Australian Capital Territory Bills
[Index]
[Search]
[Download]
[Related Items]
[Help]
This is a Bill, not an Act. For current law, see the Acts databases.
HUMAN CLONING AND EMBRYO RESEARCH BILL 2003
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Health)
Human
Cloning and Embryo Research Bill 2003
Contents
Page
2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Health)
Human Cloning and
Embryo Research Bill 2003
A Bill for
An Act to prohibit human cloning and to regulate certain activities
involving the use of human embryos
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Human Cloning and Embryo Research Act
2003.
This Act commences on the day after its notification day.
Note The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition
‘human embryo—see
section 7.’ means that the term ‘human embryo’ is defined that
section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
5 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct,
intention, recklessness and strict
liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties that
are expressed in penalty units.
The object of this Act is to address concerns, including ethical concerns,
about scientific developments in relation to human reproduction and the
utilisation of human embryos—
(a) by prohibiting certain practices; and
(b) by regulating activities that involve the use of certain human embryos
created by assisted reproductive technology.
7 Meaning
of human embryo
(1) In this Act:
human embryo means a live embryo that has a human genome or
an altered human genome and that has been developing for less than 8 weeks since
the appearance of 2 pro-nuclei or the initiation of its development by other
means.
(2) In working out the length of the period of development of a human
embryo, any period when the development of the embryo is suspended is to be
disregarded.
8 Meaning
of human embryo clone
(1) In this Act:
human embryo clone means a human embryo that is a genetic
copy of another living or dead human, but does not include a human embryo
created by the fertilisation of a human egg by human sperm.
(2) To establish that a human embryo clone is a genetic copy of a living
or dead human—
(a) it is sufficient to establish that the set of genes in the nuclei of
the cells of the living or dead human has been copied; and
(b) it is not necessary to establish that the copy is an identical genetic
copy.
(3) A human embryo that results from the technological process known as
embryo splitting is taken not to be created by a process of fertilisation of a
human egg by human sperm.
Part
2 Prohibited
practices
Division
2.1 Human cloning
9 Offence—creating
human embryo clone
A person commits an offence if the person intentionally creates a human
embryo clone.
Maximum penalty: imprisonment for 15 years.
10 Offence—placing
human embryo clone in body of human or animal
A person commits an offence if the person intentionally places a human
embryo clone in the body of a human or the body of an animal
Maximum penalty: imprisonment for 15 years.
11 Offence—importing
or exporting human embryo clone
(1) A person commits an offence if the person intentionally imports a
human embryo clone into the ACT.
Maximum penalty: imprisonment for 15 years.
(2) A person commits an offence if the person intentionally exports a
human embryo clone from the ACT.
Maximum penalty: imprisonment for 15 years.
12 No
defence that human embryo clone could not survive
It is not a defence to an offence against section 9, section 10 or section
11 that the human embryo clone did not survive or could not have
survived.
Division
2.2 Other prohibited
practices
13 Offence—creating
human embryo otherwise than by fertilisation etc
A person commits an offence if the person intentionally creates a human
embryo by a process other than the fertilisation of a human egg by human sperm,
or intentionally develops a human embryo so created.
Maximum penalty: imprisonment for 10 years.
14 Offence—creating
human embryo for purpose other than achieving pregnancy
(1) A person commits an offence if the person intentionally creates a
human embryo outside the body of a woman, unless the person’s intention in
creating the embryo is to attempt to achieve pregnancy in a particular
woman.
Maximum penalty: imprisonment for 10 years.
(2) Despite the Criminal Code, section 58 (3), a defendant does not
bear an evidential burden in relation to anything mentioned in
subsection (1).
15 Offence—creating
etc human embryo containing genetic material from more than 2
people
A person commits an offence if the person intentionally creates or develops
a human embryo containing genetic material provided by more than 2
people.
Maximum penalty: imprisonment for 10 years.
16 Offence—developing
human embryo outside body of woman for longer than 14 days
A person commits an offence if the person intentionally develops a human
embryo outside the body of a woman for a period of longer than 14 days,
excluding any period when development is suspended.
Maximum penalty: imprisonment for 10 years.
17 Offence—using
precursor cells to create human embryo etc
A person commits an offence if the person uses precursor cells taken from a
human embryo or a human foetus, intending to create a human embryo, or
intentionally develops an embryo so created.
