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Wednesday, 13 November 2002
Page: 6175


Senator PATTERSON (Minister for Health and Ageing) (9:47 AM) — Some senators have asked why the bill requires that the prosecution establish that a person has intentionally done something before an offence can be established. Last year the Commonwealth introduced a Criminal Code which attempts to codify criminal laws. The code makes it clear that in relation to conduct that gives rise to an offence the prosecution must establish that the person intended to engage in the conduct that gave rise to the offence. Thus, even if the Prohibition of Human Cloning Bill 2002 had not included the word `intentionally' in relation to the conduct leading to prohibited offences, this would have been implied by the Criminal Code.

It was also thought prudent to include the word `intentionally' in the offences because the Commonwealth Criminal Code does not apply in the states and territories. Even if the Commonwealth did not include the word `intentionally' in the offences, the states and territories would have had to have included it in their legislation because they do not have a code that outlines the default provision. If this had occurred, Commonwealth, state and territory legislation would have looked different even though it would have had the same effect. This was not considered desirable in the interests of promoting perceptions of national consistency.

While a notion of recklessness could have been introduced into some of the offences in order to describe the circumstance of the offence rather than the conduct of the offence, this was not considered to be appropriate, because of the very high penalties that attach to the offences. In these circumstances, it is important that the prosecution bear the evidential burden in terms of establishing the guilt of a defendant.

It is very straightforward to say that it is an offence to `intentionally create a human embryo clone'. To recast the offence as `intending to create a human embryo knowing or reckless as to whether the embryo is a human embryo clone' would be to complicate the offence. It is also somewhat unnecessary in this example because the technology and procedure required to clone a person mean that it is very unlikely that a person would commit the offence without having the requisite intention. Knowledge and recklessness have been included in clause 22 on the basis that it is easier to separate the different elements. It is one thing to engage in the conduct of importing an embryo and it is another as to whether the person knew the embryo was prohibited. The same cannot be said in relation to all of the other offences.