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End of Life Choice Bill NZBORA report released

10 August 2017

Attorney-General Christopher Finlayson QC has released a report under the New Zealand Bill of Rights Act 1990 (NZBORA) on the End of Life Choice Bill.

He says the bill, a member's bill in the name of ACT MP David Seymour, appears to be inconsistent with section 19 (freedom from discrimination) in respect of age and cannot be justified under section 5 of the NZBORA.

"I have also considered the consistency of the Bill with sections 8 (right not to be deprived [of] life), 13 (freedom of conscience), and 14 (freedom of expression) and have concluded the Bill is consistent with those rights and freedoms," the report says.

The report says the eligibility criteria in the bill include the requirement that the person be aged 18 years or over.

"This prima facie limits the right to freedom from discrimination on the basis of age in respect of 16 and 17 year-olds. Put another way, 16 and 17 year-olds are disadvantaged vis-à-vis those aged 18 and over because they are ineligible for assisted dying."

It says the objective of the requirement that the person be aged 18 or over appears to be to ensure that the person is mature enough to understand their prognosis and the nature and consequences of assisted dying. "This objective is sufficiently important to justify some limitation on the right to freedom from discrimination on the basis of age".

Mr Finlayson outlines a number of reasons why he does not think there is a rational connection between the objective of ensuring that the person is sufficiently mature to understand their prognosis and the nature and consequences of assisted dying and the limit (restricting eligibility to those aged 18 or over).

He concludes that the limitation cannot be justified under section 5 because it is not rationally connected to the objective of ensuring that the person is competent to make the decision to end their life - there being no evidence that 18 is a suitable or necessary proxy for competence.

"The Bill could be made compliant with section 19 by reducing the age of eligibility to 16, or by removing the age criterion altogether and relying on the other criteria and safeguards to ensure competence," he says.

Last updated on the 10th August 2017