Maximum penalty: imprisonment for 10 years.
18 Offence—heritable
alterations to genome
(1) A person commits an offence if—
(a) the person alters the genome of a human cell in such a way that the
alteration is heritable by descendants of the human whose cell was altered;
and
(b) in altering the genome, the person intended the alteration to be
heritable by descendants of the human whose cell was altered.
Maximum penalty: imprisonment for 10 years.
(2) In this section:
human cell includes a human embryonal cell, a human foetal
cell, human sperm and a human egg.
19 Offence—collecting
viable human embryo from woman’s body
A person commits an offence if the person removes a human embryo from the
body of a woman, intending to collect a viable human embryo.
Maximum penalty: imprisonment for 10 years.
20 Offence—creating
chimeric or hybrid embryo
(1) A person commits an offence if the person intentionally creates a
chimeric embryo.
Maximum penalty: imprisonment for 10 years.
(2) A person commits an offence if the person intentionally creates a
hybrid embryo.
Maximum penalty: imprisonment for 10 years.
21 Offence—placing
of embryo
(1) A person commits an offence if the person intentionally places a human
embryo in an animal.
Maximum penalty: imprisonment for 10 years.
(2) A person commits an offence if the person intentionally places a human
embryo in the body of a human, other than in a woman’s reproductive
tract.
Maximum penalty: imprisonment for 10 years.
(3) A person commits an offence if the person intentionally places an
animal embryo in the body of a human for any period of gestation.
Maximum penalty: imprisonment for 10 years.
22 Offence—importing,
exporting or placing prohibited embryo
(1) A person commits an offence if the person intentionally imports an
embryo into the ACT knowing that, or reckless about whether, the embryo is a
prohibited embryo.
Maximum penalty: imprisonment for 10 years.
(2) A person commits an offence if the person intentionally exports an
embryo from the ACT knowing that, or reckless about whether, the embryo is a
prohibited embryo.
Maximum penalty: imprisonment for 10 years.
(3) A person commits an offence if the person intentionally places an
embryo in the body of a woman knowing that, or reckless about whether, the
embryo is a prohibited embryo.
Maximum penalty: imprisonment for 10 years.
(4) In this section:
human cell includes a human embryonal cell, a human foetal
cell, human sperm and a human egg.
prohibited embryo means—
(a) a human embryo created by a process other than the fertilisation of a
human egg by human sperm; or
(b) a human embryo created outside the body of a woman, unless the
intention of the person who created the embryo was to attempt to achieve
pregnancy in a particular woman; or
(c) a human embryo containing genetic material provided by more than 2
people; or
(d) a human embryo that has been developing outside the body of a woman
for a period of longer than 14 days, disregarding any period when development is
suspended; or
(e) a human embryo created using precursor cells taken from a human embryo
or foetus; or
(f) a human embryo containing a human cell whose genome has been altered
in such a way that the alteration is heritable by human descendants of the human
whose cell was altered; or
(g) a human embryo that was removed from the body of a woman by a person
intending to collect a viable human embryo; or
(h) a chimeric embryo or a hybrid embryo.
23 Offence—commercial
trading in human eggs etc
(1) A person commits an offence if the person intentionally gives or
offers valuable consideration to someone else for the supply of a human egg,
human sperm or a human embryo.
Maximum penalty: imprisonment for 10 years.
(2) A person commits an offence if the person intentionally receives, or
offers to receive, valuable consideration from someone else for the supply of a
human egg, human sperm or a human embryo.
Maximum penalty: imprisonment for 10 years.
(3) In this section:
reasonable expenses—
(a) in relation to the supply of a human egg or human
sperm—includes, for example, expenses relating to the collection, storage
or transport of the egg or sperm; and
(b) in relation to the supply of a human embryo—
(i) includes, for example, expenses relating to the storage or transport
of the embryo; but
(ii) does not include any expenses incurred by a person before the embryo
became an excess ART embryo.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
valuable consideration, in relation to the supply of a human
egg, human sperm or a human embryo by a person, includes any inducement,
discount or priority in the provision of a service to the person, but does not
include the payment of reasonable expenses incurred by the person in connection
with the supply.
