Leah Grolman and Greg Weeks: Guidelines and Assisted Suicide: an Australian Perspective

LeahgregThe morally and politically charged area of assisted suicide has many of the hallmarks of an insoluble problem. This has not prevented courts in some jurisdictions considering how they might ‘legalise’ assisted suicide without really legalising it. In doing so, they have raised manifold challenges in the minds of administrative and constitutional lawyers, including, in some jurisdictions, whether the prohibition on assisted suicide is itself constitutional, such as Rodriguez in Canada, Fleming in Ireland and Pretty in the ECtHR.

In Australia, assisted suicide is a topic which can be considered apart from constitutional considerations of the type which were determinative in Fleming. It can also be discussed, in general, in isolation from the human rights provisions which were determinative in Purdy. As is notorious, Australia has no statutory or constitutional protection of specific human rights at Commonwealth level or in most States. We propose to look at the issues which have arisen in other jurisdictions as though they took place in Australia, specifically in the State of New South Wales. We think that this will assist to isolate some of the substantive issues in relation to prosecuting persons who breach criminal legislation by aiding or abetting another person to commit suicide.

Of particular interest, as has been raised previously by contributors to this blog and elsewhere, is the potential of prosecutorial guidelines. While much has already been said about the way the Irish High Court has departed from the House of Lords decision in Purdy and failed to embrace the Canadian Ménard Report, how this might play out in Australian jurisdictions might provide a worthwhile addition to the conversation. Specifically, such an analysis may shed some light on how the issues around assisted suicide play out in the absence of either legislatively protected human rights or considerations of whether the prohibition itself is constitutional.

As in other jurisdictions, assisted suicide is a criminal offence in all Australian jurisdictions. The relevant provision in New South Wales, for example, is section 31C of the Crimes Act 1900. It is also a federal offence to use a ‘carriage service’ for suicide related material or possess, control, produce, supply or obtain suicide related material for use through a carriage service: Criminal Code Act 1995 (Cth). This is despite the growing public acceptance of the idea of legalising ‘voluntary life-ending behaviours’ and the short-lived legalisation by the Northern Territory which legalised assisted suicide.

A person found guilty of committing the crime of assisting another person to commit suicide is liable to serve a period of imprisonment of 10 years. Also in common with other jurisdictions, NSW has long since decriminalised both suicide and attempted suicide. The crime of aiding or abetting a person to commit suicide is therefore a crime of primary, rather than accessorial, liability. As in the UK, the decision as to whether a person will be prosecuted for this offence is within the discretion of the Director of Public Prosecutions (DPP).

The DPP in NSW has a statutory power under section 13 of the Director of Public Prosecutions Act 1986 to issue prosecutorial guidelines, and has done so. However, there are restrictions on the purposes for which such guidelines can be issued:

  • They are issued for the benefit of prosecutors in making discretionary decisions, such as exercising the discretion whether to commence a prosecution. Although they are published, they are not issued for the benefit of people who are seeking to order their behaviour such that it does not attract criminal liability.
  • They are not specific to any single offence but are designed to relate to offences generally, or to particular areas of law in which sensitive decisions are required, such as child protection (Appendix F) and domestic violence (Appendix E).
  • There is long-standing High Court authority that indemnity cannot be given for a breach of the law prior to the commission of the offence in respect of which indemnity is sought. Even after the commission of an offence, the granting of immunity from criminal liability lies, conventionally in Australia, with the Attorney-General.

Additionally, there is a strong tradition of courts declining to interfere in the exercise of prosecutorial discretion by the DPP, other than where there is an abuse of the court’s process. Even in that circumstance, the prosecution is terminated without resort to judicial review. This tradition harks back to the days where prosecutorial decisions were viewed as part of the Crown prerogative and, therefore, unreviewable. The High Court has confirmed, however, that even though prosecutorial discretion is today based in statute in all Australian jurisdictions, it still remains beyond the reach of judicial review. That this remains the case is crucial to maintaining the separation of executive power (prosecutorial decisions) and judicial power (hearing and determining criminal proceedings). In Australia, this separation has a ‘constitutional dimension’: the ‘separation of powers’ doctrine entrenched in the Constitution – a feature of the Australian system of government which operates distinctly from the similar doctrine in the UK.

The separation of judicial and executive power has significant ramifications with respect to the prospect of a court ordering the DPP to issue guidelines in any context, let alone for the offence of assisted suicide whose treatment involves considerations which are more political than legal. First, Australian courts would not, as a matter of their long-established practice of non-interference with DPP decisions, order a DPP to issue guidelines like the House of Lords in Purdy.

