Damned if I Do

by Philip Nitschke

  Internationally, YouTube has responded to complaints (who knows by whom or how many) to remove some of Exit’s videos, including Do It Yourself with Betty. This quirky 2009 film featured retired nurse-educator Betty Peters OAM, who describes the steps involved in the home manufacture of an Exit bag. Once posted on YouTube.com, the comic and cleverly tongue-in-cheek Betty became an instant hit, rocketing up the rankings to become the most viewed video about voluntary euthanasia. For two years, nothing happened. Then, without warning, we were contacted by YouTube and told to remove the video, or we would have all of our YouTube films (about fifteen were running at that time) taken down. YouTube accused Exit of breaching its commu­nity standard guidelines. Given the questionable ­material released daily on YouTube, my initial thought was, That’s quite an achievement. How could anyone offend YouTube’s ­standards? I often ­comment at Exit meetings that, given the rubbish on YouTube, it takes some doing to offend them. Since that time someone unknown to me has ripped off the Betty video and reposted it back on YouTube under the title ‘How to make an Exit bag’. While I’d normally complain about having my intellectual property stolen, this is one time I’m happy to let the matter go through to the keeper.1

  Another instance of censorship internationally was PayPal’s decision in mid 2012 to cancel Exit’s account. Overnight I found that our account with PayPal had been frozen and several thousand dollars retained by them for six months. Google, too, has long had issues with sponsored ads mentioning the word ‘euthanasia’, arguing that voluntary euthanasia equates to the incitement of violence and is therefore unacceptable.

  Other surreptitious acts aimed at stifling my words and damaging my reputation include hostile alterations to Wikipedia entries related to me and the tagging of Exit videos by pro-life groups (to enable, for example, unrelated pro-life videos to play immediately after the our films). Such attacks are unrelenting, often coming from expected quarters and occasionally from some quite unexpected places, both within Australia and overseas.

  The banning of The Peaceful Pill Handbook in early 2007 was not the first instance of the Australian Government censoring my voluntary euthanasia work, although it has been the most enduring. This practical guidebook took many years to write and came about primarily because I became unable to keep up with the demand for practical end-of-life information. Every day questions would arrive by letter, email, fax and phone. ‘How can I store my Mexican Nembutal so it will be okay in ten years?’ ‘I’ve got asthma, can I still use an Exit bag with nitrogen?’ And so on. There was no way of answering so many individual questions, so many times over. The logical solution was a mass-market paperback. Even as the project took shape, the politically hostile climate in Australia suggested that a book of this nature would need to be published elsewhere. With its constitutional protection of free speech, the United States was the obvious place to do it. But let me backtrack.

  The first time I felt the heavy hand of censorship being applied to the euthanasia issue was in 2001. This was follow­ing an especially well-attended series of Exit workshops. Wesley J. Smith—one of several Americans who have become key adversaries over the years—made a speaking visit to Australia that year. After an interview in The Australian newspaper, Catholic journalist Dennis Shanahan ran a front-page story claiming that elderly Australians were importing ­custom-made plastic Exit bags from a Canadian activist by the name of Evelyn Martens.2 Dennis, who strongly opposes voluntary euthanasia, accused me of telling people that ­plastic bags could be used for a peaceful hypoxic (low-oxygen) death. He called the process a grim suffocation (which it’s not).3 However, the article had its desired effect. The very next day, 21 August 2001, the Howard government’s Justice and Customs Minister, Chris Ellison, called for an urgent report from Customs to determine whether there were grounds to prevent the importation of plastic bags into Australia. While the ministerial ­directive seemed bizarre, it didn’t stop there. Ellison didn’t only want the physical items, the plastic bags, seized, he also wanted to intercept ‘information’ about them. He wanted to outlaw all information that might explain what they did and why.

  On 5 September 2002, Senator Ellison got his way. On that day, the Customs Act was quietly amended to prohibit the import or export of items associated with ending one’s life and, more importantly, information about these items. Like most Australians I was unaware of this important change. Indeed, it was not until I was leaving the country in early January 2003, and got dragged out of the boarding queue at Tullamarine Airport, that the Minister’s intentions really hit home.

