Human Cloning and Other Prohibited Practices Bill
Research Involving Human Embryos (New South Wales) Bill
HUMAN CLONING AND OTHER PROHIBITED PRACTICES BILL
RESEARCH INVOLVING HUMAN EMBRYOS (NEW SOUTH WALES) BILL
Page: 2209
In Committee
Consideration resumed from an earlier hour.
New clause 19
Reverend the Hon. Dr GORDON MOYES [3.05 p.m.]: Christian Democratic Party amendment No. 4 states that it is an offence to destroy a human embryo. In this debate on embryonic stem cell use, which results in the destruction of embryos, it is important that we understand why it is we think that life is to be respected rather than used. The debate concerning the science of stem cell research, which we are now having, is being echoed around the world. Cells in our body usually divide and multiply to form cells of the same type and function. However, there are some cells, known as stem cells, which have the capacity to develop into different types of tissue. Given the right stimulation a stem cell could grow into a nerve, a muscle, a bone, a gland or, as I mentioned this morning, an egg or sperm.
Stem cells occur in embryos. However, they also occur in adults, children, placentas and umbilical cords. Over the past four years scientists have developed techniques for extracting stem cells from living human embryos, which, of course, results in the destruction of the embryo. The question is: Is this right? The debate has its antecedents in the rise of a new philosophy concerning the origins of life, which were made by the French philosopher, mathematician and scientist, René Descartes, who lived 400 years ago. Descartes emphasised that human reason was the main tool of inquiry and understanding, and all else should be doubted. So began the age of reason and enlightenment—thus the argument continues. Our reason alone decides some of the most vexing moral issues of our day, such as abortion, assisted suicide, euthanasia, stem cell research and genetic engineering The questions arise: What does it mean to be a human? How should human life be valued and respected? Are those questions to be decided by reason alone?
The "reason alone" rationale was behind Dr Mengale's experiments in the 1930s with deformed children and the killing of disabled people. That rationale was used in the United States of America court decision that impacted on the destruction of the human foetus in the 1970s. The United States Supreme Court ruled that only a mother could make a decision about her body and the child within her womb. In the 1980s the United States court decision about the famous baby Doe case allowed for the killing of life outside the womb as well as inside the womb, for example, deformed or disabled children. That was allowable because reason said that the child, who would not have had quality of life, therefore ought to be terminated. That was the reason given in Australia by pro-euthanasia proponents who argued that the old, the frail and the terminally ill should be assisted to die, as their quality of life was limited. Embarrassingly, some who were assisted to die were not terminally ill, as was claimed.
Professor Peter Singer, a well-known Australian academic, went further and advocated that parents should be permitted to kill disabled babies on the basis that they are non-persons until they are rational and self-conscious. This argument of choice, based upon how we see things, ties abortion, infanticide, euthanasia and other moral issues, including the right to destroy embryos for research, into whatever amounts to be a useful social policy. This changes the parameters of a victim's right to die to the researchers', doctors' and relatives' right to kill. Monash University has advocated that not only embryos should be used. Aborted foetuses, possibly months old, could be used for growing stem cells. It is irrational that, in the current debate, when it is presented that research using adult stem cells possesses vast biomedical potential to cure diseases such as diabetes, Parkinson's disease, heart disease and so on, people do not accept it. Where is their logic?
When nothing is stopping technological development, what can be done will be done, especially if commercial gain is involved. Commonwealth legislation allows embryo destruction pre-April 2002—the so-called spare embryos. There is no morally relevant distinction between what is spare and what is specially created. The fact that embryos are not likely to be transferred to a woman and will be moved from storage and allowed to die does not mean to say that they are dead. It is the moral equivalent of harvesting organs from someone who is dying but not yet dead. It is worth noting that the European Parliament, the United States of America Congress and the German and French parliaments have placed bans on destroying human embryos. The question is: Do we kill an embryo or do we simply allow it to die a natural death? In the case of a terminally ill patient, at some point the life support systems are turned off and the patient is allowed to die. The patient is not put to death, but rather allowed to die with a sense of dignity.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.13 p.m.]: I am concerned about Christian Democratic Party amendment No. 4. The Human Cloning and Other Prohibited Practices Bill is a disastrous bill, but this amendment is the pièce de résistance. It states:
A person commits an offence if the person intentionally destroys a human embryo that:
(a) has been created outside the body of a woman, and
(b) has not been used to attempt to achieve pregnancy in a particular woman, knowing that it is such an embryo.
The penalty for such an offence is 10 years imprisonment. Currently there are embryos in storage, some of which have been created outside women's bodies through the process of intracytoplasmic sperm injection. Those unused embryos have not been used to achieve pregnancy in a particular woman because not all of them were needed. In such a case those embryos cannot be destroyed. Do those embryos then have to be implanted in women because they cannot be destroyed? If those embryos are destroyed the penalty for such an offence is 10 years imprisonment. If a woman who was having difficulty falling pregnant had 10 eggs fertilised and kept in the refrigerator she would be obliged to have those 10 babies. Clause 9, one of the rather pernicious provisions in this legislation, states:
A person commits an offence if the person intentionally creates a human embryo outside the body of a woman, unless the person's intention in creating the embryo is to attempt to achieve pregnancy in a particular woman.
These embryos can be implanted in the women for whom they were created, but most women do not want 10 children. The doctor who was left with those embryos and who would be in quite a dilemma might want to give them to someone else. However, if he did that he would be breaking the law and he would receive a term of imprisonment of 10 years. If doctors implant those embryos in other women those doctors will be imprisoned for 10 years. If they destroy those embryos they will also be imprisoned for 10 years. Many couples in Australia are desperate to have more children. The Christian Democratic Party's amendments will not assist those people who require help from in-vitro fertilisation [IVF] programs. Honourable members wax lyrical about morality and about creating a better society when that is not really what they are setting out to achieve. Clause 9, which I believe is a silly clause, will not assist those many people in society desperately requiring assistance through IVF programs. This bill, which is repressive, seeks to interfere with scientific advances. This amendment is a classic example of a technological amendment being quite foolish in practice and internally inconsistent with existing legislation.
Reverend the Hon. GORDON MOYES. [3.17 p.m.]: I thank the Hon. Dr Arthur Chesterfield-Evans for his contribution to the consideration of my amendment. I do not claim to be an intellectual person, but I am logical—a good subject for the honourable member to study.
The Hon. Michael Costa: Unparliamentary language.
Reverend the Hon. GORDON MOYES: Madam Chair, I am happy to withdraw the comment that the Hon. Dr Arthur Chesterfield-Evans is not logical.
