Suicide- Related Criminal Offences in Australia

It has been many years since laws which criminalised attempted suicide were repealed in states and territories across Australia.

But over the past couple of decades, a sinister trend has emerged which can contribute to people making the tragic decision to end their own lines.

The growth of cyber bullying and online abuse has been exponential over the past few years, and has the potential to lead to people – especially those who are vulnerable and impressionable such as our youths – to believe life is no longer worth living.

Cyber bullying and online abuse

With a view to deterring online abuse and removing offending content, the federal parliament passed the Online Safety Act 2021 (Cth), which came into effect early this year and applies across the nation.

Among other things, the Act introduces a mechanism whereby anyone may complain about abusive online content and empowers the eSafety Commissioner to compel online platforms to remove the content under threat of heavy fines and injunctions.

Prohibited content

The new regime captures a range of abusive and abhorrent online content, including: 

• the sexual exploitation of children,
• terrorist acts,
• threats of violence, including but not limited to murder, attempted murder and kidnapping,
• rape or torture, and
• suicide. 

Texts lead to suicide

Several years ago, a teenage girl in the United States was found guilty of manslaughter after repeatedly encouraging her boyfriend to take his own life, to the point she was daring him and questioning whether he had the ‘guts’ to do so.

The court received hundreds of text messages between the pair, which contained many inciting the young male’s suicide, including right up to the point he ended his life using carbon monoxide from the exhaust of a car. 

The court heard that the female, Michelle Carter, admitted her conduct to friends and, after her boyfriend’s death, attempted to garner sympathy from her friends over her alleged loss of a cherished partner.

Compelling the removal of suicide-related online content 

Under the Online Safety Act, the eSafety Commissioner has sweeping powers to identify those who post harmful content anonymously or under pseudonyms, and to compel platforms to remove such content under threat of civil sanctions.

In that regard, individuals can be fined up to $111,000 and companies face fines of up to $555,000.

Penalties apply to both those who post the material and content providers and hosts of the material. 

Commonwealth criminal offences

The Criminal Code Act 1995 (Cth), which also applies across the nation, contains several offences relating to the commission of acts which may encourage or lead to suicide.

Using a carriage service to incite or counsel suicide

Using a carriage service to counsel or incite suicide is an offence under section 474.29A(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of a 1000 penalty unit fine. 

A Commonwealth penalty unit is currently $222.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You used a carriage service to access, transmit, make available, publish or distribute material, or cause material to be transmitted,
2. The material counselled or incited the commission or attempted commission of suicide, whether directly or indirectly, and
3. You intended by your conduct to counsel or incite the commission or attempted commission of suicide, or

You intended for the material to be used by another person to counsel or incite the commission or attempted commission of suicide.

A ‘carriage service’ is:

‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’, which includes telephone calls, text messages and internet transmissions such as emails and social media messaging.

You cannot be found guilty of the offence merely because you used the carriage service to:

1. Engage in public discussion or debate about euthanasia or suicide, or
2. Advocate for law reform relating to euthanasia or suicide.

Provided you did not intend by doing so to:

1. Counsel or incite the commission or attempted commission of suicide
2. Intend for another to counsel or incite the commission or attempted commission of suicide
3. Intend the material to be used by another to commit suicide, or
4. Promote or provide instruction regarding a method of committing suicide.

Duress and necessity and legal defences to the charge.

Using a carriage service to promote or instruct a method of suicide

Using a carriage service to promote or provide instruction regarding a method of suicide is an offence under section 474.29A(2) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of a 1000 penalty unit fine.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You used a carriage service to access, transmit, make available, publish or distribute material, or cause material to be transmitted,
2. The material promoted or provided instruction regarding a particular method of committing suicide, whether directly or indirectly, and
3. You intended by your conduct to promote or provide instruction regarding a method of committing suicide, or you intended the material to be used by another to promote or provide instruction regarding a method of committing suicide.

The same definitions, qualifications and defences apply as the preceding section, 474.29A(1).

Suicide-related material online 

Possessing, controlling, producing, supplying or obtaining suicide-related material for use through a carriage service is an offence under section 474.29B of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 1000 penalty units.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You obtained, possessed, controlled, produced or supplied material
2. The material counselled or incited the commission or attempted commission of suicide, or promoted or provided instruction on a particular method of committing suicide, and
3. You intended the material to be used by you or another person to commit an offence against section 474.29A of the Act, which is the use of a carriage service for suicide-related material.

The definitions, qualifications and defences which apply to 474.29A also apply to this section.

In New South Wales 

In addition to the federal laws, section 31C of the NSW Crimes Act 1900 makes it an offence in New South Wales to aid or abet the suicide or attempted suicide of another person.

The offence is punishable by imprisonment for up to 10 years.

To establish the offence, the prosecution must prove beyond reasonable doubt that you aided or abetted the suicide or attempted suicide of another person.

Alternatively, a 5 year maximum penalty applies where the prosecution proves beyond reasonable doubt that you incited or counselled another person to commit suicide, and the other person committed or attempted to commit suicide as a consequence

Our kids need to be educated 

The laws which prohibit online content which encourages suicide are undoubtedly important, but can at the same time be daunting for parents and teachers who might think that texting KYS (kill yourself) or KMS (kill myself) is pretty meaningless.

There may indeed be a fine line between communications made in jest or cynicism, and a criminal offence. There may also be a blurred distinction between online content which justifiably protects and encourages free speech and that which is unjustifiably harmful, to the point of leading to mental health conditions, or worse.

That said, in the eyes of many, the protections afforded by state and federal laws may, on the balance, be warranted given the potential harms created by the internet and its anonymity.