# data[].attributes.attachment_link.title
What is the Australian legislation governing animal welfare? - RSPCA Australia knowledgebase

# data[].attributes.attachment_link.description
RSPCA Australia knowledgebase / Miscellaneous / Animal welfare legislation / What is the Australian legislation governing animal welfare?

# data[].attributes.attachment_link.readable_text
In a 2007 report to the United Nations, the Special Rapporteur on Adequate Housing, Miloon Kothari, concluded that Australia had failed to implement the human right to adequate housing and was in the midst of a ' serious national housing crisis '.

There are 105,000 Australians experiencing homelessness.

The Government's White Paper on Homelessness, The Road Home: A National Approach to Reducing Homelessness, recognised the urgent need to address the extent of homelessness in Australia and identified commendable targets and goals, including halving overall homelessness by 2020.

In November 2009, the Federal Parliament's Standing Committee on Family, Community, Housing and Youth released a report based on its inquiry into homelessness legislation. The Committee acknowledged the overlap between protecting human rights and social inclusion and recommended that:

'new homelessness legislation include provisions for the right to adequate housing to be progressively realised. A definition of adequate housing, including its essential components should be included in legislation.'

A meaningful legislative framework is an essential component of an effective national response to homelessness. This legislation could make a significant contribution to the effectiveness of homelessness funding and service delivery and to outcomes for homeless individuals, families and children.

Related law reform submissions:

Joint submission by Homeless Law and the Council to Homeless Persons on the Homelessness Bill 2012 - Homeless Law and CHP commented on the exposure draft of a Federal Homelessness Bill. We expressed concern that in its form, the Bill would have no substantive impact on the issue of homelessness because it was a symbolic document with no connection to the existing framework of law, policy and intergovernmental agreements that govern homelessness funding and service delivery. PILCH HPLC and CHP Homelessness Bill submission.pdf

# data[].attributes.attachment_link.description
In a 2007 report to the United Nations, the Special Rapporteur on Adequate Housing, Miloon Kothari, concluded that Australia had failed to implement the human right to adequate housing and was in the midst of a ' serious national housing crisis '. There are 105,000 Australians experiencing homelessness.

# data[].attributes.attachment_link.readable_text
What's new?

What does homelessness have to do with human rights?

People experiencing homelessness face violations of a wide range of human rights. Access to safe and secure housing is one of the most basic human rights. However, homelessness is not just about housing.

A person who is homeless may be facing violations of the right to an adequate standard of living, the right to education, the right to liberty and security of the person, the right to privacy, the right to social security, the right to freedom from discrimination, the right to vote and many more.

These human rights are protected by a number of international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the Convention on the Rights of the Child (CRC).

For more information see the Commission's discussion paper, Homelessness is a Human Rights Issue.

Is there a right to housing?

Every person has the right to an adequate standard of living, which includes the right to adequate housing (ICESCR, article 11).

The right to housing is more than simply a right to shelter. It is a right to have somewhere to live that is adequate. Whether housing is adequate depends on a range of factors including:

legal security of tenure

availability of services, materials, facilities and infrastructure

affordability

accessibility

habitability

location

cultural adequacy.

For more information, see Housing as a Human Right.

Current projects

Government inquiry into homelessness legislation

On 26 November 2009 the House of Representatives Standing Committee on Family, Community, Housing and Youth released the report of its inquiry into homelessness legislation. The inquiry followed the Australian Government's release, in December 2008, of its White Paper, The Road Home: A National Approach to Reducing Homelessness.

The Australian Human Rights Commission made a submission to the inquiry, and encouraged all stakeholders in Australia to participate.

The Commission considers that any response to homelessness in Australia must adopt a human rights-based approach if it is to be effective.

Click here for further information about the inquiry, and to read the Commission's submission.

Past projects and publications

Discussion paper: Homelessness is a Human Rights Issue (2008)

This paper explores the many ways that homelessness impacts on a person's ability to enjoy basic rights and freedoms. It shows that homelessness is more than just a housing issue. Homelessness is about the enjoyment of a wide range of human rights. Since human rights belong to everyone, it is in the interests of the Australian community as a whole to ensure that the rights of people who are homeless are respected and protected.

Acknowledging that homelessness is about human rights is important for how people who are homeless are viewed and treated by the community. People who are homeless are not merely objects of charity, seeking help and compassion. Like all Australians, they are individuals entitled to protection and promotion of their human rights.

Click here to read Homelessness is a Human Rights Issue.

Speech: Can rights solve issues of poverty? (2007)

This speech was delivered by the former Human Rights Commissioner, Graeme Innes AM, at the NCOSS Conference: Perspectives on Poverty in September 2007.

Housing as a Human Right (1996)

This address was delivered to the National Conference on Homeless Persons by the former Human Rights Commissioner, Chris Sidoti, in September 1996.

Adequate housing is essential for human survival with dignity. Without a right to housing many other basic rights will be compromised including the right to family life and privacy, the right to freedom of movement, the right to assembly and association, the right to health and the right to development.

Australia's response to the right to housing has been a mixed one to date. On the positive side the right to housing is recognised and supported in documents such as Australia's National Action Plan on Human Rights. However, there remains considerable room for improvement, especially in relation to particular groups of Australians, including children and young people, women, Indigenous peoples, and people with mental illness.

Click here to download the address, Housing as a Human Right PDF (23K), Word (27K)

Homelessness and mental illness (1993)

The Commission conducted a National Inquiry into the Human Rights of People with Mental Illness in 1993. The inquiry confirmed that homeless people suffer a high rate of physical and mental health problems. Evidence to the inquiry confirmed the shortage of accessible and appropriate support services for people with mental illness. Further, for a homeless mentally ill person, seeking support is generally a difficult and confusing process. These findings were confirmed by the 2005 Inquiry Not For Service.

Youth homelessness (1989)

In 1989, the Commission conducted a National Inquiry into Homeless Children. It revealed that approximately 25,000 children and young people in Australia were homeless at that time, with many more at risk of homelessness or surviving in grossly inadequate housing. The inquiry demonstrated the link between homelessness and other problems such as unemployment, sexual abuse and exposure to violence. It also highlighted the lack of properly resourced and co-ordinated support services for homeless young people.

Homelessness and Indigenous people

Australia's Indigenous people experience considerable disadvantage in relation to housing rights as with other human rights. The housing conditions of Indigenous people remain well below those of the general population. This is especially so in rural and isolated areas where housing and infrastructure support are major contributing factors to the poor health of Indigenous people, particularly children.

# data[].attributes.attachment_link.description
People experiencing homelessness face violations of a wide range of human rights. Access to safe and secure housing is one of the most basic human rights. However, homelessness is not just about housing.

# data[].attributes.attachment_link.readable_text
Pill testing advocates will break the law and offer punters the service at either Groovin the Moo or Spilt Milk in Canberra this coming festival season.

Will Tregoning, the founder of harm reduction agency Unharm, is one of the three drug policy experts who earlier this year said they would offer festival pill testing, and potentially get arrested, in order to test the reaction of authorities.

It came after six drug-related deaths at music festivals in 2015.

Pill testing is a service where punters can go to have illegal drugs such as MDMA tested for purity and the presence of dangerous additives like ketamine.

It's one of the only ways of knowing what you're taking, and if you bought what you paid for.

The other drug experts who have been working with Will Tregoning are Australian Drug Law Reform Foundation president Alex Wodak and Canberra physician David Caldicott.

It's not clear if the three are still working together.

Earlier this year, they said they would do testing at Sydney festivals, and then in April they revealed they were looking at jurisdictions outside of NSW.

Today, Tregoning told Hack it would happen in the ACT.

"I think we will see drug checking or pill testing in Australia this year," he said.

"It won't happen in NSW. It's much more likely to happen in the ACT."

Asked if he meant Spilt Milk (held in Canberra in December), he said he could also be referring to Groovin the Moo (also Canberra, to be held early next year).

"Canberra doesn't have the biggest festival but there's an opportunity to prove this is a viable and effective thing that can really work," he said.

"All these things that people come up with about how we can't possibly do this in Australia - they can easily be disproved by showing this can be done.

"Pill testing is being used in at least 10 countries around the world.

"Absolutely we know it's working."

We don't endorse pill testing: ACT Government

NSW Police and the Baird Government had labelled the project illegal and Tregoning described the atmosphere in NSW as "very negative and tense".

Hack asked the ACT Government if it was considering allowing pill testing inside festivals. A spokesperson said it was "not a government endorsed approach".

It noted there was no law prohibiting the possession of drug-testing kits, but that possession of illegal drugs remained an offence.

"The ACT Government is committed to its harm-minimisation approach to illicit drugs, and is constantly looking at ways to better reduce harm, reduce supply and reduce demand."

The news comes the day after the ACT Greens pledged their support for the idea of pill testing at Canberra music festivals. They said they would take it to the Legislative Assembly after the October election. Labor and the Liberals staunchly oppose the idea.

According to Hack's massive annual survey, a majority of our young listeners support pill testing.

Of the people surveyed who said they used drugs (about half), about 80 percent said they would use pill testing at a festival.

According to this year's world drug survey, there's never been more MDMA available globally, and the quality is getting better. This increases the risk of overdose, leading some to say it is "the worst time to start taking MDMA in a generation".

# data[].attributes.attachment_link.title
'We will do pill testing at a Canberra music festival this summer'

# data[].attributes.attachment_link.description
Pill testing advocates will break the law and offer punters the service at either Groovin the Moo or Spilt Milk in Canberra this coming festival season. Will Tregoning, the founder of harm reduction agency Unharm, is one of the three drug policy experts who earlier this year said they would offer festival pill testing, and potentially get arrested, in order to test the reaction of authorities.

# data[].attributes.attachment_link.readable_text
A decade-long national study conducted by the University of Western Sydney found that nearly half of Australians describe themselves as having anti-Muslim attitudes.

These findings could hardly come as a surprise to anyone familiar with the sheer amount of blatant Islamophobia that is reported through the Islamophobia Register Australia.

I myself have struggled tremendously, both physically and mentally, after being singled out by the Australian Defence League, and finding myself on the receiving end of death threats and near-constant online bile.

This is part and parcel of being a visible Muslim in Australia today, who quickly become the target of social media vitriol, verbal abuse and physical assaults every time someone or something even remotely associated with Muslims or Islam is thrust involuntarily into the media spotlight.

The word "Islamophobia" was coined because there was a new reality that needed naming - namely, anti-Muslim prejudice. Just to be clear, this is not a matter of theological debate and disagreement, much less criticism of Islamic teachings and practices. This is about bigotry, discrimination, abuse and, I will argue, racism.

Is Islam an ethno-religion?

The category of an ethno-religious group was created to cope with anti- Semitism as a special form of racism. This was the right move, in my view. This grouping was created because this particular group of vulnerable people went through a process of "racialisation" over time.

But it is time that we understood the ethnicised and racialised nature of Islam in Western countries, and recognise Islamophobia as a form of racism akin to anti-Semitism.

What exactly is racialisation? It is defined as the process by which groups are categorised and accorded certain phenotypic features that stems from their way of living. Ultimately, racialisation results in essentialism - it reduces people to one aspect of their identity and thereby presents a homogeneous, undifferentiated, and static view of an ethno-religious community.

Randa Abdel-Fattah, who has explored at length the various forms Islamophobia takes in countries like Australia, challenges the claim that Muslims cannot be the victims of racism because they are not a race. This claim, she argues, is based on an impoverished understanding of the history of race, racial formation and racism. She argues that the body-fixated theory that sustains a demarcation between race and religion ignores the enormous scholarship carried out that demonstrates the falsity of claiming that religious affiliations are never to do with the body, and that "race" is only to do with the body. She argues:

"that racial marking and racialisation do not depend on so-called biological attributes. Essentialising people on the basis of their outward appearance - whether it be skin colour, facial features, a headscarf, beard, an accent - is precisely how the process of racialisation works."

While it is certainly true that being a Muslim is voluntary and not a biological trait per se - in the way that "African American" or "South Asian" or "European" is - as Nasar Meer and Tariq Modood point out, originally, neither was being "Jewish." They argue that it was took a long, non-linear process of racialisation to turn an ethno-religious group into a race.

I am mindful that some may be insulted by any comparison of Islamophobia with anti-Semitism, on the grounds of the exceptionalism of the history of Jewish hatred in the West. I am, of course, not seeking to downplay the long history of persecution suffered by the Jewish communities.

The real issue, however, is the apparent double-standard, the anomalies and contradictions that are embedded in anti-discrimination legislation, which lead to unjust but legally compliant decisions whereby, for a complaint against comparable offences when religion is not a protected attribute, a Jewish person can obtain reparation while a Muslim cannot.

A prime example of such a double-standard is the 2002 case of a Muslim prisoner in New South Wales who filed a case when he was denied his request for Halal food in a private prison, knowing full well that his Jewish inmate obtained his Kosher meal when requested. The court stated that, since Halal food is of a religious element and religion is not covered under the New South Wales Anti-Discrimination Act (1977), therefore the case should be dismissed.

Such inconsistencies in the application of the law - whereby a religious dietary requirement was obtained by one religious group but denied to another - are highly problematic and demand some redress.

But, as Mariam Farida rightly argues, even if Muslims were considered an ethno-religious group, they may not be protected from religious discrimination under the law. Making reference to specific cases, she concludes that even if a party belonged to an acknowledged ethno-religious group, the court may only consider it a breach if the vilification was both on the grounds of ethnicity and religion, and not purely based on religion alone.

We thus need to consider whether having Islam categorised as an ethno-religion would actually achieve the intendedobjective.

The Racial Discrimination Act and religion

This leads inexorably to the question of whether the Racial Discrimination Act be amended so as to extend to religious vilification. Quite apart from the obvious body of opposition to such a proposition, I suspect that the likes of Andrew Bolt would have a hernia. He'd have to acquaint himself quite intimately with what it means to write something in "good faith"!

I acknowledge that there is a deep-seated resistance to include religion among the grounds covered by anti-discrimination laws. Interestingly, despite the fact that some Christian groups oppose religious vilification laws, the Australian Christian Lobby in its 2012 submission in relation to the Consolidation of Commonwealth Anti-Discrimination Laws proposed that religion be a protected attribute against discrimination, in order to remedy a substantial omission in the Commonwealth legislation.

In Australia, the states that cover religious discrimination in their legislations are Victoria, Queensland, Western Australia, the ACT and the Northern Territory. I note that New South Wales contains Australia's largest Muslim population, and yet they are not protected from religious vilification. Interestingly, the New South Wales Anti-Discrimination Act (1977) was amended in 1994 to add a reference to "ethno-religious." The then NSW Attorney-General, John Hannaford, explained that "the effect of the amendment is to clarify that ethno-religious groups, such as Jewish people, Muslims and Sikhs, have access to the racial vilification and discrimination provisions of the Act." The stated intention was, in fact, to cover Australian Muslims - but this never materialised.

One of the objections often raised against making religion a protected attribute under the Racial Discrimination Act is that religion is deemed strictly personal and tends to be chosen. This is true. Though it is important to point out that in circumstances where a person finds herself born to a Muslim family, with Muslim stereotypes and characteristics, then it could be argued that it is not a matter of choice anymore.

When examining this objection from a purely practical perspective, one does not choose the name they are given or the family into which they are born. One doesn't choose to be named Mohamed Abdulla, for example. Yet, even if there were no other identifying features, this name alone is enough to identify a man as being a Muslim and therefore make him prone to being the subject of religiously motivated abuse.

Furthermore, researchers have made the point that one does not choose to be born a Muslim in a society where identifying as Muslim makes you the subject of suspicion and interrogation. If choice is the factor that precludes a Muslim from being seen as a victim of racism, then isn't the logical conclusion to be drawn that such a choice is a bad one? If a Muslim is the victim of a hate crime but cannot seek legal recourse because the attribute that attracted the abuse is "chosen," isn't the clear message that concealing this choice - that is, being less Muslim - would go a long way towards preventing the abuse?

Sure, I'd cop far less abuse if I chose not to wear a hijab - but why should I be forced to make such a choice? One cannot help but feel that the victim is here being blamed or made to feel as though they are inviting the abuse. This line of moral and legal reasoning is deeply flawed, and is comparable to someone blaming a woman's dress sense for her being the victim of sexual harassment.

The impact of Islamophobia

Where religious groups or individual believers are subject to vilification, it can have deeply hurtful effects and create considerable fear within religious communities. It also feeds into a vicious cycle. Islamophobia, if left unchecked, may serve to erect barriers to Muslim inclusion in Australia, increasing alienation, especially among young Muslims. Not only would such a situation do grave damage to our social cohesion, it would simultaneously expand the pool of recruits for future radicalisation. This factor is often ignored or overlooked.

Let me conclude by citing an article by my dear friend, Randa Abdel-Fattah:

"Do you want to know how it feels to be an Australian Muslim in the Australia of today?

"Then turn on the television, open a newspaper. There will be a feature article analysing, deconstructing, theorising about Islam and Muslims in which your fellow Australians will be offered the chance to make sense of this phenomenon called 'the Muslim'.

"This is what it means to be an Australian Muslim today. It is to try to live against the perception that one represents a synonym for terrorism and extremism.

"It is to see the faith you embrace with such conviction defiled and defamed because acts that defy Islamic law and doctrine are still prefixed by the media with the word 'Islamic'. It is to have the reasonable, peaceful statements of your leaders ignored and the ignorant ravings of the minority splashed across the headlines. It is to be the topic of talkback radio rant and raves.

"It is to come to accept that although atrocities are committed in the name of all religions around the world, it is Islam alone that will be judged by the actions of those who purport to be its followers. It is to refuse to lay blame for the behaviour of so-called Christians at the feet of Christ because you respect the intent of Christ's words and actions and because you know that even those acting in his name are misguided.

"So what it means to be an Australian Muslim today is that you will often sit alone, in the silence of your hurt and fury, and wonder why it is so difficult for Islam, a religion followed by 1.5 billion people, all of whom cannot be uncivilised, unintelligent, immoral, unthinking dupes, to be treated with the same respect."

Is it not unconscionable for some religious minority groups to be afforded legislative protections and other religious groups, who are also in desperate need of such protections, to be denied the same protections?
Mariam Veiszadeh is a lawyer, community advocate and founder of Islamophobia Register Australia. An earlier version of this article was presented to the RDA@40 Conference in Sydney, 19-20 February 2015.

# data[].attributes.attachment_link.title
Religion and the Racial Discrimination Act: Don't Muslims Also Deserve Protection?

# data[].attributes.attachment_link.description
A decade-long national study conducted by the University of Western Sydney found that nearly half of Australians describe themselves as having anti-Muslim attitudes. These findings could hardly come as a surprise to anyone familiar with the sheer amount of blatant Islamophobia that is reported through the Islamophobia Register Australia.

# data[].attributes.attachment_link.title
Call to crack down on gambling ad 'bombardment'

# data[].attributes.attachment_link.description
Self-regulation of sports odds in live broadcasts has failed to quell community concern and a review of online gambling laws should be expanded to include gambling advertising rules.

# data[].attributes.attachment_link.readable_text
Australia's existing policy mix - and planned changes to that mix - provide important context for considering its future emissions reduction goals.

Over more than two decades, Australian governments at all levels have implemented policies to reduce emissions. Regulatory measures include labelling and minimum performance standards for appliances, building codes and restrictions on land clearing. A range of trading schemes has been implemented to promote renewable energy, emissions reductions in the land sector, energy efficiency, and emissions reductions more generally.

In 2011, legislation was passed to create the carbon pricing mechanism (a cap-and-trade emissions trading scheme). The Government intends to repeal this legislation, and implement the Direct Action Plan. The centrepiece of this Plan is the Emissions Reduction Fund, which is to purchase emissions reductions through a reverse auction.

Chapter 6 introduces Australia's policy initiatives to reduce emissions. It:

outlines the range of policy measures for addressing climate change;

describes Australia's existing climate change policies to reduce emissions; and

outlines the Government's proposed new policy.

In the next chapter we assess the extent to which Australia has progressed towards a low-emissions economy.

6.1 Australia's climate change policy options

Like other countries, Australia has drawn on a wide range of measures to reduce its greenhouse gas emissions. The policy 'toolbox' includes:

voluntary measures, such as the GreenPower renewable energy purchasing scheme;

regulatory measures, such as labelling laws, minimum performance standards, building codes and restrictions on land clearing;

trading schemes, such as the carbon pricing mechanism, Renewable Energy Target (RET), state-based energy efficiency trading schemes, the former NSW Greenhouse Gas Reduction Scheme (GGAS) and the Carbon Farming Initiative (CFI); and

a wide range of government funding schemes, such as grants provided by the Australian Renewable Energy Agency (ARENA) and the Government's planned Emissions Reduction Fund.

In Australia, climate change policies have been introduced by both major parties and at all levels of government since the late 1980s. Climate change policies began with voluntary schemes such as energy labelling (initially in New South Wales and Victoria from 1986) and the national Greenhouse Challenge Program for industry from 1995. Energy labelling became mandatory from 1992, and progressed to minimum standards on a range of devices from 1999 (for example, refrigerators, freezers and air conditioners). In 2003, New South Wales introduced GGAS, one of the first mandatory emissions trading schemes in the world. The Commonwealth Parliament introduced a mandatory renewable energy target in the electricity sector in 2001 (see Section 6.2.1 for detail).

6.2 Major existing policy and legislation

In 2011, the Clean Energy Future Package was legislated. The Clean Energy Act 2011 (Cth) established long term goals to reduce emissions by 80 per cent from 2000 levels by 2050 and to contribute to a global response to limit global warming to no more than 2 degrees above pre-industrial levels. Other major elements include a carbon price that covers over half of Australia's emissions and the CFI which provides incentives to reduce emissions in the land sector.

A broader suite of sector-specific initiatives are also in place, and state and local government levels play an important role through, for example, land use controls, energy efficiency and renewable energy programs.

At the Commonwealth Government level, the main legislated policy tools are currently the RET, the CFI and the carbon pricing mechanism. These policies, plus a range of other significant policies applying to particular activities, are summarised below.

6.2.1 Renewable Energy Target

The RET drives investment in renewable energy. It creates a guaranteed market for renewables using a tradable certificate scheme that encourages projects at large scale (for example, wind farms) and small scale (for example, solar PV on household rooftops). Electricity retailers and other entities that purchase wholesale electricity are required to surrender a certain number of renewable energy certificates each year or pay a shortfall charge.

The RET has been in place and driving renewable energy generation since 2001. The target, initially legislated by the Howard Government, was expanded in 2009 to 45 000 GWh by the Rudd Government. At the time, this was expected to deliver around 20 per cent of electricity generation in 2020. Recent softening of electricity demand means that 45 000 GWh could constitute a higher share in 2020 (CCA 2012).

This target was split into two schemes in 2011:

the Large-scale Renewable Energy Target (LRET) supports large-scale renewable energy projects. The LRET has annual fixed targets and a 2020 target of 41 000 GWh; and

the Small-scale Renewable Energy Scheme (SRES) supports the installation of small-scale renewable technology systems. The SRES has an implicit target of 4 000 GWh, but is uncapped. The Authority estimates it may result in about 11 000 GWh of generation in 2020 (CCA 2012).

Since the introduction of a RET in 2001, Australia's renewable electricity capacity has doubled (CCA 2012). In terms of electricity generation, there was 24 GWh of renewable electricity in 2012, about 9 per cent of total electricity.

Around one million households have already installed rooftop solar PV (DIICCSRTE 2013), which the Australian Energy Market Operator (AEMO) estimates will generate around 2 700 GWh in 2013 (AEMO 2013).

6.2.2 Carbon pricing mechanism

The carbon pricing mechanism began operation in 2012 and requires Australia's largest greenhouse gas emitters to report and be liable for their greenhouse gas emissions, creating an incentive to reduce those emissions. As noted above, the Government intends to repeal the carbon pricing mechanism; this section describes the scheme as currently legislated. The carbon pricing mechanism covers about 370 of Australia's biggest emitters, accounting for more than half of Australia's emissions, including in electricity generation, other direct combustion, landfills, wastewater, industrial processes and fugitive emissions. Some other sectors are covered by an equivalent carbon price (see Part E for further details).

For every tonne of greenhouse gases emitted, firms need to surrender one unit to the regulator. The price of these units is referred to as the carbon price. The carbon pricing mechanism has a three-year fixed-price period from 1 July 2012 to 30 June 2015. During the fixed price period, liable entities pay a price for each unit that starts at $23 a tonne in 2012-13 and rises at 2.5 per cent a year in real terms. When the fixed-price period ends, a cap will limit the emissions units that can be issued. Under the legislation, the Minister responsible for climate change must set caps, taking into consideration the Authority's advice as part of this Review. The legislation requires caps to be announced five years in advance. In the event that Parliament does not set caps through regulation, default caps apply.

Approved international units can be surrendered to meet up to 50 per cent of an entity's carbon liability. At present, approved international units include European Union Allowances (EUAs) and units generated under the Kyoto Protocol. More detail on international carbon markets is provided in Appendix B.

6.2.3 Carbon Farming Initiative

The CFI commenced in 2011. It allows approved carbon reduction projects to generate carbon units. Sectors eligible for the CFI are not covered by the carbon pricing mechanism and include agriculture, forestry and landfills (for waste deposited before July 2012). Units created under the CFI are called Australian Carbon Credit Units. These can be sold to liable parties under the carbon pricing mechanism, or to individuals and organisations wishing to voluntarily offset their emissions (for example, in the Carbon Neutral Program).

Activities that have earned units under the scheme include:

Reduction of emissions from waste. The waste sector accounts for the largest share of registered CFI projects. As at 12 September 2013, the CFI has 60 registered waste projects involving gas capture, combustion and diversion. The Clean Energy Regulator (2013) reports that about 1.9 million Australian carbon credit units have been issued, representing a reduction in emissions of 1.9 million tonnes of carbon dioxide equivalents (CO₂-e).

Management of savanna burning in the Northern Territory. The Indigenous Land Corporation has generated credits by implementing a method of controlled burning early in the dry season.

Capture of methane generated from manure at a piggery in New South Wales. The electricity generated from the captured methane at Blantyre Farm has been sufficient to power the entire property.

6.2.4 Other sector-specific initiatives

A range of initiatives exist to reduce emissions in the land use, industry and buildings sectors:

Land clearing. Annual rates of land clearing have decreased substantially since 1990, due to state-based regulations in New South Wales and Queensland on new land clearing and weaker economic conditions for farming (leading to reduced incentives for farmers to clear land and expand production).

Minimum energy performance standards. From 1999, some products and appliances such as refrigerators and air conditioners have been subject to minimum energy performance standards through state government legislation. Building upon this, the Greenhouse and Energy Minimum Standards (GEMS) Act 2012 (Cth) implements nationally consistent standards for appliances in the residential and commercial sectors.

The Energy Efficiency Opportunities program. Introduced in 2006, this program promotes energy efficiency in Australia's largest energy-using firms (firms that consume more than 0.5 PJ of energy per year - equivalent to 10 000 households). The program requires firms to assess their energy use and identify cost-effective energy efficiency opportunities (with up to a four-year payback period).

New building standards. Under the Building Energy Efficiency Disclosure Act 2010 (Cth), commercial offices must disclose energy performance and receive a building efficiency rating through the National Australian Built Environment Rating System. Since 2003, residential energy efficiency standards have existed for new buildings in the National Construction Code, and these were strengthened in 2010. Most states and territories now require energy performance equivalent to 6-stars on a 10-star scale for new residential construction.

Efficient lighting. The Commonwealth is also phasing out inefficient lighting and moving to more efficient alternatives such as compact fluorescent and LED lamps. Sales restrictions on inefficient lighting began in 2009 and standards will be rolled out to include a broader range of energy efficient lighting over time.

The Government intends to replace the carbon pricing mechanism with the Direct Action Plan. Details of the plan are being developed and are discussed in Section 6.3.

6.3 The Direct Action Plan

The Government has committed to introduce the Direct Action Plan to replace the carbon pricing mechanism and other elements of the 2011 Clean Energy Future Package.

Work is underway on the implementation of the Direct Action Plan. In this Review, the Authority has not made any assumptions regarding the detailed policy design or implementation beyond what has been announced.

A central feature of the Direct Action Plan is to be the Emissions Reduction Fund. It is proposed the Fund will purchase least-cost emissions reductions in Australia through reverse auctions. It is expected that the scope of methodologies under the Carbon Farming Initiative will be expanded and that the Clean Energy Regulator will continue to play a central role on the approval of projects (Hunt 2013).

The Government has indicated it will call for submissions on issues such as the auction process and the setting of baselines within 30 days of forming government, and that the Emissions Reduction Fund would commence on 1 July 2014.

In addition to the Emissions Reduction Fund, the Direct Action Plan proposes to include:

rebates for solar panels, solar hot water systems and heat pumps;

grants for renewable energy in schools and towns; and

planting an additional 20 million trees.

Australia's policy mix, combined with underlying trends in the economy, has influenced its emissions performance. Chapter 7 sets out how Australia's emissions have been tracking to date.

# data[].attributes.attachment_link.title
Climate Change Authority | Climate Change Authority

# data[].attributes.attachment_link.description
Australia's existing policy mix - and planned changes to that mix - provide important context for considering its future emissions reduction goals. Over more than two decades, Australian governments at all levels have implemented policies to reduce emissions. Regulatory measures include labelling and minimum performance standards for appliances, building codes and restrictions on land clearing.

# data[].attributes.attachment_link.title
Research Guides: Aboriginal people and the law: Law today

# data[].attributes.attachment_link.description
Legislation, regulations, gazettes, committee reports, law

# data[].attributes.attachment_link.readable_text
This report contains information on government policy and/or laws regarding Internet censorship in various countries around the world. The information was compiled by EFA in March 2002 in response to a request from the Chair of a NSW Parliamentary Committee inquiring into a NSW Bill intended to censor the Internet (for background, see the Introduction section below).

Contents:

Introduction

This report contains information on government policy and/or laws regarding Internet censorship in various countries around the world. Information herein was compiled by EFA in March 2002 in response to a request by the Chair of the NSW Standing Committee on Social Issues for information on whether or not other countries have Internet censorship laws similar to Schedule 2 of the NSW Classification (Publications, Films and Computer Games) Enforcement Amendment Bill 2001. (For detailed information about this Bill, see the NSW Internet Censorship Bill section of EFA's web site).

EFA subsequently undertook extensive research into the current status of laws and government policy outside Australia. EFA was unable to find any indication that any country broadly comparable to Australia (in terms of democratic political systems and cultures) has, or intends to introduce, Internet censorship laws as restrictive as the provisions of the NSW Bill, nor as restrictive as existing Commonwealth legislation. While numerous countries have laws of general application applicable to Internet content such as child pornography or incitement to racial hatred, they do not prohibit or otherwise restrict provision of "matter unsuitable for minors" on the Internet.

The lack of similar laws in comparable countries is not due to a failure of Parliaments or Governments to consider the problems of illegal content or content unsuitable for minors on the Internet. Rather, it reflects a different approach from that in Australia to dealing with the problems.

The remainder of this document contains an overview of governmental approaches to dealing with Internet content that is illegal, or is unsuitable for minors, followed by sections containing more detailed information about various countries.

Overview

Since approximately 1995, numerous governments around the world have been addressing the problems of material on the Internet that is illegal under their offline laws, and also that considered harmful or otherwise unsuitable for minors. The nature of material of principal concern has varied substantially. For example: political speech; promotion of or incitement to racial hatred; pornographic material. Few governments have attempted to ban or otherwise legislatively restrict access to "matter unsuitable for minors" as distinct from material illegal to distribute to adults.

As at March 2002, government policies concerning censorship of the Internet may be broadly grouped into four categories:

a) Government policy to encourage Internet industry self-regulation and end-user voluntary use of filtering/blocking technologies.

This approach is taken in the United Kingdom, Canada, and a considerable number of Western European countries. It also appears to be the current approach in New Zealand where applicability of offline classification/censorship laws to content on the Internet seems less than clear.
In these countries laws of general application apply to illegal Internet content such as child pornography and incitement to racial hatred.

Content "unsuitable for minors" is not illegal to make available on the Internet, nor must access to same be controlled by a restricted access system. Some (perhaps all) such governments encourage the voluntary use of, and ongoing development of, technologies that enable Internet users to control their own, and their children's, access to content on the Internet.

b) Criminal law penalties (fines or jail terms) applicable to content providers who make content "unsuitable for minors" available online.

This approach is taken in some Australian State jurisdictions and has been attempted in the USA (although no such US Federal law is presently enforceable, and to the best of EFA's knowledge nor is any such US State law).
In these countries, in addition, laws of general application apply to content that is illegal for reasons other than its unsuitability for children, such as child pornography.

c) Government mandated blocking of access to content deemed unsuitable for adults.

This approach is taken in Australian Commonwealth law (although it has not been enforced in this manner to date) and also in, for example, China, Saudi Arabia, Singapore, the United Arab Emirates and Vietnam. Some countries require Internet access providers to block material while others only allow restricted access to the Internet through a government controlled access point.

d) Government prohibition of public access to the Internet.

