Chapter 3 - Key issues
3.1 Submissions to the inquiry were clearly divided between
those expressing support for the Bill and its policy
objectives, and those expressing strong opposition to it. However, the great
majority of submissions and witnesses objected to the Bill
in its entirety. This chapter discusses the key issues raised in the course of
the committee's inquiry, including:
-
the proposition that the Bill is required in
order to protect the 'vulnerable';
- arguments that the measures contained in the Bill are uncalled-for, misguided and
counterproductive;
- arguments in favour of the Bill and its policy
objectives;
- the extent to which the Bill will impact unduly
on free speech and on personal and private communications between individuals,
and access to information;
- concerns over terms and definitions used in the
Bill; and
- the Bill's inconsistency with the Customs
Regulations.
Policy justification of the Bill – to
protect the 'vulnerable'
3.2
The policy aim or objective behind the Bill
is to protect vulnerable people who may be suicidal or have suicidal
tendencies. As the Attorney-General argued in his Second Reading Speech:
There is a real need to protect vulnerable individuals from
people who use the internet with destructive intent to counsel or incite others
to take their own lives. The internet contains readily accessible sites and
chat rooms that positively advocate suicide and discourage individuals from
seeking psychiatric or other help. Many of these sites also provide explicit
instructions on methods of committing suicide. There have been instances where
internet chat rooms have been used by a person, or even a group of persons, to
urge another to commit suicide. Recent studies have shown that in some cases
such internet chat room discussions have led to a person attempting suicide,
and sometimes successfully. This research points to evidence that vulnerable
individuals were compelled so strongly by others to take their own lives that
they felt to back out or seek help would involve losing face. [11]
3.3
The Attorney-General's Department (the Department)
advised the committee that the Bill's purpose was:
1) to complement
Customs Regulations [that prohibit]...the import and export of suicide kits and
associated instructions.
After the introduction of the Customs Regulations, the Internet
was used to post information on how to make and use suicide kits in an effort
to circumvent the intention of these Customs offences. This Bill is
intended to criminalise this process.
2)
to proactively respond to media reports and research
studies which suggest that certain information about suicide on the Internet
may encourage suicidal behaviour.
Web sites that provide chat rooms or bulletin boards devoted to
discussion about suicide, in particular, have the potential to influence suicidal
behaviour.[12]
3.4
At the hearing, representatives from the Department
conceded that 'it is very clear that there was not a detailed scientific study
or an extensive research project' which had prompted the Bill.[13] Rather, the Bill
appears more a reaction in part to perceived community concern over the risks
posed by the Internet. This was borne out by other witnesses and submissions which
provided the committee with examples of websites and Internet chat rooms
containing detailed descriptions of methods of committing suicide that reportedly
have resulted in suicides or attempted suicides overseas.[14]
Arguments that the Bill is uncalled-for and
misguided
3.5
The committee also received considerable evidence to
the effect that the Bill was misguided and/or
that, in practice, it would not achieve its stated aim of protecting the
vulnerable.
3.6
It was argued that the Bill
was misdirected in that the Federal Government had merely sought to prohibit
access to information about suicide rather than address the underlying causes of
suicide. For example, the Law Society of New South Wales argued that the Bill
'will not operate to protect vulnerable people who are at risk of committing
suicide' because:
(t)he major factor leading to suicide is despair, which can be
triggered by tragedy such as personal despondency, loneliness, depression,
mental illness, family breakdown or death of a loved one, poverty,
unemployment, financial ruin, substance abuse or the chronic pain of a terminal
illness. People at risk, in particular young people, require far more
pro-active measures to address the causes of suicide and to help them rebuild
their lives.[15]
3.7
It was
also argued that the Bill
was misdirected in that the risk that the Internet, or material on the Internet,
posed to so-called vulnerable people has been overstated. For example,
the Atheist Foundation of Australia (the Atheist Foundation) argued that anecdotal
evidence – such as that put forward in support of the Bill
– is not enough to justify the enactment of criminal laws. Further, the Atheist
Foundation stated that its own 'investigations into the rationale behind the
proposed Bill have failed to find the necessary
evidence for its implementation'.[16]
3.8
Other submitters stressed that the premise of
the Bill in specifically targeting the Internet
was incorrect as the rate of suicide in Australia
has decreased since the Internet became publicly accessible in Australia
in 1994.[17] Electronic Frontiers Australia (EFA) submitted that the Bill
would not achieve any reduction of suicide rates in practice:
EFA considers it extremely unlikely that criminalising use of
the Internet to access, and/or make available, the subject material will make
the slightest difference to the incidence of suicide in Australia
