Tuesday, 7 November 2006
Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006
During the break—what break there was—we had time to have some conversation, and I understand the intent of and motive for what Senator Nettle is trying to achieve. But I have to express my concern that there is difficulty for the licensing committee, when approving very basic research projects, to be able to predict what will happen in the long-term future. I understand the intent of Senator Nettle’s amendment, but I do not think this is necessarily the best way to achieve it. However, I give her credit for attempting to make the research more available and focused on public health.
I would like to thank the various senators who have spoken on this motion and supported what I am trying to achieve with this public interest objective. In putting forward this amendment, I recognise that this is a very difficult thing to achieve and it can be achieved in a range of different ways. I did not put forward my amendment to say that this is the best and only way to do it. I recognise that there are many ways, including regulations within the NHMRC, requirements being put into a licence application and discussion around this issue. You can do it in a range of different ways. I simply put forward this amendment because, for me, looking at the legislation, that seems to be the appropriate way to do it. But I acknowledge that there are difficulties with it. I thank senators for their contributions and their support for what I am trying to achieve. I am quite happy to proceed with the amendment and I commend it to the Senate.
That the amendment (Senator Nettle’s) be agreed to.
As I indicated in my speech on the second reading, I proposed to move two amendments to provide the parliament with some oversight of the regulatory process. Unfortunately, the amendments as they have been prepared do not permit some practices that are currently allowed to go ahead. That is not what I was looking to see occur as part of this process. I have looked at modifying my amendments to see whether they can relate specifically to the changes to the existing legislation that are proposed by this bill, but even that appears to be quite problematic.
It is not my desire to remove current practices that are permitted by existing legislation, regulation or in fact guidelines. So in that context it is my intention to request the permission of the chamber to withdraw my amendments. But I am having conversations at the moment in relation to the conduct of an inquiry into the regulations that oversee these practices nationally with a view to having a further look at how these can be brought together. As I said in my second reading speech, how these practices are regulated and legislated across the states is inconsistent. It is my view, as I said in that speech, that there is a desire to see an overarching national regulatory approach to this. It has already been indicated by two states that if this legislation is not passed they are prepared to go ahead with it on their own. In my view, a national approach to this is much more favourable than an ad hoc approach by different states. We have seen even in the last 24 hours the different approaches that can be taken on HRT, including Steve Conroy and the terrific outcome from surrogacy, and there is a whole range of issues that I think can be dealt with. It is illegal in one state but it is legal in another. So there is a whole range of issues that can be dealt with across the board. So I will not be proceeding with my amendments but I will be looking to see a committee of inquiry put in place that deals with the broader range of overarching national regulatory approach.
I want to briefly place on record my appreciation of Senator Colbeck’s commitment to that. I think he raised a legitimate point in the debate and, obviously, the events of today as to Senator Conroy and his partner really bring that point to the fore. I would like to thank him for his sensitivity in handling this. I support a move to perhaps having a Senate inquiry to further consider this matter and bring it back.
Senator Colbeck and I have been discussing this for some time, and we have looked at various ways of trying to achieve what he wants to achieve. I am not sure that a Senate inquiry is really his goal. I think he wants an independent committee to look at tissue donation, in particular that of ova and sperm, and I have to agree with him. When you look at it, you have guidelines here and there that have developed as a result of legislation growing over time. If Senator Colbeck were to come forward with a motion calling on the government to set up an independent inquiry in conjunction with the states, I think COAG as well would need to look at it. Regulation really does need to be more uniform. It is quite difficult for either people doing research or people donating gametes or embryos to find their way around it. It should be clearer and more transparent. I agree with Senator Colbeck, and I am sure that those of us who are supporting the bill will support him in a move to ensure that. I suspect that others who are not supporting the bill would expect that we make sure that even the guidelines for ART are as crystal clear as possible. While I think Senator Colbeck has raised a very important issue, it is quite difficult—in fact, I think he has realised this—to try to address it through this bill, but there are other means of achieving the same goal.
I join colleagues in commending Senator Colbeck for the intention of his amendments. Having said that, I do think that sometimes there are good reasons, specifically in the acts that we have been dealing with, for doing things in and putting information in guidelines, while on other occasions there is a very strong argument for delegated legislation through regulations. I understand from Senator Colbeck, from our chats and from what he said then, that the idea of providing some level of accountability throughout the regulatory process was one of the intentions behind the amendments. I had concerns about the workability of the amendments that were before us—and I do not think anyone doubted that—in terms of how you would achieve that. Even if you target only the changes that are made through the legislation that is before us, I still think that throws up problems as well, because you have got to look at what other guidelines are already in place. To be quite frank, not a lot in the guidelines would be changed as a consequence of this new bill, even though it would allow some different processes or some procedures that are currently not allowed.
Can I suggest—as I have done in previous debates—that, if we are talking about not a Senate inquiry but an independent inquiry, we should give serious consideration to the Australian Law Reform Commission. I know that during the 2002 debate, when, for example, the issue of patenting came up and people were not sure how to handle that, one of the amendments that I made was a reference of that particular issue to the ALRC. As you would know, that inquiry into patents has taken place and has since reported. So I am a great believer in the ALRC’s work if we are looking at an independent national body that can take into account some of the inconsistencies between the states and territories and, indeed, between them and the Commonwealth. That might be one option to pursue. In the meantime perhaps it is a good idea to withdraw the amendments and continue talking. I acknowledge Senator Colbeck’s intention and I really appreciate him playing a constructive role in this debate. Without wanting to reflect on a decision of the Senate in committee, Mr Temporary Chairman, I am still a little puzzled by the debate and vote that we just had on the commercialisation provision. It was interesting.
I move Greens amendment (2) on sheet 5112 revised.
(2) Schedule 2, item 19, page 20 (after line 3), at the end of subsection 24(1), add:
; (c) the licence holder must agree to deposit in any Australian national stem cell repository, a sample of any stem cell line derived specifically for research.
I was going to move my amendments together but, after some discussion, I have decided to move them separately—but I will talk about them together. Both of these amendments are about establishing a national stem cell bank. This is a debate we have had in this chamber before, in 2002. A national stem cell bank exists in the United Kingdom. One of the provisions about the way it operates is that everyone who gets a licence to do stem cell research must deposit a stem cell line into the bank. In the United Kingdom, commercial operators—or people who have done the research on the basis of private funding—also still deposit a stem cell line into the bank, so it is in the public domain. That does not stop people from being able to do commercial or private research, but it ensures that the information is held in the public domain and therefore can provide public benefit or be used by a variety of different researchers. It means that people who are doing public sector research can have access to the stem cell lines and are not impeded by intellectual property or patent law.
A similar model operates, in some respects, through the Australian Stem Cell Centre, but it is a private company, not a public institution. These amendments do not say that it has to be a public institution. I happen to be of the view that it would be best if it were a public institution, but these amendments do not say that; they just say that we should have a national stem cell bank. The first amendment says that everyone who gets a licence to do stem cell research will be required, as a condition of their licence, to put a stem cell line into the bank.
I will explain why I am working from the revised sheet rather than the first sheet. I changed it so that it is clear that it means a stem cell designed specifically for research. I have done that because I have had some representations from a director of an IVF company who said that we want to make sure that we are not putting into the stem cell bank the stem cell lines—the genetic information—of private individuals who choose to access IVF. I have changed the wording in the revised version to ensure it is clear that it is not my intention that everyone who has IVF should have to have their genetic information put into a national stem cell bank in the public domain. It is about the research that is being done. That is why I have moved to this wording.
I could have moved both of these amendments together—because the first one says that the licence requires you to deposit the stem cell line in the stem cell bank—but I am moving them separately. That has the potential to create some difficulty, because, if we do not have a stem cell bank, how can we require people who want to get a licence to put a stem cell line into it? Because I have had a request to move these amendments separately, I will also seek leave to amend this motion so that it reads: ‘The licence holder must agree to deposit in any Australian national stem cell repository a sample of any stem cell line derived specifically for research.’ I am moving the amendments separately because, if a stem cell bank does not exist, you cannot say, ‘put it in the stem cell bank’. I am going to seek leave to amend that to say ‘any Australian national stem cell repository’ so that the intention is clear without using a term or phraseology that does not exist. I might now seek leave to amend that motion.
Yes, okay. I will read out once more what I am proposing to amend. It would read: ‘The licence holder must agree to deposit in any Australian national stem cell repository a sample of any stem cell line derived specifically for research.’ I am replacing ‘the’ with ‘any’ and inserting ‘Australian’. I am also ensuring that ‘national’ is no longer capitalised, because I am not talking about a particular entity. I commend the amended amendment to the Senate.
Inevitably, there is a bit of overlap in these amendments, so I understand why we are dealing with them separately. Obviously, some people who may, for example, support the establishment of a stem cell bank may at the same time have different views on the prescriptive nature of the second amendment in terms of whether or not you are required to deposit a stem cell line in that particular bank.
Senator Nettle is right in that some of us have dealt with aspects of this issue before. I think it was the Greens who, as a consequence of the 2002 acts, sought to establish, pretty much effective immediately, a national stem cell bank. Senator McLucas—who is in the chamber—and I moved an amendment adding the examination of the applicability of a stem cell bank to the terms of reference for the independent inquiry that was to come about after three years of the operation of both acts. Obviously, that is the Lockhart review. One of the recommendations contained in the Lockhart review did indeed relate to a stem cell bank, affirming the notion that there should be one in Australia.
In the exposure draft—the private members’ bill—that Senator Webber and I put forward, we did not actually legislate for a stem cell bank. There are a couple of reasons for that. First of all, we thought it might be appropriate for the Attorney-General’s Department and the other relevant department—the Department of Health and Ageing—to examine, in much more detail than the Lockhart review did, the details for a national stem cell bank. When I initially looked at this issue I thought, ‘If we implement the Lockhart recommendation in relation to this, how do we go about it?’ First of all, you do not need a legislative framework if you do not want one. People would be aware that the stem cell bank in the United Kingdom is not based on legislation; it is not enshrined in law in that way. So, first of all, it is not necessary. Part of me thinks it is always good to have something enshrined in law, as opposed to operating in a different framework—and I suspect that I am again echoing Senator Colbeck’s thoughts in this area. If you do decide to go down that path, you have a lot of factors to take into account. It is not just the scientific, ethical, health and other issues you have to deal with; there is also the intellectual property debate in relation to such a bank, which, of course, is huge—hence, the decision in the exposure draft to essentially allow a feasibility study by the relevant departments that we named.
