How should Australia regulate voluntary euthanasia and assisted suicide?

The purpose of this paper is to provide a basis from which to start an informed and rational dialogue in Australia about voluntary euthanasia (VE) and assisted suicide (AS). It does this by seeking to chart the broad landscape of issues that can be raised as relevant to how this conduct should be regulated by the law. It is not our purpose to persuade. Rather, we have attempted to address the issues as neutrally as possible and to canvass both sides of the argument in an even-handed manner. We hope that this exercise places the reader in a position to consider the question posed by this paper: How should Australia regulate voluntary euthanasia and assisted suicide? In line with the approach taken in the paper, this question does not take sides in the debate. It simply asks how VE and AS should be regulated, acknowledging that both prohibition and legalisation of such conduct involve regulation. We begin by considering the wider legal framework that governs end of life decision-making. Decisions to withhold or withdraw life-sustaining treatment that result in a person’s death can be lawful. This could be because, for example, a competent adult refuses such treatment. Alternatively, stopping or not providing treatment can be lawful when it is no longer in a person’s best interests to receive it. The law also recognises that appropriate palliative care should not attract criminal responsibility. By contrast, VE and AS are unlawful in Australia and could lead to prosecution for crimes such as murder, manslaughter or aiding and abetting suicide. But this is not to say that such conduct does not occur in practice. Indeed, there is a body of evidence that VE and AS occur in Australia, despite them being unlawful. There have been repeated efforts to change the law in this country, mainly by the minor political parties. However, apart from a brief period when VE and AS was lawful in the Northern Territory, these attempts to reform the law have been unsuccessful. The position is different in a small but increasing number of jurisdictions overseas where such conduct is lawful. The most well known is the Netherlands but there are also statutory regimes that regulate VE and/or AS in Belgium and Luxembourg in Europe, and Oregon and Washington in the United States. A feature of these legislative models is that they incorporate review or oversight processes that enable the collection of data about how the law is being used. As a result, there is a significant body of evidence that is available for consideration to assess the operation of the law in these jurisdictions and some of this is considered briefly here. Assisting a suicide, if done for selfless motives, is also legal in Switzerland, and this has resulted in what has been referred to as ‘euthanasia tourism’. This model is also considered. The paper also identifies the major arguments in favour of, and against, legalisation of VE and AS. Arguments often advanced in favour of law reform include respect for autonomy, that public opinion favours reform, and that the current law is incoherent and discriminatory. Key arguments against legalising VE and AS point to the sanctity of life, concerns about the adequacy and effectiveness of safeguards, and a ‘slippery slope’ that will allow euthanasia to occur for minors or for adults where it is not voluntary. We have also attempted to step beyond these well trodden and often rehearsed cases ‘for and against’. To this end, we have identified some ethical values that might span both sides of the debate and perhaps be the subject of wider consensus. We then outline a framework for considering the issue of how Australia should regulate VE and AS. We begin by asking whether such conduct should be criminal acts (as they presently are). If VE and AS should continue to attract criminal responsibility, the next step is to enquire whether the law should punish such conduct more or less than is presently the case, or whether the law should stay the same. If a change is favoured as to how the criminal law punishes VE and AS, options considered include sentencing reform, creating context-specific offences or developing prosecutorial guidelines for how the criminal justice system deals with these issues. If VE and AS should not be criminal acts, then questions arise as to how and when they should be permitted and regulated. Possible elements of any reform model include: ensuring decision-making is competent and voluntary; ascertaining a person’s eligibility to utilise the regime, for example, whether it depends on him or her having a terminal illness or experiencing pain and suffering; and setting out processes for how any decision must be made and evidenced. Options to bring about decriminalisation include challenging the validity of laws that make VE and AS unlawful, recognising a defence to criminal prosecution, or creating a statutory framework to regulate the practice. We conclude the paper where we started: with a call for rational and informed consideration of a difficult and sensitive issue. How should Australia regulate voluntary euthanasia and assisted suicide?