and certainly not by the most common methods of hanging and motor vehicle
exhaust.[18]
3.9
Dr Philip Nitschke from Exit International made a similar argument:
The point that I would
keep coming back to is the fact that suicide rates have dropped in the very
same period that the internet has become more increasingly used. So in a sense
we seem to be complaining about or blaming the internet for something which has
got no relationship, or at least a very questionable relationship, with what is
a very positive prognostic trend which we have noticed in suicide rates amongst
the various age groups.[19]
3.10 Mr Kep Enderby QC from the Voluntary Euthanasia Society of New South Wales also
advised the committee that:
I disagree...that suicide
is a major problem in Australia, and that young people are especially prone
to suicide. That is just not correct. It is wrong. The opposite is true: it is
the elderly who are most attracted to the idea of suicide as an escape from the
inevitable problems and discomforts, and sometimes pain, of old age. I think I
can speak with some feeling, because I am about to enter my 80th year. I do not
regard myself as particularly vulnerable, as has often been expressed here by
earlier speakers about the elderly. The rate of suicide in Australia is only two per cent of all Australian
deaths, with by far the greatest majority of those suicides being voluntary
euthanasia type deaths.[20]
3.11
Similarly,
the West Australian Voluntary Euthanasia Society submitted that 'the largest
number of suicides in the country is among persons of over 75 and the largest
proportion of those die by hanging'.[21]
The Voluntary Euthanasia Society of Queensland made a similar point:
According to the
Australian Bureau of Statistics each week 3 persons over the age of 73 commit
suicide in the most horrendous ways possible, and all because they were unable
to source or were deprived of meaningful information and help.[22]
3.12
Others
also argued that the proposed prohibition on access to information would be
counterproductive and only compound the problem of suicide. Dr Nitschke from Exit International argued that:
One of the ways one
protects vulnerable individuals is to treat them with respect and to engage in
legitimate discussion with them. You do not respect a society or individuals
within that society by restricting them from information which you deem to be
adversely helpful to them. Our suggestion is the one that I referred to
earlier: when people are able to talk openly about this issue, their health
indices improve. They feel less anxious, less worried and they go on to live
longer lives. Happier people have access to good information and to sit around
and try to restrict access to information, acting as some form of judge about
what is deemed to be in their best interests, I feel is the wrong way for our
society to be heading.[23]
3.13
Mr Neil
Cook also argued that measures such as those
contained in the Bill will actually exacerbate
the suicide problem in Australia:
There are those who
will promote this legislation on the grounds of increased teenage suicide
statistics; however that is a weak and false premise upon which to base a case,
especially when such statistics should rightly be addressed by greater
collective societal involvement as opposed to legislative stop gaps such as
this Bill...There are other ways and means to address these issues. Legislation
outlawing the right of persons to seek their own exit from this life, with
grace and dignity, will simply drive the proponents underground. The practice
will not cease. It will simply become more difficult, for those who so desire,
to achieve creating more pain and misery for those people, and ultimately
placing a wholly unnecessary burden on the rest of society.[24]
3.14
The New South Wales Council of Civil Liberties
suggested that, if the purpose of the Bill is to
protect the 'vulnerable', then that objective would be better achieved through
appropriate regulation, not criminalisation:
By regulating who has access to this information, it might be
possible to identify vulnerable individuals and ensure they receive appropriate
counselling.[25]
3.15
And further:
Regulation will also be a useful mechanism for ensuring that
people who are medically certified as terminally-ill can lawfully access the
information. Regulation will also help ensure that only people over a certain
age can access the information, to inform themselves appropriately.[26]
3.16
Ms Irene Graham from EFA told the committee that she was unsure who the 'vulnerable'
individuals to be protected by the Bill actually are:
I certainly hope that
the word ‘vulnerable’ is referring to, for example, depressed teenagers, as
distinct from adults wishing to make a rational decision about their end of
life options... [O]ur view, as a general civil liberties position, would be
that adults should have rights to access the kind of information and
counselling that this bill seeks to prohibit. So if the vulnerable individuals
that the bill is referring to are terminally ill people and older people that
are wanting to know information, we do not consider that they should
necessarily be considered to be vulnerable and so be prevented from being able
to obtain information. As far as whether it will actually achieve the objective
of protecting whomever the vulnerable people are, we do not believe it is going
to do that either because we do not see how this Australian legislation can do
anything about the information on web sites all over the world.[27]
3.17
Critics of the Bill made
much of the fact that it would not, and could not, prevent Australians from
