Prevention of suicide, not promotion of suicide or redescription of suicide

The point of this opinion piece is that the decriminalisation of suicide in the state of Victoria was done to prevent suicide. It was not done to either (1) promote suicide or (2) to jettison society of Christian or other religious reasoning for criminalisation of suicide – which, in other words, is described as a “sanctity of life no longer applying” on the alleged presumption that people are losing their religious basis for whatever they do or choose not to do.

Why identification of the real reason for decriminalisation is significant

The significance and acceptance of the real reason for the decriminalisation of suicide includes five implications:

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1. All claims that values have changed to allow and accept suicide, including assisted suicide and euthanasia, are simply wrong.

2. The assertion that the values of the people in the state of Victoria now allow and accept suicide – which was made by the Parliament of Victoria’s legislative council’s legal and social issue committee’s inquiry into end of life choices of 2015 and 2016 in their majority report – is simply wrong.

3. The reliance by the plaintiff in the case of Carr v AG that suicide has become more acceptable as seen in the decriminalisation is simply wrong.

Her Honour Justice Abraham states the following, referring to the end result of the process of decriminalisation of suicide, which involved Sir John:

“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). ….”

4. The correctness of the 2016 majority report meant that the 2015 Victorian inquiry and the 2016 majority report have no merit and recommendation 49 has no merit, and therefore the Voluntary Assisted Dying Act has no merit and should be repealed.

5. Noting that all assisted suicide and euthanasia around Australia and also New Zealand (End of Life Choice Act 2019) – which have the 2015 Victorian inquiry and the 2016 majority report as support for their own claim of legitimacy – must be seen as meritless as the foundation for their claim of merit does not have a valid basis.

Decriminalisation of suicide in jurisdictions outside Victoria

In the case of Carter v Canada, the judgment that introduced assisted suicide and euthanasia into Canada – and is a case that deserves a substantial amount of criticism – one of the (few) correct findings was that, in Canada in 1972, suicide was decriminalised to prevent suicide, not to promote suicide. The point being made is that it is for social sciences, such as psychology, to prevent suicide; it is not for the law to punish people for helping the helpless to the extent they want to die.

The most significant change to the suicide provisions occurred in 1972 when Parliament passed Bill C-2, an omnibus criminal law amendment bill. Among other changes, it abolished the offence of attempted suicide. As the Minister of Justice, the Honourable Otto Lang, explained when introducing the bill for second reading in the House of Commons:

“We have removed, as well, the offence of attempted suicide, again on the philosophy that this is not a matter which requires a legal remedy, that it has its roots and its solutions in sciences outside of the law and that certainly deterrent under the legal system is unnecessary.”

The error made in the 2016 majority report

The 2016 majority report failed to identify, understand, communicate (to the reader) and correctly apply the real reason for the decriminalisation of suicide in the state of Victoria for the following reasons:

1. They relied on the simplistic comment in Hansford from 1967 that things no longer applied (a self-serving presumption that the sanctity of life no longer applies).

2. Failed to read the whole of Hansford, which identified other reasons, other evidence, and other inquiries and documents that set out the real reason for the decriminalisation of suicide. The following should have been considered by the majority in the 2015 Victorian inquiry. These references contained in Hansford relating to Sir John were not mentioned, not considered, not communicated and not applied to the issue of decriminalisation of suicide.

These passages clearly refer to two documents: first, the document “Suicide and the Law”, a speech by Sir John, and secondly, a report of the Chief Justice Law Reform Committee.

“3512 Crimes [COUNCIL.] Bill. [14 MARCH, 1967.]

The Hon. J. W. GALBALLY

… but I do pay tribute to the work of the Honorable Sir John Vincent Barry, who is well known to all members. Sir John Barry published a paper on Suicide and the Law …

Suicide and the Law, by Sir John Barry, followed by the work of committee, has resulted in this measure before the House.”

It is important to realise that neither “Suicide and the Law” nor the Chief Justice Law Reform Committee report considered suicide to be something to be seen as joyous, an opportunity for relief, an act of free choice, as something to be celebrated, or an example of being “progressive”.

The comment from “Suicide and the Law”, which will leave an honest person in doubt about Sir John’s concerns about suicide, is as follows:

“The way would then be clear so that we may address ourselves to the task of solving by non-punitive methods what has been shown in this Symposium to be a grave and urgent social problem of increasing magnitude.”

The relevant quote from the Chief Justice Law Reform Committee:

“… to which we refer later, rests upon the belief that no useful social purpose is achieved by retraining suicide as offences under the Criminal law.”

Confirmation of prevention intention from CaseLaw

The error in the 2016 majority report was made plain by two judicial decisions – cited in the 2016 majority report – which were not correctly applied for their proper stance on the decriminalisation of suicide. The cases of R v Hood and R v Maxwell (both being decisions of Justice Coldrey, who the 2016 majority report otherwise relies upon for their arguments for legalisation) both contain the following quote, which is life affirming and is not advocating or promoting suicide:

“As long ago as 1967, suicide and attempted suicide ceased to be crimes in Victoria. However, Parliament retained an offence of aiding or abetting another person to commit, or attempt to commit, suicide. That offence carries a maximum penalty of five years’ imprisonment. Accordingly, whilst the law recognises the right of an individual to take his or her own life, it prohibits the assisting or encouraging of a person to pursue such a course of action. This offence remains on the statute books because the importance of human life, and its preservation, is a fundamental principle of our society. This concept is often encapsulated in the phrase ‘the sanctity of human life’. This law is also designed to protect a vulnerable person who opts for suicide at a time when extreme depression, from whatever cause, may provoke an irrational and emotional decision by that person to end their life. To this extent, the law may be seen as life affirming and not life denying and directed at discouraging suicide as a response to the emotional vicissitudes of life.”

Conclusion

The clearest conclusion from the above evidence is that the claim that the values of the people of Victoria (and Australia) as being supportive of suicide and thereby justifying the legalisation of assisted suicide and euthanasia on that basis is a false claim that is impossible to support. Further, the evidence is that the contrary is actually the case. The 2016 majority report should be rejected, its recommendation 49 should be rejected, and all legislation based on recommendation 49 repealed forthwith. It is a matter of life and death that all such legislation be repealed and vulnerable innocent people be protected.

David Foletta is a solicitor.