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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-03-26 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.

(Continued from 25 March 2009. Page 1769.)

Clause 7.

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

Page 9, lines 7 to 10 [inserted section 19]—Delete 'and' and paragraph (b).

This is the second clause upon which it is important to focus and vote. It is about the precursor egg issue debated at length so far. I will be brief with my remarks due to the pressures of the parliament and will keep to the essential elements of the amendment, which removes the opportunity to license the use of precursor eggs. I ask members to consider this. My concerns are around the minister's answers in the summing up of the second reading on how these eggs are sourced. To me, to Family First and probably to many others the answers are a real concern. My second concern is around the gestation of the baby that is the source of those eggs and the lack of departmental oversight and investigation of abortion practices.

I also have a query that ties in with this amendment. With clause 8(3) on page 10, the federal legislation as I understand it requires consent from the mother. Scientifically speaking the mother giving the egg in the precursor cell scenario is the aborted girl and not the mother. There is nothing in the federal legislation referred to in the new definition that could be construed as meaning that the mother of the aborted girl is the donor. How can legitimate consent be obtained?

The Hon. G.E. GAGO: I did not understand the second part of the question.

The Hon. R.L. BROKENSHIRE: I will go through it again as the minister was busy. Clause 8(3) on page 10 refers to the federal legislation, which I understand requires consent from the mother. Scientifically speaking, the mother giving the egg in the precursor cell scenario is the aborted girl and not the mother. There is nothing in the federal legislation, referred to in that new definition, that could be construed as meaning the mother of the aborted girl is the donor. How then can legitimate consent be obtained?

The Hon. G.E. GAGO: The advice I have received is that consent is consistent in the same way that parents are able to sign an informed consent for the donation of organs or tissues from their deceased children. Children are unable to give consent, in the same way as a foetus is not able to give consent, so it is consistent within the legal framework.

The Hon. R.L. BROKENSHIRE: I have another question for the minister regarding precursor cells. Will the minister point out where there is a prohibition on fertilising the foetal egg itself? I understand that you can mature the eggs and they can, indeed, be fertilised.

The Hon. G.E. GAGO: While we are finding that information, I will indulge, in the committee stage, to clarify some information I gave last night in relation to a matter that the Hon. Rob Lucas and the Hon. Stephen Wade raised. In terms of clarification, I have since been advised that commonwealth and state laws set criteria that limit how the NHMRC Embryo Research Licensing Committee can make decisions about licensing research projects that use human embryos.

I advised yesterday evening that the commonwealth Research Involving Human Embryos Act 2002 establishes the NHMRC Embryo Research Licensing Committee and sets the rules for its operation and decision-making. I can confirm that, although the state laws do not replicate the sections that establish the licensing committee, the decision-making criteria that I read out yesterday evening is, in fact, replicated in the South Australian Research Involving Human Embryos Act 2003, in sections 10 and 11. These are legislative requirements not guidelines, so just that section alone is replicated in the state legislation.

Could I ask the Hon. Mr Brokenshire to repeat his question? We are having trouble understanding it.

The Hon. R.L. BROKENSHIRE: Regarding precursor cells, can the minister point to where there is a prohibition on fertilising the foetal egg itself? I understand that you can mature the eggs and they can, indeed, be fertilised. Will the minister indicate to the committee where the prohibition is in the act regarding fertilising the foetal egg itself?

The Hon. G.E. GAGO: I have had section 13 drawn to my attention, as follows:

Offence—using precursor cells from a human embryo or human foetus to create a human embryo or developing such an embryo. A person commits an offence if a person uses precursor cells, taken from a human embryo or human foetus, intending to create a human embryo or intentionally developing an embryo so created.

The maximum penalty is imprisonment for 10 years.

The Hon. R.L. BROKENSHIRE: Will the minister explain to the chamber, given the penalties and the offence, what mechanisms there will be with respect to checks and balances, and policing?

The Hon. G.E. GAGO: The commonwealth law sets up a monitoring and inspection service which regularly checks on embryo researchers to make sure that they are meeting their licence requirements. Inspectors can enter and inspect premises where they believe someone is creating or using embryos illegally. I think that covers it.

The Hon. R.L. BROKENSHIRE: Based on that, will the minister explain how many inspectors we have in South Australia or how many inspectors the government intends to have in South Australia; where will they be working from, and who will be overseeing those inspectors?