accessing suicide related material or chat rooms on websites hosted outside Australia.[28] This, it is argued, will render the Bill
meaningless. Ms Irene
Graham from EFA told the committee that:
[The Bill] will not have any effect on international
communication except to the extent of criminalising Australians that are
participating in any such international communication. This bill will not stop
the amount of information that is on the internet on overseas sites. To the
best of my knowledge, there is no way that any ISP can block access to material
on international sites short of the development of the great Australian
firewall, which was discussed back in 1999 and 2000 with regard to the issue of
blocking access to pornography. Nothing has changed since 1999-2000. It is
still simply impractical to do that.[29]
3.18
The
Atheist Foundation of Australia agreed:
The Internet is a
World-Wide-Web with its benefits of instantaneous and voluminous information
sharing capacity not controllable by any one country. To attempt this action is
not only futile in the long term, but will negatively affect non-targeted persons.[30]
Arguments in favour of the Bill and its
policy objectives
3.19
The Bill and its
objectives also received strong support from several groups. For example, Mr
Richard Egan
from the Coalition for the Defence of Human Life told the committee that the Bill
'addresses in a useful way the threat to innocent and vulnerable people posed
by material that counsels or incites suicide or promotes or instructs in
methods of suicide.'[31] Mr
Egan explained that, in his view, 'innocent
and vulnerable' means:
...anyone...who has access to a carrier service and who has a
suicidal predisposition through depression or facing the particular stresses in
life that lead people to commit suicide. They may be people of any age or
condition in society.[32]
3.20
Mr Graham
Preston from Right to Life Australia
agreed:
We think that that
should be taken very broadly. Simply by definition, it is those who are open to
the possibility of committing suicide...20 per cent of Australians have indicated
that they have thought at times that life is not worth living and 10 per cent
have seriously considered suicide. That would obviously take in a large number
of people, presumably right across the spectrum. The very fact that a person
may consider life not worth living or seriously consider suicide, we would see
that as making them vulnerable.[33]
3.21
Salt
Shakers agreed that the Bill
was a positive move:
The strategy of making
the dissemination of suicide-related material via the internet an offence is a
positive move. The internet is often used by the younger generation,
particularly to access chat rooms and an ‘online community’. The promotion of
suicide via websites/chat rooms allows young people to have an easy access to
unhelpful and potentially dangerous information.[34]
3.22
While acknowledging that there has been a reduction in suicide
rates since the availability of the Internet,[35]
and that 'no-one should walk away from this bill thinking that suicide
prevention has been tackled in some major way',[36] Mr Egan from the Coalition for the
Defence of Human Life argued that the Bill is a worthy measure that could prove
useful in preventing at least some suicides in Australia:
All we are saying is
that there is evidence in some psychiatric case histories and in general media
reports that some individuals have committed suicide after following detailed
instructions from either web sites or chat rooms on the internet. We are not
making a statistical argument for this at all.[37]
3.23
Mr Preston from Right to Life Australia drew an interesting analogy between suicide
and policies relating to cigarette advertisement:
Our organisation does
not take lightly supporting a bill which is intended to prohibit access to
information. However, we would see the situation as being similar to that of
advertising cigarette smoking. Smoking is not illegal but it is generally
accepted that because of the harm it causes it is appropriate not to allow it
to be advertised. In the same way suicide is not illegal but, due to the harm
that promotion of it can cause, we believe is appropriate for this bill to
prohibit promotion of it through carriage services, particularly the internet.[38]
3.24
Some supporters
of the Bill also argued that the Bill could be strengthened further in order to better
achieve its aim. For example, the Festival of Light Australia argued that, as
currently drafted, the Bill
contains a loophole in relation to suicide promotion websites hosted overseas
which should be rectified.[39] Mr Egan from the Coalition for the Defence of Human Life contended that 'once
the URLs of such sites are drawn to the attention of [Australia-based] internet
service providers there [should be] a penalty on them if they do not block
access to those sites'.[40] Without such
a provision, Mr Egan suggested that the Bill's effectiveness 'may be more symbolic than
real'.[41]
3.25
Mr Egan also suggested that the Bill
could be bolstered further by including specific provisions regarding
advertising for sale of supply devices designed or customised to be used by a
person to commit suicide, or the advertising of meetings at which instructions
and methods of suicide are given.[42] In
its submission, the Australian Christian Lobby suggested a similar amendment to
the Bill.[43]
The extent to which the Bill unduly impacts
on free speech
3.26
The committee received considerable evidence in
relation to the impact of the Bill on free
speech; on personal and private communications between individuals; and on access
to and possession of information.