The CHAIRMAN: Order! I remind the Hon. Michael Costa that interjections are disorderly at all times. The honourable member has to take offence and ask for a comment to be withdrawn.
Reverend the Hon. GORDON MOYES: The Hon. Dr Arthur Chesterfield-Evans failed on a matter of logic. If a woman has 10 eggs fertilised she is not required to be impregnated 10 times. I do not know from where the Hon. Dr Arthur Chesterfield-Evans obtained that information. I said earlier that when nothing is done to stop people who develop scientific technology, particularly if a commercial gain is involved, they use that technology. The amendment is quite clear in relation to the question of multiple eggs. The question is: Do we kill the embryo or simply allow it to die a natural death? In the case of a terminally ill patient, at some in point the life support systems are turned off and the patient is allowed to die. The patient is not put to death, but rather allowed to die a natural death with dignity. That was the point I made earlier, which has nothing to do with impregnating a woman 10 times with all the surplus embryos. The honourable member missed the point.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.19 p.m.]: My earlier statements were entirely logical. The wording of the amendment moved by Reverend the Hon. Gordon Moyes is as follows:
A person commits an offence if the person intentionally destroys a human embryo that:
(a) has been created outside the body of a woman, and
(b) has not been used to attempt to achieve pregnancy in a particular woman, knowing that it is such an embryo.
Maximum penalty: Imprisonment for 10 years.
An embryo created by the in-vitro fertilisation process would be created outside the body of a woman. Clause 9 of the bill states that such an embryo must be created for a particular woman. Reverend the Hon. Dr Gordon Moyes argued that an embryo is not destroyed intentionally if it is removed from the refrigerator and left on the bench to die a natural death—there is actually nothing natural about it because in the normal course of events the embryo would not have been in the fridge! That embryo is still allowed to die. It is immaterial whether an embryo is killed by immersion in boiling oil or left on the bench and allowed to die, the end result is the same: someone controlled the embryo and killed it. That is my point.
The amendment refers to "a particular woman". This wording would prevent an embryo being given to someone else, which is what can happen during IVF treatment. Clause 11 of the bill makes it an offence, punishable by 10 years imprisonment, for a researcher or IVF technician to keep an embryo for more than 14 days. It is okay for researchers to keep an embryo for 13 days but if they keep it for 14 days—whammo—they will get 10 years in gaol! Is it okay for a researcher simply to leave an embryo on the bench? Was an embryo that died in those circumstances destroyed intentionally or did it simply die of neglect—which is presumably okay?
The Hon. TONY BURKE [3.21 p.m.]: Prior to question time the Hon. Dr Arthur Chesterfield-Evans asked why we could not let scientists and those with scientific backgrounds make all the decisions in this area. He just answered that question by completely misrepresenting the issue at hand. I am attracted to the principle that he described: I would love to see people with industrial relations backgrounds making all trade union law. But we have not yet reached that point. I believe each of the three amendments before the Committee has merit. Amendments Nos 2 and 3 moved by Reverend the Hon. Dr Gordon Moyes deal with a new situation. It is now possible to create a human ovum using stem cell lines. This means that it is possible for a child to be born through the in-vitro fertilisation process with no genetic mother.
That is a new and significant issue and, apart from stressing the need for consistency, no argument has been offered as to why that procedure should not be banned. It is impossible for this bill to be consistent with Federal legislation because when the Federal bill was enacted the science was not sufficiently advanced to allow that procedure to occur. We now have the necessary scientific know-how and this prohibition is reasonable. Although I do not expect the majority of members to support amendment No. 4, I hope that the Committee will divide on it. In my speech during the second reading debate I pointed out that defeating the second of these two cognate bills will not of itself provide a prohibition on this form of research. The carriage of amendment No. 4 will provide that prohibition. Pressing amendment No. 4 to the vote will offer members their only opportunity to formally record their personal desire to ban destructive research on embryos.
The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister Assisting the Minister for Natural Resources (Lands)) [3.23 p.m.]: The Minister does not support Christian Democratic Party amendments Nos 2, 3 and 4. I am advised that amendment No. 2 appears to have been moved in response to recent articles about how scientists have created eggs using embryonic stem cells from mice. The concern is that the same technique could be used to create human eggs and sperm outside the body of a human, with the intention of using them for reproductive purposes. If human eggs and sperm were created from existing human stem cells for reproductive purposes clause 12 of the bill would prohibit the use of those cells to create a human embryo. Therefore, clause 12 obviates the concern underlying this amendment.
If the technology were developed using human embryos to extract stem cells to create human eggs and sperm for research purposes rather than for reproductive purposes the researcher involved would need to obtain a licence from the National Health and Medical Research Council [NHMRC] Licensing Committee pursuant to the applied provisions in the New South Wales research bill. If a licence were approved the research would be regulated stringently. If existing stem cell lines were used to create human eggs and human sperm this process would be regulated by the NHMRC interim advice on stem cell research, which requires that all research proposals involving the use of stem cell lines derived from human embryos be presented to a human research ethics committee for consideration. Research using human embryonic stem cells will be dealt with further when the review of the NHMRC assisted reproductive technologies [ART] guidelines is completed in late 2003.
If a researcher wished to use a somatic cell nuclear transfer to create an egg containing the DNA of a specific donor—for example, the intended mother—the application of this technique would be prohibited pursuant to clause 5 of the bill. Therefore, this technique could not be used in New South Wales. The research and cloning laws outlined in these bills are part of a nationally consistent scheme regulating the use of human embryos, the prohibition of human cloning and other prohibited practices. The amendment would create uncertainty between those covered by the Commonwealth legislation and those covered by the New South Wales legislation. At worst, the confusion might lead to the New South Wales biotechnology industry operating at a disadvantage to industries in other States.
The Minister does not support amendment No. 3. I understand the concerns that prompted Reverend the Hon. Dr Gordon Moyes to move this amendment but the bill already addresses his concerns. Clause 12 of the bill prohibits using precursor cells from a human embryo or foetus to create another embryo. I am advised that the definition of a precursor cell is broad and would definitely include stem cells. The existing provision in the bill is targeted more directly at the problem sought to be addressed as it focuses on the activity of creating a human embryo. In these circumstances, the Minister opposes the amendment. The Minister also opposes Christian Democratic Party amendment No. 4. This amendment would make it an offence under the Human Cloning and Other Prohibited Practices Bill to intentionally destroy an embryo that has been created outside the body of a woman and that has not been used to attempt to achieve pregnancy in a particular woman. This offence would extend to the destruction through the course of research of an excess ART embryo created before 5 April 2002. However, I am advised that research on embryos is the very activity that is sought to be permitted by the Research Involving Human Embryos Bill, albeit in a highly regulated, ethical framework.
