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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE AMENDMENT (SUICIDE RELATED MATERIAL
OFFENCES) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice and Customs,
Senator the Honourable Chris Ellison)
Criminal Code Amendment (Suicide Related Material Offences) Bill 2005
General Outline
The Criminal Code Amendment (Suicide Related Material Offences) Bill 2005 will
insert new offences into the Criminal Code dealing with use of a carriage service to
access, transmit or otherwise make available suicide related material, and possession,
production, supplying or obtaining suicide related material for use through a carriage
service (suicide related material offences).
The measures in this Bill complement the measures in the Crimes Legislation
Amendment (Telecommunications Offences and Other Measures) Bill (no. 2) 2004.
That Bill will repeal the telecommunications offences in the Crimes Act 1914 and
replace them with new and updated telecommunications offences in the Criminal
Code. Updating and moving existing Crimes Act offences into the Criminal Code is a
part of the process of placing all the Commonwealth's serious offences in the Code.
Since the enactment of the existing telecommunications offences in 1989, the
telecommunications environment has changed substantially, both in terms of the
regulatory environment and the technology available. The offences account for this
change and better reflect the community's increased dependence on
telecommunications and the harm that can be done by misuse or disruption.
Financial Impact
There is no financial impact flowing directly from the offence provisions of this Bill.
NOTES ON CLAUSES
Clause 1 Short title
This is a formal clause which provides for the citation of the Bill.
Clause 2 Commencement
This clause set out when the various parts of the Bill commence.
Sections 1-3 of the Bill (the short title, the commencement and the schedules
provision) will commence on the day that the Bill receives Royal Assent.
Schedule 1 of the Bill, which inserts new suicide related material offences into the
Criminal Code Act 1995, will commence the day after a period of six months after the
Bill receives Royal Assent.
Clause 3 Schedule(s)
This clause makes it clear that the Schedules to the Bill will amend the Acts set out in
those Schedules in accordance with the provisions set out in each Schedule.
SCHEDULE 1 SUICIDE RELATED MATERIAL OFFENCES
This schedule will insert two suicide related material offences into the Criminal Code:
proposed sections 474.29A and 474.29B.
Proposed section 474.29A Using a carriage service for suicide related material
Proposed subsection 474.29A(1) 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 material that directly or indirectly counsels or incites suicide,
with the intention that they, or another person, will use the material to counsel or
incite suicide. `Access' is intended to be defined in proposed section 473.1 of the
Crimes Legislation Amendment (Telecommunications Offences and Other Measures)
Bill (no.2) 2004 which is likely to be enacted earlier than this Bill. `Access' is
defined in that section to include the display of material by a computer or any other
output of the material from a computer, the copying or moving of the material to any
place in a computer or to a data storage device and the execution of a program (where
the material is a program).
Proposed subsection 474.29A(2) 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 material that directly or indirectly promotes, or provides
instruction on, a particular method of committing suicide, with the intention that they,
or another person, will use the material to promote or provide instruction on that
method of committing suicide. Proposed subsection 474.29A(2) will also make it an
offence to engage in the conduct, listed above, with the intention that the material be
used by another person to commit suicide.
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The proposed offences are 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.
The maximum penalties for the proposed offences are 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. These penalties
are the same as the 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).
The proposed offences are particularly aimed at use of the Internet, email and other
online applications and are 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
paragraphs 474.29A(1)(a) and (2)(a) include, amongst others, viewing; copying;
downloading; making available for viewing, copying or downloading; sending and
exchanging.
The conduct listed in paragraphs 474.29A(1)(a) and (2)(a) must be accompanied by an
intention that, respectively:
the relevant material be used, by the person who engages in the offending
conduct or another person, to counsel or incite suicide (in the case of
subsection 474.29A(1)), or
the relevant material be used by the person engaging in the offending
conduct or another person, to promote a method of committing suicide or
provide instruction on a method of committing suicide, or that another
person use the material to actually commit suicide (in the case of
subsection 474.29A(2)).
As the offences in proposed subsections 474.29A(1) and (2) require the intention that
the relevant material be used in a particular way for the offence to be proven, no
special defences for the proposed offences are necessary. (Of course, the general
defences in Chapter 2 of the Criminal Code will apply.) This is because no-one
should have a defence available to them if they intend, in engaging in particular
conduct, to, for example, incite a person to commit suicide.
Under paragraphs 474.29A(1)(b) and (2)(b), the relevant material must in fact be,
respectively:
material that directly or indirectly counsels or incites suicide (in the case of
subsection 474.29A(1)), or
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material that directly or indirectly promotes, or provides instruction on, a
particular method of committing suicide (in the case of
subsection 474.29A(2)).
These constitute physical elements of the respective offences that are circumstances.
By application of the default fault elements in section 5.6 of the Criminal Code, the
fault element of recklessness will apply to them. `Recklessness' as it applies to a
circumstance is defined in section 5.4 of the Criminal Code.
These offences are not intended to capture Internet material that advocates or debates
law reform on euthanasia and/or suicide related issues. Accordingly, proposed
subsections 474.29A(3) and (4) have been inserted to make it clear that the offences in
subsections 474.29A(1) and 474.29A(2) 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. 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.
Proposed section 474.29B Possessing, producing, supplying or obtaining suicide
related material for use through a carriage service
Proposed subsection 474.29B(1) will make it an offence for a person to possess or
control suicide related material (as covered by proposed section 474.29A), or produce,
supply or obtain suicide related material with the intention that it be used, by that
person or another person, in committing an offence against proposed section 474.29A
(a 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 offences 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.
The proposed offence covers a broad range of preparatory conduct undertaken with
the intention to commit a 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 another person to commit suicide. Proposed sections 473.2 and 473.3 in
the Crimes Legislation Amendment (Telecommunications Offences and Other
Measures) Bill (no.2) 2004 are intended to 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.
Subsection 474.29B(2) provides that a person can be found guilty of an offence
against subsection 474.29B(1), even if it is impossible to commit a 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.
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Subsection 474.29B provides that it is not an offence to attempt to commit an offence
against subsection 474.29B. Subsections 474.29B(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 474.29B's preparatory nature in relation to the primary
offence, it is appropriate that it contain such provisions.
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