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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-25 Daily Xml
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STATUTES AMENDMENT (PROHIBITION OF HUMAN CLONING FOR REPRODUCTION AND REGULATION OF RESEARCH INVOLVING HUMAN EMBRYOS) BILL

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: I would like to respond to some specific questions asked by the Hon. Rob Lucas during his second reading contribution. I was not able to address them in my second reading speech, and I take this opportunity to do so. The Hon. Rob Lucas asked me to provide whatever factual information was available to accept statements as being correct or to indicate that time has moved on and that they are no longer as accurate as they were in 2003. He stated:

Given that we are 5½ years down the track, will the minister provide information to members in relation to the summaries produced in the federal parliament by members to whom I have referred in relation to embryonic stem cell research in terms of actual treatments of many of these very desirable and worthy aims...

In response to that, work in science to develop basic discoveries to the point of effective treatment is often very laborious and slow. Behind every breakthrough there may be decades of hard work. Some important medical advances have taken persistent and repeated experiments to reach therapeutic results. For instance, Gardasil, the cervical cancer vaccine that helps to protect against the human papillomavirus, took 18 years from discovery to an effective vaccine.

Australian researchers laboured for many years before it became clear that stomach ulcers can be caused by a bacterium called Helicobacter. Treatment for ulcers has changed dramatically in a short period of time as a result of the persistence of two Australian scientists. The research was slow and painstaking but, once the breakthrough came, the therapy followed very quickly.

Adult stem cell treatments, such as bone marrow transplants and skin grafts, have been around for 50 years, but in the beginning we did not know that it was adult stem cells that were involved. However, after 50 years, most other adult stem cell treatments are still in the clinical trial phase, yet embryonic stem cells have already reached the clinical trial stage after only 10 years, even though legislation has held the research in check for most of the time.

Researchers are now ready to move from animal to human models. iPSCs are so new that they are unlikely to reach the clinical trial stage for many years. So, stopping embryonic stem cell research now, just as clinical trials are being approved, makes little sense, and after decades of work on animal models clinical trials in humans have just been approved and are about to commence in the USA with respect to embryonic stem cells. Both basic science and applied clinical research should be supported to ensure that work on adult and embryonic stem cells yields robust therapeutic results.

It is clear that the two research streams have informed each other. Advances in adult stem cell research and application have depended on work already done with embryo derived stem cells, and vice versa. Many researchers work in both streams. Scientists are advising us that this collaborative work must continue to gain the most advantage out of time, effort and persistence that so many have invested already.

The Hon. R.I. LUCAS: I had not realised we were coming to this quite so quickly, so I have not heard the first part of the minister's response, and therefore apologise if I am traversing ground she might have canvassed already. One of the issues I raised in my second reading contribution was the overlap between federal legislation and state legislation. My reading of the minister's second reading explanation is that Repromed and the University of Adelaide (which are the two groups currently involved in this area of research) will be licensed under federal legislation. Is the minister aware of any other group which is not covered by federal legislation in South Australia and which is seeking a licence to operate in this particular area?

The point I made in the second reading was that, whilst all members will continue to express their firmly held conscience views on this legislation, my reading of it appeared to be that the practical impact will not be much at all if the federal legislation covers everyone in South Australia who wants to operate and who is operating in this field. Will the minister clarify those issues for the committee?

The Hon. G.E. GAGO: Both state and commonwealth legislation is required because commonwealth legislation powers are not wide enough to cover all agencies and individuals in South Australia that might possibly undertake reproductive technology activities or human embryo research. The commonwealth laws cover Australian government authorities, constitutional corporations within the meaning of section 51(20) of the Constitution, and trade and commerce with other countries and other Australian states. The commonwealth laws do not cover South Australian government agencies, non-trading corporations or individuals operating outside of trading corporations. These are covered only by South Australian acts.

This means that researchers operating within a research institution are covered by both their state acts and commonwealth acts, unless the institution is a state government facility such as a public hospital. However, there is some uncertainty about whether our universities are constitutional corporations and therefore are facilities covered by the commonwealth legislation. An individual researcher may be determined to be covered by state legislation. Our universities are involved in embryonic research on animals currently.

The Hon. R.I. LUCAS: Can I clarify that the only two organisations or groups currently involved in this endeavour of research are Repromed and some part of the University of Adelaide's medical school laboratories? Is that correct?

The Hon. G.E. GAGO: At present, that is correct.

The Hon. R.I. LUCAS: Does the minister's advice indicate that there is any other group such as an individual, a state government agency or a non-trading corporation, which is not covered by the federal legislation, that is considering research or has been applying to involve itself in research in this field in South Australia?

The Hon. G.E. GAGO: At present, no.

The Hon. R.I. LUCAS: Therefore, it is quite clear, even on the government's advice, that Repromed is a trading corporation and is covered. The minister has indicated that there might be a grey area in relation to the University of Adelaide Medical School laboratory. The legal advice provided to me is that the university is covered and the interpretations in other states is that universities are covered as well. I suspect that the minister's advice is that that is probably the case, but in the end if someone was to take an action against it a court would determine that. I suspect the government's advice is that it is likely that it is covered, and that is the information I have been provided with as well.

In relation to the university, is the minister in a position to indicate what section of the University of Adelaide is involved in this field of activity? As the minister would know, there are a number of trading corporations and institutions in the University of Adelaide. Is the minister aware of what institute or corporation of the University of Adelaide actually conducts this sort of research?

The Hon. G.E. GAGO: I have been advised that the organisations involved are the Robinson Institute, the Research Centre for Reproductive Health, the Centre for Stem Cell Research, and the Research Centre for Early Origins of Health and Disease.

The Hon. R.I. LUCAS: They are in the university of Adelaide?

The Hon. G.E. GAGO: That is the advice I have received.

The Hon. R.I. LUCAS: I thank the minister for that clarification. Based on the advice provided to me, the view would be that it is believed that those bodies will be covered in other states as well. I accept the minister's view that if someone—I cannot imagine who—was to take legal action, ultimately it would be for a court to determine. The point I made in the second reading and make again now without prolonging debate on clause 1 is that it is the view of a number of people who have looked at this legislation that, whilst we will express our views in this chamber, in practical effect what is occurring under federal legislation in those institutions, centres for research and in the Repromed laboratories will be allowed to continue under federal legislation, whatever happens to the legislation before us.

