Santo Santoro (Queensland, Liberal Party, Minister for Ageing) Share this | Hansard source

I thank Senator Fielding for his question and acknowledge his strong interest in this area of vital public policy. On 5 April 2002 the Commonwealth and the states and territories agreed that they would introduce nationally consistent legislation to:

A. ban human cloning and other practices regarded as unacceptable by COAG; and

B. establish a national regulatory regime in relation to the use of excess Assisted Reproductive Technology (ART) embryos to be administered by the National Health and Medical Research Council (NHMRC) as the national regulatory and licensing body,

the Commonwealth and the States and Territories agree that the purpose of this Agreement is to facilitate:

C. the implementation of the nationally-consistent legislative scheme for the regulation of the use of excess ART embryos (including a review of the scheme within three years) and the prohibition of human cloning and other practices regarded as unacceptable by COAG; and

D. the maintenance over time of a nationally-consistent approach.

Section 12 of the intergovernmental agreement states:

Any Party that proposes to amend its Legislation or introduce new Legislation so as to affect the operation of the Scheme will submit the proposed amendments or new Legislation to the Australian Health Ministers Conference (AHMC) or COAG for consideration. The AHMC may resolve to refer the matter to COAG for consideration. Each Party agrees that it will not table in Parliament such an amendment or such new Legislation unless the AHMC or COAG, as the case may be, has considered the proposed amendment or new Legislation.

I am not aware that any formal consultation with the states and territories on this matter has yet taken place.

The key question here is whether a private member’s bill represents an intention by the Australian government to amend its legislation. Quite clearly, this is not the case. In any case, the intergovernmental agreement is just that—an agreement. It is not justiciable; that is, if one party to an agreement feels aggrieved that another party to the agreement has not abided by the agreement then there is no means of enforcing compliance. I am aware that the Tasmanian health minister has indicated that they do not see a need to amend their legislation. I also note that the Victorian government has recently received a report that recommends legislative change. I am advised that whether differences in the legislative approaches of states and Commonwealth stand at the end of the day depends on the operation of section 109 of the Constitution. I am happy to take further advice on this issue and get back to Senator Fielding if he wishes that I do so.