Federal Court of Australia

Carr v Attorney-General (Cth) [2023] FCA 1500

ORDERS

THE COURT DECLARES THAT:

1.    The term “suicide”, as used in ss 474.29A 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) and Voluntary Assisted Dying Regulations 2018 (Vic).

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1    The applicant, Dr Nicholas Carr, is a doctor authorised to undertake the functions of a ‘co-ordinating medical practitioner’ and a ‘consulting medical practitioner’ under the Voluntary Assisted Dying Act 2017 (Vic) (VAD Act). By his originating application, the applicant seeks one of two declarations, framed in the alternative, to resolve a legal question with respect to the meaning of “suicide” in ss 474.29A and 474.29B of the Criminal Code Act 1995 (Cth) (the Criminal Code) (together, the Offence Provisions).

2    The applicant posed the question that arises in this proceeding as follows:

Does the word “suicide”, as used in ss 474.29A and 474.29B of the Criminal Code Act 1995 (Cth), apply to the ending of a person’s life in accordance with, and by means authorised by, the Voluntary Assisted Dying Act 2017 (Vic) and Voluntary Assisted Dying Regulations 2018 (Vic).

3    The applicant’s contention is that it does not apply to such acts, and he seeks the first of the alternative declarations to that effect. That declaration is in the following terms:

The term “suicide”, as used in ss 474.29A and 474.29 of the Criminal Code Act 1995 (Cth), does not 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) and Voluntary Assisted Dying Regulations 2018 (Vic).

4    The Attorney-General for the Commonwealth is named as the respondent and accepts that he is an appropriate contradictor. Consistent with that position, the Attorney-General advanced submissions to assist the Court as to the proper meaning of the provisions of the Criminal Code. He submitted that based on ordinary principles of statutory construction, the provisions of the Criminal Code do apply to such acts authorised under the VAD Act, and accordingly the second of the alternative declarations ought to be made.

5    For the reasons below, the construction advanced by the respondent is to be preferred. Accordingly, I make the declaration in the following terms:

The term “suicide”, as used in ss 474.29A 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) and Voluntary Assisted Dying Regulations 2018 (Vic).

Jurisdiction

6    It is first appropriate to address the jurisdiction of this Court to hear and decide this application. In support, the applicant read the affidavit of Nicholas Carr, affirmed 27 July 2022.

7    Section 39B(1A)(c) of the Judiciary Act 1903 (Cth) provides that the Federal Court has jurisdiction where (a) there is a “matter” and (b) the matter can be characterised as one “arising under” a law made by the Parliament, relevantly, a Commonwealth law: BHP Group Limited v Impiombato [2022] HCA 33; (2022) 405 ALR 402 at [49]. A “matter” requires a “justiciable controversy”, which is a concern with “some immediate right, duty or liability to be established by the determination of the Court” in the administration of a law: Unions NSW v New South Wales [2023] HCA 4; (2023) 97 ALR 277 (Unions NSW) at [15], quoting in part In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257 at 265-6; and see Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 399 ALR 214 (Hobart International) at [29] and [47]. In Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51 at [4], French CJ recognised that in a case involving a criminal offence provision, that requirement may be satisfied where an applicant faces possible prosecution (whether charges have been commenced or not): see also Croome v Tasmania [1997] HCA 5; (1996) 191 CLR 119 at 137-138; British Medical Association v The Commonwealth (1949) 79 CLR 201 at 257. This application concerns the criminalisation of conduct by a provision in the Criminal Code. The claim for declaratory relief therefore arises under Federal Law: Hobart International at [27].

8    As the relief sought is declaratory, the question of justiciable controversy “turns on whether [the applicant has] standing to have the dispute determined and to seek the declaratory relief sought”. This requires the identification of a “real” question, rather than a merely theoretical or hypothetical one; a “sufficient” or “‘real” interest in obtaining the relief sought; and a proper contradictor with an interest to oppose the relief sought: Hobart International at [30]-[32], [49] and [54]. Each of those aspects is satisfied. The issue is not theoretical. If the applicant, performing his role under the VAD Act consults a patient by means of a carriage service (for example, by telehealth, telephone or email), there is a question as to whether the Commonwealth Offence Provisions criminalise those communications exposing him to risk of criminal liability. Those are all accepted and utilised means of doctor/patient communications. Dr Carr has a sufficient interest, given the functions he is authorised to perform under the VAD Act, because the declaration that he seeks would confer upon him a benefit, or relieve him of a detriment, “to an extent greater than the ordinary member of the community”: Unions NSW at [22]. The Attorney-General, as the Minister responsible for the maintenance and administration of the Criminal Code, is an appropriate contradictor.

9    The respondent correctly accepted that the Court has jurisdiction to make, and the applicant has standing to seek, the declaratory relief sought.

Relevant legislation

10    It is appropriate at the outset to recite the terms of ss 474.29A and 474.29B of the Criminal Code:

474.29A Using a carriage service for suicide related material

(1)     A person commits an offence if:

(a)     the person:

(i)     uses a carriage service to access material; or

(ii)     uses a carriage service to cause material to be transmitted to the person; or

(iii)     uses a carriage service to transmit material; or

(iv)     uses a carriage service to make material available; or

(v)     uses a carriage service to publish or otherwise distribute material; and

(b)     the material directly or indirectly counsels or incites committing or attempting to commit suicide; and

(c)     the person:

(i)     intends to use the material to counsel or incite committing or attempting to commit suicide; or

(ii)     intends that the material be used by another person to counsel or incite committing or attempting to commit suicide.

Penalty: 1,000 penalty units.

