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Tuesday, 15 October 2002
Page: 5142

Senator ABETZ (Special Minister of State) (3:52 PM) —I table revised explanatory memoranda relating to four of the bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—


The provisions for transport safety investigation by the Australian Transport Safety Bureau contained in the Transport Safety Investigation Bill 2002 are important to maintain and improve aviation, marine and rail safety outcomes for the Australian transport industry and for fare-paying passengers and freight customers.

The bill deals with the ATSB Executive Director's modal powers with respect to: mandatory reporting of and the conduct of independent safety investigations into transport safety matters; the making of safety action statements, including safety recommendations; and the publication of safety investigation reports and other safety material. The bill reinforces the ATSB's role as a multi-modal safety body similar to the Canadian Transportation Safety Board and the National Transportation Safety Board (NTSB) in the United States.

The bill replaces and aligns the existing legislative authority for ATSB aviation and marine safety investigations contained in Part 2A of the Air Navigation Act 1920 and in the Navigation (Marine Casualty) Regulations under the Navigation Act 1912. It also provides for Australia's compliance with international aviation and shipping agreements, including Annex 13 to the Chicago Convention and International Maritime Organisation (IMO) resolutions.

Interstate rail safety investigation is also included in recognition of rail's growing importance. In recent years there has been tremendous change in the rail industry in Australia. This has included the change from predominantly state-based vertically integrated public ownership to increasingly commercialised and privatised entities trading across state borders. The Commonwealth has sold the Australian National Railways Commission and its share in the National Rail Corporation and is supporting the growing role of the Australian Rail Track Corporation in respect of national rail infrastructure.

The Government wishes rail reform to progress and to see rail's efficiency improve and its carriage of freight and passengers increase. But amidst rapid change, it is important that there be no diminution of safety. One proven means of maintaining and improving safety is to independently investigate accidents and incidents and publicly report on any necessary safety action. The Government has accepted the view of the House of Representatives Standing Committee on Communications, Transport and Microeconomic Reform that the Commonwealth through the ATSB should have an investigation role on the interstate rail system. This is consistent with the provisions of the 1996 Intergovernmental Agreement on Rail Safety, which encourages Commonwealth, State and Territory governments to enact legislation for rail safety. However, at this time the Government is not proposing to legislate to regulate interstate rail—regulation will continue to be managed at the state level.

There continues to be few truly independent state investigations of serious interstate rail occurrences and a number of state reports have not been made public. Most investigations continue to be conducted through State and Territory regulators and/or the operators involved in the occurrence which, as noted in the NSW Glenbrook inquiry, raises issues of real or perceived conflict-of-interest. NSW reports examined by the Glenbrook Commissioner also fell short of best practice in not getting to the

root causes of why an accident occurred. An independent ATSB role in interstate rail investigation will foster better practice and safety across the industry. The ATSB may still undertake intrastate rail investigations if requested to do so under state legislation.

The key principles of best practice safety investigation reinforced by the bill include operational independence free from external pressures and conflicts of interest along with professionalism, skill and objectivity. Without these, the transport industry may be less confident and willing to accept and act upon the recommendations of an investigation. The public may insist on a much more expensive judicial inquiry.

Central, is ATSB's independence from parties or actions that may have been directly involved in the safety occurrence or that had some influence on the circumstances or consequences of that occurrence. For example, the ATSB must be free to investigate and comment on any significant role of the regulator in a particular occurrence and as such must not itself play a regulatory role in the industry. The Executive Director is also not subject to a direction by the Minister or the Secretary in relation to the exercise of powers under the bill. The Minister can direct that an investigation be initiated.

More complex safety investigations, where a significant safety benefit is judged likely, will be conducted systemically. Looking beyond the proximal causes of an accident or incident to an understanding of underlying factors, such as organisational issues, has the potential to reveal aspects of broader safety issues that may need to be addressed. Professor James Reason's model of hazards and defences has been adopted by key international bodies such as International Civil Aviation Organisation and the International Maritime Organisation as the recommended investigation methodology. According to Reason, most accidents and incidents involve human factors and in 90 per cent of such cases no malice is intended.

