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:
-
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.