Chapter 1 - Introduction
Terms of reference
On 14 September 2006 the Senate, on the motion of Senator the Hon
Kay Patterson, agreed to the following resolution:
- That
the following matter be referred to the Community Affairs Committee for inquiry
and report by 27 October 2006:
Legislative responses to recommendations of the reports of
the Legislation Review Committee on the Prohibition of Human Cloning Act
2002 and the Research Involving Human Embryos Act 2002 (the Lockhart
review).
- That
in undertaking this inquiry the committee may consider any relevant bill or
draft bill based on the Lockhart review introduced or tabled in the Senate or presented
to the President by a Senator when the Senate is not sitting.
1.1
In accordance with part 2 of the resolution, the Committee considered
the Somatic Cell Nuclear Transfer (SCNT) and Related Research Amendment Bill
2006 exposure draft tabled by Senators Stott Despoja and Webber on 14 September
and the Prohibition of Human Cloning for Reproduction and the Regulation of
Human Embryo Research Amendment Bill 2006 presented initially to the President
by Senator Patterson on 26 September and introduced in the Senate on
19 October.[1]
Conduct of the Inquiry
1.2
The inquiry was advertised in The Australian on 28 August
and 11 September 2002 and through the Internet. Submissions were also
invited from a large range of groups and individuals. Due to the tight
timeframe for the inquiry, the closing date for submissions was 4 October 2006, although the Committee continued to receive submissions throughout
the course of the inquiry.
1.3
The Committee received 494 public submissions, together with a large
amount of additional material from witnesses at hearings and in response to
questions on notice. The list of submissions and other written material
received by the Committee and for which publication was authorised is at
Appendix 1. A large volume of correspondence was received providing general
comments. While this correspondence has been processed as submissions it was
not possible to acknowledge them all individually. Public hearings were held in
Canberra on 20 October, Sydney on 23 October and Melbourne on
24 October. A list of witnesses who appeared at the public hearings is
included at Appendix 2. Submissions authorised for publication and the Hansard
record of the public hearings may be accessed through the Committee’s website
at www.aph.gov.au/senate_ca
1.4
This inquiry has been undertaken in circumstances where the political
parties have given their Senators a ‘free vote’ on the legislation when it is
considered in the Senate. Thus, in conducting the inquiry and in the
preparation of the report, the Committee has been mindful that the purpose of
the inquiry was primarily to gather information to assist Senators make an
informed decision on the legislative responses to the Lockhart Review.
1.5
The report has been structured in the following fashion. This introductory
chapter refers to recent inquiries, reports and debate that have resulted in
the preparation of the two Bills. Chapter 2 provides the recommendations of the
Lockhart Review that form the basis of the terms of reference and are addressed
in the respective Bills. Chapter 3 outlines the issues and arguments raised in
evidence by those groups and individuals supporting the Lockhart recommendations
and the proposed Bills; while Chapter 4 outlines the issues and arguments of
those opposing the recommendations and proposed Bills. A number of Senators
have attached additional comments to the report.
Background history and chronology
1.6
In 1998 scientific advances in cloning prompted legislatures around the
world to consider the ramifications of this work.
1.7
In the same year, the Minister for Health and Aged Care, Dr. Michael Wooldridge,
asked the Australian Health Ethics Committee (AHEC) to report to him on the
scientific, ethical and regulatory considerations relevant to cloning of human
beings.
1.8
In its report,[2]
AHEC made a number of recommendations including that the Minister should
encourage informed community discussion on the potential therapeutic benefits
and possible risks of the development of cloning techniques.
1.9
In 1999, Minister Wooldridge asked the House of Representatives Standing
Committee on Legal and Constitutional Affairs to review the AHEC 1998 Report.
