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Thursday, 14 November 2002
Page: 6342


Senator JACINTA COLLINS (10:46 AM) —I commence this discussion in committee of the Research Involving Embryos Bill 2002 with some general comments on how I hope we will be able to proceed with amendments and, indeed, on the character of at least some of those amendments, particularly the set of amendments that I will be moving. There are certainly some aspects of Senator Bishop's amendments, which we will be commencing with in a moment, that I have worked on with Senator Bishop and facilitated through the Senate Community Affairs Legislation Committee inquiry on this bill, but I hope it will facilitate senators' responses in considering the many matters that will be raised during this committee stage debate to contemplate the general approach that has been taken to amendments with this bill.

Whilst it was clear in the second reading debate that some senators opposed this bill outright, there is in a sense—at least from my perspective and that of some of my colleagues—a view that, if it is the wish of the Senate to allow research on human embryos, it is the Senate's task to ensure that the COAG intention that we have a strict regulatory regime put in place is fulfilled. This bill has been through an interesting process, and I think many senators will be reflecting in the course of this debate on different aspects of that process. But the desire at this stage and in this debate is quite clearly to ensure that we will have a strict regulatory regime in relation to this conduct. That is certainly my intention.

I have a particular perspective on that issue because I come from a state where, to date, there has been an outright ban. At the same time I reflect that, during the deliberations of the Senate Community Affairs Legislation Committee, there were several concerns—and COAG itself reflects this—about how the current guidelines do not strictly regulate this practice in those states that do allow research on human embryos. We discovered during the committee hearings that these current guidelines will in fact underpin several key criteria in this bill. In Victoria, for instance, if the bill is passed as it is currently framed and until some aspects of the bill are put in place—such as the guidelines that are, at this point in time, nowhere near detailed presentation—we will be going from an outright ban to the more liberal or laissez-faire approach that has been applied in some other states.

There are other aspects of this bill on which I have been quite conscious of trying to find ways of highlighting the point that my perspective is not just that of someone who is opposed outright to this conduct. This is a reasonable perspective on some problems with the way the bill is drafted at the moment, because it does not meet the COAG intention of a strict regulatory regime. Some of the amendments moved by Senator Bishop and me, and by some of the other senators, have deliberately gone back to that COAG communique and said: `This is what COAG said but this is not in the bill. We think that we should go back to COAG and implement the full intention of COAG.' Some other approaches have said, `COAG is silent on this issue, but standard legislative practice would deal with this issue in this way.'

For reasons that are either unsatisfactory—as discovered in the Senate committee process—or unexplained, the bill takes a different path. We will seek to address the problems we see in how the bill meets the intention of a strict regulatory regime. I am not aware at this stage of a single amendment that seeks to go to the position of a ban on this behaviour by default. I do not believe that there is a single amendment in this pack that seeks to go back to that position. It is up to each senator to appraise the merit of any issue on a case-by-case basis. Some will obviously be better informed than others because they were able to participate in the committee process. I particularly encourage senators to look at the issue of the current NHMRC guidelines, because there is a position being put at the moment that the current NHMRC guidelines impose good, strong, solid controls.

The reality is that these guidelines are based on voluntary guidelines that have been in place in most states that have not had a ban on research involving human embryos. When, in the Senate committee process, we tried to get to the bottom of what those guidelines were, we went through what was referred to in the bill. It simply refers to earlier guidelines. We went to the earlier guidelines, and they indicate quite a number of things, but there is now an interim note that relates to behaviour that also then refers back to those guidelines. During the committee process the NHMRC actually had to correct their earlier advice to the committee about precisely where the guidelines were at and how they applied—and I thank them for that correction. The position on the current state of play is meshed in the guidelines, and we need to fix that. The bill, as currently framed, does not do that. At the same time, the very concerns that COAG had when they said, `We think it is best to have a good, strong, national framework,' were in part the concerns they had with how that framework was being applied in the states that do not regulate the field.

Let me give the Senate one very brief example of that. We were told by the NHMRC that the guidelines, which have been in place since 1996, were under review; that they had been through the first phase of review; and that it was close to, if not at, the stage of being able to report back on stage 1 of the review. That then would be essentially dealt with on a draft basis and there would be a further stage of consultation beyond that before we could see how some key parameters in the bill are meant to be interpreted. I do not need to lecture senators about the best way to legislate. I think we all appreciate that, if at all possible, it is best to define key parameters of a bill in the bill—or, if indeed we need to take the benefit of expert advice, to allow that advice to be given and then act upon it.

