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Thursday, 5 December 2002
Page: 7251


Senator BARNETT (11:13 AM) —I move amendment (7) on sheet 2694:

Clause 42, page 29 (lines 4 to 7), omit the clause, substitute:

42 Operation of State laws

Nothing in this Act is to be taken to affect the operation of any law of a State that prohibits absolutely the use of excess ART embryos, or that imposes additional conditions, whether consistent or inconsistent with this Act, on the use of such embryos.

Amendment (7) concerns the override of state laws in clause 42. I have prepared some notes on this because I think this is a very crucial amendment. This is about the right of each state parliament in the federation of states in Australia to make its own decisions. It should be remembered that each of the states and territories, to implement a watertight legislative regime in any event, will be required to pass its own law, which will be specific to both the Prohibition of Human Cloning Bill 2002 and the Research Involving Embryos Bill 2002. They will be required to pass that law anyway, and yet here we have a provision in this law that effectively overrides state legislation.

The impact of section 42 is to unilaterally override existing state bans on destructive embryo research in Victoria, South Australia and Western Australia. This is wrong for three reasons. Firstly, the bill is meant to represent a national approach on embryo research that respects our federation. The Senate is a states house. We should only pass this bill if it is agreed to by the parliaments and not just the premiers—those who are involved in COAG—of all states. The parliamentarians in each state represent their state. We are representing our states and, indeed, our nation in this Senate.

Secondly, federal parliamentarians have enjoyed a conscience vote on this issue. If this is a matter of conscience, state parliamentarians should equally be entitled to a conscience vote rather than have their views rendered irrelevant by being overridden by a Commonwealth law. The consciences of federal parliamentarians are not more equal than those of our state counterparts—we are not more equal than them. They are entitled to and are in fact responsible for their own decisions. They are accountable for their own actions. That is an important principle that we need to hold on to.

Thirdly, the constitutional validity of the bill is doubtful without state endorsement. There is no specific head of power that gives the Commonwealth comprehensive powers to legislate on research. COAG has no constitutional status. As the National Health and Medical Research Council told the Senate:

The advice we have received from the Australian Government Solicitor has been that using a range of constitutional powers, as we do in clause 4, provides considerable coverage in relation to the legislation, but not complete coverage. Hence, there is a need for corresponding state and territory laws to confer powers on the NHMRC licensing committee to enable full constitutional coverage of all activities and persons in Australia.

The Commonwealth powers are extensive but not comprehensive. There is no constitutional status to COAG, as I have said, or to the regulation of unincorporated entities by the Commonwealth. We are primarily relying on the Corporations Law in this parliament. The external affairs power has been referred to, but there is no specific treaty, and it is clearly extensive but not comprehensive. That means that, unless these state laws are enacted, we have a mishmash; we have a system which could be avoided—legislation which can be got around—particularly by unincorporated associations. Let us make it clear that there is a legal loophole. Even if we pass this law today, you have a legal loophole; you have a constitutional loophole. It is on the record that the states and territories are required to pass their own laws anyway. So why, in clause 42 of this bill, would we want to be overriding those state laws? It is a very persuasive argument, I believe. Without complementary state legislation this legislation will be subject to challenge. Researchers will not be able to rely on the regulatory regime the bill will establish due to the risk of challenge. That is a major area of concern. We are talking about individuals here, and they will not be able to rely on that legislation.

If the premiers are as concerned about biotechnology investment and medical breakthroughs as they have expressed then the incentive for those premiers and states to legislate is very strong indeed—of course it is. This amendment ensures that state parliaments remain accountable to and consistent with the Constitution and our federation of states. I draw the chamber's attention to page 2, clause 1.1 of the NHMRC's Ethical guidelines on assisted reproductive technology, 1996. These are draft guidelines which are under review. This is what we have at the moment. These should have already been updated and set out in law and the review should have been completed. Nevertheless, clause 1.1 says:

In those States where there is specific legislation regulating assisted reproductive technology (ART), compliance with provisions of the statutes must be observed. Where both the State law and the guidelines apply, the State law prevails.

So we already have the guidelines, which say that the state laws must be preserved. We are actually arguing against ourselves. If this amendment is not supported, we are arguing against ourselves. These guidelines make it very clear that, with regard to specific regulations regulating ART, `compliance with provisions of the statutes must be observed' in those states. That is a persuasive argument. The federal government and federal legislation rely on these guidelines. The guidelines say they must observe state law. And here we go in clause 42 wanting to override these state laws. I feel this is an inappropriate way to go.

In particular, I feel for the states of Victoria, South Australia and Western Australia, who already have strict regulatory regimes in place. Those states effectively ban destructive research of human embryos. Why shouldn't they be allowed to have those laws in place? We are setting up a federal regime, and we can do that. Why can't they have a stricter regime than we are recommending? Why isn't that appropriate? I would like to hear the reasons why, because I do not think there are any. I hope that this amendment is supported, because the amendment allows those states to do what is appropriate, fair and right for them. As I say, they are accountable for their actions; they are responsible for their decisions in those states. We are parliamentarians for the federal parliament; they are parliamentarians for the state parliaments. I think this is a very important issue. I encourage all senators to search deep down in their consciences and to think carefully about this amendment and this particular provision, because, if this bill goes through without this amendment, I think you are undercutting big time the rights, roles and responsibilities of each state and territory in this nation.