A number of countries either prohibit general public access to the Internet, or require Internet users to be registered/licensed by a government authority before permitting them restricted access as in (c) above. Information on countries in this category is available in the Reporters Without Borders/Reporters Sans Frontiers report Enemies of the Internet of February 2001.

In the many countries that have Internet censorship laws far more restrictive than those existing or proposed in Australia, governmental focus appears to be on prohibiting and/or restricting politically sensitive speech, criticism of the government, etc. These governments do not appear to have any focus on prohibiting or restricting content deemed unsuitable for minors as distinct from content deemed unsuitable for adults.

Commentary on the ineffectiveness of legislation like the NSW Bill to protect children on the Internet often focusses on the USA constitutional right to freedom of speech and the US Supreme Court having struck down a similar law. However, from a global perspective, the law in the USA is irrelevant. Even in the highly unlikely event that the USA and Australia enacted identical laws, these would remain ineffective in protecting minors on the global Internet.

Concerns about access to content on the Internet vary markedly around the world and regulatory policy reflects this. What is illegal in one country is not illegal in others, and what is deemed unsuitable for minors in one country is not in others. For example films classified R18 in Australia are often classified suitable for persons under 18 years in other countries, e.g. Intimacy (sex scenes) and Hannibal (violence) are classified 18 in Australia, but are classified 12 in France. However, France prohibits the display of Nazi memorabilia, including on web pages, which is not prohibited by Australian offline laws nor by existing or proposed online censorship laws. Many similar examples exist that demonstrate the ineffectiveness of national censorship laws to protect children (or adults) on the Internet.

The USA is not the only country where citizens have a right to freedom of expression. In contrast to Australia, governments in comparable countries including Canada, New Zealand, the United Kingdom and various European countries have chosen to legislate to give citizens a right in domestic law to freedom of expression similar to that contained in the International Convention on Civil and Political Rights (ICCPR). Such a right is by no means absolute and does not prevent governments from enacting or enforcing laws restricting freedom of expression. However, to the best of EFA's knowledge, governments in these countries have not enacted or indicated any intent to enact, Internet censorship legislation as restrictive of adults' freedom of expression, as that existing and proposed in Australia.

Chronology of developments
(in Australia, Canada, NZ, UK, USA)

This section contains a chronology of developments since 1996 regarding governmental policy on Internet censorship and freedom of expression rights in Australia, Canada, NZ, UK, and the USA.

1996:

Victoria, WA and NT Internet censorship laws commenced (1 Jan 96)

USA Communication Decency Act (CDA) enacted, US Court restraining order prevented its enforcement (Feb 96)

USA Court ruled CDA unconstitutional (Jun 96)

UK Government issued R3 Safety-Net action plan developed by UK ISP trade associations and agreed by Government involving industry establishment of complaints hotline and related take-down procedures for illegal Internet content, primarily child pornography (Sep 96)

European Commission issued a Communication on illegal and harmful content on the Internet advocating the use of filtering software and rating systems, and an encouragement to self-regulation of access-providers. (Oct 96)

1997:

USA Supreme Court struck down the CDA (Jun 97)

NZ Parliament rejected a Bill intended to censor Internet content unsuitable for minors (Jul 97).

1998:

UK Human Rights Bill enacted implementing the European Convention on Human Rights (ECHR).

USA Child Online Protection Act (COPA) enacted (Oct 98). US Court restraining order prevented its enforcement (Nov 98).

1999:

Canadian Radio-television and Telecommunications Commission (CRTC) announced it would not regulate the Internet (17 May 99).

Australian Commonwealth Parliament passed Internet censorship Bill (26 May & 30 Jun 99)

Australian State and Territory Censorship Ministers issued draft Internet censorship legislation for comment (Aug 99).

NZ Court of Appeal overturned a classification of (offline) 'objectionable' material on grounds that the Classification Board had failed to demonstrate the classification was consistent with the NZ Bill of Rights (Dec 99)

2000:

Australian Commonwealth Internet censorship legislation commenced (1 Jan 2000)

US Court of Appeals upheld injunction restraining enforcement of US Child Online Protection Act (COPA). (Jun 2000)

UK censorship of sexually explicit material became less restrictive following an appeal case (Jul 2000).

Australian censorship of sexually explicit material became more restrictive following a government decision to ban depictions of various types of legal activity between adults. (Sep 2000)

UK Courts became able to test the compatibility of UK law with the European Convention on Human Rights (commencement of relevant provisions of the UK Human Rights Bill 1998). (Oct 2000)

South Australian State Government tabled an Internet censorship Bill (Nov 2000)

UK Government issued Communications White Paper indicating no intent to enact Internet censorship legislation and stating policy of supporting means of enabling Internet users to control their own and their children's access, "rather than third party regulation". (Dec 2000)

2001:
NSW State Government tabled an Internet censorship Bill (Nov 2001)

Country information

Australia

The Internet censorship regime in Australia comprises legislation at both Commonwealth and State/Territory Government level.

In April 1999, the Commonwealth Government introduced an Internet censorship Bill into Parliament. This Bill, if it had been passed without amendments, would have required Internet Service Providers to, among other things, block adults' access to content on sites outside Australia on threat of fines for non-compliance. Following widespread criticism, the proposed law was amended to include provision for an additional access prevention method (other than ISP blocking of overseas hosted material at the server level).

The amended law, the Broadcasting Services Amendment (Online Services) Act 1999, commenced operation on 1 January 2000.

The Commonwealth regime is a complaints based system and applies to content hosts including ISPs, but not to content creators/providers. Content hosts are required to delete Australian hosted content from their server (Web, Usenet, FTP, etc) that is deemed "objectionable" or "unsuitable for minors" on receipt of a take-down notice from the government regulator, the Australian Broadcasting Authority ("ABA"). To date (March 2002), the law has been implemented in a way that does not require ISPs to block access to content hosted outside Australia. Instead, the ABA notifies filtering/blocking software providers of content hosted outside Australia to be added to their blacklists. Australian Internet users are not required by law to use blocking software.

In addition, State and Territory criminal laws apply to content providers/creators. These laws enable prosecution of Internet users who make available material that is deemed "objectionable" or "unsuitable for minors". The detail of the criminal offence provisions is different in each jurisdiction that has enacted or proposed laws of this nature.

For more detailed information about the Commonwealth and State/Territory laws, see EFA's Internet Censorship in Australia page.

Canada

In August 1998, the Canadian Radio-television and Telecommunications Commission (CRTC) called for public discussion on what role - if any - it should have in regulating matters such as online pornography, hate speech, and "Canadian content" on the Web.

Subsequently, on 17 May 1999, the CRTC issued a media release titled "CRTC Won't Regulate the Internet" stating, among other things, that:

"The Canadian Radio-television and Telecommunications Commission (CRTC) announced today that it will not regulate new media services on the Internet. After conducting an in- depth review under the Broadcasting Act and the Telecommunications Act beginning last July, the CRTC has concluded that the new media on the Internet are achieving the goals of the Broadcasting Act and are vibrant, highly competitive and successful without regulation. The CRTC is concerned that any attempt to regulate Canadian new media might put the industry at a competitive disadvantage in the global marketplace."

See also: Canada Won't Regulate Net, Pierre Bourque, Wired News, 17 May 1999

Offline Classification:

In Canada, film and video classifications are province-based. Some provinces use the same classification system for both films and videos, while others use a different system, e.g. Ontario. As videos for home rental can have different provincial classifications, in 1995 the film and video industry developed the Canadian Rating System for Home Videos. Under this system, ratings are determined by averaging the classifications assigned by the provincial boards and placed on videos.

Some provinces include sexually explicit material in the R category, while others provinces have a separate category for material similar to that classified X, and some classified RC, in Australia.

Computer games are not required by law to be classified in most Canadian provinces. A non-government rating scheme is voluntarily used by video and computer game distributors which includes an Adults Only/18 rating (unlike in Australia).

China

In September 1996, China reportedly banned access to an estimated 100 Web sites by using a filtering system to prevent delivery of offending information. The banned sites included Western news outlets, Taiwanese commentary sites, anti-China dissident sites and sexually explicit sites.

Since 1996, the Chinese government has enacted a number of highly restrictive laws prohibiting publishing political commentary the government considers undesirable and so on, and there have been continuing reports of various foreign media and human rights Web sites being blocked.

On 18 January 2002, Associated Press reported that:

"China has issued its most intrusive Internet controls to date, ordering service providers to screen private e-mail for political content and holding them responsible for subversive postings on their Web sites. ...
Under the new rules, general portal sites must install security programs to screen and copy all e-mail messages sent or received by users. Those containing 'sensitive materials' must be turned over to authorities.

Providers are also responsible for erasing all prohibited content posted on their Web sites, including online chatrooms and bulletin boards.

The new rules include a long list of banned content prohibiting writings that reveal state secrets, hurt China's reputation or advocate the overthrow of communism, ethnic separatism or 'evil cults.'

The last category covers the Falun Gong spiritual movement, which has frequently resorted to the Internet to defy a harsh two-year crackdown.

Pornography and violence are also prohibited."

(China creates stern Internet, e-mail rules, Associated Press/USA Today, 18 Jan 2002)

For further information, see the report Freedom of Expression and the Internet in China issued by Human Rights Watch on 1 August 2001.

Denmark

As at March 2002, Denmark had no law making it a criminal offence to make material that is unsuitable for minors available on the Internet, nor were there any proposals to create such a law. Discussion related to protection of minors was primarily unfolding around the issue of filtering at public libraries.

European Union

The approach of a large majority of (perhaps all) European Union Member States to dealing with illegal and harmful content on the Internet appears to be in accord with the 1996 recommendations of the European Commission. In these countries, laws regarding material that is illegal offline, such as child pornography and racist material, also apply to Internet content. With regard to material unsuitable for children, the EU Safer Internet Action Plan covering the period 1999-2002 has a budget of 25 million euro for, inter alia, initiatives directed to enabling end-users to better manage their own, and their children's, Internet access.

On 16 October 1996, the European Commission issued a Communication on illegal and harmful content on the Internet and a Green Paper on the protection of minors in the context of new electronic services. The EC media release stated:

"...While the Communication gives policy options for immediate action to fight against harmful and illegal content and concentrates on the Internet, the Green Paper takes a horizontal approach and will initiate a medium- and long-term reflection on the issue across all electronic media. Both documents advocate a closer co-operation between Member States and on an international level, the use of filtering software and rating systems, and an encouragement to self-regulation of access-providers."

The EU Safer Internet Action Plan covering the period 1999-2002 has a budget of 25 million euro, and has three main action lines;

Creating a safer environment through promotion of hotlines, encouragement of self-regulation and codes of conduct,

Developing filtering and rating systems, facilitation of international agreement on rating systems,

Awareness: Making parents, teachers and children aware of the potential of the Internet and its drawbacks, overall co-ordination and exchange of experience.

Information on initiatives undertaken in EU, and other European, countries is included in the Summary and Analysis of replies to a questionnaire on self-regulation and user protection against illegal or harmful content on the new communications and information services, prepared by the Directorate General of Human Rights, Council of Europe, in approx. Nov 2001.

France

Regulatory activity in France concerning illegal material on the Internet has recently been focussed on enforcing French laws prohibiting race hate material.

In May 2000, a French judge ruled that USA Yahoo! Inc must make it impossible for French users to access sites auctioning race hate memorabilia. Yahoo! said it was technically impossible for it to block Internet users in France from seeing Nazi-related content on its USA Web site and that its French site complied with France's laws prohibiting advertising Nazi memorabilia. In November 2001, a US District Court ruled that Yahoo! does not have to comply with the French court's order concerning access to its USA site. The Court ruled that the USA First Amendment protects content generated in the US by American companies from being regulated by authorities in countries that have more restrictive laws on freedom of expression.

Germany

In the mid 1990s, German ISPs were expected to block access to some Internet content outside Germany containing material that is illegal under German laws of general application, particularly race hate propaganda and child pornography. In July 2000, it was reported that the German government had ceased trying to bar access to content outside Germany but police would continue to aim to stop illegal "homegrown" material. In 2001 and 2002, German authorities issued takedown notices to a number of web hosts in the USA. These web hosts refused to comply. Further information on these developments is below.

In September 1996, following "advice" from the German Chief Prosecutor's Office, German Internet Service Providers started attempting to block access to sites containing material banned in Germany, such as the Netherland's based website of the magazine Radikal. This had the immediate effect of further publicising the material, and resulted in mirror sites springing up elsewhere around the world.

In July 2000, Reuters reported that:

"Germany, which has some of the world's toughest laws banning race hate propaganda, has conceded defeat to the cross-border reach of the Internet and given up trying to bar access to foreign-based neo-Nazi sites. Deputy Interior Minister Brigitte Zypries, the government's Internet security chief, said this week in an interview with Reuters that it was unrealistic to try to shield Germans from foreign Web sites, even though police do aim to stop homegrown Nazi and other offensive material, such as child pornography."
(Source:Germany won't block access to foreign Nazi sites, Adam Tanner, Silicon Valley News, 25 Jul 2000)

In November 1999, a German court of appeal overturned the conviction of the former head of Internet service provider CompuServe's German operations on charges of spreading child pornography on the Web. The court said it was not possible for the CompuServe chief to block the publication of child pornography on the Internet. Reportedly, CompuServe-Germany president Frank Sarfeld hailed the court's decision, saying it re-established 'legal security' for Internet providers.
(Source: Court reverses Net porn charge, AFP, 23 Nov 1999)

The Ministry for Families, Seniors, Women and Children (Bundesministerium fur Familie, Senioren, Frauen und Jugend) continues to issue takedown notices to foreign web hosts under the "Act of the Dissemination of Publications and other Media Morally Harmful to Youth" in relation to offshore sites that contain material "harmful to youth" including online pornography that would be rated X or RC in Australia. A number of web hosts in the USA were issued with these notices in 2001 and 2002, and refused to comply with the takedown request. The Ministry claims jurisdiction against web sites worldwide that contain "pornographic, extreme violence, war-mongering, racist, fascist and/or anti-Semitic content". The notices require the web host (as opposed to the website owner or content provider) to either remove the material or subject it to an age-verification system based on, for example, credit card checks.

Malaysia

In March 1999, numerous media organisations reported that Prime Minister Datuk Seri Dr Mahathir Mohamad had said there would be no censorship of the Internet. For example, in an article titled Do Away With Internet Censorship: PM the Utusan Express reported:

"KUALA LUMPUR March 16 - Prime Minister Datuk Seri Dr Mahathir Mohamad has advised the Cabinet to dispense with attempts on internet censorship, said Multimedia Development Corporation (MDC) executive chairman Tan Sri Dr Othman Yeop Abdullah today.
'The Prime Minister has given specific instructions that there will not be censorship on the internet. That's the position of the government,' he said at a press conference.
He explained that the Prime Minister was reaffirming a pledge in the Bill of Guarantee last week that there will be no censorship on the internet.

On 14 February 2002, an article in The Australian reported that the Malaysian government had signalled an intent to require website operators to obtain licences. According to the article "Steven Gan, editor-in-chief of Malaysiakini.com, says the Mahathir government's plan to require licences for website operators would effectively silence the only dissenting media voices in a nation with rigid controls over traditional news outlets, especially newspapers."

New Zealand

New Zealand had not enacted legislation specifically directed to censorship of Internet content as at 11 March 2002.

In 1993, the NZ Films, Videos, and Publications Classification Act (FVPCA) was enacted. The definitions in this Act are said by regulatory authorities to cover Internet content: "publication" covering text and static images and "film" covering moving images. However, apparently offence provisions of the Act have very rarely (if ever) been enforced to date in relation to online content other than child pornography. The Act certainly applies to material downloaded to a computer disk from the Internet but the extent to which provisions apply to content on the Internet may be questionable.

In 1994, a Private Member's Bill titled the "Technology and Crimes Reform Bill" (aka the "Trevor Rogers Bill") was introduced into NZ Parliament, but was not enacted. The Bill was intended, among other things, to regulate the transmission of objectionable material via the Internet and also proposed to make material restricted to adults offline, illegal on the Internet. The Bill attracted considerable criticism, and was considered by a Parliamentary Select Committee.

In July 1997, the Committee recommended the Bill not be passed and recommended a voluntary Code of Practice by Internet Service Providers as the best option. Among other things the Committee was concerned with Bill of Rights implications, according to an article on NZ law firm Clendon Feeney's web site. The Committee's recommendations were accepted by the Parliament and the Bill did not proceed.

The NZ Department of Internal Affairs (DIA) states on its " Censorship and the Internet" web page that:

"The Department of Internal Affairs' Inspectors have the role of investigating New Zealand Internet websites and newsgroups and enforcing censorship legislation. We take a proactive role in prosecuting New Zealanders who trade objectionable material via the Internet. If a publication is categorised as 'objectionable' it is automatically banned by the Films, Videos, and Publications Classification Act 1993."

Reports indicate that the DIA, as at March 2002, had been concentrating its Internet related enforcement activities concerning objectionable material almost entirely on child pornography and especially on the use of chat services such as IRC to distribute/obtain such material.

Unofficial information provided to EFA indicates that probably only one web site has been classified objectionable, in approximately 1997 as a result of one or more complaints. The NZ site, which promoted the supposed US urban Afro-American gangster culture, had been the subject of a NZ newspaper report (subsequent reports in other media indicate the content was prepared by a person who had never visited the USA). The site was classified objectionable not because of material involving violence and speaking approvingly of killing and arson, but because its expressed attitude to women was found to contravene Section 3(3)(e) of the Act which prohibits material that:

"Represents (whether directly or by implication) that members of any particular class of the public are inherently inferior to other members of the public by reason of any characteristic of members of that class, being a characteristic that is a prohibited ground of discrimination specified in section 21 (1) of the Human Rights Act 1993."

The DIA web site does not refer to any prohibitions or restrictions relative to material on the Internet that is or would be classified "R18" or any other equivalent of "unsuitable for minors" under NZ legislation.

In NZ, "objectionable" material does not include that classified X in Australia, nor is there an "X" classification under NZ law. The R18 category covers all material that is classified restricted to adults, including sexually explicit material.

In 2000, a NZ Parliament Select Committee (the Government Administration Committee) commenced an inquiry into the operation of the Films, Videos, and Publications Classification Act 1993 and related issues including new communications media, the Court decision in Moonen (see later herein), and numerous other matters. Public submissions closed on 4 May 2001. As at mid March 2002, the Committee had not issued a report on its inquiry.

Offline Classification:

NZ law does not require publications, other than films and videos, to be classified and labelled prior to being made available to the public (publications may be voluntarily submitted for classification). Computer games are exempt from classification unless the game would be likely to be restricted if classified. Films and videos falling within exemption criteria in the Act (e.g. educational, cultural, scientific, etc, material) are also not required to be classified.

Sexually explicit films and videos (of the type classified X in Australia) are classified "R18" in NZ with a descriptive note "contains explicit sex scenes" attached. The R18 category covers all material that is classified restricted to adults, not only sexually explicit material.

Under New Zealand law, " objectionable" material may encompass a smaller range of material than the nearest equivalent under Australian law. The NZ test for banning material is based on harm: whether the material is "likely to be injurious to the public good". The Australian test is based on offensiveness: whether the material "offend[s] against the standards of morality, decency and propriety generally accepted by reasonable adults".

In addition, NZ classifiers must take the New Zealand Bill of Rights Act into account for every decision they make, even if the material clearly fits into the criteria set out in Section 3(2) of the NZ Classification Act. In this regard, the NZ Office of Film and Literature Classification states in an article titled Highlights from the 1999-2000 Annual Report on its web site that:

"Finally, a review of the year cannot go by without some comment on the Court of Appeal's interpretation of s3(2) in Moonen v Film and Literature Board of Review. That case concerned the classification of 37 photographs and one book as objectionable under s3(2)(a) because the Board of Review found that they "promote or support the exploitation of children, or young persons, or both, for sexual purposes". Section 3(2) deems such publications to be objectionable. The Court overturned the Board's decision on the ground that the Board insufficiently demonstrated how such a classification was a reasonable and demonstrably justified limitation on the freedom of expression."

Norway

With regard to new media such as the Internet, the Norwegian Board of Film Classification's web site states (as at 22 March 2002):

New Media
The work here is mainly connected with research, information and guidance. The new media in Norway is not regulated by law so the only option is to try to keep the public informed. We publish book, booklets and reports on the subject matter. We also use polling bureaus to help us monitor the development, and give lectures for schools and other interested parties. We also work internationally with these matters and try to stay on top of the events happening internationally, as with the technological developments and social impacts on the field.

Offline Classification:

Cinema films are required to be classified by the Norwegian Board of Film Classification, an independent body reporting to the ministry of Cultural Affairs. Classification of videos and DVDs for sale or hire is not mandatory. Video distributors place an advisory age limit on the videos on a voluntary basis, or may obtain a penal code evaluation of the video from the Board. The videos have to be registered in a video registry and a small number of videos are checked every year. (Source: Norwegian Board of Film Classification web site).

Saudi Arabia

In Saudi Arabia, public access to and from the Internet has been funnelled through a single government controlled centre since February 1999 when Internet access was first made available. From this centre, the government blocks access to Internet content deemed unsuitable for the country's citizens, such as information considered sensitive for political or religious reasons, pornographic sites, etc. The list of rules includes:

"1. Anything contravening a fundamental principle or legislation, or infringing the sanctity of Islam and its benevolent Shari'ah, or breaching public decency.
2. Anything contrary to the state or its system
...
5. Anything damaging to the dignity of heads of states or heads of credited diplomatic missions in the Kingdom, or harms relations with those countries.
..."

According to a report in the New York Times on 19 November 2001 ( Companies Compete to Provide Saudi Internet Veil) over 7,000 sites are added to the blacklist monthly and the control center receives more than 100 requests a day to remove specific sites from the blacklist - many because they have been wrongfully characterized by the US commercial blocking software used.

For further information, see:

Saudi Internet Rules, Council of Ministers Resolution, 12 February 2001

Losing the Saudi cyberwar, by Brian Whitaker, The Guardian, 26 Feb 2001
"The authorities in Saudi Arabia, who recently boasted that they had found a way to censor the internet, are now licking their wounds in a cyberwar against an opposition group based in London."

Saudis pay to surf censored sites, by Frank Gardner in Saudi Arabia, BBC UK, 3 Nov 2001
"The Saudi Government has tried with limited success to stop its citizens from accessing pornographic and political controversial websites. But where there is a will there is a way, and there is no shortage of people willing to pay to log onto forbidden websites."

The report titled Enemies of the Internet, issued by Reporters Without Borders/Reporters Sans Frontiers, February 2001.

Singapore

The Singapore Broadcasting Authority (SBA) has regulated Internet content as a broadcasting service since July 1996.

A Class Licence Scheme operates under which Internet Content Providers and Internet Service Providers are deemed automatically licensed. Licensees are required to comply with the Class Licence Conditions and the Internet Code of Practice which includes the definition of " prohibited material". Apparently the Scheme does not apply to all Internet content providers. The Internet Industry Guidelines on the SBA web site state:

"Individuals who put up personal web pages are exempted from the Class Licence, unless they are putting these web pages for business, or to promote political or religious causes."
and
"Internet Content Providers who are not targeting Singapore as their principal market will not be subject to Singapore's standards unless they are primarily in the business of distributing pornography. For example, movie sites which are hosted in Singapore can promote and carry movie clips, even those which do not meet Singapore's standards."

The SBA has the power to impose sanctions, including fines, on licensees who contravene the Code of Practice. The "SBA takes a light-touch approach in regulating services on the Internet. For example, licensees [Internet Content Providers and Internet Service Providers] found to be in breach of regulations will be given a chance to rectify the breach before the Authority takes action." (Extract from the Internet Industry Guidelines)

"Prohibited Material" is defined in the Code of Practice and appears to involve material deemed unsuitable for adults by the Singaporean Government. It does not appear to cover information unsuitable for minors, nor does it contain a requirement that web sites attempt to restrict access to such material to adults. Briefly, "prohibited material" is that which is deemed "objectionable on the grounds of public interest, public morality, public order, public security, national harmony, or is otherwise prohibited by applicable Singapore laws". The stated factors to be considered in determining what is prohibited material indicate this includes material of a pornographic nature; advocacy of "homosexuality or lesbianism"; depictions of "detailed or relished acts of extreme violence or cruelty" and material that "glorifies, incites or endorses ethnic, racial or religious hatred, strife or intolerance". An additional factor is "whether the material has intrinsic medical, scientific, artistic or educational value".

According to the SBA's FAQ as at 11 March 2002:

"Users in Singapore...have access to all material available on the Internet, with the exception of a few high impact illegal websites"
and
"Content on the Internet are not pre-censored by SBA, nor are ISPs required to monitor the Internet. ISPs are currently only required to limit public access to some high-impact illegal sites [as identified by SBA] as a statement of Singapore's social values. Internet Content Providers (ICPs) are required to exercise judgement with regards to content posted on the Internet according to the definitions of what constitute prohibited material in the Internet Code of Practice. SBA is concerned primarily with pornography, violence and incitement of racial or religious hatred. SBA's purview only covers the provision of material to the public. Private communications, such as email and Internet Relay Chat between two individuals or parties are not covered. Users can freely access any material on the Internet in the privacy of their own home. SBA also does not regulate what companies provide to their employees."

The SBA Internet Industry Guidelines included the following information as at 11 March 2002:

"ISPs are required to limit access to some high-impact websites, as identified by SBA. ISPs are encouraged to take their own initiative against offensive content through their own Acceptable Use Policies. They are not required to monitor the Internet or their users' Internet activities.
...
ISPs are free to decide which newsgroups to subscribe to based on their business policy and the Code. We do not require ISPs to monitor or remove postings, nor does SBA monitor postings in newsgroups. ... We require ISPs to make an initial assessment as to the likelihood of a newsgroup being a conduit for prohibited material. If any subscribed newsgroups is subsequently found to contain a significant amount of prohibited material, we encourage ISPs to exercise judgement on whether to unsubscribe to the newsgroup. SBA may also direct ISPs to unsubscribe to particular newsgroups which contain prohibited material."

"Internet Content Providers (ICP), particularly web authors, should observe the Internet Code of Practice. There is no need to seek SBA's prior approval for content posted on the Net. ICPs should exercise judgement according to the definitions of what constitute prohibited material. Licensees who are not sure if their content would be considered prohibited may check with SBA."
http://www.sba.gov.sg/sba/i_guidelines.jsp

For more detailed information see the SBA's web site, including:

In relation to the number of web sites blocked, as at 11 March 2002, the SBA web site refers to "a few" and "some" as quoted above. Previously in May 1999 and November 2001, a page on the SBA site stated that "100 high-impact pornographic sites" were blocked. The page had said:

"What are the obligations of the Internet Service Providers?
According to the licensing framework, ISPs must exercise their best possible efforts to ensure that the main information highways stay clean. SBA does not want this task to be an onerous one for the ISPs, hence, they are only required to limit access to 100 high-impact pornographic sites. The ISPs are also required to observe the SBA content guidelines to determine which newsgroups they should subscribe to. SBA encourages industry self-regulation."

An archived copy of a June 2001 page from the SBA site on The Internet Archive Wayback Machine site states:

"[ISPs] ... need to limit access to 100 websites that are contrary to community values, as identified by SBA."

South Korea

In July 2001, the "Internet Content Filtering Ordinance" (law) became effective in South Korea.

According to media and other reports, the provisions of the Ordinance are controversial within South Korea. Previous content filtering provisions that were included in a 2000 Bill were not passed by the National Assembly due apparently to the harsh criticism it provoked from civic groups.

Recent information on English language web sites regarding the extent and manner of enforcement of the 2001 Ordinance is scarce. Information below has been obtained from articles and reports, principally from before and shortly after the Ordinance was enacted, as listed at the end of this section.

The Ordinance reportedly contains a number of components including:

requiring Internet Service Providers to block access to web sites on a government compiled list,

requiring Internet access facilities accessible to youth, such as Internet cafes, public libraries and schools to install filtering software,

introduction of an internet content rating system.

Sites required to be blocked are those meeting criteria determined by the Information and Communications Ethics Committee (ICEC). The ICEC is a Seoul-based non-governmental organisation that is mandated by the 1995 Law for Electronics and Communications Businesses to suppress harmful information and communication, and to foster a healthy information culture by "filtering national illegal and harmful information" and prevent "cyber sexual violence".

As part of the Ordinance, on 1 November 2001, the Ministry of Information and Communications (MIC) formally enacted an internet content rating system implementing the ICEC's rating criteria. The ICEC had released its "Criteria for Indecent Internet Sites" on 24 April 2001 which reportedly, among other things, classifies information concerning homosexuality in the category of "obscenity and perversion".

As at August 2001, according to media and other reports, the government had indicated an intent to require blocking of: sites in a list of over 120,000 that had been compiled by the ICEC; sites containing words in a control list of keywords, and sites rated in some categories of the government's Internet Content Rating System. (As at 23 March 2002, EFA has not been able to ascertain whether these indicated intentions of the government became fully operative, nor to what extent any of them are currently operative. With regard to the Rating System, it appears that rating of content may be largely voluntary, but may be mandatory for some types of content, such as sites deemed "indecent" by the ICEC).

For further information see:

The ICEC Web site which includes some information about Internet regulation in the English language.

Alert and Background Information issued by the International Gay and Lesbian Human Rights Commission (IGLHRC), 23 Aug 2001
"In July 2001, an Internet Content Filtering Ordinance entered into effect, and implemented the definitions of the ICEC. ...
Since the introduction of the Internet Content Filtering Ordinance in July, ... government interventions have moved beyond labeling to active and extensive blocking of gay sites throughout Korea. ..."

120,000 Internet Sites Blacklisted, Kim Deok-hyun, The Korea Times, 3 May 2001
"The Information and Telecommunication Ethics Commission, a regulatory group under the Ministry of Information and Communication, has blacklisted some 119,000 Internet sites as requiring access to be blocked, fanning the flames in the fight over Internet filtering and civil rights. ... The government is preparing to use new systems to block those "anti- social" Internet sites under the Internet filtering ordinance, which will take effect July 1. 'The categorized list of barred Internet sites will be used for software makers to develop an advanced blocking system," the regulatory body said."

Internet Filtering Ordinance Spurs New Debate, Kim Deok-hyun, Korea Times, 23 Apr 2001
"In a public hearing yesterday at the Sejong Cultural Art Center in downtown Seoul, civic organizations and Internet users strongly protested against the new ordinance, saying it amounts to de facto censorship to curb the free flow of information. ...
The contents filtering was included in the revised bill to promote information- technology activities last year, but the National Assembly didn't pass the bill due to the harsh criticism it provoked from civic groups. ...
'The new ordinance is not designed to control the Internet but to provide services to protect children from being exposed to malicious online content,' said MIC director Na Bong-ha. ...
However, civic groups dismissed such defensive announcements, saying it could result in 'over blocking.' They also expressed concerns about the new ordinance that would bring about unexpected side effects of curbing the freedom of expression and criticism. ..."

Sweden

In May 1998, the Swedish Parliament enacted the "Act (1998:112) on Responsibility for Electronic Bulletin Boards". Electronic bulletin board is defined so as to include storage of data on the Internet, such as web pages, etc (thereby excluding personal e-mail that is only stored in individuals' mailboxes).

The law places an obligation on service providers who store information (not those who only provide connections to the Internet) to remove or make inaccessible content that is obviously illegal (they do not have to decide in doubtful cases) according to the penal code, that is:

instigation of rebellion (section 16 article 5)

racial agitation (section 16 article 8)

child pornography (section 16 article 10)

illegal description of violence (section 16 article 10)

or when it obvious that the user has infringed copyright law.

According to explanations of the law made by the government, in computer areas where illegal messages often occur, the service providers must check what is stored, but in other areas, it is enough compliance for service providers to check when someone complains that something illegal has been stored.

The above information is a very brief summary of information available (as at March 2002) on the web site of Jacob Palme of the Department of Computer and Systems Sciences, Stockholm University/KTH. For more detailed information see Jacob Palme's pages:

U.K.

The United Kingdom has not enacted censorship legislation specific to the Internet and appears to have no intention of so doing.

In December 2000, a Communications White Paper setting out the "Government's response to the new communications environment" was jointly published by the Departments of Trade and Industry (DTI), and Culture, Media, and Sport (DCMS). The paper includes principles under which a new telecommunications and broadcasting regulator, the Office of Communications (OFCOM), will operate.

