Posted 03/08/2023 by Leah Ferris
Following the commencement of the Restoring Territory Rights Act 2022, all jurisdictions now have the power to enact voluntary assisted dying (VAD) schemes, with the majority having done so.
However, it is currently unclear whether VAD, as authorised by a state/territory law, constitutes ‘suicide’ within the meaning of the carriage service offences contained in the Commonwealth Criminal Code. This has led to state governments advocating for the Criminal Code to be amended to clarify that the restrictions do not apply to VAD schemes, and legal action in the Federal Court of Australia seeking to clarify whether or not the carriage service offences apply to state VAD legislation.
Commonwealth carriage service offences
Sections 474.29A and 474.29B of the Commonwealth Criminal Code (contained in Schedule 1 of the Criminal Code Act 1995) make it an offence to use a ‘carriage service’ (such as a telephone, videoconference, email or other forms of electronic communication) to publish or distribute material that counsels or incites committing or attempting to commit suicide.
These provisions were inserted into the Criminal Code via the Criminal Code Amendment (Suicide Related Material Offences) Act 2005. In introducing the Criminal Code Amendment (Suicide Related Material Offences) Bill 2005, the then Attorney-General, Philip Ruddock, argued that the provisions were ‘to protect vulnerable individuals from people who use the internet with destructive intent to counsel or incite others to take their own lives’.
VAD schemes
In recent years, all the states have passed laws allowing for VAD. Following the passage of the Restoring Territory Rights Act 2022 by the Federal Parliament, the ACT Government has announced its intention to introduce VAD legislation in the second half of 2023. Each of the state/territory legislation outlines the eligibility criteria and the process to access VAD.
As explained in a recent Medical Journal of Australia article, the state governments have taken different approaches to the use of telehealth services as part of the VAD process. While the provisions in the Western Australian and Tasmanian legislation ‘expressly permit telehealth for some voluntary assisted dying consultations, provided audio-visual means are used where the practitioner and patient hear and see each other’ (p. 406), other jurisdictions have taken a less clear approach.
Do the provisions in the Commonwealth Criminal Code restrict the use of telehealth services for VAD?
The term ‘suicide’ is not defined in the Criminal Code. The Explanatory Memorandum to the Bill also does not define ‘suicide’, though the Attorney-General’s second reading speech suggests that the provisions of the Bill are intended to ‘criminalise the use of the internet to encourage others to take their own lives’.
It falls to dictionary definitions to determine its meaning, with the Macquarie Dictionary defining suicide [subscription required] as ‘the intentional taking of one’s own life’. Legal academics have also noted that ‘a court has never ruled on whether voluntary assisted dying meets the legal meaning of “suicide” under the Code’ and state laws ‘cannot inform the interpretation of Commonwealth statutes’ (pp. 406–407).
The Queensland Law Reform Commission (QLRC) considered this issue as part of its inquiry into the legal framework for VAD in Queensland. In its 2021 report, it acknowledged that ‘it is unsettled whether voluntary assisted dying, authorised by a state law, constitutes “suicide” within the meaning of the Commonwealth carriage service offences’ (p. 638). While the QLRC was of the view that the Commonwealth offences were never intended to prevent voluntary assisted dying as authorised by the state, other experts had a different view (pp. 635; 641). This has led to ‘disagreement about whether and when health professionals who use a carriage service to discuss voluntary assisted dying will contravene these laws’ (p. 406).
Requests to amend the Criminal Code
In 2021, it was reported that the Queensland Government had written to the Commonwealth Government requesting amendments to sections 474.29A and 474.29B of the Commonwealth Criminal Code as they relate to using a carriage service for suicide-related material. However, at the time, a spokesperson for the then Attorney-General, Michaelia Cash, stated that the Commonwealth had no plans to amend these offences.
In July 2022, it was reported that the current Attorney-General, Mark Dreyfus, ‘is considering changing the law to allow doctors to give phone and telehealth advice to patients about voluntary assisted dying, after pressure from the Queensland government’. The issue was discussed at a recent meeting of the Standing Council of Attorneys-General (SCAG), where the Attorney-General was reported as stating that the ‘main impediment’ to removing the restrictions ‘was crafting amendments to suit the various state VAD systems’.
In an article on this issue, legal academics have previously noted that ‘An alternative, although suboptimal, is for the Commonwealth Director of Public Prosecutions to issue guidelines barring prosecution of individuals acting lawfully under state frameworks’ (p. [6]).
Application to the Federal Court regarding the carriage service restrictions
On 3 August 2022, it was reported that a Melbourne doctor, Nicholas Carr, ‘had pursued legal action in the Federal Court to clarify the definition of suicide in the Commonwealth Criminal Code 1995’. Specifically, Dr Carr is seeking a decision as to whether or not the carriage service offences apply to state VAD legislation. According to the Commonwealth Courts Portal, the matter has been listed for hearing on 16 October 2023.
On 14 April 2023, the Commonwealth Attorney-General lodged notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 with respect to Dr Carr’s application. Such a notice ensures that all 9 of the attorneys-general have been notified of the matter and provides them with the opportunity to intervene in the proceedings (noting that the Commonwealth Attorney-General is the respondent in the proceedings commenced by Dr Carr).
On 14 July 2023, it was reported that the Commonwealth Attorney-General’s submissions to the Federal Court (which were filed on 14 April 2023) argue that the definition of ‘suicide’ in the Criminal Code would encompass a person taking their own life under Victoria’s VAD legislation.