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Thursday, 14 November 2002
Page: 6349


Senator JACINTA COLLINS (11:25 AM) —With respect to Senator Patterson on this issue, it perhaps highlights the comments I was making of a very general nature, and I will now go to another example. If we trace the regulation of this field to its origins, we go back to the 1996 guidelines. We see those guidelines saying that an institutional ethics committee should only approve such projects in exceptional circumstances. We have not sought to adopt that language, because that is not consistent with what COAG came forward with. At 6.4, the COAG communique says:

· there is a likelihood of significant advance in knowledge or improvement in technologies for treatment as a result of the proposed procedure ...

That is what has been adopted straight into clause 21 of the bill. The next one is:

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

If we go back to clause 21 of the bill, we see that the restricted part has been removed. All that the licensing body is to take into account is the number. There is no intent to restrict the number, and that is the issue. When I first looked at this issue I went back to the 1996 guidelines and I said, `Fine, that's what those guidelines say should be in place.' When I found that discrepancy, I went to the COAG communique for guidance. If we go to the COAG communique, we see in appendix 1 of the communique that the first point that should be taken on a case-by-case basis is:

· ... a likelihood of significant advance in knowledge or improvement in technologies for treatment as a result of the proposed procedure ...

And the second point is:

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

I have to question why, when we are adopting these provisions from the guidelines into the bill at clause 21, we have moved from a `restricted number' to just take account of `the number'. So the next stage of the reasoning was to go back to the objects and see if the objects give us some guidance on what the intention should be for the licensing committee. And there is the problem, because the objects do not reflect the COAG decision either that the licensing body should take into account restricting the number. That is what the communique says as well. So then you look at the bill as it is currently phrased and it just says that the licensing body take account of the number—but there is no guidance on for what purpose. Is it so that we can record it or so that it can be available for public information? The point was that the guidelines, which have been in place since 1996, have chartered bodies to look at how they restrict the number. And that is what has been removed—quite inconsistently with the COAG communique.

I listened to Senator Patterson's response on this and the similarity between that and my own advice from the NHMRC and, indeed, the committee's advice from the NHMRC on this issue was interesting. We are told that taking into account the number really means restricting the number, and it does not. There is nothing that charters the licensing committee to have an objective to restrict, and that is what COAG told us was its intent. The bill does not include it, and for all we know future guidelines may not include it. We do not know.

Let us take a different mental attitude to this particular amendment, and that is: what harm does it generate? For the life of me I cannot see what harm it generates to put in the objects of the bill the intention of COAG which was, in part, to restrict the number. Indeed, Senator Stott Despoja and Senator Bishop will probably recall that on about the second day of hearings before the committee we heard about how the British system seeks to restrict the number of embryos. The way the British system seeks to give effect to that objective is indeed to have a stem cell bank. The problem with our bill, which we are told will generate a strict regulatory regime and restrict the number of embryos, is that there is nothing in the bill that either indicates that intent or gives it effect—nothing at all. I ask senators, in considering this amendment, to go back to the COAG communique and read what it says. It says that approval is given on a case-by-case basis and that the `procedure involves a restricted number of embryos'.

There is perhaps another way to deal with this amendment, and that is for the committee to wait until we get to clause 21, where the drafters of this process have removed this provision, and reinsert it so that 21(4)(a) says, `In deciding whether to issue the licence, the NHMRC Licensing Committee must have regard to the following: (a) restricting the number.' That is one other alternative. We are told by the NHMRC that this is not necessary. I ask the minister, why is it not necessary? When COAG tells us that their intention is to restrict the number of embryos, and it is in the guidelines currently and slabs of those current guidelines have been used in clause 21 in this bill, but for some strange reason the `restrict' word has not survived the process, I ask why. I ask the minister if she can seek advice on what in the consultation process led to that, in my mind vital, word being removed. What rationale was there for that vital word, unlike most others in that part of the guidelines, being removed?

The reason I ask this question is that I have been told in relation to another of my amendments—the one which raises concerns about commas that have been put in in other aspects of the NHMRC guidelines which, in my view, separate the meaning regarding the acquiring of a significant level of knowledge and that that knowledge should be related to medical treatment purposes which comes from the history of the guidelines—by some who participated in the drafting process that at one stage the drafters had removed the words `for treatment'. For some reason those `for treatment' words made it back in again, but it made me highly sceptical about why the commas were put in. I understand that there is fairly general support for the notion that we go back to the precise wording in relation to my amendment dealing with those commas in clause 21. I would encourage senators to think of the precise wording on this matter.

I should foreshadow that, if senators cannot support this way of trying to give effect to COAG's intent because the drafters thought the other way was not appropriate for reasons yet unknown, perhaps we should go back to that rigid wording as exists in the current guidelines and insert that into clause 21. I would rather simplify the process and proceed the way that has been suggested with this amendment. All it simply does is indicate in the bill what the guiding intent from COAG was so that the licensing committee can have that in mind when it looks at the number—for what purpose it is looking at the number, that is, to restrict—but that should be a second level approach to it. I am not sure the minister heard my question earlier, but I am interested in whether the NHMRC can advise the chamber as to why the word `restrict' was removed from the wording that has been incorporated into clause 21. Everything else from that section of the guidelines is reflected there. We refer to the number, but we do not carry over that other objective, which is in the guidelines, which is to restrict the number.