Public discussion or debate about
euthanasia
3.27
A number of submissions expressed concern that the Bill
impacts adversely on free speech and the implied constitutional right to
freedom of political communication. It was submitted that the Bill's
offence provision could encompass debate about law reform and that, to the
extent that such communication is protected by the implied freedom of political
communication, the Bill could be struck down as
being unconstitutional.[44]
3.28
However, a representative from the Department told the
committee that the Department did not agree with that assessment:
What has to be borne in
mind in addition to anything else is that these are criminal offences. If there
are ambiguities in the provisions they would be read by the court, in the
normal order of construction, in favour of the defendant. When you see a
provision like this, which is a clear indication of the intention of
parliament, then the courts are not going to look for fine distinctions and
work their way through it. So I do not share those views.[45]
3.29
Nonetheless, the committee received considerable
evidence indicating widespread concern in this regard. For example, the Voluntary
Euthanasia Societies in each state argued that the Bill
would seriously impinge on their activities in trying to legitimately change
the law in relation to voluntary euthanasia.[46]
3.30
The Voluntary Euthanasia Society of Tasmania (VEST)
argued that, since suicide is not a crime, it is reasonable for any adult to
seek information in relation to it. That is, '(i)t should not be illegal to
supply information to rational responsible adults regarding a legal act
regardless of how it will be used.'[47] VEST
also submitted that the greatest impact of the Bill
will be upon poorer elderly, frail and/or incurably suffering people who are
not familiar with the legal system.[48]
3.31
The Voluntary Euthanasia Society of Victoria (VESV)
argued that in order for it to inform and influence opinion, both in general
and within the political arena, it is necessary to encourage debate about voluntary
euthanasia. Such debate could include arguments about the merits of allowing
the self-administration of lethal substances by a rational, terminally ill
person in order to relieve their suffering. VESV was also of the view that
proving that one did not have the requisite intention not to encourage suicide
while at the same time discussing the possibility of medically assisted dying
would be difficult.[49]
3.32
In evidence, Dr Nitschke
from Exit International contended that the Bill has
the ability to seriously threaten any ability to openly debate suicide and
related issues.[50] He explained that
the addition of subsections 474.29A(3) and (4) to the Bill
did little to allay his concerns in relation to the practical reality of
dealing with these issues:
...the fundamental concerns we have [is] that the border between a
discussion of a so-called method and the necessary discussion about a political
change in a way to achieve that political change is exceedingly grey. So I do not find much reassurance in that particular
statement [in those subsections] which seems to, if you like, protect the
legitimate political process—and the process of discussing it in the broader
community—that might be involved in this social issue, but at the same time try
to delineate between that and what I see as the inevitable next question that I
will get.[51]
3.33
Dr Nitschke
also posed some interesting questions:
Again, where does one
draw the line here? It is almost impossible to disentangle legitimate
discussions about legal changes to the voluntary euthanasia situation in this
nation and the very specific question that people almost invariably go on to
ask: ‘If the law won’t change, how do I get an option for myself personally?’
So a person who one minute is talking about how they might go and lobby their
politicians, the next minute is asking you: ‘I’ve got 50 morphine tablets here.
If I take them, will I die?’ At which point do I hang up the phone? I am
suggesting that at least this sort of legislation has the ability to seriously
threaten any ability to openly politically debate this important social issue.[52]
3.34
Ms Sandra Milne, who informed the committee that she had been diagnosed with inoperable
cancer, emphasised the importance of informed debate in relation to suicide:
I believe that an
informed debate about suicide results in a reduction in the number of suicides
in this country. Persons aware of all their options will often extend their
life by not acting prematurely. Unsuccessful suicide attempts often lead to
unintended physical or mental harm. Many elderly people commit suicide in the
most horrendous ways, and all because they were unable to source or were deprived
of meaningful information and help. It is likely that, had these people been
able to discuss their intention, some lives would not have been lost. For some,
an attempt at suicide is a cry for help. This law would ensure that that cry
would not be heard. Indeed with the risk of prosecution this law brings, it is
more likely to ensure that attempts to suicide are successful.[53]
3.35
However, the
committee also received evidence from those who disagreed with this view. For
example, Dr David M Gawler argued that the Bill is
very precise in its offences and, since it 'quite plainly places no
limitation on political communication regarding laws relating to euthanasia or
suicide',[54] it is wrong 'to provide
special privileges for the advocates of euthanasia or suicide'.[55]
3.36
The
Department's response to concerns raised in relation to the 2004 Bill regarding the criminalisation of
information protected by the implied right to freedom of political
communication was to insert the two clarifying provisions. Proposed subsections
474.29A(3)-(4) provide that a
person does not commit an offence merely because they use a carriage service to
engage in public discussion or debate about euthanasia or suicide or advocate
reform of the law in relation to euthanasia or suicide. The Department
explained:
There had been concern raised in the submissions to this
Committee in its consideration of the 2004 version of the Bill
that the Bill could be applied to organisations
that have as their objective the reform of the law on voluntary euthanasia but
as a corollary, discussed different methods of suicide and suicide statistics
in order to make their case. It is considered that a person who engages in
genuine debate over euthanasia related law reform or suicide would not have the
requisite intent.[56]
3.37
However, for some this provided little reassurance.