The second significant ramification relates to the potential legal effect of guidelines issued by an Australian DPP. UK administrative law has adopted a doctrine of substantive legitimate expectations, as illustrated by Coughlan. Miss Coughlan was transferred to North and East Devon Heath Authority in disappointment of her expectation, induced by a promise made by the NHS, that her and other patients would remain at Mardon House (where they were previously) for as long as they chose. The Court of Appeal remedied the unfairness to Miss Coughlan, not procedurally as an Australian Court would have done, but substantively by enforcing her expectation that Mardon House would be her home for life.

In contrast, as one of the authors has explained elsewhere, no specific doctrine of public law estoppel has developed in Australia. This is despite the apparent potential of the equitable doctrine of estoppel to remedy the lacuna exposed by situations where a public authority deviates from the terms of a non-statutory instrument (eg, guidelines) or representation (eg, a statement of policy) to the detriment of an individual. Therefore, Australians would unlikely be able to hold the DPP to any guidelines issued via the doctrine of legitimate expectations or by raising estoppel.

Guidelines may also be precluded from being issued by the rule that a public authority cannot be bound by something that prevents the exercise of one of its statutory duties or discretions of a public character (the ‘rule against fettering’). This is, of course, assuming that the guidelines amounted, in effect, to an undertaking by the DPP not to prosecute, as Kearns P reasoned in Fleming:

Whatever the stated objective of seeking guidelines may be, there can be no doubt but that the intended effect of obtaining such relief would be to permit an assisted suicide without fear of prosecution. No amount of forensic legerdemain can alter that fact. For, absent such effect, one is driven to ask what practical purpose or value lies in seeking such guidance? There is, in truth, none. It follows therefore that in this context ‘effect’ is every bit as important as ‘object’ …

Moreover, the High Court has made clear that any ‘agreement’, such as a ‘plea agreement’, between the prosecution and the defence ‘does not bind the judge … It is for the judge, assisted by the submissions of counsel, to decide and apply the law.’ So, even if a person intending to offend, or having offended, persuades the prosecution to agree to prosecute but to argue for, say, a nominal penalty because of the altruistic motives of the person assisting the deceased to commit suicide, this does not guarantee that a nominal sentence will fall from the bench.

But what about areas where prosecuting bodies other than the DPP make ‘rulings’ (the Australian Taxation Office) or issue ‘no-action letters’ (the Australian Securities and Investments Commission)? Surely, these are exceptions to the principle that indemnity for criminal liability will not be forthcoming prior to an offence being committed. Not so. If an individual were to rely on this as an undertaking by the relevant prosecuting authority, go ahead with the offending behaviour in respect of which they sought an undertaking, and then argue that the prosecuting authority is estopped from prosecuting, the court would find the individual’s reliance ‘unreasonable’. As highlighted by the Full Federal Court in Bellinz, ATO rulings state that they are subject to legislation and appellate rulings; the ATO could not be estopped from making a decision either required or allowed by the relevant legislation. A similar situation prevails in Britain. Likewise, Regulatory Guideline 108 cl 16 makes clear that no-action letters do not restrict ASIC’s right to take action, even where such a letter has been issued.

We agree with Paul Daly’s statement that guidelines are a form of “law”, albeit with important differences from forms of law grounded in judicial or legislative expression.  Nonetheless, it is more difficult for an Australian lawyer to find resonance with any characterisation of guidelines, particularly relating to a topic like assisted suicide, which gives primacy to a concept as loose as “the popular will”. There are different ways of approaching the question of administrative discretion. American scholars, such as K C Davis, and judges have expressed distrust of important discretionary decisions being left unconfined in the hands of “unelected bureaucrats”. An Australian might just as easily laud such a circumstance on the basis that a sensitive decision has been left in the hands of an apolitical public servant, such as a DPP. There is no culture in Australia of such officers being elected, nor of them abusing their power. The DPP holds a broad discretion with regard to prosecuting those who assist another person to die precisely because the matter is both highly sensitive and extremely difficult to define legislatively with the precision required of a criminal act.

Leah Grolman final-year LLB student at the University of New South Wales and Sir Anthony Mason Intern at the Gilbert and Tobin Centre of Public Law, Faculty of Law, University of New South Wales

Greg Weeks is a Lecturer in Law at the University of New South Wales


Suggested citation: L. Grolman and G. Weeks, ‘Guidelines and Assisted Suicide: an Australian Perspective’   UK Const. L. Blog (7th August 2013) (available at http://ukconstitutionallaw.org)