Often referred to as the `no-blame' approach, it does not equate with `no responsibility'. It simply means that disciplinary action and criminal or liability assessment are not part of an ATSB safety investigation and should, if necessary, be progressed through separate parallel processes. Witnesses, particularly operational crew who may be in possession of vital safety information, must be free to provide this information to the ATSB without fear of self-incrimination or retribution. The TSI bill provides protection for these individuals to enable safety investigators to better understand causal factors in order that future accidents may be prevented. Placing restrictions on the disclosure and use of such information obtained under the provisions of the bill is also consistent with Australia's international obligations.

For those few transport occurrences where malice may be involved, regulators, police and others may conduct a parallel investigation to ascertain blame or fault so that deliberate wrongdoing is not tolerated. This is an important part of a `just culture'.

While maintaining a separate process, the Government wishes the ATSB under the bill to continue its current practice of liaising with other agencies in order that, to the extent possible, the objectives of all agencies may be met. Cooperation and communication between federal agencies is the only way to work effectively. Lack of cooperation between agencies was a concern in the 1996 TWA 800 accident in the US in which a 747 crashed shortly after takeoff from New York with the loss of 230 lives. In the early stages of that investigation, it was not clear whether the crash was the result of an operational problem or of a criminal act. The NTSB experienced difficulties when the Federal Bureau of Investigation, conducting its own investigation, seized evidence without informing the NTSB. This action denied the NTSB, the technical experts in transport accident investigation, a timely opportunity to view and analyse evidence.

On 11 September 2001 the cause of the aircraft crashes was clearly terrorist activity. The NTSB immediately accepted a secondary role and provided expert assistance to the FBI in any way it was able. Following the American Airlines Airbus 300 accident in New York last November, in which 265 lives were lost, it was initially unclear whether criminal activity was involved. However, a public announcement was made early in the investigation stating that the NTSB would remain the lead agency until evidence of criminality was established. Based on this, the two agencies are currently seeking to conclude a Memorandum of Understanding covering future situations and this is also the model that the ATSB will follow with Australian police agencies.

In relation to liaison with other agencies such as regulatory authorities or occupational health and safety agencies, ATSB would maintain a primary investigation role but seek to cooperate where possible as covered in clause 10 of the bill. In a case of terrorism, the ATSB would not seek to investigate and the Australian Federal Police would therefore have clear priority. The bill acknowledges the legitimate activities of state coroners and other agencies in relation to investigation. The ATSB will seek to minimise unnecessary duplication of investigation activities through the revision and development of Memoranda of Understanding and related protocols with coroners and other agencies, for example, in relation to physical evidence.

While much of the bill provides for the protection of information gathered during the course of an investigation, other provisions provide for its controlled disclosure for safety purposes. There is provision for a `directly involved party' process whereby a copy of a draft investigation report may be provided to persons or organisations with relevant knowledge. This process allows those persons to view the draft report and make submissions to ensure that it is factually correct. In some cases this is required under Annex 13. Severe penalties have been introduced for the unapproved disclosure of draft reports. This is because such disclosure, as occurred with the ATSB's Whyalla Airlines report, could be seriously misleading, unfairly tarnish reputations and could impede the crucial future free flow of safety information to the ATSB.

The bill provides under clause 21 that the Executive Director has discretionary power to investigate unless the Minister directs that a particular investigation be initiated. In practice, a determination about whether to investigate and to what extent, will be influenced primarily by the potential safety value that may result from investigating a particular accident or incident in light of resources available for investigation. While final investigation reports must be published, if an investigation is terminated before it is finalised the reasons for doing so must be published.

The bill contains specific provisions for the treatment of On-Board Recording or OBR information, covering cockpit voice recorders and like devices installed purely for safety purposes. OBR information may only be disclosed under limited circumstances. In recognition of the potentially vital evidence that it may contain, OBR information is generally admissible in criminal and coronial proceedings. However, consistent with existing aviation arrangements and international agreements, there can be no OBR use in proceedings against crew members.

The Government believes that genuine respect and cooperation between the ATSB and state and territory coroners' courts is extremely important given their overlapping roles and joint mission and should be enhanced through memoranda of understanding after the passage of the TSI bill. Coroners provide the Bureau with often crucial autopsy and pathology evidence. The bill provides coroners with greater certainty in relation to the disclosure by the ATSB of OBR information and physical evidence for the purposes of coronial inquiries. Final investigation reports may be admitted as evidence in coronial inquiries and, at the request of the coroner, ATSB investigators will be made available to provide expert opinion or factual information arising from their involvement in an investigation.