(2)     A person commits an offence if:

(a)     the person:

(i)     uses a carriage service to access material; or

(ii)     uses a carriage service to cause material to be transmitted to the person; or

(iii)     uses a carriage service to transmit material; or

(iv)     uses a carriage service to make material available; or

(v)     uses a carriage service to publish or otherwise distribute material; and

(b)     the material directly or indirectly:

(i)     promotes a particular method of committing suicide; or

(ii)     provides instruction on a particular method of committing suicide; and

(c)     the person:

(i)     intends to use the material to promote that method of committing suicide or provide instruction on that method of committing suicide; or

(ii)     intends that the material be used by another person to promote that method of committing suicide or provide instruction on that method of committing suicide; or

(iii)     intends the material to be used by another person to commit suicide.

Penalty: 1,000 penalty units.

(3)     To avoid doubt, a person does not commit an offence against subsection (1) merely because the person uses a carriage service to:

(a)     engage in public discussion or debate about euthanasia or suicide; or

(b)     advocate reform of the law relating to euthanasia or suicide;

if the person does not:

(c)     intend to use the material concerned to counsel or incite committing or attempting to commit suicide; or

(d)     intend that the material concerned be used by another person to counsel or incite committing or attempting to commit suicide.

(4)     To avoid doubt, a person does not commit an offence against subsection (2) merely because the person uses a carriage service to:

(a)     engage in public discussion or debate about euthanasia or suicide; or

(b)     advocate reform of the law relating to euthanasia or suicide;

if the person does not:

(c)     intend to use the material concerned to promote a method of committing suicide or provide instruction on a method of committing suicide; or

(d)     intend that the material concerned be used by another person to promote a method of committing suicide or provide instruction on a method of committing suicide; or

(e)     intend the material concerned to be used by another person to commit suicide.

474.29B Possessing, controlling, producing, supplying or obtaining suicide related material for use through a carriage service

(1) A person commits an offence if:

(a)     the person:

(i)     has possession or control of material; or

(ii)     produces, supplies or obtains material; and

(b)     the material directly or indirectly:

(i)     counsels or incites committing or attempting to commit suicide; or

(ii)     promotes a particular method of committing suicide; or

(iii)     provides instruction on a particular method of committing suicide; and

(c)     the person has that possession or control, or engages in that production, supply or obtaining, with the intention that the material be used:

(i)     by that person; or

(ii)     by another person;

in committing an offence against section 474.29A (using a carriage service for suicide related material).

Penalty: 1,000 penalty units.

(2)     A person may be found guilty of an offence against subsection (1) even if committing the offence against section 474.29A (using a carriage service for suicide related material) is impossible.

(3)     It is not an offence to attempt to commit an offence against subsection (1).

11    It is appropriate to also refer at this stage to s 475.1 of the Criminal Code:

475.1 Saving of other laws

(1)     This Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

(2)     Without limiting subsection (1), a provision in this Part to the effect that a person is not criminally responsible for an offence against a provision of this Part in relation to particular conduct does not make the conduct lawful if it would otherwise be unlawful under the Radiocommunications Act 1992.

12    The VAD Act establishes a scheme for Victorian residents to voluntarily end their life if they are suffering from a terminal illness and are expected to have less than six months to live (12 months in the case of a neurodegenerative condition). As referred to above, the applicant is authorised to undertake the functions of a “co-ordinating medical practitioner” and a “consulting medical practitioner” under the VAD Act.

13    It is unnecessary for present purposes to describe the scheme in detail. It is sufficient to refer to s 57(a) of the VAD Act:

57 Information to be given on prescribing a voluntary assisted dying substance

The co-ordinating medical practitioner for a person must, before prescribing a voluntary assisted dying substance in accordance with a self-administration permit, inform the person—

(a)    how to self-administer the voluntary assisted dying substance; and

…

14    It should be noted that s 57(a) is merely used as an illustrative example throughout these reasons. I note the same reasoning applies to ss 19(1)(d)-(e) and 28(1)(d)-(e) of the VAD Act.

15    I note also that the VAD Act provides that a person who acts in accordance with that legislation does not commit a criminal offence: ss 79 and 80 of the VAD Act.

Submissions

16    The applicant submitted that there is a constructional choice to be made in interpreting the word “suicide” in the Offence Provisions and that choice should be resolved by making the primary declaration sought. Namely, that “suicide” as used in ss 474.29A and 474.29B of the Criminal Code does not apply to the ending of a person’s life in accordance with, and by the means authorised by, the VAD Act.

17    The applicant submitted the fact there is a constructional choice as to the meaning of “suicide” is apparent from such matters as: that the term is not defined in the Criminal Code; it is used in conjunction with the term “commit”, which based on dictionary definitions, is used to connote some wrongdoing such that “commit suicide” is not simply the taking of one’s own life, but doing so where it is wrong or unlawful; that the Offence Provisions are in Ch 10 of the Criminal Code, with those offences all being concerned with the misuse of carriage services in a manner that is productive of harm or detriment; the Commonwealth offences were intended to complement existing State laws; and the savings provision in s 475.1(1) of the Criminal Code is in terms that Part 10.6 is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.

18    The applicant submitted, there being a constructional choice, that the meaning of “suicide” is as he contends. Three primary reasons were advanced.

19    First, his preferred construction is consistent with the purpose of the Commonwealth Offence Provisions: see s 15AA of the Acts Interpretation Act 1901 (Cth). The apparent statutory purpose is to prevent harm to vulnerable people from being subjected to pressure or coercion via a carriage service, to take their own life. The VAD Act now recognises that the intentional taking of one’s own life, in the circumstances in which it applies, is not a harm from which a person needs to be protected. Rather, such a process is harm-minimising and recognises the respect for human autonomy and dignity.