Most researchers will operate under a licence issued pursuant to the Commonwealth Research Involving Human Embryos Act. That Act allows for the issuing of a license to use excess ART embryo created before 5 April 2002 in a way that may damage or destroy those embryos. I am advised that Commonwealth legislation will override the State legislation. This proposed defence will, therefore, have no effect on those with a Commonwealth licence. The amendment will create uncertainty and complexity that not only will undermine the goal of national uniformity but may force otherwise legitimate and valuable IVF research activities outside the State. This could have a significant impact on the biotechnology industry in New South Wales. I note also that if the Research Involving Human Embryos Bill is passed the amendment would result in inconsistency between the two pieces of New South Wales legislation as the destruction of excess ART embryos might be sanctioned by one Act and prohibited by the other. Scientists and medical practitioners should not be left in an uncertain position as to their legal obligations.
It is noted that a number of commentators draw an ethical distinction between the active destruction of an embryo through research and allowing an embryo to succumb. However, criminal law may make no such distinction. As proposed, the amendment would arguably prevent embryos that are excess to a couple's treatment needs from being allowed to succumb. This would require the indefinite storage of embryos created for IVF treatment needs. The Minister opposes this amendment. The Hon. Dr Arthur Chesterfield-Evans is not correct when he suggested that excess embryos that are created cannot be used in another woman. Clause 9 makes it an offence to intentionally create an embryo for a particular woman. However, that clause does not prevent an embryo, once created, from being used in another woman if a choice is made to donate the embryo.
Reverend the Hon. FRED NILE [3.31 p.m.]: I seek clarification. Are we dealing with these bills by way of conscience votes?
The Hon. Tony Kelly: Yes.
Reverend the Hon. FRED NILE: I appreciate the factual material in the Minister's response, but the response contained the words "the Minister opposes". Is that the Minister's opinion?
The Hon. Tony Kelly: I did not say this Minister.
Reverend the Hon. FRED NILE: No, I assume you are referring to the Minister for Health.
The Hon. Tony Kelly: No, Minister Sartor.
Reverend the Hon. FRED NILE: I suggest that the response should have been presented as Minister Sartor's opinion, not as the Government's position.
The Hon. Tony Kelly: When there is a conscience vote there is no government opinion.
Reverend the Hon. FRED NILE: That is why I am saying that it should have been presented as his opinion. It sounded as though it was the Government's position when the words "the Minister opposes" were used.
The Hon. Tony Kelly: I have to put the bill forward as an item of Government Business but the vote will be a conscience vote.
Reverend the Hon. FRED NILE: It is the considered opinion of the Government or the Minister.
The CHAIRMAN: Order! The status of decisions taken by different parties—whether or not a vote is a conscience vote—is really not a matter that should be discussed while we are in Committee. It is probably a matter better discussed individually with the Minister. My understanding is that the comments made by the Hon. Tony Kelly were the views of the Minister in the other place who introduced this legislation in that House.
The Hon. Tony Kelly: But it is a Government bill, and we will have an opportunity to vote with our conscience.
The Hon. PETER BREEN [3.32 p.m.]: I also understood the views presented by the Minister, who used the words "I am advised by the Minister", to represent the views of the Minister in the other place and not this Minister. I was quite clear about that. The Minister suggested that clause 12—I assume he refers to the Federal legislation—is the operative provision that covers amendments Nos 2 and 3 proposed by Reverend the Hon. Dr Gordon Moyes. My reading of clause 12 of the Federal legislation is that a person commits an offence if the person intentionally engages in conduct et cetera contrary to an in-vitro fertilisation [IVF] licence. It seems to me that when the IVF licence was created no-one could have possibly contemplated research in respect of stem cell development to the point where an ovum might be created. If that is the explanation offered by the Minister, I have to say that in my opinion he is incorrect. I support amendments Nos 2 and 3, but the penalties are tough.
Reverend the Hon. Fred Nile: It is the maximum.
The Hon. PETER BREEN: Yes, but I do agree with the principle behind the amendments. I particularly endorse amendment No. 4. As the Hon. Tony Burke said, this amendment is really the only opportunity that we have to vote against the principle of the destruction of embryonic stem cells. There is no other opportunity. The law as it stands does not offer any protection at all and, for those reasons, I will support the bill. I certainly do not support the principle of destruction of embryonic stem cells. The amendment proposed by Reverend the Hon. Dr Gordon Moyes seeks to create the offence that I have just outlined, that of intentionally destroying a human embryo. It is the first and probably the only opportunity that any of us will get to express our concerns about this destruction of embryonic stem cells.
Reverend the Hon. Fred Nile: The destruction of embryos. Forget the stem cells.
The Hon. PETER BREEN: Of embryos, that is correct. I often make that mistake, and it is a mistake commonly made in the popular press. They are called embryonic stem cells without any real thought given to whether we are talking about embryos or stem cells derived from other sources. The important part about this amendment is that it refers to embryos, and that is what we are concerned about. The question is whether we believe that the embryo is entitled to certain protection on account of its humanity. We will all have different views about that. Perhaps more accurately, rather than describing embryos as humanity, they ought to be described as the potential for humanity, or prospective humanity.
However embryos are described, they certainly are human in the sense that the genetic information in the embryos relates to information pertaining to an individual. In that sense, the destruction of an embryo is the destruction of what some authorities call a potential human being or a prospective human being, but certainly it is human material. Interestingly, today the press is covering the proposed Byron's law, which will give the human foetus a status in law it does not otherwise enjoy. The offence of killing a foetus will carry a penalty up to a maximum of life imprisonment when the foetus has been growing for more than six months.
I do not always agree with the Hon. Dr Arthur Chesterfield-Evans but he also expressed concern about the maximum penalty of 10 years in amendment No. 4. I note that the offence of killing a full-grown human being can often carry a penalty of 10 years. In fact, the average penalty for murder in New South Wales at the moment is 16 years, but it has been down to as low as 14 years. On the face of it, 10 years for destroying an embryo is certainly a harsh penalty, given that we do not really know what the status of that embryo is. If we introduce laws in relation to a six-month-old foetus, then that ought to be some kind of benchmark, and we ought to keep it in perspective when we talk about human material or embryos. With those few words, I endorse the amendments, particularly amendment No. 4. I repeat that, in relation to whether we should be destroying human embryos, this will be our only opportunity to vote on the question and I, for one, will be supporting the amendment.