In relation to regulation of Internet content, the White Paper states that research suggests people want tools that help them control what they and their children will see on the Internet, "rather than third party regulation" and that government and industry partnership provides the best approach:

"6.3.4 ... We recognise, for example, that partnership provides the best approach for Internet services. In this area, therefore, we will expect OFCOM to continue to support the Internet Watch Foundation's work to allow Internet users to regulate their own Internet experience, or that of their children, by using rating and filtering systems, as outlined in section 6.10."
http://www.communicationswhitepaper.gov.uk/ by_chapter/ch6/6_3.htm

"6.10.1 OFCOM should ensure continuing and effective mechanisms for tackling illegal material on the Internet, such as those being pursued under the auspices of the Internet Watch Foundation. It will also promote rating and filtering systems that help Internet users control the content they and their children will see.
The Government sees enormous benefits in promoting new media, especially the Internet. But it is important that there are effective ways of tackling illegal material on the Internet and that users are aware of the tools available, such as rating and filtering systems, that help them control what they and their children will see on the Internet. Research suggests that this is what people want in relation to the Internet, rather than third party regulation. ..."
http://www.communicationswhitepaper.gov.uk/ by_chapter/ch6/6_10.htm

In September 1996, a non-government organisation named the UK Internet Watch Foundation (IWF) (originally the Safety-Net Foundation) was established by Internet Service Provider associations to implement proposals to deal with illegal material on the Internet, with particular reference to child pornography. The proposals were agreed between the major UK Internet Service Provider trade associations, the Department of Trade and Industry (DTI), the Home Office and the Metropolitan Police. The IWF's establishment followed the London Metropolitan Police sending a letter to all Internet Service Providers on 9 August 1996 requesting them to censor Usenet news groups or else police would find it necessary to prosecute ISPs in relation to illegal material made available via their systems.

The IWF operates a hotline to enable members of the public to report child pornography or other illegal material on the Internet. According to the White Paper:

"When the IWF receives a report, it reviews the material and decides whether it is potentially illegal. If it is, it then tries to determine the origin of the material and notifies the UK police or appropriate overseas law enforcement agency. It also notifies UK ISPs that they should take the material down from their servers; if they do not, they risk prosecution. The Government will continue to encourage and support this work."

Since 1996, the IWF has dealt with material involving child pornography. In February 2002, the IWF announced it would henceforth also deal with "criminally racist content" and that the Home Office had provided IWF with "an extended guide to the application of the [UK] law to racism on the Internet - 'Racially Inflammatory Material on the Internet'". IWF said it envisaged it would concentrate its efforts on the offences referred to as "Threats of Direct Violence" in the guide.

Offline Classification:

In the UK, films, videos and some computer games are classified by the British Board of Film Classification (BBFC), an independent, non-governmental body. The BBFC's film classifications are not binding. Local councils have statutory powers in relation to films and may (and sometimes do) overrule the BBFC's decisions for films exhibited in their jurisdiction. Video recordings (other than those covered by exemptions) offered for sale or hire commercially in the UK must be classified by the BBFC, which is the classification authority designated by the Home Secretary under the Video Recordings Act 1984. Some video games/computer games (those that are likely to be restricted) must be classified by the BBFC under the VRA.

If a film or video work is obscene within the meaning of the Obscene Publications Act (OPA), or offends against other provisions of the criminal law, then the work is refused a BBFC classification certificate. (Under the OPA, an obscene article is one which, in the view of the court, tends to "deprave and corrupt" those likely, having regard to all relevant circumstances, to read, see or hear it.)

The BBFC must also consider the provisions of the European Convention on Human Rights (ECHR), which is incorporated in the UK Human Rights Act 1998. Article 10 of the ECHR contains a right to freedom of expression and requires that any restriction of freedom of expression imposed by national law must be capable of objective justification as being necessary in a democratic society for one of the purposes set out in Article 10. From October 2000, the courts have been able to consider issues arising under the ECHR, and hence to test the compatibility of UK law with the ECHR.

Non-violent sexually explicit films and videos in the UK are classified "R18". Sale of such videos is restricted to adults through licensed adult shops, and mail order sales are illegal. This is exactly the opposite of the situation in Australia. On 18 July 2000, following an appeal case and public consultation, new less restrictive R18 classification guidelines for sexually explicit material were issued.

A more detailed overview of UK classification, censorship and related laws is available in the Home Office's July 2000 Consultation Paper on the Regulation of R18 Videos. See also the BBFC web site.

U.S.A.

The USA Government has enacted two Federal laws intended to censor offensive online content. Neither of these laws are in force as at March 2002. The first law (the CDA) was struck down by the USA Supreme Court on First Amendment grounds. The second law (the COPA), which is more narrowly focussed and covers only communications that are made for commercial purposes on the World Wide Web, is the subject of a Court injunction (also on First Amendment grounds) preventing its enforcement pending a decision of the Supreme Court. The Court decision is expected to be handed down in the latter part of 2002.

Since 1996, four U.S. states, New York, New Mexico, Michigan and Virginia have passed Internet censorship legislation restricting/banning online distribution of material deemed "harmful to minors". These laws have been struck down on Constitutional grounds.

Information about the two Federal laws is provided below.

The Communications Decency Act (CDA)

The CDA was enacted in February 1996. In the same month, a US Court issued a restraining order preventing its enforcement. In June 1996, a panel of federal judges in Philadelphia ruled the CDA unconstitutional. In June 1997, the US Supreme Court struck down the CDA on grounds that it violated the First Amendment.

The following brief information about the CDA is extracted from the USA Court of Appeals for the Third Circuit's decision (Feb 2000) on the COPA:

"The CDA prohibited Internet users from using the Internet to communicate material that, under contemporary community standards, would be deemed patently offensive to minors under the age of eighteen. In so restricting Internet users, the CDA provided two affirmative defenses to prosecution; (1) the use of a credit card or other age verification system, and (2) any good faith effort to restrict access by minors. In holding that the CDA violated the First Amendment, the Supreme Court explained that without defining key terms the statute was unconstitutionally vague. Moreover, the Court noted that the breadth of the CDA was "wholly unprecedented" in that, for example, it was "not limited to commercial speech or commercial entities . . . [but rather] [i]ts open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers.
Further, the Court explained that, as applied to the Internet, a community standards criterion would effectively mean that because all Internet communication is made available to a worldwide audience, the content of the conveyed message will be judged by the standards of the community most likely to be offended by the content. Finally, with respect to the affirmative defenses authorized by the CDA, the Court concluded that such defenses would not be economically feasible for most noncommercial Web publishers, and that even with respect to commercial publishers, the technology had yet to be proven effective in shielding minors from harmful material. As a result, the Court held that the CDA was not tailored so narrowly as to achieve the government's compelling interest in protecting minors, and that it lacked the precision that the First Amendment requires when a statute regulates the content of speech."

Child Online Protection Act (COPA)

COPA is the sequel to the CDA and aimed to avoid the constitutional defects of the CDA. COPA covers communications that are made for commercial purposes on the World Wide Web. It requires commercial Web publishers to ensure that minors do not access "material harmful to minors" on their Web site.

COPA was enacted on 21 October 1998. On 20 November 1998, the US District Court for the Eastern District of Pennsylvania issued a temporary restraining order against enforcement of the law and subsequently, on 1 February 1999, issued an injunction preventing the government from enforcing the law. On 22 June 2000, the US Court of Appeals for the Third Circuit upheld the lower court's injunction. The Court stated in its conclusion that "Due to current technological limitations, COPA -- Congress' laudatory attempt to achieve its compelling objective of protecting minors from harmful material on the World Wide Web -- is more likely than not to be found unconstitutional as overbroad on the merits."

The decision was appealed to the US Supreme Court and that Court's decision is expected to be handed down in the latter part of 2002.

An overview of COPA's provisions is included in the Court of Appeals February 2000 decision:

'COPA ... attempts to "address[ ] the specific concerns raised by the Supreme Court" in invalidating the CDA. COPA prohibits an individual or entity from:
"knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, mak[ing] any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors."

As part of its attempt to cure the constitutional defects found in the CDA, Congress sought to define most of COPA's key terms. COPA attempts, for example, to restrict its scope to material on the Web rather than on the Internet as a whole; 4 to target only those Web communications made for "commercial purposes"; 5 and to limit its scope to only that material deemed "harmful to minors."

Under COPA, whether material published on the Web is "harmful to minors" is governed by a three-part test, each of which must be found before liability can attach:

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious, literary, artistic, political, or scientific value for minors.

COPA also provides Web publishers subject to the statute with affirmative defenses. If a Web publisher" has restricted access by minors to material that is harmful to minors" through the use of a "credit card, debit account, adult access code, or adult personal identification number . . . a digital certificate that verifies age . . . or by any other reasonable measures that are feasible under available technology," then no liability will attach to the Web publisher even if a minor should nevertheless gain access to restricted material under COPA.'
Footnotes from the Court of Appeals' decision:
' 4. COPA defines the clause "by means of the World Wide Web" as the "placement of material in a computer server-based file archive so that it is publicly accessible, over the Internet, using hypertext transfer protocol or any successor protocol."

5. COPA defines the clause "commercial purposes" as those individuals or entities that are "engaged in the business of making such communications." In turn, COPA defines a person "engaged in the business" as one

who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income).'

Offline Classification:

In the USA, films, videos and computer games are not legislatively required to be classified prior to exhibition, sale or hire. Voluntary non-government established and administered rating systems are widely used.

# data[].attributes.attachment_link.title
Internet Censorship - law & policy around the world

# data[].attributes.attachment_link.description
This report contains information on government policy and/or laws regarding Internet censorship in various countries around the world. The information was compiled by EFA in March 2002 in response to a request from the Chair of a NSW Parliamentary Committee inquiring into a NSW Bill intended to censor the Internet (for background, see the Introduction section below).

# data[].attributes.attachment_link.readable_text
Creating laws which fairly deal with protest and people's right to privacy, particularly medical privacy, is complex, and nowhere more so than around abortion clinics. Here is CLA's position.

Improving abortion exclusion zone laws

By Tim Vines, Vice-President
of Civil Liberties Australia

Abortion clinic 'access zones', 'exclusion zones' or 'buffer' and 'bubble' zones as they are also known in the US, restrict certain behavior within a limited geographic space around health clinics that offer abortion services and/or staff and women who are approaching and entering those clinics.

Within an exclusion/access zone (typically 100-150m from a clinic), certain forms of speech and contact are prohibited, including:

'harassing, menacing, intimidating or besetting' a woman or staff member entering the clinic;

approaching a woman entering a clinic with the intention of passing her information which is designed to change her mind to seek an abortion

hindering or obstructing the entrance to a clinic that provides abortion services;

filming or recording individuals entering or leaving a clinical that provides abortion services; and

protesting, whether silently or verbally, against abortion in general.

Since Tasmania introduced exclusion zones in the Reproductive Health (Access to Terminations) Act 2013 other States and Territories have begun to consider similar legislation. While CLA supported the introduction of access zones in Tasmania, we have reservations that the Tasmanian law - and proposed legislation in other jurisdictions - as it applies to protest, is not a proportionate response and restricts free speech inconsistently with the International Convention on Civil and Political Rights (ICCPR).

CLA and legal commentators are also concerned that these laws may not be 'appropriate and adapted' towards a legitimate aim and, therefore, conflict with the implied constitutional right of political communication.Considering recent activity in this space in other jurisdictions, we are concerned that an overly restrictive model governing access zones is likely to be exported to other jurisdictions.

It is important to note that Article 5 of the ICCPR states: nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.

That is, the right to privacy and freedom of expression cannot be played against one another so as to destroy one or both rights. Ways to reconcile them must be found. That may mean accommodating some protest.

On the basis that protest is protest, whether or not a majority of society agrees with the content of that speech, CLA has been engaging with legislators to design nuanced approaches to exclusion zones. Currently, our position on these laws is as follows:

CLA is comfortable with laws preventing individuals from 'harassing, menacing, intimidating or besetting' women or staff member entering a clinic; and

Likewise, CLA can support measures designed to prevent individuals hindering or obstructing the entrance to a clinic that provides abortion services as these actions are destructive of the rights of women to access a legal, medical procedure and to exercise medical autonomy;

Recognising that privacy in accessing and obtaining medical services is a crucial right, CLA also supports restrictions on third-parties recording or filming women and staff without consent where such actions are intended to discourage women from seeking an abortion; but

Current limitations on protesting are often made too broad,with both the size of the exclusion zone and its application to both private and public property problematic.

On this final point, we note that recent, draft legislation in the ACT takes this concern on board and, rather than setting a legislative exclusion zone size (of, for example, 100 or 150 meters) adopts a more nuanced approach where the Minister must set an exclusion zone, but the size of the zone is not legislatively pre-determined. CLA worked with the member responsible for this bill.

Our view is that the Tasmanian law (and proposed laws based on the Tasmanian model) could be improved by:

Implementing exclusion zones in non-Criminal statues (for example, the Health Act (ACT) or Health Services Act (Vic). This encourages the use of a variety of criminal and civil remedies (such as enforceable undertakings, injunctions etc...);

To ensure the restriction on speech and protest is appropriate and adapted to the circumstances and a proportionate measures, the size of an exclusion zone should not be set by legislation but by determined by the relevant Minister or Secretary/Director-General of Health in a regulation or disallowable instrument. A maximum radius could be prescribed by the law. Benefits of this approach include:

allowing for more refined exclusion zones which could be bounded by landmarks or public streets (thereby avoiding some of the private property problems possible under the Tasmanian law);and

permitting additional parliamentary scrutiny of any restrictions on protest

To ensure the law was effective, it could provide that the Minister/Director-General must make an exclusion zone:if employees of the Health Facility, or their union, request on the basis that there is a genuine safety risk; or

following an application from an individual with a relevant interest;

following an application from a public-interest entity with a relevant interest (such as a women's health organisation); or

if a Court or Tribunal makes an order.

To ensure compatible with a Human Rights Act (if one exists in the jurisdiction), these laws should also provide that a group or individual can apply to a merits review tribunal to challenge the size and scope of the exclusion zone on the grounds that it is disproportionate. However, a tribunal should be required to consider the protection of privacy and access to healthcare as a paramount matter

A prohibition on protesting should not extend to protests occurring on private property unless the protest would also constitute a 'public nuisance' (for example, if it used a PA or broadcast system). This issue can be avoided if the legislation provides for a power to set or determine an exclusion zone;

Any law should specifically seek to empower women and women's groups to take a lead role in the establishment of exclusion zones. It is not sufficient to leave it to police.

States and Territories should work with groups like CLA in developing their laws; learn from other States' experiences; and not create laws that seek to stop the martyr at the expense of the law-abiding majority.

In the US, buffer or bubble zone laws have been imposed by some States around clinics ('fixed zones') and staff, women seeking abortions and even cars driving women to the centre ('floating zones'). US buffer zones are usually very small, varying from 2 metres for a 'floating zone' and 10 metres for a fixed zone. While small fixed buffer zones have generally survived constitutional challenge ( Hill v. Colorado 530 U.S. 703 (2000) but see McCullen v. Coakley 573 U.S. ___ (2014)), floating zones have been held to impermissibly infringe the First Amendment of the US Constitution ( Schenck v. Pro-Choice Network of Western New York 519 U.S. 357 (1997)).

The US Congress also passed the Freedom of Access to Clinic Entrances Act in 1994, although this only prohibits: the use of physical force, threat of physical force, or physical obstruction to intentionally injure, intimidate, interfere with or attempt to injure, intimidate or interfere with any person who is obtaining reproductive health services or providing reproductive health services; the use of physical force, threat of physical force, or physical obstruction to intentionally injure, intimidate, interfere with or attempt to injure, intimidate or interfere with any person who is exercising or trying to exercise their First Amendment right of religious freedom at a place of religious worship; and the intentional damage or destruction of a reproductive health care facility or a place of worship. It does not prohibit protests, handing out literature, shouting, or singing hymns.

Reproductive Health (Access to Terminations) Act 2013 (Tas), s 9(1); http://www.heraldsun.com.au/news/victoria/sex-party-mp-fiona-patten-wants-protest-exclusion-zones-around-abortion-centres/story-fni0fit3-1227206827534; http://www.canberratimes.com.au/act-news/shane-rattenbury-calls-for-abortion-clinic-exclusion-zones-to-deter-protesters-20150325-1m79br.html.

http://www.abc.net.au/pm/content/2013/s3897278.htm

Whether such laws are sufficiently inconsistent with the right to be valid is debatable: http://theconversation.com/tasmanian-ban-on-abortion-clinic-protests-may-not-be-constitutionally-valid-20650 but see http://theconversation.com/tasmanias-abortion-protest-law-is-probably-constitutionally-valid-20784. Given the High Court's reluctance to support free speech in Australia - see, for example http://www.austlii.edu.au/au/cases/cth/HCA/2013/3.html - we do not expect the Tasmanian law to be struck down; however, that does not affect our view that the law as framed is a disproportionate response to protest.

Some level of intention/recklessness should be required as we believe the general public has a right to photograph or record events (such as interactions with police) that occur in public areas. However, CLA consistently refers to the importance of medical privacy in its statements on, for example, CCTV systems.On this point, CLA also supports the introduction of a general Tort of Privacy that would be a non-criminal tool that could be deployed against individuals and religious organisations who engaged in or encouraged flagrant breaches of a person's privacy.

Under the Tasmanian Act "a protest in relation to terminations that is able to be seen or heard by a person accessing, or attempting to access, premises at which terminations are provided" that occurs within an access zone is "prohibited behaviour" (s 9(1)) (emphasis added).

"Access zone" is simply defined by the Tasmanian Act as "an area within a radius of 150 metres from premises at which terminations are provided" (s9(1)). No exclusion is given to private property within an access zone.

While CLA does not endorse the modern use of such provisions, the system of 'emergency authorisations' granting police additional powers to search and detain people during public disturbances or events such as the G20 and APEC provides a model for defining the geographic and temporal limits of an exclusion zone: see, e.g., s 87F, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).

# data[].attributes.attachment_link.title
Improving abortion exclusion zone laws - Civil Liberties Australia

# data[].attributes.attachment_link.description
Creating laws which fairly deal with protest and people's right to privacy, particularly medical privacy, is complex, and nowhere more so than around abortion clinics. Here is CLA's position.

# data[].attributes.attachment_link.readable_text
Updated November 27, 2015 14:37:25

Legislation preventing protesters from coming within 150 metres of an abortion clinic has passed the Upper House of the Victorian Parliament without amendment.

The abortion buffer zone laws make it illegal for anti-abortion protesters to harass or film women going in or coming out of the clinics.

Protestors who breach the so-called buffer zone may face fines or jail time for repeat offences.

The bill, amending the Health and Wellbeing Act, was originally put forward by Sex Party MP Fiona Patten and was passed in the early hours of the morning after 12 hours of debate.

The legislation follows years of complaints from the clinics about pro-life campaigners approaching women outside clinics, urging them not to terminate their pregnancy.

Health Minister Jill Hennessy said the changes were "long overdue".

"Women will no longer be able to be harassed and intimidated around abortion clinics," she said.

She said the law would send a message to protesters that women should be free to access what is a lawful service.

"But no doubt there will be people trying to test the law," she said.

"We'll be working with Victoria Police and all service providers to make sure that we get this law enforced and women are able to go about their lawful business without being the subject of harassment and intimidation."

Ms Hennessy said she hoped people understood that it is their right to protest on the steps of Parliament but not outside a medical clinic.

But president of Right to Life Australia Margaret Tighe said the laws represented a "tragic day for the smallest Victorians".

"The legislation that has been passed is ludicrous in the extreme installing a 150- metre buffer zone around any place where abortions are carried out, even GP clinics, where RU 486 abortions are procured," she said in a statement.

Ms Tighe said the group's free speech had been denied.

"By passing legislation of this kind the Andrews Government believes the abortion issue will go away when the reverse is likely to occur," she said.

"People will not remain silent in the face of so much killing of human life."

First posted November 27, 2015 07:39:33

# data[].attributes.attachment_link.title
Abortion clinic protest buffer zone law passes Victorian Upper House

# data[].attributes.attachment_link.description
Updated November 27, 2015 14:37:25 Legislation preventing protesters from coming within 150 metres of an abortion clinic has passed the Upper House of the Victorian Parliament without amendment. The abortion buffer zone laws make it illegal for anti-abortion protesters to harass or film women going in or coming out of the clinics.

# data[].attributes.attachment_link.readable_text
Mary Anne Neilsen, Law and Bills Digest

Key issue
The right to marry is the one significant difference between the legal treatment of same-sex and heterosexual relationships in Australia. Although same-sex marriage remains controversial, there has been a shift in community and political opinion and the issue is likely to be on the new Parliament's agenda.

Background

Same-sex marriage has been on the political agenda in Australia for several years, as part of the broader debate about the legal recognition of same-sex relationships.

The expansion of legal rights and protections afforded to same-sex couples in Australia is well developed at both federal and state level. For example, legislation now exists in New South Wales, Victoria, Tasmania, Queensland, and the Australian Capital Territory that provides for the legal recognition of relationships, including same-sex unions.

At the federal level, in 2008 and 2009, there was a wide-ranging suite of reforms to provide equal entitlements and responsibilities for same-sex couples in areas such as social security, employment, taxation and superannuation. However, there remains one significant area of difference between the treatment of same-sex and heterosexual relationships, and that is in relation to the institution of marriage. While there are fewer and fewer rights and obligations attached to married couples which do not attach to de facto couples-a status currently encompassing same-sex couples in most legal contexts-supporters of gay rights argue this is not enough, and that the remaining differences are unacceptable.

Thus, civil unions and domestic partner registries are regarded as insufficient and, for true equality, same-sex couples must have the right to marry. Undoubtedly, for some in the community, the concept of same-sex marriage is complex and controversial, raising social, religious, moral and political questions.

Parliamentary reform

The 43rd Parliament saw an increased focus on the subject of same-sex marriage, with a flurry of legislative activity, including three Bills designedto amend the Marriage Act 1961in order to allow people the right to marry, irrespective of their sex (one Bill was introduced by Labor backbencher Stephen Jones, one by Greens MP Adam Bandt and Independent MP Andrew Wilkie and one by Greens Senator Sarah Hanson-Young). The Bills, if enacted, would also have removed the prohibition on the recognition of marriage between same-sex couples solemnised in a foreign country. These Bills were the subject of two parliamentary committee inquiries, but were not passed by the Parliament.

Opinion polls

The Parliamentary Library's chronology of selected polls states that the outcomes of several polls from a variety of groups conducted over the years 2004 to 2010 may suggest a shift in public opinion in favour of same-sex marriage. However, in an August 2013 Fairfax Nielsen Poll, 57% of respondents said that same-sex marriage was 'not important at all' in deciding how they would vote in the coming election.

Position of the political parties

The 43rd Parliament saw a shift in political party attitudes to same-sex marriage. In December 2011, the Labor Party's platform was amended to support same-sex marriage, but to allow Labor MPs to have a conscience vote on the issue. Kevin Rudd reversed his opposition to gay marriage in May 2013, shortly before regaining the Labor leadership. During the election campaign, Rudd promised that if re-elected, his Government would introduce marriage equality legislation within one hundred days of taking office, and Labor MPs would be allowed a conscience vote on the issue.

Tony Abbott has traditionally opposed same-sex marriage, and in the 2012 parliamentary debates on the same-sex marriage Bills, Coalition MPs were not allowed a conscience vote. In the election campaign, Abbott reaffirmed that he would not support legislation to allow gay marriage. He did not see the issue as a priority for a Coalition Government. A number of Coalition members have indicated however that they would support marriage equality if the party room determines a conscience vote is available.

The Australian Greens have consistently supported same-sex marriage and have sought to legislate in support of their position in both the 42nd and 43rd Parliaments.

International developments

Attention to the issue of same-sex marriage in Australia often follows developments overseas. A growing number of countries allow same-sex marriage (currently 16) with New Zealand, parts of the United Kingdom and France most recently joining the ranks. There is an argument that the Hague Marriage Convention requires signatory countries (Australia is one) to recognise overseas same-sex marriages. In May 2013, Senator Hanson-Young introduced legislation which, if enacted, would have given recognition to valid same-sex marriages entered into overseas. The Bill was a specific response to the changes in New Zealand and would have allowed Australian same-sex couples planning to marry in New Zealand to have their marriage recognised on return to Australia.

There have also been significant developments in the United States where the Supreme Court recently gave two decisions which have had an impact on same-sex marriage. One of them cleared the way for same-sex marriage in California, the 12th state to recognise same-sex marriage, and the other struck down the Congress' Defense of Marriage Act, which provided that in all federal rules and rulings, the word 'marriage' means only a legal union between one man and one woman as husband and wife. According to civil rights lawyer, Father Frank Brennan these decisions will have an impact beyond the United States.

Constitutional issues and state same-sex marriage laws

Introducing same-sex marriage at a state and territory level has been seen as a fall-back position for marriage equality advocates. New South Wales, Tasmania, South Australia and the Australian Capital Territory have all indicated a willingness to introduce same-sex marriage laws.

State same-sex marriage laws raise the question of whether state parliaments have the power to pass such laws. According to constitutional lawyer, Anne Twomey, the short answer is yes; the more difficult question is whether that law will be effective or whether it will be inoperative because it is inconsistent with a Commonwealth law, namely the Marriage Act. Twomey argues that the answer to this question is unclear and unknowable until the High Court decides. Furthermore, she argues that even if operative, a state marriage law would do little more than facilitate the holding of a ceremony. It might confer on the parties to a same-sex marriage the status of 'married' for the purposes of a specific state, but it is most unlikely that the parties would be regarded as legally 'married' for the purposes of Commonwealth law, or under the law of any other state. It would therefore not attract any legal benefits or status accorded to a married couple.

The legal uncertainty is not limited to the states. The Constitution gives the federal parliament power over 'marriage', but the High Court has not said what this term means. The key question is whether federal power is limited by the view of the 19th century framers of the Constitution that 'marriage' means a union between a man and a woman, or has it evolved to encompass other relationships. George Williams, professor of law at the University of New South Wales, says the bottom line is that whichever parliament first legislates for same-sex marriage, a High Court challenge will likely follow.

Further reading

M Neilsen, Same-sex marriage, Background note, Parliamentary Library, Canberra, 10 February 2012.

M Neilsen, Marriage Amendment Bill 2012 [and] Marriage Equality Amendment Bill 2012 [and] Marriage Equality Amendment Bill 2010, Bills digest, 158, 2011-12, Parliamentary Library, Canberra, 2012.

For copyright reasons some linked items are only available to members of Parliament.

© Commonwealth of Australia

# data[].attributes.attachment_link.description
Mary Anne Neilsen, Law and Bills Digest Key issue The right to marry is the one significant difference between the legal treatment of same-sex and heterosexual relationships in Australia. Although same-sex marriage remains controversial, there has been a shift in community and political opinion and the issue is likely to be on the new Parliament's agenda.

# data[].attributes.attachment_link.readable_text
After around ten years of operating on a trial basis, the New South Wales Government has indicated that it intends to make Sydney's Medically Supervised Injecting Centre (MSIC) a permanent facility. Despite the MSIC's success in saving lives and reducing the incidence of infectious disease, the NSW Government has until now chosen not to grant it a more permanent status. This has been despite ongoing calls from medical experts and the Centre's operator, Uniting Care, to lift the trial period and make the centre permanent.
Australia's sole Medically Supervised Injecting Centre was set up on a trial basis in 2001 in Sydney's Kings Cross, and has operated on this basis to date. The MSIC is supported by NSW enabling legislation (the Drug Misuse and Trafficking Act 1985 ) that was amended in 1999, and again in 2003 to enable the centre to continue to operate to 2007 on a trial basis. In 2007, the legislation was amended once again to further extend the MSIC trial for another four years to the end of October 2011.

Supervised injecting centres (also known as drug consumption rooms and safe injecting rooms) are essentially facilities that are set aside for the consumption of illicit drugs. As at 2006, there were 65 supervised injecting centres in operation world-wide, based in Germany, Spain, Switzerland, Norway, Luxembourg, The Netherlands, Canada and Australia.

Unlike illegal shooting galleries, such as those that operated in Sydney prior to the establishment of the MSIC, supervised injecting centres are sanctioned and provide professional health and welfare services to drug users. As such, these centres have been established as a pragmatic harm minimisation strategy, with the intention of reducing the health and public order problems associated with illegal injection drug use. The centres enable drug users to consume pre-obtained drugs in a stress-free atmosphere and under hygienic and low risk conditions.

Thus, the intent of supervised injecting centres is to try to safeguard the health and safety of both patrons and the wider community. The centres aim to reduce public nuisance (such as discarded injecting equipment, public injecting and intoxication and visible drug dealing), opioid-related overdoses (fatal and non-fatal), blood-borne virus transmission (such as HIV/AIDs and hepatitis C), and, to ensure that drug users remain engaged with the health and welfare system, thereby reducing the likelihood of their contracting and spreading blood-borne diseases.

A series of evaluations of the MSIC have been conducted since the centre was first opened. Generally speaking, the evaluation findings have been positive, and broadly comparable with evaluation results of other similar supervised injecting drug facilities, mostly located in European cities. Among other things, the MSIC has treated a substantial number of overdoses which may otherwise have occurred in public places and without medical support, thereby increasing the risks to drug users and others. There has also been a significant decrease in the number of needle syringes collected in the King's Cross area since the MSIC commenced operations. Community surveys of local residents and businesses indicate that there has been an increase in support for the MSIC over the period in which it has been operating.

(Image sourced from: http://www.google.com.au/images?hl=en&source=imghp&biw=1276&bih=830&q=hypodermic+syringe&gbv=2&aq=f&aqi=g1&aql=&oq=&gs_rfai=)

# data[].attributes.attachment_link.title
Sydneys Medically Supervised Injecting Centre - Parliament of Australia

# data[].attributes.attachment_link.description
After around ten years of operating on a trial basis, the New South Wales Government has indicated that it intends to make Sydney's Medically Supervised Injecting Centre (MSIC) a permanent facility. Despite the MSIC's success in saving lives and reducing the incidence of infectious disease, the NSW Government has until now chosen not to grant it a more permanent status.

# data[].attributes.headline
Supervised Injection Centres (VIC) Policy Paper

# data[].attributes.subject
Supervised Injection Centres (VIC) Policy Paper

# data[].attributes.headline
Yarra Council: Supervised Injection Centres

# data[].attributes.subject
Yarra Council: Supervised Injection Centres

# data[].attributes.attachment_link.readable_text
Updated March 21, 2017 08:14:33

On one side of this debate you have libertarians and conservatives who argue the laws are too subjective and have a chilling effect on free speech.

Across the divide are the moderates and those representing ethnic communities who believe the laws effectively protect against hate speech and should remain unchanged.

Both sides agree on one issue; the Human Rights Commission's complaints handling process needs to be changed.

So, what is Section 18C?

Section 18C was added to the Racial Discrimination Act in 1995 and makes it illegal to offend, insult, humiliate or intimidate on the basis of a person's race, colour or national or ethnic origin.

But Section 18D provides wide-ranging exemptions including anything said or done "in the performance of an artistic work" and in the publishing of "a fair and accurate report" of "fair comment".

How are complaints made?

Complaints can be lodged with the Human Rights Commission, which will investigate and either dismiss the complaint, or initiate conciliation processes.

If the matter cannot be resolved, it can be taken to court but - as of 2014 - fewer than 5 per cent of complaints made it this far.

Of the complaints that have made it to court, the majority were dismissed. Indigenous people have lodged most of the complaints to date, followed by members of the Jewish community.

HRC President Gillian Triggs previously noted the commission receives about 20,000 complaints each year, and under the Act, it must investigate any that are in writing.

Why all the controversy?

The first major push to change the laws came in 2011 when News Corp columnist Andrew Bolt was found to have breached the Racial Discrimination Act over two articles he wrote in 2009, in which he implied light-skinned people who identified as Aboriginal did so for personal gain.

Then-Liberal leader Tony Abbott slammed the decision and promised to repeal section 18C if he became prime minister. Well, he did become PM, but the move proved so controversial and divisive that he dumped plans to amend the Act in 2014.

Since then, there have been two high profile cases under Section 18C involving the late News Corp cartoonist Bill Leak and students from the Queensland University of Technology.

Both complaints have been dismissed but critics argue they highlight everything that is wrong with the controversial section.

What changes are being proposed?

A recent Parliamentary Inquiry recommended some procedural changes to the way the HRC deals with complaints, to speed up the process and give the commission the power to knock back vexatious claims, or those with little prospect of success, at an earlier stage.

But it failed to make any concrete recommendations about the wording of Section 18C itself. There's a push within sections of the Government to raise the threshold by replacing the words "insult" and "offend" with a stronger word like "harass".

That view is not shared by all Coalition members though, meaning the Prime Minister will need to build consensus for change and ultimately come up with a compromise.

First posted August 30, 2016 15:03:22

# data[].attributes.attachment_link.title
The history of the Racial Discrimination Act

# data[].attributes.attachment_link.description
Updated March 21, 2017 08:14:33 On one side of this debate you have libertarians and conservatives who argue the laws are too subjective and have a chilling effect on free speech. Across the divide are the moderates and those representing ethnic communities who believe the laws effectively protect against hate speech and should remain unchanged.

# data[].attributes.attachment_link.readable_text
What does the law say?

Section 18C of the Racial Discrimination Act makes it unlawful for someone to do an act that is reasonably likely to "offend, insult, humiliate or intimidate" someone because of their race or ethnicity.

Section 18D of the Racial Discrimination Act contains exemptions which protect freedom of speech. These ensure that artistic works, scientific debate and fair comment on matters of public interest are exempt from section 18C, providing they are said or done reasonably and in good faith.

