The incompatibility of the Human Rights Act and the Crimes Act

A letter to the ACT Attorney General and others drawing attention to the human rights of those wishing to die and the current limitations of the law.

The ACT Attorney General
Mr Simon Corbell MLA
GPO Box 1020
Canberra
ACT 2601

To: The Attorney General
CC The Chief Minister
The ACT Human Rights Commissioner
The Health Services Commissioner

Dying with Dignity ACT wishes to draw to your attention to our concern for the human rights of the most cruelly treated members of our society; those who want to die. Current ACT laws as expressed in sections 16, 17 and 18 of the Crimes Act 1900 allow that suicide is lawful but that it cannot be assisted. People who want to end their lives are, as a direct consequence of these laws, forced to hang, gas or shoot themselves. They cannot get assistance to die and therefore all no-violent means are unobtainable because they are unlawful.

Since the ACT has been independent, people have continued to suicide. Evidence for this is on the Health Directorate website which states that an average of 31 people commit suicide each year. The Australian Bureau of Statistics also provided statistics on suicide in the Australian Capital Territory up to 2005 and Response www.responseability.org in its figure 5 Overview of Suicide in Australia provides a graph based on various reputable sources indicating the rate of suicide in the territory between the years 2005-2009. There is no evidence that the incidence of suicide has decreased in the ACT. It is well above the national average.

Suicide Prevention strategies have been in place for about the same length of time as the independent Territory. The statistics show that they do not work. People who want to suicide weigh up the short term costs of a painful death against the costs of continuing life and prefer the short term cost, regardless of organizations such as Lifeline and Beyond Blue. This demonstrates a clear, conscious wish to die. This should be respected. It should not result in the current violation of these peoples’ human rights.

We attach a comparison of the Human Rights Act 2004 and Sections 16, 17, and 18 of the Crimes Act 1900 as evidence for our belief that these laws are incompatible with the expectations of a democratic community for the implementation of human rights in the territory. In 1996 the High Court agreed with the Northern Territory Supreme Court that a territory legislature may validly provide for assistance in dying. Our Crimes Act, inherited from New South Wales, dates from the 19th century and in our view at times does not reflect modern standards, and obviously on introduction was not subject to the kind of review which our Human Rights Act now requires.

We believe that Sections 16, 17 and 18 of the Crimes Act 1900 should be reformed. We believe these laws infringe on the human rights of those who want to die. We have been advised by the Human Rights office to request you to refer these laws to the Law Reform Committee. We would ask you to do that.
We look forward to your response.

Yours sincerely,

Jeanne Arthur
President, Dying with Dignity ACT
PO Box 55
Waramanga
ACT 2611
17 July 2012

Points of incompatibility between Human Rights Act 2004 and Sections 16, 17, and 18 of the Crimes Act 1900

POINT 1

ACT Human Rights Act
Part 2 Section 7: This act is not exhaustive of the rights an individual may have under domestic or international law.

Part 3 Civil and political rights
The primary source of these rights is the International Covenant on Civil and Political Rights.
Section 8 Recognition before the law
Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.

Point of incompatibility

People who want to die are intentionally excluded by section 17 of the Crimes Act from gaining any help whatever, even the normal supports of the ACT health system and the specific health remedy, i.e. death, they seek for their suffering which is recognized implicitly in section 16 as being something they can lawfully do. They are also threatened by section 18 with the possibility of lawful assault.

Article 26 of the international Covenant on Civil and Political Rights states that

‘All persons are equal before the law and are entitled without discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.’

We believe that Section 17 of the Crimes Act privileges the opinion that people should endure a ‘natural’ death of the diseases of old age or submit to a degrading and usually painful manner of death or act unlawfully to obtain peaceful means of death and discriminates against those who hold the opinion that they should be able to undertake their deaths in a safe manner within a modern health system at a time of their choosing. The belief in the right to die is a long held cultural belief in Western and some Asian cultures evidenced in literature thousands of years old which should be respected but is treated with contempt by the cultural assumptions behind Sections 17 and 18 of the Crimes Act.

POINT 2

ACT Human Rights Act
Section 10 Protection from torture and cruel, inhuman or degrading treatment
1 b) No-one may be treated or punished in a cruel, inhuman or degrading way.

Point of Incompatibility
Section 17 forces people who want to die, to die horribly. Effectively this sanctions state self assault and Section 18 allows assault by others on a suicide.

POINT 3

ACT Human Rights Act
Section 12 Privacy and reputation
Everyone has the right
b) not to have his reputation unlawfully attacked.

Point of Incompatibility
The act of suicide is treated as a great shame to be hidden. Suicide is kept quiet. It is discouraged. It is regarded as always a great tragedy. The label ‘suicide’ is demeaning and reflects the general failure by society to understand that to end one’s life is a choice a person can intentionally make in the exercise of their own lawful right. The choice is not respected as a choice that is made like every other choice people make in their lives.

POINT 4

ACT Human Rights Act
Section 18 Right to Liberty and Security of person
1) Everyone has the right to liberty and security of person.

Point of Incompatibility
Section 18 of the Crimes Act gives permission to other people to assault a person who wants to end her/his life. Section 17 denies the person wanting to die the liberty to undertake her/his death or to undertake it except by insecure means ie self assault. This provision is surely inconsistent with modern views on the status of the human person.

POINT 5

ACT Human Rights Act
Section 28 Human rights may be limited
1 Human rights may be subject only to reasonable limits set by territory laws that can be demonstratively justified in a free and democratic society.
2 In deciding whether a limit is reasonable all relevant factors must be considered including the following;
a)            The nature of the right affected
b)            The importance of the purpose of the limitation
c)            The nature and extent of the limitation
d)            The relationship between the limitation and its purpose
e)            Any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

Point of incompatibility
Section 17 is not a reasonable limit on the human right to die expressed by section 16. Swiss law has demonstrated that it is perfectly reasonable in law to assist suicide. One purpose of the limitation posed by the ACT law is to prevent people dying early but it is not effective as people continue to suicide despite the law. The Swiss have demonstrated that it is possible to provide a reasonable less restrictive limitation.

POINT 6

ACT Human Rights Act
Part 4 Application of human rights to Territory laws
Section 30 Interpretation of laws and human rights
So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.
Section 31 Interpretation of human rights

International law and the judgement of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.

Point of Incompatibility
Section 17 of the Crimes Act 1900 is incompatible not only with the implicit human right to die expressed by section 16 of the Crimes Act but also with the ‘inherent dignity of the human person’ identified as the source of all human rights in the International Covenant on Civil and Political Rights. The double standards and internal contradictions in these laws must be evident to anyone who thinks through the consequences of these laws. It is no longer a crime to commit suicide but no-one can help anyone to suicide.
The laws have wide ranging detrimental impact on the ‘inherent dignity of the human person’;

for the terminally ill; no doctor will help them except to give symptom relief even if they beg for death. Any doctor who does help another to die, and they do, becomes a criminal.
for suicides; they are forced to hang, gas, jump off high buildings, poison, drown or shoot themselves
for attempting suicides; they are left untreated and unsupported.
for families of suicides; they have had to go through the trauma of losing a loved one to a violent death.
for people who deal with suicide such as ambulance and medical staff; they are subjected to the trauma of seeing hanged, shot poisoned, drowned individuals.

Section 16 allows that it is lawful to end one’s life so it should be able to be done in a humane and respectful way. Swiss law has shown that it is possible to do that perfectly safely. People who elect their deaths are as entitled to have safe, respected deaths as those who do not so elect.

Points of incompatibility between Human Rights Act 2004 and Sections 16, 17, and 18 of the Crimes Act 1900

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