The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister Assisting the Minister for Natural Resources (Lands)) [3.37 p.m.]: On a point of clarification, clause 12 of the Human Cloning and Other Prohibited Practices Bill creates the offence of creating an embryo from precursor cells.
The Hon. PATRICIA FORSYTHE [3.37 p.m.]: I wanted to hear the Minister's advice about the direction the Government might take. Many of us are facing a dilemma. On the one hand we would say the way forward is to have uniform legislation, but on the other hand we would say that we are being presented with an argument in relation to amendments Nos 2 and 3 that suggest that there has been new research since the proposal for uniform legislation came about and the Commonwealth and other States commenced to introduce the legislation. I am disappointed about the way the Minister presented the argument against amendments Nos 2 and 3. I am disappointed also that the position of the Government—if we can call it that—has been framed on the basis of the argument presented by the Minister. It seems to me that we should always have the capacity to be flexible. I would have preferred an undertaking from the Minister that any issues raised would be considered by a ministerial council meeting or the National Health and Medical Research Council [NHMRC] as a precursor to further amendment of the uniform legislation.
Uniform legislation of itself is not incapable of being amended. The better way forward, I would have thought, is for us to accept the legislation as it is today with an undertaking from the Minister either that he will go forward to the next ministerial council or correspond with the NHMRC so that those bodies can consider the issue in the context of the guidelines and the work they are doing. One would have to say that generally, in the framing of this legislation, a very conservative approach has been adopted by all the States and the Commonwealth, and considerable efforts have been made to accommodate a vast range of opinions, in the best interests of medical research and the outcomes that we want to achieve.
However, honourable members have been presented with persuasive argument by Reverend the Hon. Dr Gordon Moyes in the light of new research and new developments, and we cannot ignore those. It seems to me that the Government has now presented us with a dilemma, and it would be better if the Government were more flexible. I do not want New South Wales to be held back with regard to medical research and biotechnology. I want this State to be at the forefront, notwithstanding that other States were well represented at the Biotechnology Conference in Washington this week but not, it would seem, New South Wales. I want this State to be at the forefront in the development of those industries while at the same time responding appropriately to moral and ethical issues raised by this legislation. I put it to the Minister, for consideration by the Government, that it be more flexible in the way in which it responds to amendments, even if we do not accept all the amendments today.
The Hon. Dr PETER WONG [3.41 p.m.]: I fully endorse what the Hon. Patricia Forsythe said. During the luncheon adjournment I consulted an in-vitro fertilisation specialist on this issue. I should say from the outset that he has no problem with stem cell research and embryo research. But amendment No. 3, which relates to distributing stem cells for reproductive purposes, is of major concern. He is concerned that, even at the moment, there be clear genetic material rights. Even in the United State of America that is happening now. If this amendment is carried, it will raise a number of legal issues. Secondly, the donor may not intend that the stem cell be used to create embryos.
Thirdly, if embryos are to be exported for commercial use, that will be a very dangerous step. However, the counter argument is that at the moment there is a severe shortage of human egg donors in Australia. Perhaps, in that regard, the amendment has a worthwhile purpose. That is another argument that honourable members should consider. I totally endorse what was said by the Hon. Patricia Forsythe. I can understand that the Government may not be able to support the amendment at this stage, but it should take into consideration what is an excellent amendment, and decide whether it should put forward a Government amendment after that consideration.
Reverend the Hon. FRED NILE [3.43 p.m.]: I wish to clarify the point made by some honourable members about the penalty provisions in the amendments. When arranging for the amendments to be drafted our party did not demand that the penalty be imprisonment for 10 years. Parliamentary Counsel drafted the bill in accordance with the provisions of the human cloning bill, which provides for 11 offences carrying penalties of a maximum of 10 years. I think the Parliamentary Counsel, purely for reasons of consistency, included 10-year penalties when drafting the amendments. If he had included five-year penalties, we would have accepted that figure. I make the point that there was no intent to demand a penalty of 10 years. Honourable members may think 10 years is a severe penalty for this offence, but 10 years is the penalty provided for most other offences dealt with in the bill. In fact, the Government included a couple of 15-year penalties in the bill.
An analysis of the reply by the Minister in the other place suggested that we should trust the system, that licences would be issued and other things would be happening. That is the whole point of legislation. If we had no fear, there would be no legislation at all. The point is we want the legislation to control the licensing and operation of the bill. If there is no legislation, matters become very subjective and various bodies are left to make their own decisions—for instance, the four or five people on the licensing board. It is a question of what comes first, the licensing procedure or legislation. We are trying to get the legislation right in the hope that it will then influence the licensing procedure.
I would like to touch on questions posed and concerns raised by the Hon. Dr Arthur Chesterfield-Evans. In some ways it is like turning off a patient's life support system. When such a decision is made for medical reasons, action is taken and natural processes may lead to death, but no-one is charged with murder.
The Hon. Peter Breen: There is no intention to cause death.
Reverend the Hon. FRED NILE: It is not intentional. That is the whole point with embryos. If at some point they deteriorate and cease to be of any use, in other words die, there is no crime. That is the distinction made by the amendment in creating an offence for an intentional act against an embryo that causes its destruction.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [3.45 p.m.]: Many aspects of this legislation have been raised during this discussion. I support the point made by the Hon. Patricia Forsythe: we need flexibility in dealing with the issues as science changes. We should set a direction rather than be specific about what can occur in the laboratory. Specificity has got us into so much trouble in this debate and it has made the legislation plain silly. We are specifying to scientists what they may or may not do in a rapidly changing environment, notwithstanding definitional problems.
The Hon. Peter Breen made the point that an embryo has humanity, but did not seem to think a stem cell has. When sperm and egg fuse a zygote is formed. I do not know whether it could be argued that a zygote is not a stem cell. It is a question of the plasticity of the cell, in other words, how many different things it can become. Obviously, a zygote can become a human, but perhaps with a little manipulation so also could a stem cell in that it does have the entire genetic blueprint of an individual. So defining "humanity" and "non-humanity", in the context of a debate on genetic material, is impossible, and the definitions will change as science changes.
The Hon. Tony Burke directed my attention to the fact that I had not spoken to amendments Nos 2 and 3. I am concerned that one group of people being overlooked by the legislation are infertile people who are trying to have a child, in other words, having IVF treatment. It is interesting that almost all IVF treatment in New South Wales is done in the private sector and there is little government commitment to IVF. Perhaps it could be said that the treatment is so expensive that that attitude is fair enough. On the other hand, those who would think that dollars are not driving this bill are living in fairyland and need to come to terms with the issues by means other than supporting prohibitive laws. Amendment No. 2 provides:
A person commits an offence if the person intentionally creates a human egg or a human sperm outside the body of a human.
