Voluntary Euthanasia Society of New Zealand

Comment from Exit Australia on Federal Government Moves to Crush EXIT

The following is the discusion paper produced by the Federal Attorney General on the proposed anti VE legislation put forward by the Aust Federal Government. These laws clearly target EXIT and if passed will have the effect of restricting many EXIT programs, including the Constructional Workshops and will force us to relocate these services off shore. Comments on this proposed legislation are to be made to the Federal Government by April 13.

New proposed Federal legislation entitled The Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill 2004.

Proposed section 474.27 - Using a carriage service for suicide promotion material

252. Proposed section 474.27 will make it an offence for a person to use a carriage service to access, transmit to themself, transmit generally, make available, or publish or otherwise distribute suicide promotion material with the intention that they, or another person, will use the material to promote, counsel or incite suicide, or that a person use that material to commit suicide. 'Access' and 'suicide promotion material' are defined in proposed section 474.12 (see also the explanation of these definitions).

253. The proposed offence is intended to complement amendments to the Customs (Prohibited Imports) Regulations 1956 (subregulation 3AA(2)) and the Customs (Prohibited Exports) Regulations 1958 (subregulation 13GA(2)) prohibiting the physical importation and exportation of documents that promote the use of a device designed or customised to be used by a person to commit suicide (suicide kit), counsel or incite a person to commit suicide using a suicide kit, or instruct a person how to commit suicide using a suicide kit.

254. The maximum penalty for the proposed offence is 1000 penalty units, which is $110,000 under the existing $110 value for a penalty unit in section 4AA of the Crimes Act. The maximum fine will be $550,000 for a body corporate under the provisions for calculating maximum fines in section 4B of that Act. This is the same maximum penalty that applies to the illegal importation or exportation of documents related to suicide kits (see sections 233 and 233AB of the Customs Act 1901). Page 42 of 49

255. The proposed offence is particularly aimed at use of the Internet, email and other online applications and is intended to cover the range of activities that a person can engage in when using these. The types of activities covered by the conduct listed in paragraph 474.27(a) include, amongst others, viewing, copying, downloading, making available for viewing, copying or downloading, sending and exchanging.

256. Paragraph 474.27(c) provides that the conduct listed in paragraph
474.27(a) must be accompanied by an intention that the suicide promotion material be used, by the person who engages in the offending conduct or another person, to promote, counsel or incite suicide, or that the material be used by a person to actually commit suicide.

257. Under paragraph 474.27(b), the relevant material must in fact be suicide promotion material, as defined in proposed section 474.12. This constitutes a physical element of the proposed offence that is a circumstance. By application of the default fault elements in section 5.6 of the Criminal Code, the fault element of recklessness will apply to it. 'Recklessness' as it applies to a circumstance is defined in section 5.4 of the Criminal Code.

Proposed section 474.28 - Possessing, producing, supplying or obtaining suicide promotion material for use through a carriage service

258. Proposed subsection 474.28(1) will make it an offence for a person to possess or control suicide promotion material, or produce, supply or obtain suicide promotion material with the intention that it be used, by that person or another person, in committing an offence against proposed section 474.27 (the primary offence). A specific preparatory offence is necessary, because this conduct would not always be caught by the extension of criminal liability in Division 11 of Part 2.4 of the Criminal Code. The proposed offence will carry the same maximum penalty as the primary offence of 1000 penalty units, which is $110,000 under the existing $110 value for a penalty unit in section 4AA of the Crimes Act. The maximum fine will be $550,000 for a body corporate under the provisions for calculating maximum fines in section 4B of that Act.

259. The proposed offence covers a broad range of preparatory conduct undertaken with the intention to commit the 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 someone to commit suicide.

Proposed sections 473.2 and 473.3 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 (see also the explanation of proposed sections 473.2 and 473.3).

260. Subsection 474.28(2) provides that a person can be found guilty of an offence against subsection 474.28(1), even if it is impossible to commit the primary offence. This provision reflects the emergent common law consensus that a person can be convicted of attempt - here, essentially a preparatory offence - even though completion of the offence was impossible in the circumstances. In other words, the law of attempt holds that it is irrelevant if a particular result does not occur. Subsection 474.28(3) provides that it is not an offence to attempt to commit an offence against subsection 474.28(1). Subsections 474.28(2) and (3) of the proposed offence are drawn from the offence of attempt under section 11.1 of the Criminal Code. Given proposed section
474.28's preparatory nature in relation to the primary offence, it is appropriate that it contain such provisions.