It is important that investigators have sufficient power to act quickly to access, preserve and collect evidence at accident sites and in transport vehicles that are referred to in the bill as `Special premises'. Delays could mean the loss of critical evidence because it has perished or has been removed, damaged or changed in some way. Those provisions are generally consistent with current legislation in the marine and aviation transport modes and reflect similar legislation in other countries. Sensitive information gathered in the course of a safety investigation conducted under the provisions of the bill is referred to as `Restricted Information'. Restricted Information cannot be disclosed for the purposes of a criminal investigation except for an offence against the bill. These provisions reinforce the notion that safety investigation processes and those relating to criminal prosecutions should be separate.

Further guidance on Immediate and Routine Reportable Matters is to be provided in the regulations. Responsible persons for the purposes of mandatory reporting will normally include only those with an operational connection to the transport vehicle such as the crew, the owner or operator of the transport vehicle, or persons performing vehicle control duties such as Air Traffic Control. In marine and rail modes it may be more efficient and desirable in some instances to report through regulatory bodies.

ATSB recommendations arising from the identification of safety issues will usually be couched in broad terms that address the desired safety outcome but do not prescribe in detail the means to achieve it. This is generally better left to regulators and other organisations with the technical knowledge and consultative processes to make appropriate risk-based and cost-effective safety changes within their modes.

The Commonwealth Parliament and Royal Commissions are not bound by information restriction provisions within the bill. Although it would be expected that inquiries would seek to maintain protection for sensitive ATSB safety information. Current arrangements under the Freedom of Information Act 1982 do not provide certainty for the protection of ATSB records relating to investigations which, if made available, may adversely affect current or future investigations. This situation is to be rectified by amending the Freedom of Information Act at the same time as the TSI Act comes into force to exempt OBR and Restricted Information for FoI purposes.

The introduction of the TSI Act will serve to maintain and improve the already excellent safety outcomes of the Australian aviation, marine and rail transport industries. The Act will have a safety benefit for both industry and fare-paying passengers by providing the means for the ATSB to conduct best practice safety investigations in all three modes and thereby help to prevent future accidents. Consequential amendments are made in a short separate Amendment bill.



This bill is consequential to the Transport Safety Investigation Bill 2002 (the main bill) and repeals the modal-specific provisions in parts of the Air Navigation Act 1920 and the Navigation Act 1912 that enable the Australian Transport Safety Bureau (the ATSB) to conduct aviation and marine safety investigations. This bill also provides for transitional arrangements to allow aviation investigations completed or in progress when the main bill commences and when Part 2A Air Navigation Act 1920 is repealed, to continue to be subject to Part 2A of that Act. Similar transitional arrangements are proposed to be made for marine investigations through regulations to repeal the Navigation (Marine Casualty) Regulations 1990.

This bill makes cooperation with the Executive Director of the ATSB part of the object of the Air Services Act 1995, the Civil Aviation Act 1988 and the Australian Maritime Safety Authority Act 1990. In the former two Acts this replaces a similar reference to cooperate with the former Bureau of Air Safety Investigation.

There is also a consequential amendment to the Freedom of Information Act 1982. Safety information protected under Subclauses 53(1), 53(2), 60(1), 60(2) and 60(3) of the main bill is to be exempt from the Freedom of Information Act 1982 in accordance with Section 38 of that Act. The protection of this safety information is necessary in order to comply with Australia's international obligations such as under paragraph 5.12 of Annex 13 of the Convention on International Civil Aviation. Confidentiality of information is vital to ensure free flow of information to the ATSB. It is particularly important where information has been compelled despite witness self-incrimination and in respect of on-board recording information such as cockpit voice recordings.

This bill is an important adjunct to the Transport Safety Investigation Bill.



The Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Bill 2002 is designed to strengthen Australia's counter-terrorism capabilities by enhancing ASIO's investigative powers.

The horrific and tragic events of September 11 marked a fundamental shift in the international security environment.

That day showed us that no country is safe from the devastation that can be inflicted by terrorism.

