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Thursday, 14 November 2002
Page: 6345

Senator MARK BISHOP (11:01 AM) —I move amendment (1) on sheet 2689 revised:

(1) Clause 3, page 2 (lines 12 to 17), omit the clause, substitute:

3 Object of Act

The object of this Act is to address concerns, including ethical concerns, about scientific developments in relation to human reproduction and the utilisation of human embryos by:

(a) regulating activities that involve the use of certain human embryos created by assisted reproductive technology; and

(b) limiting the number of human embryos used in those regulated activities to the minimum necessary to achieve the purposes of those activities.

This amendment is to the objects clause of the Research Involving Embryos Bill 2002, one of the more critical clauses if the bill should ever be the subject of interpretation in the courts and the meaning is unclear as to its intent from a plain and literal reading of a particular clause of the bill. One of the established ways that a court determines the purpose or intent of a bill is to have regard to the objects clause of the bill. So, for that and other reasons, the objects clause is important. One of the deficiencies I have identified in the objects clause of the bill is that it does not include any requirement or objective to minimise or restrict the number of human embryos that will be destroyed or the various processes that are authorised or permitted under the bill.

When I first became aware of that situation it struck me as odd because the process by which the bill was put together, the guidelines for the drafting of the bill, if you like, derived from the work carried out under the authority of the Commonwealth and various state governments, which was then publicly released in the COAG communique. If you refer to the many comments that the Minister for Health and Ageing, who is at the table, has made in this debate, and indeed to the fundamental and guiding position of the Australian Labor Party in determining its position in this debate, they are based on what is in the COAG communique. If something was in the COAG communique, then, prima facie, high regard was had for it and it was to be included. If something was deliberately omitted from the COAG communique, it was the position of the government and the position of the Australian Labor Party that the matter would not be considered because it was not part of the COAG process or the COAG communique.

That is a narrow framework, and I will address the restrictions that that necessarily implies in other forums within the Australian Labor Party in due course, because by definition such a restrictive approach is completely and fundamentally at odds with parliamentarians being able to have a conscience vote on any issue. A narrow framework that has been agreed to in advance and that cannot be departed from necessarily prevents proper consideration on a merit basis of the issue at hand, apart from the mechanical process of exercising the right to vote. A conscience vote means more than just the vote itself; it means a conscientious approach, an impartial approach and a deliberative approach to the issue at hand. This whole process has been perverted and is not being allowed to occur, because both of the major parties are having high regard for the COAG communique and the deliberations of COAG. Having said that, I refer to the introductory paragraph to appendix 1 in the COAG communique where it says:

Governments agree to put in place a strict regulatory regime under nationally-consistent legislation and administered by the National Health and Medical Research Council (NHMRC) as the national regulatory and licensing body.

... ... ...

... and that the approval is given on a case by case basis that ...

... ... ...

the procedure involves a restricted number of embryos and a separate account of the use of each embryo is provided to the ethics committee and the national licensing body;

So the officials, the various state premiers and the Prime Minister deliberately and specifically included in their communique the reference to a minimal number of embryos being used. Again I stress that it says, `The procedure involves a restricted number of embryos.' For reasons that are not yet clear, and perhaps the minister will explain, the government has determined that it is not necessary for that reference in the COAG communique to be included in the bill. It is that omission, that deficiency, that gives rise to this amendment. The COAG decision, which this legislation is meant to reflect, stated that in the regulatory regime for the licensing of research involving the destruction of human embryos, a licence would only be issued on a case by case basis provided that `the procedure involves a restricted number of embryos'. As I say, that decision has not been included in the bill and the amendment that is before the chair now for discussion seeks to add those words.

This issue of why a reference that was determined by COAG was omitted presumably will be responded to by the minister in due course. But it is worth putting on the record that throughout the Senate Community Affairs Legislation Committee hearing, throughout the evidence on public record of all of the witnesses and throughout all of the submissions—1,800 in total—that were received by the committee, from memory, there was not even one submission that advocated no limit on the number of embryos that were to be created and used in this process—not one. From memory, every person and every organisation, no matter where they stood throughout the spectrum, said that there should be a limit. Certainly there were variations in the number to be used and there were variations between organisations as to the purposes for which they were to be used, but no-one said that there should be open slather, that we should have an unlimited number of embryos, that we should have unlimited access and that we should be allowed to go into unrestricted manufacturing of embryos. They all accepted a limit.

Indeed, in the deliberations in this chamber—if one reads the speeches made during the second reading debate—it has been the repeated observation of those who argued mildly or strongly in favour of this bill that the manufacture of embryos is an unfortunate process that has to be engaged in and that those embryos that are surplus are going to be used for research purposes, medicinal purposes or in order to give hope in the future to those suffering from debilitating or life destroying diseases. But, in essence, they rationalised or argued for the acceptance of use of those embryos on the basis that there was hope or potential that in the future great good would come from the use of such objects. I do not recall any individual advocating that the embryos that were surplus from ART procedures were just a bunch of tissues—no different in nature from cutting off a piece of hair or a fingernail—and hence could be used for any purpose that the person so desired. All persons advocated restricting the number.

This amendment does not seek to say that you cannot have access. It does not seek to limit it to a specific number. But it does seek to reflect the agreement determined by the various state premiers and the Prime Minister under advice from the various officials who put the communique together and presumably engaged in the deliberations. It presumes to reflect the overwhelming view of all persons who addressed the issue in their speeches during the second reading debate and it seeks to reflect overwhelmingly, if not totally, the evidence given to the Senate committee.

My concern is that those indicators of purpose and intent that all of those who have engaged in the process have publicly stated on the record—and indeed many people have indicated privately in discussions—are not being reflected in the bill; that is, the bill does not reflect the stated desire of those who authorised its drafting—the signatories to the COAG agreement. That is the reasoning behind this amendment. It seeks to put on the record that, as far as public policy is concerned, it is a desirable objective that the number of human embryos that are going to be destroyed for the purposes authorised under the act are to be limited. If that is not there, one asks: what is the alternative? The alternative is, by implication or because of express omission—and express omission and rejection of a critical part of the COAG communique—that public policy does support the use of an unlimited number of embryos. Those are my reasons for moving the amendment.