legislation and has no greater power than that vested in the initial decision-maker.
10. Accordingly, the application can only be dealt with as a review of the factual findings that the applicant has not been "ordinarily resident in South Australia for at least 12 months" at the time of making a first request under the VAD Act.
11. The applicant (who was unrepresented) clarified at the directions hearing that there is no dispute on the facts; the applicant made a first request to access voluntary assisted dying on 15 April 2025. The coordinating medical practitioner found that the applicant has only been ordinarily resident in SA since November 2024 (having moved back to SA from the Northern Territory in November last year to access specialist treatment for a medical condition). There is no dispute that that is a period of less than 12 months at the time of making a first request under the VAD Act.
12. At the first hearing the applicant indicated (through his partner who appeared as his support person) that he was born in South Australia and educated in SA and 'considered himself to be a South Australian resident' as he had previously resided in SA for a significant period of time, before moving to reside in the Northern Territory for a number of years. On the application form the applicant states that "SA has always been considered his home and place of origin where his roots are". However, the applicant conceded at the hearing that, as a matter of fact, he has only been recently living in SA for less than the required 12 months since first trying to access voluntary assisted dying.
13. Unfortunately, the applicant's state of mind in this respect is not sufficient to satisfy the strict duration of residency requirement in s 26 of the VAD Act.
14. Accordingly, I am satisfied that the applicant has not been ordinarily resident in South Australia for at least 12 months at the time of making a first request under the VAD Act.
15. In those circumstances, I indicated that, regrettably, there appeared to be no utility in the application for review. The matter was adjourned to enable the applicant to seek legal advice to assess whether he wished to pursue the matter.
16. I note that, pursuant to s 87 VAD Act, the assessment process under the VAD Act is suspended pending the outcome of the Tribunal process.
17. I made orders at the first directions hearing under s 60 of the SACAT Act for the proceedings to be heard in private and for the contents of the documents not to be published, save that an anonymised copy of the decision may be published by the Tribunal.
18. The applicant has now advised in writing that he wishes to discontinue this application. The Tribunal grants leave for the proceedings to be discontinued.
19. The Tribunal will notify the coordinating medical practitioner for the person, the Chief Executive of the Department for Health and Wellbeing and the Voluntary Assisted Dying Review Board as required under the VAD Act.

1. Having granted leave for the application for review to be withdrawn, the Tribunal orders that the proceedings be dismissed.