Since that day, the Government has consistently taken a responsible approach to strengthening Australia's counter-terrorist capabilities.

The Government is committed to ensuring that Australia is well placed to respond to the new security environment in terms of our operational capabilities, infrastructure and legislative framework.

On the legislative front, the Government has enacted a package of counter-terrorism legislation which is designed to ensure that Australia is in the best possible position to protect Australians against the evils of terrorism.

This bill is part of that legislative package.

In developing this legislation, the Government has been conscious of the need to protect our community from the threat of terrorism without unfairly or unnecessarily encroaching on the individual rights and liberties that are fundamental to our democratic system.

The bill has been subject to substantial scrutiny.

It was considered by both the Parliamentary Joint Committee on ASIO, ASIS and the DSD and the Senate Legal and Constitutional Legislation Committee.

The Parliamentary Joint Committee made 15 recommendations on the bill which reflected a number of community concerns.

The Committee's careful consideration was valuable in assisting the Government to refine the bill.

The Government has accepted the majority of the Parliamentary Joint Committee's recommendations either in whole or in part.

Where a recommendation was not accepted in full, the Government has developed an alternative designed to implement the Committee's intention in a manner that will be operationally appropriate.

The bill empowers ASIO to seek a warrant which allows the detention and questioning of persons who may have information that may assist in preventing terrorist attacks or in prosecuting those who have committed terrorism offences.

In order to prevent potential perpetrators of terrorism offences from carrying out their crimes we must enhance the powers of ASIO to gather relevant intelligence in relation to terrorism offences.

While ASIO is empowered to seek search warrants, computer access warrants, tracking device warrants, telecommunications interception warrants and to inspect postal articles, ASIO is not currently empowered to obtain a warrant to question a person.

The bill establishes a warrant process to allow ASIO to question a person who may have important information relating to a terrorist attack.

A person subject to a warrant may be detained by police for up to 48 hours to allow ASIO to question them.

The Government recognises the need to maintain the balance between the security of the community and individual rights and to avoid the potential for abuse.

These warrants are a measure of last resort.

It is anticipated that they will be used rarely and only in extreme circumstances.

In order for ASIO to detain and question a person, the Director-General of Security will have to obtain the consent of the Attorney-General before seeking a warrant from an `issuing authority'.

The Attorney-General must be satisfied that there are reasonable grounds for believing that issuing the warrant will substantially assist the collection of intelligence that is important in relation to a terrorism offence and that relying on other methods of collecting that intelligence would be ineffective.

If the warrant being sought requires a person to be taken into custody immediately and detained, the Attorney-General must be satisfied of a number of conditions.

Importantly, the Attorney-General must be satisfied that the person may alert another person involved in a terrorism offence of the investigation, or the person may fail to appear before the prescribed authority, or the person may alter or destroy a record or thing that they may be requested to produce.

Without this provision, terrorists could be warned before they are caught, planned acts of terrorism known to ASIO could be rescheduled rather than prevented, and valuable evidence could be destroyed.

If the warrant concerns a person between the ages of 14 and 18, the Attorney-General must also be satisfied that it is likely that the person will commit, is committing or has committed a terrorism offence.

An `issuing authority' will either be a federal magistrate, a federal judge or another authority set out in regulations.

In the extraordinary situation of a warrant resulting in a person being detained for more than 96 consecutive hours, only a federal judge can be the issuing authority.

An `issuing authority' may only issue a warrant if it has been requested in accordance with the proper procedure and it is satisfied that there are reasonable grounds for believing that the warrant will substantially assist the collection of intelligence that is important to a terrorism offence.

A warrant issued under the bill will require a person to appear before a `prescribed authority' to provide information or produce documents or things.

A prescribed authority will be either a Deputy President, senior member or member of the Administrative Appeals Tribunal who has legal qualifications.

The warrant may request that a person appear at a particular time or order the person to be taken into custody to be brought before the prescribed authority.

If a person is to be taken into custody immediately and detained, this will be the responsibility of the police, normally the Australian Federal Police.

In some situations, a person with highly relevant information may refuse to volunteer it.

For example, a terrorist sympathiser who may know of a planned bombing of a busy building but who will not actually take part in the bombing may decline to help authorities thwart the attack.