If this parliament—and I do not imagine it will—were to defeat the legislation, Repromed and those three centres and institutes the minister has outlined—the only bodies involved, with no-one else being aware of anyone else who is interested in getting involved in South Australia at this stage—will continue that research along the lines we are talking about.

The Premier wants to support animal sperm and human eggs being combined into hybrid embryos, but even if this legislation is defeated he will still get his way because the federal legislation, which he would clearly support, will allow it to occur as well. That is the point I was endeavouring to make in the second reading. We have seen confirmation in essence from the minister that that will be the case, whatever final conclusion this committee reaches in relation to the form of the legislation.

The Hon. G.E. GAGO: As I have stated previously on record, there is a degree of ambiguity about that, and that is the legal advice I have received and the information that I provide to this chamber. That is the best information we have available.

However, the other issue is that, if parliament does not amend the South Australian acts to correspond with the commonwealth acts, South Australia would no longer be party to the national legislative scheme and, if this were the case, the NHMRC embryo research licensing committee would not be able to issue licences to researchers under the South Australian Research Involving Human Embryos Act 2003 and may not be able to issue licences to South Australian researchers at all. Only a corresponding act can authorise the licensing committee to issue a licence.

The Hon. R.I. LUCAS: The minister is reading that advice to the committee, and I accept that, that if we were to amend the legislation we would be nonconforming or noncomplying, whatever the correct phrase is, with the federal legislation and therefore the NHMRC will not issue licences to the two particular bodies. However, Repromed and the University of Adelaide will continue to be covered by the federal legislation and will have licences to continue research. If the minister is saying to the committee that, if there is any amendment to the legislation, Repromed and the University of Adelaide will not be able to continue, I think that is a point the minister should make, because therefore there would be a result of this parliament's either amending or defeating the legislation.

The point I was making earlier is that, if they continue to be registered and licensed under federal law, whatever we do—amend it or defeat it—is neither here nor there because Repromed and the various institutes of the University of Adelaide would be able to continue their work under federal licences. So, the point I am making to the minister is exactly clarifying her point, that is, is she saying that, if this legislation is amended, suddenly, Repromed and the University of Adelaide would lose their federal licences and would be stopped immediately from continuing the research they are currently undertaking?

The Hon. G.E. GAGO: They currently do not have licences here in South Australia. That is my advice.

The Hon. R.I. LUCAS: But would they be able to get them under federal law? That's the point.

The Hon. G.E. GAGO: A South Australian researcher in a corporation could apply under the amended commonwealth laws for a licence. If the licensing committee determined that it could and should issue a licence—which it may decline to do, given the legislative uncertainty—the researcher may find themselves caught between two laws that operate simultaneously but inconsistently. If the licence permitted them to conduct research that relied on the recent amendments to the commonwealth laws, two things would be true: their research is lawful under commonwealth law but illegal under South Australian law. That is clearly an untenable and irresponsible position to be leaving organisations in.

The Hon. R.I. LUCAS: That set of circumstances has been well canvassed and, if there is an inconsistency between federal law and state law, federal law takes precedence. I am sure the minister's legal advice will have confirmed that already, and I think that was referred to in the debate in the House of Assembly. So, the issue of inconsistency between federal and state law is a well canvassed terrain and the Hon. Mr Lawson would be able to explain it much more eloquently than I, but, certainly, if there was an inconsistency, a federal law would prevail. The point the minister is making is that there are no current licences but Repromed, under the advice the minister has given, is a trading corporation and there is no doubt that under a federal licensing law it would be able to get a licence under that provision because it is a trading corporation.

In relation to the issue in relation to the various institutes and centres in the University of Adelaide, the minister says there is some ambiguity there. The information provided to me is that in other states and in South Australia the view is that the universities and those centres would be covered and would also get licences. I am not in a position, obviously, to speak on behalf of the NHMRC, or whatever the appropriate federal body is, to say that is definitely the case, but that certainly has been the advice and, I think, the understanding in relation to these issues.

In regard to the issue of the inconsistency between federal and state law, I understand the point the minister is making, but in Western Australia at the moment there are pretty inconsistent circumstances between the federal and state position, and the proof of the pudding, I guess, will be in the eating, if I can use that phrase. We will see whether or not bodies equivalent to Repromed and the University of Adelaide in Western Australia will be licensed.

My advice is that it is likely that they will be. The minister, in relation to Repromed, will probably have to agree that that is likely in relation to the University of Adelaide. She is saying that her legal advice is that that is arguable and might be ambiguous and that, ultimately, if a licence were issued and someone wanted to take it to a court, then it would be tested. Who would do that, I do not know, but there may well be somebody who might want to fund a court case.

The Hon. G.E. GAGO: It boils down to the issue that researchers are unlikely to be applying for research licences or will be less inclined to do so when they know that it is illegal in this state irrespective of the hierarchy of jurisdictions. What they would be more inclined to do is move their research interstate. The only other issue is that it does not account for future developments where other organisations that are not corporations might want to move into the area of this sort of research.

The Hon. R.L. BROKENSHIRE: Just regarding the short title, I ask the minister whether she can explain to the committee where the ova are actually intended to come from? If the minister's answer is that some could come from precursor cells from aborted girls' ovaries, then will the minister advise the committee whether the mothers of those aborted girls know that this will happen?

The Hon. G.E. GAGO: I did, in fact, go into considerable detail around precursor cells and the consent required around the use of those cells from aborted foetuses in my second reading summing up, which the honourable member obviously has not had a chance to look at. I outlined there that the specific consent of the mother of the foetus and her partner is required to use foetal material for research or any other purpose in the same way as parents can consent to the donation of tissues from their children.

The NHMRC ethical guidelines specific to the use of foetal tissue would apply. These stipulate that the foetus is available for research only as a result of separation by natural processes or by lawful means and where proper and separate consent has been obtained. These guidelines have been in existence since 1992, and research using foetal tissue has been conducted since then.

These ethical guidelines also specify that, if a foetus or foetal tissue becomes available as a result of a termination, the process through which the woman is informed about donation and her consent sought should be separate from that under which she decides to terminate her pregnancy and should not begin until a decision to terminate has been made. Obviously, we do not take termination of pregnancy lightly, and we believe that there are significant protections around this particular procedure.