Prosecutorial discretion in assisted dying in Canada : a proposal for charging guidelines

An Expert Panel of the Royal Society of Canada and a Select Committee of the Québec National Assembly both recently recommended the issuance of permissive guidelines for the exercise of prosecutorial discretion on voluntary euthanasia and assisted suicide and “medical aid in dying” respectively. It seems timely, therefore, to propose a set of offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide in Canadian provinces and territories. We take as our starting point the only existing guidelines of this sort currently in force in the world (i.e. the British Columbia Guidelines, and the England and Wales Guidelines). In light of certain concerns we have with these guidelines, we outline an approach to constructing guidelines for Canadian jurisdictions that begins with identifying three guiding principles we argue are appropriate for this purpose (respect for autonomy, the need for high-quality prosecutorial decision making, and the importance of public confidence in that decision making), and ends with a concrete and detailed set of proposed guidelines. The paper is consistent with, but also extends, the work of the Royal Society of Canada Expert Panel on End of Life Decision Making. Un panel d’expert de la Société Royale du Canada et une Commission spéciale de l’Assemblée nationale du Québec ont tous les deux récemment recommandé que soit émises des directives permettant exercice d’un pouvoir de poursuite discrétionnaire concernant l’euthanasie et le suicide assisté et « l’assistance médicale pour mourir », respectivement. Il semble donc à propos de proposer une série de directives spécifiques aux offenses sur la façon dont le pouvoir de poursuite discrétionnaire dans les territoires et provinces canadiennes serait appliqué dans les cas d’euthanasie et de suicide assisté. Nous avons pris comme point de départ les seules directives de la sorte existant déjà (c’est-à-dire celle de la Colombie-Britannique et de l’Angleterre et du Pays de Galles). Par contre, compte tenu de certaines de nos réserves concernant ces directives, nous avons ensuite établi les grandes lignes d’une approche permettant de mettre sur pied des directives pour les juridictions canadiennes, qui débute par l’identification de trois principes de base qui sont selon nous appropriées à cette fin (respect de l’autonomie, besoin pour une grande qualité de prise de prise de décision du poursuivant et la confiance du public envers cette prise de décision) pour se terminer par une série de directives concrètes et détaillées. Le présent document est compatible avec le travail de la Société royale du Canada tout en en augmentant la portée.

Prosecutorial guidelines for voluntary euthanasia and assisted suicide : autonomy, public confidence and high quality decision-making

This article proposes offence-specific guidelines for how prosecutorial discretion should be exercised in cases of voluntary euthanasia and assisted suicide. Similar guidelines have been produced in England and Wales but we consider them to be deficient in a number of respects, including that they lack a set of coherent guiding principles. In light of these concerns, we outline an approach to constructing alternative guidelines that begins with identifying three guiding principles that we argue are appropriate for this purpose: respect for autonomy, the need for high quality prosecutorial decision-making and the importance of public confidence in that decision-making.

Screen Distribution and the New King Kongs of the Online World

Like music and the news media before it, the film and television business is now facing its time of digital disruption. Major changes are being brought about in global online distribution of film and television by new players, such as Google/YouTube, Apple, Amazon, Yahoo!, Facebook, Netflix and Hulu, some of whom massively outrank in size and growth the companies that run film and television today. Content, Hollywood has always asserted, is King. But the power and profitability in screen industries have always resided in distribution. Incumbents in the screen industries tried to control the emerging dynamics of online distribution, but failed. The new, born digital, globally focused, players are developing TV network-like strategies, including commissioning content that has widened the net of what counts as television. Content may be King, but these new players may become the King Kongs of the online world.

Disability, public space performance & spectatorship : Unconscious performers

Why would disabled people want to re-engage, re-enact and re-envisage the everyday encounters in public spaces and places that cast them as ugly, strange, stare-worthy? In Disability, Public Space Performance and Spectatorship: Unconscious Performers, Bree Hadley examines the performance practices of disabled artists in the US, UK, Europe and Australasia who do exactly this. Operating in a live or performance art paradigm, artists like James Cunningham (Australia), Noemi Lakmaier (UK/Austria), Alison Jones (UK), Aaron Williamson (UK), Katherine Araniello (UK), Bill Shannon (US), Back to Back Theatre (Australia), Rita Marcalo (UK), Liz Crow (UK) and Mat Fraser (UK) all use installation and public space performance practices to re-stage their disabled identities in risky, guerilla-style works that remind passersby of their own complicity in the daily social drama of disability. In doing so, they draw spectators' attention to their own role in constructing Western concepts of disability. This book investigates the way each of us can become unconscious performers in a daily social drama that positions disability people as figures of tragedy, stigma or pity, and the aesthetics, politics and ethics of performance practices that intervene very directly in this drama. It constructs a framework for understanding the way spectators are positioned in these practices, and how they contribute to public sphere debates about disability today.

