EXPLANATORY STATEMENT
Research Involving Human Embryos (Corresponding State Law—NSW) Declaration 2018
Research Involving Human Embryos Act 2002
Summary
Subsection 7(1) of the Commonwealth Research Involving Human Embryos Act 2002 (RIHE Act) confers power on the Minister to declare a law of a State or Territory to be a corresponding State law for the purposes of the RIHE Act. This Ministerial declaration provides that the Research Involving Human Embryos (New South Wales) Act 2003 (New South Wales Act) is 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 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.
Under an agreement reached by all jurisdictions at a Council of Australian Governments (COAG) meeting in April 2002, each State and the Australian Capital Territory undertook to enact its own legislation to achieve national consistency with the RIHE Act. In compliance with this agreement, the New South Wales Parliament enacted the Research Involving Human Embryos (New South Wales) Act 2003.
Unlike most other jurisdictions’ enactments, the New South Wales Act specifically applies the law of the Commonwealth as a law of the State, and accordingly a Ministerial declaration that the New South Wales Act is a corresponding State law for the purposes of subsection 7(1) of the RIHE Act is not necessary in a technical sense. However, it is desirable from the perspective of consistency with the other COAG members, and to dispel any possible doubt as to the New South Wales Act’s effectiveness, that this Ministerial declaration be made.
Instrument
The effect of the instrument is to declare the New South Wales Act to be a corresponding State law for the purposes of subsection 7(1) of the RIHE Act.
Consultation
No consultation was undertaken in respect of this declaration as it is of a minor machinery nature, and implements, in respect of New South Wales, the agreement that was reached the April 2002 COAG meeting.
Commencement
This declaration is to take effect from the day after it is registered on the Federal Register of Legislative Instruments.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Research Involving Human Embryos (Corresponding State Law—NSW) Declaration 2018
This Declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Declaration
The Declaration of Corresponding State Law provides that the Research Involving Human Embryos (New South Wales) Act 2003 of New South Wales is a corresponding State law for the purposes of the Commonwealth Research Involving Human Embryos Act 2002 (RIHE Act).
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 couples' needs. Subsection 7(1) 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.
Human rights implications
This Declaration does not engage any of the applicable rights or freedoms.
Conclusion
This Declaration is compatible with human rights as it does not raise any human rights issues.
Note: The name of this instrument was amended on registration as the instrument as lodged did not have a unique name (see subsection 10(2), Legislation Rule 2016).
Overview
The Research Involving Human Embryos (Corresponding State Law—NSW) Declaration 2018 was enacted to align the New South Wales Act with the Commonwealth Research Involving Human Embryos Act 2002 (RIHE Act). This declaration by the Minister under subsection 7(1) of the RIHE Act identifies the Research Involving Human Embryos (New South Wales) Act 2003 as a corresponding State law, facilitating national consistency in the regulation of research involving human embryos created for assisted reproductive technology and surplus to couples' requirements. The objective is to ensure that New South Wales’ legislative framework mirrors the national approach established by the RIHE Act, thereby maintaining uniformity across jurisdictions. The declaration was made without consultation as it was considered a minor administrative step to implement the agreement reached at the 2002 Council of Australian Governments meeting, and it was registered on the Federal Register of Legislative Instruments shortly after enactment.
Scope and Application
The Research Involving Human Embryos (Corresponding State Law—NSW) Declaration 2018 serves to formalise the Research Involving Human Embryos (New South Wales) Act 2003 as a corresponding State law under the Commonwealth Research Involving Human Embryos Act 2002 (RIHE Act). This declaration is integral to ensuring that New South Wales' legislation aligns with the national regulatory framework established by the RIHE Act, which governs the use of human embryos for research purposes, specifically those embryos that have been created for assisted reproductive technology and are surplus to the needs of couples. The RIHE Act, enacted in 2002, empowers the Minister to declare State laws as corresponding State laws, thereby integrating State legislation with Commonwealth standards to achieve national consistency. This declaration, while technically not required due to the New South Wales Act's specific application of Commonwealth law, is made to maintain uniformity and clarity across jurisdictions, following the agreement reached at the 2002 Council of Australian Governments (COAG) meeting.
Key Provisions
The main operative section of this Declaration, under subsection 7(1) of the Commonwealth Research Involving Human Embryos Act 2002 (RIHE Act), is the declaration itself that the Research Involving Human Embryos (New South Wales) Act 2003 is a corresponding State law. This section clarifies that the New South Wales Act is recognised as the equivalent legislation in New South Wales for the purposes of the RIHE Act, ensuring alignment and consistency in the regulation of research involving human embryos across different jurisdictions. The declaration is significant because it formalises the recognition of the New South Wales Act under the RIHE Act, thereby providing a clear legal framework for such research activities within New South Wales.
The obligations and requirements imposed by this Act on the parties or entities it governs are primarily to adhere to the provisions of the Research Involving Human Embryos (New South Wales) Act 2003, as declared as a corresponding State law. This means that any research involving human embryos in New South Wales must comply with the standards and requirements set forth by the New South Wales Act. Researchers, institutions, and other entities involved in such research are obligated to obtain the necessary approvals and permits, adhere to ethical guidelines, and follow the specific protocols outlined in the New South Wales Act. This ensures that research activities involving human embryos are conducted responsibly and ethically, with proper oversight and accountability.
Offences, penalties, or consequences for breach of the provisions under the Research Involving Human Embryos (New South Wales) Act 2003 are detailed within that Act itself. The New South Wales Act includes provisions for both civil and criminal penalties for non-compliance with its regulations. For example, unauthorised research involving human embryos can result in significant fines and potential imprisonment. The specific penalties for breaches depend on the nature and severity of the offence, as defined by the Act. Civil penalties may include fines and orders for restitution, while criminal penalties could involve imprisonment terms as prescribed by the Act. These measures are intended to deter non-compliance and ensure that research activities involving human embryos are conducted within the legal and ethical frameworks established by the legislation.