20    Second, in construing statutory language, courts should ordinarily (that is, absent contrary indication) apply the “always speaking” principle of statutory construction; that is, words of a statute are to be interpreted in accordance with their contemporary meaning: citing Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697 (Norrie) at [288], and by way of application, Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327 (Lake Macquarie); Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800; [1981] 1 All ER 545. This principle was particularly emphasised in the applicant’s written submission in reply, and his oral submission, referring inter alia, to the observations of Edelman J in R v A2 [2019] HCA 35; (2019) 269 CLR 507 at [169] and [171]. Applying that principle, it was submitted that the evolution (since 2005, when the Offence Provisions were enacted) of the way that society conceives of “assisted death” and “suicide” and how those concepts are reflected in the law should be taken into account. It was submitted that the Offence Provisions should be construed with that principle in mind because (1) the Criminal Code does not seek to define or to set out the “metes and bounds” of what is intended by the use of the word “suicide” or the phrase “commit suicide”; (2) they are not defined in the Criminal Code (unlike several other words that receive specific definition); (3) there is nothing in the text or structure of the Criminal Code (or Part 10.6), or the relevant extrinsic material, that evinces an intention of Parliament to limit or fix the meaning of “committing suicide” to a rigid understanding of that phrase as it used in 2005; and (4) two of the surrounding provisions support reading the phrase “committing suicide” to reflect contemporary understandings of that phrase, referring to ss 474.29A(4) and 475.1(1). It was submitted that in light of the legislative and common usage developments since 2005, it is inapt to now construe the act of “committing suicide” as including within it the concept of “assisted dying”. The latter is recognised as a different form of death, expressly authorised in strictly prescribed circumstances.

21    Third, the applicant’s preferred construction is supported by the savings provision in s 475.1(1) of the Criminal Code. Construing the phrase “committing suicide” to include conduct in accordance with the VAD Act would “limit” the operation of the VAD Act when facilitated by certain means. It would not accommodate the State-based law but cut across it, contrary to the intended effect of the savings provision. In support of this submission, the applicant relied on observations of Gummow J in Momcilovic v The Queen [2014] HCA 18; (2011) 254 CLR 1 (Momcilovic). He submitted that in that statutory context, taking the provisions and reading them together, Parliament chose to include the savings provision in s 475.1(1) of the Criminal Code to make abundantly clear that it intended that the Offence Provisions would ‘not…limit the operation of any other law… of a State or Territory.’ It was submitted that ss 474.29A(3)(b) and 474.29A(4)(b) also provide additional textual indications that Parliament intended the Offence Provisions to accommodate State and Territory laws, and therefore to not conflict with them.

22    The respondent submitted that the text, context and purpose all indicate that in 2005, when the Criminal Code provisions were introduced, “commit suicide” simply referred to the intentional taking of one’s own life, regardless of the circumstances in which that occurred. The respondent referred to the ordinary meaning of the term. The phrase “commit suicide”, as employed in the Criminal Code, does not carry any pejorative connotation: “commit” is simply the verb most naturally used with “suicide”. It cannot be taken to have narrowed the ordinary meaning of “suicide” to a “wrong or unlawful” taking of one’s own life.

23    The respondent agreed that Part 10.6 of the Criminal Code is concerned with the misuse of carriage services in a manner productive of harm or detriment, and that the offences contained in that Part are limited to conduct associated with such services. That focus is explained by the extent of Commonwealth legislative power. The respondent also agreed that the Code provisions were intended to complement, and work alongside, State and Territory regimes creating accessorial offences for encouraging or assisting a person to “commit suicide”. He submitted that it is common ground that in 2005, a doctor who assisted a patient with voluntary assisted dying in ways now authorised by the VAD Act would have committed such an offence. “Commit suicide” was not intended to have a meaning in State accessorial offence provisions which excluded (yet to be introduced) voluntary assisted dying. It is the VAD Act itself that introduced that exception, by providing things done, or not done, under that legislation are not an offence: ss 79 and 80 of the VAD Act. This background reinforces that in 2005 it was plain, and plainly intended, that assisting a person to intentionally take their own life (regardless of the circumstances of that person) would be an offence. That was criminalised both under State and Territory legislation, and under the Offence Provisions, which made it an offence to use a carriage service to assist a person to take their own life. It would not have complemented those State provisions, but confounded them, if the Offence Provisions had adopted a special, narrow meaning of “commit suicide”.

24    The respondent submitted that s 474.29A(3)(b) and (4)(b) of the Criminal Code was included to ensure that people could engage in public debate. That provision does not tell that the Commonwealth, at the time of its enactment, intended to accommodate whatever might be the future outcome of that debate.

25    As to purpose, the extrinsic materials identified two particular issues that the Commonwealth Offence Provisions would address: first, to prevent harm to vulnerable people from being subjected to pressure or coercion via a carriage service to take their own life (the purpose referred to by the applicant); and second, to complement the 2002 amendments to the customs regime prohibiting the importation and exportation of suicide kits (and the counselling, instruction and incitement to use such kits). At the time of their introduction, it was well understood that the Offence Provisions could apply to individuals engaging in private communications, including by telephone and by email, and potentially encompass “discussions in the context of a doctor-patient relationship”. It was submitted that the extrinsic materials support, rather than contradict, the purpose that is otherwise made clear through the statutory text and context: namely, that in 2005, “suicide” carried its ordinary and natural meaning.