In order for the new powers to be effective, it is necessary that penalties apply in relation to the failure to answer questions accurately or produce documents or other requested things.

The maximum penalty for the offences will be five years imprisonment.

A person will not be able to decline to give information or produce a document or thing on the ground that to do so would tend to incriminate them.

However, evidence obtained as a result of the questioning will only be available for use in offences related to non-compliance with a warrant issued under the bill.

The bill contains a number of safeguards to ensure that ASIO's powers are exercised reasonably and that a person is treated fairly whilst in custody or detention.

Questioning of a person under a warrant will always take place before a prescribed authority.

When a person first appears before the prescribed authority for questioning under the warrant, the prescribed authority must explain what the warrant authorises ASIO to do, the period the warrant is to be in force and the possibility of facing criminal sanctions if the person does not cooperate.

It must also advise the person that they have the right to seek a remedy from a federal court in relation to the warrant or their treatment under the warrant and this information must be provided when the person first appears before the prescribed authority and at least once in every 24 hour period subsequently.

A prescribed authority may also give directions under the warrant regarding the detention of the person, including permitting the person to contact another person.

The directions must be consistent with the warrant and any changes to the warrant approved by the Minister in writing.

The bill includes a special regime for questioning young people. Warrants cannot be issued in relation to a person who is under the age of 14.

A warrant may be issued in relation to young people between the ages of 14 and 18 only if the Attorney-General is satisfied on reasonable grounds that the person will commit, is committing or has committed a terrorism offence.

All persons detained under a warrant will have the right to contact an `approved lawyer'.

All warrants authorising the taking of a person into custody and detaining them must provide that the person may access an approved lawyer.

An `approved lawyer' will be a legal practitioner of at least 5 years experience who has been approved by the Attorney-General after undergoing a security clearance.

In exceptional circumstances, access to an approved lawyer may be delayed for up to 48 hours.

In order to delay access to an approved lawyer, the Attorney-General must be satisfied that it is likely that a terrorism offence is being or is about to be committed and may have serious consequences.

However, after 48 hours, all persons will have the absolute right to contact an approved lawyer.

Access to a lawyer cannot be delayed for young people.

Young people questioned under a warrant will have the right to contact a security cleared lawyer and to have a parent, guardian or other representative present at all times.

A person subject to a warrant has a right to complain to the Inspector-General of Intelligence and Security (IGIS) in relation to ASIO, and to the Commonwealth Ombudsman in relation to the Australian Federal Police.

The IGIS will be empowered to advise the prescribed authority of any concerns he or she may have about the legality or propriety of ASIO's actions. The prescribed authority may direct that the questioning be suspended until it is satisfied that the IGIS's concerns have been addressed.

Further safeguards include the provision of an interpreter for the person being questioned if necessary.

The person must also be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment, by anyone exercising authority under the warrant or implementing or enforcing a direction of the prescribed authority.

In addition, the Director-General must ensure that video recordings are made of a person's appearance before a prescribed authority for questioning and any matter or thing that the prescribed authority directs to be recorded.

There are significant penalties for officers who do not follow the stringent processes and safeguards in the bill.

The bill includes important measures to ensure transparency and accountability in relation to the exercise of powers under a warrant.

ASIO's unclassified annual report must include a statement of the total number of requests made to the Attorney-General and to issuing authorities for warrants during the year and the actual number of warrants issued during the year.

The annual report must also include the number of warrants issued during the year that require a person to appear before a prescribed authority and the number of warrants issued that authorised a person to be detained.

The Parliamentary Joint Committee on ASIO, the Australian Secret Intelligence Service and the Defence Signals Directorate will be asked to review the new provisions and provide a report on their operation.

The Government is mindful of the need for strong laws to protect our national security while at the same time preserving individual rights.

The bill strikes an appropriate balance.

This bill was not created on a whim but in response to identified needs.

While there is no specific threat to Australia, our profile as a terrorist target has risen and we remain on a heightened security alert.

Our interests abroad also face a higher level of terrorist threat, as evidenced by the plan to attack the Australian High Commission in Singapore.

Recently, we have also seen the Australian Embassy in East Timor closed as a result of a terrorist threat.

Terrorism is not like ordinary crime.

The way terrorist networks are organised and the destruction that acts of terrorism can cause, distinguish it from other types of crime.