What is the background to these laws?

Australia has obligations to implement protections against racial hatred under the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

Sections 18C and 18D were introduced in response to recommendations of major inquiries including the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. These inquiries found that racial hatred and vilification can cause emotional and psychological harm to their targets, and reinforce other forms of discrimination and exclusion. They found that seemingly low-level behaviour can soften the environment for more severe acts of harassment, intimidation or violence by impliedly condoning such acts.

Echoing these inquiries, the Australian Law Reform Commission published the 1992 report, Multiculturalism and the Law, which recommended the introduction of legislation to deal with racial hatred.

Balancing freedom of speech and freedom from racial vilification

The courts have consistently interpreted sections 18C and 18D as maintaining a balance between freedom of speech and freedom from racial vilification. The courts have held that for conduct to be covered by section 18C, the conduct must involve "profound and serious" effects, not "mere slights". The courts have also found that section 18C is an appropriate measure to implement Australia's obligations to prohibit racial hatred under the ICCPR and ICERD.

While many laws restrict freedom of speech, such as laws applying to defamation, advertising and national security, section 18C fills an important gap in legal protections for those affected by racial hatred and vilification.

Racial vilification complaints made to the Australian Human Rights Commission

Complaints relating to racial vilification under the Racial Discrimination Act can be lodged with the Commission. During the 2012-2013 financial year, the Commission received a 59 per cent increase in complaints under section 18C. Fifty-three per cent of racial vilification complaints in 2012-13 were resolved at conciliation. Four per cent of complaints made under section 18C were terminated or declined for being trivial, misconceived or lacking in substance. And less than three per cent of racial hatred complaints proceeded to court.

Interested in more information? Please see the Commission's website for further information on racial vilification and discrimination.

Examples of racial vilification complaints and cases

Complaint about racial vilification on the internet
The complainant, of Asian background, complained about a website which he said advocated violence against Asians. The comments on the website included: 'Asian People Flood our city with their Asian shops with their language all over them, having their own dedicated "china town" and their own suburb ...' '... we understand everyone has different levels of hate for Asians and so we have ... Yellers. Their job is to Yell at the Asians with passion i.e. "YOU GOOK F**K OFF TO CHINA" and do whatever they can to show Asians they are not welcome in Australia. ... Fighters ... are there to express their anger physically by laying the Gooks out.'

On receipt of the complaint, the Commission contacted the Internet Service Provider, which subsequently disabled the website as it breached the ISP's Acceptable Use Policy.

Complaint about racial vilification in the print media
The complainant, of Aboriginal descent, claimed the respondent newspaper and cartoonist published a cartoon that vilified Aboriginal people. The newspaper and cartoonist said the cartoon was published in the course of a debate, was drawn and published for genuine artistic purposes and contained genuine and fair comments on an event of public interest.

During the conciliation process, the complaint resolved with an agreement that the respondents would visit the complainant's community to listen to community members' stories and teach the children how to draw cartoons.

Complaint about racial vilification in the workplace
The complainant, an Aboriginal person, worked for the respondent government department as a maintenance worker, and claimed that his supervisors called him over by whistling instead of using his name, assigned him 'bad' jobs (including lining the toilet pits after use), called him a 'black c**t, used offensive language when speaking to him and described Aboriginal people as lazy and useless. The complainant also claimed that when he made an internal complaint, the respondent told him this was part of the work culture and that some of that 'stuff' was 'OK'. The complainant said he resigned due to this treatment. The respondents denied the allegations.

The complaint was resolved through a conciliation process and the respondents agreed to pay the complainant $45 000 and provide him with a statement of regret.

Court case involving consideration of Section 18C
The case of Toben v Jones (2003) 129 FCR 515 was the first to apply the Racial Discrimination Act's racial vilification provisions to the internet. It involved a complaint about the Adelaide Institute website, established by the respondent, which was argued as being anti-Semitic and vilified Jews. The Adelaide Institute presented as a scholarly centre for Holocaust research.

In this case, the Federal Court of Australia found that certain documents on the website did vilify Jews for a number of reasons, including imputing that Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; and that some Jewish people have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed and have done so for improper purposes such as financial gain.

Court case involving consideration of Section 18D
The Kelly-Country v Beers & Anor [2004] FMCA 336 (21 May 2004) case involved a complaint about a comedian's performances, where the comedian, under the name 'King Billy Cokebottle', purports to be an Aboriginal person, performing a comedy monologue. The comedian was not Aboriginal. The performances were on video and audio tape, and available for public purchase. It was alleged that Aboriginal people were portrayed as rude, stupid, unable to speak English properly, dirty, always drunk or drinking and swearing, among other things. It was also alleged that matters involving aspects of sacred tribal activities were referred to in performances, which could only be discussed by and in the presence of initiated male Aboriginal people.

The Federal Magistrates Court of Australia noted the acts and tapes were 'impolite and offensive' to many groups within Australia, but just because they were offensive or insulting did not mean they were unlawful under the Racial Discrimination Act. The Court noted the performances and tapes were comedic in intention, and were not to be taken literally or seriously and had no overt political context. The Court found the performances fell within the term 'artistic work', as found the exemption in section 18D.

List of cases dealing with section 18C of the Racial Discrimination Act

Vergara v Living and Leisure Australia Ltd [2013] FCA 775 (8 August 2013)
Butler v Clemesha [2013] FCCA 722 (11 July 2013)
Hamlin v The University Of Queensland [2013] FCCA 406 (31 May 2013)
Burns v Media Options Group Pty Ltd & Ors [2013] FCCA 79 (19 April 2013)
Barnes v Northern Territory Police & Anor [2013] FCCA 30 (15 April 2013)
Ejueyitsi v Commissioner Of Police (Western Australia) [2013] FMCA 120 (5 March 2013)
Li v Chief of Army [2013] FCAFC 20 (26 February 2013)
Kanapathy on behalf of Rajandran Kanapath y v in de Braekt (No. 3) [2012] FMCA 1213 (21 December 2012)
Ibrahim v Australian Dental Council [2012] FMCA 612 (20 September 2012)
Sidhu v Raptis [2012] FMCA 338 (9 May 2012)
Clarke v Nationwide News Pty Ltd trading as The Sunday Times (No 2) [2012] FCA 990 (4 April 2012)
Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307 (27 March 2012)
Li v Chief of Army [2012] ADFDAT 1 (16 March 2012)
Haile-Michael v Konstantinidis (No 2) [2012] FCA 167 (1 March 2012)
Haile-Michael v Konstantinidis [2012] FCA 108 (14 February 2012)
Eatock v Bolt (No 2) [2011] FCA 1180 (19 October 2011)
Eatock v Bolt [2011] FCA 1103 (28 September 2011)
Noble v Baldwin & Anor (No.2) [2011] FMCA 700 (8 September 2011)
APS Group (Placements) Pty Ltd v O' Loughlin [2011] FWA 5230; [2011] FWAFB 5230 (8 August 2011)
Noble v Baldwin & Anor [2011] FMCA 283 (28 April 2011)
Portuguese Cultural & Welfare Centre Inc v AMCA [2011] FMCA 144 (18 March 2011)
Vaenuku v Terrigal Trojans Rugby Club Inc & Anor [2010] FMCA 701 (14 September 2010)
Clarke v West Australian Newspapers Ltd [2010] FMCA 502 (20 July 2010)
Toben v Jones [2009] FCAFC 104 (13 August 2009)
Dunne v Noonan [2009] FMCA 362 (22 April 2009)
Jones v Toben (Corrigendum Dated 20 April 2009) [2009] Fca 354 (16 April 2009)
Campbell v Kirstenfeldt [2008] FMCA 1356 (30 September 2008)
Grigor-Scott v Jones [2008] FCAFC 14 (28 February 2008)
Silberberg v The Builders Collective of Australia Inc. [2007] FCA 1512 (2 October 2007)
Bursac v Pazpinis [2007] FMCA 382 (12 March 2007)
Lina Obieta v New South Wales Department of Educationand Training and Ors [2007] FCA 86 (7 February 2007)
Jeremy Jones, and on behalf of the Executive Council of Australian Jewry v The Bible Believers Church [2007] FCA 55 (2 February 2007)
Catch The Fire Ministries Inc And Others v Islamic Council Of Victoria Inc. (2006) 235 ALR 750 (Victorian case which references section 18C of the Racial Discrimination Act)
Gama v Qantas Airways Ltd (No.2) [2006] FMCA 1767 (8 December 2006)
Cox v Becker [2006] FCA 1670 (5 December 2006)
Cox v Said & Ors [2006] FMCA 1300 (17 August 2006)
San v Dirluck Pty Ltd & Anor (No.2) [2005] FMCA 846 (14 June 2005)
San v Dirluck Pty Ltd & Anor [2005] FMCA 750 (9 June 2005)
Nicholson v State of Victoria [2005] FMCA 258 (10 March 2005)
Bropho v HREOC & Anor [2005] HCATrans 9 (4 February 2005)
Kelly-Country v Beers (2004) 207 ALR 421; (2004) 181 FLR 352
Zheng v Beamish [2004] FCA 512 (29 April 2004)
Zheng v Beamish [2004] FMCA 61 (19 February 2004)
Beamish v Zheng [2004] FMCA 60 (19 February 2004)
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (6 February 2004)
Toben v Jones [2003] FCAFC 137 (27 June 2003)
Miller v Wertheim & Anor S226/2002 [2003] HCATrans 807 (20 June 2003)
Firew v Busways Trust & Ors [2003] FMCA 193 (16 May 2003)
McLeod v Power [2003] FMCA 2 (14 January 2003)
Bropho v Human Rights & Equal Opportunity Commission [2002] FCA 1510 (4 December 2002)
McGlade v Lightfoot [2002] FCA 1457 (26 November 2002)
Batzialas v Tony Davies Motors [2002] FMCA 243 (16 October 2002)
Jones v Toben (includes explanatory memorandum) [2002] FCA 1150 (17 September 2002)
Jones v Scully [2002] FCA 1080 (2 September 2002)
McGlade v Lightfoot [2002] FCA 752 (13 June 2002)
Miller v Wertheim [2002] FCAFC 156 (27 May 2002)
Charan v Commonwealth Insurance Ltd (2002) EOC 93-220; [2002] FMCA 50
Hagan v Trustees of the Toowoomba Sports Ground Trust B17/2001 [2002] HCATrans 132 (19 March 2002)
Chambers v Darley [2002] FMCA 3 (20 December 2001)
Horman v Distribution Group [2001] FMCA 52 (19 December 2001)
Beling v Stapels [2001] FMCA 135 (10 December 2001)
Chau v Oreanda & ors [2001] FMCA 114 (16 November 2001)
Miller v Wertheim & anor. [2001] FMCA 103 (14 November 2001)
Creek v Cairns Post Pty Ltd [2001] FCA 1150 (20 August 2001)
Creek v Cairns Post Pty Ltd [2001] FCA 1007 (31 July 2001)
Williams v Tandanya Cultural Centre & Ors [2001] FMCA 46 (23 July 2001)
Wanjurri v Southern Cross Broadcasting (Aus) Ltd [2001] HREOCA 2 (7 May 2001)
Nyungar Circle of Elders v West Australian Newspapers Ltd [2001] HREOCA 1 (12 April 2001)
Gibbs v Wanganeen [2001] FMCA 14 (6 March 2001)
Hagan v Trustees of the Toowoomba Sports Ground Trust FCA [2001] FCA 123 (23 February 2001)
Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 (10 November 2000)
McGlade v Human Rights & Equal Opportunity Commission [2000] FCA 1477 (18 October 2000)
McMahon v Bowman [2000] FMCA 3 (13 October 2000)
Jones v Toben [2000] HREOCA 39 (5 October 2000)
Hobart Hebrew Congregation v Scully [2000] HREOCA 38 (21 September 2000)
Australian Macedonian Human Rights Committee (Inc) v State of Victoria [2000] HREOCA 52 (8 September 2000)
State of Victoria v Macedonian Teachers Association of Vic Inc. (2000) 21(11) Leg Rep SL2a (Primarily concerns s9 of Racial Discrimination Act 1975)
Hearne v Dennis [2000] HREOCA 20 (24 May 2000)
Feghaly v Oldfield [2000] HREOCA 16 (19 April 2000)
D'Oliveira v The Australian Democrats [2000] HREOCA 11 (23 March 2000)
Walsh v Hanson [2000] HREOCA 8 (2 March 2000)
State of Victoria v Macedonian Teachers Association of Victoria Inc. (1999) 91 FCR 47; (1999) 56 ALD 333; [1999] FCA 1287; BC9905952 (Primarily concerns s9 of Racial Discrimination Act 1975)
Bryl v Anna Kovacevic And: Louis Nowra and Melbourne Theatre Company [1999] HREOCA 11 (21 June 1999)
Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 534 (30 April 1999)
Jacobs v Fardig [1999] HREOCA 9 (27 April 1999)
McGlade v Lightfoot [1999] HREOCA 1 (21 January 1999)
Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650 (21 December 1998) (Primarily concerns s9 of Racial Discrimination Act 1975)
De La Mare v Special Broadcasting Service [1998] HREOCA 26 (18 August 1998)
Shron v Telstra Corporation Ltd [1998] HREOCA 24 (10 July 1998)
Shaikh v Campbell & Nivona Pty Ltd [1998] HREOCA 13 (24 April 1998)
Executive Council of Australian Jewry & Anor v Olga Scully & Anor [1998] FCA 66 (13 February 1998)
Australian Macedonian Human Rights Committee (Inc) v Victoria [1998] HREOCA 1 (8 January 1998) (Primarily concerns s9 of Racial Discrimination Act 1975)
Francis Nnamdi Elekwachi v Human Rights and Equal Opportunity Commission [1997] FCA 1183 (3 November 1997)
Executive Council of Australian Jewry v Olga Scully [1997] HREOCA 59 (21 October 1997)
Combined Housing Organisation Ltd, Ipswich Regional Atsic for Legal Services, Thompson and Fisher v Hanson [1997] HREOCA 58 (16 October 1997)
Rugema v Gadsten Pty Ltd & Derkes [1997] HREOCA 34 (26 June 1997)
Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23 (15 May 1997)

# data[].attributes.attachment_link.title
At a glance: Racial vilification under sections 18C and 18D of the Racial Discrimination Act 1975 (Cth)

# data[].attributes.attachment_link.description
Section 18C of the Racial Discrimination Act makes it unlawful for someone to do an act that is reasonably likely to "offend, insult, humiliate or intimidate" someone because of their race or ethnicity. Section 18D of the Racial Discrimination Act contains exemptions which protect freedom of speech.

# data[].attributes.attachment_link.readable_text
THERE has been talk in recent times of medicinal cannabis being legalised in Australia and some have been waiting with bated breath for the announcement.

And the Victorian government has finally passed its bill, with some people now able to manufacture and consume the drug.

Victoria is the first state in Australia to legalise medicinal cannabis, with a cultivation trial about to get underway.

But how exactly does it work and what does it mean for you?
WHAT IS MEDICINAL CANNABIS?
It stems from the drug, marijuana, which is made up of cannabinoids and many believe it can be used to treat chronic illnesses or alleviate symptoms.

University of Melbourne psychiatrist Professor David Castle said it would be beneficial to people who were not getting the desired treatment from their current medication.

Recreational use of marijuana is illegal and Prof Castle said people were understandably concerned the legalisation of medicinal cannabis would lead to addictions and various side effects.

But he believed it would be manufactured and controlled in a way so this was not an issue.

"A lot of medications we use are potentially addictive and have potential side effects," he said.

"There's no reason why we shouldn't expect this to become an important part of pharmacopoeia."
WHO CAN GET IT?
Children with severe epilepsy will be able to access medicinal cannabis from next year.

So far the government is just focusing on this one group of patients while cultivation and manufacturing industries are set up in the state to support ongoing supply.

It could be extended to people with other serious illnesses in the future and Prof Castle said medicinal cannabis could be beneficial to people with a whole range of diseases.

"It's helpful for people with muscular dystrophy and cancer," he said.

"It has elements that can stimulate appetite and is good for people with anorexia and beneficial to people with HIV and AIDS."

Prof Castle said it was believed medicinal cannabis also took away nausea that is a side effect of chemo.
HOW DOES IT WORK?
In Victoria, medicinal cannabis will not be used in the same form as recreational drug use.

Prof Castle said it will not be smoked and is essentially an oil.

"We're certainly not wanting to encourage smoking because of the dangerous health effects," he said.

"It will be produced in a form that is not associated with dangers of cannabisism and will most likely be in a capsule."

Medicinal Cannabis Australia says cannabinoids relieve the harsh effects of chronic illness by attaching to receptors in the brain, organs, connective tissues, glands and immune cells.

It works to create homeostasis, the maintenance of stable internal environment.

A normal body will have a healthy endocannabinoid system, that feeds receptors and keeps everything working.

Somebody battling a chronic illness won't have receptors that are "well-fed" by the endocannabinoid system, hence why medicinal cannabis can alleviate symptoms.
HOW IS IT DIFFERENT FROM RECREATIONAL DRUG USE?
Prof Castle said the make-up of a marijuana plant was not controlled by those who used it recreationally.

"The components of the plant are very complex and there are many chemicals in it," he said.

"It can sometimes be powerful, depending on how it's cultivated."

He said marijuana could have strong effects on your psychosis when you took the drug recreationally because you had no control over the amount of chemicals.

Medicinal cannabis will be controlled and allow a person to get the correct dose.

"Recreational use also tends to associate itself with a criminal element," Professor Castle said.

"Another massive problem with recreational use is problems go on within the drug supply chain."

He said medicinal cannabis took away the criminality from the drug and opened up an opportunity for proper manufacture and dose control.

# data[].attributes.attachment_link.title
Everything you needed to know about medical marijuana

# data[].attributes.attachment_link.description
THERE has been talk in recent times of medicinal cannabis being legalised in Australia and some have been waiting with bated breath for the announcement. And the Victorian government has finally passed its bill, with some people now able to manufacture and consume the drug.

# data[].attributes.attachment_link.readable_text
Updated April 12, 2016 21:07:49

Victoria has become the first state in Australia to legalise the use of medicinal cannabis.

Children with severe epilepsy will be the first to access to the drug in 2017, Victoria's Health Minister Jill Hennessy said, after the Access to Medicinal Cannabis Bill passed Parliament.

The legislation enables the manufacture, supply and access to medicinal cannabis products in the state.

"We're starting with these children with severe epilepsy, whose lives have been shown to improve so significantly, because we know these children often don't make it until adulthood," Ms Hennessy said.

"We want to improve the quality of their life."

She said it also meant parents of children with the disorder have to purchase the drug illegally.

"I just think that in this day and age, it's unfair and unacceptable to ask a parent to make a decision between obeying the law and acting in the best interests of their child," she said.

"Those parents will no longer have that dilemma."

Ms Hennessy has said access to the drug - available in a variety of forms, including tinctures, oils, capsules, sprays and vaporisable liquids - would be rolled out gradually and eventually be made available to palliative care and those with HIV.

The Government said it would set up an Office of Medicinal Cannabis to oversee the manufacture of the drugs and would educate doctors and patients about their role and eligibility for the scheme.

An independent body will also provide advice on the introduction of the drug, which is also legal in more than 20 states in the United States, Spain and Israel.

Legislation to allow the cultivation of cannabis in Australia for medical or scientific purposes passed Federal Parliament in February.

The Victorian Government will undertaking a small-scale, strictly controlled cannabis cultivation trial at a Victorian research facility.

The Queensland Government last year announced that a trial to treat children with epilepsy with medicinal cannabis would take place this year.

New South Wales Premier Mike Baird this year announced 330 patients suffering nausea and vomiting from chemotherapy would take part in a clinical trial using a cannabis-derived tablet manufactured by a Canadian company.

The medicinal cannabis trial is the third of its kind in NSW after trials involving terminally ill patients and children with severe epilepsy.

Topics: cannabis, pharmaceuticals, health, state-parliament, government-and-politics, vic

First posted April 12, 2016 19:23:24

# data[].attributes.attachment_link.title
Victoria becomes first Australian state to legalise medicinal cannabis

# data[].attributes.attachment_link.description
Updated April 12, 2016 21:07:49 Victoria has become the first state in Australia to legalise the use of medicinal cannabis. Children with severe epilepsy will be the first to access to the drug in 2017, Victoria's Health Minister Jill Hennessy said, after the Access to Medicinal Cannabis Bill passed Parliament.

# data[].attributes.attachment_link.title
Refugees and the Australian Government - International law & Migration Act

# data[].attributes.attachment_link.description
The Australian Government & refugees - Learn about international law and the Migration Act in Australia

# data[].attributes.body
See 'Migration Act 1958'

# data[].attributes.attachment_link.readable_text
Last updated 14 August 2015

Over the last decade the Commission has worked to promote and protect the rights of asylum seekers and refugees in Australia. The Commission aims to provide clear, factual information to highlight the human rights issues involved in the treatment of these groups of people.

On this page:

Who are asylum seekers and refugees?

An asylum seeker is a person who has fled their own country and applied for protection as a refugee.

The United Nations Convention relating to the Status of Refugees, as amended by its 1967 Protocol (the Refugee Convention), defines who is a refugee and sets out the basic rights that countries should guarantee to refugees. According to the Convention, a refugee is a person who is outside their own country and is unable or unwilling to return due to a well-founded fear of being persecuted because of their:

race

religion

nationality

membership of a particular social group or

political opinion.

Asylum seekers or refugees and migrants have very different experiences and reasons for moving to another country. Migrants choose to leave their home country, and can choose where to go and when they might return to their home country. Asylum seekers and refugees, on the other hand, flee their country for their own safety and cannot return unless the situation that forced them to leave improves.

What are Australia's human rights obligations in relation to asylum seekers and refugees?

Australia has international obligations to protect the human rights of all asylum seekers and refugees who arrive in Australia, regardless of how or where they arrive and whether they arrive with or without a visa.

While asylum seekers and refugees are in Australian territory (or otherwise engage Australia's jurisdiction), the Australian Government has obligations under various international treaties to ensure that their human rights are respected and protected. These treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC). These rights include the right not to be arbitrarily detained.

As a party to the Refugee Convention, Australia has agreed to ensure that asylum seekers who meet the definition of a refugee are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement.

Australia also has obligations not to return people who face a real risk of violation of certain human rights under the ICCPR, the CAT and the CRC, and not to send people to third countries where they would face a real risk of violation of their human rights under these instruments. These obligations also apply to people who have not been found to be refugees.

For an overview of the key human rights issues that arise from Australia's approach to asylum seekers and refugees, see the Commission's publication Asylum seekers, refugees and human rights: snapshot report 2013.

How many refugees does Australia grant permanent protection to each year?

Under the Humanitarian Program, Australia accepts a certain number of people every year who are refugees or have special humanitarian needs. The Humanitarian Program has two main components:

offshore resettlement for people who are found to be refugees (and others whose need for protection has been acknowledged) in another country before they come to Australia, and

onshore protection for people who come to Australia with a valid visa and make a successful claim for asylum after they arrive.

The Australian Government has indicated that in the 2014-15 financial year, it intends to provide 13,750 places in the Humanitarian Program.

In addition, asylum seekers who arrived in Australia without a valid visa but are not transferred to Nauru or Manus Island may be granted temporary protection visas or safe haven enterprise visas.

Why are asylum seekers and refugees in immigration detention?

Asylum seekers may arrive in Australia without a valid visa or other documentation for a number of reasons. For example, a person who is fleeing persecution by the government of their country of origin might not be able to obtain a passport from officials in that country. Alternatively, a person fleeing persecution might travel without documentation to avoid being identified as they leave their country of origin in order to reduce the risk to themselves and their family.

Under the Migration Act 1958 (Cth) (the Migration Act), asylum seekers who arrive in Australia without a valid visa must be held in immigration detention until they are granted a visa or removed from Australia.

There is no limit under Australian law to the length of time for which a person may be held in immigration detention. Some asylum seekers spend long periods of time in immigration detention waiting for their refugee claim to be assessed; waiting for the completion of health, identity and security checks; or awaiting removal from Australia if they have been found not to be a refugee nor someone who is owed 'complementary protection'. Click here for more information about immigration detention and human rights.

While the legal framework for mandatory detention remains in place, over the past few years, increasing numbers of asylum seekers have been permitted to reside in the community while their claims for protection are assessed, after spending an initial period in closed detention. The Commission has welcomed the increased use of alternatives to closed immigration detention such as community detention and the grant of bridging visas, but remains concerned that thousands of asylum seekers and refugees are still held in closed immigration detention facilities.

How are asylum seekers' claims decided?

Asylum seekers who arrive in Australia with a valid visa

Asylum seekers who arrive in Australia on a valid visa and then apply for protection (i.e. as part of the onshore protection program mentioned above) have their claims assessed through the refugee status determination and complementary protection system that applies under the Migration Act.

The Department of Immigration and Border Protection (Department) will make a primary assessment as to whether the person is a refugee as defined by the Migration Act.

In some cases, a person may not be a refugee, but may nevertheless face significant human rights abuses, such as torture, if returned to his or her country of origin. If an asylum seeker is found not to be a refugee, the Department will assess whether he or she meets 'complementary protection' criteria - that is, whether he or she is owed protection under the ICCPR, CAT or CRC because if they were to be sent to another country there is a real risk they would suffer serious harm.

If a person is found to be a refugee or to be owed complementary protection, providing he or she satisfies health, identity and security requirements, he or she will be granted a protection visa.

People who are refused protection by the Department at the primary stage have access to independent merits review by the Refugee Review Tribunal (RRT), or in some circumstances the Administrative Appeals Tribunal (AAT). In some circumstances, they can seek judicial review of decisions made by the RRT or the AAT. In some exceptional circumstances they can seek Ministerial intervention to allow them to remain in Australia on other humanitarian or compassionate grounds.

Asylum seekers who arrive in Australia by boat without a valid visa

Since August 2012 there have been a number of changes in law and policy in relation to what happens to people who come to Australia seeking asylum without a valid visa. What policies apply to these asylum seekers now depends on their mode of arrival, and on what date they arrived.

In August 2012, the Australian Government introduced a system of third country processing for asylum seekers who arrive in Australia by boat without a valid visa. Under this system, asylum seekers who have arrived by boat must be transferred to a third country as soon as is reasonably practicable unless the Minister for Immigration and Border Protection decides otherwise.

If asylum seekers are transferred to a third country, their claims for protection will be processed under that country's laws. For more information about the transfer of asylum seekers to third countries, click here.

If asylum seekers who arrive unauthorised by boat after August 2012 are allowed by the Minister to remain in Australia, they are only able to apply for temporary protection visas or safe haven enterprise visas - they are not able to apply for permanent protection. How their applications will be processed depends on when they arrived in Australia. If they arrived on or after 1 January 2014, they apply through the refugee status determination and complementary protection system that applies under the Migration Act the same way as for asylum seekers who had a valid visa (ie with access to merits review by the RRT, etc).

However, asylum seekers who arrived unauthorised by boat between 13 August 2012 and 1 January 2014 and are permitted by the Minister to apply for a visa may be put through the new 'fast track' assessment process (introduced in April 2015).

Under the 'fast track' process, the Department will make a primary assessment of an asylum seeker's claim for protection. If the Department makes a negative assessment, fast track applicant will not be able to apply to the RRT for merits review of that decision. Instead, these applicants will only be able to apply to the newly established Immigration Assessment Authority (IAA) for a much more limited review of their application. The IAA generally will not hold hearings, and will not consider any information not raised by the applicant at the primary interview with the Department. Unlike the RRT, the IAA cannot make a decision to grant a (temporary) protection visa to an applicant if it determines that the Department wrongly refused one - it can only send the matter back to the Department for reconsideration.

There is more information about the asylum application process, including the fast track assessment process, temporary protection visas and safe haven enterprise visas, under the section 'Protection visa processing' on the Department's website here.

What is the 'enhanced screening process'?

In October 2012 the Australian Government introduced an 'enhanced screening process' for people who come unauthorised by boat to Australia from Sri Lanka.

The Commission is concerned that this process may not contain sufficient safeguards to protect people from being removed to a country where they face a real risk of significant harm ( refoulement).

Under the enhanced screening process an individual is interviewed by two officers from the Department. If the Department determines that an individual raises claims that may engage Australia's non-refoulement obligations, they are 'screened in' to the third country processing regime.

If the Department determines that an individual does not raise claims that engage Australia's non-refoulement obligations then they are 'screened out' of the protection assessment process and removed back to their country of origin.

For information about the enhanced screening process and the Commission's concerns about the process, see the Commission's fact sheet: Tell Me About: The 'Enhanced Screening Process'.

# data[].attributes.attachment_link.description
Last updated 14 August 2015 Over the last decade the Commission has worked to promote and protect the rights of asylum seekers and refugees in Australia. The Commission aims to provide clear, factual information to highlight the human rights issues involved in the treatment of these groups of people.

# data[].attributes.attachment_link.readable_text
'when medical intervention takes place, at the patient's request, in order to end the patient's life'
Natasha Cica - Consultant
Law and Public Administration Group

The Northern Territory likes to think of itself as frontier country - it is certainly at the forefront of the international debate over euthanasia. On 25 May 1995 it became the first jurisdiction in the world to pass laws allowing a doctor to end the life of a terminally ill patient at the patient's request. In doing so, the law permits both physician-assisted suicide and active voluntary euthanasia in some circumstances. However, under the Rights of the Terminally Ill Act 1995 (NT) strict conditions apply: it is neither an unqualified 'licence to kill' nor an unqualified affirmation of a competent adult patient's right to assistance in dying.

The Act has caused a furore nationally and internationally, with both extensive criticism and extensive support for the Rights of the Terminally Act 1995 from politicians, health care professionals, religious groups, 'pro-life' and 'pro-choice' pressure groups, academics, the media and members of the general public.

The Australian Medical Association condemned the Act - its then President, Dr Brendan Nelson, saying the legislation devalued human life.(1) The President of the Australian Federation of AIDS Organisations, Mr Tony Keenan, welcomed it as 'a great achievement' and 'a very good example of humane, compassionate legislation that responds to community demand and community need'.(2) In the United States, an Oregon Right To Life lobbyist, Ms Gail Atteberry, said she was 'horrified' by the new law, and believed it would lead to a new kind of tourism: 'I believe the Northern Territory will become not only the suicide capital of Australia but of the world.'(3) In the other corner, Mr Robin Fletcher, a spokesman for the Hemlock Society - the largest pro-euthanasia group in the United States - said the law was 'wonderful'. 'It sounds like it was well thought out and a compassionate answer to a problem'.(4)

The law has already survived attempts to repeal it in the Northern Territory Legislative Assembly, and a challenge to its validity in the Northern Territory Supreme Court. Leave is being sought to challenge the Act in the High Court. In Federal Parliament in September, a Liberal backbencher, Mr Kevin Andrews MP, is introducing a Private Member's Bill aimed at overturning it. The Commonwealth has the power to enact its own legislation overriding Territory law under section 122 of the Constitution.

The Federal Bill has the personal support of the Prime Minister, Mr John Howard, although he will be allowing Liberal Members of Parliament a conscience vote. The Leader of the National Party, Mr Tim Fischer is adopting the same approach. It has been reported that the Leader of the Opposition, Mr Kim Beazley personally opposes euthanasia but that members of the ALP will also have a conscience vote. No-one has yet used the Territory legislation, perhaps in part, because medical practitioners are afraid they could be charged with murder if it is subsequently overturned.

This paper, the second in a four-part series on euthanasia, examines the Northern Territory legislation in the wider national and international context, including the approach taken to active voluntary euthanasia in the Netherlands, England, the United States and Canada.

Under English common law, a doctor is prohibited from taking active steps to end a patient's life - but there is an exception. A doctor who administers a pain killer to a terminally ill patient in great suffering, knowing an incidental effect will be to shorten the patient's life, will be safe from criminal liability, providing the primary reason for giving the pain killer was to relieve suffering, not to cause death.

However, it is unclear whether Australian doctors have the same protection. No doctor has faced criminal prosecution here under those circumstances. Under Australian homicide laws, a doctor may be guilty of murder if he or she administered drugs knowing they might cause death, and they did in fact cause death - even if the doctor did not intend the patient to die. South Australia is the only state to have clarified the law on this issue. It appears to have followed the English common law lead.

The Netherlands has a unique approach to regulating active voluntary euthanasia and physician-assisted suicide. It is often held up as a jurisdiction in which euthanasia has been decriminalised. This is not an accurate description of the Dutch legal situation. Active voluntary euthanasia and physician-assisted suicide are both prohibited under the Dutch Penal Code. However, doctors have been guaranteed immunity from prosecution providing they have complied with a number of 'rules of careful practice'. The acceptance of active voluntary euthanasia and physician-assisted suicide in the Netherlands is largely due to a unique combination of social and cultural attitudes including:

a willingness to discuss difficult moral issues openly;

the increased secularisation of Dutch society since the 1960s;

a Calvinist sense of individual responsibility combined with a respect for the autonomy of others;

the Royal Dutch Medical Association's approval of doctors participating in voluntary euthanasia;

great trust in, and respect for, the medical profession; and

universal and comprehensive medical coverage.