If one can get a somatic cell to have the potential of an egg, that would be very important for a woman who had lost her ovaries. If that were successfully done, why should the benefit of that technology be denied her? Amendment No. 3 provides:
A person commits an offence if the person disposes of a stem cell created from a human embryo knowing or having reasonable grounds to suspect that the stem cell will be used for reproductive purposes.
Does that mean that used stem cells cannot be disposed of? I repeat the provision:
A person commits an offence if the person disposes of a stem cell created from a human embryo...
Does that mean that all stem cells created from human embryos must not be destroyed if they have been used for reproductive purposes? If that is the logic, hundreds of stem cells would have to be retained in refrigerators forever. If by the terms "disposing of" or "destroying" Reverend the Hon. Fred Nile means destroyed in the process of making the embryo into something else, that is a different issue, but that is not what the amendment states. If the petri dish is left in the sun and the embryo dies naturally, obviously it is not intentionally destroyed and amendment No. 4 becomes a complete nonsense. My interpretation of amendment No. 4 is that every embryo that is created has to be put into one woman, which would mean that one woman could have 10 kids.
The Minister made the point that "a particular woman" does not mean the particular woman for whom it was created. Therefore, if an embryo is created for use by a particular woman and that particular woman does not want it, it could then go to another particular woman. The use of the word "particular" is nonsensical. An embryo is created for a particular woman but it can be used in any particular woman—that is, it can be used in any other woman. Ergo, so long as it is used in a woman it is okay!
When a woman enters into an IVF contract she agrees that any eggs that are created but not used will be destroyed after a specific period, generally three years. During that time it is assumed that the woman will decide whether she wants to attempt to have another child. If her decision is not to attempt to have children, the eggs are then the property of the IVF clinic. Generally, people expect them to be destroyed. I assume they are the embryos to which Reverend the Hon. Fred Nile is referring. Is he saying that they may not be destroyed intentionally but may be put into a particular woman? If "a particular woman" means any woman, that is fine because then they are available to be given away. But that may not be the wish of the original particular woman for whom the embryos were created. The alternative is that they are not allowed to be destroyed. According to Reverend the Hon. Fred Nile, embryos that are left on a bench and die—which they will do inevitably—are not destroyed. If that is the case, the amendment means nothing at all.
The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister Assisting the Minister for Natural Resources (Lands)) [3.52 p.m.]: The Hon. Patricia Forsythe raised the concern that new scientific advances may have occurred since the Commonwealth developed the legislation. I note that she has asked for an undertaking from the Minister for Science and Medical Research that he will raise this matter with other jurisdictions to determine whether the legislation is adequate to cover emerging technologies referred to in the debate. The Minister has advised that he will seek advice from the Commonwealth Chief Health Officer.
Amendment No. 2 negatived.
Amendment No. 3 negatived.
Question—That amendment No. 4 be agreed to—put.
The Committee divided.
Ayes, 13
Mr Breen
Mr Burke
Mr Catanzariti
Mr Clarke
Mr Egan | Mr Gay
Mr Kelly
Reverend Dr Moyes
Reverend Nile
Mr Obeid | Mr Oldfield
Tellers,
Mr Gallacher
Mr Lynn |
Noes, 26
Dr Burgmann
Ms Burnswoods
Dr Chesterfield-Evans
Mr Cohen
Mr Costa
Ms Cusack
Mr Della Bosca
Mrs Forsythe
Ms Griffin | Ms Hale
Mr Hatzistergos
Mr Jones
Mr Macdonald
Ms Parker
Mrs Pavey
Mr Pearce
Ms Rhiannon
Ms Robertson | Mr Ryan
Ms Tebbutt
Mr Tingle
Mr Tsang
Mr West
Dr Wong
Tellers,
Mr Harwin
Mr Primrose |
Question resolved in the negative.
Amendment No. 4 negatived.
New clause 19 negatived.
Clauses 19 to 20 agreed to.
Title agreed to.
CHAIR: The Committee will now deal with the Research Involving Human Embryos (New South Wales) Bill.
Clauses 1 to 5 agreed to.
Clause 6
The Hon. PETER BREEN [4.03 p.m.]: I move my amendment:
No. 1 Page 4, clause 6. Insert after line 26:
(4) Any provision of the Commonwealth Embryo Act that is repealed by the operation of section 46 of that Act continues to apply as a law of this State after that repeal.
The intention of the amendment is to limit research involving human embryos to the existing stock of embryos. As the Minister said in his second reading speech:
Only embryos created prior to 5 April 2002, and deemed excess, will be available for research purposes.
Without this amendment, the legislation will be a green light to in-vitro fertilisation [IVF] companies to create additional banks of embryos for research. That would be completely at odds with the intention of the bill, which is to limit research to excess embryos created prior to 5 April 2002. When the Commonwealth Research Involving Human Embryos Act 2002 was introduced into the Federal Parliament, Prime Minister Howard said:
Importantly, research will only be allowed on excess IVF embryos that were in existence at 5 April 2002.
Unfortunately this intention is defeated by the sunset clause in section 46 of the Commonwealth legislation. My amendment will allow the object of the Commonwealth and the State legislation to be achieved. Research will be limited to the existing stock of excess embryos beyond 5 April 2005, which is the date in the sunset clause in the Commonwealth legislation, or at any other time. Researchers will gain access to any additional stock of human embryos only after further debate in this Parliament. One of the speakers—I think it was the Hon. Robyn Parker—said in the second reading debate that she was concerned that this Parliament might be tampering with or unravelling the Federal legislation. I will address that point very briefly. It is certainly not my intention to do that.
As I said earlier, I believe the Commonwealth legislation is a bonus in view of the existing common law, which does not provide any protections at all. To suggest that my amendment might somehow defeat the Commonwealth legislation would be an inaccurate interpretation of the amendment. Not only does it not unravel the legislation, but it will allow the legislation to remain in force so far as it relates to the existing stock of human embryos.
I will summarise very briefly the problem as I see it. Currently in Australia there are approximately 65,000 embryos available for research—that is, embryos that are excess to the needs of IVF programs. My understanding is that when the legislation was introduced into the Federal Parliament it was specifically intended to deal with the existing supply of embryos, that is, the 65,000 embryos. As a result of negotiations in the Federal Parliament and with the State Attorneys General, the original intention was subverted by the sunset clause in the Federal legislation. In my view, the sunset clause is contrary to the object of the bill. Section 3 of the Federal legislation states:
The object of the Act is to address certain concerns, including ethical concerns... in relation to the use of certain human embryos created by assisted reproductive technology.