I am not opposed to a national stem cell bank; in fact, the more I hear about it, the more excited I get. I think there are other issues that need to be examined: is it appropriate to have just one? It does not necessarily have to be in one place, though. There are other ways of it being a repository for those lines. Through you, Chair, to Senator Nettle, I support the intent of both the amendments that we are dealing with. Excuse me for speaking to the second amendment, but I guess it is inevitable. The time frame that Senator Nettle has allowed—which, as I understand it, is two years for the minister to provide legislation—is a pretty reasonable time frame. In terms of the bill before us, however, Senator Patterson is looking at a six-month time frame for the minister to report to parliament regarding the establishment of a national stem cell bank. Among the three of us—four of us, with Senator Webber—there is some compromise that can be reached here.
I am going to support the two amendments before us, perhaps as a way of sending a message to the government of the day, whether it is this one or another one in two years time, to provide legislation and to tackle some of those issues. Having said that, it is probably understandable that I am a little biased and I still think the option that Senator Webber and I pursued was probably the more detailed one in terms of the Attorney-General’s Department and the Department of Health and Ageing examining the feasibility, coming up with whether you want legislation and, if you do, explaining to us how you deal with the intellectual property requirements. That would be one requirement that I think you would have to satisfy before you implement amendment (2) that Senator Nettle is putting forward.
It is one thing to demand that stem cell lines are deposited in a bank, but you need to have some understanding of the intellectual property arrangements—even if they are, as I am sure Senator Nettle would like, to ensure public good and public access and that researchers can work on them regardless of whether they are undertaking private or public research. So we will support the amendments, but I just want to draw the Senate’s attention to the fact that there are a number of options that have been considered in relation to this issue. The notion of a stem cell bank is one that was recommended in the Lockhart review so, if we are being faithful to that review, there should not be a problem with supporting some of the mechanisms put forward.
I am sure it will come as no great surprise to people, as this debate goes on, that I agree with the contribution of Senator Stott Despoja. I, too, certainly support amendment (2) but I want to note, to perhaps facilitate the process, that I also support amendment (3) standing in Senator Nettle’s name. I see amendment (2), as has been outlined, as a step towards trying to achieve those public health benefit outcomes and accountability. Perhaps we are finally getting there on this one—we did not quite get there on the last one—but, over the last four years, we are getting better at this and we are coming to some understanding.
I think if you support amendment (2) it is pretty hard not to support amendment (3) because, if you are saying that you support a deposit in a national stem cell bank, then, really, you do need to actually establish one. These two are quite consequential, so it is a bit difficult to discuss them separately. I am assured by some that the government and the Prime Minister are committed to the establishment of a national stem cell bank, and I therefore do not see the harm in saying that we should actually have a time frame within which that should be achieved. With that, I support both the amendments.
I want to indicate that I will be supporting both amendments (2) and (3) when they appear, but I thank Senator Nettle for separating them and I think she has enunciated quite clearly why it was important to do so. I am also appreciative of Senator Nettle’s amendment to the amendment as printed. I think that will be useful as well.
In 2002 we moved an amendment to the legislation we dealt with then in order to start this train along the track. As a result of the amendment that Senator Stott Despoja and I moved, Lockhart reviewed the usefulness of having a national stem cell bank in Australia. If you look at Lockhart’s commentary on the question of stem cells, it is pretty evident that he was of the view that there was real potential for their use in Australia. He particularly cited the United Kingdom model. I do not think that he or his committee was clear about how it might be achieved, and I think that is why the wording of his recommendation—a very bald recommendation, just recommending that we have a national stem cell bank—is framed in that way.
We are now four years down the track, and I think it is timely to start putting some time frames around it. The time frame that the legislation currently identifies is that, within six months, the minister will report to the parliament. I think that is another step down the road of achieving this outcome. Then there is a two-year requirement—that a minister should bring legislation to the parliament within two years—and I think that is quite achievable. There are a lot of issues in the establishment of a stem cell bank that we have to go through. We have to go through the question of public and private. There is a question of intellectual property but also of personal genetic information that needs to be ensured. I think you have covered off most of it in your amendment, but let us make sure that we ensure that people’s personal, private information is kept that way.
I have heard that from you before. It probably will end up being the National Stem Cell Centre. That is what the Lockhart review acknowledged as well. These amendments do not absolutely direct that that is where it will be. So I will be supporting both of those amendments from Senator Nettle, recognising though that some people might not support both.
I want to indicate that I will not be supporting the amendments of Senator Nettle, or indeed any other amendments to this legislation, and I just want to put on the record why. Obviously I am disappointed that the Senate has seen fit to read this bill a second time. Clearly the Senate is now contemplating how it might enact legislation of this kind. That, as is clear from my remarks earlier in this debate, is profoundly disappointing. I also have to say that I think there are real problems with both the nature of a number of the amendments which are being put forward in this debate and the fact that we are amending legislation of this magnitude in this time frame. It seems that the importance associated with these amendments is being contradicted by the relatively short time frame that is available to consider these matters.
I think that we have here significant issues being proposed about which there has not been enough time to properly consider the implications. I see that there is just now being circulated in the chamber a further list of amendments—a running sheet of amendments that are proposed. Some of those amendments have not yet, as far as I am aware, been circulated in the chamber or are only just now being circulated in the chamber. If this were a piece of legislation dealing with maritime safety, the Egg Marketing Board—excuse the pun there—or something of that kind, I could well understand why we would need to consider these matters of a mechanical nature; but these issues are far more important than that. These issues are fundamentally important and amount to last-minute changes to a piece of legislation that will have implications for the nature of scientific research and policy for decades to come.
We have today, in making the decision to read this bill a second time, crossed a very significant and fundamental line, as many senators have already said. It alarms me greatly that we are attempting to patch up aspects of this legislation with amendments in this way at this late stage in the process. I will be opposing all of these amendments because I do not believe it is possible to remedy the defect that we have already put in place by proceeding to this stage in the consideration of this bill. I think this needs to be reconsidered. It would be unfortunate if we had to return at some point in the future after this policy was in place—after human embryos were being experimented upon and destroyed under this process—to fix up problems which were the result of the rush job that we undertake today in respect of this extremely important matter.
The senator says that the government was wrong to do that, but he voted for it at the time. There has been a second reading vote which has passed the chamber. This is the proper time for members to bring forward amendments. It is legion the number of times in which amendments have been moved in committee to all forms of legislation. This is private member’s legislation. What I do suggest is that the member is quite right: if he cannot deal with the amendments then he should vote against them. Opportunities will come later down the line, but for those members who want to move amendments, this is the proper time to do it.
When it comes to Senator Nettle’s amendments, which have been before the chamber for the whole day, they are simply putting conditions upon a component of the bill which had its second reading passed here an hour or two ago. They simply qualify that. They put a time line on it and a condition on the National Stem Cell Bank. There is a time line of six months for the minister to report to the parliament. We have voted for that. Senator Nettle is saying, ‘Let’s have legislation within two years,’ as another condition. That is not difficult to get one’s mind around, but if Senator Humphries has trouble with the process then the proper thing to do is to vote against the amendment. Likewise, it is the right of everybody who can deal with these amendments to determine whether or not they will vote for the amendments on their merits. I will be supporting these amendments from Senator Nettle.
Partly in response to those comments, and also as a wider comment on the debate we are having—and it was probably my amendment that Senator Humphries was reacting to; I think it was being circulated in the chamber just as he was speaking—I can understand people’s desire to have as much time as possible to consider amendments. I was certainly trying to establish, as late as when the second reading vote actually happened, whether amendments would be coming from other senators. It is worth reinforcing the point that it was expected that the second reading debate on this legislation would go at least until dinner time if not right through to the end of tonight. It is also worth saying, speaking as someone who is somewhere in the middle on this legislation—I am not sure that there are many others, but I am someone in the middle—that I am quite happy to have as much time as possible to deal with this.
Frankly I would prefer to have more time to deal with this. If people are still genuinely inquiring about issues to do with this legislation then I would certainly support adjourning debate so we can get it right. However I would add that Senator Humphries said himself that he does not think the legislation can be fixed. He said that it is beyond redemption and that he is going to vote against it. That is fine. Of course he is entitled to that view. But in that context it probably does not matter terribly much how much notice he has of particular amendments because he is going to vote against the whole bill anyway. I am in a different position, and I certainly would appreciate lots of time to consider amendments—because it seems there are not going to be terribly many more other than those that we have already, as far as I am aware.
The concerns that have been raised go to what has been a bit of a wider problem with the parliamentary side of this process. For all the criticism that was laid on the Lockhart committee—only taking six months, only having all of those hearings all around the country, only reading half of the papers that have ever been published in the known universe instead of all of them—if you compare that to the process we have had, of three very rushed public hearings, an extremely short time frame for people to put in submissions, a very short time frame for putting together the committee report, and rushing straight into Senate debate, frankly I do not think we have much ground on which to criticise the Lockhart committee for the adequacy of their process. Ours has clearly been poorer. I would agree with any expression of view, coming from whichever perspective on the legislation itself, that that is less than ideal.
Again as someone who has not taken a fixed, black-and-white view of this legislation, I also found the way the Lockhart review and the legislation was dealt with through the Senate committee process very frustrating. As I have already mentioned, there was only a small number of hearings and a limited amount of time for each witness. I could not get along to some of the hearings, because I was already stuck in hearings for other legislation that this government is railroading through the parliament. If there is a genuine concern from anyone on the government benches about inadequate time to consider legislation, I would love them to support an amendment the next time we move one to allow proper time for consideration of a range of equally important pieces of legislation that are currently being railroaded through the parliament.
