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Territory have, accordingly, enacted legislation containing regulatory provisions identical to those of the RIHE Act as originally enacted.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, enacted by the Commonwealth Parliament, was introduced to regulate the use of human embryos for research, specifically those embryos created for assisted reproductive technology and surplus to the needs of the couples involved. This Act was designed to ensure that such research was conducted ethically and within a legal framework that reflected the national consensus on the ethical treatment of human embryos. The Research Involving Human Embryos Act aimed to establish a consistent regulatory regime across Australia, achieved through corresponding state legislation that mirrored the federal provisions. The Act's regulatory scheme was subsequently amended by the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006, which necessitated the revocation of previous declarations of state laws as corresponding state laws under section 7 of the RIHE Act. These revocations were made effective from 12 June 2007, aligning the regulatory frameworks across jurisdictions following the amendments.
Scope and Application
The Research Involving Human Embryos Act 2002 (RIHE) applies to the regulation of the use of human embryos for research purposes, particularly those created for assisted reproductive technology and are in excess of the needs of the couples. This Act primarily governs the conduct and transactions related to the research involving human embryos at the Commonwealth level. The RIHE Act also extends its application to the states and territories by allowing the Minister to declare state laws as 'corresponding State law' through a notice in the Gazette. This declaration mechanism is a response to the Inter-Governmental Agreement where all jurisdictions committed to achieving national consistency with the Commonwealth legislation within a specified timeframe. Notably, all jurisdictions except the Northern Territory have enacted corresponding legislation. The Instruments of Revocation issued under section 33 (3) of the Acts Interpretation Act 1901, which took effect on 12 June 2007, revoked the declarations that the State laws in Queensland, New South Wales, Victoria, Tasmania, South Australia, Western Australia, and the Australian Capital Territory were corresponding State laws for the purposes of section 7 of the RIHE Act, following amendments made by the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006.
Key Provisions
The main operative sections of the Instruments of Revocation, as referenced in Section 33(3) of the Acts Interpretation Act 1901, serve to revoke prior declarations that specific state laws are corresponding state laws for the purposes of the Research Involving Human Embryos Act 2002 (RIHE). The revocations specifically target the declarations that state laws in Queensland, New South Wales, Victoria, Tasmania, South Australia, Western Australia, and the Australian Capital Territory are deemed to be corresponding state laws. These revocations are necessary because the Prohibition of Human Cloning for Reproduction and the Regulation of Human Embryo Research Amendment Act 2006 has introduced amendments to the RIHE Act, which have altered the regulatory scheme in a manner that no longer aligns with the previously declared state laws.
The obligations imposed by these Instruments of Revocation are primarily administrative and ministerial, stipulating that the previous declarations of corresponding state laws are no longer valid from the commencement date of 12 June 2007. This change in status means that the state laws in question will no longer mirror the Commonwealth legislation as they did previously. Consequently, any legal or regulatory framework established under the assumption of these declarations will need to be updated to reflect the new legislative environment.
There are no direct offences, penalties, or consequences for breach specified within these Instruments of Revocation themselves. The primary effect of the revocations is to update the legislative framework and ensure consistency with the amended RIHE Act. However, any entity or individual who fails to comply with the updated legislative requirements post-revocation may face consequences under the amended RIHE Act or corresponding state laws, which could include fines or other penalties as stipulated in the relevant legislation. The exact penalties would depend on the specific provisions of the updated RIHE Act and the corresponding state laws.