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Wednesday, 4 December 2002
Page: 7200


Senator BARNETT (6:51 PM) —I move amendment (R3) on sheet 2757:

(R3) Clause 11, Page 10 (lines 16 to 25), omit subclause (2), substitute:

(2) In this section:

ART program means an assisted reproductive technology program carried out in accordance with regulations as prescribed from time to time.

Amendment (R3) is extremely important. As far as I am concerned, it is consistent with amendments (R2) and (R4). It relates to clause 11 of the bill and is the subject of very close consideration by the Senate Scrutiny of Bills Committee, of which I am a member. The Scrutiny of Bills Committee issued its 15th report of 2002 this afternoon. I draw it to the attention of senators and, specifically with respect to clause 11, I draw the attention of senators to the following:

In relation to the Minister's advice about the provision itself, the Committee confirms its earlier comments that the subclause provides for the continuing exercise of legislative power without parliamentary scrutiny. The incorporation of material into Commonwealth legislation, whether such material is government or non-government, is not exceptional. However, it is cause for comment when it is incorporated as in force from time to time with no parliamentary oversight.

It goes on:

In this case proper parliamentary scrutiny of the incorporated material could be effected by the current formula in paragraph (b) of the subclause, which is that a code or document must be prescribed by regulations. Regulations are subject to parliamentary scrutiny and possible disallowance and this would in the usual course ensure suitable oversight. However, provision for the incorporation of material as in force from time to time dilutes this safeguard.

The Committee notes that paragraph (a) of the subclause does not even include this protection, but instead provides for the RTAC—

that is, the Reproductive Technology Advisory Council—

to issue codes of practice directly from time to time.

The result is that under paragraphs (a) and (b) of subclause 11(2) the constituents of an offence provision punishable by up to five years' imprisonment may be determined by non-government bodies without parliamentary oversight or even knowledge.

The Committee continues to draw the Senators' attention to the provision...

I think that sums it up. I really urge senators to think this one through as carefully as they possibly can. The Scrutiny of Bills Committee has provided a good report. It is on the public record. We are saying that, if the bill goes through as it is and the amendment is not successful, then you are establishing a regime that sets up a non-government body to establish a code which can change from time to time without any parliamentary oversight and which can set up an offence of up to five years imprisonment. That, with respect, is bad law. It is bad for the Senate and for parliament in any legislature to set up a regime where you can have a non-government body providing such advice and consequences.

I urge all senators to support this amendment which will have the effect of basically omitting subclause (2) and saying that the ART program means an assisted reproductive technology program carried out in accordance with regulations as prescribed from time to time. It is quite simple. It is set out in the regulations, which are a disallowable instrument in the Senate. They can be prescribed from time to time. It is simply a matter of drawing out of the code what is there now and writing the regulations, and you can set them up in a matter of days or weeks or months, however quickly you would like to do it and it is done—bingo, finished. And we have parliamentary scrutiny pursuant to clause 11. So I urge the senators to support this and I certainly urge the minister to do so as well, and I will leave it there for now.