EXPLANATORY STATEMENT
Ministerial Declaration of Corresponding State Law
Research Involving Human Embryos Act 2002
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 Tasmanian Human Embryonic Research Regulation Act 2003 (Tasmanian Act) is such a corresponding State law.
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 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 Tasmanian Act was declared to be a ‘corresponding State law’ on 7 July 2004.
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 Tasmanian Act was no longer considered appropriate to be a ‘corresponding State law.’ The relevant ministerial declaration has, accordingly, been revoked.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 in regard to the regulation of human embryo research. The Tasmanian legislature amended the Tasmanian Act with effect from 13 December 2007, so that it is now in a form appropriate to be a ‘corresponding State law’ for the purposes of the RIHE Act.
The Tasmanian amending legislation is the Human Cloning and Other Prohibited Practices Amendment Act 2007.
Instrument
The effect of the instrument is to declare the Tasmanian Act to be a corresponding State law 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, enacted to regulate the use of human embryos for research purposes, particularly those created for assisted reproductive technology and deemed surplus to the needs of the couples, empowers the Minister to declare a corresponding State law under Section 7. This authority was exercised to align state legislation with the national framework. The Research Involving Human Embryos Act 2002 was agreed upon by all jurisdictions at a Council of Australian Governments meeting in April 2002, leading to each state and the Australian Capital Territory enacting their respective legislation. Initially, the Tasmanian Human Embryonic Research Regulation Act 2003 was declared a corresponding State law on 7 July 2004, but subsequent amendments to the Commonwealth Act in 2006 rendered it inconsistent. Following further agreement at a CoAG meeting in April 2007 to maintain national consistency, Tasmania amended its Act, making it suitable once again as a corresponding State law for the purposes of the RIHE Act.
Scope and Application
The Research Involving Human Embryos Act 2002 (RIHE Act) is a Commonwealth legislation that governs the use of human embryos for research purposes, specifically those created for assisted reproductive technology and are surplus to the requirements of the couples involved. Section 7 of the RIHE Act allows the Minister to declare a State or Territory law as a corresponding State law, aligning it with the national objectives set forth in the RIHE Act. The Ministerial Declaration of Corresponding State Law identifies the Tasmanian Human Embryonic Research Regulation Act 2003 as a corresponding State law. This declaration ensures that Tasmania’s legislation is consistent with the national framework established by the RIHE Act. The Tasmanian Act was initially declared as a corresponding State law in 2004 but was later revoked following amendments to the RIHE Act in 2006. Subsequent amendments to the Tasmanian Act in 2007 led to its re-declaration as a corresponding State law, reflecting the updated national standards for human embryo research regulation. This declaration is effective from the day after its registration on the Federal Register of Legislative Instruments, and it is of a minor and administrative nature, hence no consultation was undertaken.
Key Provisions
Section 7 of the Commonwealth Research Involving Human Embryos Act 2002 (RIHE Act) grants the Minister the authority to declare a specific law as a corresponding State law for the purposes of the RIHE Act. This declaration effectively recognises the law as one that aligns with the federal regulations set out in the RIHE Act. The recent Ministerial declaration identifies the Tasmanian Human Embryonic Research Regulation Act 2003 (Tasmanian Act) as such a corresponding State law. This means that the Tasmanian Act is now recognised as an appropriate state law that complements and aligns with the federal RIHE Act.
The obligations imposed by this declaration on the parties and entities it governs include the requirement that the Tasmanian Act must meet the standards and criteria set out in the RIHE Act. This means that the Tasmanian Act must provide for the regulation of human embryonic research in a manner consistent with the national scheme. The declaration ensures that the Tasmanian Act is aligned with the overarching objectives and provisions of the RIHE Act, thereby promoting a cohesive and consistent regulatory framework across all jurisdictions. The obligations also include compliance with any amendments or changes made to the RIHE Act, ensuring that the Tasmanian Act remains a corresponding State law.
In terms of consequences for non-compliance or breaches of the Act, the specific provisions of the Tasmanian Act itself would need to be examined as the RIHE Act does not prescribe particular offences, penalties, or consequences for breaches of corresponding State laws. However, any breach of the Tasmanian Act, as a corresponding State law, could potentially lead to civil or criminal liabilities under Tasmanian law. The maximum penalties for any breaches would be determined according to the specific provisions and offences outlined within the Tasmanian Act. Given that the Tasmanian Act is now recognised as a corresponding State law, it is expected that it provides adequate mechanisms for enforcement and sanctions to ensure compliance with its provisions.