Issues to consider when developing mandatory reporting legislation and policy to improve discovery of child abuse

In the United Kingdom, recent investigations into child sexual abuse occurring within schools, the Catholic Church and the British Broadcasting Corporation, have intensified debate on ways to improve the discovery of child sexual abuse, and child maltreatment generally. One approach adopted in other jurisdictions to better identify cases of severe child maltreatment is the introduction of some form of legislative mandatory reporting to require designated persons to report known and suspected cases. The debate in England has raised the prospect of whether adopting a strategy of some kind of mandatory reporting law is advisable. The purpose of this article is to add to this debate by identifying fundamental principles, issues and complexities underpinning policy and even legislative developments in the interests of children and society. The article will first highlight the data on the hidden nature of child maltreatment and the background to the debate. Secondly, it will identify some significant gaps in knowledge that need to be filled. Thirdly, the article will summarise the barriers to reporting abuse and neglect. Fourthly, we will identify a range of options for, and clarify the dilemmas in developing, legislative mandatory reporting, addressing two key issues: who should be mandated to report, and what types of child maltreatment should they be required to report? Finally, we draw attention to some inherently different goals and competing interests, both between and within the various institutions involved in the safeguarding of children and the criminal prosecution of some offenders. Based on this analysis we offer some concluding observations that we hope contribute to informed and careful debate about mandatory reporting.

Émile Durkheim and Thomas Luckmann: Religion, spirituality and mental health

This chapter examines connections between religion, spirituality and mental health. Religion and spirituality influence the way people conceive themselves, others and the world around them, as well as how they behave – and are strongly associated with numerous mental health outcomes. Religion and spirituality therefore demand the attention of those who seek a comprehensive understanding of the factors that affect mental health. Mental health professionals are increasingly being asked to consider their clients’ religious and/or spiritual beliefs when devising their treatment plans, making the study of religion and spirituality an essential area of learning for those working in the mental health field. Initial discussion in this chapter will focus on the different approaches taken by sociologists in studying mental health. Emile Durkheim, one of the founders of sociology, proposed that religion was fundamental to societal wellbeing and was the first to demonstrate a link between religion and mental health at a population level in the late 19th century. Durkheim’s classic theory of religion, together with the work of Thomas Luckmann and other contemporary social theorists who have sought to explain widespread religious change in Western countries since World War II will be examined. Two key changes during this period are the shift away from mainstream Christian religions and the widespread embracing of ‘spirituality’ as an alternative form of religious expression. In combination, the theories of Durkheim, Luckmann and other sociologists provide a platform from which to consider reasons for variations in rates of mental health problems observed in contemporary Western societies according to people’s religious/spiritual orientation. This analysis demonstrates the relevance of both classic and contemporary sociological theories to issues confronting societies in the present day.

La responsabilité pénale des sociétés canadiennes pour les crimes contre l’environnement survenus à l’étranger

Avec l’accentuation du libéralisme, les entreprises multinationales ne cessent d’être de plus en plus présentes dans les États en développement, et certaines sont peu scrupuleuses du respect des normes environnementales. Par ailleurs, notons que la plupart de ces États ne disposent pas de mécanismes juridiques contraignant ces entreprises de répondre à d’éventuels crimes contre l’environnement qu’elles sont susceptibles de commettre sur leurs territoires. Or, en l’absence de telles dispositions, peu de sociétés se conforment aux politiques permettant d’internaliser les risques en raison de leur coût élevé. La volonté de maximiser le profit amène ces entreprises à se livrer à des actes attentatoires à l’environnement, à la santé et à la sécurité des individus lorsque rien ne les contraint à procéder autrement. De façon générale, il appartient à l’État sur le territoire duquel opère une société de réglementer ses activités. Précisons que dans plusieurs États en développement, les entreprises multinationales échappent aux mesures contraignantes en vertu de l’influence financière qu’elles exercent sur les dirigeants de ces États. De même, l’impunité des crimes contre l’environnement commis dans les pays en développement découle aussi du manque de volonté politique accentué par le phénomène de la corruption. Malgré la multiplicité de traités et de conventions internationales dédiés à la protection de l'environnement, ces instruments ne sont pas directement applicables aux sociétés multinationales, considérées comme des acteurs non-étatiques. Alors, les pays développés d’où proviennent la majeure partie des entreprises multinationales sont appelés à combler cette lacune en prenant des mesures qui obligent leurs entreprises à se préoccuper de la préservation de l’environnement dans leurs activités. Cette thèse propose d’examiner les mécanismes juridiques par lesquels les crimes contre l’environnement survenus dans les pays en développement peuvent entraîner des poursuites pénales au Canada. En l’absence de législation ayant une portée extraterritoriale explicite en la matière, cela exige de se référer au droit existant et de proposer une nouvelle approche d’interprétation et d’adaptation tenant compte des récents développements envisageant la protection de l’environnement comme une valeur fondamentale pour la société canadienne. De nos jours, la portée de la protection de l’environnement au Canada requiert l’abandon des anciennes conceptions du principe de la territorialité pour adopter une autre approche plus soucieuse des nouvelles réalités entraînées par la mondialisation économique. Il serait donc légitime pour le Canada d’étendre sa compétence pour réprimer les crimes contre l’environnement survenus à l’étranger lors des activités menées par ses ressortissants. La nécessité de réprimer les atteintes à l’environnement survenues à l’étranger devient plus pressante lorsque ces crimes présentent un degré de gravité comparable à celui des crimes internationaux.