In its 2001 report Human cloning: scientific, ethical and regulatory aspects
of human cloning and stem cell research, the majority of the Committee
recommended:
- the
enactment of legislation to regulate human cloning and stem cell research;
- that
such legislation should include a ban on cloning for reproductive purposes
combined with criminal penalties and loss of an individual's research licence;
and
- The
establishment of a national licensing body empowered to issue licences for
research involving the isolation, creating and use of embryonic stem cells.
1.10
In addition the Committee said 'there should be a moratorium on the
creation of embryos by means of somatic cell nuclear transfer techniques for
three years, at which point the issue should be re-examined. During the next
three years the progress of research should be continually monitored by AHEC
and it should provide regular reports to the Council of Australian Governments
through the Commonwealth Minister for Health and Aged Care.'
1.11
Australian Health Ministers and the Council of Australian Governments
(COAG) had been considering the issue of human cloning and research involving
excess ART embryos from the late 1990s. At a COAG meeting on 5 April 2002
the Prime Minister and all Premiers and Chief Ministers agreed that the
Commonwealth, States and Territories would introduce nationally consistent
legislation to ban human cloning and other unacceptable practices and that
research be allowed only on existing excess ART embryos, that would otherwise
have been destroyed, under a strict regulatory regime, including requirements
for the consent of donors. A draft bill was prepared and after consultations
undertaken by the NHMRC in each State and Territory the Research Involving
Embryos and Prohibition of Human Cloning Bill 2002 was introduced in Parliament
on 27 June 2002.
1.12
After the Bill's introduction, its provisions were referred to the
Community Affairs Legislation Committee which received evidence from a wide
range of stakeholders in the community to inform the Senate in its
deliberations on the Bill. As is the situation with the current legislation,
Senators were given a 'free vote' when the Bill was debated in the Senate.
Committee's Report on the
Provisions of the Research Involving Embryos and Prohibition of Human Cloning
Bill 2002
1.13
The Committee's report into the Bill debated by the Parliament in 2002,
that was subsequently divided to be passed as the two Acts subject to the
Lockhart Review, was tabled in October 2002[3].
The report provided background to the previous inquiries, reports and deliberations
that ultimately led to the passage of the two Acts and the legislative review
undertaken by the Lockhart Committee.
1.14
The report gave an overview of the scientific aspects of the debate,
including defining stem cells, outlining the properties of cells and cloning
technologies and discussing the potential applications of stem cell research.
The report also considered the philosophical arguments over the ethics of
embryonic stem cell research. These arguments covered issues such as the moral
status of the human embryo, utilitarian arguments, conceptual loss and the
slippery slope.
1.15
A description of the provisions of the Bill, subsequently split to
become the RIHE Act and the PHC Act, and a brief discussion of international
comparisons as they stood at the time, was also provided.
1.16
Attached to the report were a number of supplementary reports and
qualifying comments by Senators providing their respective views on the Bill
and evidence received by the Committee.
1.17
The Committee has not, as part of this inquiry, replicated the lengthy
analysis of the issues raised in 2002 that remain relevant to the current
debate. The 2002 report provides useful background on many of these issues,
both scientific and ethical.
1.18
The Bill was extensively debated in the House and the Senate, divided
into two Bills and finally enacted as the Prohibition of Human Cloning Act
2002 and the Research Involving Human Embryos Act 2002. Following
the passage of these Commonwealth Acts, each State and Territory enacted
complementary legislation.
Legislative Review Committee
1.19
The Prohibition of Human Cloning Act 2002 and the Research
Involving Human Embryos Act 2002 each contain a provision that an
independent review of the operation of the Act must be undertaken two years
after the Act received Royal Assent by persons chosen by the Minister with the
agreement of each State. In June 2005 the Legislative Review Committee chaired
by former Federal Court judge, the Hon John Lockhart AO, was appointed to
consider and report on the scope and operation of each of the Acts. The report
of the Lockhart Review was presented to the Minister for Ageing on 19 December 2005. The recommendations are reproduced in Chapter 2.