That object is repeated in the State legislation, which says in part:
The object of this Act is to adopt in this State a uniform Australian approach to the regulation of activities that involve the use of certain human embryos created by assisted reproductive technology.
The objects indicate the original intention of the legislation, which is to protect the integrity of research into human embryos and to limit that research to existing stock. Without my amendment there will be no limitation on the existing stock of embryos. I will repeat that: There will be no limitation on the existing stock of embryos. Once the sunset clause comes into effect on 5 April 2005, it will be open slather for the research companies, IVF clinics, and anybody else who is interested in promoting and securing an interest in this industry.
The purpose of the legislation is to regulate the industry; yet that purpose is defeated by the operation of the sunset clause. My amendment provides that the Federal sunset clause will not apply in New South Wales. I ask members to support my amendment, bearing in mind that the effect of their support will be that the legislation will continue to operate after 5 April 2005. When the Federal sunset clause comes into effect, it will not automatically come into effect in New South Wales. Our Parliament would have to assess the current state of research and determine how legislation can best protect and regulate the industry. This amendment is a very important addition to the bill. It does not diminish the Federal legislation in any sense; indeed it prolongs it in New South Wales. I urge honourable members to support the amendment.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.10 p.m.]: I do not support the amendment, because it would inhibit necessary research on human embryos. It is silly that only embryos created before 5 April 2002 can be authorised for experimentation. That would be like the requirement established in about 1865 that a man waving a red flag had to walk 50 yards in front of a train or a car because it was considered that trains and cars were so dangerous. This legislation inhibits scientific technique and is quite invasive. The idea of a restriction on embryos after 5 April 2002 is bad enough, but we should not prolong that restriction forever. That prohibition will retard research until 5 April 2005, and clearly that will cause difficulties for researchers. I am amazed that 65,000 embryos are available. Each month in the publication Sydney's Child I read that people are desperate to obtain embryos to assist them with their infertility. We have to look at the overall ethical framework and allow scientists to do their work, with a sensible inspectorate rather than this sort of legislation.
The Hon. TONY KELLY (Minister for Rural Affairs, Minister for Local Government, Minister for Emergency Services, and Minister Assisting the Minister for Natural Resources (Lands)) [4.11 p.m.]: The Minister does not support this amendment. I am advised that under the Commonwealth's Research Involving Human Embryos Act, any licensed use of excess in-vitro fertilisation [IVF] embryos is authorised only in respect of embryos created up to 5 April 2002. Pursuant to section 46, that moratorium will be lifted on 5 April 2005 or such earlier date as the Council of Australian Governments [COAG] may decide. The moratorium does not apply to the other provisions of the Research Involving Human Embryos (News South Wales) Bill or the human cloning bill, both of which will remain in place to provide a robust regulatory system. The amendment would prevent the lifting of the moratorium in New South Wales. This means that the prohibition on the use of excess IVF embryos created after 5 April 2002 would continue indefinitely under New South Wales law.
The Research and cloning measures in these bills are intended to operate on a consistent national basis. The amendment will have effect only in respect of researchers operating pursuant to State law. The Commonwealth law will continue to apply to corporations and others covered by that legislation. The continuation of the moratorium in New South Wales after it has been lifted in the Commonwealth will cause confusion and uncertainty for those engaged in research in New South Wales. At worst, it might lead to the biotechnology industry in New South Wales operating at a disadvantage as against the industry in other States because of that confusion. COAG comprises representatives of all Australian jurisdictions and is well placed to consider the views of all participants with respect to the operation of the laws of the country, including the lifting of the moratorium.
Several honourable members have raised concerns about section 46 of the Commonwealth research Act being mirrored in the New South Wales research bill, so that once the moratorium is lifted, researchers will create embryos solely for the purposes of research. I am advised that that is not correct. Even after the moratorium is lifted the same stringent regulations will apply to the use of embryos for research. Excess IVF embryos—embryos created for IVF treatment that are excess to the treatment and in respect of which relevant consents for research to be conducted have been given—can be the subject of a research licence. Researchers will not be able to create embryos solely for the purposes of research, because the New South Wales cloning bill prohibits the creation of an embryo for any purpose other than to achieve pregnancy in a woman. The Minister does not support the amendment.
Reverend the Hon. FRED NILE [4.14 p.m.]: Some honourable members are concerned that our legislation will be out of step with the Federal legislation. In the second reading debate I said there had been a lot of compromises in drafting the Commonwealth legislation. It was not designed to provide a perfect set of rules or laws: it was to achieve the best result following detailed negotiation between the Commonwealth and the States, with input from the minor parties in the Senate; to achieve a formula that everyone would agree to and that would be passed by the Federal Parliament. One contentious factor was the moratorium cut-off date, and we should remove it.
The moratorium was a compromise in the Federal legislation, but we do not have to compromise in this State. If we give the lead, the Minister in the other place could contact the Federal Minister, who could then move an amendment to the Commonwealth legislation. The amendment moved by the Hon. Peter Breen would make the Commonwealth and State legislation uniform. In other words, the Federal legislation could be amended to bring it into line with this State's legislation.
The Hon. ROBYN PARKER [4.15 p.m.]: We are attempting to provide some sort of clarity on a very difficult and complex issue. We have to keep this bill in line with the Federal legislation. It would be ridiculous to introduce a provision that would put our bill out of step with the Federal legislation. Once the moratorium is lifted the Federal regulations come into play. To my mind that is enough of a check and balance. If we create a situation in which we are out of step, there will be confusion. I am firmly convinced that there are enough checks and balances in place to cover the existing circumstances and what might happen after the moratorium is lifted. I do not support the amendment.
The Hon. TONY BURKE [4.17 p.m.]: If there were enough checks and balances in place there would be no need for the moratorium. The fact that the moratorium was included in the legislation in the first place was an acknowledgement at the Commonwealth level that the prohibition on creating an embryo for the purpose of research on its own was not enough. With assisted reproductive technology [ART] it would be too easy to produce more than is needed, and years down the track the parents of the embryos would be in an impossible situation. As the embryos are going to die anyway, the parents will ask what should be done with them.
The moratorium was put in place to avoid the deliberate creation by ART of surplus embryos. The Commonwealth legislation puts the moratorium in place for three years, with nothing to then take its place. The Minister acknowledged in his reply to the second reading debate in the other place that in three years time, when the moratorium is lifted, appropriate legislative mechanisms will need to be in place. This amendment gives us the opportunity to do that. If the moratorium is lifted, an amending bill will be debated and members will check that the appropriate legislative protections are in place. I expect that at that time the numbers in the Parliament will not be very different from what they are now.
