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Chapter 2 - Overview of the bill
2.1 This chapter briefly outlines the main provisions of
the Criminal Code Amendment (Suicide Related Material Offences) Bill 2005 (the Bill).
Background
2.2 Suicide or attempted suicide is no longer an offence in
Australia. However
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, 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.[1]
Significant provisions of the Bill
2.3 The Bill will insert three
new offences into the Criminal Code dealing with use of a carriage service to
access, transmit or otherwise make available suicide-related material; and
possession, production, supplying or obtaining suicide-related material for use
through a carriage service.[2] The
proposed offences are specifically aimed at use of the Internet, email and
other online applications and are intended to cover the range of activities
that a person can engage in when using these.[3]
2.4 Proposed subsection 474.29A(1) will make it an offence for
a person to
use a telecommunications/carriage service to access, transmit, make available,
publish or distribute material that directly or indirectly counsels or incites
suicide, with the intention that they or another person will use the material
to counsel or incite suicide.
2.5 Proposed subsection 474.29A(2) will make it an offence to
use a telecommunications/carriage service to directly or indirectly promote or
provide instruction on a particular method of committing suicide, with the
intention that the material be used to promote or provide instruction on that
method of suicide.[4]
2.6 Due to the application of section 5.6 of the Criminal Code,
the fault element of 'recklessness' applies to the element of the offences
relating to whether the material in question directly or indirectly counsels or
incites suicide or promotes or provides instruction of a particular method of
committing suicide.[5]
2.7 The term 'material' 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'.
2.8 According to the Explanatory Memorandum (EM) to the Bill,
the offence under proposed section 474.29A is not intended to capture Internet
material that advocates or debates law reform on euthanasia and/or suicide-related
issues. Similarly, the intention is that Internet material dealing with
suicide-related research and suicide prevention or support material will
generally not be caught by the offences. Therefore proposed subsections
474.29A(3) and (4) expressly state 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 or incite suicide, or to promote or provide instruction on a method
of committing suicide.[6]
2.9 The third proposed offence is contained in proposed
subsection 474.29B(1). An offence will be committed if a person possesses,
controls, produces, supplies or obtains suicide-related material with the
intention that the material be used by that person or another person to commit
an offence against proposed section 474.29A (which is described above).[7] This third proposed offence is intended
to cover a broad range of preparatory conduct undertaken with the intention to
commit a primary offence. Proposed subsection 474.29B(2) provides that a person
can be found guilty of an offence against proposed subsection 474.29B(1), even
if it is impossible to commit an offence under proposed section 474.29A (an
offence of attempt).
2.10 The maximum penalties for the proposed offences are
1000 penalty units, which is $110,000 for individuals or $550,000 for a body
corporate.[8]
2.11 The proposed offences are intended to complement the Customs (Prohibited Imports) Regulations
1956 and the Customs (Prohibited
Exports) Regulations 1958 (the Customs Regulations). These prohibit,
amongst other things, the physical importation and exportation of documents
that promote the use of a device designed or customised to be used by a person
to commit suicide (that is, a suicide kit), counsel or incite a person to
commit suicide using a suicide kit, or instruct a person how to commit suicide
using a suicide kit.[9]
2.12 Specific defences are not included in the Bill.
The EM states that this 'is because no-one should have a defence available to
them if they intend, in engaging in particular conduct, to, for example, incite
a person to commit suicide.'[10]
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