Because there are many other important inquiries under way into other legislation and other matters, I could not get to the cloning bill hearings. But, frankly, on the day that I could, I decided it really was not worth my time. There was a short time frame for each witness, often with three, four or five witnesses appearing at once. The time frame was divided precisely between those who were already totally in favour of the legislation and those who were already totally against it, with people in the for and the anti camps pretty much sitting on either side of the chair. That is fine as well, but it really demonstrates that, for those of us who were hoping the committee process might be a genuine process of inquiry into the issues rather than a mechanism to gather the evidence that suited your predetermined view, it fell short of what it could have delivered; I think that would be the best thing to say. It is not the only Senate inquiry in history that has done that, but with this particular legislation and the context surrounding it I think it was unfortunate that that was the case. If there had been much more time for genuine exploration of the issues, I think it would have been better for everybody.
One of the other problems that I see with the issue is that, understandably, a lot of the focus has been on the issue of cloning and whether that is desirable or not—creating embryos through cloning techniques for the purposes of research. But that is only one part of the Lockhart review. The Lockhart review contained I think 54 recommendations covering nine broad areas. There were only seven recommendations that actually went to the area of allowing so-called therapeutic cloning and other currently prohibited techniques. There are other recommendations that go to other matters.
I think it was unfortunate that the committee process was not able to be thorough enough. I am not blaming anybody in particular for that; I am just blaming the processes we force upon ourselves. That meant that some of the more specific issues and some of the technical issues about the legislation and about some of the findings of the review were not able to be properly examined. I think that is unfortunate. Rather than attend all of those three hearings, I read the Hansard of all three hearings. I am not sure whether that is more painful than attending or not—probably not. It is probably better to just read it when you can. I am not saying there was no useful information there—there certainly was, from a number of witnesses on both sides of the debate. But it was not a thorough examination of the detail of the legislation. It was really each side hammering away, trying to get evidence to back their case and to discredit the other side. I do not criticise people for doing that; that is a perfectly legitimate approach to take. But for those of us who were trying to examine the detail and the issues by taking a much broader—perhaps impartial or undecided—approach, it was inadequate, certainly from my perspective. I guess I can only speak personally. I wanted to make those broader comments in relation to the process we are going through now as well as in response to Senator Humphries’s comments.
Quite frankly, if anybody in this chamber does feel they need more time to examine an amendment, to examine the issues, then I certainly would support moving to adjourn the debate. We have a very long list of legislation, as every senator here knows, that can be brought on as a back-up and that has been set aside specifically in case we finish this debate earlier than expected or in case we need to adjourn the debate because of the need to work through some detail. So we do have that option. For anybody who wants to say in the future, ‘I do not have time to understand this; it is all too rushed; it is piecemeal,’ we have got that option and we should take it. We should adjourn the debate and get on with other legislation until we are clear on what we are doing.
The last thing we want to do, particularly if the numbers are as finely balanced as it might appear, is to have a shoddy process at the absolute pointy end of it all. I think we owe more than that to the many thousands of people who have participated in all the debates and processes to date through all of the submissions and through the hearings of the Lockhart inquiry as well as those of our own Senate committee process. Many people have been emailing us. Literally thousands of Australians have engaged with this process, have expressed a view and have shown interest. That is something we want to encourage. Whatever their individual view about the policy merits, we should not let them down at this point by people feeling that it is being railroaded. If they feel that they are, then let us put it off until we are all clear about what we are doing.
The raft of amendments that we are debating involve quite substantial issues with regard to the stem cell bank. If they are successful then we are starting to change the fundamental facts of the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Bill 2006. In many instances people have torn themselves apart over whether they will support it. I do not think that letting people make a decision on one issue and then start changing some of the fundamental legs that it stands on results in a fair outcome. When you do that, you move the debate from one of fact to one of ethos. I do not support a debate on ethos because it creates a human life that apparently is stateless and has no value, and that of course is a very dangerous premise for any civilised nation to act on. Seeing that this is an issue of such moral weight and to now be using the period to put amendments before the chamber—which, on a true consideration, need to be looked at over a longer period—if one of these amendments was to be allowed then everybody should be allowed the chance to go back and reassess the whole bill, and they might come up with a different suggestion.
What we are about to decide here today is probably the most important decision that this parliament will make: that we in Australia have now delivered a status of human being that is without right, and that the only thing that precludes it from developing further are the words ‘14 days’. That will be the next thing that people will try to change in here, because they do not want 14 days. They want further development so that in the end what we will be having is the development of a baby, a foetus—whatever you like to call it—to three months because that will produce a completely compatible liver, pancreas or heart and that is where this debate is heading. The only thing that is now stopping it are the words ‘14 days’. It took only four years to go from a unanimous vote against this legislation to now supporting it. I would put my house on it: before my Senate term expires, there will be a very good reason why we have to go beyond 14 days. Then we will have this crazy argument, where we will sit down—and it will be calibrated—and they will say, ‘We just need to go to 28 days.’ We will have to have an ethical debate about the difference between 14 days and 28 days. And, on this premise, that will be a very hard debate not to agree to. Then of course it will go from 28 days, because 28 days is a month, and, ‘There will be greater advances we could get if we went to two months or possibly three months.’ We have defined that this person has no rights. This person who lives in Australia—and they are alive—has no rights. It is not a case of no rights at work; they have no rights at all in any way, shape or form.
Where do you draw the line? The only way you can possibly draw the line is in so defining that those inalienable rights, which we all have, have somehow descended on that person. So they have gone from a product—because we are now creating people who are products; human life that is a product—to apparently a life that is endowed with all those rights that manifest in what we try to protect here every day. This is what we are now delivering to the Australian people: the words ‘14 days’. Those two digits are the only protection mechanism we have from it becoming 28 days, two months or three months.
You always wonder how people can get their minds around to delivering something. We look back in history and think, ‘That was manifestly wrong, that was evil’—all those terms we roll out. But it did not just happen overnight. It did not just develop immediately into something that is judged by history to be grossly evil. It got there by calibration and by evolvement. It got there by crossing out a principle—a principle gets rubbed out—and that is the principle that a person has rights.
If you believe in the strength of this place—that it will be endowed almost into the structure of this place that you will keep them to 14 days—then you must prove it to us by showing one piece of legislation or of circumstances where that will not change, where the embryo does not become amorphous, nebulous and move and change. That is the issue. You have to take yourself down the progression. Of course, this ‘thing’ that is 14 days old has no rights. The great value that can be obtained from that same product—because we are now calling human beings ‘products’—if you allowed it to develop to three months would be far greater. It would stand to be a logical argument that what is delivered by a baby that is three months old is far in excess of something that is 14 days old.
And there will be great cures. There will be new retinas, new hearts, new livers, new pancreases—anything you want. We will have a factory of human parts. Even if it is not happening in this nation, we start putting our imprmatur onto it in other places. We give by default, by proxy, our blessing to that process happening elsewhere because we have made the statement that human life is now property, and even the words ‘stem cell bank’ start to define it as a property, like a chattel, something you can put away to be drawn on at a later stage, to be traded or bartered.
That is where this debate has descended to. You can walk away from here tonight, but just look at the terminology that we are talking about right now, within hours of a vote. Within hours of the vote, already the terminology of this callous assessment of human life is coming into place. We will be responsible for where this ends up. You cannot sit back idly in your retirement and say, ‘I never envisaged that that would happen,’ when it develops into what people say it is going to—when we have the development of spare parts from someone who is three months old. You cannot disassociate yourself from that result. You cannot, because you are absolutely ultimately responsible for it. So in voting for this legislation you must acknowledge that you are bringing that about.
I would like to make a couple of quick points. Firstly, the way that Senator Joyce and other members of this place can ensure that we are not dealing with so-called ‘nebulous circumstances’ or uncertainty or even the ‘slippery slope’ is to make sure that we have clear, specific and strictly regulated legislation. The legislation, the acts that we currently have, provide a nationally consistent framework not just for ART research but also for research involving human embryos. This legislation adds to the kind of research and technological advances that can be undertaken. It does so within a similar if not arguably strengthened regulatory regime.
One of the amendments I have put forward, along with Senator Webber, is for an increase in some of the penalties for prohibited practices and acts. This is very specific. There is nothing nebulous or uncertain about this proposed legislation. Whilst I take on board the personal concerns of Senator Joyce and the ethical debate surrounding this bill, I think we all have to acknowledge that we have differing views ethically or otherwise. But there is no doubt that we as legislators make laws, and we can be as specific as we want when it comes to drafting those rules. This is very specific law.
I am not going to take any great heart from Senator Joyce being homeless in a few years time. If he wants to bet the house, that is his decision. However, as an active member of this parliament, as he is now—and I would assume into the future, but I am not going to either prejudice or predict his re-election or otherwise—I say to him that parliamentarians, their morals and personal ethical codes as well as their interest in science and other things will determine what the framework is. If you want to make sure that people work within that framework, you need to make sure that there are appropriate penalties and monitoring provisions. That is something that Lockhart has done. I do not know how familiar with the specifics of the Lockhart review people are, or with the bills that have been drafted—indeed, the one before us. Looking at the monitoring provisions, you can see that people can operate outside the licensing of the bill’s requirement at the moment—that is, people can break the law, and they can do so because there is not enough monitoring. There are penalties that currently apply to people who are operating without a licence. But what about people who are operating without a licence in terms of access through a warrant? You will see that penalties can be made stronger, and that is what some of the amendments we have put forward seek to achieve.