In 1990, the Dutch Government set up the Remmelink Commission to investigate 'the practice of action and inaction by a doctor that may lead to the end of a patient's life at the patient's explicit and serious request or otherwise.' The commission ordered the first empirical study of all medical decisions at the end life. That study found that in the Netherlands in 1990 there were:

2,300 cases of active voluntary euthanasia, representing 1.8 per cent of all deaths;

400 cases of physician-assisted suicide, representing 0.3 per cent of all deaths;

22,500 cases where death followed the administration of drugs to alleviate pain and symptoms in such dosages that the risk of shortening the patient's life was considerable. This represented 17.5 per cent of all deaths;

22,500 cases where death had resulted from non-treatment decisions (ie withdrawal or withholding of medical treatment) representing 17.5 per cent of all deaths;

1,000 cases where a doctor had deliberately ended the life of a patient without a clear and explicit request from the patient, representing 0.8 per cent of all deaths.

No similar studies have been done in Australia. A number of studies however, about the attitudes, experiences and practices of health professionals have been conducted. One in South Australia(5) found that 45 per cent of doctors sampled supported the legalisation of active voluntary euthanasia in certain circumstances. Another, of doctors in New South Wales and the ACT(6) found majority support for changes to the law to allow active voluntary euthanasia. In one survey of Victorian nurses, it was found that about 75 per cent of those taking part in the survey favoured law reform to enable doctors to perform active voluntary euthanasia in some circumstances. Sixty-five per cent of the nurses said they would participate in active voluntary euthanasia if it were legal.(7) Another study of Victorian nurses(8) involved in palliative care and oncology, found that only 40 per cent were prepared to assist with active euthanasia if it were legal. However, 50 per cent favoured law reform to enable doctors to take active steps to bring about a patient's death in some circumstances.

This paper is the second in a series discussing the Australian law relating to euthanasia in an international context.

For the purposes of these papers, 'euthanasia' is divided into the following four categories:

passive voluntary euthanasia
when medical treatment is withdrawn or withheld from a patient, at the patient's request, in order to end the patient's life

active voluntary euthanasia
when medical intervention takes place, at the patient's request, in order to end the patient's life

passive involuntary euthanasia
when medical treatment is withdrawn or withheld from a patient, not at the request of the patient, in order to end the patient's life

active involuntary euthanasia
when medical intervention takes place, not at the patient's request, in order to end the patient's life

This paper discusses the Australian law relating to the second of these categories: active voluntary euthanasia. Comparison is made with the approaches to active voluntary euthanasia developed in a number of other legal systems: in the Netherlands, the United States of America, England and Canada.

The law in relation to the first category, passive voluntary euthanasia, is discussed in an earlier paper.(9) The law in relation to the final two categories, passive involuntary euthanasia and active involuntary euthanasia, will be discussed in forthcoming papers.

A patient has no legal right to insist on medical intervention that would end his or her life.

A competent patient's common law 'right to bodily self-determination'(10) only extends to refusal of treatment; a patient cannot require any doctor to administer any treatment or medical procedure that the patient requests.(11) This restriction extends to medical procedures that would cause or hasten a patient's death. Thus a patient cannot compel an unwilling doctor to perform such procedures or otherwise to help the patient die.

Even if a doctor wishes to accede to a patient's request to perform acts that would hasten the patient's death, the criminal law generally prevents the doctor from doing so. In every Australian jurisdiction, except the Northern Territory,(12) the crimes of murder and assisting suicide prohibit a doctor from complying with a patient's request to take active steps with the aim of bringing about the patient's death.(13) For the purposes of establishing liability for these crimes under Australian law, none of the following factors are relevant:

the doctor was motivated by compassion for the patient;

the patient was terminally ill;

the doctor's behaviour merely hastened a death that was inevitable and/or imminent;

the patient was competent at the time s/he asked the doctor for assistance, and the request was both informed and voluntary.

It is useful to examine three different situations in which a competent patient requests and a doctor provides assistance to end the patient's life, to discover whether the doctor would be criminally liable in each situation:

Situation One: The patient is in excruciating pain and asks the doctor for release from that pain; the doctor administers increased doses of pain-killing drugs; this hastens the patient's death.

Situation Two: The patient wants to die and asks the doctor for assistance; the doctor assists by (for example) prescribing drugs, setting up a mechanism, providing advice about effective means; but the lethal act is performed by the patient rather than by the doctor.

Situation Three: The patient wants to die and asks the doctor for assistance; the doctor assists by performing the lethal act (for example, by administering a lethal injection).

Situation One - The patient is in excruciating pain and asks the doctor for release from that pain; the doctor administers increased doses of pain-killing drugs; this hastens the patient's death.

English courts have stated that the criminal law will not intrude here if the doctor's intention can be described as an intention to relieve pain rather than as an intention to end the patient's life. In such a case the law characterises the patient's death as a mere 'side effect' of the use of drugs to relieve pain and suffering:

... the established rule [is] that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient's life. Such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful.(14)

The rule has also been articulated as follows:

If the first purpose of medicine, the restoration of health, can no longer be achieved, there is still much for a doctor to do, and he is entitled to do all that is proper and necessary to relieve pain and suffering, even if the measures he takes may incidentally shorten life.(15)

This legal principle will not protect a doctor from criminal liability in every circumstance where a patient's death results from the administration of drugs in response to a patient's request for pain relief. The principle appears to be confined to situations where the patient has a terminal illness and has reached a stage where there is no hope of recovery.(16) In addition it does not allow a doctor to act with the intention of ending life as the only way of relieving a patient's pain. A doctor will be exposed to criminal liability if the doctor's primary purpose in administering drugs is to hasten the patient's death. A court is more likely to conclude that this was the doctor's primary purpose if: the doctor does not use a standard pain killing drug; the doctor uses a standard pain killing drug but could instead have employed safer pain relieving alternatives; the doctor administered a larger dose of pain killing drug than was necessary to reduce the patient's pain to acceptable levels; or the doctor otherwise departed from accepted professional standards of palliative care.(17)

An important case illustrating the application of this legal rule is the 1992 English case of R v. Cox.(18) The case involved the criminal prosecution of Nigel Cox, a consultant rheumatologist, in connection with the death of his terminally ill patient, Lilian Boyes. Ms Boyes was 70 years old and had been Dr Cox's patient for thirteen years. She was suffering from rheumatoid arthritis complicated by internal bleeding, gangrene, anaemia, gastric ulcers and pressure sores. As a result she was in acute and constant pain from which standard pain-killing drugs did not offer relief. During the last few days before her death, she repeatedly asked Dr Cox to end her life. He reassured her that her last hours would be as free of pain and as dignified as possible. He injected her with a potentially lethal dose of potassium chloride, a drug without recognised pain killing properties. She died within minutes of the injection.

Dr Cox was prosecuted for attempted murder.(19) The jury at Winchester Crown Court found him guilty as charged, and the trial judge gave him a suspended sentence of 12 months' imprisonment.

Professional disciplinary proceedings were also taken against Dr Cox. The Professional Conduct Committee of the General Medical Council admonished Dr Cox for his conduct in this case, describing it as 'both unlawful and wholly outwith a doctor's professional duty to a patient'. The Professional Conduct Committee nonetheless expressed its 'profound sympathy' for his situation and declined to suspend his registration or take further action against Dr Cox. The health authority who employed Dr Cox, however, refused to allow him to return to work unless he complied with certain conditions. These included the requirement that he receive further training in palliative care.

Any or all of the following rationales may underpin this 'exception' under English law to the legal prohibition against performing acts that will kill a patient:

The philosophical doctrine of 'double effect'. This doctrine originates in Roman Catholic moral theology. Applying this doctrine, the doctor who acts intending to achieve a primary effect which is good (relieving pain) does not intend and is not culpable for a secondary effect which is bad (killing the patient).(20)

Acting with the intention to relieve pain is in accordance with the doctor's duty to act in the patient's best interests, whereas acting with the primary intention to kill is not.(21)

These rationales have been criticised as relying on 'illogical legal fictions'(22) and 'fine and arguably unworkable distinctions'.(23) It has been argued that all these rationales employ sophistry to avoid acknowledging that many doctors who administer life-shortening pain relief do in fact intend their patient's death. It has been further claimed that this leads to hypocrisy on the part of doctors (who cannot admit that their intention when administering pain relief is in many cases to hasten death, as well as to relieve pain) and on the part of society (which does not wish criminal sanctions to apply to doctors who hasten their patient's death in this way).(24) One commentator states this claim as follows:

Everything ultimately turns on what the doctor claims he was trying to achieve. As long as he uses the right verbal formula and records it in the patient's notes and to be on the safe side does not use too unusual a drug, he will stay within the law. Knowing how to play the game becomes the crucial determinant of criminal liability, rather than what objectively is done or what results. When the crime is murder, this can hardly be satisfactory.

... The current state of the law endorses, indeed entrenches, hypocrisy. 'We all know what you are doing, but use the magic words, 'I'm doing this to relieve your pain' and all will be well'. Alternatively, the law encourages casuistry, as those who are anxious to do right by their patients, as they see it, feel compelled to resort to subterfuge out of fear of prosecution. Fear of prosecution is of course eminently desirable when designed to deter what is accepted as wrong. But when it is neither the means nor the end which is regarded as wrong but rather the absence of the attendant rhetoric or ritual, such fear becomes itself a wrong.(25)

The claim that the legal authorisation of 'unintentional' deaths as the result of pain relief is being used to disguise situations involving criminal behaviour (ie situations where death results from the actions of a doctor whose primary intention is to bring about that death)(26) is not uncontroversial. The claim nonetheless deserves serious attention, particularly as it is often associated with a further claim: that some doctors hasten their patients' deaths on request in situations where the doctors' behaviour is clearly not associated with any attempt at pain relief.(27) These arguments are often then used in support of removing or relaxing the legal prohibitions on 'physician-assisted suicide' (i.e., behaviour falling within situation 2, discussed below) and/or 'active voluntary euthanasia' (i.e., behaviour falling within situation 3, discussed below).(28)

These charges of hypocrisy and reliance on damaging legal fictions might be deflected, however, if the law acknowledged an alternative rationale for the 'exception' outlined in the English case law. That rationale is the legal doctrine of 'necessity'.(29) Applying this doctrine, the administration of a potentially fatal dose of pain relieving drugs would be excused as necessary if that was the only way for the doctor to relieve the patient's pain, and thus the doctor's only other option would be to leave the patient without adequate pain relief.(30) Importantly, the doctor would not need to believe or pretend that the death of the patient was unintended to utilise this defence.

The sophistication of modern methods of pain relief would mean, however, that explicit legal recognition of a 'necessity' defence in these terms would only justify intentional administration of life-shortening pain relief by a doctor in the most exceptional circumstances.(31) If the law wished to use the doctrine of necessity to legitimise such behaviour by doctors in a broader range of circumstances, it would need to specify clearly and explicitly in which circumstances the doctrine would apply. In developing such criteria the crucial question would be exactly where the law should draw the line between life-shortening behaviour that is criminal and behaviour that is not. This would lead inevitably beyond consideration of when it should be lawful to administer pain-relieving drugs in potentially fatal doses, to the broader question of whether the law should ever permit a doctor to perform any act that amounts to 'physician-assisted suicide' (i.e., behaviour falling within situation 2) and/or 'active voluntary euthanasia' (i.e., behaviour falling within situation 3).(32) This would require serious assessment of the argument that it is not exceptional for doctors to comply with their patients' requests to hasten their deaths, and that there is a corresponding and undesirable disparity between what the law says and what doctors do in practice.

There have been no criminal prosecutions of doctors in Australia in relation to their administration of pain relieving drugs that have hastened death.(33) There has been no judicial clarification, therefore, of the legal position in Australia. In the absence of such clarification it may not be safe to assume that the legal 'exception' articulated in the English case law is part of the criminal law of Australia. It has been suggested that, under a strict interpretation of the relevant Australian homicide laws, a doctor actually may not be immune from liability for murder, in respect of the death of a patient resulting from the administration of pain killing drugs, simply because the situation can be characterised as one where the doctor did not intend to cause the death. Rather, the doctor may be potentially liable for murder if the doctor administered the drugs in the knowledge that the patient might die as a result and if the drugs did in fact hasten the patient's death.(34) Thus:

Although it appears to be widely accepted amongst the medical profession that the administration of life-shortening palliative care is ethical and constitutes legitimate medical practice, it is open to question whether this practice is in fact lawful.(35)

It should also be noted that, even if an Australian court did reach the same result as the courts in England, it might not necessarily adopt the same legal rationale(s) for doing so. It therefore is possible that an Australian court would express this legal exception in terms of the doctrine of necessity, in preference to any rationale that depends upon an absence of intention to hasten the patient's death.

In 1991 the Law Reform Commission of Western Australia expressed concern at the uncertainty of the legal position when death is hastened by the administration of pain relieving drugs. Accordingly it recommended that legislation be introduced to protect doctors from liability 'for administering drugs or other treatment for the purpose of controlling pain, even though the drugs or other treatment may incidentally shorten the patient's life, provided that the consent of the patient is obtained and that the administration is reasonable in all the circumstances'.(36) No such legislation has been enacted in Western Australia.

Only South Australia has statutory provisions that clarify the law on this issue. The relevant provisions seem to confirm the applicability in South Australia both of the English legal rules and of their dependence on the doctor's primary intention being to relieve pain. Section 17(1) of the new Consent to Medical Treatment and Palliative Care Act 1995 (SA) applies to the situation where a doctor, or other health care professional acting under a doctor's supervision, administers medical treatment 'with the intention of relieving pain or distress', even though 'an incidental effect of the treatment is to hasten the death of the patient'.(37) This section provides that the doctor or other health care professional will incur no civil or criminal liability in this situation provided she or he acts:

This legislation also provides that the administration of medical treatment for the relief of pain or distress in accordance with these conditions 'does not constitute an intervening cause of death' for the purposes of South Australian law.(38)

The Medical Treatment Act 1988 (Vic) provides that its operation 'does not affect any right, power or duty which a medical practitioner or any other person has in relation to palliative care'.(39) The definition of palliative care includes 'the provision of reasonable medical procedures for the relief of pain, suffering and discomfort'. Thus the Victorian legislation does not disturb the common law rules as to when administration of pain relieving measures that hasten death can result in criminal liability; but it neither clarifies those rules nor explains their underlying rationale.

The Natural Death Act 1988 (NT) is similarly unhelpful. It provides that its operation 'does not affect the legal consequences (if any) of taking ... therapeutic measures (not being extraordinary measures) in the case of a patient who is suffering from a terminal illness, whether or not the patient has made a direction under this Act'.(40) Therapeutic measures are not defined in this context, but presumably would include the administration of pain relieving measures. The legislation does not specify what the unaffected legal rules governing the administration of such measures might be. Nor does it refer to any possible rationale for those rules.

Like the Victorian legislation, the Medical Treatment Act 1994 (ACT) provides that its operation 'does not affect any right, power or duty which a medical practitioner or any other person has in relation to palliative care'.(41) It similarly includes 'the provision of reasonable medical and nursing procedures for the relief of pain, suffering and discomfort' in its definition of palliative care.(42) These provisions also do not indicate when (or why) the administration of pain relieving measures that result in a patient's death will not result in criminal liability. Nor does the section of the ACT legislation that, 'notwithstanding the provisions of any other law of the Territory' confers on a patient 'a right to receive relief from pain and suffering to the maximum extent that is reasonable in the circumstances'.(43) The legislation does not indicate whether or under which circumstances pain relief that kills a patient will be considered to be 'reasonable' for these purposes. It merely states that a health professional must 'pay due regard to the patient's account of his or her level of pain and suffering' when administering pain relief to a patient.(44)

In June 1995 the Queensland Parliament passed the Criminal Code Act 1995 (Qld) to repeal the Criminal Code Act 1899 (Qld) and thereby introduce a new Criminal Code. The amending legislation replaces section 282 of the old Criminal Code with a new section 82.(45) This new section absolves 'a person' of criminal responsibility for providing 'medical treatment' (defined as including 'pain relief') where such provision is provided 'in good faith and with reasonable care and skill', is 'for the patient's benefit' and is 'reasonable, having regard to the patient's state at the time and all the circumstances'. The rather loose wording of this section suggests that it may authorise the administration of pain killing drugs that shorten a patient's life in circumstances that would not fall within the 'exception' delineated in the English case law. The new section 82 would seem to authorise the administration of life-shortening pain relief by a doctor or any other person even where the intention clearly is to end the patient's life.(46) It also seems to authorise the administration of other 'medical treatment' (that is not associated with 'pain relief') with the intention of ending the patient's life, although it is not clear exactly what would amount to medical treatment for the purposes of new section 82. The new section therefore may be interpreted as possibly authorising 'active voluntary euthanasia' ( ie behaviour falling within situation 3), provided only that the acts performed to end the patient's life are:

performed in good faith;

performed with reasonable care or skill;

for the patient's benefit; and

reasonable, having regard to the patient's state at the time and all the circumstances.

The new section offers no explanation of when these conditions might be satisfied.

During the parliamentary debate on the Criminal Code Bill 1995 (Qld), the Queensland Minister for Justice and Attorney-General stated the following in relation to the proposed new section 82:

... it is not the intention of this Parliament by this provision to legalise euthanasia and there is no intention in this Parliament to diminish the force of existing prohibitions against euthanasia ... if there is any member of this Parliament who, by this section, wishes to legalise euthanasia and wishes this Bill here and now to legalise euthanasia, let them now speak. Let the Hansard record show that no member of this House spoke. Let the Hansard record show that the intention of this Parliament is translucently clear.(47)

The relevant sections of the Criminal Code Act 1995 (Qld) have not yet commenced and will not do so until at least 14 June 1997.

Situation Two - The patient wants to die and asks the doctor for assistance; the doctor assists by e.g. prescribing drugs, setting up a mechanism, providing advice about effective means; but the lethal act is performed by the patient rather than the doctor.

Situation Two is often described as 'physician-assisted suicide' and shall be referred to as such in this paper.

A doctor who complies with a patient's request in this way is exposed to criminal liability. The relevant offence is assisting suicide.

Although the criminal law in Australia no longer proscribes suicide or attempted suicide, assisting suicide is a crime in all Australian jurisdictions. In New South Wales, the Australian Capital Territory, Victoria and South Australia, it is an offence for a person to 'incite, counsel, aid or abet' another person to commit suicide or attempt to commit suicide.(48) In Queensland, Western Australia and the Northern Territory, it is an offence to 'procure' or 'counsel' another person to kill himself or 'aid' another in killing himself.(49) In Tasmania, it is an offence to 'instigate or aid another to kill himself'.(50) The penalties for assisted suicide vary between jurisdictions.

Prosecutions for assisting suicide are rare in Australia. The few cases that have come before the courts have tended to involve provision of assistance by family members or friends of the victim, where the accused has been motivated by compassionate motives. These cases are sometimes referred to as involving 'mercy-assisted suicide'.(51) The law clearly states that a person who has assisted another's suicide cannot escape liability by virtue of compassionate motive or other extenuating circumstances. The Australian criminal justice system nonetheless treats an accused person who was motivated by compassion with relative leniency, even where that person has clearly violated the criminal law. In particular, Australian judges have imposed very lenient sentences on people convicted of assisting suicide in this context.(52)

There have been no prosecutions of doctors in Australia for assisting the suicide of their patients. Should such a case arise, however, it is likely that a court would display the same leniency it has shown in other 'mercy-assisted suicide' cases if the doctor's motive was compassionate.

Physician-assisted suicide, however, is legal in some circumstances in the Northern Territory due to the enactment of the Rights of the Terminally Ill Act 1995 (NT). The Northern Territory legislation is discussed further below.

Situation Three - The patient wants to die and asks the doctor for assistance; the doctor assists by performing the lethal act (eg by administering a lethal injection).

Situation Three is sometimes described as 'physician-aid-in-dying'. It is more frequently described as 'active voluntary euthanasia', however, and shall be referred to as such in this paper.

A doctor who complies with a patient's request in this way is exposed to criminal liability. The relevant offence is murder. In all Australian jurisdictions, murder is committed if a person dies as the result of an act deliberately undertaken to bring about that death.(53)

Life imprisonment remains the mandatory sentence for a murder conviction in the Northern Territory, Queensland, South Australia, Tasmania and Western Australia. The sentence for murder is now discretionary, with a maximum sentence of life imprisonment, in New South Wales, the Australian Capital Territory and Victoria.(54)

No doctor has ever been prosecuted for murder in Australia for performing active voluntary euthanasia.

There has been one case in Western Australia in which a doctor was charged with the murder of a patient who died following the administration of morphine after she had suffered a heart attack.(55) It is unclear, however, whether the case involved active voluntary euthanasia: first, because it was not clear whether the patient had asked the doctor to end her life; and secondly, because the dose of morphine may not have been sufficiently large to infer that the doctor clearly intended the patient's death. Further, the evidence did not conclusively indicate whether the patient had died from the morphine or from her heart attack. The case was dismissed at the end of committal proceedings on the basis that there was insufficient evidence that could support a conviction.

There has also been a case in New South Wales in which criminal charges were laid against a nurse's assistant who had administered an unauthorised dose of pethidine to an elderly patient.(56) The charge was attempted murder rather than murder, because the patient subsequently died from natural causes rather than from the overdose of pethidine. The accused (initially) admitted that he had administered the drug with the intention of killing the patient, but claimed he had acted out of merciful motives because the patient had been in severe pain. Again, however, this case seems not to have involved active voluntary euthanasia because the evidence did not indicate whether the patient had asked to receive a lethal overdose. At his trial the accused pleaded not guilty and the court was presented with evidence that he had been receiving psychiatric treatment. The jury acquitted the accused of the charge.

There have also been a significant number of Australian cases involving murder prosecutions of family members or friends of the victim, where the accused has been motivated by compassionate motives. These cases are sometimes referred to as 'mercy killing' cases.(57) As with assisted suicide, the law clearly states that the accused's compassionate motive or other extenuating circumstances are not relevant in establishing liability for murder. As with those accused of assisted suicide, however, the Australian criminal justice system treats with leniency a person who has clearly murdered a friend or family member but was motivated by compassion:

... a number of mechanisms within the criminal justice system have been invoked to temper the rigours of the criminal law in true instances of mercy killing ... These include the exercise of prosecutorial discretion, acquittals (either by the judge or the jury) or findings of guilt on a lesser charge, lenient sentencing by the courts, favourable parole determinations, and the exercise of executive clemency.(58)

It may be inferred that any doctor charged with murder for compassionately performing active voluntary euthanasia would be treated with similar leniency.

The only Australian jurisdiction in which active voluntary euthanasia is clearly legal in some circumstances is the Northern Territory.

This situation is due to changes in the law introduced by the Rights of the Terminally Ill Act 1995 (NT). The long title of the legislation is as follows:

An Act to confirm the right of a terminally ill person to request assistance from a medically qualified person to voluntarily terminate his or her life in a humane manner; to allow for such assistance to be given in certain circumstances without legal impediment to the person rendering the assistance; to provide procedural protection against the possibility of abuse of the rights recognised by this Act; and for related purposes.

The legislation sets out a statutory regime under which physician-assisted suicide and active voluntary euthanasia may be performed without violating the criminal (or any other) law. The legislation allows a doctor to comply with a request by a terminally ill, competent adult patient for assistance in ending the patient's life if specified conditions are satisfied. Thus it is neither an unqualified 'licence to kill' nor an unqualified affirmation of a competent adult patient's right to assistance in dying. The provisions of the legislation are discussed in detail below.

The Rights of the Terminally Ill Act 1995 (NT) allows a doctor to respond to a patient's request for assistance in terminating the patient's life(59) if, and only if, all the following conditions are satisfied:

the patient is terminally ill.(60)

'Terminal illness' is defined as 'an illness which, in reasonable medical judgment will, in the normal course, without the application of extraordinary measures or of treatment unacceptable to the patient, result in the death of the patient'.(61)

the patient has attained the age of 18 years.(62)

the terminal illness is causing the patient 'severe pain or suffering',(63) such that the patient is 'experiencing pain, suffering and/or distress to an extent unacceptable to the patient'.(64)

there are no palliative care options 'reasonably available to the patient to alleviate the patient's pain and suffering to levels acceptable to the patient'.(65)

the doctor has informed the patient about:

the nature of the illness and its likely course; and

the medical treatment that is available to the patient (including palliative care, counselling and psychiatric support).(66) If the doctor does not hold specialist qualifications in the field of palliative care, this information must be provided by another doctor who does hold such qualifications.(67)

after receiving the information described above, the patient has indicated to the doctor the desire to end his or her life.(68)

the doctor is satisfied, on reasonable grounds, that:

the patient is suffering from a terminal illness. i.e., an illness that will, in the normal course and without the application of extraordinary measures, result in the death of the patient;(69) and

there is no medical treatment acceptable to the patient that can cure the patient's condition;(70) and

the only medical treatment available to the patient is palliative care, i.e., treatment to relieve 'pain, suffering and/or distress with the object of allowing the patient to die a comfortable death';(71) and

the patient is 'of sound mind' and the patient's decision to end his or her life 'has been made freely, voluntarily and after due consideration';(72) and

the patient has considered the possible implications of this decision for his or her family.(73)

The doctor has been entitled to practise medicine in Australia for a continuous period of not less than five years, and is currently a resident of the Northern Territory and entitled to practise medicine in the Northern Territory.(74) Note that the legislation does not require that the patient be a Northern Territory resident.

A second independent doctor, who is a specialist in the treatment of the terminal illness from which the patient is suffering,(75) has confirmed the first doctor's opinions about the patient's illness.(76) This doctor must also have been entitled to practise medicine in Australia for a continuous period of not less than five years, and be currently a resident of the Northern Territory and registered to practise medicine in the Northern Territory.

A third independent doctor, who is a qualified psychiatrist,(77) confirms that the patient is not suffering from a treatable clinical depression in respect of the illness.(78) This doctor need not be a resident of the Northern Territory nor registered to practise medicine in the Northern Territory.

The patient (or, if the patient is physically unable to do so, someone appointed by the patient) has signed a 'certificate of request' in or to the effect of the form in Schedule 7. The signature must be witnessed by the (first) doctor. The certificate of request must also be signed, in the presence of the patient and the first doctor, by another doctor who has discussed the case with the patient and the first doctor. Neither the first doctor nor the countersigning doctor, or their close relatives or associates, must knowingly stand to gain any financial or other advantage (other than a reasonable payment for medical services) as a result of the patient's death.(79)

The certificate of request must not have been signed before a 7 day 'cooling off period' has elapsed since the patient indicated to the (first) doctor that the patient wished to end his or her life.(80)

A second 'cooling off' period of 48 hours has elapsed since the certificate of request was signed.(81)

The patient has at no time indicated to the (first) medical practitioner that the patient no longer wished to end his or her life.(82)

The patient has been appropriately assisted by a qualified interpreter, if the patient's first language is not the same as that of any of the doctors who are required to communicate with the patient in this process.(83)

Even if all these conditions have been satisfied, the patient may 'at any time and in any manner' rescind his or her request for assistance in dying.(84) Further, a doctor is at no time under any legal obligation to accede to the patient's request for assistance. The legislation specifically states that a doctor may 'for any reason and at any time' refuse to assist the patient to end his or her life.(85) Further, no health care provider is under any legal duty to participate in the provision by a doctor of assistance to end a patient's life.(86)

If a doctor does choose to comply with the patient's request, the doctor may do so by prescribing a lethal substance, preparing a lethal substance, giving the lethal substance to the patient for self-administration, and/or administering the lethal substance to the patient.(87) This authorises both physician-assisted suicide and active voluntary euthanasia. When assisting a patient to die in any of these ways, the doctor must be guided by 'appropriate medical standards', must 'consider the appropriate pharmaceutical information about any substance reasonably available for use' and should choose the 'drug or combination of drugs which the medical practitioner determines is the most appropriate to assist the patient'.(88) The doctor need not be present at the time of the patient's death in order to comply with the legislation.(89) Where the doctor is to assist the patient by administering lethal drugs, the doctor should provide information about the effects of those drugs to the patient's friends and family members so that they may decide whether to be present at the death.(90) The doctor should also 'remain for a reasonable time after the death of the patient with the family and friends of the patient who are in attendance' to answer any questions they may have about the death.(91)

The doctor must keep detailed written records in relation to assisting a patient to die under this legislation. These records must include notes of any oral request made by the patient for assistance in signing, the certificate of request, a written opinion as to the patient's state of mind when the patient signed the certificate of request, the reports of the second and third doctors, and a record of the steps taken to carry out the patient's request and of the substance prescribed to cause death.(92) The doctor must also report any such death and forward the relevant medical records to the Coroner, who is in turn required to report the annual number of deaths under this legislation to the Attorney-General. The Coroner may also report to the Attorney-General on any other matter relating to the operation of the legislation. The Attorney-General must report the Coroner's findings to the Legislative Assembly.(93)

A doctor who assists a patient to end his or her life in compliance with this legislation is immune from civil or criminal action and professional disciplinary action, provided the doctor has acted 'in good faith and without negligence'. This immunity extends to all other people, including other health care professionals, who are involved with the death of the patient.(94)

The legislation imposes strict penalties for certain behaviour:

The Rights of the Terminally Ill Bill 1995 (NT) was introduced into the Northern Territory Legislative Assembly as a Private Member's Bill on 22 February 1995 by Marshall Perron, the (then) Chief Minister of the Northern Territory. On the same day, a Select Committee on Euthanasia was established to inquire into the Bill and report back to the Northern Territory Legislative Assembly by 16 May 1995.(98) On 25 May 1995, the Legislative Assembly passed the legislation by 15 votes to 10 after over 50 amendments had been made to the original Bill.(99)

The Northern Territory thereby became the first jurisdiction in the world to pass legislation permitting active voluntary euthanasia.(100) Unsurprisingly, therefore, the passing of this legislation attracted a great deal of attention. Worldwide access to information about the new legislation was facilitated by an Internet website established by the Northern Territory Legislative Assembly.(101) Nationally and internationally, there was both extensive criticism and extensive approval of the Northern Territory legislation from politicians, health care professionals, religious groups, 'pro-life' and 'pro-choice' pressure groups, academic, the media and members of the general public.

Opponents of the new legislation immediately called for its repeal by the Northern Territory Legislative Assembly. There were also suggestions that the Governor-General of Australia should disallow, and thereby repeal, the legislation using his powers under the Northern Territory (Self-Government) Act 1978 (Cth).(102)

The Administrator of the Northern Territory assented to the Rights of the Terminally Ill Act 1995 (NT) on 16 June 1995. On 20 February 1996, the NT Legislative Assembly passed further amendments to the legislation.(103) These amendments were contained in the Rights of the Terminally Ill Amendment Act 1996 (NT). The amendments increased by one the number of doctors who must be involved in the process of assessing a patient who has asked to be helped to die under the legislation, and made it clear that one of those doctors must be a qualified psychiatrist and another a specialist in the patient's illness clarified the qualifications that those doctors must possess.(104) The amendments also made changes to the interpreter provisions in the legislation.(105) Attempts to include an amendment to introduce a sunset clause into the Rights of the Terminally Ill Act 1995 (NT) to terminate its operation on 1 July 1999 failed. Attempts to introduce an amendment to repeal the Rights of the Terminally Ill Act 1995 (NT) also failed, as did separate attempts to pass a new Private Member's Bill to the same effect.(106)

On 29 June 1996 the Administrator of the Northern Territory made regulations under the Rights of the Terminally Ill Act 1995 (NT). These regulations - the Rights of the Terminally Ill Regulations 1996 (NT) - came into effect on 1 July 1996. The Rights of the Terminally Ill Act 1995 (NT) also commenced on 1 July 1996.

In August 1996, attempts in the Northern Territory Legislative Assembly to amend and repeal the Rights of the Terminally Ill Act 1995, failed.

In an unsuccessful attempt to prevent the Rights of the Terminally Ill Act 1995 (NT) from coming into effect, in June 1996 a private legal challenge was initiated against the Northern Territory of Australia, the Administrator of the Northern Territory and the Commonwealth of Australia.(107) The President of the Northern Territory Branch of the Australian Medical Association, Dr Chris Wake, and Aboriginal leader Reverend Dr Djiniyini Gondarra lodged a writ in the Northern Territory Supreme Court challenging the validity of the legislation. The Northern Territory Supreme Court heard the case on 1-2 July 1996 and reserved its decision. Judgement was delivered on 24 July 1996. By a majority of 2:1 the Supreme Court rejected the challenge to the legislation.

The plaintiffs in Wake and Gondarra v. Northern Territory and Asche claimed that the Rights of the Terminally Ill Act 1995 (NT) was invalid on two broad bases:

that no valid assent had been given to the legislation; and

that the legislative competence of the Northern Territory did not extend to the making of this.