26    It was contended that none of the integers relied on by the applicant in support of his construction – the meaning and connotation of the phrase “commit suicide” relating to unlawful conduct; that voluntary assisted dying has an accepted meaning which stands outside of that concept; that s 474.29A(3) and (4) reflect an intention to accommodate changes in the State and Territory legislation; and the statutory purpose as revealed in the extrinsic materials – establish that the term “suicide” should be given anything other than its ordinary meaning. The respondent submitted that the applicant’s reliance on s 475.1 to assist in the construction of the Offence Provisions is misplaced, as it only arises after the Offence Provisions are construed. It was also submitted that the applicant’s reliance on the “always speaking” principle of statutory construction is a distraction.

27    The respondent made the submission that a direct inconsistency arises between the Offence Provisions and the VAD Act, and as such, the provisions in the VAD Act, in so far as they are inconsistent, are not operative: s 109 of the Constitution, citing Momcilovic for an explanation of the operation of s 109 of the Constitution, and provisions of the nature of s 475.1 of the VAD Act.

Consideration

28    As illustrated by s 57(a) of the VAD Act, recited above at [13], although no mode of communication is there prescribed, if a doctor assisted a person in accordance with that provision via a carriage service (for example, by telehealth, telephone, or email), they currently risk committing a criminal offence by breaching ss 474.29A and 474.29A of the Criminal Code. Whether they do is dependent on the meaning of “suicide” in the Offence Provisions. That issue is resolved by construing the Offence Provisions.

29    It is important to recall at the outset the applicant’s position, put most succinctly in his written submission in reply:

The applicant contends that the legal meaning of the phrase ‘commit suicide’, in the specific context of the Cth offence provisions, is to intentionally take one’s life other than in the exercise of a legal right to do so conferred and regulated by law. That is its essential meaning; now and at the time it was enacted.

30    By that submission, the applicant made clear that he did not contend the term “suicide”, as used in the Offence Provisions, has changed meaning from 2005 to a different meaning now.

31    The starting point for ascertaining the meaning of a statutory provision is its text, having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 (SZTAL) at [14], citing Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27 at [47]. Purpose is ascertained by reference to “an[y] express statement of purpose in the statute itself, inference from its text and structure, and, where appropriate, reference to extrinsic materials”; it must be “derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions”: Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [25]-[26].

32    The term “suicide” is not defined in the Criminal Code. Consequently, the term is to be given its ordinary and natural meaning, “unless it is plain that Parliament intended it to have some different meaning”: see for example, Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 at [26], and see, SZTAL at [14].

33    It is well accepted that where a word in not defined in legislation, it is permissible to refer to a dictionary which may be of assistance as a starting point for ascertaining its ordinary meaning: R v Peters (1886) 16 QBD 636 at 641; and see Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexis Butterworths 2019) at [3.33]-[3.35]. The Macquarie Dictionary is commonly referred to in Australian cases, and the Oxford English Dictionary is also referred to from time to time: Pearce at [3.34]. The Macquarie Dictionary (online) accessed at the time of the hearing, defines “suicide” as “the intentional taking of one’s own life”. The Oxford English Dictionary (online) defines it as “the action or an act of taking one’s own life”. Neither refers to or confines its ordinary meaning in any way by the circumstances in which, or by which, the act occurs. Those definitions of “suicide” also accord with the understanding of the term at common law: see for example, IL v The Queen [2017] HCA 27; (2017) 262 CLR 268 at [79], [111]; X v The Sydney Children’s Hospitals Network [2013] NSWCA 320; (2013) 85 NSWLR 294 at [59]; H Ltd v J [2010] SASC 176; (2010) 107 SASR 352 at [56]-[57].

34    The applicant accepted this was the ordinary and natural meaning of “suicide” in 2005 (or did not seriously suggest otherwise). Rather, he contended that given the text, context and purpose of its use in the Offence Provisions, “suicide” there has the meaning for which he contends, as recited at [29] above. That is, the intentional taking by a person of their own life, other than in the exercise of a legal right to do so conferred and regulated by law.

35    Applying the well-established principles of statutory construction to “suicide” and “commit suicide” in the Offence Provisions, the better interpretation of those words is that they simply bear their ordinary and natural meaning, the intentional taking of one’s own life, and the act of doing so. I do not accept the applicant’s submission to the contrary. None of the matters relied on by the applicant reflect that the term is to be given anything other than its ordinary meaning.

36    First, it is to be recalled that at the time the Offence Provisions were enacted into the Criminal Code, suicide (and attempted suicide) were not criminal offences in Australia, but assisting or encouraging a person to do so was (and remains) an offence in Australia: see for example, s 6B(2) of the Crimes Act 1958 (Vic). That provides immediate context to the Offence Provisions. The Commonwealth Parliament is said by the applicant to have intended a definition of “suicide” which encompasses the words “other than in the exercise of a legal right to do so conferred and regulated by law”, well before any of the currently existing legislation conferring such right had been enacted. The absence of a legal right to intentionally take one’s life, conferred and regulated by law at the time the Offence Provisions were enacted points against an intention by the legislature to accommodate such a right in the definition of “suicide”.

37    Second, the applicant is correct that other offence provisions in the Criminal Code, such as for murder or treason contain definitions of those terms, whereas the term “suicide” in s 474.29A and s 474.29B does not. However, given the term used, the surrounding text, context and purpose, there is no basis to infer, as contended by the applicant, that this was a deliberate choice by Parliament with the intention of enabling the meaning of “suicide” to alter over time (to encompass or rather exclude certain conduct which might be the subject of later State or Territory legislation). This is noting also that there are very many terms used in offence provisions in the Criminal Code which also are not the subject of definition. Indeed, given the ordinary and natural meaning of the term, if this had been Parliament’s intent, it could have (and might have been expected to have) expressly said so by defining the term “suicide” in the manner contended for. The better view, as the respondent submitted, is that the Parliament saw fit not to define the term given that it was so firmly and universally used and understood at that point in time.

