In Carr v Attorney-General (Cth) [2023] FCA 1500 (30 November 2023), the Federal Court (Abraham J) held that “suicide”, as used in ss474.29A and 474.29B of the Criminal Code Act 1995 (Cth), does apply to the ending of a person’s life in accordance with, and by the means authorised by, the Voluntary Assisted Dying Act 2017 (Vic) (VAD Act) and Voluntary Assisted Dying Regulations 2018 (Vic).
Sections 474.29A and 474.29B of the Criminal Code Act 1995 (Cth) (Commonwealth Offence Provisions) respectively make it an offence to use a carriage service for suicide-related material and to possess, control, produce, supply or obtain suicide related material for use through a carriage service (at [10]).
The applicant was a doctor authorised to operate as a “co-ordinating medical practitioner” and a “consulting medical practitioner” under the VAD Act (at [1]).
The VAD Act provides a scheme for Victorians to voluntarily end their life in certain circumstances, such as if the individual is suffering terminal illness and is expected to have less than six months to live (at [12]). The VAD Act provides that actions taken in accordance with the VAD Act do not constitute a criminal offence (at [15]).
The applicant uses a carriage service (such as by telehealth, telephone or email) to perform their functions under the VAD Act. The applicant’s interest in the matter therefore concerned the question of whether the Commonwealth Offence Provisions may apply to criminalise those communications (at [8]).
The Court found there was a direct inconsistency between State and Commonwealth laws. This is because to the extent that the VAD Act purports to authorise medical practitioners to provide information about methods of committing suicide via a carriage service, the VAD Act purports to authorise conduct criminalised by the Criminal Code (at [76]).
Section 109 of the Australian Constitution resolves this direct inconsistency by rendering the VAD Act invalid to the extent of the inconsistency (at [77]).
It would not be an offence under the Commonwealth Offence Provisions for a medical practitioner to provide information about methods of committing suicide by using a mode of communication that is not a carriage service (at [76]).
Nadia Stojanova is a barrister at the Victorian Bar. The full version of these judgments can be found at www.austlii.edu.au. Numbers in square brackets refer to a paragraph number in the judgment.
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