In respect of the first claim, all three judges agreed that this question turned on the proper construction of sections 7, 32 and 35 of the Northern Territory (Self Government) Act 1978 (NT) and of Regulation 4 of the Northern Territory (Self-Government) Regulations 1978 (NT).

The two majority judges, Martin CJ and Mildren J, in a joint judgement concluded that the Administrator had given valid assent to the legislation under section 7(2)(a), because the Rights of the Terminally Ill Act 1995 (NT) satisfied the requirement that it was a law 'for or in relation to a matter specified under section 35'. These matters are listed in Regulation 4. They are the matters over which the Administrator is given executive authority by section 32.(108) The majority judges denied that the fact that the Northern Territory is not yet a State means that the scope of these matters, which are expressed in broad terms, should be interpreted narrowly.(109) These judges accordingly held that the challenged legislation related to three of these matters: 'maintenance of law and order and the administration of justice'; 'private law'; and 'the regulation of businesses and professions'.(110)

The dissenting judge, Angel J, disagreed on this point. He concluded that the challenged legislation had no substantial connection with any of the matters listed in Regulation 4, even on the most generous interpretation of the scope of those matters.(111) He stated that these heads of executive power could not encompass 'the legislative establishment of intentional termination of human life other than as punishment,' and that the challenged legislation purported to do this.(112) Angel J therefore concluded that the legislation had not been lawfully assented to and had not passed into law.(113)

In respect of the second claim, Martin CJ and Mildren J concluded that the Rights of the Terminally Ill Act 1995 (NT) was not ultra vires the legislative power of the Northern Territory Legislative Assembly. That power is conferred by section 6 of the Northern Territory (Self Government) Act 1978 (Cth) and enables the Legislative Assembly 'to make laws for the peace, order and good government of the Territory'. The majority judges referred to case law indicating that this power is a plenary power of the same quality as that enjoyed by State legislatures.(114)

They rejected the plaintiffs' claim that the exercise of legislative power by the Legislative Assembly is constrained by an obligation to protect an inalienable 'right to life', which is 'deeply rooted in our democratic system of government and the common law'.(115) These judges stated that they did not need to decide whether the challenged legislation infringed any fundamental right because, in the absence of 'a constitutionally enshrined Bill of Rights', that question was 'ethical, moral or political' and not legal.(116) These judges further stated that, like a State Parliament, the Northern Territory Legislative Assembly had legislative power to abrogate any 'fundamental rights, freedoms or immunities', provided its intention to do so was manifested clearly and unmistakably.(117) Thus, even if the challenged legislation could be said to affect any 'fundamental rights, freedoms or immunities', the legislation was not ultra vires because its language was clear and unambiguous.(118)

In view of his conclusion that the Rights of the Terminally Ill Act 1995 (NT) had not been assented to validly, Angel J considered that he need not express any final view on the question of whether the legislation was ultra vires the legislative power of the Legislative Assembly.(119) Angel J did state, however, that in this context he did not think that 'the legal question can ignore the philosophical questions, both moral and political involved, and the values at stake'.(120) He considered that the plaintiffs' submission involved 'much deeper and broader questions than whether parliament by clear words can abrogate a 'fundamental right'.(121) Although he doubted the existence of any legally enforceable 'right to life', he considered that the plaintiffs' arguments rested on more than the claim that this right existed. Rather, he considered that their arguments embraced 'the Natural lawyers' criticisms of the sovereignty of parliament, and the view that parliament itself is subject to the Rule of Law' and that the approach adopted by the majority judges did not dispose of these questions.(122)

The High Court of Australia is expected to agree to hear an appeal against the findings of the Northern Territory Supreme Court in this case.

Regardless of the final outcome of the challenge to the validity of the Northern Territory legislation, it is possible that the Commonwealth Parliament will enact its own legislation to override the Rights of the Terminally Ill Act 1995 (NT).

The Commonwealth Parliament has the power to do so under section 122 of the Australian Constitution. That power is a plenary power which enables the Commonwealth Parliament to pass legislation to override any Northern Territory law.

In Wake and Gondarra v. Northern Territory and Asche, Martin CJ and Mildren J referred to this power and made the following comment:

To the extent that there is any force in the argument that the Territory Parliament or Territory Ministers are somehow not to be trusted with the full extent of legislative or executive power which the wording of section 6 or reg 4 would plainly permit, either because of the novelty of the proposed new law or because they, as in this case, provide a limited power to do that which no other legislature in the world has so far found fit to permit, or because it abrogates some fundamental human right, the existence of the powers retained by the Commonwealth suggest that these are matters which are to be determined by political and not legal resolution. The same may be said in respect of laws which adversely affect Australia's image as a nation or the interests of Australians resident in the States which the Commonwealth feels an obligation to protect.(123)

Mr Kevin Andrews MP (Liberal Party, Victoria) has indicated his intention to introduce a Private Member's Bill into the Commonwealth Parliament to override the Northern Territory legislation. He has also indicated that such a Bill might have retrospective effect.

There have been a number of recent attempts in other parts of Australia to enact legislation modelled on the Rights of the Terminally Ill Act 1995 (NT).

On 9 March 1995 Mr John Quirke MLA, the Shadow Treasurer of South Australia, introduced a Private Member's Bill entitled the Voluntary Euthanasia Bill 1995 (SA) into the South Australian Legislative Assembly.(124) The Bill was rejected by the Legislative Assembly on 27 July 1995, by 30 votes to 12.

In August 1995 Mr Michael Moore MLA, who had introduced the ill-fated Voluntary and Natural Death Bill 1993 (ACT) into the ACT Legislative Assembly, introduced an exposure draft of a Private Member's Bill entitled the Medical Treatment (Amendment) Bill 1995 (ACT). This Bill was tabled in its final form in September 1995. The Bill was defeated in the ACT Legislative Assembly on 22 November 1995 by 10 votes to 7. Two ALP members and one Independent voted with the Liberal Party in opposing the Bill. Two Greens and five ALP members voted in support of the Bill.

On 30 May 1995 Mr Paul O'Grady MLC was given leave by the Australian Labor Party to introduce a Private Member's Bill into the New South Wales Legislative Council to provide for 'regulation to protect medical practitioners who assist the terminally ill to end their lives'.(125) He had not done so, however, at the time of his resignation from Parliament in January 1996 due to ill health. No other member of the NSW Parliament has expressed a firm commitment to introducing legislation of this kind.(126) In June 1995 the AIDS Council of NSW launched a draft Bill, entitled the Voluntary Euthanasia Bill 1995, the provisions of which are broadly similar to the Northern Territory legislation.(127)

The Netherlands has a unique approach to the regulation of physician-assisted suicide and active voluntary euthanasia. Both are an openly practiced and widely accepted part of medical practice in the Netherlands.(128) The Dutch approach to this issue therefore has attracted considerable international interest:

The Netherlands is the only country in which [active voluntary] euthanasia is openly practised in accordance with formal regulation. Evaluation of experience there is therefore useful to any assessment of the likely effects of the practice of euthanasia, allowing of course for social and cultural differences, and for differences in the health-care environment.(129)

Due to these social and cultural differences, however, aspects of the Dutch approach to the regulation of this kind of euthanasia are often misunderstood. It therefore is important to note that the Dutch approach to this issue has been characterised and/or influenced by the following:(130)

a willingness to discuss 'difficult moral issues' openly, and an associated belief that such openness is necessary in order to be able to regulate potentially problematic activities. This belief also underlies the Dutch approach to the regulation of matters such as prostitution, the age of consent, contraception, abortion, homosexuality and the use of soft drugs.

The issue of euthanasia has been debated 'vigorously and publicly' in the Netherlands since the early 1970s. Since the mid-1980s, public debate in the Netherlands on this issue has focussed on whether active voluntary euthanasia and physician-assisted suicide should be legalised altogether, or should instead remain criminal acts in principle but with clear rules about not to prosecute.(131)

the increased secularisation of Dutch society since the 1960s.

a Calvinist sense of individual responsibility and accountability for one's own actions; combined with a respect for the autonomy of others, and tolerance of different philosophies of life and lifestyles ('live strictly and let live').

The Royal Dutch Medical Association, which represents 60 per cent of Dutch doctors and currently has over 24 000 members, accepted in 1984 that physician-assisted suicide and active voluntary euthanasia can form a part of proper medical practice, provided certain guidelines are observed. It is the only leading national medical association in the world that officially approves of doctors practising active voluntary euthanasia and physician-assisted suicide.

cooperation and dialogue between the government and the medical profession concerning the regulation of euthanasia.

recognition (since 1990) of the need to obtain empirical evidence about the practice of euthanasia before making government policy and laws about euthanasia; and the willingness of government to fund research to obtain this empirical evidence.

great trust in, and respect for, the medical profession among the general public.

a medical system in which the family doctor (huisart) plays a central role. Many people in the Netherlands die at home, cared for by their general practitioner with whom they have had a personal and long-standing relationship.

a strong commitment to the ethic of the welfare state.

universal, comprehensive medical coverage and a high standard of medical care.

a generally high standard of nursing home care.

It is often claimed, however, that both palliative care and the hospice movement are underdeveloped in the Netherlands.(132)

It is often reported that active voluntary euthanasia has been decriminalised in the Netherlands. This is not an accurate description of the Dutch legal situation.

The Penal Code of the Netherlands contains a variety of provisions prohibiting the intentional taking of human life. Two of these provisions specifically relate to physician-assisted suicide and active voluntary euthanasia:

Article 293 of the Penal Code prohibits taking a person's life at that person's 'express and serious request'. This crime, sometimes described as 'the offence of voluntary euthanasia'(133), is punishable by imprisonment for a maximum of 12 years or by a fine.

Article 294 of the Penal Code prohibits assisting suicide. Where a death by suicide has occurred, anyone who helped bring about that death could be prosecuted under article 294 for intentionally inciting another to commit suicide, assisting in the suicide of another, or procuring the means for another to commit suicide. Where a death has occurred, this crime is punishable by imprisonment for a maximum of 3 years or a fine.

These statutory provisions remain in force and there is no indication that the Dutch legislature intends to repeal Article 293 or Article 294 in the foreseeable future. Despite this, physician-assisted suicide and active voluntary euthanasia are permitted in certain defined circumstances. A combination of prosecutorial policy and case law permits doctors in the Netherlands to intervene actively to shorten a patient's life, without fear of legal sanction, if specific conditions are satisfied. These conditions are described below.

By virtue of an agreement between the Dutch Ministry of Justice and the Royal Dutch Medical Association, since November 1990 a doctor has been guaranteed immunity from prosecution under Articles 293 and 294 if the doctor has complied with a number of 'rules of careful practice'. These rules comprise a number of substantive and procedural requirements.(134)

The substantive requirements are based on guidelines developed in 1984 by the Royal Dutch Medical Association. To comply with these requirements, the doctor must ensure that:

the request for euthanasia(135) or physician-assisted suicide is made by the patient and is voluntary.

the request is well-considered - the patient has adequate information about his or her medical condition, about the prognosis and about alternative treatments; and the patient has considered alternative solutions but these alternatives are ineffective, unreasonable or not acceptable to the patient.

the request is durable and persistent.

the patient's situation entails unbearable suffering with no prospect of improvement. The patient need not be terminally ill to satisfy this requirement.

The procedural requirements are as follows:

euthanasia must be performed by a doctor.

before the doctor assists the patient, the doctor must consult a second doctor.(136)

the doctor must keep a full written record of the case.

the death must be reported to the prosecutorial authorities as a case of euthanasia or physician-assisted suicide, not as a case of death by natural cause.

Where a death is reported as a case of euthanasia or physician-assisted suicide, the doctor must complete a form containing a list of questions relating to the death. The questions assess whether the doctor has complied with the 'rules of careful practice'.

This notification procedure was given formal legal status by a recent amendment to the Law on the Disposal of Corpses. The Dutch Parliament passed this amendment in late 1993 and it came into effect on 1 June 1994.

Very few reported cases of physician-assisted suicide or active voluntary euthanasia in the Netherlands result in a criminal prosecution. Moreover, if a prosecution is initiated under Article 293 or 294 of the Penal Code, the accused doctor will not be convicted if the court concludes that the defence of 'necessity' should be invoked.

Article 40 of the Penal Code provides for a defence to criminal charges that incorporates the notion of noodtoestand or '(situation of) necessity'(137):

Noodtoestand refers to the situation of the patient's dire distress, wherein an ethical dilemma and conflict of interests arise, resulting in a decision by the physician to break the law in the interest of what is considered a higher good.(138)

The Dutch courts have determined that the defence of necessity will apply, to protect a doctor from criminal liability in this context, if a number of criteria are satisfied. There are substantial similarities between these criteria and the 'rules of careful practice' that enable doctors who adhere to them to avoid prosecution in the first place.

The criteria that enable the defence of necessity to apply are:(139)

The request for euthanasia or physician-assisted suicide must come only from the patient and must be entirely free and voluntary.

The patient's request must be well considered, durable and persistent.

The patient must be experiencing intolerable suffering, with no prospect of improvement. The patient need not be suffering from a terminal illness. The suffering need not necessarily be physical suffering.(140)

Euthanasia or physician-assisted suicide must be a last resort. Other alternatives to alleviate the patient's situation must have been considered and found wanting.

Euthanasia must be performed by a physician. The case law establishes that the defence of necessity cannot be invoked in this context by another health care professional (such as a nurse).(141)

The physician must consult with an independent physician colleague who has experience in this field.(142)

In 1990 the Dutch Government set up the Remmelink Commission to investigate 'the practice of action and inaction by a doctor that may lead to the end of a patient's life at the patient's explicit and serious request or otherwise'. The Remmelink Commission therefore collected information about the practice both of euthanasia - strictly defined to refer to the deliberate termination of another's life at his or her request - and of other medical decisions at the end of life. As part of its inquiries, the Remmelink Commission ordered the first empirical study of all medical decisions at the end of life. The study was led by Dr P. Van der Maas of the Erasmus University in Rotterdam. The study found that in 1990 in the Netherlands:

In 6 per cent of these cases life-termination was the primary goal and in the remainder it was the secondary goal.

In about 40 per cent of these cases the decision to increase drug dosages and the possibility that this might hasten death had been discussed with the patient. In 73 per cent of the cases where these matters had not been discussed with the patient, the patient was incompetent.(145)

there were 22 500 cases where death had resulted from non-treatment decisions (ie withdrawal or withholding of medical treatment), representing 17.5 per cent of all deaths.

In 30 per cent of these cases the non-treatment decision had been discussed with the patient. In 62 per cent of these cases it had not. In 88 per cent of all cases where the non-treatment decision had not been discussed with the patient, the patient was incompetent.(146)

there were 1 000 cases where a doctor had deliberately ended the life of a patient without a clear and explicit request from the patient. This represented 0.8 per cent of all deaths.

The data relating to these deaths indicated the following:

In more than half of these cases the decision had been discussed with the patient or the patient had in a previous phase of his or her illness expressed a wish for euthanasia should suffering become unbearable. In other cases, possibly with a few exceptions, the patients were near to death and clearly suffering grievously, yet verbal contact had become impossible The decision to hasten death was then nearly always taken after consultation with the family, nurses, or one or more colleagues. In most cases the amount of time by which, according to the physician, life had been shortened was a few hours or days only.(147)

The same study also found that:

Each year there are about 9 000 explicit requests for physician-assisted suicide or active voluntary euthanasia in the Netherlands. Of these requests, less than one third are agreed to. The remainder do not result in physician-assisted suicide or active voluntary euthanasia, because either alternatives are found that make the patient change his or her mind or the patient dies before any action has been taken.(148)

54 per cent of all doctors (and 62 per cent of general practitioners) involved in the research said they had practised active voluntary euthanasia or assisted suicide at the explicit and persistent request of a patient.

34 per cent said they had never practised active voluntary euthanasia or assisted suicide but could conceive of situations in which they would be prepared to do so.(149)

In cases where death had been caused by physician-assisted suicide or active voluntary euthanasia, the patient had mentioned the following reasons for making the request: loss of dignity (57 per cent of cases), pain (46 per cent), unworthy dying (46 per cent), being dependent on others (33 per cent), or tiredness of life (23 per cent). Pain was the only reason mentioned for making the request in less than 6 per cent of cases.(150)

The Remmelink Commission also obtained data from an independent study conducted by Dr G. Van der Wal of the Medical Inspectorate of Health for North Holland. The results of this study confirmed many of the findings of Van der Maas and his colleagues.(151)

The Remmelink Commission published its report in September 1991.(152) The recommendations in this report led to the legislative reform that came into effect in 1994.

The empirical data obtained by the Remmelink Commission has been cited in support of very different conclusions. Some commentators have argued that the data, particularly the finding that 1 000 deaths took place without the patient's explicit and persistent request, supports the 'slippery slope' argument and shows that tolerance for physician-assisted suicide and active voluntary euthanasia inevitably results in the practice of involuntary euthanasia.(153) Other commentators have argued that, to the contrary, the Dutch findings show that physician-assisted suicide and active voluntary euthanasia can be safely regulated. Some commentators have cautioned against misinterpreting the findings of the Remmelink research:

The Dutch data on medical practices which shortens life, in the cases of non-competent or of competent but not-consulted patients, are indeed a matter of concern... [but there] really is not a shred of evidence that the frequency of this sort of behaviour is higher in the Netherlands than, for example, in the United States; the only thing that is clear is that more is known about it in the Netherlands. In short, there is no reason to assume ... a causal relationship between limited legalisation of euthanasia and 'lack of control' over other sorts of medical behaviour.(154)

In June 1994 the Supreme Court of the Netherlands delivered its judgment in the Chabot case.(155) The case involved the prosecution of a psychiatrist who had assisted the suicide of one of his patients. The patient, Ms B, was not suffering from any physical illness. She was a 50 year old woman who had a 20 year history of depression. Her very unhappy personal life, including a violent marriage and the death of one of her sons by suicide and of the other from cancer, had resulted in her abandoning any wish to go on living. Psychiatric treatment had not helped her and she had made at least one attempt at committing suicide. For several years she had made it known to other people - including her sister, friends and her family doctor - that she wished to die, 'but in a humane way which would not confront others involuntarily with her suicide'.(156) In 1991 Ms B approached the Dutch Federation for Voluntary Euthanasia who referred her to the defendant, Dr Chabot. He concluded that she was not suffering from a psychiatric illness or a major depressive episode, but rather that she had an adjustment disorder 'consisting of a depressed mood, without psychotic signs' arising from bereavement. Her condition was in principle treatable but the chance of success was small. Dr Chabot tried to persuade Ms B to accept some form of therapy but she refused. She asked him instead to assist her suicide.

Dr Chabot was of the opinion that Ms B was experiencing intense, long-term psychic suffering with no prospect of improvement. He was also of the opinion that her explicit and clearly expressed request for assistance with suicide was well-considered, and based on understanding of her situation and the consequences of her decision. He further believed that her rejection of therapy was well-considered. He consulted seven independent experts(157) who all agreed with his assessment of Ms B's situation. None of the doctors consulted by Dr Chabot examined Ms B.

In September 1991, Dr Chabot helped Ms B commit suicide by prescribing a lethal dose of drugs. She took these drugs in the presence of Dr Chabot, a general practitioner and a friend. Dr Chabot reported her death to the local coroner as death by physician-assisted suicide. He was prosecuted under Article 294 of the Penal Code. In April 1993 the District Court in Assen applied the defence of necessity and found him not guilty of this offence. The Court of Appeals in Leeuwarden upheld the trial court's decision in September 1993. The Dutch Supreme Court, however, overturned the rulings of the lower courts. It concluded that the defence of necessity should have been rejected in this case and accordingly found Dr Chabot guilty as charged.

In the course of its judgment the Supreme Court stated the following:

Dr Chabot was convicted under Article 294, therefore, not because the defence of necessity could not apply in a situation where a patient's suffering was of the kind experienced by Ms B. Rather it was because he had not ensured that Ms B was actually examined by another doctor before he assisted her suicide.

Despite finding Dr Chabot guilty, in view of 'the person of the defendant and the circumstances in which the offence was committed', the Supreme Court declined to impose any punishment. In February 1995, however, Dr Chabot was reprimanded by a Medical Disciplinary Tribunal which concluded that his behaviour had 'undermined confidence in the medical profession'.(160)

In September 1994 the Dutch government revised its prosecutorial guidelines to reflect the holdings of the Supreme Court. If a patient has a psychiatric disorder, the guidelines now require the doctor who receives the request for physician-assisted suicide or active voluntary euthanasia to have the patient examined by at least two other doctors, one of whom must be a psychiatrist. The government also responded to the Supreme Court's ruling by dropping 11 of 15 pending prosecutions in relation to cases where the patient was not in the 'terminal phase' of a somatic illness.(161)

Like many other developments in the Netherlands relating to the regulation of the practice of euthanasia, the Chabot case has been used to found arguments that lead to opposing conclusions. Some commentators view the case as evidence that once the law begins to allow doctors to perform physician-assisted suicide and active voluntary euthanasia, even in strictly and narrowly defined circumstances, the categories of patients who may be legally euthanased will inevitably expand. Thus, it is claimed, the Chabot case is 'another step down the slippery slope' towards a situation where euthanasia is tolerated and practised in an (even more) unacceptably wide range of circumstances, including situations where the patient has not requested death.

Other commentators acknowledge that the Chabot case raises the real possibility that Dutch courts may in the future 'hold assistance with suicide justifiable in several categories of cases in which the person concerned is not "sick" at all (eg the case of very elderly persons who are incapacitated in various ways and simply "tired of life")' and that '[f]rom there it is only a small additional step to the case in which the person concerned is not suffering at all at the time the request is made but, in anticipation of coming deterioration, wants to be in a position to choose the time of death in advance of becoming incapacitated and dependent'.(162) They reject the claim, however, that such developments necessarily will result in an increase in the incidence of involuntary euthanasia. Some commentators also describe the Chabot case as a development that tightens the restrictions on the practice of euthanasia in the Netherlands. They argue that the Supreme Court's ruling clarifies the circumstances in which it is not acceptable (as well as the circumstances in which it is acceptable) for a doctor to help a psychiatric patient commit suicide.

Since the Supreme Court ruling in the Chabot case, the Dutch courts have inspired further controversy in two cases in which doctors ended the lives of severely disabled infants, who were in severe pain and were expected to die within months. In April 1995 the District Court in Alkmaar found Doctor Henk Prins formally guilty of the murder in 1993 of a baby girl who had been born with a partly formed brain and spina bifida, by giving her a lethal injection after consultation with her parents and other doctors. The court refused, however, to punish the doctor. In November 1995 the Amsterdam Appeals Court affirmed the lower court's decision.(163) It did so on the basis that the doctor had adhered closely to the guidelines that regulate active voluntary euthanasia, had acted at the explicit request of the child's parents, and generally had behaved 'according to scientifically and medically responsible judgments, and in line with ethical norms'. A week later, the District Court in Groningen reached an almost identical conclusion in another case where a doctor had been charged with murder for administering a lethal injection to a severely disabled baby.(164) Both cases were reported as 'the latest in a series of legal precedents that are slowly eroding the Netherlands' strict limitations on euthanasia'. Both cases are on appeal to the Supreme Court of the Netherlands as test cases.

In August 1995, the Royal Dutch Medical Association (Koninklijke Nederlandsche Maatschappij tot bevordering der Geneeskunst, KNMG) adopted new guidelines for doctors who choose to accede to a patient's request for the hastening of death. Under the new guidelines patients must self-administer drugs whenever possible. The new guidelines also clarify a doctor's obligation to consult a second doctor before proceeding with euthanasia, emphasising the need for this consultation to take place with an experienced doctor who has no professional family relationship with either the patient or the first doctor. The new guidelines also affirm that a doctor is under no obligation to perform euthanasia, but state that a doctor who is opposed on principle to euthanasia should make his or her views known as soon as possible to a patient who raises the subject, and should help the patient find another doctor who is willing to assist.(165)

These new guidelines have not yet been incorporated by the Dutch Parliament into the official reporting procedure, that confirms a doctor's compliance with the 'rules of careful practice' and underpins the prosecutorial policy discussed above. The Dutch Parliament may consider doing so later this year, however, when it considers the results of more Remmelink-type research that is currently being undertaken to assess the operation of this reporting procedure. The researchers - Van der Wal and Van der Maas - are expected to release their report in October or November 1996.

In January 1996, the Dutch Federation for Voluntary Euthanasia (Nederlandse Verniging voor Vrijwillige Euthanasia, NVVE) released a proposal to change the law relating to euthanasia in the Netherlands. The proposal recommends that euthanasia should not be punishable by law unless it is proved that a doctor has not adhered to specified criteria; rather than the current situation, where euthanasia technically remains illegal unless it is shown that a doctor has adhered to specified criteria. Media statements made around the same time by the Dutch Minister for Justice indicated her support for this kind of change to the law. The Dutch Parliament expressed concern at her statements, on the basis that they inappropriately preempted the Parliament's forthcoming assessment of the findings of the empirical research that is currently being done on the euthanasia reporting procedure.

In the United States of America, the laws in forty-four states, the District of Columbia and two territories prohibit or condemn assisted suicide, including physician-assisted suicide.(166)

In recent years there have been a number of unsuccessful attempts to introduce state legislative reform to allow a doctor to comply with a patient's request for intervention to hasten the patient's death. These attempts have included Initiative 119 in the state of Washington, which proposed the legalisation of both physician-assisted suicide and active voluntary euthanasia, for competent patients who were expected to die within six months. Initiative 119 was rejected 54%:46% by voters at a state referendum that took place in November 1991. In 1992, Californian voters rejected a similar proposal known as Proposition 161, also by a majority of 54%: 46%.

Concern at these developments prompted the establishment of State task forces to examine whether the law in this area should be reformed. The May 1994 report of the New York State Task Force on Life and Law recommended retaining the criminal prohibition on assisted suicide in that State.(167) By contrast, the June 1994 report of the Michigan Commission on Death and Dying recommended decriminalising physician-assisted suicide under some circumstances.

To date, the only jurisdiction in the United States of America that has passed legislation expressly permitting a doctor to intervene to hasten a patient's death is the state of Oregon. The Oregon legislation was passed in November 1994 and permits physician-assisted suicide. This legislation is discussed in more detail below.

Attempts continue in other States to enact legislative reform similar to the new Oregon law.(168) Attempts also continue, however, to introduce legislation specifically prohibiting assisted suicide in states where such a prohibition is not yet in statutory form.(169)

US courts have also recently begun to address the issue of physician-assisted suicide. Two important cases examining the constitutional validity of statutes prohibiting physician-assisted suicide - Compassion in Dying v. State of Washington(170) and Quill v. Vacco et al(171) - were decided by federal Courts of Appeal earlier this year. Both cases are discussed further below.

The Oregon Death With Dignity Act (also known as 'Measure 16') was passed as the result of voter approval of Ballot Measure 16 in the Oregon general election in November 1994. The question posed by Ballot Measure 16 was: 'Shall law allow terminally ill adult patients voluntary informed choice to obtain physician's prescription for drugs to end life?'. This question was answered in the affirmative by 51% of voters and in the negative by 49% of voters.

The Oregon Death With Dignity Act authorises a specific kind of physician-assisted suicide: it allows a patient to obtain a physician's prescription for drugs to end the patient's life. Unlike the Northern Territory's Rights of the Terminally Ill Act 1995, however, the Oregon legislation does not also permit a doctor to carry out active voluntary euthanasia. Under the Oregon Death With Dignity Act, only the patient may administer the medication to end his or her life; the legislation does not authorise 'a physician or any other person to end a patient's life by lethal injection, mercy killing or active euthanasia'.

Health care providers who assist a patient to die by prescribing lethal drugs in 'good faith compliance' with the Oregon legislation are immune from civil and criminal liability and from professional disciplinary action. The following conditions all must be satisfied before a patient can be lawfully assisted to die:

The patient must be a resident of Oregon.

The patient must be at least 18 years old.

The patient must be suffering from a 'terminal disease'. This is defined as 'an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months'.

The patient must have 'voluntarily expressed his or her wish to die'.

The patient's decision must be sufficiently informed. This means that it is 'based on an appreciation of the relevant facts' and after being fully informed by the attending physician of: the patient's medical diagnosis and prognosis; the risks and results of taking the medication; and the feasible alternatives, including comfort care, hospice care and pain control.

Two doctors must verify that the patient has a terminal disease, is capable, and has made a voluntary and informed decision. These doctors must be 'the attending physician' (the doctor with primary responsibility for the patient's care and treatment of the patient's terminal disease) and 'the consulting physician' (a doctor qualified by specialty or experience to make a professional diagnosis and prognosis regarding the patient's disease).

The patient must not be suffering from 'a psychiatric or psychological disorder, or depression causing impaired judgment'. If either the attending physician or the consulting physician believes the patient may be so suffering, that doctor is obliged to refer the patient for counselling by a state licensed psychiatrist or psychologist. No medication to end the patient's life can be prescribed until the psychiatrist or psychologist determines that the patient is not suffering in this way.

The patient must make two oral requests, and one written request in the form prescribed by the legislation.

The written request must be witnessed by two people attesting that the patient is acting voluntarily. At least one witness must not be a relative or heir of the patient.

The second oral request must be made to the attending physician no sooner than 15 days after the first oral request. When the patient makes the second oral request, the attending physician must offer the patient the opportunity to rescind the request.

The prescription for medication to end the patient's life must not be written sooner than 15 days after the patient's initial oral request and 48 hours after the patient's written request. When the prescription is written, the attending physician must offer the patient the opportunity to rescind the request.

The attending physician must inform the patient that the patient may rescind the request at any time and in any manner. Such rescission by a patient will be effective 'without regard to his or her mental state'.

The attending physician must ask the patient to notify next of kin about the request. The patient, however, is under no obligation to do so.

The doctors must document in the patient's medical record that all requirements under the legislation have been met. Although these records shall not be available for inspection by the public, the Oregon State Health Division must annually review a sample of these records and produce statistical reports of information derived from its reviews.

This legislation does not impose any duty upon a doctor to participate in the provision of medication to end a patient's life. If a doctor is unable or unwilling to so participate, however, and the patient transfers his or her care to another doctor, the legislation specifies that the first doctor must comply with the patient's request to transfer a copy of relevant medical records to the new doctor.

The Oregon Death With Dignity Act has not yet come into operation as its operation has been suspended by injunction pending the results of a challenge to its constitutional validity. This legal challenge was initiated in November 1994 by a group of doctors, patients and operators of residential care facilities. In August 1995 the Oregon Federal District Court held that the legislation was unconstitutional and therefore invalid.(172) The District Court concluded that the legislation violated the Equal Protection Clause of the Fourteenth Amendment to the US Constitution - which prohibits a state from denying 'to any person within its jurisdiction the equal protection of the law', unless the denial is justified according to a legitimate state interest. The District Court stated that the Fourteenth Amendment was violated because the legislation withheld from terminally ill persons the same legal protections from suicide that apply to other citizens of Oregon. The court concluded that this withholding was not rationally related to any legitimate state interest and therefore was not justified. The legislation was said to lack sufficient safeguards to ensure that the means to commit suicide was only provided in response to a voluntary request by a competent, terminally ill patient.

The District Court based its conclusion on the following criticisms of the legislation:

The decision of the District Court in this case is currently on appeal to the United States Court of Appeals for the Ninth Circuit. The result of that appeal may be influenced by the outcome in the two federal Court of Appeal cases discussed immediately below.(173)

The question of whether a statutory prohibition on physician-assisted suicide violates an individual patient's rights under the United States Constitution was considered for the first time by a federal Court of Appeals in the recent case Compassion in Dying v State of Washington.(174) The judgement in this case was delivered on 6 March 1996.

The case involved a challenge to the constitutional validity of a provision of a Washington statute that made it a crime to aid another person to attempt suicide. The parties who initiated the action - four doctors, three terminally ill patients and a Washington non-profit organisation called Compassion in Dying - contended that this statutory provision was invalid to the extent that it prohibited doctors from prescribing life-ending medication for use by terminally ill, competent adults who wish to hasten their own deaths. They claimed the statutory provision was invalid on two bases:

The provision impermissibly prevented the exercise by terminally ill patients of a constitutionally-protected liberty interest, in violation of the Due Process Clause of the Fourteenth Amendment to the US Constitution.
The Due Process Clause prohibits a state from depriving 'any person of life, liberty or property without due process of law', unless the deprivation is justified according to a legitimate state interest. The U.S. Supreme Court has held that the 'liberty interest' protected under this clause gives rise to a constitutional right to privacy. The Supreme Court has used this right to restrict the power of state governments to interfere with personal decision-making in relation to matters such as contraception,(175) marriage,(176) abortion,(177) family relationships,(178) child rearing and education.(179) The Supreme Court has offered the following justification for constitutional protection of these 'private' decisions:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.(180)

The provision impermissibly distinguished between similarly situated terminally ill patients, in violation of the Equal Protection Clause of the Fourteenth Amendment to the US Constitution. As explained above, the Equal Protection Clause prohibits a state from denying 'to any person within its jurisdiction the equal protection of the law', unless the denial is justified according to a legitimate state interest.

