EXPLANATORY STATEMENT
Research Involving Human Embryos Act 2002
Declaration of ‘corresponding State laws’
Summary
Section 7 of the Commonwealth Research Involving Human Embryos Act 2002 (RIHE Act) confers power on the Minister to declare a law to be a corresponding State law for the purposes of the RIHE Act. This Ministerial declaration provides that the Prohibition of Human Cloning for Reproduction Act 2003 (South Australia) (South Australian PHCR Act) and the Research Involving Human Embryos Act 2003 (South Australia) (South Australian RIHE Act) are such corresponding State laws.
Background
The RIHE Act, which received Royal Assent on 19 December 2002, regulates the use of human embryos for research where those embryos have been created for assisted reproductive technology and are excess to the couples’ needs. Section 7 of the RIHE Act provides that a ‘corresponding State law’ is, in effect, a law of a State (or Territory) which the Minister has declared to be corresponding.
Pursuant to an Inter-Governmental Agreement reached by all jurisdictions at a Council of Australian Governments (CoAG) meeting in April 2002, each State and the Australian Capital Territory enacted its own legislation to achieve national consistency with the RIHE Act. After assessment by the Commonwealth, each such State and Territory Act was declared to be a corresponding State law for the purposes of the RIHE Act. The South Australian RIHE Act was declared to be a ‘corresponding State Law’ on 3 October 2003.
In 2006, the RIHE Act was amended by the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006. Consequently, the South Australian PHCR Act and the South Australian RIHE Act were no longer considered appropriate to be ‘corresponding State laws.’ The relevant ministerial declaration has, accordingly, been revoked.
As a response to the Commonwealth’s changes to the RIHE Act, all jurisdictions (except the Northern Territory) agreed at a CoAG meeting in April 2007 to amend legislation to ensure national consistency regarding the regulation of human embryo research.
The South Australian legislature has since amended the South Australian PHCR Act and the South Australian RIHE Act, which are now in a form appropriate to be ‘corresponding State laws’ for the purposes of the RIHE Act.
The South Australian amending legislation is the Statutes Amendment (Prohibition of Human Cloning for Reproduction and Regulation of Research Involving Human Embryos) Act 2009 (South Australia) (No 11 of 2009).
Instrument
The effect of the instrument is to declare the South Australian PHCR Act and the South Australian RIHE Act to be corresponding State laws for the purposes of the RIHE Act.
Consultation
No consultation was undertaken in respect of this declaration as it is of a minor and machinery nature.
Commencement
This declaration is to take effect from the day after it is registered on the Federal Register of Legislative Instruments.
Overview
The Research Involving Human Embryos Act 2002 was enacted to regulate the use of human embryos for research, specifically those created for assisted reproductive technology and surplus to the needs of the couples involved. The Act was designed to address the need for a cohesive national framework governing the ethical and legal standards for human embryo research across Australia. The Act allows the Minister to declare corresponding State laws, which are State or Territory laws deemed to be in alignment with the Commonwealth legislation. This mechanism ensures that the national regulatory standards set by the Commonwealth are mirrored in State laws, thereby providing a unified approach to the regulation of human embryo research. The South Australian Prohibition of Human Cloning for Reproduction Act 2003 and the Research Involving Human Embryos Act 2003 were subsequently declared as corresponding State laws, reflecting their alignment with the national framework.
Scope and Application
The Research Involving Human Embryos Act 2002 (RIHE Act) governs the use of human embryos for research purposes, specifically those created for assisted reproductive technology and deemed surplus to the requirements of the involved couples. The Act empowers the Minister to declare a law of a State or Territory as a corresponding State law, which effectively aligns with the Commonwealth legislation. This particular Ministerial declaration identifies the Prohibition of Human Cloning for Reproduction Act 2003 (South Australia) and the Research Involving Human Embryos Act 2003 (South Australia) as corresponding State laws for the purposes of the RIHE Act. This declaration is made in response to amendments in the Commonwealth RIHE Act, following a Council of Australian Governments (CoAG) agreement in April 2007 that sought to ensure national consistency in the regulation of human embryo research. This declaration is effective from the day after it is registered on the Federal Register of Legislative Instruments and does not require consultation as it pertains to the administrative machinery of the Act.
Key Provisions
The Research Involving Human Embryos Act 2002 (RIHE Act) outlines the regulatory framework for research involving human embryos, particularly those that are surplus to the requirements of couples undergoing assisted reproductive technology treatments. Section 7 of the Act (s 7) empowers the Minister to declare a law from a State or Territory as a corresponding State law, which effectively means that the State law aligns with the Commonwealth’s legislative intent under the RIHE Act. This declaration is critical for ensuring that research practices across Australia are consistent and regulated appropriately.
The obligations and requirements imposed by the Act on the parties involved are stringent. Firstly, any research involving human embryos must comply with the RIHE Act and the corresponding State laws, which in this case are the South Australian Prohibition of Human Cloning for Reproduction Act 2003 (South Australian PHCR Act) and the South Australian Research Involving Human Embryos Act 2003 (South Australian RIHE Act). These State laws were declared as corresponding State laws on 3 October 2003, and subsequently amended in 2009 to ensure continued alignment with the national legislative framework. The Acts mandate that any research involving human embryos must be conducted under strict ethical guidelines and with proper approvals from relevant authorities.
Failure to comply with the provisions of the RIHE Act or the corresponding State laws can result in significant legal consequences. The South Australian PHCR Act and RIHE Act outline specific offences, such as unauthorised research involving human embryos, which are subject to penalties. While the Explanatory Statement does not specify the exact penalties, breaches of such laws typically involve substantial fines and potential imprisonment, reflecting the seriousness with which the regulation of human embryo research is treated. The overarching aim of these provisions is to protect ethical standards and ensure that research is conducted responsibly and with due regard for human dignity and rights.