The Hon. G.E. GAGO: The advice I have received is that here in South Australia we use the expert inspectors appointed by the NHMRC who make regular visits to all states including South Australia. We do not have the figures in terms of exactly how many there are or how regular those visits are, but I am advised that they do visit here in South Australia regularly.

The Hon. R.L. BROKENSHIRE: What transparent reporting processes will be available to the community, to the parliament and to the government? Will there be the tabling of an annual report with respect to inspections? How will we know that this is occurring and that we can be comfortable that there is some sort of paper trail to this process?

The Hon. G.E. GAGO: I have been advised that six-monthly reports are provided. They are tabled in federal parliament, and they are also available on the website.

The Hon. R.D. LAWSON: I am seeking clarification. A few minutes ago, the minister responded to a question from the Hon. Rob Brokenshire about the use of precursor cells taken from a human embryo. The member was actually asking whether there is any prohibition against that.

I thought I heard the minister mention section 13, although my understanding from reading section 19 to be inserted in this bill is that that section provides that a person who uses precursor cells taken from a human embryo or a human foetus intending to create a human embryo or intentionally developing an embryo will commit the offence for which the maximum penalty is imprisonment for 10 years if that activity is engaged in without authorisation from an NHMRC licence.

The minister suggested that there was a prohibition, not that it was an activity that was capable of being licensed. Could the minister confirm what is the true position?

The Hon. G.E. GAGO: If I could beg the indulgence of the committee, I ask that we just be given some time to work through that, and we will get back to you with that answer.

The Hon. B.V. FINNIGAN: Just to clarify, are we continuing the deliberations at this stage?

The CHAIRMAN: We are on the Hon. Mr Brokenshire's amendment to clause 7.

The Hon. B.V. FINNIGAN: I appreciate that that is where we are, but I am just not sure, from what the minister said, whether we are proposing to continue. Looking at the response that the minister made last evening to my question regarding the use of precursor cells from aborted foetuses, I am a bit unclear as to her response in relation to consent procedures.

The minister informed the committee that researchers could not initiate seeking precursor cells from aborted foetuses and that that would be done by medical practitioners or clinicians. I was asking about the procedures in relation to that, and whether it would be the medical practitioner who would be saying, 'Now that you have taken this decision to terminate a pregnancy in a late period of gestation, there is this possibility of using the ova for research purposes, etc.' and obtaining the consent from the mother.

I want to know whether procedures are in place or will be put in place, or was the minister indicating that it is not intended at this stage that that provision would be utilised?

The Hon. G.E. GAGO: I only have the information that I gave yesterday evening, and that is that there are provisions or guidelines that require the decisions to be separate. That is a clinically assessed decision, but they must be separate decisions. I do not have any further detail on that.

The Hon. S.G. WADE: I wonder whether the minister might be able to clarify how soon the committee can expect a response to the Hon. Robert Lawson's question, because that question, clarifying a question and answer to the Hon. Robert Brokenshire, to my mind goes to the nub of the difference between the government's current clause and the Hon. Robert Brokenshire's amendment. If it is not possible to provide an answer soon, it might assist the committee to report progress and resume on motion, or whatever the appropriate course would be.

The Hon. R.I. LUCAS: I am happy to fill in time and filibuster while the minister answers the Hon. Mr Lawson's—

The Hon. S.G. Wade: Always happy to help!

The Hon. R.I. LUCAS: Always happy to assist. My contribution on this issue will be relatively brief. I came into the committee when the minister was clarifying the position she had indicated last evening in relation to licensing questions that had been raised, so I missed the first part of what the minister said. I am not asking the minister to repeat it on the record, but I wonder whether it would be possible for the minister to provide me with a copy of what it is she read, so that I can read it and compare it with what was said last night. If the minister was clarifying advice from last evening, I might want to pursue that by way of a question in the committee stage. I am wondering whether it is in a form capable of being provided to me.

The Hon. G.E. GAGO: I am happy to repeat the most important point, and that is that I confirm that, although the state laws do not replicate the sections that establish the licensing committee, the decision-making criteria that I read out yesterday evening are, in fact, replicated in the South Australian Research Involving Human Embryos Act 2003, sections 10 and 11. I believe that last evening I indicated that they were not replicated and that they did not need to be. I am just clarifying that they are, in fact, replicated in state legislation.

The Hon. R.I. LUCAS: I do not have that act in front of me, although I can get it in a moment. I recall that last night the minister indicated that there were these guidelines that govern federal licensing. Is the minister saying that those guidelines she put on the record last night are actually in the state act?