By a majority of 8:3, the federal Court of Appeals for the Ninth Circuit agreed that the Washington statutory provision was unconstitutional because it violated the Due Process Clause.

The majority judges reached this conclusion via a two stage process of legal analysis. First, they identified a liberty interest in choosing the time and manner of one's own death. They also described this interest as a "constitutionally recognised 'right to die'". They deduced the existence of this liberty interest after examining historical attitudes towards suicide, current societal attitudes towards physician-assisted suicide and the manner of death, and previous Supreme Court decisions addressing the scope of the liberty interest under the Due Process Clause.

The majority judges believed that two of these Supreme Court decisions in particular were 'fully persuasive' as to the existence of a due process liberty interest in controlling the time and manner of one's own death. In one of these cases, the 1992 case Planned Parenthood v. Casey(181) the Supreme Court reaffirmed a woman's liberty interest in deciding whether or not to have an abortion, on the basis that such a decision was central to her personal dignity and autonomy. The majority judges in the instant case concluded that a terminally ill person's decision concerning how and when to die is at least as central to personal dignity and autonomy as the abortion decision. It considered that 'no decision is more painful, delicate, personal, important, or final than the decision how and when one's life shall end'.

The other Supreme Court case on which the majority relied was the 1990 case Cruzan v. Director, Missouri Department of Health.(182) That case involved a constitutional challenge to a Missouri statute prescribing that life-sustaining treatment, including artificial feeding and hydration, could not be withdrawn from a legally incompetent patient without 'clear and convincing evidence' that this is what the patient would have wanted in the circumstances. The Supreme Court in Cruzan held by a majority of 5:4 that this restriction did not violate patients' rights under the due process clause. In reaching this conclusion, however, four of the five majority judges averted to the existence of a competent person's constitutionally protected right to refuse any kind of unwanted medical treatment.(183) One of the majority judges went further and explicitly affirmed the existence of such an interest,(184) as did all four of the dissenting judges.(185)

The majority of the federal Court of Appeals in Compassion in Dying v. State of Washington stated that it was 'clear that Cruzan stands for the proposition that there is a due process liberty interest in rejecting unwanted medical treatment, including the provision of food and water by artificial means'. As the Supreme Court in Cruzan had also recognised that refusal of treatment such as artificial feeding and hydration would inevitably lead to death, the Court of Appeals went on to conclude that Cruzan 'necessarily recognises a liberty interest in hastening one's own death'.(186)

Having identified a due process liberty interest in choosing the time and manner of one's own death, the majority acknowledged that this did not mean an individual has 'a concomitant right to exercise that interest in all circumstances or to do so free from state regulation'. [p10] The second part of the majority's legal analysis therefore was an examination of whether Washington's statutory ban on assisting suicide was a constitutionally justified restriction on the exercise of the liberty interest.

The majority assessed the validity of the restriction by weighing the liberty interest of the individual against six countervailing and legitimate state interests.(187) These were:

the state's general interest in preserving life
The majority stated that, even though the protection of life is one of the most important functions of the state, this interest is not absolute. American law already recognised that the state's interest in preserving life is 'dramatically diminished' if the person it seeks to protect is terminally ill, or permanently comatose, and has expressed a wish (either himself or through a duly appointed representative) that he be permitted to die without further medical treatment. Accordingly, 'while the state may still seek to prolong the lives of terminally ill or comatose patients or, more likely, to enact regulations that will safeguard the manner in which decisions to hasten death are made, the strength of the state's interest is substantially reduced in such circumstances'.

the state's more specific interest in preventing suicide

The majority felt that, while the state has a legitimate interest in preventing suicide in general, that interest, like the state's interest in preserving life, is substantially diminished in the case of terminally ill, competent adults who wish to die. The majority concluded this because, unlike many other people who might wish to commit suicide, terminally ill adults cannot be restored to a state of physical and mental well-being but can only be maintained in a debilitated and deteriorating state.

The majority noted that the state had already recognised this by allowing competent, terminally ill patients to choose to hasten death by instructing a doctor to cease administering life-sustaining medical treatment (including artificial food and water), or by asking a doctor to administer death-inducing drugs for pain relief. The majority did not consider that there was any difference in kind, for either constitutional or ethical purposes, between physician-assisted suicide and these other forms of life-ending medical conduct that are not subject to legal or moral sanction. Any difference was one of degree only, and that difference was not enough to make the state's interest in preventing suicide substantially stronger in the case of physician-assisted suicide than it was in the case of other forms of death-hastening medical assistance.

The majority went further, and doubted whether the state's interest in preventing suicide was even implicated in this case. It questioned whether deaths involving 'physician-assisted suicide' should be classified as suicides at all, when other situations involving a decision by a terminally ill patient to hasten by medical means a death already in process (such as deaths resulting from refusal of life-sustaining medical treatment) were not so classified.(188)

The majority also referred to evidence that prohibiting assisted suicide in order to deter suicide could be counter-productive. The majority felt that some terminally ill patients would kill themselves before they became physically incapacitated, in order to avoid a situation where they were no longer able to end their own lives and where the law would not allow the medical profession to help them die in the manner of their choosing.

the state's interest in avoiding the involvement of third parties and in precluding the use of arbitrary, unfair or undue influence

The majority acknowledged that a state has a legitimate interest in prohibiting assisted suicide, on the grounds that allowing others to help may increase the incidence of suicide, undermine society's commitment to the sanctity of life, and adversely affect the person providing the assistance. It felt, however, that this interest was at its weakest when the assistance was provided by or under direction of a doctor and the person being assisted was terminally ill.

The majority also addressed the concern that allowing physician-assisted suicide would bring vulnerable people under undue pressure to end their lives. It dismissed as 'ludicrous' the argument that the poor, members of minority groups and the physically disabled would be pressured into committing physician-assisted suicide. It did consider, however, that there was a valid and serious concern that their lives needed safeguarding from 'callous, financially burdened or self-interested' relatives or others who have influence over them. At the same time, the majority was reluctant to say that it is improper for a competent and terminally ill adult to take the economic welfare of their loved ones into consideration when deciding when to die, particularly in 'a society in which the costs of protracted health care can be so exorbitant' and there is a lack of universal access to health care.

The majority also felt that the involvement of a doctor in the decision-making process would provide an added safeguard against attempts by relatives to coerce the vulnerable to end their lives. The majority expressed the gravest doubts that doctors would assist a patient to die if there were any serious doubt about the patient's true wishes, as to do so would be 'contrary to the physicians' fundamental training, their conservative nature, and the ethics of their profession'.

The majority nonetheless acknowledged that, while steps can be taken to minimise substantially the danger of patients being subject to undue influence, this danger cannot be wholly eliminated. The majority accordingly concluded that this state interest is of 'more than minimal weight' in this context, and should be treated seriously in balancing the competing interests of state and individual.

the state's interest in protecting children, other family members and loved ones
The majority considered that the state's legitimate interest in safeguarding the interests of innocent third parties, such as minor children and other people dependent on a person who wishes to commit suicide, was reduced to almost negligible weight when that person is terminally ill. It considered that it would harm rather than further the interests of these third parties to witness a loved one being forced to suffer an unnecessarily painful and protracted death.

the state's interest in protecting the integrity of the medical profession.

The majority did not accept that allowing doctors to engage in physician-assisted suicide would be at odds with their role as healers and thus erode their professional integrity. It considered that, to the contrary, permitting physician-assisted suicide would enhance the integrity of the medical profession. In the opinion of the majority, allowing doctors to help terminally ill patients hasten their deaths in this way, without the current need to act covertly and risk criminal sanction, would enable doctors better to fulfil their duty to help the sick. The majority noted that this opinion was shared by the growing number of doctors who openly support physician-assisted suicide.

The majority also concluded that the personal integrity of individual doctors would not be compromised by decriminalising physician-assisted suicide. Decriminalisation would instead enable doctors, as well as patients, to make decisions and act in a way consistent with their individual moral beliefs. Doctors whose personal beliefs would prevent them from assisting patients in this way would be free not to do so; and doctors whose personal beliefs would allow or require them to assist patients in this way similarly would be free to follow the dictates of their conscience. The majority felt that terminally ill patients could only benefit from the opportunity to choose to receive medical care from someone 'whose view of the physician's role comports with theirs'.

the state's interest in avoiding the risk that legal recognition of a 'right to die' would lead to abuse and unacceptable extensions of that right

The majority examined the argument that recognising that competent, terminally ill patients have a right to physician-assisted suicide will place courts and society on a 'slippery slope', inevitably resulting in a situation where people are put to death without their consent.

The majority rejected this argument as 'nihilistic' and unsupported by empirical evidence. It rejected assertions that the experience in the Netherlands supports the 'slippery slope' argument. It conceded that recognition of any right creates the possibility of abuse, but pointed out that the Supreme Court 'has never refused to recognise a substantive due process liberty right or interest merely because there were difficulties in determining when and how to limit its exercise or because others might someday attempt to use it improperly'.

The majority emphasised that in this case it was only being asked to determine the narrow question of whether it was unconstitutional to prohibit doctors prescribing lethal medication for use by terminally ill patients who wished to hasten their death. It acknowledged, however, that legal recognition of a terminally ill patient's right to choose physician-assisted suicide might logically lead, in subsequent cases, to legal recognition of a terminally ill patient's right to choose physician-aid-in-dying. It did not consider, however, that such recognition necessarily would lead to courts approving the practice of ending people's lives without their consent:

We would be less than candid ... if we did not acknowledge that for present purposes we view the critical line in right-to-die cases as the one between the voluntary and involuntary termination of an individual's life. In the first case - volitional death - the physician is aiding or assisting a patient who wishes to exercise a liberty interest, and in the other - involuntary death - another person acting on his own behalf, or, in some instances society's, is determining that an individual's life should no longer continue. We consider it less important who administers the medication than who determines whether the terminally ill person's life shall end. [p16]

The majority concluded that all these state interests were at their weakest, and the liberty interest in choosing the time and manner and one's death was at its strongest, in the case of competent terminally ill individuals. The majority conceded that the state has a particularly strong interest in protecting individuals who are making life and death decisions from undue influence and other forms of abuse. It concluded that the state therefore has a wide power to regulate the exercise by a terminally ill person of the liberty interest in choosing the time and manner of one's death, but that this power does not allow the state to ban its exercise completely. The Washington statute prohibiting physician-assisted suicide did effectively prevent terminally ill people from choosing the time and manner of their own deaths, because most terminally ill people could not hasten their own deaths without the assistance of a physician. The Washington statute therefore imposed an unacceptable constraint on the liberty interest of terminally ill, competent adults who wished to hasten their deaths using medication prescribed by their physicians. To the extent that the statue imposed such a constraint, it violated the Due Process Clause and therefore was unconstitutional.

Having reached this conclusion, the majority considered it unnecessary to examine the argument that the Washington statute also violated the Equal Protection Clause. The majority stated, however, that it did not agree with the reasoning of the District Court of Oregon in Lee v. State of Oregon that lead that court to conclude that the Oregon Death With Dignity Act violated the Equal Protection Clause.(189)

The three dissenting judges concluded that the Washington statute violated neither the Due Process Clause nor the Equal Protection Clause. In relation to the former, they denied that the statute infringed a liberty interest in choosing to commit suicide. One dissenting judge categorically denied that there was any such interest. Another dissenting judge doubted that there was any such interest, but did not finally decide the question. The third dissenting judge accepted that there was a liberty interest in choosing to commit suicide, but characterised it as an interest of much less strength than the liberty interest in 'choosing the time and manner of one's own death' relied upon by the majority judges.(190) The dissenting judges also concluded that the state interests competing against an individual's exercise of a liberty interest in this context were of much greater force than they were considered to be by the majority. The dissenting judges discussed four state interests:

the state's interest in the preservation of life
The dissenting judges asserted that this state interest remains 'at full strength' in the case of a terminally ill person who wishes to commit assisted suicide. It was their opinion that the state's interest in preserving life is only weakened where continued medical treatment would do no more than postpone death, and where a patient therefore becomes 'nonviable' in the sense that the patient would die without life-sustaining treatment.

the state's interest in the prevention of suicide
The dissenting judges concluded that the state's interest in the prevention of suicide does not diminish with the onset and advancement of terminal illness. They based this conclusion on the view that suicidal tendencies are a manifestation of medical and psychological suffering, and the state retains a continuing interest in addressing and relieving that suffering.

the state's interest in maintaining the integrity of the medical profession
Physician-assisted suicide was seen by the dissenting judges to be wholly inconsistent with, and damaging to, the ethical integrity of the medical profession. They pointed to the fact that the American Medical Association's Code of Medical Ethics prohibits doctors from participating in physician-assisted suicide. They also noted that, aside from criminal sanctions, doctors are subject to professional sanctions and disciplinary action if they prescribe drugs to their patients to help them commit suicide.

the state's interest in protecting the interests of innocent third parties

The dissenting judges considered that there was a considerable risk that the poor, the elderly, the disabled and minorities would be subject to undue pressure to commit physician-assisted suicide if it were legalised. This pressure could take the form of direct coercion or result from the inadequate treatment of pain and suffering. They considered that no safeguards - apart from maintaining 'a bright-line rule against physician-assisted suicide' - could adequately protect these vulnerable groups. They cited the Dutch experience of euthanasia in support of their conclusion that safeguards could not ensure that vulnerable patients would not be killed without their knowledge or consent if physician-assisted suicide were permitted.

The dissenting judges also expressed a concern that a right to physician-assisted suicide 'could severely disrupt the economic interest of the relatives, partners and associates' of patients who died in this way, as life insurance policies and other methods of estate planning would not operate if the deceased committed suicide.

The dissenting judges concluded that any liberty interest in committing suicide, possessed by a competent, terminally ill adult, was legitimately restricted by the Washington statute. This was because the Washington statute rationally advanced the four legitimate and strong state interests identified above.(191)

It is expected that the Supreme Court of the United States will hear an appeal against the ruling of the Ninth Circuit Court of Appeals in this case.

Shortly after the decision of the Ninth Circuit Court of Appeals in Compassion in Dying v. State of Washington, on 2 April 1996 the Second Circuit Court of Appeals delivered its judgment in Quill v. Vacco et al. That case also examined the constitutional validity of a statutory prohibition on physician-assisted suicide.

The provisions under scrutiny in this second case were the parts of the New York Penal Law that criminalised assisted suicide. The provisions were alleged to be unconstitutional to the extent that they prohibited doctors from prescribing lethal medication to be self-administered by a mentally competent, terminally ill adult in the final stages of terminal illness. The legal challenge was initiated by three doctors and three terminally ill patients.

The arguments advanced by the litigants in Quill v. Vacco et al were similar to those before the court in Compassion in Dying v. State of Washington. The New York statutory provisions were alleged to be unconstitutional on the basis that they violated both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

The majority of the Second Circuit Court of Appeals refused to accept that the New York statutory provisions violated any fundamental liberty interest under the Due Process Clause - specifically, the asserted right of competent, terminally ill persons to assisted suicide in the final stages of their illness. They felt unable to conclude that this right to assisted suicide could be read into the Constitution, on the basis that the Supreme Court of the United States had not yet identified this new right and had also advised restraint in identifying new fundamental rights.(192)

The two majority judges did accept, however, that the New York statutory provisions violated the Equal Protection Clause. They stated that these provisions clearly did not treat similarly situated citizens alike. This was because the law in New York allowed patients in the final stages of terminal illness who were attached to life-support systems to hasten their deaths by directing the removal of that life support, but did not allow patients who were in a similar situation - except for the previous attachment of life-support systems - to hasten their death by self-administration of prescribed drugs. The majority saw no valid difference, for the purposes of Equal Protection analysis, between the so-called 'passive' assistance in dying permitted by the law and the so-called 'active' assistance forbidden by the statutory provisions under scrutiny.

The majority further held that this unequal treatment was not rationally related to any legitimate state interest. This conclusion also rested on the fact that New York law allowed patients to hasten their deaths by ordering the withdrawal of life-sustaining treatment. The majority argued that if the state considered a patient's choice to hasten death in that context to be consistent with the interests of the state, it must also be consistent with those state interests to allow a patient to choose to hasten death by taking lawfully prescribed medication. These judges therefore concluded that the New York prohibition on assisted suicide violated the Equal Protection Clause to the extent that it applied to mentally competent, terminally-ill patients in the final stages of terminal illness who wished to self-administer lethal drugs.

The third judge in this case agreed that the New York statutory provisions should be struck down. His reasoning, however, differed from that of the majority. He concluded that the constitutional validity of the statutory prohibition in question was 'highly suspect' - both under the Due Process Clause and the Equal Protection Clause - but not clearly invalid under either clause. The constitutional validity of the prohibition depended largely on the strength of the state interests involved, but the New York legislature had not provided current and clear statements explaining which state interests the law aimed to protect. Accordingly, this judge was prepared to strike down these particular statutory prohibitions as unconstitutional - but took no position on the constitutional validity of similar provisions which might be enacted in the future and accompanied by clear explanations of the aims of the legislators.

An appeal against this decision of the Second Circuit Court of Appeals is expected. Should this case or Compassion in Dying v. State of Washington reach the Supreme Court, it remains to be seen how the highest court in the United States of America would assess the arguments raised in these cases in relation to the Due Process Clause and Equal Amendment Clause.(193)

Both physician-assisted suicide and active voluntary euthanasia are prohibited by the criminal law in the United Kingdom.

Physician-assisted suicide is prohibited in England and Wales by section 2 of the Suicide Act 1961 (UK).(194) That section makes it a criminal offence to aid, abet, counsel or procure the suicide of another, or an attempt by another to commit suicide.(195) The crime carries a maximum sentence of 14 years' imprisonment.

Active voluntary euthanasia comprises murder. Murder is a common law offence in the United Kingdom(196) and carries a mandatory life sentence. A murder charge can be reduced to manslaughter if the defendant can invoke any one of three exceptions contained in the Homicide Act 1957 (UK): provocation, diminished responsibility and suicide pacts. None of these exceptions are likely to apply in a situation where a doctor has killed a patient at the patient's request.

There have been a number of unsuccessful attempts in the United Kingdom to pass legislation to legalise physician-assisted suicide and/or active voluntary euthanasia.

The first attempt took place in 1936. Lord Ponsonby of Shulbrede introduced the Voluntary Euthanasia (Legalisation) Bill into the House of Lords as a Private Member's Bill. The Bill was promoted by the Voluntary Euthanasia Legalisation Society, which had been founded a year earlier.(197) The Bill proposed allowing doctors, in strictly limited circumstances, to comply with a patient's request to end the patient's life. Only competent adult patients suffering from a fatal and incurable disease accompanied by severe pain would have been able to receive this assistance. The Bill contained procedural safeguards to ensure that euthanasia was voluntary. The patient would have needed to sign a prescribed form in the presence of two witnesses. This form and two medical certificates would then be sent to an official euthanasia referee appointed by the Minister of Health. The official euthanasia referee would then interview the patient to assess whether the patient's request was voluntary. Only then would euthanasia be performed, in the presence of an official witness - a justice of the peace, a barrister, a solicitor, a doctor, a minister of religion or a registered nurse. The Bill failed at its second reading stage, defeated by a vote of 35:14.(198)

The House of Lords next debated the issue of active voluntary euthanasia in 1950, when Lord Chorley introduced a Motion 'to call attention to the need for legalising voluntary euthanasia'. The Motion was withdrawn without a vote after vigorous debate.(199)

In 1969 Lord Raglan introduced a Private Member's Bill into the House of Lords that sought to legalise active voluntary euthanasia in certain circumstances. The general purpose of the Bill was stated in its Explanatory Memorandum to be 'to authorise physicians to give euthanasia to a patient who is thought on reasonable grounds to be suffering from an irremediable physical condition of a distressing character, and who has, not less than 30 days previously, made a declaration requesting the administration of euthanasia in certain specified circumstances one or more of which has eventuated.(200) This Bill was defeated at its second reading stage by a vote of 61:40.

In 1970 Hugh Gray MP presented the Voluntary Euthanasia Draft Bill in the House of Commons under the Ten Minute Rule. There was no division on the Bill and therefore no vote.

Baroness Wootton's Incurable Patients' Bill, defeated at its second reading in the House of Lords in 1976, emphasised the entitlement of an 'incurable patient' to 'take steps that may cause his own death'. This would have legalised physician-assisted suicide in certain circumstances.

In 1985 Lord Jenkins introduced the Suicide Act 1961 (Amendment) Bill into the House of Lords. The Bill aimed to introduce a defence to a prosecution for assisting suicide under the Suicide Act 1961, which would operate if the accused had 'behaved reasonably and with compassion and in good faith'. This Bill failed at its first reading stage in November 1985, by 48 votes to 15.

In May 1990 Roland Boyes MP sought leave to bring in a Bill under the Ten Minute Rule to legalise active voluntary euthanasia. The House of Commons refused leave by 101 votes to 35.

The most recent attempt to enact this kind of legislative reform took place in 1993. Piara Khabra MP introduced a Private Member's Bill into the House of Commons under the Ten Minute Rule. The Voluntary Euthanasia Bill sought to allow a doctor to accede to an incurably ill patient's written and witnessed request for help in hastening death. The Bill would have permitted a doctor to provide advice, counselling, assistance or euthanasia (defined as 'any act at the request of a person which procures directly or indirectly the rapid death of that person at their own hand or otherwise'). The Bill was withdrawn before any vote was taken.

In 1993, after the House of Lords handed down its decision in the important and controversial case Airedale NHS Trust v. Bland,(201) a Select Committee was established to investigate the legal, ethical and social issues surrounding medical treatment decisions at the end of life. More specifically, the House of Lords Select Committee on Medical Ethics was required to consider:

The Select Committee received written and oral evidence from a wide range of interested individuals and organisations.(203) The report of the Select Committee was published in January 1994. In this report, the Select Committee recommended that there be no change to the current law prohibiting active voluntary euthanasia and physician-assisted suicide.

In relation to active voluntary euthanasia, it was the opinion of the Select Committee that the right to refuse medical treatment 'is far removed from the right to request assistance in dying'.(204) Thus, although the Select Committee strongly endorsed the right of a competent patient to refuse consent to any medical treatment,(205) it refused to countenance changing the law to permit 'euthanasia' (which it defined as 'a deliberate intervention undertaken with the express intention of ending a life to relieve intractable suffering'(206)) at the patient's request.(207) The Select Committee similarly recommended against the creation of a new offence of 'mercy killing' that would excuse deliberate killing (by doctors or others) with a merciful motive.(208) It did support, however, the recommendation of a previous House of Lords Select Committee that the mandatory life sentence for murder should be abolished.(209)

The Select Committee did not consider that the arguments in favour of legalising voluntary euthanasia were 'sufficient reason to weaken society's prohibition of intentional killing' which it considered to be 'the cornerstone of law and of social relationships'.(210) Whilst acknowledging that there are 'individual cases in which euthanasia may be seen by some to be appropriate', the Select Committee was of the opinion that these cases 'cannot reasonably establish the foundation of a policy which would have such serious and widespread repercussions'.(211) The Select Committee considered that if the law were to be liberalised to permit voluntary euthanasia:

It was finally the opinion of the Select Committee that:

.. dying is not only a personal or individual affair. The death of a person affects the lives of others, often in ways and to an extent which cannot be foreseen. We believe that the issue of euthanasia is one in which the interest of the individual cannot be separated from the interest of society as a whole.(213)

In relation to physician-assisted suicide, the Select Committee identified 'no circumstances in which assisted suicide should be permitted, nor do we see any reason to distinguish between the act of a doctor or of any other person in this connection'.(214)

The Select Committee acknowledged that its rejection of voluntary euthanasia and physician-assisted suicide as options for the individual entails 'a compelling social responsibility to care adequately for those who are elderly, dying or disabled'.(215) This responsibility exists '[d]espite the inevitable continuing constraints on health-care resources'.(216) The Select Committee accordingly also recommended that:

High-quality palliative care should be made more widely available. This should be done by: improving public support for the hospice movement; ensuring that all general practitioners and hospital doctors have access to specialist advice; and providing more support for relevant training at all levels.(217)

Research into pain relief and symptom control should be adequately supported.(218)

Training of health-care professionals should better prepare them for ethical responsibilities, by giving greater priority to health-care ethics and counselling and communication skills;(219)

Long-term care of dependent people should have special regard to the need to maintain the dignity of the individual(220)

The British Government responded to the report of the House of Lords Select Committee on Medical Ethics in May 1994.(221)

In relation to active voluntary euthanasia, the Government stated that it 'strongly supports the Committee's rejection of the case for the legalisation of euthanasia and endorses the reasoning by which it has arrived at its conclusion'.(222) The Government accordingly stated that its 'firm view is that the deliberate taking of life should remain illegal'.(223) The Government also agreed with the Select Committee's recommendation against creating a new offence of 'mercy killing', on the basis that the Government '[does] not believe that active intervention to end life should be excused on the basis of the motive or the victim's consent' and 'to do so would undermine the law's uncompromising attitude towards deliberate killing'.(224) The Government also stated, however, that it was 'not persuaded' that the mandatory life sentence for murder should be abolished as recommended by the Select Committee.(225)

In relation to assisted suicide, the Government agreed that the law should not be changed. It stated that such change 'would be open to abuse and put the lives of the weak and vulnerable at risk'.(226)

The Government responded as follows to the Select Committee's assertion that rejection of euthanasia means society has a compelling responsibility to care adequately for those who are elderly, dying or disabled:

The Government agrees. The Patient's Charter affirms the right of every citizen of whatever age to receive health care on the basis of clinical need. Similarly local authorities are required to arrange appropriate community care services for everyone who needs them. We expect these services to be tailored as far as possible to the needs of the individual person receiving them.(227)

The British Government has subsequently reiterated its opposition to changing the law in relation to active voluntary euthanasia and physician-assisted suicide, in written answers in Parliament in April 1995(228) and January 1996.(229)

The possibility of law reform in this area nonetheless remains alive in Great Britain. Public debate remains vigorous and may become even more so as the next General Election approaches. Future attempts to change the law are likely to concentrate initially on legalising physician-assisted suicide rather than active voluntary euthanasia.

The Voluntary Euthanasia Society, which now has over 20 000 members, has prepared a Draft Bill to amend the Suicide Act 1961 to allow physician-assisted suicide in certain circumstances. The Draft Bill is currently being widely circulated for comment.

The Institute of Law & Ethics in Medicine at Glasgow University is currently nearing completion of a research project funded by the Scottish Voluntary Euthanasia Society. That research project has surveyed the attitudes of health care professionals and of the general public to the legal status of physician-assisted suicide. The results of this research will be published in August 1996. The report is expected to include a Draft Bill for the legalisation of physician-assisted suicide.

Since mid-1995, the Centre of Medical Law and Ethics at King's College London, University of London, has convened a multidisciplinary working party to assess legal and ethical issues in relation to physician-assisted suicide. This working party is expected to produce a report some time in the future.

Both physician-assisted suicide and active voluntary euthanasia are prohibited under the Canadian Criminal Code. The constitutional validity of the criminalisation of physician-assisted suicide was examined by the Supreme Court of Canada in 1993, in the well-publicised Rodriguez case.(230)

The applicant in the Rodriguez case, Sue Rodriguez, was a competent 42 year old woman suffering from amyotrophic lateral sclerosis ('Lou Gehrig's disease'). This incurable disease destroys cells in the spinal cord and brain stem and progressively leads to paralysis. It usually leads to death by suffocation due to loss of control over lungs and diaphragm. As the disease does not ordinarily affect mental capacity, sufferers tend to remain competent and aware of their progressive physical deterioration.

Sue Rodriguez wanted to be able to choose to die, if and when she reached the point when she no longer wished to continue living with her disease. She anticipated that this would occur at a time when she lacked the physical capacity to end her own life. She therefore sought a court declaration that it would be lawful for a doctor 'to set up technological means by which she might, by her own hand, at the time of her choosing, end her suffering, rather than prolong her death'. She claimed that section 241(b) of the Canadian Criminal Code, which makes it an offence to aid or abet suicide(231), was invalid to the extent that it prevented a terminally ill person from committing physician-assisted suicide.

She argued that the prohibition in section 241(b) violated her rights under a number of sections of the Canadian Charter of Rights and Freedoms (hereafter, 'the Charter'):

section 7 - the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The right to security of the person encompasses notions of personal autonomy and the right to make choices concerning one's own body.(232) Ms Rodriguez argued that this right therefore must include the right of a person to control the method, timing and circumstances of his or her own death.

section 12 - the right not to be subjected to any cruel and unusual treatment or punishment.

section 15(1) - the right to equality before the law without discrimination on grounds including physical disability. Ms Rodriguez argued that the prohibition on physician-assisted suicide infringed this right, because it prevented persons physically unable to end their lives without assistance from choosing suicide, when that option was in principle available to other members of the public without contravening the law.

Ms Rodriguez's arguments were rejected by the British Columbia Supreme Court, the British Columbia Court of Appeal, and finally by a narrow majority (5:4) of the Supreme Court of Canada.(233)

The majority of the Supreme Court of Canada(234) conceded that section 241(b) of the Criminal Code deprived Ms Rodriguez of security of her person under section 7 of the Charter, because it deprived her of autonomy over her person and caused her physical pain and distress. The majority concluded, however, that this deprivation accorded with principles of fundamental justice and therefore did not violate section 7. The majority placed heavy reliance on its observation that there was social consensus in Canada (and beyond) that human life should be protected and respected. The majority stated that the blanket prohibition on assisted suicide was neither arbitrary nor unfair. Rather, it was an appropriate legal protection designed to protect vulnerable members of society who might otherwise be persuaded to commit suicide. The blanket prohibition was further justified by a need to ensure maintenance of a belief in the sanctity of human life, and by concerns that legalising physician-assisted suicide could not incorporate adequate safeguards against abuse. The majority therefore concluded that, in this context, society's interest in the preservation of all human life should prevail over Ms Rodriguez's personal security interest.

Three of the four dissenting judges(235) disagreed on the above interpretation of section 7 of the Charter. They did not agree that the infringement of Ms Rodriguez's right to security of the person was justified under any principle of fundamental justice. The dissenting opinion of Madam Justice McLachlin contained a particularly forceful rejection of the argument that Ms Rodriguez should be denied individual choice in this matter:

... Sue Rodriguez is asked to bear the burden of the chance that other people in other situations may act criminally to kill others or to improperly sway them to suicide. She is asked to serve as a scapegoat.

The majority of the Supreme Court of Canada disposed of the argument that section 241(b) violated Ms Rodriguez's rights under section 12 of the Charter simply by concluding that 'a mere prohibition by the state on certain action, without more, cannot constitute 'treatment' under section12'. The dissenting judges did not address the section 12 issue.

For the purposes of argument, the majority judges assumed that section 241(b) violated Ms Rodriguez's right to equality under section 15(1) of the Charter. They went on to conclude, however, that the infringement of section 15(1) was justified under section 1 of the Charter. Section 1 provides that the rights and freedoms protected by the Charter can be subject 'to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society'. The majority judges stated that the prohibition in s 241(b) was both reasonable and justified in order to give effect to the valid state objective of protecting the vulnerable from others who may wish to end their lives.

This was not the view of Chief Justice Lamer, whose dissenting judgement was based on section 15(1) of the Charter. He concluded that the discriminatory effect of section 241(b) - which denied physically disabled persons unable to commit suicide without assistance the right to choose that option, where it was lawfully available to the able bodied - was not justified under section 1 of the Charter. He did not consider that the prospect of abuse of those vulnerable to manipulation by others justified this discriminatory restriction on the rights of persons who were not vulnerable in that way, and who would voluntarily choose to die.

Despite loosing her legal action, Ms Rodriguez ended her own life in February 1994 in her home in British Columbia. She did so with the assistance of an unidentified doctor. No charges were laid against the doctor in relation to Ms Rodriguez's death.

Following the Supreme Court's decision in the Rodriguez case, in November 1993 the prosecution guidelines for cases where a doctor has complied with a patient's request to hasten death were relaxed in British Columbia. One commentator describes this relaxation as follows:

This change has opened the door to active euthanasia under certain circumstances. From an ethical perspective, it calls on a doctor to allow death with dignity and comfort when death of the body appears inevitable. The guidelines give public prosecutors broader discretion, on a case-by-case basis, to determine whether a doctor whose treatment for a terminally ill patient hastens death should be charged. Prosecutors are to consider two issues in deciding whether to recommend charges: substantial likelihood of conviction, and the public interest.(236)

The public interest criterion under these guidelines requires the following factors to be considered:(237)

The Rodriguez case also provided an impetus for the setting up in February 1994 of a Special Committee of the Senate of Canada to examine and report on the legal, social and ethical issues relating to euthanasia and assisted suicide. The report of this committee - entitled Of Life and Death - was tabled on 6 June 1995. The report contains recommendations relating to palliative care, pain control and sedation practices, withholding and withdrawal of life-sustaining treatment, advance directives, assisted suicide and euthanasia (divided into three categories: 'nonvoluntary euthanasia', 'voluntary euthanasia' and 'involuntary euthanasia').

