Criminal
Code Amendment (Suicide Related Material Offences) Bill 2005
Date Introduced:
10 March 2005
House:
House of Representatives
Portfolio:
Justice and Customs
Commencement:
Sections 1-3 commence on Royal Assent. The operative
sections of the Bill, contained in Schedule 1, will commence six
months after Royal Assent.
The Bill introduces new offences of using a 'carriage
service'(1) (the internet, emails, mobile and fixed telephones,
faxes, radio and TV) for the purposes of counselling or inciting suicide,
or promoting or providing instruction on a particular method of suicide.
Possession or supply etc of material that is intended to be used for
such offences is also itself an offence.
Background
The suicide-related offences created by this Bill were
originally contained in the Crimes Legislation Amendment (Telecommunications
Offences and other Measures) Bill 2004.(2) That ‘ominbus’
Bill, introduced on June 24 2004, contained a whole range of offences,
including offences related to child pornography and internet ‘grooming’
of minors for sexual purposes.
The suicide-related offences were subsequently excised
from the omnibus Bill and reintroduced without change on 4 August in
the Criminal Code Amendment (Suicide Related Material Offences) Bill
2004. That Bill was briefly debated in the House of Representatives
on 11 August 2004. The ALP supported the Bill, although it expressed
concerns about whether it might criminalise forms of debate on law reform
regarding voluntary euthanasia. Accordingly, the ALP foreshadowed that
they would move an amendment in the Senate ‘which provides the offence
does not apply to the extent that it would infringe the implied constitutional
freedom of political communication’.(3) The then Greens member
for Cunningham, Michael Organ, opposed the Bill.(4) The Bill
did not reach the Senate before the proroguing of Parliament on 31 August
2004.
The Commonwealth appears to have full constitutional
power to make laws in relation to electronic telecommunications, including
the internet. Under section 51(5) of the Constitution it has power to
legislate with respect to 'postal, telegraphic, telephonic and other
like services'. Even though radio and television were not contemplated
at the time the Constitution was drafted, both those mediums have been
held by the High Court to be 'other like services' within the scope
of section 51(5).(5) In 1935 the High Court stated that the
common characteristic of postal, telegraphic and telephonic services
was that:
They are…communication services…If a new form of communication
should be discovered, it too might be made the subject of legislation
as a 'like service'.(6)
The court also rejected the notion that section 51(5)
was restricted to services for communication between individuals.(7)
So creating offences relating to use of telephones, the internet and
other 'carriage services' is plainly within Commonwealth power.
However, if a telecommunications network or 'carriage
service' is not used for a particular activity, and provided
the person carrying out the activity is not otherwise within a head
of power in the Constitution (e.g. a corporation, trading interstate,
or within the scope of a relevant international agreement), the Commonwealth
will have no constitutional power to regulate the activity, let alone
specify it as a criminal offence. For example, a person borrowing a
book from library to obtain suicide related material in physical form
could not validly be subject to a Commonwealth law. Any offence in such
circumstances would be a matter for State law.
While suicide or attempted suicide is no longer an
offence in Australia, assisting or encouraging another person to commit
suicide is an offence in all States and Territories. In addition, to
assist or encourage another person to attempt to commit suicide
is an offence in the Australian Capital Territory, the Northern Territory,
New South Wales, South Australia and Victoria. Further, except in Victoria,
a person can be prosecuted for 'attempt' if they have unsuccessfully
assisted or encouraged suicide. Murder or manslaughter may also be relevant,
on the basis that the assistance or encouragement caused the death of
a person who committed suicide. However the deliberate taking of one's
own life would normally be an 'intervening cause' which relieves the
other person of responsibility.(8) The offence of 'assisting
suicide' under the New South Wales Crimes Act 1900 is expressed
in the following terms:
31C Aiding etc suicide
(1) A person who aids or abets the suicide or attempted
suicide of another person shall be liable to imprisonment for 10 years.
(2) Where:
(a) a person incites or counsels another person to
commit suicide, and
(b) that other person commits, or attempts to commit,
suicide as a consequence of that incitement or counsel,
the first mentioned person shall be liable to imprisonment
for 5 years.
The Bill and the implied freedom of political
communication
The Criminal Code Amendment (Suicide Related Material
Offences) Bill 2004 was referred to the Senate Legal and Constitutional
Legislation Committee. Whilst the Committee discontinued the inquiry
due to the proroguing of Parliament on 31 August 2004, a number of submissions
were received before this. One of the submissions was from the Gilbert
and Tobin Centre of Public Law at the University of New South Wales.