In relation to the process, I want to make it very clear, as Senator Bartlett has also done, that apart from the fact that it is our job to sift through amendments, whether they are big or small, anyone who has looked at the amendments before us, given them even a cursory look, will see that in most cases they are not substantial. If you look at the list of amendments that Senator Webber and I have circulated, you will see that the first half-a-dozen say: ‘15 years, 15 years, 15 years, 15 years.’ Do you know why? Because we are increasing the penalties from 10 years to 15 years. Allowing for the fact that, yes, this legislation may get through, that people do not want to take an active role in the committee process and that people do not feel comfortable voting for amendments, if people are going to vote against increasing the penalties for people who actually break the law when doing research involving human embryos, that is just crazy, especially if the legislation goes through. I do not know whether it will. Surely if people say, ‘We cannot ameliorate bad law because we don’t believe in it,’ that is one thing, but what about ensuring that the provisions are tough if this law is going to be in place?
As for the notion that the amendments are substantial and people cannot deal with them, we were not supposed to be dealing with the committee stage of this legislation until tomorrow. Having said that, most of us have done our amendments and they have been circulated. If people are saying, ‘They’ve only just been circulated,’ in the case of Senator Webber and me, read the committee report. Senator Humphries was chair of that committee. We flagged the amendments specifically in that report. There are five areas of amendment, most of them minor. This is not a patch-up of the legislation. This is good legislation. This is people having an opportunity to feed into the process and to value-add to the legislation if they decide that is the way to proceed. I have withdrawn one of my amendments in order to facilitate debate. So there are four areas of amendment, involving roughly 19 amendments in all, but they will be dealt with in a cognate fashion, so it is nothing too scary. I am happy to take any questions on those amendments. This is what we do: it is the nitty-gritty of the lawmaking that we do. It is not a case of, ‘This is too hard; we have got to Tuesday and we haven’t had enough time.’ We have got until Thursday if people want time.
In relation to the stem cell bank, given that that is the amendment we are currently dealing with, there are a range of reasons for a stem cell bank. It is not about the commodification of stem cell lines; in fact, it is quite the opposite. The rationale behind stem cell banks, either the one established in the UK or the one that has been introduced in the US, is that they provide some degree of public access. If that is not something that concerns people, then there are other issues that relate to it too. It ensures that researchers can be better informed about, have more knowledge about, the source of that stem cell line—its background, where it has come from and its quality, which are all integral to this research.
Even if we do not agree on some of the amendments before us in relation to somatic cell nuclear transfer, the issue of a stem cell bank is still applicable to the acts we are currently operating under, because we do have stem cell lines derived from adult stem cells and we do have stem cell lines derived from embryos. That is a debate that is even separate from so-called therapeutic cloning. They also have the potential, as the Lockhart review has pointed out, to be a clinical resource in years to come. I do not know if the analogy of a blood bank is the best one, but, if people are worried about it being commodified, it is not necessarily that kind of a repository. It is quite the opposite; it is actually ensuring that it can be used one day, hopefully, down the line, in a clinical capacity.
A stem cell bank is actually about the provision of public good. It can be used in other ways as well. That is why we should be allowing—or encouraging, at least—some of the relevant departments to conduct studies to make sure it works in a way that benefits people who do believe in so-called therapeutic cloning as well as those who do not. A stem cell bank is not the kind of thing to get bogged down on if you are radically opposed to this legislation; it is something that can actually provide benefit in a research and clinical capacity both now and into the future. Therefore, it should not be dismissed.
I hope that when people are addressing the amendments they realise that they have been put forward in good faith and put forward arguably very early. This is a conscience vote and that is why a lot of people are here who do not necessarily deal with the nitty-gritty of legislating every day. But those on the crossbenches do, and we know sometimes you do not get amendments until the last moment. Sometimes we do not draft them until the last moment. Sometimes the solution to a problem does not become clear until you have had the discussions and you have argued it out. So, please, colleagues, do not dismiss the amendments on the grounds that they are too late or what have you. Most of them were clearly foreshadowed in the committee report. I am happy for people to vote against my amendments, but please do not do so on the basis of process, because this is actually quite an organised process—in fact, so organised that we are running ahead of time. Most of the amendments before us have been well thought out and put forward in good faith. Whether or not they pass, lateness should not be an argument for voting down the bill.
I had hoped to say in my second reading speech, although I did not have time, that Senator Nettle, Senator Stott Despoja and Senator Webber very clearly flagged the intent of the amendments in the additional comments they made in the committee report. If people had addressed that, they would have seen that there were amendments that were going to come. I do not think the amendments are very different from what they flagged. As Senator Stott Despoja said, we often deal with amendments from people presenting bills and people opposing bills, or from people wanting to modify bills that they are supporting, with amendments that come in late—although these were not late, because they were foreshadowed. I think that is the important factor in this.
With regard to the stem cell bank, I very much support Senator Nettle’s concept of a stem cell bank. The Prime Minister indicated on 23 June 2006:
assisted reproductive technology—
purposes and a national stem cell bank.
So it is on the radar of the Prime Minister. One of the problems I have about supporting the amendment as it stands is that currently adult stem cells are not required to be in a stem cell bank. We do have two different sorts of processes in the creation of embryonic and adult stem cells. Some are undertaken in the public sector and some of those stem cell lines are publicly available on a register for that purpose. Others, including adult stem cells, are produced in commercial enterprises. You have two situations: one is where a company is producing adult stem cells and there is no requirement for them to go into a stem cell bank because it is not covered in this legislation, and the other where a company is producing embryonic stem cells and there is a requirement which would disadvantage that and would mean that people would be less likely to do embryonic stem cell research. As I have argued before, we need all the aspects of stem cell research together.
Looking at what the Prime Minister has said, and if this bill were to go through, I think there would be a good case to argue that if we have a stem cell bank we need to look at how we incorporate adult stem cells into that process. I cannot see that if a stem cell, adult or embryo, is produced in an institution which is publicly funded they should be treated differently in terms of what happens to them.
The other thing is that, if you were able to derive a stem cell line from SCNT, that is somebody’s actual DNA. Under the amendment as it is, you are requiring that stem cell line to go into a bank. The person who has donated that, who may have donated it for one purpose only—to develop a stem cell line that has a particular disease profile—may not want to give consent for it to be used in any other way. I do not know—that is just my thought. What we need to do is to have a much more thorough look at a stem cell bank, which I support, but I do not know that this is the way to do it. For those reasons I will not be supporting the amendment. But I would be advocating very strongly, if the bill goes through, that we follow up the statement of the Prime Minister:
The Government also supports further exploring the establishment of a national register ... and a national stem cell bank.
I would like to indicate that the stem cell bank has been talked about in the Australian context since 2002. Here we are, with four years notice from the last time I raised it as an issue of concern in the Australian context, debating it again. I appreciate the comments that people have made in recognising that there is some value in stem cell banks. I have looked very closely into this issue and the operations of the Stem Cell Bank in the United Kingdom. Central to a stem cell bank being able to operate is having stem cell lines. So, rather than moving a whole lot of amendments about how a stem cell bank should operate, this is just the central one. It cannot be a bank if there are no stem cell lines in it, so let us require there to be stem cell lines in it. That is why I am proceeding in this way. I will make some other comments generally about the stem cell bank later on.
People have raised issues around consent and whether that would deter people from doing research. I am not sure that it would deter people from doing research—I do not know. I think that consent issues are issues that need to be dealt with. There are Lockhart recommendations about the NHMRC looking further into issues around consent. Consent is a big issue, an issue I have read books on. This is an issue we can talk about in a lot of detail. But what I have tried to do here is deal with the fundamental, core element, which is: let us have a bank. Everyone has said that they want a bank. And the central component of a stem cell bank is stem cell lines. That is why I am proceeding with this amendment.
I also want to indicate that all the amendments I am moving are on behalf of the Australian Greens. The amendments have the support of all four of the Australian Greens senators including my colleague Senator Milne, who is overseas at the moment. She has indicated she has a different view from mine in relation to the bill but she is supportive of all of these amendments that seek to put the public interest at the forefront of the research and how it occurs.
I want to draw the honourable senator’s attention to item 47B, on page 25 of the bill, which says:
Minister to report to Parliament
1. The Minister must prepare a report on the following matters:
1. the establishment of a National Stem Cell Centre and a national register of donated excess ART embryos—
and I know that Senator Nettle is fully across this, but I just want to make sure it is there and on the public record, because not everyone gets into as much detail on the bill as some of us have—
2. the making of guidelines referred to in this Act, to the extent that those guidelines were not in force on the day on which this Act commenced.
2. The report must be completed not later than 6 months after the day on which Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006 commenced.
It puts some teeth—more than there have been before—into the establishment of a stem cell bank. If I were a minister I would be thinking about how I was going to answer that when the Prime Minister has indicated that the government is prepared for it. That is why I have put that clause in there—to bring it to some sort of head.
That the amendment (Senator Nettle’s) be agreed to.
I move Australian Greens amendment (3) on revised sheet 5112:
(3) Schedule 2, item 35, page 26 (after line 3), at the end of section 47B, add:
(4) The Minister must present to Parliament legislation for the establishment of the National Stem Cell Bank within two years of the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006 receiving Royal Assent.
This amendment is about establishing a stem cell bank. The last one was about putting stem cell lines into a stem cell bank. This one stipulates that within two years the minister should provide legislation to the parliament designed to establish a stem cell bank. Of the three amendments that I am moving, this is the most straightforward. This says we should have a stem cell bank in two years time.
In 2002, the Australian Greens sought to achieve this outcome. What happened in 2002 was that the Lockhart committee was directed to look at the issue of whether we should have a stem cell bank. Lockhart recommendation No. 47 was that a national stem cell bank should be established. So it is a recommendation of Lockhart that we have a stem cell bank. On 23 June this year, the Prime Minister put out a media release saying that the government supports a national stem cell bank. The current legislation provides that in six months time the minister has to report back about what is going on in establishing a stem cell bank.
This amendment is quite generous. It says that in two years legislation should be introduced providing for a stem cell bank. There are many issues that need to be discussed around the establishment of a stem cell bank. The CEO of the Australian Stem Cell Centre, as part of the inquiry, indicated that when a stem cell bank was set up in Scotland it took between 18 months and two years. That is where the two years suggested in this amendment came from. If it takes two years overseas, I am allowing for two years here. It could be a lot faster here because there is already an Australian Stem Cell Centre, but there does need to be time; that is recognised in this amendment. This amendment says in two years let us have the minister come in here with some legislation and we will set up a stem cell bank. This is probably the clearest of any amendments. I commend the amendment to the Senate.
