Carr v Attorney-General (Cth)

Case [2023] FCA 1500

FEDERAL COURT OF AUSTRALIA

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

File number(s): VID 428 of 2022
Judgment of: ABRAHAM J
Date of judgment: 30 November 2023
Catchwords:

CRIMINAL LAW – whether “suicide” in the Criminal Code Act 1995 (Cth) applies to conduct in accordance with, and authorised by, Victorian voluntary assisted dying legislation.

CONSTRUCTION – Application for declaratory relief – meaning of “suicide” in the Criminal Code Act 1995 (Cth) – whether inconsistency between Commonwealth and State law – where Court has jurisdiction to determine application.

HELD – “Suicide” in the Criminal Code Act 1995 (Cth) does apply to conduct undertaken in accordance with and authorised by Victorian legislation – alternate declaration made.
Legislation:

Acts Interpretation Act 1901 (Cth) s 15AA

Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth)

Criminal Code Act 1995 (Cth) ss 474.29A, 474.29B, 475.1

Judiciary Act 1903 (Cth) s 39B(1A)(c)

Crimes Act 1958 (Vic) s 6B(2)

Voluntary Assisted Dying Act 2017 (Vic) ss 57(a), 79, 80

Voluntary Assisted Dying Regulations 2018 (Vic)

Cases cited:

 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27

BHP Group Limited v Impiombato [2022] HCA 33; (2022) 405 ALR 402

British Medical Association v The Commonwealth (1949) 79 CLR 201

Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378

Croome v Tasmania [1997] HCA 5; (1996) 191 CLR 119

Dickson v The Queen [2010] HCA 30; (2010) 241 CLR 491

Disorganised Developments Pty Ltd v South Australia [2023] HCA 22; (2023) 410 ALR 508

H Ltd v J [2010] SASC 176; (2010) 107 SASR 352

Hobart International Airport Pty Ltd v Clarence City Council [2022] HCA 5; (2022) 399 ALR 214

IL v The Queen [2017] HCA 27; (2017) 262 CLR 268

In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257

Jemena Asset v Coinvest Ltd [2011] HCA 33; (2011) 244 CLR 508

Kuczborski v Queensland [2014] HCA 46; (2014) 254 CLR 51

Lake Macquarie Shire Council v Aberdare County Council [1970] HCA 32; (1970) 123 CLR 327

Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554

Momcilovic v The Queen [2014] HCA 18; (2011) 254 CLR 1

Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145; (2013) 84 NSWLR 697

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Unions NSW v New South Wales [2023] HCA 4; (2023) 97 ALR 277

R v A2 [2019] HCA 35; (2019) 269 CLR 507

R v Credit Tribunal; Ex parte General Motors Acceptance Corporation, Australia [1977] HCA 34; (1977) 137 CLR 545

R v Gee [2003] HCA 12; (2003) 212 CLR 230

Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800; [1981] 1 All ER 545

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Details
AGLC
Carr v Attorney-General (Cth) [2023] FCA 1500
Case
[2023] FCA 1500
Decision Date

CaseChat Overview and Summary

The case of Carr v Attorney-General (Cth) involved the applicant seeking a declaration regarding the interpretation of the term "suicide" within the Criminal Code Act 1995 (Cth) in relation to conduct authorised by the Victorian Voluntary Assisted Dying Act 2017 (VAD Act). The applicant argued that the term "suicide" should not apply to conduct undertaken in accordance with and authorised by the VAD Act. The High Court was required to determine whether the term "suicide" in the Criminal Code Act 1995 (Cth) applied to conduct undertaken in accordance with and authorised by the VAD Act. This involved interpreting the ordinary meaning of the term "suicide" and considering whether there was an inconsistency between the Commonwealth and State law.

The Court held that the term "suicide" in the Criminal Code Act 1995 (Cth) does apply to conduct undertaken in accordance with and authorised by the VAD Act. The Court emphasised the importance of giving words their ordinary and natural meaning unless there is an evident intention to the contrary. The Court noted that there was no suggestion of inadvertence in the drafting of the Criminal Code Act 1995 (Cth) and that Parliament chose to use the term "suicide" without defining it. Consequently, the term should be given its ordinary meaning. The Court found that the applicant’s proposed construction of "suicide" did not align with its ordinary meaning and did not reflect Parliament’s intent. Therefore, the Court made an alternative declaration that the term "suicide" in 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 VAD Act. The Court also noted that this construction results in a direct inconsistency between the VAD Act and the Criminal Code Act 1995 (Cth) because the State law alters, impairs, or detracts from the operation of the Commonwealth law.

In conclusion, the Court made a declaration that the term "suicide" in sections 474.29A and 474.29B of the Criminal Code Act 1995 (Cth) does apply to conduct undertaken in accordance with and authorised by the VAD Act. This means that a doctor who assists a patient in voluntary assisted dying in ways authorised by the VAD Act risks committing an offence under the Criminal Code Act 1995 (Cth) if the conduct involves a carriage service. The Court's decision highlights the importance of interpreting statutory terms according to their ordinary meaning and the principle that State law cannot undermine the operation of Commonwealth law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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). 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].

Ratio Decidendi

Legal Principle Established

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 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. 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. 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. 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]. 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]. 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].