  Usually, as you go through Customs and Immigration, they scan your passport, say a few words and on you go to your waiting flight. But on this occasion, I was not waved on. Instead, I was taken aside to a small room where I found the contents of my suitcases spread out before me.

  ‘We have found items in your luggage that breach the Australian Customs Act.’

  I was perplexed.

  He went on, ‘We have found printed material,’ they said, holding up some pieces of paper. ‘What are these?’ one of them asked, holding up some PVC tubing.

  I said, ‘I’m on my way to a right-to-die conference in San Diego.’

  There was to be no negotiation. While I was eventually allowed through, my ‘COGen’ (a carbon-monoxide generator) and the accompanying instruction sheets were retained by the officer. When I asked where such authority came from, the reply was: ‘It’s a change to the Act. Here’s a copy of it; read it if you like, and see your lawyers.’

  News of the airport incident reached Los Angeles before I did, and the cameras were waiting. The American media seemed perplexed: end-of-life information ­confiscated—how bad must it have been? ‘You wouldn’t have that ­problem here,’ was the common comment. I had two weeks to reflect on the issue, and wondered, What’s happening to my ­country? On my return to Australia, I was again taken out of the queue and my bags searched, and more printed material was removed. Australia was joining the long list of infamous regimes that censor the written word.

  And the censoring of information about voluntary euthanasia is not solely the domain of politicians. When Janine Hosking’s feature documentary Mademoiselle and the Doctor was scheduled to be shown on the Compass program on ABC television in 2005, presenter Geraldine Doogue took it upon herself to personally object. Doogue demanded that a ninety-second segment of the film be removed. This was the scene where Lisette Nigot (Mademoiselle) discusses why she will not use an Exit bag to take her own life. Although the film had been examined and approved by ABC lawyers prior to screening, Doogue issued a statement saying the segment ‘breached our editorial codes and responsibility as a public broadcaster’ and could not, therefore, be screened. When the incident was examined on the ABC’s Media Watch program, Janine Hosking expressed her frustration, adding that the film had become a ‘study guide shown to senior ­secondary school students’ throughout Australia.4

  Although the changes to the Customs Act were cause for concern, I was not overly worried. In the back of my mind was the thought that airport searches for restricted information were never going to be effective. After all, I could just shift the paper version of the information onto USB drive. That would fool the Customs officers. And besides, why bother even taking it with me when I could just as easily load it onto the internet before my departure. Indeed, my smug response when asked about the Customs Act ­amendments was, ‘Fine; if that’s the way the government wants it, we’ll just put the material on the internet.’

  My complacency was, however, to be short lived. I soon heard of another piece of proposed legislation; the Suicide-Related Materials Offences Act. This Act amends the Commonwealth Criminal Code, and makes it a crime to use a ‘carriage service’ (i.e. the internet) to send or receive ­suicide-related material. In other words, it prohibits the use of the internet, email, fax and telephone to discuss the practical aspects of voluntary euthanasia.

  In t
he months prior to this legislation being brought before the federal parliament, a Senate inquiry was held. I put in a submission opposing it, and travelled to Canberra to appear at the public hearings. The Greens and the Democrats opposed the law at both the inquiry level and in parliament, but to no avail. In September 2006, the amendment was passed with the full support of the major parties. And so in Australia it is now against the law to pick up the telephone and talk to your brother or sister, or anyone else for that matter, about the possibility of ending one’s life and how to go about it. Like changes to the Customs Act before it, most Australians remain blissfully unaware of what their ­government has done.

  The publication of The Peaceful Pill Handbook in the US, in September 2006, marked an important turning point in our attempt to insulate Exit’s activities from Australian Government interference. From our new operating base in Michigan, headed by my old friend Neal Nicol, the one-time assistant of Dr Jack Kevorkian, the fledgling US arm of Exit International was born. From day one, the Handbook took off and now sells widely around the world, satisfying the growing needs of elderly people wanting to be informed about their practical end-of-life choices.