1.20
On 23 June 2006 the Prime Minister, the Hon John Howard, provided the
Government's response to the recommendations of the Lockhart Review:
After careful reflection, the Government is not disposed to make
any changes to the existing national legislative framework for research
involving human embryos, agreed in 2002.
Recognising, however, the range of issues and views, there will
be a detailed discussion on this issue within the Government parties when
Parliament resumes for the Spring sitting...
The Lockhart Review also recommended some administrative
improvements that will help reduce red tape in the licensing process and
provide further support to the regulatory scheme by enhancing the National
Health and Medical Research Council guidelines. Taking into account experience
since the enactment of the legislation in 2002, the Government is supportive of
these recommendations.
The Government also supports further exploring the establishment
of a national register of donated excess embryos created originally for ART
purposes and a national stem cell bank.[4]
1.21
COAG considered the Lockhart Review at a meeting on 14 July 2006 and stated in a communiqué:
COAG noted that agreement had not yet been reached across
jurisdictions on all the 54 recommendations of the Lockhart Review Committee
Report. However, COAG agreed that officials would continue to work on those
Lockhart Review recommendations of an administrative nature on which there is
agreement and report back to COAG by December 2006.
While COAG restated its preference for nationally consistent
arrangements, in the absence of national agreement some states and territories
reserved the right to alter the legislation within their own jurisdictions to
the extent that is within their power.[5]
1.22
On 31 August the Prime Minister released a report prepared by
mpconsulting that had been commissioned by the Department of the Prime Minister
and Cabinet titled 'Analysis of advice on developments in assisted reproductive
technology and related medical and scientific research'.
1.23
It was also announced in August that the members of the Coalition
parties and the Australian Labor Party would be allowed a free vote if
legislation came before the parliament. The tabling of the exposure draft bill
by Senators Stott Despoja and Webber and the subsequent introduction of the
bill by Senator Patterson has now placed legislation to enact the Lockhart
Review recommendations before the parliament.
Senators' Bills seeking to give
effect to Lockhart recommendations
1.24
Both Senator Patterson's bill and Senators Stott Despoja and Webber's
exposure draft bill reflect the Lockhart Review's recommendations in a legislative
form.
1.25
Senator Stott Despoja informed the Senate that the exposure draft bill was
intended to create a starting point for discussion of the issues raised by the
Lockhart Review, of which this inquiry is a part. All the Lockhart Review
recommendations were incorporated into the draft bill. In an accompanying
speech, Senator Stott Despoja stated:
This bill enshrines the scientific recommendations of the
Lockhart Review that require legislative change to the original Acts.
The inclusion of all the Lockhart recommendations gives the
Parliament the opportunity to accept, reject, or amend them, but, at least,
debate them. I am not cherry-picking recommendations – it should be for the
Parliament to decide which ones become law.[6]
1.26
Senator Patterson released the Prohibition of Human Cloning for
Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006 (the
Patterson bill) on 26 September and subsequently introduced the bill on 19 October 2006. This bill also seeks to implement each of the Lockhart Review's
recommendations where a legislative response is required. When introducing the
bill, Senator Patterson advised the Senate:
In 2002, when I was the Minister for Health and Ageing, I had
the responsibility of taking the Prohibition of Human Cloning Bill and the
Research Involving Human Embryo Bill through the Senate on behalf of the
Government.
As I have said, the Acts required that they be reviewed, and one
of the terms of reference required that the “reports must contain recommendations
about amendments, if any, that should be made to the Prohibition of Human
Cloning Act 2002 and the Research Involving Human Embryos 2002, whichever is
applicable”.
In 2002 I said in the debate on the Bills, "If the review
gives rise to possible amendments to the legislation, any such amendments must
come before parliament, and at that time, whoever is here will have the
opportunity to consider in detail any proposed changes to the
legislation".
This bill provides that opportunity.[7]
1.27
A table showing how the Lockhart Review recommendations are addressed in
the Patterson bill is at Appendix 3.
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