I want to reiterate the position that I put previously, and that is that the Democrats support this amendment. I do not wish to hold the Senate up, but I just want to point out that this is different from the last amendment we dealt with: this amendment deals with the requirement that the minister provide legislation for the establishment of a stem cell bank within two years of the current bill being enacted. If this does not pass the Senate, there are still provisions within the bill before us to be considered, as there were in the exposure draft from Senator Webber and me. Essentially, that dealt with—if not an investigation into the applicability of a stem cell bank or how you would establish it—the requirement that it be provided in a six-month period. I am happy with Senator Nettle’s two-year time frame. There is also pretty much a six-month time frame under Senator Patterson’s bill. So I figure this is win-win, and I am happy to support the amendment before the chair.
That the amendment (Senator Nettle’s) be agreed to.
by leave—I, and also on behalf of Senator Webber, move our amendments (1) to (15) on sheet 5113:
(1) Schedule 1, item 7, page 5 (line 14), omit “10”, substitute “15”.
(2) Schedule 1, item 7, page 5 (line 27), omit “10”, substitute “15”.
(3) Schedule 1, item 7, page 6 (line 7), omit “10”, substitute “15”.
(4) Schedule 1, item 7, page 6 (line 16), omit “10”, substitute “15”.
(5) Schedule 1, item 7, page 6 (line 25), omit “10”, substitute “15”.
(6) Schedule 1, item 7, page 6 (line 29), omit “10”, substitute “15”.
(7) Schedule 1, item 7, page 7 (line 5), omit “10”, substitute “15”.
(8) Schedule 1, item 7, page 7 (line 9), omit “10”, substitute “15”.
(9) Schedule 1, item 7, page 7 (line 13), omit “10”, substitute “15”.
(10) Schedule 1, item 7, page 7 (line 16), omit “10”, substitute “15”.
(11) Schedule 1, item 7, page 7 (line 21), omit “10”, substitute “15”.
(12) Schedule 1, item 7, page 7 (line 25), omit “10”, substitute “15”.
(13) Schedule 1, item 7, page 7 (line 29), omit “10”, substitute “15”.
(14) Schedule 1, item 7, page 8 (line 28), omit “10”, substitute “15”.
(15) Schedule 1, item 7, page 8 (line 32), omit “10”, substitute “15”.
The amendments by Senator Webber and me on the sheet circulated are very specific, very clear and very easy to understand. These first 15 amendments change the 10-year penalty to a 15-year penalty. We have sought to make all penalties in terms of imprisonment completely consistent throughout that division. In some respects, this will mean the status quo, in that there are some penalties that are already 15. However, those we have sought to change were previously lower—that is, 10 years. This amounts to a beefing-up of the penalty provisions for those acts and practices that previously the parliament has deemed abhorrent, inappropriate and, indeed, criminal.
This is actually the model that Senator Webber and I used in our draft exposure bill. It was not commented on in the Lockhart recommendations, and I can understand that some senators who want to follow Lockhart to the letter might think, ‘Oh well, we can leave the penalties as they are.’ But I think it is a reasonably strong and good message for the parliament to send that, if people are in breach of this legislation, they cop a very hefty penalty. That is, if people are involved in human reproductive cloning or indeed, specifically, in putting an embryo created through any of the processes—other than fertilisation, of course—into the body of a woman, for example, that is not a 10-year penalty; that is a 15-year penalty.
I know that there are senators who have preferred not to vote for amendments in this debate, but I do ask what kind of a message that sends if people have a fundamental ethical or other problem with the legislation. If senators have a problem with the legislation and the practices that are there—certainly if they support the outlawing and the prohibition of certain practices under the current acts and indeed under the legislation before us—I think providing 15-year penalties can be considered quite appropriate.
We have made it completely consistent. All division 1 offences are treated equally. By increasing the 10-year penalty to 15 years, I think the parliament sends a very clear message that we are pretty serious about the punishment for engaging in the activities that are prohibited outright under this bill so there is no lack of clarity there. These are not difficult amendments. There are 15 of them, dealt with in a block. This is one of the four areas where Senator Webber and I seek to amend the bill.
I obviously support the amendments standing in my name and that of Senator Stott Despoja. As Senator Stott Despoja has outlined, these are very simple and straightforward amendments. They are amendments that were foreshadowed in our additional comments in the committee report. I must say it was interesting listening to the second reading debate, in that a number of people referred to the fact that they had read the committee report and that it helped guide them in coming to a view. I therefore do not necessarily buy the argument that these amendments have snuck up from nowhere. These provisions were very clearly in the exposure draft, as Senator Stott Despoja has said, that she tabled earlier on behalf of both of us. I therefore strongly support these amendments.
I think there is a need for some consistency in terms of the penalties, particularly if people have concerns about the ethical framework regarding how we deal with people who do not comply with the guidelines. Having a fairly tough penalty regime is probably the best safeguard we have to ensure that people do comply with the guidelines. I look forward to hearing any justification as to why we do not need tougher penalties to ensure people comply with the guidelines.
I note Senator Stott Despoja’s and Senator Webber’s amendments. What I did in the bill was to keep consistency in the penalties—if the embryo was implanted, it was 15 years; if it was created, it was 10 years; and the others were five years. I can understand Senator Stott Despoja’s and Senator Webber’s reasons for increasing them to 15 years. It was not something that was addressed in the Lockhart review, but I think it is appropriate that Senator Stott Despoja’s and Senator Webber’s amendments should be supported.
That the amendments (Senator Stott Despoja and Senator Webber’s) be agreed to.
I move on my and Senator Webber’s behalf amendment (16) on sheet 5113:
(16) Schedule 2, page 14 (after line 6), after item 1, insert:
1A Subsection 7(1) (after the definition of corresponding State law)
human egg means a human egg donated to research intended for:
(a) fertilisation specifically for research purposes; or
(b) the creation of a human embryo specifically for research purposes;
human egg means a human egg donated to research intended for:
I understand that there will be a range of views on this particular amendment as to ‘human egg’. I am moving this amendment in an attempt to address concerns that came to the attention of the Senate Standing Committee on Community Affairs both in written submissions and in verbal submissions when witnesses presented to the committee in Sydney. I have no reason to believe that their views have changed. I am referring to the concerns presented to us by ACCESS and the Fertility Society of Australia. Both of these organisations are concerned about the reference to ‘human eggs’ in the title of part 2 of schedule 2 of the bill and throughout the following text. They are concerned that this may have the consequence of extending the coverage of this bill to activities involving human eggs for which a licence is not currently required. They are worried about the consequence of specifying ‘human eggs’ in that title and throughout the bill as it might actually have a negative impact on current processes, particularly those processes involving human eggs that do not necessarily require a licence.
So you are dealing with IVF organisations and fertility networks who are concerned about the impact this will have on their activities. For example, a licence is currently not required to conduct research on eggs alone for ART purposes. Yet it is not clear to me—or to Senator Webber, ACCESS or the Fertility Society of Australia, for that matter—that this bill as read would not force that activity to come under this legislation. I understand that Senator Patterson will provide clarification to the Senate in committee as to the impact or consequences of specifying eggs in the title and text, something that is currently not done. What we are seeking to do is restore the current bill to the status quo to ensure that those particular activities are not covered.
We want to know whether the consequence of doing this would require the NHMRC to license any activity involving human eggs—and I am making sure that the advisers in the chamber have caught that particular question. Would the impact of the current bill on processes that are currently underway require the NHMRC to license any activity involving human eggs? Believe me, Senator Webber and I have spent a bit of time deliberating on how to approach this. It was not simply a case of removing the word ‘egg’ from the bill, thus restoring it to the status quo, because that would not necessarily work given the way the bill is drafted. Obviously, there are some differences between the approach of the exposure bill that Senator Webber and I have tabled and the approach in this particular bill taken by Senator Patterson. We have taken the approach of defining ‘human egg’ for the purposes of this bill, to ensure that it only refers to a human egg that is used for the research that this bill covers. It is an attempt to clarify and it is an attempt to address the concerns of organisations such as ACCESS and the Fertility Society of Australia. At one stage Senator Webber and I were considering a slight change in terms of that definition as opposed to talking about eggs used for—I think it was something to do with the intention; I might seek clarification from colleagues.
I am not pretending this is an easy issue, but I think it could be resolved simply if Senator Patterson were to outline how her drafting process reached this particular model and path, as opposed to the one that we adopted, given that obviously this bill is different from the original act. We want to provide some reassurance for those people involved in IVF that anything involving human eggs is not going to require an NHMRC licensing process. If Senator Patterson can give us some reassurance, we will then see whether or not we need to proceed to a vote. But at this stage Senator Webber and I prefer our approach and will be supporting it unless convinced otherwise.
I have noted the issues that have been raised by Senator Stott Despoja, by ACCESS and by the Fertility Society of Australia. It has been commented that this bill purports to regulate all uses of human eggs. I think this concern has arisen from a misunderstanding of the operation of the bill. This bill does not regulate human eggs per se; rather, it regulates those activities detailed in the Lockhart report—that is, eggs being used for SCNT and research involving eggs and sperm up to the first mitotic division. So references to eggs throughout the bill are only to ensure that, where an egg and sperm are used, up to the first cell division, all the normal licensing conditions also apply to that. Licensing conditions apply to an embryo but not to an egg, and, under the bill, an egg is an egg until the first mitotic division. So this definition was placed in the bill to make sure all the consent arrangements for eggs used in SCNT and research involving egg and sperm up to the first mitotic division apply to the use of an egg. It does not regulate the use of eggs in normal ART; it does not change the current situation for the use of eggs in ART. It is for the two changes that were brought about as a result of the Lockhart report. Before the 2002 legislation, the ART institutions were able to test sperm on an egg up to the first mitotic division. One of the unintended consequences of the 2002 legislation was that they were no longer able to do that. They put a case that that is important in fertility treatment. Eggs are used in SCNT—which was not in the previous bill—and therefore they were not covered. I think everyone would agree that appropriate and proper consent should cover the use of eggs in both those cases, and that is what this definition is meant to do.