  The book was launched by Derek Humphry in Toronto at the World Federation Right to Die Societies annual conference. Derek’s landmark book Final Exit had been published more than a decade earlier and, as I write in the dedication of The Peaceful Pill Handbook, Derek had ‘paved the way’. At the launch, there was no indication of problems associated with publishing a book of this nature. However, it was not long until big problems would emerge. After the conference, we planned to bring some forty copies of the new book back to Australia for Exit members. As Fiona and I were travelling on to Mexico to undertake some Nembutal R&D, Exit’s Gold Coast Coordinator, Elaine Arch-Rowe, was flying straight back to Brisbane. It made sense that she take the copies with her. No one expected there to be an issue. The US-published book had its own ISBN number, was freely selling in bookshops, and was available on Amazon. But Australian Customs had other ideas.

  At Brisbane Airport, Elaine’s suitcase was seized by Customs and all forty books confiscated. Again the ­legislation cited was the Customs Act. Crazy, but not unheard of. (Some eighty years earlier in 1930, Australian Customs had seized copies of Norman Lindsay’s banned booked Redheap, about a fictitious Australian country town. The ban on this book would not be overturned in Australia until 1958, despite ­selling freely around the world in the intervening twenty-eight-year period.) At this point, I thought, All right, let’s be sensible and apply to have the book formally classified. Let’s test its right to be ­distributed in Australia. If that’s successful, we’ll be able to publish without the need to import.

  After going through the paperwork and paying the (significant) fee, we submitted the book to the Office of Film and Literature Classification for formal classification in October 2006. While I wasn’t very hopeful, we were at least playing by the rules. In December, we received a very ­pleasant surprise: ‘Restricted R18’ classification. This meant that anyone over eighteen years could legally buy The Peaceful Pill Handbook, but it would need to be sold in plain paper wrapping, and carry the required R18 classification logo on the front cover. Just like hardcore porn, it would need to be stored under a store’s counter, rather than on open display. We could live with these conditions. We were thrilled. An initial print run of 5000 soon sold out. But the Howard government was not done yet. Within four weeks of being granted the R18 classification, I got a phone call from The Australian’s top sleuth, Dennis Shanahan. I was in the US at the time but I remember the call well. Dennis wanted comment on how I felt about Federal Attorney-General Philip Ruddock’s decision to appeal the judgment of the independent Office of Film and Literature Classification. This was the first I knew that Ruddock was escalating the matter. He was demanding that the decision of the Classification Review Board be reviewed. The co-initiator of the appeal was Right to Life Australia. The government waived Right to Life’s application fees.

  We attended this new hearing in Sydney the ­following month. Although we were lucky to be represented by the wonderful folk at the Public Interest Advocacy Centre, we were not optimistic. Other parties present included the New South Wales Council for Civil Liberties, along with author and activist Frank Moorhouse. Right to Life was represented by its own lawyers, and lawyers from the Attorney-General’s department were there in force. No one was surprised when the review decision went against us: the Handbook’s pre­vious R18 classification was overturned and replaced by an RC rating (refused classification). This meant our book would be banned—the first Australian book to be banned in this ­country in thirty-five years! Interestingly, the Attorney-General’s department gave evidence ‘in camera’, so we never heard what they had to say. Even though our barrister, Simeon Beckett, complained, suggesting a lack of natural ­justice, his laments fell on deaf ears.

  If Philip Ruddock suspected that Exit lacked the funds needed to take the matter further in the Federal Court, he was right. It was too big a risk in that political climate. Instead, as authors and publishers, we were forced to run around, collecting the books from Australian bookshop shelves so they could be destroyed. The Managing Director of the Australian Christian Lobby, Jim Wallace, issued a press release at the time congratulating Right to Life on its ‘win in having Nitschke’s book banned’. While it may have been clear who was driving the government’s agenda, what was more alarming was its willingness to comply.

