NSW vs Queensland Advance Care Directives: Common Law vs Statutory

The Fundamental Difference: Common Law vs Statute

New South Wales is the only Australian state or territory without standalone statutory legislation governing Advance Care Directives. Every other jurisdiction — Queensland, Victoria, South Australia, Western Australia, Tasmania, the ACT, and the Northern Territory — has enacted specific legislation that creates a statutory framework for advance healthcare planning.

In NSW, your Advance Care Directive derives its authority from common law. That means court precedent, not a parliament-passed Act, determines whether your directive is valid and enforceable. The landmark case is Hunter and New England Area Health Service v A [2009] NSWSC 761, where the NSW Supreme Court confirmed that a common law directive completed by a capable adult with clear, specific treatment instructions is legally binding on treating clinicians.

Queensland sits at the opposite end of the spectrum. The Powers of Attorney Act 1998 (Qld) provides a statutory Advance Health Directive with prescribed forms, mandatory witnessing requirements, and explicit legal protections for healthcare workers who follow the directive in good faith.

What NSW's Common Law Framework Means in Practice

No mandatory form. NSW has no government-prescribed form you must use. You can write your ACD on a piece of paper, type it in a Word document, or use the NSW Health recommended template booklet. As long as you had capacity when you created it, and the instructions are clear and specific, the document is legally valid.

This flexibility is simultaneously a strength and a vulnerability. You have complete freedom to tailor your instructions to your exact medical circumstances. But you also bear the full burden of drafting something that will withstand clinical scrutiny in an emergency — without the guardrails of a statutory template designed to meet legal requirements by default.

No mandatory witnesses. A common law ACD in NSW technically requires no witnesses. You can sign it alone at your kitchen table, and it is legally valid. However, an unwitnessed directive is easier to challenge — on grounds of capacity, voluntariness, or authenticity. Having a solicitor or doctor witness your ACD significantly strengthens its evidentiary weight.

No statutory safe harbour. In Queensland, a healthcare worker who follows a valid statutory Advance Health Directive in good faith is explicitly protected from civil and criminal liability by the legislation. In NSW, this protection exists at common law but is less explicitly codified, which can make some clinicians more cautious about following a home-drafted directive.

Queensland's Statutory System

Queensland's approach under the Powers of Attorney Act 1998 provides:

A prescribed form. The Advance Health Directive must be in the approved form published by the Queensland government. This standardisation means clinicians instantly recognise the document and know how to interpret it.

Mandatory witnessing. The directive must be witnessed by an eligible witness — either a Justice of the Peace, Commissioner for Declarations, notary public, or solicitor. The witness must certify that the person signing appeared to have capacity and signed voluntarily.

Statutory enforceability. Sections 101 and 103 of the Act provide liability protections in different situations: a person acting in accordance with an Advance Health Directive is not liable beyond what would apply if the adult had consented, and a health provider may be protected when it has reasonable grounds to regard a direction as uncertain, inconsistent with good medical practice, or inappropriate because circumstances have changed. This gives clinicians clear legal comfort to follow the document.

Integration with Enduring Power of Attorney. In Queensland, you can appoint an attorney for personal (including health) matters and financial matters in the same Enduring Power of Attorney document. NSW forces you to use separate instruments — an Enduring Guardian under the Guardianship Act 1987 for personal and health matters, and an Enduring Power of Attorney under the Powers of Attorney Act 2003 for financial matters.

Cross-Border Scenarios

If you live in NSW but travel frequently to Queensland — or if you split your time between the two states — the question of which directive applies becomes significant.

The place where you receive treatment can affect which legal and clinical framework is applied, so cross-border cases should not be treated as routine. If you are hospitalised in Brisbane or collapse in Sydney, confirm with the treating team which document and rules they will apply.

The two states have different rules for recognising interstate documents. Queensland's legislation preserves common-law recognition and provides a statutory pathway for certain prescribed interstate documents, so do not assume that either document will be treated exactly like a locally made instrument in every situation.

The practical solution: if you spend significant time in both states, obtain advice about documents for both frameworks. An NSW common law ACD plus a Queensland statutory Advance Health Directive can reduce cross-border uncertainty, but no document combination guarantees that every clinical situation will be covered.

Which System Is Better?

Neither is categorically superior — they solve different problems.

Queensland's statutory system offers clarity, standardisation, and explicit legal protections. It is harder to get wrong because the form guides you through the required elements. But it is also more rigid — you are constrained by the form's structure and cannot easily add nuanced, diagnosis-specific instructions beyond the checkboxes.

NSW's common law system offers maximum flexibility. You can draft instructions as detailed and specific as your clinical situation demands — including clauses about organ donation ventilation carve-outs, palliative sedation preferences, or specific treatment protocols for particular diagnoses. But that freedom means the quality of your directive depends entirely on how well you draft it. Vague language that would be harmless in a Queensland tick-box form may leave an NSW common law directive unenforceable or inapplicable.

For NSW residents, the takeaway is that drafting precision matters more here than in any other Australian state. Your directive needs clinical-grade language that leaves no ambiguity about what you are refusing and under what circumstances.

The New South Wales Advance Directive & Living Will Kit provides NSW-specific templates with the clinical precision that common law demands — treatment refusal clauses, clinical scenario frameworks, and the exact witnessing and distribution steps that give your directive maximum enforceability under NSW's unique legal framework.

See more New South Wales guides →