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Law Council: VAD requires changes to federal crime laws

Australia’s peak legal body is advocating changes to national criminal laws to provide clarity to current and proposed voluntary assisted dying (VAD) laws across the country.

Law Council of Australia Acting Chief Executive Margery Nicholl today released a memorandum seeking input on possible advocacy to the Federal Government addressing potential conflicts between current criminal laws and new and proposed VAD laws.

Ms Nicholl said the Law Council was keen to address conflicts between VAD legislation under the Commonwealth Criminal Code Act 1995 (Criminal Code) which prohibits using a carriage service – the internet – to supply and access “suicide related material”.

”The issue of voluntary assisted dying, particularly the interaction between Commonwealth suicide material offences and state VAD legislation, has recently been raised by several of the Law Council’s constituent bodies in the context of the upcoming Federal Election,” Ms Nicholl said.

“This includes enquiries as to whether the Law Council intends to advocate for changes to the Criminal Code or for updated prosecutorial guidelines to be issued.

“To date, voluntary assisted dying has been legislated in five states – Victoria, Western and South Australia, Tasmania and Queensland, with the schemes in South Australia, Tasmania and Queensland yet to come into effect.”

On 16 September 2021 Queensland Parliament passed the state’s first VAD laws under the Voluntary Assisted Dying Act 2021.

The new laws will not allow Queenslanders access to legal voluntary assisted dying until the scheme commences on 1 January 2023.

The Act sets out a legal process for people who are suffering and dying from an advanced and progressive life-limiting condition to choose the timing and circumstances of their death. There are strict criteria for who will be eligible to access VAD.

In New South Wales, the Voluntary Assisted Dying Bill 2021 (NSW) and is awaiting debate in the Upper House after its introduction in October 2021 by a private member.

The Australian Capital Territory and Northern Territory governments have called for the removal of federal restrictions which prevent them from legislating on the issue.

Ms Nicholl’s memorandum says federal suicide offences – contained in sections 474.29A and 474.29B of the federal Criminal Code — were inserted by the Criminal Code Amendment (Suicide Related Material Offences) Act 2005 (Cth) and amended by the Statute Law Revision Act (No.1) 2016 (Cth).

“The former Attorney-General (Christian Porter’s) second reading speech to the Suicide Material Offences Bill noted the effect of the clarifying provisions in the first offence (subsections 474.29A (3) & (4)): a person is not guilty of these offences merely because the person uses a carriage service to engage in public discussion or debate about, or advocates reform of the law relating to, euthanasia or suicide. These provisions make it clear that the offences only apply where the person intends to use the material concerned to counsel or incite suicide, or to promote or provide instruction on a method of committing suicide,” she said.

“In September 2020, the Law Institute of Victoria (LIV) raised concerns with the Australian Health Practitioner Regulation Agency and the Commonwealth Director of Public Prosecutions that health practitioners may face criminal prosecution for discussing VAD under the Voluntary Assisted Dying Act 2017 (Vic.) with patients using a carriage service, and noted that the LIV received advice from the Victorian Department of Health and Human Services that this could be a breach of the suicide material offences.

“In November, the LIV sought clarification on the issue from the Victorian Attorney-General and requested that she seek to include this issue on the agenda for the next meeting of Attorneys-General or the National Cabinet.”

Ms Nicholl said the Law Council was now seeking input by 25 March 2022 to help address a number of key issues. She said the Council would be assisted by the views of constituent bodies and advisory committees in addressing whether:

  • the concept of voluntary assisted dying (as established under legislation in certain states) is covered or excluded by the meaning of ‘suicide’ for the purpose of the suicide material offences (which is not defined in the Criminal Code)
  • health practitioners who discuss voluntary assisted dying under legislation in their state jurisdiction using a carriage service (for example in telehealth appointments via telephone or over the internet) may be committing either of the suicide material offences
  • they would support amendments to the Criminal Code to place beyond doubt that the suicide material offences do not extend to conduct in compliance with voluntary assisted dying laws where enacted by state legislatures (and if so, what form these amendments should take)
  • they would be satisfied with any legal ambiguity or potential for practical confusion being managed via non-legislative means (for example, an Attorney-General’s direction to the CDPP), or a public statement of intent), and
  • they would be assisted by the Law Council coordinating policy advocacy to the Commonwealth Attorney-General on one or more of the above options.

Read more about the introduction of VAD in Queensland and potential conflicts with existing legislation.

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