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Tuesday, 12 November 2002
Page: 6158


Senator ABETZ (Special Minister of State) (10:51 PM) —I seek leave to move amendments (2) to (13) and (16) on sheet 2695.


The TEMPORARY CHAIRMAN (Senator Chapman)—Can I clarify whether Senator Harradine wishes to move his amendments prior to Senator Abetz moving his amendments or is he happy to allow Senator Abetz to move his amendments?


Senator Harradine —I am happy to defer to the minister.


Senator Patterson —On a point of order: this is actually a very difficult bill and I did not hear what Senator Abetz said because lots of people were wandering around. Could Senator Abetz repeat what he said before you decide, Mr Temporary Chairman, whether leave is granted?


The TEMPORARY CHAIRMAN —I can answer that. Senator Abetz was simply seeking leave to move his amendments (2) to (13) and (16) together.

Leave granted.


Senator ABETZ —I move amendments (2) to (13) and (16) on sheet 2695:

(2) Clause 9, page 7 (lines 4 to 7), omit the clause, substitute:

9 Offence—creating a human embryo clone

(1) A person commits an offence if the person creates a human embryo clone.

Maximum penalty: Imprisonment for 15 years.

(2) Strict liability applies to subsection (1).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) Clause 10, page 7 (lines 8 to 13), omit the clause, substitute:

10 Offence—placing a human embryo clone in the human body or the body of an animal

(1) A person commits an offence if the person places a human embryo clone in the body of a human or the body of an animal.

Maximum penalty: Imprisonment for 15 years.

(2) Strict liability applies to subsection (1).

Note: For strict liability, see section 6.1 of the Criminal Code.

(4) Clause 11, page 7 (lines 14 to 20), omit the clause, substitute:

11 Offence—importing or exporting a human embryo clone

(1) A person commits an offence if the person imports a human embryo clone into Australia.

Maximum penalty: Imprisonment for 15 years.

(2) A person commits an offence if the person exports a human embryo clone from Australia.

Maximum penalty: Imprisonment for 15 years.

(3) Strict liability applies to subsections (1) and (2).

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) Clause 13, page 8 (lines 3 to 9), omit the clause, substitute:

13 Offence—creating a human embryo other than by fertilisation, or developing such an embryo

(1) A person commits an offence if the person creates a human embryo by a process other than the fertilisation of a human egg by human sperm, or develops a human embryo so created.

Maximum penalty: Imprisonment for 10 years.

(2) Strict liability applies to subsection (1).

Note: For strict liability, see section 6.1 of the Criminal Code.

(6) Clause 14, page 8 (lines 10 to 19), omit the clause, substitute:

14 Offence—creating a human embryo for a purpose other than achieving pregnancy in a particular woman

(1) A person commits an offence if the person creates a human embryo outside the body of a woman, unless the person's intention in creating the embryo is to attempt to achieve pregnancy in a particular woman.

Maximum penalty: Imprisonment for 10 years.

(2) Despite subsection 13.3(3) of the Criminal Code, a defendant does not bear an evidential burden in relation to any matter in subsection (1) of this section.

(3) Strict liability applies to subsection (1).

Note: For strict liability, see section 6.1 of the Criminal Code.

(7) Clause 15, page 8 (lines 20 to 25), omit the clause, substitute:

15 Offence—creating or developing a human embryo containing genetic material provided by more than 2 persons

(1) A person commits an offence if the person creates or develops a human embryo containing genetic material provided by more than 2 persons.

Maximum penalty: Imprisonment for 10 years.

(2) Strict liability applies to subsection (1).

Note: For strict liability, see section 6.1 of the Criminal Code.

(8) Clause 16, page 9 (lines 1 to 7), omit the clause, substitute:

16 Offence—developing a human embryo outside the body of a woman for more than 14 days

(1) A person commits an offence if the person develops a human embryo outside the body of a woman for a period of more than 14 days, excluding any period when development is suspended.

Maximum penalty: Imprisonment for 10 years.

(2) Strict liability applies to subsection (1).

Note: For strict liability, see section 6.1 of the Criminal Code.