The Hon. G.E. GAGO: I am advised that, yes, they are.

The Hon. S.G. WADE: Would the minister like to reflect on that answer? My understanding is that, even in relation to the commonwealth act, the guidelines are not in the act. The criteria are in the act; the guidelines are not. Can the minister reassure me that the answer given to the Hon. Mr Lucas is, in fact, the case?

The Hon. G.E. GAGO: I am advised that they are not guidelines that are in the act: they are decision-making criteria that are outlined or prescribed in the act.

The Hon. B.V. FINNIGAN: If I can assist the committee. I will be supporting the Hon. Mr Brokenshire's amendment on this occasion. I am not satisfied from the responses we have had that the necessary protections and procedures are in place in relation to the use of precursor cells, from aborted foetuses in particular. It seems that we are leaving some of the detail to be determined, and I do not think that is a satisfactory situation. So, I will be supporting this amendment.

The Hon. G.E. GAGO: In response to the Hon. Robert Lawson's question, I have been advised that the implication is that precursor cells could be matured and then fertilised by sperm. However, it is unlikely that an egg so matured could be successfully fertilised by sperm. The intent is that precursor cells could be matured and used for therapeutic cloning, but only under a licence. Of course, they are not able to be implanted; that would be a breach of the provisions.

The Hon. B.V. FINNIGAN: I would like to clarify the point made by the minister. I assume when the minister says 'therapeutic cloning', she is talking about somatic cell nuclear transfer, in accordance with the provisions of this bill.

The Hon. R.I. LUCAS: Just to clarify the response to the Hon. Mr Lawson's question, is the minister, in essence, indicating that her previous advice was not correct? In response to the earlier question, the minister was talking about prohibition, and the Hon. Mr Lawson said, 'Hold on, it looks like it could be licensed.' Is the minister clarifying that the earlier response was inaccurate: that it could be licensed, even though the minister is arguing it is unlikely, or something along those lines? Is the minister now clarifying the earlier advice as being incorrect?

The Hon. G.E. GAGO: What I have attempted to do is elaborate and provide further detail on the information I gave yesterday and just to draw attention to the fact that these cells can only be matured for 14 days and that they are not able to be implanted.

The Hon. R.I. LUCAS: Without retracing the events, the Hon. Mr Brokenshire asked a question. My understanding of the minister's response was that she said no, and that she was quite unequivocal. The Hon. Mr Lawson then said, 'Hold on, maybe that's not right.' What I am trying to clarify is whether the minister is now saying that her original response was not correct.

The Hon. G.E. GAGO: I am not exactly sure what question the honourable member is referring to.

The Hon. R.I. LUCAS: The question asked by the Hon. Mr Brokenshire.

The Hon. G.E. GAGO: If we can just clarify that, because I think we are talking at cross purposes here. I think I am responding to a different question to the one the honourable member might be asking.

The Hon. R.I. LUCAS: To be frank, I cannot remember all the details of the Hon. Mr Brokenshire's question but—

The Hon. G.E. Gago interjecting:

The Hon. R.I. LUCAS: Well, the Hon. Mr Brokenshire asked you a question and I was just listening to the conversation going on between the two of you. I then picked up that the Hon. Mr Lawson said, 'Hold on, your answer might not be entirely accurate; have a look at section 19.' My understanding of the Hon. Mr Brokenshire's question (and perhaps I should invite him to further explain it) was that he was asking where in the legislation this was prohibited, or words to that effect. Perhaps Mr Brokenshire could clarify the question exactly.

The CHAIRMAN: The Hon. Mr Brokenshire might remember the actual question.

The Hon. R.L. BROKENSHIRE: For the sake of this important debate, and for the benefit of members, I will repeat the question on precursor cells. Can the minister point to where there is a prohibition on fertilising the feeder egg itself, as I understand that you can mature those eggs and that they can indeed be fertilised? We need to know exactly where the prohibition is within the act.

The CHAIRMAN: Was that the question, Mr Lucas?

The Hon. R.I. LUCAS: It was indeed, Mr Chairman. The minister then responded, and the Hon. Mr Lawson thought she said there was a prohibition in clause 13. The minister read out a particular response and the Hon. Mr Lawson then said, 'Well hold on, have a look at clause 19; it does not actually talk about a prohibition. It says that if you are licensed you can do things and if you are not licensed you can't.' The minister came back with a response in relation to that.

What I am seeking is clarification regarding whether the minister's original response was inaccurate, and whether the latter position from the minister is now the accurate response.