For example, Ms Irene
Graham from EFA told the committee that in
her view the additional clauses are 'completely worthless'[57] since they merely restate the offence
provisions:
[T]hey [do not] say
anything different to what the offences themselves say. We think the offences
themselves say ‘will interfere with political communication’. I am not sure
whether that was clear. To us, the exception that has been put in there simply
will not work because it is still predicated on the intent of the person. When
you look at the offences, the intent of the person depends on whether there was
a substantial risk that something may happen or that something may happen in
the ordinary course of events, because of the default fault elements in the
Criminal Code.[58]
3.38
She
contended further:
To us, the bill is
saying on the one hand that political communication will not be interfered with
but then on the other it is saying, ‘Provided that you did not intend to cause
counselling or inciting or promoting to happen.’ We believe it will simply
chill freedom of political expression and discussion. Whether it will actually
ban it is open to question, because it depends on the extent to which law
enforcement agencies are going to run around trying to enforce this and, of
course, on what a court decides about the specific wording of the legislation.
But, to us, it will at the very least chill political communication.[59]
3.39
The committee is aware of the suggestions from Professor
George Williams
in relation to how the original Bill might be
amended to protect the Bill from possible
unconstitutionality, including the insertion of a savings clause that might
indicate that the Bill does not apply to the
extent that it limits political communication.[60]
The committee notes that, in order to address concerns about its impact on the
implied right to political communication, the Government has altered the Bill
in line with Professor Williams'
suggestions.
Personal and private communications
between individuals
3.40
Several submissions and witnesses expressed concern
that the Bill would impact negatively on the
ability of individuals to engage in private communications via electronic media
since the offences in the Bill would apply to personal
and private communications by means of telephone calls and email, including communications
between friends or relatives, or discussions in the context of a doctor-patient
relationship.
3.41
Ms Irene
Graham from EFA articulated this point as
follows:
...under the definition
of ‘communication’ in the Criminal Code Act currently, the proposed offences
will definitely apply to personal and private communications by means of
telephone and email between two friends or relatives. We are absolutely opposed
to parliament legislating to prohibit individuals from communicating one-to-one
by telephone or email.[61]
3.42
Dr Philip
Nitschke from Exit International held a
similar view:
We should be very
clear: we are not talking just about information freely available for anyone
who can work a keyboard; we are talking about the very personal communications
that go on here, sometimes in the privileged context of doctor-patient
relationships, with some protections because of that, but a large number which
are just consultations between private individuals in society. We should not, I
suggest, be introducing legislation which strikes right at the heart of that
ability for people to access information.[62]
3.43
Further,
Dr Nitschke argued that the Bill:
...has the ability to
very seriously restrict essential communication between Australians—and I am
not just talking about doctor-patient communications; I am talking about
communications between sons and parents, between parents and parents and
between individuals in Australia who have a very reasonable right to be able to
openly communicate with each other about what we would describe as end of life
options. This legislation has that ability.[63]
3.44
In the
submission from Gilbert and Tobin Centre of Public Law, Professor George
Williams also argued that, since the Bill criminalises not only public or mass
communication regarding suicide, but also private communications between
individuals, it would 'have a significant impact on the capacity of individuals
who are seriously or terminally ill to access information about suicide'.[64] Specifically:
This raises an issue
which merits consideration: the degree to which we wish to protect both freedom
of speech which falls outside the definition of 'political communication', and
the right of citizens to access information and make informed choices. We are
concerned that legislation such as this, in limiting communication about an
activity that is not illegal and in regulating the subject matter beyond
existing State law, may go too far in restricting free communication.[65]
3.45
The New South Wales Council for Civil Liberties was
strongly opposed to the Bill's failure to
recognise the distinction between public and private information exchange:
...Parliament has no place intervening in a private conversation
between two consenting adult citizens discussing euthanasia options over the
telephone.[66]
3.46
Dr Nitschke
also explained his views in relation to the specific impact on doctor-patient
relationships:
There are certain
protections that can be implied and accessed in the doctor-patient
confidentiality relationship. The problem we have with this legislation is
that, because it relates to electronic communications or carriage services, it
specifically impacts on the ability to talk on the phone to one’s patients. As
far as I know, there is no other proposed legislation or existing legislation
that prohibits such discussions. This legislation would seemingly specifically
target the ability of doctors to communicate on the phone with patients if the
question of suicide should arise.[67]
3.47
Dr Nitschke expressed the fear that the Bill could have a serious impact on the work of
Exit International because of the capacity to intrude into private and personal
communications:
...it does seem perfectly
plausible that, if such a law were to pass and if someone were to, for example,
suspect that Exit’s work would require specific surveillance because we talk a
lot to people who wish to think about end of life options, this legislation
might then be used to seek and obtain the necessary abilities to tap phones. So
the legislation has the ability to provide that next step.[68]
3.48
While a
representative from the Department told the committee at the public hearing
that the proscription of private communications between individuals was not part
of the publicly-stated or direct intention of the Bill,[69] in its response to questions on notice
the Department maintained that personal and private conversations over the
telephone or email should come within the ambit of the Bill.