38    Third, the term “commit” in the phrase “commit suicide” in the Offence Provisions, does not have the significance the applicant places on it. That is, contrary to the applicant’s submission, it is not used to confine the application or meaning of “suicide” to an act which is unlawful. The applicant’s reading of “commit” is not borne out by its use in the Offence Provisions or the relevant extrinsic material. Both the term “suicide” and the phrase “commit suicide” are in the Offence Provisions. Their use is evident from the text of the provisions; the former used as a noun, the latter as a verb. It is not surprising that such terminology was used in 2005. For example, even in 2023 the only verb referred to in the Macquarie Dictionary (online) in conjunction with “suicide” is “to commit suicide”. I note for completeness that in the entry for the term “suicide” the Macquarie Dictionary also states: “Usage: There are those in the language community who have begun to avoid the phrase commit suicide because of, by association with the phrases commit a sin or commit a crime, it links suicide to a sin or crime. The phrases die by suicide or take one’s own life are preferred”. That does not affect the use of the term “commit” in the Offence Provisions.

39    The presence of the term “commit” in the Offence Provisions and its use as a verb to convey the act of suicide, is confirmed by the extrinsic material. It is to make clear the distinction between talking about suicide as a topic (where “suicide” is used as a noun), and the act of suicide, which the Offence Provisions criminalise assisting (in the manners identified in the provisions). For example, in response to questions taken on notice at the Senate Legal and Constitutional Legislation Committee (Senate Committee) hearing enquiring into the Bill that introduced the Offence Provisions, the Attorney-General’s Department said that:

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. …

…

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. …

40    This was picked up in the Report by the Senate Committee, in relation to the Provisions of the Criminal Code Amendment (Suicide Related Material Offences) Bill 2005, which recommended 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’.

41    The basis of that recommendation was that described by the Attorney-General’s Department: see the Senate Committee report at [3.69], [3.77]. I note that the applicant did not address the circumstances in which “commit” came to be in the Offence Provisions, as reflected by the extrinsic material.

42    Once it is accepted that the use of the term “commit” was merely as a verb to convey the doing of (or an attempt to do) the act, and thereby make the provision clearer as to the conduct captured, the applicant’s submission on the significance of the term falls away.

43    The applicant’s submission, based primarily on dictionary definitions of the term “commit”, that the use of the term in the Offence Provisions carries a particular imputation, being to kill oneself in circumstances that are wrongful or unlawful, cannot be accepted. There is no basis to infer, from the text, context or purpose of the provisions that the word “commit” was chosen by Parliament to denote that the term “suicide” only applies to certain circumstances in which one takes one’s own life.

44    More particularly, there is no basis to infer, as the applicant contends, that Parliament’s use of the term “commit suicide” reflects an intention that the use of the term “suicide” in the Offence Provisions is to mean to intentionally take one’s life other than in the exercise of a legal right to do so conferred and regulated by law.

45    Fourth, the applicant’s reliance on s 474.29A(3) and (4) is misplaced. As expressly stated in the provisions, they are for the avoidance of doubt. They simply make clear that legitimate discussion or debate about, or advocating reform of the law relating to, euthanasia or suicide is not criminalised. So much is also confirmed by the extrinsic material: see for example, the Second Reading Speech, dated 10 March 2005, and Explanatory Memorandum to the Criminal Code Amendment (Suicide Related Material Offences) Bill 2005 at page 4. Reliance on the reference to “euthanasia” in the provisions as distinguishing between “suicide” and “euthanasia”, also does not advance the applicant’s case. It was not ultimately suggested by the applicant that at the time the Offence Provisions were enacted that euthanasia or voluntary assisted dying did not fall within the ordinary meaning of “suicide”. Rather, the meaning placed on the term “suicide” (from the time of its enactment) by the applicant is qualified by the concept of assisted dying that is authorised by law. That qualification simply denotes a limited circumstance in which assisting “suicide” may be undertaken by certain means without committing an offence.

46    Contrary to the applicant’s submissions, s 474.29A(3) and (4) do not expressly recognise the “possibility of ‘reform of the law relating to euthanasia or suicide’” and that the meaning of “suicide” might change, or that any reform would occur at the State level. Nor can it be inferred from those subsections that the term “suicide” was not defined in the Offence Provisions to enable it to encompass any change in the definition as a result of any future reform at State or Territory level. That is to read far more into the subsections than is evident from their plain terms. Recognition of the existence of public debate says nothing about Parliament’s position in relation to it, or the intention of Parliament as to any outcome. To put it another way, it does not reflect an intention by Parliament to refrain from defining “suicide” to enable any State or Territory legislation (that might be conceived at some time in the future) to exclude from the scope of the Offence Provisions conduct that would otherwise contravene them. I note that the VAD Act was enacted 12 years after the Offence Provisions.

47    Fifth, the applicant places significant emphasis on what he contends is the purpose of the Offence Provisions, being to prevent harm to vulnerable people from being pressured into taking their own life. The applicant submitted that the particular mischief the offence is directed to is as follows:

The EM and the Second Reading Speech for the Bill indicate a more particular purpose: Preventing vulnerable people from being encouraged or pressured to commit suicide via material placed on the internet or communicated via the internet (e.g. online chat rooms).

48    It may be accepted that is one of the purposes of the Offence Provisions. However, that is not the complete picture. In the Second Reading Speech to the Criminal Code Amendment (Suicide Related Material Offences) Bill 2005, on 10 March 2005, the then Attorney-General said:

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.

These offences complement existing customs regulations prohibiting the physical importation or exportation of suicide kits and information related to those kits.

