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Wednesday, 13 November 2002
Page: 6180

Senator ABETZ (Special Minister of State) (10:11 AM) —by leave—I move:

(14) Heading to clause 22, page 11 (line 1), omit the heading, substitute:

22 Offence—importing, exporting, placing or possessing a prohibited embryo

(15) Clause 22, page 11 (after line 13), after subclause (3), insert:

(3A) A person must not possess or have custody or control of a prohibited embryo.

Maximum penalty: Imprisonment for 10 years.

(3B) Strict liability applies to subsection (3A).

Note: For strict liability, see section 6.1 of the Criminal Code.

I urge honourable senators—especially those who, I trust and hope, are listening in to this debate in their rooms—that very serious consideration be given to these two amendments, which are designed to make possession of a prohibited embryo an offence, as these are very important amendments. For any regime to work, you have to try to cover as many loopholes as possible. It seemed to me, reading the Prohibition of Human Cloning Bill 2002, that there was a glaring loophole in not making possession an offence. Once again, we are told that we are against human cloning and other unacceptable practices. We even legislate what prohibited embryos are—it is in the act. We allegedly all agreed that they should be prohibited and that they are the result of unacceptable practices. But it seems that being in possession of them somehow should not be treated as an offence.

We have already had the preliminary argument put to us that, because creating the embryo or importing or exporting the prohibited embryos was already an offence, that of itself was enough not to require possession of them to be criminalised. Why do we have possession of narcotics as a separate crime? There is a crime against making them, there is a crime against importing and exporting them, and there is also a crime against possession. Why do we have that in the law? I can similarly ask, as I did before in relation to the excise laws: why is the mere possession without permission or having custody or control of tobacco seed, tobacco plant or tobacco leaf an offence?

Our legislation is absolutely littered with offences of possession. Under section 223B(1) of the Customs Act, we are told that any person who, without any reasonable excuse, has in his possession, on board any ship or aircraft, any prohibited imports to which this section applies shall be guilty of an offence—another example of possession. I trust I do not have to go through any more to make the point that possession in relation to prohibited items has been criminalised and outlawed in a whole range of areas.

If we are concerned about state legislation, can I indicate that mere possession is an offence in relation to drug laws, in the Drug Misuse and Trafficking Act 1985 of New South Wales, the Misuse of Drugs Act of the Northern Territory and the Misuse of Drugs Act of Western Australia. Laws that allow courts to presume possession from proof of occupation or ownership of premises where drugs are found or from other evidence suggesting that the accused might have been in possession of drugs seized by police are not uncommon in Australian law. In relation to that, you can go to the Victorian Drugs, Poisons and Controlled Substances Act, the Poisons Act in my home state of Tasmania or the Misuse of Drugs Act in the Northern Territory. There are a host of examples in our laws indicating that possession ought to be a crime. I have just been provided a note, I am not sure from whom, that indicates that you are not allowed to make, import, export or be in possession of certain firearms. For heaven's sake, we have it for firearms, drugs and tobacco seed. If it is important enough for tobacco seed, what about human embryo clones that we allegedly are all agreed should not be allowed to be created, imported or exported?

The scenario could very easily arise where—I will once again malign that poor mad professor that I have been using as an example in this debate—a mad professor creates a human clone and then passes it on to a laboratory technician for safekeeping in the deep freeze. In that case, where is the offence? The laboratory technician has a right to remain silent. If he is discovered in possession of the clone, he does not have to say anything. That is his right by law, as it should be, but he himself has not committed an offence. So we have a human clone without anybody being charged. It seems to me that, if we are genuinely serious about abolishing human cloning, we should close this quite substantial loophole in the legislation.

The suggestion has been made to me that the penalty that would apply for possession is somewhat harsh. If that stands in the way of any honourable senator—and I am not trying to embarrass anybody by saying this, Senator Stott Despoja; I know we are having discussions, and they are acceptable—if the concern is that the penalty regime that applies to the possession is too harsh, I am willing to look at a lower penalty provision so that the term of imprisonment might be lowered. As I understand it, in the drafting the penalty provision was the lowest in the regime of the bill but, if honourable senators believe that mere possession should not be treated quite as harshly, then I am happy to countenance any discussion on lowering that. The penalty provision was chosen on the basis of a degree of consistency with the legislation, but I would be happy to look at any other suggestions in relation to the penalty that might appropriately apply to this new provision, which I recommend to the chamber most seriously. I look forward to support from senators on all sides for what I think is a very important requirement to make this regime as tough as we have been led to believe is wanted. Also, it will make a very firm statement by this place that we are genuinely tough when it comes to the issue of human cloning.