The Hon. R.L. BROKENSHIRE: As to timing and informed consent, and what I see as the exploitation that will occur when that mother has the child aborted, what provision will be made around all that to ensure that the mother has clear and reasonable opportunities to consider the consequences of this? What sort of informed consent will they be required to sign?

The Hon. G.E. GAGO: I am advised that the issue of informed consent is outlined in the ethical guidelines, and they cover a wide range of elements associated with consent. They cover information about risks associated with procedures, the consent procedures, timing, etc. I have been advised that in terms of the time requirements, it is believed that the guidelines stipulate 'sufficient time', but what might provide some reassurance to the honourable member is that the people making the decision about what constitutes 'sufficient' are clinicians, not the researchers. The medical practitioner involved would be making that decision, not the researchers.

The Hon. R.L. BROKENSHIRE: I appreciate the minister's answer to an extent, but I do not think it answers my question. My concern here is a fundamental concern that, when the mother consents to an abortion, she knows that, if this legislation were to be passed, the aborted girl's ovaries can be used for research. I want the minister to explain to me—and, frankly, I am not that interested in what a clinician may be doing as opposed to the scientists—whether the mother will be informed that, through this abortion, the girl could end up being used for research.

The Hon. G.E. GAGO: There are two separate processes involved here: one is the consent for a termination, which is not under discussion as it is not an element of the bill before us; and the second, which I have already said is quite a separate process, is that once a termination decision has been made, then a process is available to invite consent to use the ova for the purposes of research. It is a separate event, a separate process—one that is covered clearly by a set of very carefully constructed guidelines to protect the interests of the client (the patient).

The Hon. R.L. BROKENSHIRE: Can the minister categorically guarantee to the committee that no aborted girl's ovaries would be used under this proposed legislation for any sort of scientific research without the knowledge and consent of the mother?

The CHAIRMAN: Hasn't the minister just done that?

The Hon. G.E. GAGO: Quite categorically, yes. Informed consent must be given for ova to be used in research.

The Hon. B.V. FINNIGAN: In relation to this question of precursor cells being obtained from aborted foetuses, can the minister advise at what level of gestation the foetus would likely be and by what method would the termination be carried out? Is that a factor in determining whether that aborted foetus would be a suitable candidate from which to obtain ova? I apologise if the minister has covered this already in a previous contribution.

The Hon. G.E. GAGO: I am advised that they would need to be cells from a late-term aborted foetus of sufficient gestational age that the ovaries were identifiable. Also, it is clinically impossible to fertilise precursor cells from adults or foetuses with the sperm.

The Hon. B.V. FINNIGAN: Thank you for that answer, minister but, in relation to the method of termination, can the minister advise whether the method to be used will be determined by whether or not the aborted foetus will subsequently be used to obtain ova, with the consent of the mother?

The Hon. G.E. GAGO: I do not really understand the question. Is the honourable member asking whether different termination techniques are used if cells are to be extracted for the purposes of research?

The Hon. B.V. FINNIGAN: Yes. Essentially, I am asking whether or not the cells to be extracted will be a factor in the method of termination used.

The Hon. G.E. GAGO: My advice is no.

The Hon. R.L. BROKENSHIRE: Based on the answers so far, can the minister clarify the gestational age of the baby when its eggs are harvested?

The Hon. G.E. GAGO: The only information I have is what I have already provided, namely, that to be useful they need to be of a late gestational period. Other than that, I do not have any more exact information.

The Hon. B.V. FINNIGAN: I wonder whether the minister can advise how potential candidates of aborted foetuses suitable for the extraction of precursor cells are identified. The minister has mentioned that there are consent procedures and that that is a matter for the medical practitioner, not the researchers. I am wondering by what process they identify suitable candidates and whether it is the medical practitioner who initiates a discussion with the mother about obtaining consent.

The Hon. G.E. GAGO: I am advised that these procedures have not been completed here in South Australia, nor are they contemplated. We have no further detailed information, other than the information I have provided; that is, those cells that would be suitable are those that are of a late gestational period.

The Hon. R.I. LUCAS: The minister will be delighted to hear that I have only two further general areas of inquiry in relation to clause 1. One is in relation to the sort of research that occurs at the moment but will be sanctioned by the legislation, if it is passed, in relation to the testing of pharmaceutical products. My understanding is that this legislation will allow the continuation and extension of the testing of pharmaceutical products in the sort of research that we are talking about here. What restrictions are there on the sort of pharmaceutical products that can be used in the research that we are being asked to sanction?

I am assuming—and I use the word advisedly to a female minister—that trivial research, as I would deem it in relation to perfumes, hair shampoos, and things like that, are clearly in some way prevented. I am assuming that the legislation in some way would allow research into pharmaceutical products, which might be an anti-cancer drug or something like that. Can the minister confirm that? Where is this line drawn between what we might deem to be a worthy pharmaceutical product, which can be used and tested, and what might be deemed to be an unworthy pharmaceutical product?

The Hon. G.E. GAGO: The short answer is that the licensing committee is being set up in a way to apply criteria to ensure that trivial use does not occur. The licensing committee would require justification for using embryos. It would need to satisfy itself on a number of levels, including:

all the criteria outlined in the amended act;

has proper informed consent by those donating cells or embryos, and their partners;

abides by the conditions set by donors;

has research ethics approval from local institutional Human Research Ethics Committee;

contributes to significant advances in knowledge, treatment, technologies or other applications;

could not be achieved by means other than the use of embryos;

restricts the number of embryos to only those likely to be necessary for the project;

accounts for every embryo licence; and

meets transparent reporting requirements.

Obviously, trivial research would simply not be licensed.

The Hon. R.I. LUCAS: Clearly, those guidelines are not part of the legislation.

The Hon. G.E. GAGO: They are.

The Hon. R.I. LUCAS: Where in the legislation are those guidelines included?

The Hon. G.E. GAGO: In the commonwealth legislation.

The Hon. R.I. LUCAS: What provision of the commonwealth legislation includes all of those restrictions?

The Hon. G.E. GAGO: I will get back to the member once I hunt down that information.