3.49
The
Department's justification for this approach was expressed as follows:
The Bill has the same application
as the related telecommunications offences in the Crimes Legislation Amendment (Telecommunications Offences and Other
Measures) Act 2004. Mobile phone text messaging and email has the potential
to transmit the same sort of information as contained on the Internet. It was
also intended that these offences address all material transmitted by way of a
carriage service, including personal telephone and email conversations.[70]
3.50
Further:
The aim of the Bill is to protect
the vulnerable in society from this sort of influence in a moment of crisis and
it is irrelevant if the incitement or instruction comes through the Internet or
by way of a personal phone call. If the intent was to counsel or incite suicide
or to promote or provide instruction on a particular method of committing
suicide, the Government intends this conduct to be captured by these offences.[71]
3.51
The Department pointed out that state and territory laws
currently capture instances where a person counsels or incites another person
during a private telephone conversation or email exchange to commit suicide. These
laws have even broader application in this regard since they would also capture
private face-to-face conversations held in a private residence and which
counsel or incite the suicide or attempted suicide of another.[72]
3.52
In
response to questioning by the committee in relation to the criminalisation of
counselling over the telephone, particularly in the context of doctor-patient
communications, the departmental representative stated that:
[The Bill] would capture it if the counselling
involved an incitement to commit suicide. If a doctor, in the course of that
telephone communication, were to provide information about a method of suicide
which encouraged the use of that method it would be caught.[73]
Impact on access to and possession
of information
3.53
Several submissions and witnesses opposed the Bill's
criminalisation of access to and possession of information about suicide, particularly
where that information is never passed on or where there is no attempt at
suicide.[74]
3.54
Mr Anthony
and Mrs Beryl
Saclier argued that:
An exchange of knowledge may have no 'intent' other than to
share facts among those who want them. This bill attacks the innocent research
of rational people intent on conducting their lives according to their own
rights, with no intention of harming others.[75]
3.55
The Department's response to such concerns was that the
Bill does not criminalise simple access to or possession of material and that
for a criminal offence to be proven there must also be an intention to use the
material for a particular purpose, namely to commit an offence against proposed
section 474.29A.[76]
Definitional issues
3.56
Some submitters, in particular EFA, raised a number of
issues in relation to certain elements of the offences and some of the
definitions used in the Bill. These included the
following:
-
the application of the fault element of
recklessness to the question of whether material 'incites suicide'; and
-
the use of the words 'counsels or incites' in
the proposed offence provisions.
Recklessness
3.57
In relation to the fault element of recklessness, Ms
Irene Graham
from EFA explained her concerns at the hearing:
It appears to us that
part of the reason those fault elements and so forth are being used in that way
is that the Commonwealth does not have the constitutional power to prohibit the
conduct of inciting or counselling suicide. So once again it is prohibiting the
conduct of using a carriage service, and we think this is part of the reason
that the way in which the fault elements apply is so objectionable. The actual
intent to commit to counsel or incite is not the actual criminal offence. A
lower fault element of recklessness applies to intent to counsel or incite,
because the actual legislation is not making it illegal to do that; it is
making it illegal to use a carriage service when there is a circumstance that
something else may happen.[77]
3.58
Since
the offences in the Bill
are framed in this way, and because of the application of the fault elements in
the Criminal Code, EFA argued that a person may be found guilty of the offences
when they did not intend to engage in conduct to incite or counsel a person to
commit suicide.[78]
3.59
The Department
rejected this analysis of the offences in the Bill. It argued that the concerns of the Model
Criminal Code Committee[79] are
satisfied by the current drafting of the Bill. In particular, the Department reiterated
that the fault element of recklessness applies to the requirement that
the material must directly or indirectly counsel or incite suicide, or directly
or indirectly promote or provide instruction on a particular method of
committing suicide. However, even if a person is reckless as to these matters,
it does not automatically follow that they have committed an offence under the Bill.[80]
3.60
This is because:
For an offence to be committed the person must also have intended
that the relevant material be used, by the person who engages in the
offending conduct or another person, to counsel or incite suicide, or to
promote or provide instruction on a method of committing suicide. Alternatively,
where the material promotes or provides instruction on a method of committing
suicide, a person could also be guilty of an offence if they intended
that another person use the material to actually commit suicide.