Prosecuting corporations and officers for industrial manslaughter-recent Australian developments

There have been concerns for some time about whether breaches of duty that cause a worker's death are appropriately dealt with under occupational health and safety legislation, or whether criminal prosecution is warranted in those cases involving recklessness or gross negligence. Defaulting employers are rarely prosecuted under existing criminal laws and there are serious doctrinal barriers to finding a corporation guilty of mens rea offences.
The Australian Capital Territory leads the way in Australia with the recent introduction of new criminal offences of industrial manslaughter for corporations and their senior officers. These laws rely on concepts of corporate liability based on organisational responsibility and corporate culture in the model Criminal Code Act 1995 (Cth) , thus avoiding the limitations of the identification doctrine. Other active Australian jurisdictions, whilst initially open to the notion of industrial manslaughter laws, have preferred to make changes to existing OHS laws to deal with the problem of workplace fatalities.
Whilst it has its limitations, and applies only in Australia's smallest jurisdiction, the Australian Capital Territory legislation reflects a commitment to treating workplace deaths with the seriousness they deserve, and making it easier to prosecute corporations whose operations are conducted recklessly or with gross negligence.

Investigating 'indecent, obscene or pornographic' art : lessons from the Bill Henson controversy

This article considers the manner in which police in Australia investigate art that is putatively indecent, obscene or pornographic. It does so by examining the recent Bill Henson controversy and other similar instances where art and the criminal law have collided. This analysis will demonstrate that under Australian law there is little or no chance of a successful criminal prosecution for obscenity, indecency or pornography. Consequently, it is argued that police investigative procedures must take account of this legal reality. To this end a reform proposal is offered: upon receiving a complaint of this nature, police must — as a matter of internal procedure or law — immediately refer the impugned artwork to the Classification Board for a classification decision before they commence a formal investigation.

Re-framing the riot : journalism, creative non-fiction and telling the story of Australia's black history

On 19 November 2004, an Aboriginal man was arrested on Palm Island, off the coast of Townsville in northern Queensland. He was taken to the local watch house on a drunk and disorderly charge. An hour later, he lay dead on a cell floor. His liver, an autopsy showed, had been split in half and his spleen ruptured. But when that autopsy report also found that Mulrunji Doomadgee’s severe injuries were not caused by force, the Palm Island Indigenous community, enraged and grief-stricken, went looking for payback.

The Palm Island “riots” ensured that this Aboriginal death in custody made international news headlines where others barely got a mention, if at all (Hollinsworth, 2005). The ensuing Coronial Inquest and criminal prosecution of the arresting Queensland police officer, Chris Hurley, also were covered consistently by the news media. Senior Sergeant Hurley has, however, so far escaped punishment and the Queensland media’s most recent report of the case was to tell how the Qld Police Union now funds a legal bid to clear his name. Meanwhile, little is heard in the news media of the Doomadgee family, the Palm Island community, or of other deaths in custody occurring steadily through the 18 years since the Royal Commission that was supposed to implement a raft of preventative recommendations.

