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Wednesday, 25 September 2002
Page: 7172

Mr PYNE (10:30 AM) —Following on from the member for Mitchell's contribution, I have looked at clause 56 again. I would like to ask the Attorney-General a question about the position that he has put to the House, if he would be so kind as to speak again. Clause 56 says:

This Act is not intended to exclude the operation of any law of a State, to the extent that the law of the State is capable of operating concurrently with this Act.

I ask the Attorney-General: if a state had a piece of legislation that was more restrictive than the Commonwealth legislation, why could the legislation not operate concurrently with the act? If the state legislation were more liberal than the Commonwealth legislation, certainly it would then allow things that the Commonwealth disallowed, and as a consequence you would say it could not operate concurrently because it was allowing things that were not allowed and were, in fact, an offence under the Commonwealth legislation. But if the state wanted to add offences and more restrictions to the Commonwealth legislation, then I cannot see why that legislation could not operate concurrently. It may not be consistent with the Commonwealth legislation but it certainly could operate concurrently.

I am confused between the wording used in clause 56 which requires concurrence and the wording used in the explanatory memorandum to clause 56, which says:

One of the intended effects of this clause is that if a State has existing legislation that, for example, bans the use of excess ART embryos, such a law would not be capable of operating concurrently with the Act and as such it is intended that the Act override the State law to the extent that it is inconsistent.

The explanatory memorandum does not go on to explain why that principle would pertain—why a more restrictive regime could not operate concurrently. I believe that the COAG agreement is accurately reflected in clause 56 but not in the explanatory memorandum and that the explanatory memorandum goes much further than COAG expected. I know that is the view of many of the people involved in the process and I would like the Attorney-General, if he would not mind, to enlighten me on the legal principles involved that would not allow a more restrictive regime to operate concurrently.