Without that intention, no offence would be committed.[81]
Counsels or incites
3.61
In
relation to use of the word 'incites' (particularly in combination with the
word 'indirectly'), Ms Graham of EFA stated that:
...we note that the model
criminal code committee has previously rejected use of that word in criminal
offences because some courts have interpreted ‘incites’ as only requiring
causing. Given research findings of a link between media coverage of suicides
and additional suicides, the proposed offences have the potential to
criminalise journalists and ordinary individuals reporting on and discussing
suicide. We also think that at least some internet material such as suicide
related research, prevention and support material will be caught by the
offences.[82]
3.62
EFA
also noted that the term 'counsels' is not defined in the Bill and that the phrase 'counsels suicide' is
'dangerously broad'.[83] There appeared
to be a widely held concern that the term 'counsel' was intended to capture
doctor-patient communications and other forms of counselling, such as those
provided by Lifeline. EFA expressed the view that:
(i)t would include
information that advises someone not to commit suicide, as well as information
that advises someone to do so. We are highly concerned that the use of the word
"counsels" would enable prosecution (or at least harassment) of
people who counsel other people who are considering committing suicide but
intend to discourage, not encourage, those other people from taking that course
of action.[84]
3.63
At the
hearing, departmental representatives explained that the term is a legal one
and would be given a narrow legal meaning by the courts. That is:
...it is a legally used
concept which appears widely throughout Commonwealth law or Australian law. In
the Commonwealth context, if you go to a person who aids, abets, counsels or
procures the commission of an offence, you have to read the word ‘counsels’ in
the context of aiding, abetting and procuring. It is not counselling in the
medical sense of providing assistance and information; it is actually
encouraging the person with an intent to bring about a result.[85]
3.64
In
answers to questions on notice, the Department elaborated:
In the context of these offences, the term ‘counsels’ is
intended to have a narrow meaning. It would cover the encouragement or urging
of a person to commit suicide and the giving of advice or assistance directed
at the actual commission of suicide. The Bill
will not capture the counselling of a person who is considering committing suicide
by friends and family or organisations such as Lifeline.[86]
3.65
Similarly, the Department explained that the term
'indirectly or directly' is a commonly used drafting device in criminal
offences and does not widen the intended operation of these offences due to the
intention element of the offences. [87]
3.66
The South Australian Voluntary Euthanasia
Society suggested that the phrase 'counsels or incites suicide' should be
changed to read 'promotes or incites suicide'.[88]
At the hearing, the committee asked the Department to give some consideration
to this suggestion. It later informed the committee that:
The term ‘counsels or incites’ suicide was introduced after
public consultation on the exposure draft of the Crimes Legislation Amendment
(Telecommunications Offences and Other Measures) Bill 2004, which originally
contained these offences. Prior to this change, it was proposed that a person
would be guilty of an offence if they used a carriage service to access,
transmit or make available material that was suicide promotion material and the
person intended that that material be used to promote, counsel or incite
suicide. It was considered that a broad interpretation of these draft offences
could have resulted in material that advocates, debates or promotes euthanasia-related
law reform being caught. To ensure that the Bill
did not inadvertently criminalise such debate, the current formulation of words
were adopted.[89]
3.67
The Department also noted that:
The term ‘promotes’ has a broader reach than the widely used
‘counsels’ and may pick up a discussion of the merits of committing suicide
that falls short of advising or recommending it and accordingly this change
should not be made.[90]
3.68
And:
The offences do not refer to counselling about suicide, such as
the services provided by Lifeline. Rather, they cover the situation where
someone intends to use material to counsel suicide. In this context, the term
counsels is intended to have the narrow meaning of encouraging or urging the
commission of a suicide or the giving of advice or assistance directed at the
actual commission of suicide.[91]
3.69
The Department also made a suggestion as to how the Bill
might be amended to make the provision clearer than it currently stands:
It may make this provision clearer if the word ‘committing’ was
inserted in between the phrase ‘counsels or incites suicide’ in section
474.29A(1) (b) and (c). The phrase would then read ‘counsels or incites
committing suicide’. It would put beyond doubt that counselling about suicide
would not be captured unless the person encouraged or gave advice on the actual
commission of a suicide.[92]
Inconsistency with Customs Regulations
3.70
As mentioned above, a stated aim of the Bill
is to prevent the Internet being used to circumvent the Customs Regulations (which
prohibit the physical importation of suicide related material).