While the news media’s framing of these issues has most often followed historically predictable and ultimately racist lines, a work of creative non-fiction tells the story with warranted complexity and power. Chloe Hooper’s The Tall Man: Death and Life on Palm Island documents Cameron Doomadgee’s death, the riots, and the ensuing legal farce from the front row. Hooper, in the tradition of Truman Capote, arrived at Palm Island as a white writer from a big city. But by “walking the talk” – being with the Doomadgee family and their community through the hearings and after, Hooper was given extraordinary access to community, history, and significant cultural nuance barely identified by, let alone understood by, non-Indigenous readers.

By focussing on Hooper’s experience with sources and court reporting, compared with some print media coverage, this paper will consider the comparative roles of journalism and creative non-fiction in re-framing the Palm Island “riot”. It will suggest that Hooper’s work subverts some dominant (and racist) news media representations of Australian Indigenous peoples through its use of source relationships in an extended narrative structure.

PSEUDO: uma análise sociocognitiva sobre insinceridades, mentiras e crimes de fraude

The objective of this work is to analyze the phenomenon of lying, highlighting some uses and social consequences. Lies are a ubiquitous phenomenon, and in many cases they even promote social harmony. Furthermore, telling lies is an expression of individuality: it is the expression of relative autonomy that the subject has towards their social environment allowing them to defend their most personal interests. The work also aims to examine the concept of habitus applied to the social production of lies. Thus, the liars produce their lies aiming to obtain certain effects on their audiences. There are certain social cognitive principles that structure the kind of lie that is usually told to the public. Finally, the perpetrators of crimes of fraud and other deceptive practices may suffer a criminal prosecution because the damage they cause affects important social values recognized by the state, and are not restricted to the victim‟s chagrin. In the most common forms of fraud, the crooks make tempting offers to victims exploiting some of their standardized behaviors and reactions. To understand the fragility of the victims to scams is an attempt to understand how a social phenomenon as usual as is the lie can still surprise and cause perplexity

O direito fundamental contra a autoincriminação: a análise a partir de uma teoria do Processo Penal Constitucional

The right against self-incrimination is a fundamental right that works in the criminal prosecution, and therefore deserves a study supported by the general theory of criminal procedure. The right has a vague origin, and despite the various historical accounts only arises when there is a criminal procedure structured that aims to limit the State´s duty-power to punish. The only system of criminal procedure experienced that reconciles with seal self-incrimination is the accusatory model. The inquisitorial model is based on the construction of a truth and obtaining the confession at any cost, and is therefore incompatible with the right in study. The consecration of the right arises with the importance that fundamental rights have come to occupy in the Democratic Constitutional States. In the Brazilian experience before 1988 was only possible to recognize that self-incrimination represented a procedural burden for accused persons. Despite thorough debate in the Constituent Assembly, the right remains consecrated in a textual formula that´s closer to the implementation made by the Supreme Court of the United States, known as "Miranda warnings", than the text of the Fifth Amendment to the U.S. Constitution that established originally the right against self-incrimination with a constitutional status. However, the imprecise text does not prevent the consecration of the principle as a fundamental right in Brazilian law. The right against self-incrimination is a right that should be observed in the Criminal Procedure and relates to several of his canons, such as the the presumption of not guilty, the accusatory model, the distribution of the burden of proof, and especially the right of defense. Because it a fundamental right, the prohibition of self-incrimination deserves a proper study to her constitutional nature. For the definition of protected persons is important to build a material concept of accused, which is different of the formal concept over who is denounced on the prosecution. In the objective area of protection, there are two objects of protection of the norm: the instinct of self-preservation of the subject and the ability to self-determination. Configuring essentially a evidence rule in criminal procedure, the analysis of the case should be based on standards set previously to indicate respect for the right. These standard include the right to information of the accused, the right to counsel and respect the voluntary participation. The study of violations cases, concentrated on the element of voluntariness, starting from the definition of what is or is not a coercion violative of self-determination. The right faces new challenges that deserve attention, especially the fight against terrorism and organized crime that force the development of tools, resources and technologies about proves, methods increasingly invasive and hidden, and allow the use of information not only for criminal prosecution, but also for the establishment of an intelligence strategy in the development of national and public security

A efetivação do direito humano à paz por intermédio da Defensoria Pública: atuação em favor da vítima na presecução penal

Pós-graduação em Direito - FCHS