I apologise to ACCESS and the Fertility Society of Australia. They did put in a submission. I should have responded to explain why that definition was there. Maybe I did not quite see clearly that point in their submission. As I said, their concern has arisen from a misunderstanding. That is why this definition is there; it is not from some sort of Machiavellian motive. It was to address the issue in the Lockhart report but to make sure we had proper consent.
I thank Senator Patterson for that answer. I was not disputing the motives; I just wanted the rationale for why it was done that way, given that, in drafting the exposure draft, I did not automatically find that to be the most obvious way to proceed. As Senator Patterson and I both know, you can achieve the recommendations of the Lockhart review in various ways in drafting the legislation. Given those comments and the definitional issues regarding a human egg, I am wondering what harm there is, if any, in including the definition that Senator Webber and I have put forward. I acknowledge, for the chamber’s benefit, that this is the amended version. The final terminology is that a human egg means a human egg donated to research ‘resulting in’ as opposed to ‘intended for’, which was the initial terminology. Is there any harm in including that definition? Does it detract in any way from the bill?
I am not. It is actually the other way around. I am just checking whether there is an updated amendment. I thought that was something that may have been moved on the floor by Senator Webber or other colleagues. Otherwise, I am happy to move that. Would you prefer ‘intended for’, not ‘resulting in’?
I think it was me that created some of that confusion—I was getting my versions of the amendment confused—but yes, it is ‘intended for’. To reiterate some of the comments that have been made in support of this amendment, whilst I appreciate the contribution made by Senator Patterson—and I think indeed we are all trying to arrive at the same result here—this was a concern that was raised, as has been mentioned, during the inquiry process with submissions and what have you. It was just our attempt to make it quite specific to ensure that the NHMRC need only issue a licence where donated eggs will be used for the purposes as outlined here and not for other purposes. It is actually trying to make it quite clear and not in any way to have people come in and interpret legislation in different ways and say that it is required for all ART eggs.
I thank Senator Stott Despoja, through you, Temporary Chair. I am not able to accept this amendment because I have had advice that it is not workable within the bill. The words ‘human oocyte’ are used in the definition of human embryo. Human oocyte is defined as the same as a human egg. Therefore, the new definition of ‘human egg’, which limits an egg to one donated for research only, would, I have been advised, then become part of the definition of ‘human embryo’. This would mean that something is only an embryo if it is donated to research, so it does have some problems. Also, the definition of ‘responsible person’ is related to an excess ART embryo, so it is also a problem there. So it has implications in other parts of the bill. For that reason, I am not able to support it, because it has technical problems. I am also wondering about its grammar, but that is not the point of it. For that reason, I would not be supporting the amendment.
It has been a long day. I am indebted to my good friend Senator Wong for pointing out to me this question for Senator Patterson: if our definition of egg is about the first mitotic division, how does the bill as it stands ensure that it does not apply to all ART processes? How will you guarantee that you are not going to pick them up? Because I would have thought that is a process that occurs within ART.
Through you, Chair: Senator Patterson, you are arguing that that guarantees that human eggs will not be caught up in the possibility of requiring a licence as per the concerns raised by ACCESS and the Fertility Society. So, subsection 20(1) as it currently stands—because of, presumably, (b), (c) and (e)—covers that? Just make sure there is a specific protection under 20(1) for those eggs to which we are referring. I am sorry to be pedantic—maybe it is making up for my grammar—but I just want specific clarification.
In that section, 20(1), (e) is, as I said before, where they can regulate regarding an egg used in:
research and training involving the fertilisation ... up to, but not including, the first mitotic division,
because otherwise it is not regulated at all, because it is not an embryo. So there is no other regulation except under SCNT with regard to this bill. So it is regulating the use of eggs for SCNT, because it did not appear before, and for using up to the first mitotic division—otherwise they would not have to apply for a licence; they could just go and do it. So what we have done is to put in there that, if they are using an egg up to the first mitotic division, they have to apply for a licence to ensure that we have proper consent. That is one way of protecting people giving eggs for SCNT or for ‘research and training involving the fertilisation of the human egg by human sperm’—which is (e)—to make sure that is covered to ensure you have proper consent. I think I have outlined that once before, and it is there in 20(1) and it is also covered under using eggs for SCNT.
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.
The Democrats and the opposition oppose schedule 2 item 4 in the following terms:
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.
The Lockhart review found when they were doing their consultations that people who were having, in particular, pre-implantation genetic diagnosis had embryos that were deemed not to be suitable for implantation because they had genetic errors—for example, Huntington’s chorea. Because of the way the current bills are written, those could not be used for studying or developing stem cell lines—where people doing research can look at a stem cell line and where cells go wrong in that process. There are some diseases that cannot be identified in an embryo; others can.
It seemed to the Lockhart committee and to those of us supporting the bill that those embryos that are unavailable because of the guidelines stating that people have to give informed consent for a period of time, and that are unable to be frozen, were wasted. People who had those diseases also expressed concern that those embryos were not able to be used for research. What Senator Stott Despoja said before was that there are a number of ways—I will not put words in her mouth—to kill a cat. And there are a number of ways to approach the legislation. With any legislation there are as many ways to draft a bill as there are the number of people drafting it, especially when you are approaching two bills. I believe that the way the bill before us is drafted deals with the issue, and Senator Stott Despoja has expressed that view. I admit there is another way of doing it, but I would prefer to leave it as it is because I think it deals with it.
I want to say here that I appreciate all the work that Senator Stott Despoja has put in. I have to say that she is probably the most informed person in the Senate in this area—I am not going to compete with her on that—and she has put in a huge amount of work. I recognise that there is another way of doing it, but I will not be supporting her amendment.
Yet again, this is one of those of issues where we are all trying to arrive at the same conclusion, a conclusion which I think most of us support. However, as Senator Patterson has said, there is another way, and that is the way that has been outlined in the amendments standing in Senator Stott Despoja’s name and my name. I think our way is perhaps a clearer and more preferable way to achieve the outcome that we all desire, because I think it does give a bit more clarity about exactly what embryos that are unsuitable for implantation may be used for. I think this is a preferable way of approaching it. However, as has been mentioned before, we are all doing our best to stick to the recommendations of the Lockhart review and to implement them through legislation. So either way achieves the end result. However, I think this way achieves it with a lot more clarity.
I thank Senator Webber for her comments. I want to very quickly seek one further clarification. I am concerned that under the approach that has been adopted it is not clear exactly what embryos that are unsuitable for implantation can be used for. For example, by defining unsuitable embryos as entirely separate from those deemed excess, it could be interpreted that item 11 of this bill, on page 17, in declaring it an offence to use embryos created by egg and sperm that are not excess ART embryos, does not allow for the use of unsuitable embryos. So, if we proceed with this definition in the way that it is written, will that stop us from using unsuitable embryos?
I also need to ask some questions of both the mover of the amendment and Senator Patterson. It is my understanding that the intent of what both Senator Webber and Senator Stott Despoja are moving is very similar to the intent of that of Senator Patterson—that is, to deal with the question of consent and consent being able to be applied. The question I need to have answered is: what is the difference in outcome of the two methods that are being proposed by senators Webber and Stott Despoja and by the original bill? A specific question for Senator Stott Despoja is: if we were to adopt your definition, is it a problem that in proposed subsection 24(8)(a) we still use the words ‘unsuitable for implantation’ if that is not defined? I am no legal eagle but, if we have removed the definition of ‘unsuitable for implantation’ and then use that language, is that problematic? The broader question is: what is different in intent in the two methods that are being proposed here?
Chair, through you to Senator McLucas, my understanding is that it is not problematic to remove that definition as we are seeking to do. We are concerned that defining unsuitable for implantation embryos entirely separately from excess ART embryos is where the problem occurs. That is why we are seeking to remove that separate definition. I am happy, however, to acknowledge Senator Patterson’s comments and to take her assurance that that will not mean that there are some circumstances under which embryos that are unsuitable for implantation cannot be used. That was our concern; we had dealt with it under the excess ART just to make it clearer, or so we thought. But this way, with a separate definition, actually might bring up circumstances where you cannot use those embryos, and we did not want to create that circumstance. I am happy with the clarification that has been put forward. I have questions, but rather than going round and round I am happy to leave it at that. We may seek further clarification down the track, see how this operates and make sure that we do not run into any problems with those particular embryos.
I did actually indicate that there are a number of ways of approaching it. The intent is not different, but we have had a different way of approaching it. The overall aim is to ensure that people who have embryos which are not deemed suitable for implantation are not wasted but able to be used. Currently, when you are doing embryo stem cell research you cannot use those embryos. They are embryos that have genetic errors in them and could be very useful for people developing stem cell lines of known genetic diseases that you can identify in embryos. Some you cannot use; you have to wait until they are expressed in the individual. We have not identified genetically every disease, but where you can do that through PIGD—preimplantation genetic diagnosis—it is enabling those embryos to be used. At the moment, you cannot. I think the intent is the same, but it is a different approach.
For similar reasons, I move amendment (18), standing in the name of Senator Webber and me:
(18) Schedule 2, page 16 (after line 26), after item 9, insert:
9A Subsection 9(1) (at the end of the definition of excess ART embryo)
; or (c) is:
(i) diagnosed by pre-implantation genetic diagnosis according to such NHMRC guidelines on the use of assisted reproductive technology in clinical practice and research as may be prescribed; or
(ii) determined under such NHMRC objective criteria as may be prescribed;
as being unsuitable for implantation.
(i) diagnosed by pre-implantation genetic diagnosis according to such NHMRC guidelines on the use of assisted reproductive technology in clinical practice and research as may be prescribed; or
(ii) determined under such NHMRC objective criteria as may be prescribed;
by leave—I move my amendments (1) and (2) on sheet 5123:
(1) Schedule 2, item 15, page 19 (lines 12 and 13), omit subparagraph 20(1)(g).