Part
3 Regulation of certain uses involving
excess ART embryos
Division
3.1 Interpretation for pt
3
In this part:
accredited ART centre means an entity accredited to carry out
assisted reproductive technology by—
(a) the Reproductive Technology Accreditation Committee of the Fertility
Society of Australia; or
(b) if the regulations prescribe another body or other bodies in addition
to, or instead of, the body mentioned in paragraph (a)—that other
body or any of those other bodies, as the case requires.
confidential commercial information means information that
has a commercial or other value that would be, or could reasonably be expected
to be, destroyed or diminished if the information were disclosed.
disclose information means give or communicate the
information in any way.
HREC means a human research ethics committee.
licence means a licence issued under section 31
(Committee decision on application).
proper consent, in relation to the use of an excess ART
embryo, means—
(a) consent obtained in accordance with the Ethical Guidelines on
Assisted Reproductive Technology (1996) issued by the NHMRC; or
(b) if other guidelines are issued by the NHMRC under the National
Health and Medical Research Council Act 1992 (Cwlth) and prescribed under
the regulations for this paragraph—consent obtained in accordance with
those guidelines, rather than the guidelines mentioned in
paragraph (a).
relevant Territory entity means the entity notified by the
Territory to the chairperson of the NHMRC licensing committee for the
Research Involving Human Embryos Act 2002 (Cwlth), part 2.
responsible person, for an excess ART embryo,
means—
(a) each person who provided the egg or sperm from which the embryo was
created; and
(b) the woman for whom the embryo was created, for the purpose of
achieving her pregnancy; and
(c) anyone who was the domestic partner of a person mentioned in
paragraph (a) when the egg or sperm mentioned in that paragraph was
provided; and
(d) anyone who was the domestic partner of the woman mentioned in
paragraph (b) when the embryo was created.
Note For the meaning of domestic partner, see
Legislation Act, s 169.
25 Meaning
of excess ART embryo
(1) In this Act:
excess ART embryo means a human embryo that—
(a) was created, by assisted reproductive technology, for use in the
assisted reproductive technology treatment of a woman; and
(b) is excess to the needs of—
(i) the woman for whom it was created; and
(ii) her domestic partner (if any) when the embryo was created.
Note For the meaning of domestic partner, see
Legislation Act, s 169.
(2) For subsection (1) (b), a human embryo is excess to the needs of
the people mentioned in that paragraph at a particular time if—
(a) each of the people has given written authority for use of the embryo
for a purpose other than a purpose relating to the assisted reproductive
technology treatment of the woman concerned, and the authority is in force at
that time; or
(b) each of the people has declared in writing that the embryo is excess
to their needs, and the declaration is in force at that time.
26 Offence—use
of excess ART embryo
(1) A person commits an offence if the person intentionally uses an excess
ART embryo, unless—
(a) the use by the person is authorised by a licence; or
(b) the use by the person is an exempt use.
Maximum penalty: imprisonment for 5 years.
(2) Despite the Criminal Code, section 58 (3), a defendant does not
bear an evidential burden in relation to anything mentioned in this
section.
(3) In this section:
diagnostic investigation, in relation to an excess ART
embryo, means any procedure undertaken on embryos for the sole purpose of
diagnostic investigations for the direct benefit of the woman for whom it was
created.
exempt use—a use of an excess ART embryo by a person is
an exempt use if—
(a) the use consists only of—
(i) storage of the excess ART embryo; or
(ii) removal of the excess ART embryo from storage; or
(iii) transport of the excess ART embryo; or
(iv) observation of the excess ART embryo; or
(v) allowing the excess ART embryo to succumb; or
(b) the use is carried out by an accredited ART centre,
and—
(i) the excess ART embryo is not suitable (based only on its biological
fitness for implantation) to be placed in the body of the woman for whom it was
created; and
(ii) the use forms part of diagnostic investigations conducted in
connection with the assisted reproductive technology treatment of the woman for
whom the excess ART embryo was created; or
(c) the use is carried out by an accredited ART centre and is for the
purpose of achieving pregnancy in a woman other than the woman for whom the
excess ART embryo was created; or
(d) the use is prescribed under the regulations.
observation, in relation to an excess ART embryo, includes
taking a photograph of the embryo, or taking a recording of the embryo from
which a visual image can be produced.
27 Offence—use
of embryo that is not excess ART embryo
A person commits an offence if—
(a) the person intentionally uses, outside the body of a woman, a human
embryo that is not an excess ART embryo; and
(b) the use is not for a purpose relating to the assisted reproductive
technology treatment of a woman carried out by an accredited ART centre, and the
person knows or is reckless about that fact.