49    This is also reflected in the Attorney-General’s Department’s response to the Senate Committee (answers to questions taken on notice, 14 April 2005):

The impetus behind the development of this legislation was two-fold:

1)    to complement Customs Regulations on 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.

50    The Department’s submission also reflects the legal context in which this Bill was sought to be enacted; that the conduct being criminalised was otherwise an offence around Australia, with the Commonwealth complimenting this in relation to telecommunications.

51    The purposes of the provisions are also reflected in the later Explanatory Memorandum to the Criminal Code Amendment (Suicide Related Material Offences) Bill 2005.

52    The legislation in creating these offences sought to achieve the above purposes in a context where the extrinsic material plainly reflects an acceptance that these Offence Provisions would encompass the factual circumstance of a doctor assisting another person to take their own life. That much is apparent from the report of the Senate Committee at 3.40-3.52. Doctor/patient communications, if the conduct satisfied the elements of the Offence Provisions, would be a criminal offence.

53    Sixth, I do not accept the applicant’s submission that s 475.1 of the Criminal Code supports his construction. It is premised on the proposition that s 475.1 “conveys an intention to observe and preserve the operation of ‘any’ law of a State or Territory that might otherwise be perceived to conflict with a provision in Part 10 of the Code”. The submission that the term “suicide” in the Offence Provisions is not to be construed in a manner which would limit conduct in accordance with the VAD Act (when facilitated by certain means), misunderstands the role of s 475.1. The effect of the submission is that the term “suicide” in the Commonwealth Offence Provisions should be read down to exclude conduct authorised under the VAD Act (or any other State). That approach is inconsistent with s 109 of the Constitution, which states: “When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.”

54    It is appropriate to recall that s 475.1 of the Criminal Code is relevantly in the following terms: “[t]his Part is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory”. This is an example of a savings provision which appears in various parts of the Criminal Code, and other Commonwealth legislation. To put that in context, in Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491 (Dickson), the Court at [36] summarised the provisions as then appeared in the Criminal Code:

In the Commonwealth Criminal Code, Ch 4 (ss 70.6, 71.19, 72.5), Ch 7 (s 261.1), Ch 8 (ss 268.120, 270.12), Ch 9 (s 360.4), and Ch 10 (ss 400.16, 472.1, 475.1, 476.4), contained provisions so expressed as to deny for the Chapter in question, or particular portions of it, an “inten[tion] to exclude or limit” the operation of any other Commonwealth law, and also of any law of a State or Territory.

55    In addition, as the Court there noted, the Commonwealth Criminal Code additionally contained such provisions in Ch 4 (s 72.32), Ch 5 (ss 80.6, 115.5), Ch 8 (ss 271.12, 272.7, 273.4, 274.6), and Ch 9 (s 300.4): see also Momcilovic at [484], and examples of such provisions in other Commonwealth legislation referred to therein. Although some of the provisions referred to may be expressed slightly differently in different legislation, they are to the same effect.

56    The purpose of such provisions was considered in R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545 (General Motors). There, the relevant provision was s 75 of the then Trade Practices Act 1974 (Cth) (Trade Practices Act), which arose when the Court considered the question of whether there was inconsistency between the Commonwealth and State legislation (being the Trade Practices Act and The Consumer Credit Act 1972-73 (SA)). Section 75 of the Trade Practices Act was in the following terms:

(1)    Except as provided by sub-section (2), this Part is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

(2)    Where an act or omission of a person is both an offence against section 79 and an offence under the law of a State or Territory and that person is convicted of either of those offences, he is not liable to be convicted of the other of those offences.

(3)    Except as expressly provided by this Part, nothing in this Part shall be taken to limit, restrict or otherwise affect any right or remedy a person would have had if this Part had not been enacted.”

57    As is readily apparent, it is in similar terms to s 475.1 of the Criminal Code.

58    Mason J at 563-564 (Barwick CJ, Gibbs and Stephen JJ agreeing at 552, Jacobs J agreeing at 565), said as to the provisions:

The judgments to which I have referred make the point that although a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s. 109 into play. Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of such State laws as do not conflict with Commonwealth law.

It is of course by now well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic, making it impossible for both laws to be obeyed. In Reg. v. Loewenthal; Ex parte Blacklock I pointed out that such a provision in a Commonwealth law cannot displace the operation of s. 109 in rendering the State law inoperative. But where there is no direct inconsistency, where inconsistency can only arise if the Commonwealth law is intended to be an exhaustive and exclusive law, a provision of the kind under consideration will be effective to avoid inconsistency by making it clear that the law is not intended to be exhaustive or exclusive.

59    See also Momcilovic at [271], [344]; Dickson at [33] and Work Health Authority v Outback Ballooning Pty Ltd [2019] HCA 2; (2019) 266 CLR 428 (Outback Ballooning) at [35], [48].

60    It is because of s 109 of the Constitution that s 475.1 of the Criminal Code (and like provisions) are inserted into legislation. Section 475.1 provides a statement of Parliament’s express intention as to the scope of the operation of the Part, to make it clear there is no intended indirect inconsistency with State laws, in the manner described in the passage from General Motors above. Such provisions have generally been held to be relevant to the analysis of whether an “indirect inconsistency” arises for the purposes of s 109 of the Constitution, but not to prevent a “direct inconsistency” from arising. Section 475.1 reflects an intention that the Commonwealth provisions to which it applies, are not to cover the field, “leaving room for the operation of such State laws as do not conflict with Commonwealth law”: General Motors at 563.

