Natasha Stott Despoja (SA, Australian Democrats) Share this | Hansard source

I want to thank Senator Patterson for that perspective. Obviously we have looked at her bill as it stands referring to 20(1)(e) and we still have concerns about whether or not those people are protected. This is what led to the amendment being drafted and moved today. Obviously having Senator Patterson outline or clarify in the chamber the intent of the legislation is important too, so that if there is any impact on those organisations dealing with eggs for research and other activities then it will be clear that that was unintended. I accept the argument put forward by Senator Patterson. I suspect the fact that I am not totally convinced is evident. I will seek advice from Senator Webber as to whether or not she wants to proceed with the amendment. I am happy to let that lapse or withdraw it in this case. I do suggest to the parliament that this is an area that we need to confirm is not impacted negatively upon as a consequence of the change to the status quo. I seek leave to withdraw amendment (16) on sheet 5113.

Leave granted.

The Democrats and the opposition oppose schedule 2 item 4 in the following terms:

(17)

Schedule 2, item 4, page 14 (line 30) to page 15 (line 13), TO BE OPPOSED.

I will also speak to amendment 18. These amendments relate to the recommendations contained in the Lockhart review—recommendations 20, 21 and 22—in relation to allowing the use of fresh ART embryos for research, training and clinical practice if they have been declared unsuitable for implantation by either pre-implantation diagnosis or objective criteria. The bill before us aims to implement the recommendations with a definition for ‘unsuitable for implantation’ under item 4 pages 14 and 15. I understand that there is also a reference under item 24 on page 20 which states that the licensing guidelines can apply in a modified form for embryos that are unsuitable for implantation.

I am a little concerned that there is a potential with this approach for there to be confusion over how the clauses of this bill actually apply to embryos declared unsuitable for implantation. For example, by having embryos that are unsuitable for implantation as a separate entity under this bill, in item 11 of this bill at page 17, in declaring it an offence to use embryos created by egg and sperm that are not excess ART embryos, that might actually be construed as declaring it illegal to use embryos unsuitable for implantation. Obviously that is not the intent of the Lockhart recommendations; it is quite the opposite.

I believe the approach that Senator Webber and I adopted in the exposure draft of the private members’ bill is arguably a simpler, cleaner approach. We included the definition of embryos that are unsuitable for implantation under the definition of excess ART embryos. We think this is an appropriate way to go, as an embryo that is unsuitable for implantation for ART would naturally be excess to those requirements. Using this approach, all clauses that apply to excess ART embryos also apply to those that are unsuitable for implantation. So, by removing the separate definition of unsuitable for implantation and adding a definition of those embryos under excess ART embryos, under item 9 of the Research Involving Human Embryos Act 2002, we believe that this bill is clearer in how it allows the Lockhart recommendations 20 through to 22 to be implemented. The Prohibition of Human Cloning Act 2002 listed prohibited practices in two divisions, and this bill maintains that model.

To go off on a tangent for a moment, those of us who have been involved in the drafting processes for these bills have had the frustration of realising that the decision in 2002 to divide the bill into two acts actually made it very difficult to draft this private members’ bill because you are taking some things out of the prohibited practices and then putting them into the regulatory framework as to what you can and cannot do with research. It would have been much tidier and easier just to deal with one bill, but obviously that was not the will of the parliament in 2002. I can completely understand and support why we did that at the time, but it has now made for some difficulties in how you approach amending the two acts. Obviously Senator Webber and I differed slightly in our approach in some places. The issue involving Lockhart recommendations 20 to 22 and the unsuitable for implantation embryos is one such area. I commend this amendment to the Senate. The one we are dealing with is in opposition to schedule 2 item 4. I hope that senators will support this approach. If not, the bill still maintains the integrity of the Lockhart recommendations but just adopts a different approach.