The argument that the embryos will be destroyed anyway has convinced some honourable members to support the legislation. Therefore, if there is to be a loophole that gives ART an opportunity to create many more embryos than might be needed, new checks and balances will have to be put in place. The only way to make sure that happens is for the Parliament to reconsider the legislation when the moratorium is lifted.
The Hon. PETER BREEN [4.20 p.m.]: I will refer briefly to a few matters raised by the Minister on behalf of the Minister for Health. In moving this amendment it was not my intention to cause any disadvantage to researchers in New South Wales. As a result of this amendment, researchers will have in place a system that will be subject to review by this Parliament. After 5 April 2005 there will be no mechanism in place to protect the unlimited creation of embryos. That is the problem. The Minister said the human cloning legislation is a suitable restriction on the creation of excess embryos. But, as the Hon. Tony Burke said earlier, that legislation does not have the effect that the Minister suggested it has.
A person who creates an embryo and keeps it alive for more than 14 days will be subject to the provisions of the legislation. However, the creation of embryos is not otherwise restricted, certainly not to the extent that researchers will be prevented from doing what they like, completely unregulated. The Minister referred to inconsistencies between Commonwealth and State laws. If there is a conflict between the two laws, the Commonwealth law will prevail. Section 109 of the Constitution provides that Commonwealth law prevails over an inconsistent State law. If the moratorium was discontinued under Commonwealth legislation and it continued under State legislation, the Commonwealth law would have effect. People would be bound by the Commonwealth law and not by the State law.
My amendment would give the Parliament an opportunity to examine the situation, determine the stage that research had reached, and closely consider whether the existing regulatory system is satisfactory. I am seeking to put in place a mechanism that provides some regulation. Members of Parliament should be given an opportunity in three years time to determine what stage that regulation has reached. Without this amendment there will be no regulation, and there will be more human embryos floating around than we can count, with nobody to control the process. My amendment is an appropriate way to put a mechanism in place by 5 April 2005 so that this Parliament can reconsider the whole matter and determine whether the Commonwealth legislation is doing what it is supposed to do, which is to regulate the industry. I commend the amendment.
Question—That the amendment be agreed to—put.
The Committee divided.
Ayes, 21
Mr Breen
Mr Burke
Mr Catanzariti
Mr Clarke
Mr Della Bosca
Mr Gay
Mr Hatzistergos
Mr Jones | Mr Kelly
Mr Lynn
Reverend Dr Moyes
Reverend Nile
Mr Obeid
Mr Oldfield
Mr Primrose
Mr Ryan | Mr Tingle
Mr Tsang
Dr Wong
Tellers,
Mr Egan
Mr Gallacher |
Noes, 17
Dr Burgmann
Ms Burnswoods
Dr Chesterfield-Evans
Mr Cohen
Mr Costa
Mrs Forsythe | Ms Griffin
Ms Hale
Mr Macdonald
Ms Parker
Mrs Pavey
Ms Rhiannon | Ms Robertson
Ms Tebbutt
Mr West
Tellers,
Mr Harwin
Mr Pearce |
Question resolved in the affirmative. Amendment agreed to.
Clause 6 as amended agreed to.
Clauses 7 to 22 agreed to.
Title agreed to.
Human Cloning and Other Prohibited Practices Bill reported from Committee without amendment and Research Involving Human Embryos (New South Wales) Bill reported with an amendment, and report adopted.
Third Reading
The Hon. MICHAEL COSTA (Minister for Transport Services, Minister for the Hunter, and Minister Assisting the Minister for Natural Resources (Forests)) [4.35 p.m.]: I move:
That these bills be now read a third time.
I speak against the Human Cloning and Other Prohibited Practices Bill. I listened intently to the second reading stage of this bill. I have studied the details of the bill and sought advice from the relevant ministerial support staff. I cannot support the bill as I have intense reservations about the restrictions that it places on science. I appreciate that compromise is necessary when establishing a nationally consistent regime. I did not seek to amend the bill in Committee; I simply wish to put my concerns about the bill on the record. I do not think the Human Cloning and Other Prohibited Practices Bill in its current form gives enough latitude to science in the area of therapeutic cloning. That is my primary concern. When the legislation was proposed I was assured that therapeutic cloning—which I and many other members support—would not be prohibited. However, I am advised that it is prohibited, which concerns me greatly.
I know that there are strong and passionate views about other aspects of the bill, particularly about when an embryo has a human dimension. I do not intend to get into that debate other than to say that I think 14 days is an arbitrary figure. On many occasions the debate was the proxy for a discussion about other values about which I am not concerned in the context of this bill. We need to establish a regime that affords a degree of certainty to the scientific community. That is my primary concern. The community's ethics and values are certainly important and offer a framework for debate. However, I think clear rules would give our scientists the latitude to explore important therapeutic processes without throwing up the spectre of Frankenstein science. That has been alleged in some quarters as the consequence of allowing our scientists to continue to use the techniques in which they have developed expertise. I believe that, in the majority of cases, scientists apply those techniques fairly and ethically, having regard to the concerns of the broader community or sections of it.
The legislation contains several serious criminal offences that establish the community's ethical boundaries. That is appropriate. These include bans on embryo cloning and human cross-species cloning. I do not think anyone could sensibly question the cross-species provisions. That would be very silly. No-one is in the business of breeding Minotaurs or wolf-men—to use the emotive language that some people adopt in debates such as this. I am not concerned with that part of the bill. However, the ban on embryo cloning falsely legitimises the ethical superiority of stem cell research over therapeutic cloning. I do not understand why that is so, and nobody offered in debate an argument based on science rather than on ethical concerns, which I have acknowledged are appropriate but which I do not necessarily share. I think the arguments advanced were flawed and illogical.
Therapeutic or research cloning—or, to use the scientific term, somatic cell nuclear transfer—offers the prospect of growing human tissue for a complete human organ transplant. We must all recognise that this important technology should be allowed to advance, but this bill does not permit that to occur. Cloning from the genetic material of the recipient offers the best prospect of a match for the donor. The result of that process would not be a human being but merely a replacement organ or a piece of nerve tissue or skin. The therapeutic cloning process never creates or destroys a viable human embryo. The moral debate seems to have dominated the agenda on both sides of the House. I do not criticise people who have strong ethical views and speak passionately about this matter because it is appropriate, but I do have a problem with the framework that is being proposed and the ability for people to be involved in research in relation to therapeutic cloning.