3.71
EFA submitted that the offences proposed in the Bill
cover a vastly broader range of material than that prohibited by amendments to
the Customs Regulations, which these offences are intended to complement. That
is, the Bill would prohibit accessing and making available material by means of
the Internet and other carriage services that remain lawful to import, export,
access and distribute by other methods.[93]
3.72
Further, EFA argued that:
...the Bill should not prohibit information
that is not illegal to import and export, nor information that is not illegal
to access or distribute within Australia
by means other than a telecommunications carriage service.[94]
3.73
The Department agreed that the Bill
does cover a broader range of material than that prohibited by the amendments
to the Customs Regulations.[95] Specifically:
The Bill deals with information on the Internet that instructs
on the construction and use of a suicide device as well as step by step guides
on how to commit suicide using available medicines, poisons and other
non-devices. Both types of material
result in the same sort of harm. The Bill is
intended to capture material and conduct in chat rooms and bulletin boards
which actively encourage and provides information on specific methods of
suicide.
These offences reflect the increased dependence of the community
on telecommunications technology and the harm that can be done by its misuse.[96]
The committee's view
3.74
The committee recognises that the topic of suicide (including
euthanasia) raises extremely complex and sensitive issues which require a
cautious and well-informed policy approach. The committee is also conscious that
the issue of suicide and how best to respond to it remains a difficult one for
the Australian community. This is reflected in the sharp divide between those
submissions and witnesses who supported the Bill
and its purpose, and those who strongly objected to it.
3.75
The committee is also mindful of the balance of the
evidence presented to it in the course of the inquiry. The committee notes stated
concern within sections of the community that the Bill
represents a misguided and unrealistic approach to a complicated policy matter
that would not be effective in preventing suicide. In the committee's view, these arguments
carry some weight. However, on balance, the committee does not consider that
they are such as to prevent passage of the Bill.
The committee notes again that assisting or encouraging another person to
commit suicide is an offence in all states and territories. Moreover, to assist
or encourage another person to attempt to commit suicide remains an offence in most
Australian jurisdictions.
3.76
The committee's view is that the issues raised by the Bill
are best addressed as part of a broader, multifaceted policy or strategy by
Australian governments that is required to address the problem of suicide and
related issues in Australia.
Yet the committee also acknowledges that, without a broader range of research, initiatives
and proactive measures to address suicide and related issues, it is clear that
the Bill is unlikely to be effective in meeting
its aims. The Bill, for example, will only apply
to Australian hosted websites. The
committee notes that the Senate Select Committee on Mental Health has recently been
established and that its broad terms of reference would encompass consideration
of the issues surrounding suicide in Australia and the national, state and territory policies
or strategies required to address those issues.
3.77
The committee acknowledges concerns that the measures
in the Bill will extend to personal and private
communications between individuals including – potentially – discussions in the
context of doctor-patient relationships and counselling services offered by
organisations such as Lifeline. The committee is also concerned by these
aspects of the Bill. However, the committee also
notes that adequate safeguards and limits are in place, such as the requirement
to satisfy a court beyond any reasonable doubt that a defendant had the
requisite intent. Precedents for such offences do exist.[97] The committee also notes and supports the
Department's suggested addition of the word 'committing' to the phrase
'counsels or incites suicide' in paragraphs 474.29A(1)(b) and (c) of the Bill, so
that the phrase reads 'counsels or incites committing suicide', to help create
greater certainty in relation to the kind of behaviour captured by the Bill's
offences.
3.78
The committee acknowledges that concerns exist with
respect to safeguards provided by proposed
subsections 474.29A(3) and (4). As explained above, these provide that a person does not commit an
offence merely because they use a carriage service to engage in public
discussion or debate about euthanasia or suicide, or advocate reform of the law
in relation to euthanasia or suicide. The committee's view is that the
operation of these statutory safeguards should be subject to review. To this end, a
report on the first 12 month's operation of these provisions should be prepared
and presented to Parliament for its consideration.
Recommendation 1
3.1 The committee recommends that proposed paragraphs
474.29A(1)(b) and (c) be amended so that the phrase 'counsels or incites
suicide' reads 'counsels or incites another person to commit or attempt to
commit suicide'.
Recommendation 2
3.1 The committee recommends that the Bill be amended to
insert a requirement that, as soon as practicable after the end of 12 months from the date of the
Bill's commencement, the Attorney-General
must cause to be laid before each House
of Parliament a comprehensive report on the operation of proposed subsections 474.29A(3) and
(4).
Recommendation 3
3.2 Subject to the preceding recommendations, the committee
recommends that the Senate pass the Bill.
Recommendation 4
3.3 The committee supports and calls for the implementation
of additional broader research, strategies, resourcing and policy initiatives
by the Federal Government and state/territory governments in order to address jointly
and consistently issues relating to suicide in Australia.
Senator Marise Payne
Chair
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