(2) Schedule 2, item 15, page 19 (line 14), omit “(d) and (g)”, substitute “and (d)”.
These amendments go to the issue of preventing the use of animal eggs for the creation of embryos through somatic cell nuclear transfer. It is an issue that has been thrown around as part of the public debate for some months now. Some aspects of the way it has been debated in public have not been terribly accurate. In moving to prohibit the use of animal eggs for the creation of hybrid embryos for research I am not in any way suggesting that I give any credence to some of the views or suggestions that have been put forward that enabling this to happen would inevitably lead to half men, half horses galloping around the streets or rabbit men bouncing about the place or any other sort of half human, half creature, living, breathing, walking, crawling, bouncing—whatever—amongst us. I think that has been a gross distortion of the facts and the science on this issue, and I do not think it has helped in any way to focus attention on what this issue is actually about.
The amendments are fairly straightforward. The legislation before us amends subsection 20, part 1, which currently only allows the NHMRC to provide a licence authorising the use of excess ART embryos—that is, embryos left over or not used through IVF treatment. The new section of the act allows a person to apply to the NHMRC Licensing Committee for a licence authorising a number of extra things, including the creation of human embryos other than by fertilisation of a human egg by human sperm—that is, the SCNT procedure—and a range of other creations of human embryos such as using precursor cells. They are all controversial in their own right, but I have chosen to focus solely on the extra power of the NHMRC to issue a licence for the creation of hybrid embryos through introducing the nucleus of a human cell into an animal egg and on the use of such embryos.
I should emphasise that these amendments do not go to the creation of hybrid embryos and the use of such embryos up to but not including the first mitotic division if that creation or use is for the purpose of testing sperm quality and that the creation or use will occur in an accredited ART centre. In fact, animal eggs have been used for some time to test sperm quality, the potential usability of sperm for IVF or ART activities, and that I think is accepted. Whilst one might seek to say they are related, I think there are distinct issues involved.
The use of animal eggs as basically a host for the introduction of a nucleus of a human cell to create an embryo through somatic cell nuclear transfer is a significant shift. Cloning techniques—SCNT—in themselves are significant shifts in their own right, as I said in my speech on the second reading, but the use of animal eggs to do this, I think, merits some specific consideration. I will not get the opportunity to speak fully to these amendments before we break for dinner.
There are a few aspects on the use of animal eggs that I did want to draw attention to. Firstly, when I read the transcripts of the three hearings of the Senate Standing Committee on Community Affairs on this legislation, a lot of other material relating to this issue, as well as the Lockhart report itself, referred to the use of animal eggs. There is continual reference to the fact that animal research will be involved in various aspects of this technology. Animals, of course, are already used in stem cell research involving both adult stem cells and embryos. I did not see any acknowledgement that there are ethical issues involved in the use of animals. It concerns me that that issue has been completely absent from the debate. I am not insisting that animals should have equal value in our society as humans, but I am saying that animals do also have value, maybe a different value or a lesser value, but there is value there that is not being considered.
Sitting suspended from 6.30 pm to 7.30 pm
I was part way through speaking to this amendment prior to dinner and was only in the preliminary stage. The issue of using animal eggs in SCNT research did receive a reasonable amount of attention, some of it based around fairly wild assertions that we will have half-animal, half-human creatures galloping around. That is not my concern. But I do have some other concerns, nonetheless, and given the public controversy over the recommendation, I was a little bit surprised how fleetingly the majority report of the Senate committee dealt with it. Many scientists who are broadly supportive of SCNT research have not given great weight to this particular recommendation from the Lockhart review regarding the use of animal eggs for somatic cell nuclear transfer. The proposal to use animal eggs was put forward in part to alleviate concern about the pressure to find enough eggs from women to enable necessary research to take place. As far as I can ascertain, there is no specific essential requirement or need to use animal eggs in creating human embryos from a research point of view. It is purely a matter of them just being available and able to be used so that there is less demand for the use of human eggs from women.
I have listened to the concerns of those who are worried that there may be a risk of undue pressure being placed on women to donate their eggs for SCNT research. I think that there is validity in expressing that concern and making people aware of it, because no doubt there is always a potential for inappropriate or undue pressure. But after examining the varying evidence put forward about this and the reality that some women in Australia already choose to voluntarily donate their eggs for IVF purposes—and of course many already donate other body parts in various ways—I do not believe that there is a need to specifically treat the potential donation of women’s eggs separately from the regulatory regime we have in place at the moment, which does include the donation of eggs, as long as there are appropriate regulatory safeguards.
Speakers on all sides of this debate during the Senate committee process and during debate in this chamber have expressed concern for enhancing the wellbeing of people and minimising the suffering caused by disease, concern about women egg donors, concern about people in general, and concern about embryos of course. I have not heard much concern, if any, about the impact on animals now used for medical research in this country and their suffering. I am not saying that there should not be animals used in research but I am saying that they should not be forgotten and they should not be dismissed. There are ethical issues involved in using animals in research and, indeed, we do have an ethical code, overseen by the National Health and Medical Research Council, specifically governing the use of animals in research. I think that it is important to at least pay attention to it because of some of the comments that have been made. To use just one example, in a media release made by Archbishop Pell in December last year when he was commenting on the Lockhart report after it was released, he said:
The report takes it for granted that human embryos are merely a ‘resource’ to be exploited like an inferior animal or plant.
I realise our society accepts this exploitation of animals and may do it in ways that I am not comfortable with. That is the community view. But I think that the least we can do is try to avoid adopting a mindset that animals are nothing more than a resource to be exploited. They may have less value than humans but they have value and should at least be thought about. That total absence of any consideration being given to animals used in research is one example of how blase and accustomed to particular practices we can become over time.
About six or seven years ago I served on a university animal ethics committee—coincidently with Professor Alan Mackay-Sim, whose name has been mentioned a lot in this debate as an expert on adult stem cell research. One of the basic considerations that is meant to be applied in considering the proposed use of animals in research is what is sometimes called ‘the three Rs’—reduction, replacement and refinement. That means reducing the number of animals used to as few as possible and using alternative non-animal methods where they are available. I would suggest that using animal eggs when there is clearly an alternative available, when we are able to use human eggs, is actually a breach of those general principles for the care and use of animals for scientific purposes. As the NHMRC Australian code of practice says:
Scientific and teaching activities using animals may be performed only when they are essential to:
obtain and establish significant information relevant to the understanding of humans or animals...
and a range of other purposes. I would argue that they are not essential for this purpose. In some ways I think it is just making things a bit more convenient for us and making it easier for us to avoid confronting what is involved in this research. As I have said, I am not opposed to this research. I think that you can confront something and embrace it at the same time. In fact, if you do embrace it after truly confronting the reality of it, it is better.
The quote that has been used a lot—and was indeed helpfully provided in the majority report of the Senate committee—came from the Chief Scientist, Dr Peacock. He said that in the Lockhart review it was suggested:
... animal eggs could be used for some of the research so that fewer human eggs would be required. Many scientists think that using a nucleus and egg cell from different species complicates the research. Most scientists regard this particular recommendation to be of little importance.
The majority committee report just has a single sentence after that saying that his statement was about safety. I do not read it as being about safety at all, frankly. I would also note comments by Professor Bob Williamson from Melbourne university, material that was helpfully sent around by Dr Mal Washer MP:
... in contrast to the great importance of permitting the use of somatic cell nuclear transfer into human enucleated eggs in culture, the use of animal eggs in this way is not critical for scientific progress. Indeed, he said that using more than one species could make the interpretations of some experiments more difficult.
We have a range of scientists supportive of the thrust of the research who are saying using animal eggs is not essential—that in some ways it can be potentially problematic and not significant. In that context, taking into account existing codes of practice of ethics regarding reducing the use of animals in research, this is one occasion when we could at least make a small attempt to do that.
I rise briefly to make a contribution. As I have said before, all of us bring our own code of what is important to us ethically to this debate. Senator Bartlett, probably quite rightly, pulled some of us up for perhaps being a little dismissive of other codes. Whilst I have acknowledged people in my own party that have a different moral code to me for the respectful way in which they have conducted this debate, perhaps we have not properly considered the points that Senator Bartlett raises. I have had some time to think about it and I think he probably quite rightly pulls us up, so I will be supporting his amendments.
I thank Senator Bartlett for his contribution. I agree with him that some of the comments about this area of research and its possibilities were very overblown. The issue of using animal eggs instead of human ova was suggested by some people who made submissions to the Lockhart review but it was not the most strongly supported recommendation by the Lockhart committee. As Senator Stott Despoja said, in doing both of our bills, we did not cherry pick; we put all the Lockhart recommendations in there. I have no objection to that recommendation not being in the legislation and therefore I will be supporting Senator Bartlett’s amendment.
I think Senator Patterson just made the key point for me; that is that enshrining the Lockhart recommendations in a legislative format was about putting them in holus-bolus—apart from those that required no legislative change or could be dealt with in a different way—and then leaving it up to the parliament to decide. Senator Webber and I had the exact same intention: leave it to the democratic process. Duly elected representatives would decide what was right, what was wrong, what they sat comfortably with and what reflected human values. I think this bill does reflect community values and I recognise that there are some areas within this legislation that are perhaps more strongly supported by members of community than others.
I acknowledge the comments my Democrat colleague has made and his observations throughout this debate. When I look at this particular amendment and the lines to which it refers—that is, 20(1)(g), an area that has been the subject of much debate—I find it agreeable. I find it an amendment that can be supported but I will wait and see what the will of the parliament is. I am happy to support it. I think it is a reasonable compromise in terms of determining community values and expectations in the context of this legislation. Once again, it gives elected representatives the opportunity to decide which recommendations from Lockhart they support and which they do not. I am happy to support the amendment before us.