The Hon. R.I. LUCAS: The minister's answer, as I understand it, is that she will come back to that in terms of the specific provision, which is that the commonwealth legislation makes it clear. If that is the case, why does our legislation not make that clear? If, for example, an individual or a non-trading corporation is to be licensed, why are those same restrictions not included in the state legislation?

The Hon. G.E. GAGO: I have been advised that it is because a commonwealth act sets up the commonwealth licensing committee.

The Hon. R.I. LUCAS: We have just been through a long debate, and I will not repeat it, but there were certain bodies, such as a non-trading corporation, an individual or the state government agency that are not covered by the federal licensing regime. The minister is saying that we must have a state licensing regime to cover those, because there is the potential that an individual or a state government agency might want to involve itself in this particular area.

They will not have federal licences; they will have state licences. Why would there not be a similar provision in this state legislation to restrict the sort of research, using pharmaceutical products, which the minister indicates is included in the federal legislation?

The Hon. G.E. GAGO: I have been advised that it is our South Australian state legislation that will empower the Commonwealth Licensing Committee to be able to issue licences.

The Hon. S.G. WADE: I understand that the minister has deferred giving an answer to one of the Hon. Mr Lucas's questions. In giving that answer, I wonder whether the minister might be able to clarify whether the guidelines are actually a schedule, are incorporated into commonwealth legislation or, rather, that a section of the commonwealth act authorises the guidelines to be made by regulation or in some other form.

The Hon. R.I. LUCAS: I just want to return to the minister's response to my last question. As I understand it, what the minister is now saying to us is that there will not be state licences, that the state legislation is going to in some way empower the issuing of federal licences to bodies like state agencies, non-trading corporations and individuals. So, the minister indicates that, through that mechanism, there is not a requirement to have these restrictions in the state legislation. That is as I understand the minister's response.

The Hon. G.E. GAGO: That is my advice.

The Hon. R.D. LAWSON: I have a comment to make in relation to the matters first raised by the Hon. Rob Lucas in relation to the inconsistent state and commonwealth laws. I note from the contribution made by the member for Enfield in the assembly that he opined that the South Australian bill was an entirely academic exercise, unnecessary and futile, because anyone working in the field in South Australia would either be covered by commonwealth legislation and hold the necessary commonwealth licence or, as the member for Enfield put it, their lawyers would soon get them incorporated with a $2 company to bring them within the purview of the commonwealth legislation.

So, there are really two views arising out of that argument. One is to pass the legislation. If it is going to have no effect, pass it. The alternative is that the member for Enfield was correct and this is futile. Clearly, those in the field do not consider that it is futile. In response to questions by the Hon. Rob Lucas, the minister mentioned a number of researchers. It is suggested that Repromed is the major one here, although I see that, on 29 October last year, Professor Robert Norman, the Director of the Robinson Institute, wrote to all members. He referred to the fact that he represents the University of Adelaide's Research Centre for Reproductive Health, the Centre for Stem Cell Research and the Centre for Early Origins of Health and Disease; also incorporating but not representing researchers from the Hanson Institute, the IMVS and the Women's and Children's, the Royal Adelaide, the Queen Elizabeth and the Lyell McEwin hospitals.

Professor Norman said that 150 research and clinical scientists bring in more than $25 million per annum of competitive money for medical research. He pointed to the fact that their work was based on National Health and Medical Research Council guidelines and that some of their work is regulated by state and federal statutes regarding reproductive technology. He went on to say:

We wish to see this bill pass so that we can practise our research with the support of the population of South Australia.

It is signed Robert Norman, on behalf of the Robinson Institute and the other institutes that I mentioned, and Repromed.

It is clear that those in the field have not seen the suggested futility of this legislation. Professor Norman would not be writing to members of parliament if he felt that he could snub his nose at the South Australian legislation and simply rely upon a federal licence.

I notice also that the minister indicated that, when the commonwealth amendments were passed, the parliamentary secretary to the Minister for Health and Ageing—that is the commonwealth minister—advised that he had revoked the previous declarations that made the equivalent state and territory laws corresponding acts for the purposes of the national scheme.

This meant that the National Health and Medical Research Council Embryo Licence Committee could no longer issue research licences under the state acts. That committee, at that stage, issued licences under the state acts, and I gather now that it will continue to do so if the state acts are passed.

I do not believe that it is quite as simple as might be suggested by some, that this is a futile piece of legislation, therefore, why pass it? I think it is a major issue if one has inconsistent laws on the statute book: a law which states that under one act you are allowed to do something in the state of South Australia, and under another you are not.

We in this parliament seek to make laws for the peace, order and good government of the state of South Australia. We seek to control what happens in this state within the area of our legislative competence, and it is undesirable to have on the statute book two inconsistent laws. It is simply a situation that is constitutionally undesirable. Either we are going to be part of a national scheme, and if so we pass this bill; if we are not, and some people take the view that we should not be, then we will not pass the bill. I do not think one can say that this is a futile piece of legislation. Those who are practising in the area do not regard it as mere window-dressing. They regard it as important.

The Hon. G.E. GAGO: In relation to the question about where it is in the commonwealth legislation, I have been advised that it is section 21, 'Determination of application by committee', and it is detailed in subsection (4). I have a copy here if you want to have a look at it.

The Hon. S.G. WADE: I take it, from the brevity of that answer, that means that subsection (4) authorises the making of guidelines and that those guidelines are made by regulation?

The Hon. G.E. GAGO: I am advised that it is not in regulation but it is, in fact, incorporated into the act itself.

The Hon. S.G. WADE: So, the detail of the guidelines are in one subsection?

The Hon. G.E. GAGO: That is what I have been advised.

The Hon. R.L. BROKENSHIRE: I have a subsequent question to part of one of the minister's answers on clause 1. The minister explained about specific consent being obtained. I am aware of one recent case where a lady was very traumatised as a consequence of the way her abortion was handled, where she was appalled to discover that her aborted foetus might be used for research.

The clear impression that I get from that case is that the research questions were actually asked at the time the abortion was offered, not on a separate occasion, as the minister previously indicated. I am also aware, from extensive research, that there is precious little monitoring or research done on abortion clinics' compliance with the law, and the Abortion Reporting Committee is little more than a clearing house of statistics.

The minister said that the process through which a woman is informed about donation and her consent sought, should be separate from that under which she decides to terminate her pregnancy and should not begin until a decision to terminate has in fact been made.

