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Tuesday, 12 November 2002
Page: 6141

Senator PATTERSON (Minister for Health and Ageing) (8:55 PM) — The Prohibition of Human Cloning Bill 2002 creates a series of offences in relation to human embryo clones and other practices relating to the application of reproductive technology. The legislation provides significant penalties, which I believe are entirely appropriate to the seriousness of the offences. These penalties are also consistent with those in the Gene Technology Act 2000 and are comparable with international precedents such as those contained in the UK legislation.

I know from conversations I have had that people have different views. I know there is widespread support for the bill in principle. However, I have also heard some senators raise concerns about some aspects of the legislation and others talk about changes they would like to see made to the bill. I hope to address these concerns and anticipate the debate on amendments—if there are amendments moved—during the consideration of the bill in detail.

Both the Prohibition of Human Cloning Bill 2002 and the Research Involving Embryos Bill 2002 contain provisions requiring that each bill will be reviewed within three years of receiving royal assent. I have heard concerns raised in this chamber about the fact that the minister rather than the NHMRC is required to appoint the person to undertake the review of the Prohibition of Human Cloning Bill. However, it should be noted that when the bills were split it was intended that the review of both bills be undertaken contemporaneously and that the NHMRC be involved in administering the appointment of the independent person or persons to undertake both reviews.

I would like to say from the outset that my intention is to oppose amendments to the Prohibition of Human Cloning Bill. When the original bill was split in the lower house the Prime Minister stated that the legislation in its split form faithfully reflected the implementation of the COAG decisions and that he would be opposing any further changes to this legislation. I too consider that the legislation should not only reflect the COAG decision but also be appropriately drafted to achieve the object of addressing concerns about scientific developments in relation to human reproduction and the utilisation of human embryos.

Various senators have raised concerns about the evidential burden that must be satisfied by the prosecution in order to establish that an offence has been committed under the Prohibition of Human Cloning Bill. Questions have also been raised about matters such as whether people who assist in the commission of a crime can be prosecuted for an offence and whether corporations can share in responsibility for offences committed within their organisations. These are very valid questions, the answers to which are found not in the Prohibition of Human Cloning Bill but in the Criminal Code. As of 2001, the Commonwealth Criminal Code took effect. The Criminal Code sets out a range of provisions that are implied in all the Commonwealth legislation that describes criminal offences. In the past, such matters would have been included expressly in bills put forward before parliament but now they appear in the consolidated code. For example, it is no longer necessary to include in Commonwealth legislation a provision establishing an offence for aiding and abetting, because clause 11.2 of the Criminal Code says that if a person aids, abets, counsels, procures or commissions an offence then the person is to be treated as if they had committed the offence themselves. In other words, if a person aids or abets the creation of a human embryo clone they are subject to prosecution as if they had actually created the human embryo clone.

Another issue that is addressed in the code is that of the evidential burden that must be satisfied in order for an offence to be established. 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 the prohibited offences, this would have been implied by the Criminal Code. It was thought prudent to include the word `intentionally' in the offences because the Commonwealth Criminal Code does not apply in states and territories. These are just a few of the matters addressed in the Criminal Code and implied in the Prohibition of Human Cloning Bill. I would be happy to expand further on this during the debate in the committee stage of the bill.

Moving to other matters that have been raised, I note that Senator Stott Despoja and Senator McLucas have proposed that the matter of a stem cell bank be included as a term of reference for the review of the legislation. I have also heard Senator Nettle's proposal that the Australian Health Ethics Committee be requested to review the stem cell bank issue and report to parliament within six months. I think the issues around a stem cell bank are sufficiently complicated to warrant detailed, comprehensive and independent investigation before any decision is made. I understand that an initial analysis of the issues will be included in the NHMRC's report to COAG on the adequacy of supply and the availability for research of excess ART embryos. There is also a range of other administrative avenues through which such an issue can be considered by governments—for example, through the Australian Health Ministers Conference or the Council of Australian Governments. I do not consider that it is necessary for an amendment to the legislation to be moved in order to effect such a review.

I have also seen the amendments put forward by Senator Harradine, and I am sure that these, like the other amendments outlined above, will give rise to significant discussion over the next stage of the debate. However, as I said previously, like the Prime Minister it is my intention to oppose amendments to this bill. Why I intend to oppose amendments to this bill is as follows. I have listened to the concerns raised in the chamber—in particular, I have heard several senators raise concerns regarding the export of human embryos.

Honourable senators interjecting

Senator PATTERSON —This is actually quite important for senators who are supporting the bill but are concerned about the exportation of embryos. I know that people like Senator Watson expressed concern about this. It is quite difficult because many senators are listening to this in their rooms. I draw their attention to the fact that the government's intention is to move quickly to amend the Customs (Prohibited Exports) Regulations 1958 to provide for a 12-month prohibition on the export of human embryos. During this period the government will review whether it is practical to allow the export of human embryos in a manner that is consistent with the Research Involving Embryos Bill 2002. I would hope that this would allay senators' concerns.

I can also say with regard to the above proposal that the Prime Minister has advised me that he will allow government members to exercise their consciences when considering this proposal—that is, the amendment to the Customs (Prohibited Exports) Regulations 1958. I can also advise that the Prime Minister has indicated to me that he supports this proposal, and I will also be supporting the proposal when it is brought forward.

In summary, I believe that the legislation before this chamber represents a significant step forward. For the first time, we have the potential to provide a nationally consistent, strong and comprehensive approach to difficult ethical issues surrounding human cloning and certain other practices deemed to be unacceptable. I look forward to further debate in the committee stage, and I commend the bill to the Senate.

Question agreed to.

Bill read a second time.