61    It is also to be appreciated that s 475.1 of the Criminal Code applies to all the offences in Part 10.6 and not simply the suicide Offence Provisions. Indeed, s 475.1 was enacted in 2000, when other offences in Part 10.6 were inserted into the Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth). The Explanatory Memorandum to the Bill states at [350] in respect of the provision:

Proposed section 475.1 provides the usual savings provision for other laws of the Commonwealth, the States and Territories. There is some overlapping. In some cases it will be more convenient to charge under another offence. The same approach is taken with the theft, fraud, bribery and related offences in Chapter 7.

62    The reference to the approach in Chapter 7 relates to what had earlier been said in the Explanatory Memorandum about s 261.1 at [318]:

Proposed section 261.1 makes it clear that other Commonwealth, State and Territory laws are not limited or excluded by proposed Chapter 7. There is an overlap with State and Territory offences. This provision is designed to ensure that when State police wish to lay a series of charges which may involve one offence against a Commonwealth entity, then they have the option of charging under the State or Territory law.

63    In the Explanatory Memorandum to the Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Bill (No 2) 2004 (Cth), the position is restated:

Proposed subsection 475.1(1) reproduces section 475.1 in the existing Part 10.6 of the Criminal Code. It provides for the concurrent operation of Commonwealth, State and Territory laws in relation to the conduct to which the offences in the proposed Part 10.6 would apply. This provision ensures that there are no gaps in jurisdiction and allows crimes to be prosecuted in whichever forum is most appropriate.

Proposed subsection 475.1(1) ensures that any State or Territory law which would otherwise apply still has application. This is important particularly for the proposed offences dealing with threats, menacing or harassing behaviour, and child pornography and child abuse material. Offences dealing with these issues that do not concern use of telecommunications are generally the responsibility of the States and Territories. …

64    The Explanatory Memoranda confirm what is apparent from the text of the provision and the caselaw above; that s 475.1 is a device used to ensure there is no indirect inconsistency.

65    Once the purpose of s 475.1 is appreciated, it is difficult to understand the applicant’s submission that its presence, given its terms, supports the interpretation of the term “suicide” for which he contends. This is bearing in mind the applicant contends that at the time the legislation was enacted, “suicide” was intended to mean to intentionally take one’s life other than in the exercise of a legal right to do so conferred and regulated by law. Section 475.1 does not assist with the meaning of the term “suicide”, just as it does not assist with the meaning of the very many undefined terms in the offence provisions in Part 10.6 (for example, menacing or harassing).

66    Nor is there anything in the Explanatory Memoranda that supports the applicant’s submission that the presence of s 475.1 evinces an intention by the Commonwealth Parliament to, in effect, cede the scope of the Offence Provisions to any possible future changes in State or Territory laws. In practical terms, the applicant’s submission is that the presence of s 475.1 recognises that there may be changes in the law in relation to suicide, those changes are likely to occur at the State and Territory level, and the presence of s 475.1 is to enable any future State or Territory Law to have full effect by means of the Commonwealth offences altering their meaning and scope. That is, by introduction of State or Territory legislation the Commonwealth offences would have narrower scope or application, for otherwise the State or Territory legislation would be limited in its operation. To put it another way, the submission is that if any State or Territory law enacted in the future is inconsistent with the Commonwealth law, it is the State or Territory law which has effect (overriding the Commonwealth law). That is plainly incorrect. Although the applicant denied that its submission involved a State law trumping the Commonwealth law, at its heart, that description is accurate. So much is evident from the applicant’s oral submission that the “Parliament was, by enacting section 475.1, seeking to make it plain to all, including those entrusted with construing this statute, that it was not intending to limit the operation of any law of a state”, meaning in this case, a possible future State law inconsistent with the Commonwealth provisions. For the same reasons, the applicant’s submission that the Commonwealth provisions were enacted to complement the State and Territory provisions, does not provide a basis to construe “suicide” as the applicant contends.

67    I note the applicant’s construction fails to recognise (or address) that the States and Territories may legislate differently. It follows that if the applicant’s definition of “suicide” he says Parliament intended in 2005 were accepted, it could result in the Offence Provisions encompassing different conduct in different States and Territories (and that the Commonwealth recognised and intended that). That is an implausible intent. The conduct that is encompassed by the Commonwealth provisions would change with the enactment of any State or Territory law in the future, and any amendment thereto. The consequence would be that Commonwealth criminal offence provisions might be given quite different operation in different States and Territories.

68    That the operation of the Commonwealth Offence Provisions will cede to any future State law which would render the Commonwealth offence provision and State laws directly inconsistent, is inconsistent with s 109 of the Constitution. Parliament cannot decide that s 109 does not apply: Momcilovic at [358].

69    The applicant’s submission is not supported by Gummow J’s observations in Momcilovic at [272]. The applicant submitted Gummow J should be understood as saying that one is to “construe the law so far as is possible with its context and purpose to accommodate the State law rather than to, effectively, disrupt it, disapply it, [have] it operate in a way that it was not intended to operate”. He submitted that applies in relation to a case of direct inconsistency, as here, with the result that the Commonwealth Offence Provisions are to be construed to allow the State law to operate. That submission cannot be accepted. That proposition is not borne out by a plain reading of the judgment. It places a significance on one sentence in [272] of the judgment that it does not have. It does not result in a construction of “suicide” in the Offence Provisions with the outcome being the Commonwealth intended that its legislation would be subject to future changes in State law. For completeness, I note that the applicant accepted during oral submissions in reply that s 475.1 can only have the work he contended where a construction of the Commonwealth provision allowing consistency with the State law is otherwise consistent with the text, context and purpose of the Commonwealth provision. For the reasons above, that is not the circumstance in this case.