The Howard Government takes very seriously its responsibility to do everything it can to protect Australians and Australian interests against the threat of terrorism.

This bill is an important element of the Government's counter-terrorism legislative package and delivers on the Howard Government's commitment to ensure that we are in the best possible position to protect Australians from the threat of terrorism.

It is a measured response to the new security environment.

When the bill is enacted, we will have appropriate laws to protect the community from terrorism while ensuring that the rights of individuals are not unnecessarily impeded.



Schedule 1 to the bill contains measures to ensure that neither land developers, nor government agencies that give approval for land development, incur a GST liability when capital works or other things are transferred or supplied by a developer to a government agency, or another party, in return for the provision of the development approval.

The Schedule contains a measure to allow a transitional special input tax credit to rental car businesses that held rental cars on 1 July 2000 and disposed of them before 1 July 2002. These businesses were adversely impacted by the transition to the GST compared to other businesses. This special credit will partially compensate rental car businesses for these adverse effects. The amount of the special credit will be equal to the GST payable on the sale of cars that were held on 1 July 2000 by rental car businesses.

The Schedule also contains measures to allow companies to transfer tax losses, net capital losses and excess foreign tax credits under the income tax legislation without attracting GST. The income tax legislation allows companies to transfer these income tax amounts to members of the same group in certain circumstances. Without this amendment these transfers could be subject to GST.

Schedule 2 amends the income tax law affecting general insurance companies to ensure that the provision for outstanding claims is worked out on a present value basis and that gross premium income is included in assessable income in the year it is received or receivable and net premium income that relates to risk exposure in subsequent years is appropriately deferred.

The Schedule also ensures that the provision for outstanding claims of self-insurers in respect of workers' compensation liabilities is taxed consistently with the provision for outstanding claims of general insurance companies.

The amendments confirm a long standing view of the law and protect a substantial amount of revenue that would otherwise be at risk as a result of an adverse Court decision.

Schedule 3 broadens the eligibility requirements for accessing the intercorporate dividend rebate for unfranked dividends paid between members of the same wholly owned group.

The proposed amendment extends the eligibility requirements. At the moment, there is a `whole of income year' rule. This will be amended to include cases where the company paying the dividend and the company receiving it are part of the same wholly owned group at all times during the period of 12 months ending on the day on which the dividend was paid.

Full details of the measures in this bill are contained in the presented explanatory memorandum.

I commend the bill.



The provisions in the Research Involving Embryos Bill 2002 originally formed part of the bill introduced into the House of Representatives as the Research Involving Embryos and Prohibition of Human Cloning Bill 2002. That bill gave effect to decisions taken by the Council of Australian Governments in April 2002 to introduce nationally consistent legislation to ban human cloning and other unacceptable practices and to permit research using excess assisted reproductive technology (ART) embryos under a strict regulatory scheme.

On 29 August 2002, the House of Representatives voted to divide the bill into two separate pieces of legislation. The Prohibition of Human Cloning Bill 2002, which prohibits human cloning and other unacceptable practices associated with reproductive technology, was introduced into the Senate on 18 September 2002. The Research Involving Embryos Bill 2002 establishes a regulatory scheme that allows research to be conducted on excess ART embryos that would otherwise have been destroyed.

Nothing has been lost by implementing the agreement struck at the Council of Australian Governments (COAG) through two pieces of legislation rather than one. The two bills, in their divided forms, represent the delivery of the COAG agreement. Like the Prime Minister, I will not be supporting amendments to the Research Involving Embryos Bill 2002 and I will take the opportunity to put my personal view later in the debate. The bill establishes a comprehensive regulatory system for the use of excess ART embryos and it is important that the opportunity is not lost to give effect to the COAG decision by putting in place a nationally consistent regulatory scheme.

The bill establishes a national licensing body within the National Health and Medical Research Council, to be known as the NHMRC Embryo Research Licensing Committee. The Committee will be comprised of experts in a range of fields including ethics, ART, research and law. The Committee will also include consumer representatives with expertise in consumer health issues as they relate to disability and disease, and ART services.

I believe that both the proposed membership of the Committee and the appointment process, involving calls for nominations from a range of organisations and consultation with States and Territories on all appointments, will ensure that the Committee is a balanced one with appropriate expertise to enable proper decision making.