(9) Clause 17, page 9 (lines 8 to 14), omit the clause, substitute:

17 Offence—using precursor cells from a human embryo or a human fetus to create a human embryo, or developing such an embryo

(1) A person commits an offence if the person uses precursor cells taken from a human embryo or a human fetus, intending to create a human embryo, or develops an embryo so created.

Maximum penalty: Imprisonment for 10 years.

(2) Strict liability applies to subsection (1).

Note: For strict liability, see section 6.1 of the Criminal Code.

(10) Clause 18, page 9 (lines 15 to 26), omit the clause, substitute:

18 Offence—heritable alterations to genome

(1) A person commits an offence if the person alters the genome of a human cell in such a way that the alteration is heritable by descendants of the human whose cell was altered.

Maximum penalty: Imprisonment for 10 years.

(2) Strict liability applies to subsection (1).

Note: For strict liability, see section 6.1 of the Criminal Code.

(3) In this section:

human cell includes a human embryonal cell, a human fetal cell, human sperm or a human egg.

(11) Clause 20, page 10 (lines 7 to 13), omit the clause, substitute:

20 Offence—creating a chimeric or hybrid embryo

(1) A person commits an offence if the person creates a chimeric embryo.

Maximum penalty: Imprisonment for 10 years.

(2) A person commits an offence if the person creates a hybrid embryo.

Maximum penalty: Imprisonment for 10 years.

(3) Strict liability applies to subsections (1) and (2).

Note: For strict liability, see section 6.1 of the Criminal Code.

(12) Clause 21, page 10 (lines 14 to 24), omit the clause, substitute:

21 Offence—placing of an embryo

(1) A person commits an offence if the person places a human embryo in an animal.

Maximum penalty: Imprisonment for 10 years.

(2) A person commits an offence if the person places a human embryo in the body of a human, other than in a woman's reproductive tract.

Maximum penalty: Imprisonment for 10 years.

(3) A person commits an offence if the person places an animal embryo in the body of a human for any period of gestation.

Maximum penalty: Imprisonment for 10 years.

(4) Strict liability applies to subsections (1), (2) and (3).

Note: For strict liability, see section 6.1 of the Criminal Code.

(13) Clause 22, page 11 (line 1) to page 12 (line 4), omit the clause, substitute:

22 Offence—importing, exporting or placing a prohibited embryo

(1) A person commits an offence if the person imports a prohibited embryo into Australia.

Maximum penalty: Imprisonment for 10 years.

(2) A person commits an offence if the person exports a prohibited embryo from Australia.

Maximum penalty: Imprisonment for 10 years.

(3) A person commits an offence if the person places a prohibited embryo in the body of a woman.

Maximum penalty: Imprisonment for 10 years.

(4) Strict liability applies to subsections (1), (2), (3) and (4).

Note: For strict liability, see section 6.1 of the Criminal Code.

(5) In this section:

prohibited embryo means:

(a) a human embryo created by a process other than the fertilisation of a human egg by human sperm; or

(b) a human embryo created outside the body of a woman, unless the intention of the person who created the embryo was to attempt to achieve pregnancy in a particular woman; or

(c) a human embryo that contains genetic material provided by more than 2 persons; or

(d) a human embryo that has been developing outside the body of a woman for a period of more than 14 days, excluding any period when development is suspended; or

(e) a human embryo created using precursor cells taken from a human embryo or a human fetus; or

(f) a human embryo that contains a human cell (within the meaning of section 18) whose genome has been altered in such a way that the alteration is heritable by human descendants of the human whose cell was altered; or

(g) a viable human embryo that was removed from the body of a woman; or

(h) a chimeric embryo or a hybrid embryo.

(16) Clause 23, page 12 (lines 5 to 30), omit the clause, substitute:

23 Offence—commercial trading in human eggs, human sperm or human embryos

(1) A person commits an offence if the person gives or offers valuable consideration to another person for the supply of a human egg, human sperm or a human embryo.

Maximum penalty: Imprisonment for 10 years.

(2) A person commits an offence if the person receives, or offers to receive, valuable consideration from another person for the supply of a human egg, human sperm or a human embryo.

Maximum penalty: Imprisonment for 10 years.