The Hon. G.E. GAGO: I read from a version of clause 13. I believe that the Hon. Robert Lawson read out an amended clause 13 which has not yet been voted on and which is to be in clause 19. It includes paragraph (a), which is what I read out in the chamber. The proposed amendment, which is yet to be voted on, reads:

(b) the person engages in activities mentioned in paragraph (a) without being authorised by a licence, and the person knows or is reckless as to that fact.

That is an amendment we have not yet dealt with, so I read out the original clause 13 as it stands —which will, perhaps, depending on the will of this chamber, become an amended clause 19 that will include a paragraph (b).

The committee divided on the amendment:

AYES (8)
Bressington, A. Brokenshire, R.L. (teller) Finnigan, B.V.
Hood, D.G.E. Lucas, R.I. Schaefer, C.V.
Stephens, T.J. Zollo, C.
NOES (12)
Darley, J.A. Dawkins, J.S.L. Gago, G.E. (teller)
Holloway, P. Hunter, I.K. Lawson, R.D.
Lensink, J.M.A. Parnell, M. Ridgway, D.W.
Wade, S.G. Winderlich, D.N. Wortley, R.P.

Majority of 4 for the noes.

Amendment thus negatived.

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

Page 9, lines 19 to 31 [inserted section 19A(3) and note]—Delete subsection (3) and the note appearing at the foot of that subsection

This is a consequential amendment on the hybrid embryo amendment last night, and this takes us back to the hybrid embryo issue. Whereas amendment No. 1 was about prohibiting the creation of hybrids at all, which the bill allows to go to the first mitotic division, this amendment is about stopping the licensing of those hybrid embryos for research.

The CHAIRMAN: You say that it is consequential, but are you still moving it?

The Hon. R.L. BROKENSHIRE: I am. It is consequential, but it is slightly different, and I still move it.

The Hon. S.G. WADE: I would like to continue the discussion we have been having in relation to the interaction of the commonwealth and state acts and the criteria and guidelines under those. My current state of understanding, informed by the minister's responses, is that the criteria under the commonwealth act are repeated under the state act and that the guidelines that inform the NHMRC committee are made by commonwealth regulation. Let us pause and consider that point. Section 21(4)(c) of the commonwealth research act provides:

(c) any relevant guidelines, or relevant parts of guidelines, issued by the CEO of the NHMRC under the National Health and Medical Research Council Act 1992 and prescribed by the regulations for the purposes of this paragraph.

The corresponding element in the state act provides:

(c) any relevant guidelines, or relevant parts of guidelines, issued by the NHMRC under the National Health and Medical Research Council Act 1992 and prescribed by the regulations for the purposes of the corresponding provision under the Research Involving Embryos Act 2002 of the Commonwealth.

Presumably, that is a commonwealth regulation, because this state parliament cannot make regulations under commonwealth acts. This was the point of the discussion last night. As a state parliamentarian, I want to know whether an activity I am being asked to approve in this state is to be governed by regulations that this parliament does not have the opportunity to review. Does the minister have a point that would help me understand that issue better?

The Hon. G.E. GAGO: I believe that the honourable member is referring to the NHMRC guidelines, which are not currently under amendment. In addition to the licensing constraints within the commonwealth and state acts, there are also national ethical guidelines. Researchers and clinicians are required under commonwealth and state law to abide by the National Statement and Ethical Guidelines on the Use of Assisted Reproductive Technology in Clinical Practice and Research, issued by the NHMRC.

A clause was added to the bill for the SA Research Involving Human Embryos Act 2003 during its passage requiring that any NHMRC guideline or policy reference in the legislation be tabled in parliament, within three sitting days from changes taking effect, and referred to the parliamentary Social Development Committee, both initially and each time it was changed. This requirement is unique to South Australia.

The NHMRC routinely reviews and revises its guidelines every five years in South Australia and keenly engages in national consultation. The NHMRC revised and reissued its ethical guidelines in 2005, and the Social Development Committee considered these in 2006. In 2007, the Social Development Committee considered further revisions to both the NHMRC ethical guidelines and the national statement made in light of the changes to the commonwealth law. However, neither the Social Development Committee nor the South Australian parliament can change nationally agreed guidelines issued under the commonwealth NHMRC act.

The bill retains the requirement for relevant new or revised NHMRC guidelines to be tabled in parliament and referred to the Social Development Committee for inquiry and report to parliament. However, it extends the time period from three to six sitting days, which is the usual period in South Australian legislation, from commencement of their operation to allow for final printed copies to be procured for tabling in parliament.