  In March 2007 we held a public bonfire in front of old Parliament House in Canberra, as part of our Day of Shame activities. We burnt hundreds of copies of the book. It seemed a fitting time for such a barbarous act. The Day of Shame wasn’t a celebration either. It was a two-day event held by Exit to mark the tenth anniversary of the overturning of the ROTI Act by the Kevin Andrews Act. Among the events were a march through Canberra and a dinner at the National Museum that was hosted by Phillip Adams. At Parliament House, Exit members presented politicians from the Greens, Democrats and Labor parties with twenty-five ‘Condolence Books’. These books contained messages from thousands of voluntary euthanasia supporters all over Australia, calling on Parliament to rescind the Andrews Act. The ABC’s Four Corners covered the Day of Shame protest in a program called ‘Final Call’.5 Burning the books was something from the Dark Ages, especially since the Handbook at this stage was selling freely and openly in almost all other western countries.

  The reasons given for banning the book were ­laughable. Chief among them was the allegation that the Handbook ‘instructs in matters of crime’; that is, it tells you how you might synthesise end-of-life drugs. At the hearings, we had pointed out that Vogel’s Textbook of Practical Organic Chemistry does exactly the same thing. Indeed, that is where much of our knowledge had come from. The board’s reply was terse. Our book was different because it explained the process in ‘accessible language‘. They were saying, in effect, that it is all right for a student of organic chemistry to synthesise barbiturates, but it’s not all right to describe it in simple language that everyone else can understand.

  Political interference such as the Minister’s decision to appeal the judgment of the Office of Film and Literature Classification showed once again the power certain pressure groups have to corrupt the legitimate processes of civil ­society. Many of us found Minister Ruddock’s actions disgusting, as he allowed ideology and personal prejudice to influence the due process of an ‘independent’ government body.

  Around the same time, a similar battle opened up over the Tasman. As we planned a New Zealand book launch and workshop tour, the Society for the Protection of Community Standards mobilised, lobbying the New Zealand Government. They urged that our now-banned Australian book be kept from their shores. Here, though, we had a partial victory. The newly appointed Chief Censor of New Zealand, Bill Hastings, resisted. After some months of deliberation, a compromise was reached. If we would remove (or black-out) around thirty
offending paragraphs, the book would be cleared for New Zealand publication. This was unexpected, and even felt like a win. One of my clear memories of that time was meeting Bill in his office, high above Wellington, to receive the decision. Bill was keen for his staff to take a photograph of the two of us to record the event. I was pleased to agree.

  By the beginning of 2007, I felt jaded by the whole Peaceful Pill Handbook censorship affair. It seemed every move we made, the government would make a counter-move, in a David and Goliath battle. It was becoming clear; we needed to use the internet and publish in an overseas jurisdiction—out of reach of the long arm of the persecutory Australian authorities. Via Exit’s US publishing company, the online Peaceful Pill eHandbook was launched in London in October 2008. This was not simply the print-format book taken online. After searching the world for innovative methods of publishing, we settled on a British company, Yudu, who marketed a publishing platform that included videos and audio, as well as text, making the book a multi-media experience. The online format also allows hyperlinks to other websites, so a huge amount of information and related background detail is available. Because republication is at the click of a button, revised and upgraded information can be made available on an ongoing basis, while inaccurate or obsolete content is discarded. As the eHandbook is published in the US, it is not subject to Australian law, although this does make me wonder about the efficacy of Australia’s Suicide-Related Material Offences Act.

  Finally, in 2008, we felt that we were on the front foot and that the battle had been won. But then the government opened up a new front. Within a month of the online eHandbook’s release, the Labor Minister for Communications, Senator Stephen Conroy, announced a proposal for mandatory internet filtering by Internet Service Providers, a so-called ‘clean feed’. While the original idea for such a filter had come from Kim Beazley when he was Labor Opposition Leader, its claimed objectives were the same—to protect the nation’s children from child pornography.