The biggest concern I have is that, when the Senate Community Affairs Legislation Committee sought to understand how the current guidelines were being applied—because they were under review—the answer we got back was, `Sorry, we can't tell you how these guidelines are being applied, because we don't know and there is no framework for us to ascertain that information.' About the only information they could give us was that, since the interim note, they could consult health ethics committees and ask them to tell us how they had applied the guidelines in a couple of cases. The Senate ultimately got some information from Monash about how they applied the guidelines to the imported Singaporean stem cell lines. That is the state of knowledge about how these guidelines, which have been in place since 1996, have been applied. I think that should be of considerable concern to the Senate because those guidelines, we are told, are to underpin some key phrases in the bill.

One of my concerns with the debate to date—and I noticed this in a letter to the editor in the Australian today—is that there is some misunderstanding of the character of this debate. There is a view that parliament, or the Senate, is attacking the ethics of scientists. That is not the point—it is a long way from the point. As a collective group, scientists probably have ethics that are—and I am sure the general public thinks this—far better than politicians. The point is that scientists are humans. I will probably be attacked for my Catholicism on this point, but human nature will mean there will always be some who will seek to exploit a system. Our job in this debate is to try to create a regime, consistent with COAG's intention, that is strong, that is rigid and that will minimise the ability for humans, whether they be scientists or not, to act dishonourably if it is their intention to do so—we will be able to deal with that. That is our task; it is not to sling mud at particular scientists. The only occasions on which I have referred to such issues have been where they have demonstrated past problems that we need to rectify now.

I have been particularly conscious of how we as a Senate take account of the ethical issues—not from a religious background but far more from a secular approach. I have been particularly mindful, as we have been able to glean it—and sometimes it has been very hard to glean it because of the process; and I will probably reflect on that later—of the views expressed by the Australian Health Ethics Committee, within the NHMRC. Where they have proposed concerns and advice on how to rectify those concerns, I have listened carefully. In some cases my amendments have acted on that advice. You can see, in some of the dialogue we have had, that there has been a standard bureaucratic NHMRC response to the AHEC position on some issues. For the Senate's benefit, I will go to an example of one of those.

One of the issues that the Australian Health Ethics Committee raised in relation to this bill, and that my amendments deal with, is that, without further describing the parameters of a significant gain in knowledge and other similarly grey areas of the bill—for example, those open to interpretation such as proper consent—the proposed regulatory regime will not deliver the strict requirements of the COAG decision. This was, at least at one stage, a considered view of the Australian Health Ethics Committee. The response we had from the NHMRC was that AHEC executives should be reassured by the fact that the licensing committee will be relying on AHEC guidelines for the interpretation of these issues. The point is that it should not be the Australian Health Ethics Committee's guidelines that determine how we interpret a bill; it should be the parliament that determines how we interpret a bill. I am quite happy to take the NHMRC's and AHEC's advice on how to deal with interpretational issues, but it should ultimately be the parliament that determines the interpretations or the meanings in legislation.

So some of my amendments are framed to deal with some of those issues from an ethical position based on advice from organisations such as AHEC, which are dealing with the day to day ethical issues around medical science. They are not coming from a particular religious perspective. I am trying to grapple with the notion of how we apply ethics in this type of field. The committee itself did that. There was a dialogue in the committee chair's report on an ethical `third way' position. Unfortunately, there is no theological, ethical or philosophical basis for the dialogue in the chair's report, and I note that Senator McLucas and Senator Stott Despoja sought to give a more considered and broader position on some of that debate.

But my point is that that debate is in its infancy. The only other alternative I can find from an ethical position in dealing with these issues is, in many senses, to go to somewhere like the Australian Health Ethics Committee. I have sought to bring some element of independence when we have contemplated the ethics of some of these issues, quite mindful of the fact that people often try to resort to religious fundamentalism as an excuse not to consider an argument. I have been accused of being a staunch, rigid Catholic for years—something I have never been. These are not the points and I hope people will take these factors into account. (Time expired)