I will only make some brief comments. We all knew that this was the area of controversy in the legislation. I think the Lockhart committee recognised that as well, but Senator Bartlett’s concern is different to other concerns that have been expressed. That does not make it any less valid, and we recognise that. The concern I have—and it is evident that this amendment will be accepted—is what this will do to the use of human eggs as they exist under the current legislation. We should be aiming for the best and highest use of human eggs as part of the process that is under debate at the moment.
My personal view is that I was comfortable with the legislation as it stood. I believe that there are safeguards in place to ensure that eggs are used ethically and that animal eggs will also be used ethically, although I recognise that those safeguards are not enunciated in this legislation. However, I do not think it is the end of the world, so to speak. I think we will be able to continue with the sort of research that the Senate has agreed to progress with. I dare say we will revisit this issue at another point in time.
Perhaps I should be quiet when I have had so many voices in support but I want to acknowledge those responses from people and reiterate a couple of points. I am conscious that passing an amendment like this does create a situation where the only eggs that could be used for this research are the eggs of women. Therefore the concern that people have expressed about the potential for there to be greater pressure on them to donate their eggs is increased by this amendment going through. I want to indicate again that that is not something I am dismissing lightly. I think it is an important issue.
I cannot remember who it was, but somebody speaking in favour of the legislation in the second reading debate did point to the fact that donation is still a voluntary choice—certainly in Australia. There clearly have been problems overseas in regard to potential inducements for donating not just eggs but all sorts of body parts. That is a concern. That is why I am very pleased that Australia does not go down that path and has not gone down that path. I believe that our safeguards have shown that we are very effective at ensuring that people are not unduly pressured with regard to being donors in all sorts of areas in medicine. That is not to say that it can never happen, but I think we have safeguards that are as good as you can expect. They will apply as effectively in this area.
I note also the comments of Professor Schofield, one of the members of the Lockhart committee, in the Senate committee hearings in response to some of these questions about whether there will be enough eggs available. The evidence was pretty clear that, at this stage, that is certainly not an issue. However, he said:
... if there are not enough eggs for researchers, tough.
I think I would concur with that view. The other point I want to emphasise is that, whilst I do not at all agree with the distorted view that somehow this legislation would allow half-horse or half-animal creatures or rabbit men bouncing around the neighbourhood or whatever, this legislation does at least remove the potential for that distortion and even for that misunderstanding.
That is one of the difficulties that I have found in this area. When you try to do some research in the mainstream media, it is very easy to see that it is not always reported accurately. By total coincidence, whilst I was listening to the debate before dinner, a report came up on the ABC website saying that there is a British bid to create part-cow, part-human embryos. When you actually go to the source of that, which is a BBC website report, you find that it is precisely what we are talking about here—that is, using in this case cow eggs to be the host for the creation of a human embryo using SCNT. It is very easy for that sort of probably unintended misreporting to happen. It creates the impression that we are talking about half-half creatures and trying to fuse genes together and all of those sorts of things. I think that, by removing this from the legislation, it also clearly removes that potential apprehension about what is involved.
Question agreed to.
On behalf of Senator Webber and me, I move:
(19) Schedule 2, item 34, page 22 (line 31), omit “one month”, substitute “15 days”.
The amendment is a simple one and relates to the duration of the warrant in the bill. We have suggested a time frame of 15 days as opposed to a month or, indeed, any longer. I understand that this has the support of Senator Patterson. I am happy to explain if people need more understanding as to the motive behind the amendment. But, given the circumstances in which that warrant would normally be exercised, I think that the provision of a 15-day period is more than adequate and stops any excess warrant power, if you like. This is a compromise amendment moved by Senator Webber and me.
I just want to say that it was somewhat arbitrary on Senator Stott Despoja’s part. There is another similar bill which has a much longer period. We thought that one month was sufficient. But if the bill goes through it will be reviewed. If it is not sufficient time then that will be expressed.
One of the things it does give me an opportunity to say is that this is about strengthening the bill. This was not there before, in the previous bill in 2002. The Lockhart committee discovered that people could be breaking the law if they were outside of an institution that was not licensed and they had very few tools to actually apprehend those people. So this is a strengthening of the bill. For those people who are opposing the bill, I point out that there are parts of this bill that are about strengthening the oversight of this sort of research and making sure it is not being undertaken in black-market laboratories—I do not know what you would call them—or at-home laboratories or wherever else, or in institutions that do not have a licence. So this does give me the opportunity to say that this is about strengthening the bill. I agree with Senator Stott Despoja’s amendment.
That the amendment (Senator Stott Despoja and Senator Webber’s) be agreed to.
I move my amendment on sheet 5124:
(1) Schedule 2, page 26 (after line 3), at the end of the Schedule, add:
36 After section 47
47C Study of non-blood human tissue based therapies
The amendment proposes that a report be prepared to investigate the practicality of establishing a national legislative or regulative approach for effective governance of non-blood, human tissue based therapies. Given that it was not possible for me during the initial debate, or through amendments that I proposed during the second reading debate, to achieve what I was looking to do and that it is quite clear to me—and I think it has been accepted by many others who are involved in this debate—that there are a number of issues that need to be dealt with across the legislative framework, relating to these issues in Australia, I think it is pertinent that a review be undertaken that has a look at this issue across the whole. My proposal is that it be undertaken by a committee established by the minister in similar terms to the Lockhart process, that the committee reports to the parliament and to COAG within 18 months, that it consults with the states and territories in relation to their regulatory frameworks and that it reports to the parliament within 15 days after completion of the report.
In some senses, I think that this potentially provides the capacity for a better outcome than I was searching for in my initial amendments to the bill. Those amendments dealt with only a narrow scope of research. They did not look at the broader issues that I think have been recognised and have come to the fore as part of this process. I suppose as a matter of persistence I would commend this amendment to the Senate. It does not necessarily detract or modify the legislation itself but puts in place a process whereby, in the longer term, there is the capacity for the country to have a better legislative framework across a range of therapies dealing with issues that we are looking at, particularly given the variation of approaches that have turned up as part of this process and as part of my investigation and the investigation of others in relation to the matter we are discussing today.
I support any move to look further at these complex issues. It is a very broad brush that Senator Colbeck has put forward here. I wish that committee well, because non-blood therapy encompasses a lot more than embryonic based therapy. It involves heart transplant and skin therapies, as well as a whole range of even non-medical therapies. It may be that, with a little longer to look at this, the legislation could be narrowed to focus on exactly what Senator Colbeck wants.
Question agreed to.
Those are all the amendments, as I understand it. I just want to ask one or two more questions about the legislation as a whole before we come to a final vote. The issue I flagged in the second reading debate that is still causing me some consternation is that embryos created through cloning techniques are seen as having a different value from embryos created through sperm and egg. I understand the rationale behind the Lockhart committee coming to this view.
Over the dinner break, I reviewed the different arguments and views that the committee heard from people and why they perceive embryos created through SCNT as being intrinsically different. These embryos are not just created differently; they are seen as intrinsically different, and so people feel differently about them. In that context, they are being created for a different purpose. I can certainly understand that.
I have been asking people about this issue and many of them feel that the entities created through the SCNT process are fundamentally different. The Lockhart review used terminology to describe how SCNT embryos had a different social and relational significance from other embryos. In the majority report of the community affairs committee, clause 3.31 states:
While respecting the individual’s right to see the SCNT embryo as equal in status to that of an embryo produced by egg and sperm, it is intrinsic in the recommendations of Lockhart and the Patterson Bill that the continued prohibition of the creation of an embryo by egg and sperm for any purpose other than ART demonstrates the difference in the intrinsic value of the egg and sperm embryo.
In the context of what is envisaged by the legislation before us, that does not hugely concern me. However, incorporating a principle that one embryo has a lower intrinsic value than another as a consequence of its method of creation and the purpose for which it was created is a principle that causes me concern in terms of how it might be applied in the future. I wonder whether Senator Patterson could respond to that.
I think Professor Skene, who was one of the members of the Lockhart committee, indicated that her view in the beginning was that there was no problem with creating egg-sperm embryos for the purpose of research. I do not know the views of the other members of the Lockhart committee—they have not expressed them—but her view was that there was no difference between a SCNT embryo and an egg-sperm embryo. However, as the committee went around talking to a large number of people from all walks of life and to those who presented submissions, she became convinced that people saw the egg-sperm embryo as different. Two people had come together to create that embryo, whereas a somatic cell nuclear transfer embryo did not have the same potential and purpose. That is the reason that the committee finally came to the decision to continue the prohibition of the creation of egg and sperm embryos for the purpose of research.
Also, there was an indication that there were excess embryos to the needs of ART, whereas that is not the case with SCNT embryos. There is a difference in the sense that there are existing excess ART embryos, but there are no existing SCNT embryos. So one argument is that you are creating something that you do not necessarily need, because it is already there. The other argument is that, for many people, those embryos have a different significance. That is why there is provision in the bill, if it goes through, for the legislation to be reviewed in three years time. People may have different views then, but that was a strong view of the community at the time.
One of the things the Lockhart committee was asked to do as part of its review was to look at community attitudes. So the members of the committee took into account what they felt was a strong expression by people who had egg-sperm embryos that were excess to ART and how they saw them differently, although the legislation encompasses SCNT embryos and egg-sperm embryos under the definition of embryo.
The differentiation, I think, is not apparent. A sperm is just a transport mechanism for the material. The genetic material is what makes the embryo. If it arrives by sperm or it arrives by motor vehicle, it makes no difference. It is like saying that people in this place are intrinsically different if they arrived here by car as opposed to arriving on foot or by plane. Once you have an egg with two lots of genetic material, you have an embryo.
I have just heard Senator Patterson say that this is likely to be reviewed in the future. So we are already acknowledging that this whole process is a moving target, and part of that review will be to change the 14 days to 28 days, to 36 days, to three months—to whatever is convenient. What we have in that final part is the acknowledgement that this is just a process; it is not the final point. It is going to move on from here and we are really heading towards that brave new world.
Bill, as amended, agreed to.
Bill reported with amendment; report adopted.