EXPLANATORY STATEMENT
Instruments of Revocation
Research Involving Human Embryos Act 2002
Section 33 (3) of the Acts Interpretation Act 1901 provides that ‘where an Act confers powers to make, grant or issue any instrument (including rules, regulations or by-laws) the power shall, unless the contrary intention appears, be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.’
Background
The Research Involving Human Embryos Act 2002 (RIHE) received Royal Assent on 19 December 2002. The RIHE Act regulated the use of human embryos for research where those embryos were created for assisted reproductive technology and were excess to the couples’ needs.
Section 7 of the RIHE Act defines ‘corresponding State law’ in such a way as to contemplate declarations by the Minister, by notice in the Gazette, of a law of a State (which is defined to include the Australian Capital Territory and the Northern Territory) to be such a ‘corresponding State law.’ This is for constitutional reasons arising out of the agreement by COAG on 5 April 2002, as a consequence of which all States and Territories entered into an Inter-Governmental Agreement. The Inter-Governmental Agreement included a provision that ‘each State and Territory (would) use its best endeavours to submit to its Parliament, within 12 months of 19 December 2002, a Bill or Bills that would have the effect of achieving national consistency with the Commonwealth Prohibition of Human Cloning Act 2002 and the Research Involving Human Embryos Act 2002.’
All jurisdictions except the Northern Territory have, accordingly, enacted legislation containing regulatory provisions identical to those of the RIHE Act as originally enacted. Each such piece of legislation has been declared variously by your predecessors, the Honourable Kevin Andrews and Julie Bishop, to be a ‘corresponding State legislation’ for the purposes of section 7 of the RIHE Act.
The Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006 was assented to on 12 December 2006. The relevant provisions commence on 12 June 2007. That Act amends aspects of the regulatory scheme and, as a result the corresponding State law in each jurisdiction will cease to reflect the Commonwealth legislation from that date.
Instrument
To take account of amendments made to the RIHE Act, the Instruments of Revocation revoke the declarations that State laws relating to research involving human embryos in Queensland, New South Wales, Victoria, Tasmania, South Australia, Western Australia and the Australian Capital Territory, are corresponding State laws for the purpose of section 7 of the RIHE Act.
Consultation
No consultation was undertaken in respect of these Revocations as they are of a minor and machinery nature.
Commencement
These Instruments of Revocation take effect on and from 12 June 2007, the date on which the amendments made by the Prohibition of Human Cloning for Reproduction and the Regulation of Human embryo Research Amendment Act 2006 take effect.
Overview
The Research Involving Human Embryos Act 2002 (RIHE Act) was enacted to address the regulatory gap in the use of human embryos for research purposes, specifically those embryos created for assisted reproductive technology that were in excess of the needs of the couples. The Act established a framework to ensure that such research was conducted ethically and responsibly. The RIHE Act was enacted by the Australian Parliament and aims to provide national consistency in the regulation of human embryo research across all jurisdictions in Australia. To facilitate this, the Act included provisions for corresponding State laws to be declared by the Minister, aligning state legislation with the federal framework. However, as a result of subsequent amendments to the RIHE Act by the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006, the previously declared corresponding State laws no longer reflected the current Commonwealth legislation. Consequently, the Instruments of Revocation were issued to revoke the declarations of the State laws as corresponding State laws under the RIHE Act, effective from 12 June 2007.
Scope and Application
The Research Involving Human Embryos Act 2002 (RIHE) governs the use of human embryos for research purposes, specifically those embryos created for assisted reproductive technology that are surplus to the needs of the couples involved. The Act applies to individuals and entities conducting research involving human embryos, as well as to the conduct and transactions related to such research. Its jurisdiction extends to the Commonwealth, and all states and territories, except the Northern Territory, have enacted corresponding legislation to achieve national consistency. The Act’s scope can be expanded or modified through subordinate instruments, as evidenced by the revocation of previous declarations of corresponding State laws by the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006. These revocations took effect on 12 June 2007, aligning with the commencement date of the amending Act, and signify the updating of State laws to reflect the changes in Commonwealth legislation.
Key Provisions
The main operative sections of these Instruments of Revocation (F2007L01716) are the revocations of prior declarations that certain State laws were corresponding State laws under section 7 of the Research Involving Human Embryos Act 2002 (RIHE Act). This revocation is necessary as a result of amendments made by the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006, which came into effect on 12 June 2007. These amendments have altered the regulatory scheme, making the previously declared State laws no longer aligned with the updated federal legislation.
The obligations and requirements imposed by these revocations primarily relate to the formal recognition of State laws concerning human embryo research. Under section 7 of the RIHE Act, the Minister for Health is empowered to declare State laws as corresponding State laws. This declaration is a necessary step for ensuring that the federal and State laws are in harmony and provide a consistent regulatory framework across jurisdictions. The revocation of these declarations is a straightforward administrative action that aligns the regulatory status of State laws with the updated federal legislative framework, ensuring that the RIHE Act and corresponding State laws remain congruent.
Breaching the requirements to maintain aligned State and federal laws concerning human embryo research can have significant legal implications. While these revocations themselves do not introduce new offences or penalties, the failure to maintain corresponding State laws with the RIHE Act could potentially lead to legal disputes or challenges regarding the validity and applicability of certain regulatory provisions. This misalignment might result in confusion or gaps in the regulatory oversight of human embryo research activities, which could have broader implications for compliance and enforcement under the RIHE Act. The maximum penalties for non-compliance with the RIHE Act itself are not explicitly detailed in these revocation instruments, but generally, breaches of the Act could result in civil or criminal penalties, depending on the nature and severity of the violation.