I ask the minister three questions with respect to the answer she has given to the chamber tonight: what guarantee can she give that the various abortion clinics are following and will follow the procedures and guidelines to the letter; can she report on when any compliance checking or investigations were conducted in abortion clinics; and, if none have occurred, can she guarantee to the committee that such a review will take place?

The Hon. G.E. GAGO: In terms of the example cited by the honourable member, that would, in fact, be in breach of the HMRC national guidelines that bind researchers to a particular code or standard. In relation to the second part of his question, as I have stated already in this place, there have been no examples of precursor cells being collected for the purposes of embryonic research, so none of that information is available.

The Hon. R.I. LUCAS: I do not often disagree even slightly with my learned colleague the Hon. Mr Lawson, but at least in part we have differing views on some aspects of what he has said. The only point I make—and we will explore this later in the bill when we get to the specific provisions—is that, if one adopts the position of my learned colleague, one certainly will not be accepting significant amendments to the legislation in relation to the removal of hybrid embryos, because the bill will then be non-complying (or whatever the correct phrase is) with federal law and we will have inconsistent legislation between the state and federal jurisdictions. However, I am sure we will explore that in vigorous but good humoured debate in the appropriate clauses.

The last general area that I wanted to raise at this stage was something which I raised in the second reading and which a number of members did also, including the Hon. Ann Bressington, in a much more colourful way than I did. I think she summarised her contribution, after reading 73 particular diseases onto the public record (which I see have been faithfully replicated by Hansard) as, in her words, 'Adult stem cells, 73; embryonic stem cells, 0.'

In a less colourful way I quoted the contributions of my two very good friends in the federal parliament, Nick Minchin and Chris Pyne (and Kevin Andrews, as well, I think), who also highlighted the fact that most of the advances we are seeing at the moment from research, in terms of treatment of diseases, were coming from adult stem cells and that there had been nothing from embryonic stem cells. I think the Hon. Mr Hood covered this point in his contribution, as well.

I might have missed it if the minister addressed that issue in the early part of her contribution tonight, but I was interested to know (even though, personally, I do not intend to prolong the debate) what the government's position is. Do the minister and the government not accept the views that have been put by the Hon. Mr Hood, the Hon. Ms Bressington, and my very good friends in federal parliament, Chris Pyne and Nick Minchin, in relation to the state of the research at the moment?

I certainly read a lot about the potential of embryonic stem cell research, as opposed to what is actually happening, but I am interested in the government's response, as it is the author and proposer of the legislation.

The Hon. G.E. GAGO: I believe I have already addressed those issues partially in my second reading summary, as well as in my opening remarks this evening. Rather than go through it all again, just to summarise, they are issues around the fact that the research can take many years yielding very few clinical or treatment outcomes, and the examples I gave were in the area of skin grafts and bone marrow transplants. The fact that it has not yet generated treatment results is not a good argument to cease all further research. The other point I made is that both forms of research inform each other and help develop potential outcomes for both areas of research.

Clause passed.

Clauses 2 to 6 passed.

Clause 7.

The Hon. R.L. BROKENSHIRE: I move:

Page 6, line 13 [inserted section 13]—Delete:

that has undergone the first mitotic division

Any creation of human/animal hybrids is a fundamental breach of the historic recognition of the dignity of humanity and the sanctity of human life. The second point is that the claimed purpose of this provision to facilitate the testing of human sperm using animal eggs lacks scientific justification, and the only test used anywhere in the world, the hamster egg penetration test (HEPT), has fallen into disrepute. The HEPT proved to be an insensitive and unreliable assay in identifying sub fertile males. Lee Mee Ho stated all this during the correlation between semen parameters and the hamster egg penetration test.

Moreover, hamsters and their eggs have been a prohibitive import in Australia for some time for quarantine reasons and, accordingly, the provision has no practical application. I believe strongly in the amendment standing in my name, and I will be urging colleagues to contribute to it. Having said that, I will be looking at some divisions with respect to some of my amendments.

The Hon. S.G. WADE: I rise to support this amendment and to take the opportunity to foreshadow my own amendments and to contrast them with those of the Hon. Mr Brokenshire. As I indicated in my second reading contribution, while I do not object to the main thrust of the bill, I do have specific concerns about the proposal for limited use of human/animal hybrids. As parliamentarians we have the duty on behalf of the wider community to legally prescribe the acceptable limits of scientific activity taking into account what is morally acceptable. The Lockhart committee considered that the higher the potential benefits of activity the greater the need for ethical objections to be of a higher level and widely accepted in order to prevent that activity.

I accept that argument and consider that, in a pluralist society and on an issue that does not lend itself to moral clarity and consensus, it is appropriate that we allow research cloning. Conversely, I would argue that, where ethical objections are significant and widely accepted and the activities are of less benefit and higher risk, research should be prohibited. On that basis, I oppose the proposal to lift the prohibition on creating hybrid embryos. I appreciate that the use of such embryos under this bill is proposed to be limited, but I am concerned that even this limited use should not be permitted.

Creating human/animal hybrids may diminish human dignity and blur the moral boundaries and the distinction between humans and hybrids. We do not have the ethical clarity and the widespread community support in relation to hybrid embryos. On this point, I again refer to the Lockhart review. The Lockhart review itself noted that there is strong community objection to the implantation of hybrid embryos, and in another place the committee said that it had an 'implicit understanding that the creation of such entities could be of concern to the community'.

On this issue, I found a paper by medical ethicist Dr Denise Cooper-Clarke in ZadokPerspectives to be very helpful. In it she said:

At a popular level, human-animal chimeras and hybrids are associated with a powerful yuk factor. This is especially so for something as extreme as the humanzee, but even the news in Britain that scientists had applied for a licence to inject human nuclei into rabbit eggs was accompanied by tabloid headlines of 'Frankenbunnies'.

In examining this 'yuk' factor it is apparent that the technologies outlined above raise two fundamental moral questions. First, which if any are permissible and secondly given that some of them do proceed, what is the moral status of the various creatures so produced? The two questions are related, since uncertainty as to how we should regard parahumans is one reason some people are opposed to it or at least uneasy with them, but also the reason some others think they ought to be permitted...