In part, the submission stated:(9)
It has been suggested that material such as communication
about law reform on voluntary euthanasia would not be criminalised
by the legislation. However, the drafting of the bill does not guarantee
compatibility with the Constitution. The Bill requires that, in order
for an offence to be made out, the accused must have an .intent. that
the material incite suicide. Section 5.2 of the Commonwealth Criminal
Code defines intention ‘with respect to a result’ as being satisfied
where a person ‘means to bring [that result] about or is aware that
it will occur in the ordinary course of events’. Once information
is posted on the internet, it is arguably within the awareness of
the individual posting it that the information may be accessed by
a person considering committing suicide. If the content is such that
it could be considered as ‘directly or indirectly’ counselling
or inciting suicide - despite a primary focus on law reform - an offence
may be committed even if there is, in fact, no suicide or attempt
at suicide. The possibility thus exists that the amendment could encompass
debate about law reform.
Such communication might also be protected by the implied
freedom of political communication derived by the High Court from the
Constitution in cases such as Australian Capital Television Pty Ltd
v Commonwealth (1992) 177 CLR 106. To the extent that this is the
case, the legislation could be struck down as unconstitutional.
A way of countering this possibility would be to insert
a savings clause into the legislation to indicate that it does not apply
to the extent that it limits political communication. A model for this
is provided by section 34VAA(12) of the Australian Security Intelligence
Organisation Act 1979 (Cth), which states:
This section does not apply to the extent (if any)
that it would infringe any constitutional doctrine of implied freedom
of political communication.
A similar provision can be found in other Acts, including
in section 73 of the Olympic Insignia Protection Act 1987 (Cth)
and section 44 of the Spam Act 2003 (Cth).
Another option would be to limit the definition of what
is proscribed to exclude political communication in the same way as
does section 9 of the Tobacco Advertising Prohibition Act 1992 (Cth).
Section 9 in defining ‘tobacco advertisement’ states:
Exception-political discourse
(1A) To remove any doubt, it is declared that if:
(a) something (the advertisement) does not promote,
and is not intended to promote, any particular tobacco product or
particular range of tobacco products; and
(b) the advertisement does not promote, and is not
intended to promote, smoking; and
(c) the advertisement relates solely to government
or political matters;
the advertisement is not a tobacco advertisement for
the purposes of this Act
One or other of the above options would seem a sensible
measure to protect the Bill from potential unconstitutionality.
The Bill has been altered to take account of the type
of concerns expressed above, although the form of the amendments are
different from the suggestions contained in the submission to the Committee.
The amendments are discussed in the main provisions section of this
Digest.
Schedule 1 proposes three offences be inserted
in the Criminal Code Act 1995 (the Criminal Code).
There are three elements to the new subsection 474.29A(1)
offence, all of which must be met. They are:
The new subsection 474.29A(2) offence essentially
has similar elements, except the material must promote, or provide instructions
on, a particular method of committing suicide. The maximum penalty for
both offences is 1,000 penalty units ($110,000) for a person or five
times that for a corporation.
Due to the application of section 5.6 of the Criminal
Code, a person need only be ‘reckless’ regarding the second element
above (ie whether material directly or indirectly counsels or incites
suicide or promotes or provides instruction of a particular method of
committing suicide).(10) Neither the second reading speech
nor the Explanatory Memorandum provides guidance on the situations in
which material would be considered to ‘indirectly’ promote or provide
instruction.
The issue of ‘intention’ in the third dot point has
prompted considerable discussion over the possible scope of the offences.
According to the Gilbert and Tobin submission reproduced above, the
Criminal Code definition of ‘intention’ might cause problems because,
should a person put material on the internet, it might be difficult
for them to refute the proposition that they were ‘aware’ that it might
be accessed by someone who would then use it to counsel suicide etc.
To avoid this, a defence has been added that was not contained in the
Criminal Code Amendment (Suicide Related Material Offences) Bill 2004.
New subsections 474.29A(3)-(4) provide that if a carriage service
is used to engage either in public discussion or advocacy of law reform
with respect to euthanasia or suicide, no offence is committed if the
person does not intend the material to be used to counsel suicide
etc.
It is arguable that there
is some uncertainty over what constitutes ‘material’ in the above offences.
The term is defined in section 473.1 of the Criminal Code as including
‘material in any form, or combination of forms, capable of constituting
a communication.’ Does this include a verbal conversation? If so, a
private telephone conversation between two friends or relatives, in
which one ‘counsels or incites suicide’ or provides ‘instruction’ on
a particular method of suicide could come within the scope of the new
subsection 474.29A offences.
The Explanatory Memorandum notes that Customs Regulations
are also being amended to prohibit the import or export of documents
relating to construction or use of ‘suicide kits’.(11)
The third proposed offence in the Bill is contained
in new subsection 474.29B(1). Again, this has three elements that must
be met:
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the possession, control, production, supply or obtaining of material
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the material directly or indirectly counsels or incites suicide,
or promotes or provides instructions of a particular method of committing
suicide.