The Hon. S.G. WADE: In amongst that answer was the confirmation that clinical practices rely on regulations that this parliament can review, and it will do so through the Social Development Committee, but it cannot disallow. I am happy to proceed on that understanding. On to the next point on the same issue, I would now like to address the issue of the criteria. As I understand it, the minister advised the Hon. Rob Lucas and, perhaps, also the Hon. Robert Brokenshire that, whilst the guidelines were not replicated in the state act, the criteria were. On that issue, I am surprised to see that the state legislation and the federal legislation seem to have different criteria and that this amendment bill does not have any proposal to change the state act. Presumably, the commonwealth chose to change its act at the time that, if you like, the complementary piece of commonwealth legislation was considered by the commonwealth parliament.

Let me use just one example. As I understand it, we are talking about section 21 of the commonwealth act and section 11 in the state act, which both contain subsection (4)(a). Paragraph (a) in the commonwealth act provides:

(a) restrict the number of excess ART embryos, other embryos or human eggs to that likely to be necessary to achieve the goals of the activity or project proposed in the application;

The state act currently provides:

(a) restrict the number of excess ART embryos to that likely to be necessary to achieve the goals of the activity or project proposed in the application;

In other words, the commonwealth act inserts after the words 'excess ART embryos' the words 'other embryos or human eggs'. I then looked to the bill to see whether our state criteria are being updated by this bill before us. I notice that the clause updating section 11 is clause 14, and those words are inserted. Can I have an assurance that the criteria under the state act are identical to those under the federal act as a result of this bill?

The Hon. G.E. GAGO: We just need some time to find the details. However, I hope that you might be reassured by the fact that the licensing committee is, in fact, constrained by the criteria in both state and commonwealth legislation and would apply the strictest of the criteria. I have just been advised that our amendments bring them into line.

Amendment negatived; clause passed.

Clauses 8 and 9 passed.

Clause 10.

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

Page 12, line 4 [inserted section 5A]—Before 'A' insert: (1)

Amendment negatived.

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

Page 12—

Line 12 [inserted section 5A(b)(ii)]—Delete 'or' and substitute: and

Lines 13 to 15 [inserted section 5A(b)(iii) and (iv)]—Delete subparagraphs (iii) and (iv)

I advise that I will not be speaking to the amendments. My amendments are all consequential.

Amendments negatived.

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

Page 12, after line 21 [inserted section 5A]—After note insert:

(2) A person commits an offence if—

(a) the person intentionally uses an embryo; and

(b) the embryo is—

(i) a human embryo created using precursor cells taken from a human embryo or a human fetus; or

(ii) a hybrid embryo.

Maximum penalty: imprisonment for 5 years.

Note—

The creation or development of embryos mentioned in this subsection is prohibited under Part 2 of the Prohibition of Human Cloning for Reproduction Act 2003.

Amendment negatived; clause passed.

Clauses 11 and 12 passed.

Clause 13.

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

Page 13—

Lines 25 and 26 [substituted section 10(1)(d)]—Delete paragraph (d)

Lines 31 to 37 [substituted section 10(1)(f)]—Delete paragraph (f)

The first amendment makes it absolutely clear that there can be no licensing regime for harvesting eggs from aborted baby girls by deleting paragraph (d). I am also moving the deletion of paragraph (f) to make it clear that there can be no licensing regime for creating hybrids.

Amendments negatived; clause passed.

Remaining clauses (14 to 22) and title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for State/Local Government Relations, Minister for the Status of Women, Minister for Consumer Affairs, Minister for Government Enterprises, Minister Assisting the Minister for Transport, Infrastructure and Energy) (11:55): I move:

That this bill be now read a third time.

The council divided on the third reading:

AYES (12)
Darley, J.A. Dawkins, J.S.L. Gago, G.E. (teller)
Gazzola, J.M. Holloway, P. Hunter, I.K.
Lawson, R.D. Lensink, J.M.A. Parnell, M.
Ridgway, D.W. Winderlich, D.N. Wortley, R.P.
NOES (9)
Bressington, A. Brokenshire, R.L. (teller) Finnigan, B.V.
Hood, D.G.E. Lucas, R.I. Schaefer, C.V.
Stephens, T.J. Wade, S.G. Zollo, C.

Majority of 3 for the ayes.

Third reading thus carried.

Bill passed.

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