Later in the same article, Dr Cooper-Clarke continued:

Some bioethicists are uneasy about crossing species boundaries, even if they don't think they really exist. Some say it would be cruel to the creatures produced, and would offend the basic ethical principle that humans (or this in case part humans) should never be treated as a means to an end rather as ends in themselves.

The CHAIRMAN: I remind the honourable member that he has made a second reading contribution and he should have included this in it. We have before the committee an amendment moved by the Hon. Mr Brokenshire. Are there any questions with respect to clause 7, rather than speeches? It is getting late.

The Hon. S.G. WADE: This is—

The CHAIRMAN: I know what it is. It should have been included in your second reading contribution. You have indicated that you support the Hon. Mr Brokenshire's amendment and that you might have a question of the minister with respect to clause 7.

The Hon. R.I. LUCAS: I rise on a point of order, Mr Chairman. There is nothing within the standing orders of this chamber that prevents a member, in speaking to a particular amendment or clause, from rising on any number of occasions and, indeed, raising any particular issue, other than if you were to rule that it was repeating information the member had raised in the second reading, and you may well have some discretion in that area.

Certainly, what the member is raising was not raised by the member in the second reading contribution and, in my view, there is no restriction under our standing orders on a member standing up and providing information as to why he or she either supports or opposes a particular position. My point of order is that there is no power under the standing orders to prevent a member doing what the Hon. Mr Wade is doing.

The CHAIRMAN: The Hon. Mr Lucas has been here long enough to know that when the Chairman of the committee directs a member he has good reason to do so. The honourable member when he first got on his feet mentioned his own amendments, which do not come into play until clause 10. So, I ask the honourable member once again to speak to the amendment moved by the Hon. Mr Brokenshire, which he has already indicated he supports. He has already asked questions of the minister on clause 7. It is getting late.

The Hon. S.G. WADE: As I understand it, the committee is debating the Hon. Mr Brokenshire's amendment. I am offering arguments as to why—

The CHAIRMAN: On clause 7.

The Hon. S.G. WADE: —on clause 7, the amendment to clause 7—I believe members should find that amendment attractive.

The CHAIRMAN: We know that you find it attractive. Other members will have their reasons as to what they find—

The Hon. S.G. WADE: With all due respect, I hope that some of my considerations might be of assistance to other members as they consider how they may view Mr Brokenshire's amendments.

The Hon. R.I. Lucas interjecting:

The Hon. S.G. WADE: Thank you, the Hon. Mr Lucas. Dr Cooper-Clarke continued:

Others point to the moral confusion which would arise—the threat to the conceptual, social and moral boundaries that set humans apart, and the uncertainty about our moral objections to parahumans.

I do not argue that this bill will involve the creation of parahumans, but I do not think that we should embark on this path without being mindful of the ethical issues that it raises. With stem cell research not involving animal cells, the moral risk is primarily the destruction of human life. It is a weighty issue but it is a risk of negation, the negation of life.

On the other hand, with animal/human hybrids, the permutation of options is wide and the ethical issues that arise are broad and ongoing as that cell develops. I am of the view that we need more clarity on the moral issues involved before we take the path. It may be that appropriate community discussion leads the community to become more comfortable with such activities. I believe that we have no such moral consensus at this stage. I think it is important that the moral issues are given due consideration before we reach the decision point, not after we reach that point.

Science and morality both contribute to human civilisation. Neither should be hostage to the other; neither should be jettisoned for the other. Just as Christians who choose to be blind to the contribution of science in the name of morality do us a disservice, likewise, I consider that some advocates of biotechnology are not as willing to allow any moral considerations to intrude as what they see as the inexorable march of science.

To me the healthy path is an active dialogue between science and morality. Sometimes scientific discoveries will put pressure on morality to catch up, but at other times it is appropriate for morality to put a check on science. In my mind, animal/human hybrids are one such issue. We should err on the side of caution until there is some consensus and ethical clarity on the moral status of a human/animal hybrid. I would urge other members who are supporting stem cell research to be discerning. The bill deals with a range of matters and many are not related. A member can support stem cell research without accepting animal/human hybrids. Supporting my amendments gives members the opportunity to do so.

The CHAIRMAN: It certainly sounds like your second reading contribution to me. I was nearly going to support the amendment until I heard that.

The Hon. G.E. GAGO: You were not. For the sake of brevity, we oppose this amendment. Obviously it relates to the prohibition of human cloning and makes it an offence to develop a hybrid for any period. As I have already indicated, the bill only allows a hybrid embryo to be created or used for the purpose of testing sperm quality. The bill makes it an offence to develop a hybrid embryo past the point of where the embryo reaches the first mitotic division early on day 2, and anything beyond that attracts a term of imprisonment of 15 years.

If such diagnostic tests are required but we prohibited the use of animal eggs, women may have to go undergo ovarian stimulation and egg harvesting to use their own eggs to test their partner's sperm. For anyone who has had either friends or family go through that experience, indeed, it is very traumatic and not a particularly pleasant procedure. I remind members that the bill enables the creation or use of hybrid embryos only in an accredited ART centre and only with a licence, and it cannot be transferred into a woman.

The Hon. A. BRESSINGTON: I am curious about the comments that the minister just made about women having to go through ovarian stimulation in order to test the veracity of sperm. I seek clarification on this, but I thought that we did not use that technique at all for testing the veracity of sperm: that there is a whole lot of other tests that couples go through. Why are we now going to use this particular technique to test sperm?

The Hon. G.E. GAGO: Indeed, the honourable member is quite correct. In South Australia, we have never used that procedure. However, I have been advised that in the past it was used regularly in New South Wales, and then laws were changed and it was not able to be used and other techniques were then applied. The honourable member is quite right in that a number of different techniques are available for this particular procedure. Ovarian stimulation is one of those. I am not a technician, I do not have a great deal of expertise in this area, but I have been advised that ovarian stimulation is one of those techniques.

The Hon. R.I. LUCAS: One of the issues in relation to considering this amendment is to see whether or not there is any disagreement with the notion that this is, in essence, part of the package in terms of either supporting or defeating hybrid embryos. I know, Mr Chairman, that you are a bit grumpy at the moment and you do not like the Hon. Mr Wade referring to his amendments, which come later, but the practice of the chamber has been that, if you have consequential amendments—

The CHAIRMAN: The honourable member is reflecting on the chair.