By contrast, stem cell harvesting involves a potentially viable embryo. We accept that, but we do not accept a process that does not even impact on the debate in relation to embryos. Surely a process that involves no viable embryo should be less, not more, contentious. I am surprised that there has not been a genuine debate about that component. Therapeutic cloning offers the prospect of growing compatible donor organs and other transplant material with the result of fewer children waiting on life support for compatible organs and fewer people suffering and dying from critical injuries and disease. I do not argue for cloning in favour of other techniques that have been part of this debate. I think research should be allowed in that area. Certainly there are increased prospects for adult stem cell research. I researched articles in the New Scientist that indicate that researchers at the University of Minnesota, for example, have discovered multi-potent adult progenitor cells, apparently capable of generating all tissues in the body, just like embryonic stem cells.
Alternative technologies are being explored, yet I do not think the debate focused on that. I am concerned that people have used this debate as a proxy for what are broader values and political positions. They have sidestepped the debate and limited the scope for important research in relation to therapeutic cloning, which should be supported by everybody. The multi-potent adult progenitor cells could be taken from an individual and used to generate any kind of tissue needed by that person, such as muscle tissue for repairing damaged hearts. Developments of that nature may save a lot of hand wringing and soul searching around the place about these particular issues. I observed that this debate seemed to be a proxy for other value debates that people ought to legitimately bring out in the open rather than seek to restrict what I think are appropriate scientific processes. The fact remains that at the moment the most promising form of research is stem cell research, and therapeutic cloning appears to be the most promising of the categories of other research.
I am reluctant to set arbitrary limits on one form of research over another on spurious ethical grounds. They may be well-meaning grounds, and people may have held those grounds on the basis of deeply felt positions, but I am concerned that this bill will restrict research involving processes that could lead to a very rapid development of technologies in terms of therapeutic cloning that could help people in need. I put on the record that many honourable members who have listened to this debate are not necessarily protagonists in that broader value debate that seems to be going on—and for which this debate is being used as a proxy—and are very concerned that this bill bans therapeutic cloning. I accept the proposition that regulatory powers may be able to be used in the future to implement such changes. However, we have seen an ideological debate and a proxy debate rather than a debate focused on where progress can be made in this area and benefit human beings currently in need in relation to therapeutic cloning. Given that this bill does not allow therapeutic cloning, I cannot in good conscience support it.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS [4.44 p.m.]: The principle on which medicine works—and which this Parliament should work—is above all do no harm. People look at human cloning in two ways: first, in terms of Dolly the sheep or a Brave New World, where huge numbers of people may be cloned in test tubes to effectively invade the world; and second, in relation to morality, where people see every sperm as sacred. Those two groups have different motivations.
The Hon. John Ryan: I think that is Monty Python.
The Hon. Dr ARTHUR CHESTERFIELD-EVANS: Far be it for me to draw a connection with Monty Python. We must adopt the principle that we must not do harm. Earlier, when speaking to an amendment, I said that a financial transaction is not harmful unless it is part of an overall tax avoidance scheme. It is not a question of looking at individual parts, but of having a holistic view of what a scientist is doing. The Minister was right when he said that it is bad to fetter the scientists with the acts they can carry out. A number of fetters are imposed on scientists by people who do not really understand the possibilities. It is legion. Clause 8 of the Human Cloning and Other Prohibited Practices Bill provides that there must be no fertilisation of eggs, except for a particular woman. Clause 10 states that there must be no hybrids of humans, so we cannot improve genetic material from other sources.
Clause 11 states that we must not have an embryo survive outside the body for more than 14 days—a totally arbitrary number for someone working in a laboratory. Clause 12 states that we may not create an embryo, which may be quite unreasonable for someone who does not have an ovary and could use a sematic cell. Clause 13 states that we must not have germ line gene therapy and we cannot improve cells. Clause 14 states we may not flush out human embryos, which is common in animal husbandry. Clause 15 states that we must not create chimeric embryos—no part of an animal cell in a cell—which may indeed correct some genetic disorder and be immensely helpful. Clause 16 states that there must be no hybrids, so that a whole animal cell and a human cell may not be put in any hybrid component even if it has a therapeutic benefit. We cannot put human embryos in another animal, for instance, in surrogacy.
Clause 17 states that we cannot use a prohibited embryo. Clause 18 states that no money must change hands for the supply of a human egg, sperm or embryo, despite the fact that the whole in-vitro fertilisation industry is basically private. It is private because it is too expensive for the public purse. People are desperate—they go overseas and pay money to women in developing countries to have babies. Everyone turns their back on those adoption practices, but they are options. A lot of things are interfering in the Commonwealth human cloning legislation. It is a poor compromise at a political level, taking into account that members are going well beyond their level of competence in terms of what they should be passing. That is why I believe we should make a philosophic statement as to the objectives of the legislation—as occurs in the tax Act—and the courts, inspectors and people who have an understanding of the technology should enforce the law.
The Federal Human Cloning and Other Prohibited Practices Bill is most unfortunate. The New South Wales bill effectively empowers the Commonwealth bill and contains silly things, such as that all embryos must be older than 5 April 2002. That totally arbitrary date has been taken from nowhere, without any particular rhyme or reason. If the principle of legislation is to above all do no harm it is nonsense to set arbitrary dates and inflict them on scientists who are working under sufficient difficulties when they are at the frontier.
I am very concerned about these bills. The whole philosophy of trying to separate things in semantic ways by people who really do not understand what is happening is the wrong approach. I am particularly concerned about the Federal legislation, and obviously instruments that empower it concern me as well. Although the New South Wales bill does allow scientific work within the regulatory framework, the imposition and unscientific restrictions of the Commonwealth legislation, which underpins the New South Wales bill, makes the whole area fraught with difficulty. I wonder whether a much less regulated regime, applying the common law principles of effectively doing no harm, might be better applied. As such, it might be better if these bills fail.
Reverend the Hon. FRED NILE [4.50 p.m.]: I would like to comment on the contribution of the Hon. Dr Arthur Chesterfield-Evans. He had no reservation about mixing animals and humans, et cetera. The honourable member just proved absolutely the need for this legislation, and how dangerous it would be to have a scientist with his mentality let loose in a laboratory.
The DEPUTY-PRESIDENT (The Hon. Christine Robertson): Order! As a request has been made under standing order 106, I shall put the questions with regard to the third reading seriatim.
Question—That the Human Cloning and Other Prohibited Practices Bill be now read a third time—put.
Motion agreed to.
Human Cloning and Other Prohibited Practices Bill read a third time.
Question—That the Research Involving Human Embryos (New South Wales) Bill be now read a third time—put.
Motion agreed to.
Research Involving Human Embryos (New South Wales) Bill read a third time.