An important decision handed down recently in the Federal Court of Australia rules that part of Victoria’s euthanasia law (the Voluntary Assisted Dying Act 2017 (Vic)(“VADA 2017”)) is invalid, as it authorises assistance with suicide, which is prohibited by Federal law. The decision, of Abrahams J as a single judge in the Federal Court, is Carr v Attorney-General (Cth) [2023] FCA 1500 (30 November 2023). The implication is that similar provisions of other State and Territory laws are also invalid. The relevant federal law, sections 474.29A and 474.29B of the Commonwealth Criminal Code, contained in the Schedule to the Criminal Code Act 1995 (Cth), in broad terms, makes it an offence to assist or encourage someone to commit suicide through use of a “carriage service”, most commonly by use of a telephone (either a voice call or a text message), email, or some internet service.

In my opinion laws like the VADA 2017 are bad for the community. Western society has long had strong prohibitions on taking one’s own life. At the end of life when terminal illness is involved, we have developed palliative care now to the point where on the whole serious pain is not an issue. Of course decisions can be taken when death is imminent to make someone comfortable, even if this incidentally leads to a small hastening of death. But VAD 2017 and similar laws have crossed the line into a world where a person can give up on life even when serious pain and imminent death are not involved, and these laws force doctors to be takers of life, rather than healers. They also often impose serious burdens on the religious freedom of practitioners and organisations with a strong commitment to the value of life who are pressured, or sometimes forced, to take part in these procedures.

(For excellent commentary on end of life issues generally, see this page of resources from Ethicentre. In particular, see this comment from Megan Best on problems with the current assisted dying laws. For previous comment on this blog about these laws, see here and here.)

In this context it is good to see a narrowing of the operation of the laws. The effect of the decision in Carr will not be to remove all the bad features of the laws- face to face consultations and advice by post are still available. But they should give medical practitioners asked to participate in these processes serious cause to reflect as to whether they might be subject to penalties under federal law.

Background- VAD laws in Australia

All 6 Australian States now have laws in force allowing what has come to be called “voluntary assisted dying”. (See here for general information from the federal health authorities.) The most recent such law to commence operation is the Voluntary Assisted Dying Act 2022 (NSW) (“VADA 2022”), which came into operation on 28 November 2023.

After such a law was introduced into the Northern Territory some years ago, it was over-turned by the Commonwealth Parliament, which still has ultimate authority for laws governing the Territories. However, it seems likely that both of the self-governing Territories will introduce such a law again, and this time it may not be over-ruled by the Federal Parliament.

In broad terms, these laws provide for conditions under which patients may ask for the administration of drugs which will end their life. Two paragraphs from the Carr decision sum up the regime and the role of Dr Carr, the applicant for a declaration:

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;

Carr v Attorney-General, paras [12]-[13]

The Law on Suicide

We don’t need to review the history of the law forbidding suicide, which is of course a very long one. The prohibition can be traced back to a deep commitment to the value of human life, and a recognition that the law should prohibit engaging in the act of suicide, or helping someone else do so, so that other less final options can be offered to someone tempted to take their own life.

We have mostly reached the position that suicide itself is not a criminal offence, but being an accessory to an act of suicide committed by another person is a crime. In New South Wales, section 31C of the Crimes Act 1900 makes it an offence to aid or abet another person’s suicide or attempted suicide. (See this site which seems to be a good summary of the law in other jurisdictions).

The Federal Parliament cannot legislate at large on all topics for Australia, but under its designated legislative powers in s 51 of the Constitution is included a power to regulate electronic communications generally. In 2005, it introduced a prohibition on counselling or assisting someone to commit suicide using phones or the internet into the Commonwealth Criminal Code, in sections 474.29A and 474.29B.

In the meantime States have decided to introduce VAD-type laws.

The Carr litigation

Dr Carr is a Victorian medical practitioner who wants to provide services to those seeking their own death under VADA 2017. But he was conscious that he might be breaching Commonwealth law. So he approached the Federal Court seeking a “declaration” that the VAD laws could operate despite the Commonwealth law. He argued that where the Criminal Code prohibited assisting “suicide”, that word did not cover cases where ending one’s own life was permitted under State law. Abrahams J disagreed. Her Honour issued the following declaration as a result of the case:

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).

Carr v Attorney-General, para [5]

Justice Abraham said that when the word “suicide” was included in the Commonwealth statute in 2005 its meaning was simply the taking of one’s own life. She said:

33. It is well accepted that where a word [is] 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 (9^th 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].

Carr v Attorney-General, para [33]

Hence the word was not confined to a person taking their own life “lawfully”- it was a prohibition on that act generally. This meant that the VADA 2017, by purporting to allow communications over phone or internet assisting someone to take their own life, was inconsistent with the Commonwealth prohibition.

The consequence, Abraham J ruled, was that in accordance with s 109 of the Constitution, to the extent that the State law was inconsistent with the Commonwealth law, it was inoperative.

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]

Carr v Attorney-General paras [75]-[77], emphasis added

(Interestingly, this confirmation that a State law which detracts from the operation of a Commonwealth law breaches s 109, is also relevant to similar issues that I have noted in an article arguing that State laws which detract from religious freedom protections provided by Commonwealth law to religious organisations are also invalid. But that is another topic for another day.)

Impact on other State laws

The result of the Carr decision is that those provisions of the Victorian VAD 2017 which allow a medical practitioner to contact a patient to arrange or assist with them taking their own life, are invalid. This means that it would not be lawful for a Victorian practitioner to engage in such conduct. Presumably this will also apply to similar provisions in other jurisdictions.

It is interesting to note that the NSW government has to some extent provided for this possible result. In the NSW VADA 2022, we find the following:

176 COMMUNICATION BETWEEN PATIENT AND PRACTITIONER 

(1) If it is not practicable for a patient to make a first request, final request or administration decision in person– 

(a) the patient may make the request or decision using audiovisual communication, and 

(b) the medical practitioner who receives the request or is being informed of the decision may give the patient advice or information in relation to the request or decision using audiovisual communication. 

(2) Subject to subsection (1)(b), a medical practitioner or other registered health practitioner may give advice or information to, or otherwise communicate with, a person for the purposes of this Act using any method of communication, including electronic communication or the use of an interpreter, the practitioner considers appropriate. 

(3) However, subsections (1) and (2) do not authorise the use of a method of communication if, or to the extent that, the use is contrary to or inconsistent with a law of the Commonwealth.

NSW VADA 2022, s 176 (emphasis added)

It seems that the NSW Parliament wants to “have its cake and eat it”. It allows practitioners to communicate electronically, but then undermines its stance by an ambiguous reference in s 176(3) to Commonwealth law. Perhaps this means that s 176 (and any other provisions which adopt this formula) will not be technically invalid under s 109. But it still means that medical practitioners cannot rely on the apparent permission to assist patients with taking their own lives, which action will contravene the Commonwealth law if undertaken over the telephone or the internet.

I don’t doubt this decision may be appealed. But I think the reasoning is sound, and the Commonwealth ought to resist the pressure that may be put on it to amend the Criminal Code. Its prohibition on communications encouraging or assisting people to their own lives is the right approach.