The Hon. R.I. LUCAS: I am not—that is a compliment. You are a grumpy person, Mr Chairman, and I like grumpy people. My father was a grumpy person and I loved him dearly whilst he was alive. It was a term of endearment and one of the seven dwarfs, as well.

This is a conscience issue, so it will be extraordinarily difficult, but, in relation to consideration by the committee of the package of amendments, if there are consequential amendments, clearly, if everyone agrees that this is part of the package of hybrid embryos, we can use it as a test clause, which might short-circuit the debate in the later stages. There may well be questions about aspects of the other clauses, but it may well help. I would be interested in other contributions from the government and other representatives in the chamber on whether they agree that this is in essence a test clause for a series of votes either for or against hybrid embryos, and that would assist the committee, which is all I am interested in doing. That is the question I put, and I am interested in the response of members. If it is, I will make another contribution about the general issue of hybrid embryos on this clause as opposed to the more substantive clause, as I see it—the definition of 'hybrid embryo' on page 10 of the bill.

Having raised that matter with the minister, will she indicate what animals we are talking about with the combination of animal sperm and human eggs and human sperm and animal eggs? Is there any restriction in the federal legislation? Are we talking of the family dog or cat, goats, camels or what? Where is there any restriction in relation to the type of animal sperm or animal egg that the member for Ramsay and his supporters want us to support in the formation of human embryos?

The Hon. G.E. GAGO: In relation to this being a test, I am happy for this clause to be the test for the hybrid as it is a sensible thing to do. In relation to the issue of eggs, my advice is that the test was first developed in the UK using hamster eggs; New South Wales uses sheep and cow eggs.

The Hon. R.I. LUCAS: I thank the minister for the indication of New South Wales using sheep and cows and someone else using hamsters. However, is there no restriction? Can the licensing body, having received a request to use a dog, a cat, a hippopotamus, a camel, a goat, a giraffe or a unicorn, if they can find one, be restricted as to what it can licence under the federal legislation? There does not appear to be any restriction in the state legislation as to what animal the member for Ramsay and his supporters would like us to use—

The Hon. S.G. Wade: Or a thing.

The Hon. R.I. LUCAS: Yes, or a thing when we come to the subclause on page 10.

The Hon. G.E. GAGO: I do not have a lot of detail in relation to this question but the information I have is that the legislation does not put any limitations on the animals to be used. However, there could be restrictions under the research guidelines that are used and developed by clinicians and other research personnel in terms of the suitability and availability, and things such as the housing of animals in laboratories. It would be difficult to house a giraffe, for instance, and it might not be in anyone's interests to house a lion. So, there are some restrictions around that but they are not included in the legislation.

The Hon. A. BRESSINGTON: I am curious. The Hon. Robert Brokenshire mentioned earlier that the hamster test—I cannot remember what it was called—was proven to be flawed and we cannot get the hamsters or their eggs in Australia. The minister's referring to that in her last answer is, in fact, a bit of a furphy, I would think, because that hamster test is just not possible.

The other question for the minister is: if, in fact, there is no restriction on what animal's eggs or sperm we can use in this process and it is a matter of how we house the animals, will the animals have to go through ovarian stimulation as well to harvest their eggs? If that is the case, I see a high level of hypocrisy over all the kerfuffle about the animal protection act that we debated some months ago and the rights of animals, yet we are prepared to put those animals through the pain and trauma of ovarian stimulation that is not desirable for humans.

The Hon. G.E. GAGO: I am sorry if the honourable member misunderstood my reference to the use of hamster eggs. In fact, I never suggested that we used hamster eggs in Australia because we cannot import them. What I indicated was that hamsters were first used in the UK and that Sydney had used sheep and cow eggs. I have never referred to them using hamster eggs. I am sorry if the honourable member misunderstood that but, if she reads Hansard, she will see that I was quite clear about that.

I cannot read their minds but I would imagine that one of the reasons researchers in Sydney chose to use cow and sheep eggs is that they are easily available from the abattoirs. The advice I have received is that ovarian stimulation is not required to be used in harvesting these eggs. In fact, they are readily and easily obtained from the abattoirs.

The Hon. D.G.E. HOOD: I would like to state for the record that I wholeheartedly support the amendment moved by the Hon. Mr Brokenshire and I completely reject the use of hybrids, whether they be for scientific or other purposes.

The Hon. B.V. FINNIGAN: If it will be of assistance to the committee, in line with the suggestion of the Hon. Mr Lucas and as would be very evident from my second reading speech, I oppose the creation of hybrid embryos for any purpose, so I support this amendment and other amendments which would aim to prevent the use or increase the penalties for use of hybrid embryos, and so on.

I am not certain that we can regard this amendment as a test in relation to hybrid embryos given that the clauses on page 10 which deal with the definition of hybrid embryo canvass some greater issues, I think, in relation to regulation—particularly clause 8(1)(e) which refers to a thing declared by the regulations to be a hybrid embryo, and that has been referred to by some members.

I think that opens up some further questions as to what the potential limits or constraints of that clause are. I am not certain that you can regard this necessarily as a test clause but, in order to assist the committee, I am happy to indicate that I support the amendment and will support other amendments that are essentially in opposition to hybrid embryos.

The Hon. CARMEL ZOLLO: Also, if it assists the committee, I indicate that I will be supporting the amendment and any other similar amendments in relation to hybrid embryos.

The Hon. A. BRESSINGTON: That goes for me, too. I will be supporting the Hon. Robert Brokenshire's amendment and any others that prevent the formation of hybrids as well.

The Hon. S.G. WADE: On the issue of a test clause, I am of the view that this is a test clause as to whether the prohibition of hybrid embryos will be maintained. If members wish to maintain the prohibition of hybrid embryos, they would need to support the Hon. Mr Brokenshire's amendment. In subsequent amendments, if they want to prohibit the hybrid embryos but allow research cloning, members will need to choose between my amendments and those of the Hon. Mr Brokenshire.

The Hon. R.D. LAWSON: As this is to be a test case, could the minister place on the record the effect of clause 13 as the government intends? We have had the spectre raised of the so-called 'yuk factor'—as I think it was referred to earlier by the Hon. Mr Wade—with the creation of hybrid embryos raising the spectre of the existence of creatures comprising genetic material from various species. What is the true effect of prohibiting the development of a hybrid embryo prior to it undergoing the first mitotic division?