The recommendations most pertinent to the situation addressed in the Rodriguez case are those relating to 'assisted suicide', encompassing physician-assisted suicide:

The majority of the committee recommended against any change to the prohibition on counselling, aiding or abetting suicide contained in section 241 of the Canadian Criminal Code.

The majority also recommended that research be undertaken into how many people are requesting assisted suicide, why it is being requested, and whether there are any alternatives that might be acceptable to those making the requests.

The minority of the committee recommended that an exemption be added to section 241(b) of the Criminal Code, to protect those who assisted another's suicide provided it was done in accordance with 'clearly defined safeguards'. The minimum recommended safeguards were:

The individual must be suffering from an irreversible illness at an intolerable stage.

The request for assistance must be free, informed and made without coercion.

The individual must be fully informed about and must fully understand his or her condition, prognosis, other options available, and that he or she at all times has a right to rescind the request.

A health care professional must confirm all the above conditions are met.

No-one should be under a duty to assist in a suicide.

In order to avoid abuse, procedural safeguards must provide for review both prior to and after the act of assisted suicide.

The recommendations relating to 'voluntary euthanasia', meaning active voluntary euthanasia, are also relevant:

The majority of the committee recommended that voluntary euthanasia remain a criminal offence. It further recommended, however, that the Criminal Code should be amended to allow for a less severe penalty 'in cases where there is the essential element of compassion or mercy'. It recommended that Parliament consider introducing a new third category of murder, or a separate offence of 'compassionate homicide', that would carry a less severe penalty than the current penalty for murder.

The majority also recommended that research be undertaken into how many people are requesting euthanasia, why it is being requested, and whether there are any alternatives that might be acceptable to those making the requests.

The minority of the committee recommended that the Criminal Code be amended to permit voluntary euthanasia for competent individuals who are physically incapable of committing assisted suicide. It recommended that this amendment be subject to the same or similar minimum safeguards as recommended by the minority in relation to assisted suicide.

1. 'From Tragedy to Victory: Wide Reaction to World First,' Canberra Times, 26 May 1996.

2. 'Kennett Flags Right-to-Die Bill,' The Age, 26 May 1996.

3. 'Lobbyists Call it a Test Law,' The Age, 26 May 1996.

4. C. Steven and R. Hasssan, (1994) 20, 'Management of Death, Dying and Euthanasia: Attitudes and Practices of Medical Practitioners in South Australia', Journal of Medical Ethics, 41.

5. P. Baume and E. O'Malley, 'Euthanasia: Attitudes and Practices of Medical Practitioners', (1994) 161(2) The Medical Journal of Australia, 137.

6. H. Kuhse and P. Singer, 'Euthanasia. A Survey of Nurses' Attitudes and Practices,' (1992) 21(8) The Australian Nurses Journal, 21.

7. S Aranda and M O'Conner, 'Euthanasia, Nursing and Care of the Dying: Rethinking Kuhse and Singer,' (1995) 3(2) Australian Nursing Journal, 8.

8. N. Cica, Euthanasia - the Australian Law in an International Context; Part 1: Passive Voluntary Euthanasia, Canberra, Department of the Parliamentary Library, 1996

9. See Re J [1993] 4 Med LR 21 (English Court of Appeal). This is the case whether the patient requests the treatment contemporaneously, makes a valid anticipatory request for treatment, or has the request made on his or her behalf by an agent appointed under an enduring power of attorney.

10. See further below.

11. See further M. Otlowski, Active Voluntary Euthanasia: A Timely Appraisal, University of Tasmania Law School, Hobart, 1992, pp 5-6; D. Lanham, 'Euthanasia, Painkilling, Murder and Manslaughter' (1994) 1Journal of Law and Medicine 146.

12. Airedale NHS Trust v. Bland [1993] 2 WLR 316 at 370 per Lord Goff, emphasis added.

13. R v. (Bodkin) Adams [1957] Crim LR 354 per Devlin J.

14. M. Otlowski, supra note 5, p 22.

15. See generally: M. Otlowski, supra note p 22; A. Dix, M. Errington, K. Nicholson and R. Powe,Law for the Medical Profession, Sydney, Butterworths, 1988, p 297; p 139; I. Kennedy, 'The Quality of Mercy: Patient, Doctors and Dying', Upjohn Lecture given at the Royal Society of Medicine, London, UK, 25 April 1994.

16. (1992) 12 BMLR 38.

17. The charge was attempted murder rather than murder because the prosecution were unsure whether they could prove that Ms Boyes had died from the potassium chloride injection rather than from her underlying medical condition, particularly as her body had already been cremated.

18. See I. Kennedy and A. Grubb, Medical Law: Text With Materials (2nd ed), London, Butterworths, 1994, pp 1205-6. The validity of this doctrine and its applicability in this context recently was affirmed by the English House of Lords Select Committee on Medical Ethics: see House of Lords,Report of the Select Committee on Medical Ethics: Volume 1 - Report, London, HMSO, January 1994, paras 22, 73-79, 242-244.

19. I. Kennedy and A. Grubb, supra note 12, p 1207;Airedale NHS Trust v. Bland [1993] 2 WLR 316 per Lord Goff. This rationale seems to underlie the following statement by the World Health Organization.
There is ... no excuse for failure to use available methods to control pain adequately. If shortening of life results from the use of adequate doses of ana analgesic drug, this is not the same as intentionally terminating life by overdose. Any hastening of death that is linked to adequate pain control measures simply means that the patient could no longer tolerate the therapy necessary for a bearable and dignified life.

(WHO, Cancer Relief and Palliative Care, Geneva, 1990).

20. M. Otlowski, supra note 5, p 23.

21. M. Otlowski, supra note 5, p 25.

22. See I. Kennedy, supra note 9; M. Otlowski,supra note 5, pp 20 and 23, 26.

23. I. Kennedy, supra note 9.

24. M. Otlowski, supra note 5, p 25. A similar argument is contained in I. Kennedy,supra note 9.

25. See M. Otlowski, supra note 5, pp 11 and 26. Note that surveys indicate that a substantial number of Australian doctors who have been asked by a patient to hasten his or her death have acceded to the patient's request by performing active voluntary euthanasia. A 1987 survey of doctors in Victoria indicated that 29 per cent of respondents had, on at least one occasion, taken active steps to end a patient's life: see H. Kuhse and P. Singer, 'Doctors' Practices and Attitudes Regarding Voluntary Euthanasia' (1988) 148Medical Journal of Australia 263 . A more recent survey of doctors in New South Wales and the Australian Capital Territory similarly indicated that 28 per cent of respondents had performed active voluntary euthanasia: see P. Baume and E. O'Malley 'Euthanasia: Attitudes and Practices of Medical Practitioners' (1994) 161Medical Journal of Australia 137. See also Stevens and Hassan, 'Management of Death, Dying and Euthanasia: Attitudes and Practices of Medical Practitioners in South Australia' (1994) 20 Journalof Medical Ethics 41.

26. See M. Otlowski, supra note 5, pp 16 and 25-27.

27. Australian law does not currently recognise necessity as a defence to murder: see D. Lanham, supra note 5 at 149.

28. See G. Williams, Sanctity of Life and the Criminal Law, London, Faber and Faber, 1958, pp 286 and 289; M. Otlowski,supra note 5, p 23 n 40.

29. For discussion of the efficacy of pain relief see House of Lords, supra note 12, paras 146-155.

30. See further below.

31. M. Otlowski, supra note 5, pp 19-20 and 24.

32. M. Otlowski, supra note 5, p 19.

33. M. Otlowski, supra note 5, p 25; see Law Reform Commission of Western Australia,Report on Medical Treatment for the Dying, February 1991, pp 25-27.

34. Section 17(1).

35. Section 17(3).

36. Section 4(2).

37. Section 5(2).

38. Section 5(2).

39. Section 3.

40. Section 23(1).

41. Section 23(2).

42. For a critical assessment of the new section 82, see R. Scott, 'When is Medical Treatment for Abortion, Pain Relief or Euthanasia Actionable? (Section 82 New Criminal Code)' (1995) Queensland Law Society Journal 449.

43. Compare the more restrictive wording of the following provision, the adoption of which was recommended in the Final Report of the Criminal Code Committee as the appropriate formulation of the law relating to administration of pain relief:
A person is not criminally responsible if he or she gives such palliative care as is reasonable in the circumstances, for the control or elimination of a person's pain and suffering even if such care shortens that person's life, unless the patient refuses such care.

(emphasis added).

44. Queensland Parliamentary Debates, 16 June 1995, p 12702.

45. M. Otlowski, 'Mercy Killing Cases in the Australian Criminal Justice System' (1993) 17 Criminal Law Journal 10 at 12 n 9.

46. Ibid at 13, n 9.

47. e.g. R v. Larkin, unreported, Victorian Supreme Court, 14 April 1983;R v. Den Heyer, unreported, NSW District Court (Parramatta), 28 September 1990;R v. Savage, unreported, NSW District Court (Newcastle), 27 March 1982. These cases are discussed in M. Otlowski.supra note 41 at 25-6.

48. See M. Otlowski, supra note 41 at 11-12.

49. Ibid, at 18, 36-7.

50. R v. Lim, WA Court of Petty Sessions, No 56036 of 1988, discussed in M. Otlowski,supra note 5, p 12 n 15.

51. R v. Barnes, unreported, NSW Supreme Court, 16 November 1981, discussed in M. Otlowski,supra note 41 at 20.

52. M. Otlowski, supra note 41 at 10.

53. M. Otlowski, supra note 41 at 13. Cases where these mechanisms have been utilised include: a 1983 case in the ACT where the Commonwealth Attorney-General decided not to proceed with a murder charge against a woman who had killed her terminally ill sister, who had expressed a wish to die (defendant's name suppressed);R v. Austen, unreported, NSW Supreme Court, 5 March 1990;R v Larkin, unreported, Victorian Supreme Court;R v. Thiel, unreported, NSW Supreme Court, 27 September 1990;R v. Johnstone , unreported, SA Supreme Court, 21 January 1987;R v. Kelly , unreported, Queensland Supreme Court, 12 May 1989;R v. Hollinrake, unreported Victorian Supreme Court, 29 June 1992. These cases are discussed in detail in M. Otlowski,supra note 41.

54. Section 5.

55. Section 4.

56. Section 3.

57. Section 7(1)(a).

58. Section 7(1)(d).

59. Section 4.

60. Section 8(1).

61. Section 7(1)(e).

62. Section 7(3); the requisite qualifications are specified in Regulation 5 and Schedule 2 of the Rights of the Terminally Ill Regulations 1996. This other doctor may can be the specialist who confirms the first doctor's opinions concerning the patient's illness (see below).

63. Section 7(1)(f).

64. Section 7(1)(b)(i).

65. Section 7(1)(b)(ii).

66. Section 7(1)(b)(iii).

67. Section 7(1)(h).

68. Section 7(1)(g).

69. Section 3.

70. For these purposes, the doctor must 'hold a qualification in a medical specialty related to the terminal illness of the patient recognised by a medical specialist college in Australia and which entitles the medical practitioner to fellowship of that college.': Regulation 3 of the Rights of the Terminally Ill Regulations 1996 (NT).

71. Section 7(1)(c).

72. See section 3 for the definition of 'qualified psychiatrist'.

73. Section 7(1)(c).

74. Section 7(1)(i),(j)(k) and (m).

75. Section 7(1)(i).

76. Section 7(1)(n).

77. Section 7(1)(o).

78. Section 7(4); the requisite qualifications for interpreters are specified in Regulation 6 of the Rights of the Terminally Ill Regulations 1996 (NT).

79. Section 10(1).

80. Section 5.

81. Section 10(4).

82. Definition of 'assist' in section 3.

83. Section 7(2); Regulation 4 and Schedule 1 of the Rights of the Terminally Ill Regulations 1996 (NT).

84. Section 7(1)(p).

85. Section 7(2); Regulation 4 and Schedule 1 of the Rights of the Terminally Ill Regulations 1996 (NT).

86. Section 12.

87. Sections 14 and 15.

88. Section 20.

89. Section 6.

90. Section 11.

91. Section 12.

92. J. Norberry Rights of the Terminally Ill Bill: Research Note No. 49, Canberra, Department of the Parliamentary Library, 27 June 1995. See Legislative Assembly of the Northern Territory,Report of the Inquiry by the Select Committee on Euthanasia, May 1995.

93. For discussion of the social and political background to the passing of this legislation, see T. Campbell, N. Cica and M. Storey, 'Euthanasia Legislation: Australian Developments', paper presented on 11 July 1996 at Socio-Legal Studies Conference, University of Strathclyde, Glasgow, UK.

94. See discussion of the legal position in Oregon and the Netherlands, below.

95. http://www.nt.gov.au/lant/.

96. Section 9 of the Northern Territory (Self-Government) Act 1978 (Cth) empowers the Governor-General to disallow legislation passed by the Legislative Assembly, in part or in its entirety, within six months of the Administrator's assent to the legislation. Alternatively, the Governor-General can recommend amendments to the legislation. Disallowance by the Governor-General repeals the legislation. These powers have never been used to disallow any Northern Territory legislation.

97. Rights of the Terminally Ill Amendment Act 1996 (NT).

98. See Rights of the Terminally Ill Amendment Act 1996 (NT), sections 3 (amending section 3 of the principal legislation) and 4 (amending section 7(1)(c) of the principal legislation).

99. See Rights of the Terminally Ill Amendment Act 1996 (NT0, section 4 (amending section 7(4) of the principal legislation).

100. See Northern Territory Parliamentary Debates (Legislative Assembly), 20 February 1996 (on theRights of the Terminally Ill Amendment Bill 1996 (NT)), and 15 March 1996 (on theRespect for Human Life Bill (Serial 111)1996 (NT), introduced by Mr Bell).

101. The action against the Commonwealth has since been discontinued with the Commonwealth's consent.

102. See transcript of case, pp 22-26.

103. Ibid, pp 33-34.

104. Ibid, pp 28-31.

105. Ibid, pp 38-41.

106. Ibid, pp 38-39.

107. Ibid, pp 18-19.

108. Ibid, pp 5 and 19-20. See further pp 42-43.

109. Ibid, pp 20-21 and 36.

110. For discussion of the provisions of this Bill, see G. Griffith and M. Swain, ibid note 25, pp 27-28.

111. 'Way cleared for a vote on euthanasia', Sydney Morning Herald, 31 May 1995.

112. See 'NT mercy killing law a mess, says Carr', and 'Editorial', Sydney Morning Herald, 15 April 1996.

113. For discussion of the differences between this draft Bill and the Northern Territory law, see G. Griffith and M. Swain, ibid note 25, pp 38-40.

114. House of Lords, supra note 12, para 119.

115. See generally G Kimsma and E. Van Leeuwen, 'Dutch Euthanasia: Background, Practice and Present Justifications' (1993) 2 Cambridge Quarterly of Healthcare 19; E. Ketting, 'Is the Dutch Abortion Rate Really That Low?' (1994) 23(3)Planned Parenthood in Europe 29.

116. P. Van der Maas, J. Van Delden and L. Pijnenborg, 'Euthanasia and Other Medical Decisions Concerning the End of Life - Volume 2' (1992) 22(2) Health Policy (Special Issue), p 3.

117. See further House of Lords, supra note 12, Appendix 3, p 67 and para 126.

118. See J Keown, 'The Law and Practice of Euthanasia in the Netherlands' [1992] 108 Law Quarterly Review 51 at 52.

119. For fuller and slightly varying accounts of these rules, see G. Griffith and M. Swain, supra note 25, pp 44-45; J. Griffiths, 'The Regulation of Euthanasia and Related Medical Procedures that Shorten Life in the Netherlands' (1994) 1Medical Law International 137 at 143-4.

120. See discussion below of the Chabot case.

121. J. Griffiths, supra note 25 at 232 n 1:
There is a translation difficulty in connection with the legal concept noodtoestand. The technically correct translation is '(situation of) necessity', and the defence of necessity is, in general terms, the same in Dutch law as in the common law. However, in the case of euthanasia the 'necessity' which has been recognised by the Dutch courts is not a general necessity but a specifically medical one, measured in terms of the state of medical knowledge and the professional norms of doctors, and it seems clear that no one but a doctor can successfully invoke it. There is, therefore, an argument to be made for translating the term as 'medical necessity'.

122. J Keown, supra note 126 at 53, quoting from 'The High Court of the Hague, Case No 79065, October 21, 1986' (1988) 3Issues in Law & Medicine 445 at 448.

123. J Keown, supra note 126 at 56. These criteria were first articulated by the Dutch courts in 1986, in theAlkmaar case (Dutch Supreme Court).

124. See discussion below of the Chabot case, June 1994.

125. The Van Weerd case, March 1995.

126. See discussion below of the Chabot case.

127. P. Van der Maas et al, supra note 121 at 671.

128. Ibid at 671-672.

129. Ibid at 672-673.

130. G. Van der Wal, Euthanasie en Hulp bij Zelfdoding door Hisartsen [Euthanasia and Assisted Suicide by Family Doctors], Rotterdam, 1992.

131. Remmelink Commission, Medische beslissingen rond het levenseinde [Medical decisions in t connection with the end of life: advice of the Commission appointed to carry out research concerning medical practice with respect to euthanasia], 1991, The Hague, Sdu Uitgeverij Plantijnstraat.

132. See B. Pollard, 'Euthanasia in Holland' (1992) 16(2) Quadrant 42.

133. J. Griffiths, supra note 25 at 247; see similar cautions by the Remmelink researchers, J. Van Delden, L. Pijnenborg and P. Van der Maas, 'Dances With Data' (1993) 7(4)Bioethics 323.

134. J. Griffiths, supra note 25 at 235.

135. Four psychiatrists, a clinical psychologist, a general practitioner and a Christian professor of ethics.

136. This conforms with conclusions reached earlier by:
- the Commission on the Acceptability of Termination of Life of the Royal Dutch Medical Association (in its fourth discussion paper on the termination of life in the case of non-competent patients, issued in 1993: Hulp bij zelfdoding bij psychiatrische patinten [ Assistance With Suicide in the Case of Psychiatric Patients]);

- the Dutch Inspectorate for Mental Health (in its 1993 report De medlingsprocedure euthanasie/hulp bij zelfdoding en psychiatrische patienten [The reporting procedure for euthanasia/assistance with suicide and psychiatric patients]); and

- the Dutch Association for Psychiatry (in its 1992 paper 'Mededelingen bestuur' (1992) Nieuws en Mededelingen 86/2).

137. The Supreme Court did not specify, however, whether that independent colleague must be a psychiatrist. Nor did it specify details of the independent consultation requirements in a case where the doctor receiving the request for assistance was (unlike Dr Chabot) not a psychiatrist. Nor did it make it clear whether the independent colleague must agree with the first doctor's assessment of the patient. See J. Griffiths, supra note 25 at 242.

138. J. Griffiths, 'Assisted Suicide in the Netherlands: Postscript to Chabot' (1995) 58 Modern Law Review 895. Griffiths notes that, like the Supreme Court, the Medical Disciplinary Tribunal held that it can be legitimate for a doctor to assist the suicide of a person whose unbearable suffering is of non-somatic origin. It also agreed that a doctor must ensure that the patient is examined by another, independent doctor before the doctor can accede to the patient's request. Unlike the Supreme Court, however, it did not consider that a doctor could help a patient die if the patient is refusing treatment that could possibly improve his or her condition.

139. J. Griffiths, supra note 25 at 247.

140. J. Griffiths, supra note 25 at 246.

141. The Prins case, 7 November 1995.

142. The Kadijk case, 13 November 1995.

143. The Royal Dutch Medical Association plans to set up a 'help desk' panel. which doctors in the Netherlands will be able to consult for advice on matters relating to euthanasia. This should include provision of advice about the proper ways to perform euthanasia and information about how to locate doctors who are willing to be involved in the procedure.

144. Of these jurisdictions, 34 states (Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinios, Indiana, Kansas, Kentucky, Maine, Michigan, Minnesota, Mississippi, Minnesota, Montana, New Hampshire, New Jersey, New Mexico, New York, North Dakota, Oklahoma, Oregon, Pennsylvania, South Dakota, Tennessee, Texas, Washington and Wisconsin) and 2 territories (Puerto Rico and the Virgin Islands) currently have statutes imposing criminal sanction for aiding, assisting, causing or promoting suicide. Three further states (Idaho, Nevada and West Virginia) and the District of Columbia do not impose explicit criminal sanctions on assisted suicide, but nonetheless condemn assisted suicide in statutes allowing withdrawal of medical treatment. In three further states (Alabama, Iowa and Wyoming), the definition of criminally negligent homicide are sufficiently broad to encompass aiding, assisting, causing or promoting suicide. In four other states (Massachusetts, Ohio, South Carolina and North Carolina) criminal penalties for assisting suicide are imposed under case law.

145. New York State Task Force on Life and the Law, When Death is Sought: Assisted Suicide and Euthanasia in the Medical Context, May 1994.

146. In 1995 Bills proposing the legalisation of physician assisted suicide were introduced in twelve states. A model statute to effect this kind of legal change has been drafted: see Baron et al, 'A Model State Act to Authorise and Regulate Physician-Assisted Suicide' (1996) 33 Harvard Journal of Legislation 1.

147. In 1995 Bills were introduced in four states to create such a legislative prohibition. One recent example of the successful introduction of this kind of legislation occurred in Michigan in 1993, in response to the well-publicised activities of Dr Jack Kevorkian. Dr Kevorkian was a physician who was assisting patients to die using a 'suicide machine' that killed by administering potassium chloride intravenously. The machine was activated by the patient pressing a switch. Criminal charges could not be brought successfully against Dr Kevorkian in relation to the death of patients who used this machine, because murder prosecutions against the doctor failed on the basis that the patients had caused their own deaths (by pressing the switch themselves) and because in Michigan there was no specific crime of assisting suicide. The Michigan legislature passed a law making it a crime intentionally to provide another with the physical means to commit suicide. A challenge to the constitutional validity of this new law failed in the Michigan Supreme Court: People v. Kevorkian (1994) 447 Mich 436.

148. United States Court of Appeals for the Ninth Circuit, 6 March 1996.

149. United States Court of Appeals for the Second Circuit, 2 April 1996.

150. Lee v. Oregon (1995) 891 F. Supp 1429.

151. See B. Bix, 'Physician Assisted Suicide and the United States Constitution' (1995) 58 Modern Law Review 404 at 409.

152. United States Court of Appeals for the Ninth Circuit, 6 March 1996.

153. Loving v. Virginia 388 U. 1 (1967).

154. Roe v. Wade (1973) 410 US 113; most recently affirmed inPlanned Parenthood v. Casey (1992) 112 S.Ct 2791.

155. Moore v. City of East Cleveland (1977) 431 US 494.

156. Pierce v. Society of Sisters (1925) 368 US 510.

157. Planned Parenthood v. Casey (1992) 112 S. Ct 2791 at 2807.

158. (1992) 112 S. Ct 2791.

159. (1990) 497 US. 261.

160. Rhenquist CJ, delivering the majority opinion, stated that 'the principle that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions': (1990) 497 US 261 at 278. For the purposes of the case before the Court, however, the majority only explicitly affirmed the existence of a constitutionally protected liberty interest in rejecting life-sustaining hydration and nutrition: 'Although we think the logic of the cases discussed above would embrace [a liberty interest in refusing unwanted medical treatment], the dramatic consequences involved in refusal of such treatment would inform the inquiry as to whether the deprivation of that interest is constitutionally permissible. But for purposes of this case, we assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition.': at 279.

161. O'Connor J rejected any legal distinction between artificial feeding and hydration and other forms of life-sustaining medical treatment:
Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.

(1990) 497 US 261 at 289.

162. Brennan Marshall, Stevens and Blackmun JJ.

163. For criticism of the similar conclusion by the trial judge in the instant case (Rothstein CJ, District Court for the Western District of Washington, reported as Compassion in Dying v. State of Washington (1994) 850 F Supp 1454), see B. Bix,supra note 166 at 408:
The District Court's quick and untroubled conclusion that there is no legally (constitutionally) significant difference between assisted suicide and the termination of medical treatment is also somewhat troubling. ... [It is]... contrary to the historical underpinning of the 'right to die' judgements. These judgments were grounded in the common law position that unconsented-to medical treatment, like other unconsented-to touchings, is an assault or battery, and therefore patients have a presumptive right to refuse medical treatment. Whatever the merits of extending this doctrine to the extreme at which medical treatment can be refused in all circumstances, even when death is the likely result (as most United States courts have held), there is no means in logic to extend the right to refuse treatment to include the right to insist on harmful treatment, however little the difference may be in real-life consequences or however formalistic the distinction may seem to some.

The Court of Appeals for the Ninth Circuit did attempt at some length to justify its extension of the right to refuse treatment to include the right to insist on harmful treatment. That justification, however, appears under its later discussion of whether the state's interest in preventing suicide should defeat the pre-existing liberty interest in choosing the time and manner of one's own death, not under its discussion of the scope of the liberty interest itself.

164. Note that Australian courts have not articulated a 'state interests' doctrine of this kind.

165. See N. Cica, supra note 1.

166. They stated the following:
The Oregon District Court's reasoning conflicts squarely with the reasoning of this opinion and with the legal conclusions we have reached. Here, we determine that a statute that prohibits doctors from aiding terminally ill persons to hasten their deaths by providing them with prescription medications unconstitutionally burdens the liberty interests of the terminally ill. The benefit we conclude the terminally ill are entitled to receive in this case - the right to physician-assisted suicide - is precisely what Judge Hogen determined to be a burden and thus unlawful. In short, Lee treats a burden as a benefit and a benefit as a burden. In doing so, Judge Hogan clearly erred. Lee not only does not aid us in reaching our decision, it is directly contrary to our holding.

167. Beezer CJ identified a liberty interest under the due process clause in committing suicide, but refused to describe it as 'fundamental'. He thereby refused to categorise it as the kind of privacy right which the Supreme Court has identified as deserving of greatest protection from state interference. He instead described this liberty interest (and, moreover, the right to abortion affirmed in Casey and the right to refuse unwanted medical treatment affirmed inCruzan) as 'nonfundamental' and therefore more easily outweighed by competing state interests.
Beezer CJ justified his refusal to categorise this liberty interest as fundamental by referring to the Supreme Court's unwillingness to identify new fundamental rights protected under the Due Process Clause. He therefore applied the restrictive test that the Supreme Court had used in Bowers v. Hardwick 478 US. 186 (1986) to reject the claim that homosexuals have a fundamental constitutional right to engage in private sexual conduct. Under that test, a new fundamental right will only exist if is deeply rooted in the nation's traditions and history, and if it can be considered so implicit in the concept of ordered liberty that neither liberty nor justice would exist if it were sacrificed. Beezer CJ concluded that the purported right to assisted suicide failed both limbs of this test.

Note that the majority judges were highly critical of the Supreme Court's approach in Bowers v. Hardwick, describing it as 'aberrant.'

168. Having concluded that the liberty interest in question was not 'fundamental', Beezer CJ employed what is known as the 'rational relationship test' to assess whether the Washington statute violated the due process clause. Under that test, a statute is constitutional if it rationally advances some legitimate government purpose. Beezer CJ also indicated, however, that had he employed the more stringent tests that are used when a 'fundamental' liberty interest is under threat (either the 'strict scrutiny test', or the 'balancing test' used by the majority), the strength of the state interests involved here would have lead him to the same conclusion.

169. Echoing the (dissenting) approach of Beezer CJ in Compassion in Dying v. State of Washington, the majority noted the general reluctance of the Supreme Court of the United States to expand the list of fundamental rights protected by the Constitution, and its particular reluctance to identify new liberty interests encompassed by the right to privacy derived from the Due Process Clause. Given this reluctance, the majority felt it would be inappropriate for a court lower in the judicial hierarchy to take a more expansive approach to identifying new fundamental due process rights. The majority therefore used theBowers v. Hardwick test to reject the asserted right to assisted suicide:
As in Bowers, the right contended for here cannot be considered too implicit in our understanding of ordered liberty that neither justice nor liberty would exist if it were sacrificed. Nor can it be said that the right to assisted suicide claimed by plaintiffs is deeply rooted in the nation's traditions and history. Indeed, the very opposite is true.

170. For an assessment of the constitutional law implications of these cases, see R. Dworkin, 'Sex, Death and the Courts' (1996) New York Review of Books, 8 August 1996, pp 44-50.

171. This Act does not apply in Scotland, where the legal position is less clear. Note the ruling of the European Commission on Human Rights in R. v. United Kingdom (1983) 6 EHRR 50. In that case, the European Commission rejected the claim by a member of the Voluntary Euthanasia Society that his conviction under section 2, for referring people seeking assistance in suicide to a doctor who was prepared to help them, violated Article 8 of the European Convention on Human Rights (right to respect for his private life).

172. Suicide and attempted suicide are no longer crimes in the United Kingdom.

173. English courts have established that the common law crime of murder is committed where a person 'unlawfully kills any reasonable creature in being and under the Queen's peace with intent to kill or cause grievous bodily harm the death following within a year and a day.'

174. The Voluntary Euthanasia Legalisation Society has been in existence ever since. It is now known as the Voluntary Euthanasia Society; since 1980, there has also been a separate Voluntary Euthanasia Society of Scotland.

175. For discussion of the Parliamentary debates on this Bill, see J. Gould and Lord Craigmyle (eds), Your Death Warrant? , Geoffrey Chapman Ltd, London, 1971, pp 38-44.

176. See ibid pp 44-48.

177. See ibid pp 136-144 for the Explanatory Memorandum and text of the Bill.

178. [1993] 2 WLR 316. In this case, the House of Lords authorised the withdrawal of artificial hydration and nutrition from Anthony Bland, a patient who had been in a persistent vegetative state since being injured in the Hillsborough disaster in 1989.

179. House of Lords, supra note 12, p 7.

180. See ibid, pp 3-6.

181. Ibid, para 236.

182. See N. Cica, supra note 1.

183. House of Lords, supra note 12, para 20.

184. Ibid, paras 278 and 237.

185. Ibid, paras 293 and 259-260.

186. Ibid, paras 294 and 261.

187. Ibid, para 237.

188. Ibid, para 237.

189. Ibid, paras 238-9.

190. Ibid, para 237.

191. Ibid, paras 262 and 295.

192. Ibid, paras 287 and 276.

193. Ibid, para 276.

194. Ibid, paras 288 and 276.

195. Ibid, paras 289 and 276.

196. Ibid, paras 290 and 276.

197. Ibid, paras 291 and 276.

198. Government Response to the Report of the Select Committee on Medical Ethics, Cm 2552, London, HMSO, May 1994.

199. Following the passing of the Death With Dignity Act 1994 in Oregon.

200. On 16 January 1996 the Parliamentary Secretary of the Lord Chancellor's Department was asked what response the Government intended to make to the Law Commission's Report on Mental Incapacity (discussed above). The response included the following: 'The Government wish to emphasise that they fully support the views of the House of Lords Select Committee on Medical Ethics that euthanasia is unacceptable and have no plans to change this policy'.

201. Rodriguez v. British Columbia (Attorney General) (1993) 107 DLR (4th) 342. For detailed discussions of the legal and philosophical implications of this case, see: M. Somerville 'Death Talk in Canada: TheRodriguez Case' (1994) 39 McGill LJ. 602; L. Weinrib, 'The Body and the Body Politic: Assisted Suicide under theCanadian Charter of Rights and Freedoms' (1994) 39McGill L.J. 618; B. Freedman, 'TheRodriguez Case: Sticky Questions and Slippery Answers' (1994) 39McGill L.J. 644; E. Keyserlingk, 'Assisted Suicide, Causality and the Supreme Court of Canada' (1994) 39McGill L.J. 708; E. Bereza, 'The Private and Public Deaths of Sue Rodriguez' (1994) 39McGill L.J. 719; I. Holloway, 'Case Note: Is There A Right to Assisted Suicide Under Canadian Law?' (1994) 17UNSWLJ 617; I. Dundas, 'Case Comments:Rodriguez and Assisted Suicide in Canada' (1994) 32Alberta Law Review 811; P. Thomson, 'The Law and Active Euthanasia: Whose Life Is It Anyway?' (1995) 2Journal of Law & Medicine 233.

202. Under section 241 of the Canadian Criminal Code: Every one who:
(a) counsels a person to commit suicide; or

(b) aids or abets a person to commit suicide; and

Whether suicide ensues or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

203. See further Morgentaler v. R (1988) 44 DLR (4th) 385 (Supreme Court of Canada).

204. Sopinka J wrote the joint judgment of the five majority judges: Sopinka, La Forest, Gonthier, Iacobucci and Major JJ.

205. McLachlin, L'Heureux-Dubé and Cory J. The other dissenting judge, Lamer CJ, did not address this issue.

206. P. Thompson, supra note 220 at 243.

207. M. Smith et al, supra note 223, p 10.

# data[].attributes.attachment_link.title
Euthanasia - the Australian Law in an International Context

# data[].attributes.attachment_link.description
'when medical intervention takes place, at the patient's request, in order to end the patient's life' The Northern Territory likes to think of itself as frontier country - it is certainly at the forefront of the international debate over euthanasia.