70    Finally, it is appropriate to observe that there were inconsistencies in the applicant’s submissions. If, as he contends, the meaning of the terms “suicide”, and “commit suicide”, at the time the Offence Provisions were enacted in 2005, from the text, context and purpose, was to intentionally take one’s life other than in the exercise of a legal right to do so conferred and regulated by law, s 475.1 does not advance his case. That is because there would be no issue of inconsistency between the Offence Provisions and the VAD Act.

71    On the other hand, the applicant placed significant reliance on the principle of construction that statutes are always speaking. The applicant’s submission relied on Norrie at [288], where Preston J, referring to R v Gee [2003] HCA 12; (2003) 212 CLR 230 at [7], said that “where a statute uses words in their ordinary sense, absent a contrary intention, the statute is to be construed as “always speaking”, so that the words are to be interpreted in accordance with their current meaning”. The applicant also relied on the reasoning of Barwick CJ in Lake Macquarie at 331, where his Honour observed that the connotation or essential ingredients of a term remains but that the denotation or import of a term may change over time. There the issue was whether “gas”, which at the time the provision was enacted referred to coal gas, as the only form then available, referred to other forms of gas which later developed. This circumstance is not akin to cases where new species of an existing genus now fall within the term in legislation, thereby extending its application. Leaving aside that the applicant did not point to any case using this principle in a context where the meaning of the term in a statute was said to be narrowed not evolved, the reasoning is based on the ordinary meaning of the term at the time of the enactment. Here, the applicant made plain that his case was that in 2005, the meaning of “suicide” in the Offence Provisions was the taking of one’s life other than in the exercise of a legal right to do so conferred and regulated by law. For the reasons above, that is not the ordinary meaning of the term given its text, context, and purpose. The applicant accepted as much in oral submissions, when he accepted his construction as articulated “to some extent, is adding words into the word [suicide]” but submitted that construction is a necessary consequence of the choice of language, in its context and having regard to its purpose. In that context, reliance on the principle of “always speaking” does not advance his case. That is also true, even if the principle were applied to the ordinary meaning of “suicide”. As the respondent submitted, voluntary assisted dying, while a means carefully regulated, and a societally approved means of a person intentionally taking their own life, remains a means of a person taking their own life.

72    Moreover, words are not lightly read into a statutory provision in a manner that modifies the meaning of an Act. The applicant placed much emphasis on the purpose of the provisions. The Court may “consider the purposes of the relevant legislation in determining whether there is more than one possible construction but may not rewrite legislation in the light of its purposes. Any meaning must be consistent with the language in fact used in the relevant legislation”: Disorganised Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 410 ALR 508 at [15], citing inter alia, Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531 at [39]. I note that there is no suggestion of any inadvertence in the drafting of the provision by Parliament.

Conclusion

73    It was common ground that in 2005 doctor/patient communications would, if the conduct satisfied the elements of the Offence Provisions, constitute an offence under the Offence Provisions. In 2005, a doctor who assisted a patient with voluntary assisted dying in ways now authorised by the VAD Act would have committed such an offence. That is based on the ordinary meaning of “suicide”; as it was in 2005 and remains today, the intentional taking of one’s own life. Assisting a person to commit suicide via a carriage service, regardless of the circumstances, was an offence. Parliament chose to use the term “suicide” without definition. Consequently, it is to be given its ordinary meaning, unless an intention to the contrary is evident. The meaning of “suicide” sought by the applicant, by the definition it gives, reflects an acceptance that that is not the ordinary meaning of the term. The text of ss 474.29A and 474.29B, considered in context and given their purpose, supports the construction that gives the term its ordinary meaning. For the reasons above, the matters relied on by the applicant do not reflect that Parliament had any contrary intent. They do not support the conclusion that Parliament intended the term “suicide” to be construed in the manner contended for by the applicant.

74    Consequently, a declaration is to be made in the alternative terms sought by the applicant:

The term “suicide”, as used in ss 474.29A 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) and Voluntary Assisted Dying Regulations 2018 (Vic).

75    Given the construction of “suicide” in ss 474.29A and 474.29B, there is a “direct inconsistency” between the VAD Act and Criminal Code, as the State law alters, impairs or detracts from the operation of the Commonwealth law: Outback Ballooning at [32]. The concepts of “altering”, “impairing” or “detracting from” the operation of a law of the Commonwealth have in common the idea that a State law conflicts with a Commonwealth law if the State law undermines the Commonwealth law: Jemena Asset v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508 at [41]; Outback Ballooning at [32].

76    As the respondent submitted, authorised medical practitioners under the VAD Act, (as Dr Carr is), are variously permitted or required to provide information pursuant to the VAD Act to a person who has requested access to voluntary assisted dying if satisfied they meet the eligibility criteria: see ss 19(1)(d)-(e), 28(1)(d)-(e) and 57(a). The provision of information in accordance with those provisions would amount to making information available to the other person that provides instruction on a particular method of committing suicide. If that communication is undertaken using a carriage service, that would breach the Commonwealth Offence Provisions but be authorised under the VAD Act. It follows that in so far as the VAD Act purports to authorise medical practitioners to provide information about particular methods of committing suicide via a carriage service, it purports to authorise them to engage in conduct that the Criminal Code has criminalised. In those respects, the VAD Act detracts from or impairs the operation of the Commonwealth law. There is a direct inconsistency between the State and Commonwealth laws. Giving assistance to a person under the VAD Act provisions using a mode of communication other than a carriage service, would not be an offence under the Offence Provisions.

77    Section 109 of the Constitution resolves that conflict by giving the Commonwealth law paramountcy and rendering the State law inoperative to the extent of the inconsistency: Outback Ballooning at [29].

78     Consequently, the VAD Act is inoperative to the extent of the inconsistency.

Associate:

Dated:    30 November 2023