The Hon. G.E. GAGO: I have already outlined these. It is only up to the stage of the first division and only in an accredited ART centre. There were a number of restrictions that I have already put clearly on record.

The Hon. R.D. LAWSON: There is a suggestion that that means 14 days as a maximum, I gather, from an earlier explanation given. Am I mistaken in regard to that? Now, 24 hours is being suggested.

The Hon. G.E. GAGO: More than one day but less than two days for that first mitotic division.

The Hon. S.G. WADE: Just so the Hon. Mr Lawson might not be confused as to my argument, I am not asserting that this bill will produce 'parahumans' or 'Frankenbunnies' or whatever it might be. I am asserting, though, that this is the first step on a path that we morally should not take.

The Hon. R.I. LUCAS: Just on the point that the Hon. Mr Lawson raised, there was certainly debate about whether it was 24 hours or 14 days in the other place. I think the minister conceded that there was an inconsistency, as he termed it, in the bill. Some of us might have seen it as a sneaky way of getting 14 days in without members knowing, but let us accept the minister at his word. That was tidied up by an amendment in the other place and, as I understand the government's position, it is roughly 24 hours, or maybe a bit above that.

I indicate my support for the amendment. I accept the point that the Hon. Mr Finnigan has made that there are some aspects of subsequent clauses, such as the subclause he referred to on page 10 which refers to a thing declared by regulations to be a hybrid embryo and, as I said earlier, whether this is passed or defeated, I will still have some questions on other aspects of the legislation that relate to hybrid embryos.

I would have thought that, once this has been determined, it is part of a package of amendments that either supports hybrid embryos or does not. I think that will assist the committee, and I will therefore mount my argument at this stage.

I spoke on this in the second reading and I do not intend to repeat those arguments, but at that stage I hinted at something that I want to expand on now: this debate lacks one thing—a public debate about it. As I said, yes, there has been debate about cloning and embryonic stem cell research but the issue about whether or not we should cross this line, albeit the minister says at this stage we are only going to do it for 24 hours or so, but it is the first significant step. We highlighted earlier what has occurred in the past five years; who knows what we are going to be asked to support in the next five years.

So, it is a significant step, and there has been no public debate about this at all because no section of the media has touched the issue at all, even though members like the Hon. Mr Hood and others have raised the issue. It is their commercial judgment that it is not of interest either to them or their readers or listeners. I disagree with that.

Late last evening, I took advantage of the limited tools available to me to place a message on my Twitter and Facebook sites. The message that I put there was something like:

Rann votes for bill that will allow animal sperm and human eggs to form a hybrid embryo. What next?

You are only allowed 140 characters, so you cannot really—

The Hon. P. Holloway: Great contribution!

The Hon. R.I. LUCAS: Well, there has been no public debate. The Hon. Mr Holloway—there has been no public debate about this issue of hybrid embryos. In a short space of time, there was a very vigorous response to the Facebook site, in particular, from people saying they knew nothing about it, people asking me to provide more information about the bill. This morning I provided a reference to the bill and a copy of my contribution on my website. I posted a section of my contribution as it relates to my views on Mr Rann and his support for this proposition on my Facebook site, as well. Again, I have received responses in relation to that.

An honourable member interjecting:

The Hon. R.I. LUCAS: It was a very vigorous response which was negative towards the proposition of hybrid embryos and the position that Mr Rann was adopting. That is the thing that is missing from this whole debate. I think everyone in this chamber, whichever way they vote on this, realises that it is a reasonably significant (some would argue a very significant) decision that has been taken in relation to the future direction of research.

Some people describe it as having a 'yuck' factor; that is not a phrase that I have used, but when you raise it with people they have very strong views, and they are not aware at the moment because no section of the media is involved, other than, as I said, using the capacity I have through Facebook and Twitter to advise at least a very small section of the community that this is going on at the moment, this is how your Premier has voted, the parliament is currently having to consider these important issues.

The views of people out in the community ought to be important when we are making these decisions. I am the last person in the world to argue that we need to reflect the majority views on particular issues, because in some cases the way I voted has been consistent with the majority view and in other cases it has been inconsistent.

However, on this issue we have not had any indication, as members. We are receiving thousands of emails on other pieces of legislation expressing views on the legislation but not on this issue of hybrid embryos. I suspect other members have not received any submissions. I would be interested if any member in this chamber has received a submission on the issue of hybrid embryos in relation to the legislation. There might have been some limited numbers, I do not know. I certainly have not received any at all.

We have had confirmed tonight from the minister that there is no restriction at all in the licensing of what sort of animal sperm or egg can be used in relation to this. Friendly little hamsters so far have been used, as have nice cows and sheep, but there is no restriction at all on the type of animal that can be used in this sort of experimentation. The minister indicated—

The Hon. I.K. Hunter: It's not experimentation. It's only viability tests.

The Hon. R.I. LUCAS: You call it viability; I call it research and experimentation. You use your words, the Hon. Mr Hunter; I will use my words. We may well not agree. The Hon. Mr Hunter can make a contribution if he wishes. He can stand up and do so.

As I have said, the minister has indicated that there is no restriction, and I think that is an amazing position. The best response she could give to the committee was that the licensing body might put some guidelines on these issues. However, there is no guideline at all. Any animal you could think of that can produce sperm or eggs can be used in terms of this provision. I think it is an extraordinary proposition to be asking members of this committee to support. As I indicated in my second reading speech, and I do so again today, I support the amendment.

The committee divided on the amendment:

AYES (9)
Bressington, A. Brokenshire, R.L. (teller) Finnigan, B.V.
Hood, D.G.E. Lucas, R.I. Ridgway, D.W.
Stephens, T.J. Wade, S.G. Zollo, C.
NOES (10)
Darley, J.A. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Hunter, I.K. Lawson, R.D.
Lensink, J.M.A. Parnell, M. Winderlich, D.N.
Wortley, R.P.
PAIRS (2)
Schaefer, C.V. Dawkins, J.S.L.

Majority of 1 for the noes.

Amendment thus negatived.

Progress reported; committee to sit again.


At 23:26 the council adjourned until Thursday 26 March 2009 at 11:00.


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