(3) Strict liability applies to subsections (1) and (2).

Note: For strict liability, see section 6.1 of the Criminal Code.

(4) In this section:

reasonable expenses:

(a) in relation to the supply of a human egg or human sperm—includes, but is not limited to, expenses relating to the collection, storage or transport of the egg or sperm; and

(b) in relation to the supply of a human embryo:

(i) does not include any expenses incurred by a person before the time when the embryo became an excess ART embryo; and

(ii) includes, but is not limited to, expenses relating to the storage or transport of the embryo.

valuable consideration, in relation to the supply of a human egg, human sperm or a human embryo by a person, includes any inducement, discount or priority in the provision of a service to the person, but does not include the payment of reasonable expenses incurred by the person in connection with the supply.

I think that all senators in this chamber are united in their opposition to human cloning. I understand that the Prohibition of Human Cloning Bill 2002 went through the other place without dissent on the basis that the practice of human cloning is unacceptable, to use the terminology of the legislation. In the drafting of the legislation a statutory requirement has been placed in relation to all the offences that are referred to in my amendments. That is that they be done `intentionally'. In other words, the prosecution will be required to prove intention.

Honourable senators interjecting


The TEMPORARY CHAIRMAN —Order! I am sorry to interrupt, but could honourable senators please not conduct conversations in the chamber while Senator Abetz is moving his amendments.


Senator ABETZ —The amendments that I am proposing start with clause 9 of the bill, `Offence—creating a human embryo clone'. The legislation says:

A person commits an offence if the person intentionally creates a human embryo clone.

It defies logic and commonsense to suggest that you could somehow accidentally, or unintentionally, create a human embryo clone. I am suggesting that, in relation to clause 9 and all the others in the amendments that I am moving, the word `intentionally' be removed and that they be made strict liability offences.

With a strict liability offence, the defence of mistake is still allowable. It is not absolute liability. It just means strict liability. Without seeking to demean anybody, I simply ask, if the mad professor who made these human embryo clones exercised his right to remain silent, how on earth could the prosecution ever prove that he did it intentionally? They would be confronted with a human embryo clone. They might get some circumstantial evidence before them that suggests that he put it together and created that clone, but how on earth could they prove that he intentionally did it? When we are dealing with a human being or a human embryo—I happen to believe that it is a human life, but I think that we are all agreed that it is a form of human life—we are dealing with something pretty serious. If we have agreed as a Senate that human cloning is unacceptable, then these offences, as are outlined, should become strict liability, because, quite frankly, I cannot ever see a prosecution getting up under this regime if the mad professor, to use that term, exercises his right to remain silent.

I asked, `How could you accidentally, or unintentionally, create a human embryo clone?' It really does defy logic. Clause 10 states:

A person commits an offence if the person intentionally places a human embryo clone in the body of a human or the body of an animal.

Are you somehow able to do that accidentally or unintentionally? It really does defy logic and commonsense. By their very nature, these acts must be intentional. But when you put on the prosecution the onus of proving the intention beyond reasonable doubt, it is virtually impossible for the prosecution to be able to prove these offences. It becomes even more ludicrous with some of the other offences, such as clause 13:

A person commits an offence if the person intentionally creates a human embryo by a process other than the fertilisation of a human egg by human sperm ...

Excuse me? Would that just happen by an accident in the laboratory somewhere? Of course it would not happen.

It is important for us as a Senate to consider how the horrendous issue of human cloning ought to be considered. If we do believe that human cloning is something that should be banned, then these offences should be made as strict liability offences. I am moving 13 amendments altogether in this raft of amendments, and it will have the same impact in relation to all of them. I point out that I have not sought to delete the word `intending' in relation to clause 19. It pains me to leave that clause as it stands, but I fully accept that we do not, at this stage, want to enter into a debate about the rights or wrongs of abortion. Therefore, I think that it is important to leave the words `intending to collect a viable human embryo' within clause 19. There has not just been a blanket removal of the words `intending' or `intentionally' from the bill. Each clause has been gone through separately and consideration has been given as to where it would be reasonable to make these offences strict liability.

Progress reported.