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Territory have, accordingly, enacted legislation containing regulatory provisions identical to those of the RIHE Act as originally enacted.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 provide a regulatory framework for the use of human embryos in research, particularly those embryos that were created for assisted reproductive technology and were in excess of the needs of the couples involved. This Act was intended to ensure that such research was conducted ethically and responsibly, addressing a significant gap in the regulation of this area of medical research at the time. The RIHE Act was passed by the Australian Parliament and received Royal Assent on 19 December 2002. The objective of the Act was to achieve national consistency in the regulation of human embryo research across all states and territories, following the agreement by the Council of Australian Governments (COAG) on 5 April 2002. To facilitate this, the Act included provisions for the declaration of corresponding state laws by the Minister, through a notice in the Gazette. The Instruments of Revocation, which came into effect on 12 June 2007, were introduced to update the declarations of corresponding state laws to reflect the amendments made by the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006. These revocations were of a minor and administrative nature, and no consultation was undertaken in respect of them.
Scope and Application
The Research Involving Human Embryos Act 2002 (RIHE) governs the use of human embryos for research purposes in Australia, specifically addressing embryos created for assisted reproductive technology that are surplus to the requirements of the couples involved. The Act applies to entities and individuals involved in the creation, storage, and research of these embryos, ensuring that such activities comply with the regulatory framework established under the Act. The Act’s reach extends to the Commonwealth, as well as to the States and Territories of Australia, with corresponding State legislation being declared to ensure national consistency. The Instruments of Revocation, which came into effect on 12 June 2007, revoke earlier declarations that identified specific State laws as corresponding State laws under section 7 of the RIHE Act. This revocation reflects amendments made by the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006, which introduced changes to the regulatory scheme. These revocations are of a minor and administrative nature, and no consultation was undertaken in their regard.
Key Provisions
The Instruments of Revocation, under section 33(3) of the Acts Interpretation Act 1901, are designed to reflect changes in the Research Involving Human Embryos Act 2002 (RIHE Act). These instruments revoke the declarations that certain State laws concerning research involving human embryos are considered corresponding State laws under section 7 of the RIHE Act. The affected states include Queensland, New South Wales, Victoria, Tasmania, South Australia, Western Australia, and the Australian Capital Territory. This revocation takes place because of amendments introduced 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.
The RIHE Act imposes obligations on entities involved in the use of human embryos for research purposes. These obligations include adhering to the regulations set forth by the Act, ensuring that any research conducted complies with the legislative requirements. Specifically, the Act governs the use of human embryos that are in excess of the needs of couples undergoing assisted reproductive technology. The obligations extend to ensuring that research is conducted ethically and in accordance with the provisions of the RIHE Act and any corresponding State laws.
Failure to comply with the provisions of the RIHE Act can result in both civil and criminal consequences. While the specific offences, penalties, or consequences for breach are not detailed in the explanatory statement, the Act generally provides for enforcement mechanisms to ensure adherence to its requirements. Under Australian law, breaches of legislation related to research involving human embryos could potentially attract significant penalties, depending on the nature and severity of the breach. It is important for entities and individuals involved in such research to be fully aware of their obligations under the RIHE Act to avoid any legal repercussions.