Maximum penalty: imprisonment for 5 years.
28 Offence—breaching
licence condition
(1) A person commits an offence if the person intentionally engages in
conduct, knowing that the conduct contravenes a condition of a licence that
applies to the person, or reckless about whether the conduct contravenes a
condition of such a licence.
Maximum penalty: imprisonment for 5 years.
(2) In this section:
engage in conduct means—
(a) do an act; or
(b) omit to perform an act.
Division
3.3 Embryo research licensing
committee of NHMRC
29 Functions
of committee
The functions of the NHMRC licensing committee are—
(a) to exercise functions in relation to licences under division 3.4
(Licensing system); and
(b) to exercise functions in relation to databases under division 3.5
(Reporting and confidentiality); and
(c) to exercise the other functions (if any) that are given to it under
this Act or any other law.
Division
3.4 Licensing
system
30 Person
may apply for licence
(1) A person may apply to the NHMRC licensing committee for a licence
authorising use of excess ART embryos.
(2) An application under subsection (1) must be made in accordance
with the written requirements (if any) of the NHMRC licensing
committee.
Note A fee may be determined under
s 53 for this
section.
31 Committee
decision on application
(1) This section applies if a person has made an application under section
30 for a licence.
(2) The NHMRC licensing committee must decide, in accordance with this
section, whether or not to issue the licence.
(3) The NHMRC licensing committee must not issue the licence unless it is
satisfied of the following:
(a) that appropriate protocols are in place—
(i) to enable proper consent to be obtained before an excess ART embryo is
used under the licence (see section 34 (1) (a)); and
(ii) to enable compliance with any restrictions on the consent;
(b) if the use of an excess ART embryo proposed in the application may
damage or destroy the embryo—that appropriate protocols are in place to
enable compliance with the condition that the use is authorised only in relation
to an embryo created before 5 April 2002 (see section
34 (3));
(c) that the activity or project proposed in the application has been
assessed and approved by a HREC that is constituted in accordance with, and
acting in compliance with, the NHMRC National Statement on Ethical Conduct in
Research Involving Humans (1999), as in force from time to time.
(4) In deciding whether to issue the licence, the NHMRC licensing
committee must have regard to the following:
(a) restricting the number of excess ART embryos to that likely to be
necessary to achieve the goals of the activity or project proposed in the
application;
(b) the likelihood of significant advance in knowledge or improvement in
technologies for treatment as a result of the use of excess ART embryos proposed
in the application, that could not reasonably be achieved by other
means;
(c) any relevant guidelines, or relevant parts of guidelines, issued by
the NHMRC under the National Health and Medical Research Council Act 1992
(Cwlth) and prescribed under the regulations for this paragraph;
(d) the HREC assessment of the application mentioned in
subsection (3) (c);
(e) the additional matters (if any) prescribed under the
regulations.
32 Notification
of decision
(1) The NHMRC licensing committee must notify its decision on an
application for a licence to the following:
(a) the applicant;
(b) the HREC that assessed and approved the activity or project proposed
in the application as mentioned in section 31 (3) (c);
(c) the relevant Territory entity.
(2) If the NHMRC licensing committee decides to issue the licence, it
must, in addition to issuing the licence to the applicant, give a copy of the
licence to the entities mentioned in subsection (1) (b) and
(c).
(1) A licence—
(a) comes into force on the day stated in the licence or, if no day is
stated, on the day it is issued; and
(b) remains in force until the day stated in the licence, unless it is
suspended, revoked or surrendered before that day.
(2) A licence is not in force throughout any period of
suspension.
34 Licence
is subject to conditions
(1) A licence is subject to the condition that before an excess ART embryo
is used as authorised by the licence—
(a) each responsible person in relation to the excess ART embryo must have
given proper consent to that use; and
(b) the licence holder must have reported in writing to the NHMRC
licensing committee that the consent has been obtained, and any restrictions to
which the consent is subject; and
(c) if the licence authorises use of an excess ART embryo that may damage
or destroy the embryo—the licence holder must have reported in writing to
the NHMRC licensing committee that the embryo was created before 5 April
2002.
(2) A licence is subject to the condition that the use of an excess ART
embryo must be in accordance with any restrictions to which the proper consent
under subsection (1) is subject.