The Embryo Research Licensing Committee will be tasked with scrutinising projects proposing to use excess ART embryos. The Committee will ensure that the embryos in question were donated with the fully informed consent of the couple for whom they were created and that the outcomes of the project will be likely to provide a significant advance in scientific knowledge or technologies that could not be reasonably achieved by other means. The Committee will also consider the number of excess ART embryos likely to be necessary to achieve the goals of the project, relevant NHMRC guidelines, and the Human Research Ethics Committee assessment of the application.

Further, it will be a condition of any licence issued by the Committee in relation to work that may damage or destroy the embryo that the embryo must have been created before 5 April 2002. COAG set this restriction to address concerns that the COAG agreement would lead to deliberate creation of embryos for research purposes.

However, in reaching agreement to include the “5 April 2002” deadline in the legislation, COAG was conscious that this limitation might restrict the number of excess ART embryos that are available for research. COAG therefore requested the National Health and Medical Research Council to report to COAG by April 2003 on the adequacy of supply and distribution for research of excess ART embryos, which would otherwise have been destroyed.

Also in response to concerns about the effect of the “5 April 2002” deadline on research, a subcommittee of the Australian Health Ethics Committee, the Committee to Revise the Ethical Guidelines on Assisted Reproductive Technology (CREGART) will report to COAG by April next year on protocols to preclude the creation of embryos specifically for research.

Given the public interest in this issue the proposed new regulatory system also includes detailed provisions relating to public reporting. Not only will the NHMRC Licensing Committee be required to report annually on its operations but it will also be required to maintain a comprehensive, publicly available database of all licences issued including details about the number of excess ART embryos actually used in relation to each project. This will provide maximum transparency and accountability within the system, and also inform government's future decision making on these issues.

During debate in the House of Representatives and in the media there has been considerable comment about adult stem cell therapies and their relative worth in comparison to embryonic stem cell research. The use of stem cells in research is outside the scope of the legislation and therefore will not require a licence under this legislation. Valuable research on adult and embryonic stem cells will be allowed to continue in accordance with NHMRC guidelines.

The bill does not regulate current ART clinical practice. ART practices constituting the ART treatment of a particular woman, carried out with her consent and using embryos that are intended to be implanted in that woman, do not require a licence under the legislation. It does, however, apply an even regulatory hand to all types of excess ART embryos, all types of use and all persons. This means that a licence will be required for some ART practices, such as training of ART clinicians and quality assurance testing of culture media. These practices involve the use of excess ART embryos and may result in the destruction of the embryos. The NHMRC Licensing Committee may consider streamlining processes to reduce any administrative burden on ART clinics in relation to licensing of established and routine quality assurance and training activities.

The bill preserves the integrity of the original bill before it was split by providing for the NHMRC to conduct an independent review of the operation of the Research Involving Embryos Act to be undertaken by the same persons who undertake the review of the Prohibition of Human Cloning Act review. An independent review of the Acts will be undertaken by person/s chosen with the agreement of each State and Territory. The review will consider and report on the scope and operation of the legislation taking into account developments in technology in relation to assisted reproductive technology, developments in medical and scientific research and the potential therapeutic applications of such research, and community standards. Parliament will consider any amendments recommended as a result of the review process.

The establishment of a national regulatory regime in no way heralds an increasingly liberal attitude to research involving human embryos. Nor does it represent the first step on the slippery slope towards human cloning. What it does mean, is that for the first time in Australia, there will be national oversight of uses of excess ART embryos. The NHMRC Licensing Committee will demand that stringent criteria be met before a licence may be issued and that conditions of licence are complied with. The NHMRC Licensing Committee will also be appointing inspectors to ensure that this bill is strictly observed.

The Research Involving Embryos Bill 2002 strikes an appropriate balance between ethical considerations, whilst allowing Australia to remain open to the possibilities of finding new cures and therapies for diseases and disabilities which affect the lives of many Australians.

Debate (on motion by Senator Ludwig) adjourned.

Ordered that the Transport Safety Investigation Bill 2002 and the Transport Safety Investigation (Consequential Amendments) Bill 2002 be listed on the Notice Paper as one order of the day and the remaining bills be listed as separate orders of the day.