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Thursday, 14 November 2002
Page: 6352


Senator MARK BISHOP (11:46 AM) —I want to readdress this issue because it seems to me that, with the way this debate is being conducted, we are not going to be given any adequate response to legitimate questions that are raised from the floor. The minister outlined at the outset her reasons for not accepting the amendment. They were in two parts. Firstly, she said that not all parts of the communique are necessary to be included in the objects of the act. As a statement of fact that is probably correct, and as a matter of possible legal interpretation later it is arguably correct as well. I accept that reasoning. I then go to her second point about why the government would not accept the amendment limiting the number of human embryos. The minister referred the chamber to clauses 21 and 24, and she made specific reference to subclauses contained in those clauses which say that the NHMRC Licensing Committee must have regard to a number of matters, primary among which is the number of excess ART embryos likely to be necessary to achieve the goals of the activity or project proposed in the application.

As discussed by other speakers, that wording in clause 21(4) and clause 24(1) is deliberately at variance, deliberately at odds, with the decision of the Prime Minister and the various state and territory leaders. The communique that they signed up to was the result of consensus after deliberations between the Commonwealth and the states on that issue. The officials who were involved in those negotiations from a Commonwealth level were from Senator Patterson's own department. They were officials from the NHMRC. They were the body that gave advice on the content of the communique. They were the officials that gave advice on the phrasing and the wording and who either suggested in the communique that the number of embryos to be used be restricted or, alternatively, accommodated and gave expression to the direction of their political masters. Either is acceptable, appropriate and proper, but when the bill went to the drafting stage in the Department of Health and Ageing, via the respective officials, the decision of the COAG participants to have that intent was deliberately omitted from clauses 21 and 24. So the bill as it is currently expressed is completely at variance with the decision of the COAG participants. It was the political decision of the COAG participants in a unanimous fashion to go down a particular path. They outlined their concerns and their solutions and they all signed up to it. Officials of the department of health were given responsibility for drafting to give effect to their political decision.

I can accept that the government may now have a different view and may want to have unrestricted numbers of embryos available for researchers and scientists to have access to. In some sections of this debate, that is a perfectly legitimate and ethical position to hold. If embryos have no intrinsic merit, if they have no value, let hundreds of thousands bloom. It does not matter. If that is the position of the government, the government should come along and say that and explain it. That is their right. That is Senator Patterson's right. That is the Prime Minister's right. I do not quarrel with that. If they want to be able to manufacture an unlimited number of human embryos and dispose of those for research purposes, as approved of by the relevant committees, that is their right. Let them come along and say it.

But there are also in this debate obligations that the government and the opposition have chosen to adopt and to bind upon themselves. This has to do with the nature of the conscience vote. A conscience vote is not simply a mechanical process whereby individual elected members of a parliament, representative of a party, may with authority depart from the vote or the properly decided decision of their own party. It is more than that. A conscience vote means that people have to inform themselves. They have to participate properly in the process. They have to give reasonable explanation for their decision. They have to give explanation for their position. That is the necessary implication of a conscience vote. The Australian Labor Party, the Liberal Party of Australia and the National Party of Australia—and the Democrats, in another context—all freely chose to accept those constraints and restrictions. In my own party, that means I have to go to considerable lengths to explain a position which would perhaps not otherwise have to be explained in debates or which could be rolled through a committee.

It is similar on the government's part. If they have a particular view of the world for the use of embryos—they are elected, they went through the process, they have a majority on the floor of the House—they have an absolute right to have a policy position on embryos, how they are to be used and the numbers to be used, and to put it in this place. I do not quarrel with that. But when they as a political party and their representatives freely choose to restrict their ability by having conscience votes, that means there has to be thorough explanation as to reasons. The question I am asking is why the government does not want to limit the number of embryos used. I do not say they cannot have that position but I do say that, having gone down the path of conscience voting, there is an added or additional obligation to explain that reasoning.

Secondly, the whole position of the Australian Labor Party and the government parties in this debate has in reality been to slavishly follow the advice of the NHMRC. It is the NHMRC, amongst others, who are providing the primary advice to the government and to the opposition. Certainly, other sources of advice are available and can be used. But the one set of advice is going to the two major parties—to both the government and the potential alternative government. There is no variation. If the government does have a different position now, then I think we are entitled to know why it has changed. I go back to the original question that opened up this debate: why is the government wishing to depart from the communique? The communique says:

... the procedure involves a restricted number of embryos ...

The phrase `restricted number of embryos' is deliberate. Obviously, the political masters gave the tick-off to that. But they did not say `an unlimited number of embryos'. They were not issuing a direction that there should be open slather in this debate. It may well be the case that in three, five or seven years time the premiers and Prime Minister of the day might well decide that community sentiment has shifted, public values are different, the greater good is more relevant than it is now and there should be hundreds and hundreds of thousands of surplus embryos manufactured, with the eggs farmed from women—or by whatever process; I will not get emotional. They might decide that there should be hundreds of thousands of embryos available and that there should be no restrictions applied. But that is not the decision. That was not part of the consensus building process on the day that gave rise to the COAG agreement.

The consensus building process that occurred and resulted in the communique that we are referring to resulted in the Commonwealth and the states choosing to apply a number of limitations to this field of activity. They also said that we are going to have a review of the act within three years time, and that is going to be done by an independent committee also to be set up by the NHMRC. So Caesar is going to be judging Caesar on the act that Caesar created. That is fine; it is good work if you can get it. But they have not given the reason as to why we should willy-nilly accept the government legislation of the day.

If this was any other bill and there was no conscience vote then the government would have a perfect right to just stand up and say: `The government's had a meeting. It's the view of the cabinet minister and the caucus that this is the particular path to go down. The legislation gives expression to that policy. We have the numbers. Thank you for your comments, opposition; go away.' But in this case the government and the opposition chose to accept a different set of rules: they chose to accept conscience voting, with the necessary limitations that go with that. But in this debate, the constant in both the government and the opposition has been to rely on the steadfast restrictions that have been established by the states and premiers via the COAG agreement. I can understand that. I do not like it, but I certainly understand the logic and reasoning behind it.

If it is the role of the Commonwealth parliament simply to give expression to agreements reached between the states and the Commonwealth without amendment or interference, then I can understand that process. But the COAG communique was issued in the full knowledge that both the Australian Labor Party and the two opposition parties were going to give to their members of parliament a conscience vote. They knew it was going to their respective organisations and that their respective organisations would, and eventually did, give that conscience vote. So those who signed up to the COAG communique must have had in their minds, must have anticipated that amendments would come from the floor of the Senate or the House or indeed from any other chamber of a state parliament around Australia and that because it was a conscience vote there might be variations that emerged from the strictures that were to be applied by COAG. So again I simply ask the minister why the government has departed from the COAG wording, why it no longer believes it to be appropriate to limit the number of embryos that might be accessed and why it believes it to be appropriate to have an unrestricted number of excess embryos that might be able to be accessed.