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the person in possession, control etc intends that it be used by
themselves or another in committing an offence against new section
474.29A
Note that under subsection 9.3(1) of the Criminal Code, a personally can
be criminally responsible for an offence even if they are ignorant of
other legislation that affects the operation of the offence. Thus the
fact a person did not know that certain actions would constitute an
offence under new section 474.29A would not alter their potential
criminal responsibility under new subsection 474.29B(1). Note
that under new subsection 474.29B(2), a person may still commit
an offence against subsection 474.29B(1), even if for some reason
it is impossible to commit a new section 474.29A offence.
New subsection 474.29B(1) also carries a maximum penalty of
1,000 penalty units ($110,000) for a person or five times that for a
corporation.
In relation to new subsection 474.29B(1),
the Explanatory Memorandum comments:(12)
The proposed offence covers a broad range of preparatory
conduct undertaken with the intention to commit a primary offence.
As an example, the offence would apply to the possession or production
of paper leaflets providing instruction on a particular method of
suicide, provided the person engaging in this conduct intended that
the information on the leaflets also be made available on the Internet
for the purpose that it be used by another person to commit suicide.
Proposed sections 473.2 and 473.3 in the Crimes Legislation Amendment
(Telecommunications Offences and Other Measures) Bill (no.2) 2004
are intended to outline situations that are considered ‘possession
or control of material in the form of data’ or ‘producing, supplying
or obtaining material in the form of data’ for the purposes of this
proposed offence.
Under the Bill, there would be situations were no offence
occurs even where a carriage service was used to obtain suicide-related
material that was later used to counsel or assist suicide. For example,
if a person downloaded material via the internet only for the purposes
of academic research, but later provided it to a terminally ill friend
for the purposes of assisting their suicide, the first person would
not have the necessary intention to commit a new section 474.29A
offence. However, depending on the circumstances, the later action
may be an offence under State or Territory law.
Concluding Comments
In some instances, the offences created by the Bill
go beyond equivalent offences under State law. For example, under section
31C of the NSW Crimes Act, a person must actually 'aid or abet' or 'incite
or counsel' another person to commit or attempt suicide. So, for example,
obtaining information in physical form from a library, perhaps with
the intention of passing it to a terminally ill relative, would not
be an offence under NSW law until actual assistance or incitement occurs
(and suicide or an attempt results). Under new provision 474.29B(1),
however, obtaining exactly the same material from the internet with
the intention of passing it to the terminally ill relative for their
use will be an offence punishable by a fine of up to $110 000.
The Bill also does not require any attempt to commit
suicide to occur in order for an offence to occur. Certainly in the
case where a person places information or an opinion on the internet
where it may have very wide distribution and unpredictable consequences
this is appropriate. Whether this is always so where material is passed
only between two individuals is a matter that Parliament may wish to
consider.
The main provision sections of this Digest also raised
questions about whether the Bill would apply to private telephone conversations
and the like. In addition, it also highlighted the lack of guidance
on the situations in which material would be considered to ‘indirectly’
promote or provide instruction, an issue that may be crucial to determining
whether an offence has occurred.
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Formally, a ‘carriage service’ is defined in section 7 of the Telecommunications
Act 1997 as means a service for carrying communications by means
of guided and/or unguided electromagnetic energy.
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Parts of this Digest are drawn from the Digest for that Bill.
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Mr Robert McClelland MP, House of Representative Debates,
11 August p 32473.
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House of Representative Debates, 11 August p 32477.
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R v Brislan; Ex parte Williams (1935) 54 CLR
262 (radio); Jones v Commonwealth (1965) 112 CLR 206 (television).
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54 CLR 262 at 280.
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ibid. at 282-3.
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This paragraph based on Lawbook Company, Laws of Australia,
Chapter 8, Related Offences Part B, Suicide, 'Assisting Suicide
Attempt' [192].
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See http://www.aph.gov.au/senate/committee/legcon_ctte/completed_inquiries/2002-04/suicide/submissions/sub21.pdf
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That is, they need not affirmatively know that the material
counsels suicide etc. Recklessness is defined in the Criminal Code
as that ‘he or she is aware of a substantial risk that the circumstance
exists or will exist and having regard to the circumstances known
to him or her, it is unjustifiable to take the risk’.
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At p. 3.
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At p. 4.
This paper has been prepared to support the work of the Australian Parliament
using information available at the time of production. The views expressed
do not reflect an official position of the Information and Research Service,
nor do they constitute professional legal opinion.
Published by the Parliamentary Library, 2005.