(3) If a licence authorises the use of an excess ART embryo that may
damage or destroy the embryo, the licence is subject to the condition that the
use is authorised only in relation to an embryo created before 5 April
2002.
(4) A licence is subject to the other conditions (if any) stated in the
licence.
(5) The conditions stated in the licence may include, for example,
conditions relating to the following:
(a) the people authorised by the licence to use excess ART
embryos;
(b) the number of excess ART embryos in relation to which use is
authorised by the licence;
(c) reporting;
(d) monitoring;
(e) information to be given by the licence holder to people authorised by
the licence to use excess ART embryos.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(6) The licence conditions mentioned in subsections (1), (2) and (3)
apply to all people who are authorised by the licence to use excess ART
embryos.
(7) Licence conditions stated in the licence apply to—
(a) the licence holder; and
(b) such other people authorised by the licence to use excess ART embryos
as are stated in the licence.
(1) The NHMRC licensing committee may, by written notice given to the
licence holder, vary a licence if the committee believes on reasonable grounds
that it is necessary or desirable to do so.
(2) The NHMRC licensing committee may vary a licence under
subsection (1) on its own initiative or on application by the licence
holder.
(3) Without limiting subsection (1), the NHMRC licensing committee
may vary the licence by stating additional conditions or varying existing
conditions.
(4) The NHMRC licensing committee must not vary a licence in such a way
that, had a person applied under section 30 for the licence as varied, the
committee would not have been permitted under this part to issue the
licence.
36 Suspension
or revocation of licence
(1) The NHMRC licensing committee may, by written notice given to the
licence holder, suspend or revoke a licence if the committee believes on
reasonable grounds that a condition of the licence has been breached.
(2) If a licence holder is convicted of an offence against this Act, the
NHMRC licensing committee must, by written notice given to the licence holder,
revoke each licence held by the licence holder.
A licence holder may surrender a licence by written notice given to the
NHMRC licensing committee.
38 Notice
of variation, suspension or revocation of licence
(1) If the NHMRC licensing committee varies, suspends or revokes a
licence, the committee must tell—
(a) the licence holder; and
(b) the HREC and the relevant Territory entity.
(2) The NHMRC licensing committee must also tell the entities mentioned in
subsection (1) (b) if a licence is surrendered.
Division
3.5 Reporting and
confidentiality
39 NHMRC
licensing committee to make certain information publicly
available
(1) The NHMRC licensing committee must maintain a database containing the
following information in relation to each licence (including a licence as
varied):
(a) the name of the person to whom the licence was issued;
(b) a short statement about the nature of the uses of excess ART embryos
that are authorised by the licence;
(c) any conditions to which the licence is subject;
(d) the number of excess ART embryos in relation to which use is
authorised by the licence;
(e) the date the licence was issued;
(f) the period throughout which the licence is to remain in
force.
(2) The database must be made publicly available.
(3) The database may be kept and made publicly available in electronic
form.
(4) Information mentioned in subsection (1) must not disclose
confidential commercial information.
40 Confidential
commercial information may only be disclosed in certain
circumstances
(1) A person commits an offence if—
(a) the person discloses confidential commercial information that the
person has only because of exercising functions under this Act or under the
Commonwealth Act; and
(b) the person knows that the information is confidential commercial
information; and
(c) the disclosure is not—
(i) to the Territory, a Territory agency, the Commonwealth, a Commonwealth
authority, a State, or a State agency for this Act, a corresponding State law or
the Commonwealth Act; or
(ii) by order of a court; or
(iii) with the consent of each person to whom the information has a
commercial or other value.
Maximum penalty: imprisonment for 2 years.
(2) A person commits an offence if—
(a) the person discloses confidential commercial information that the
person has only because of a disclosure permitted under subsection (1) or
this subsection; and
(b) the person knows that the information is confidential commercial
information; and
(c) the disclosure is not—
(i) to the Territory, a Territory agency, the Commonwealth, a Commonwealth
authority, a State, or a State agency for this Act, a corresponding State law or
the Commonwealth Act; or
(ii) by order of a court; or
(iii) with the consent of each person to whom the information has a
commercial or other value.
Maximum penalty: imprisonment for 2 years.
(3) In this section:
Commonwealth authority means—
(a) a corporation established for a public purpose under a Commonwealth
Act; or
(b) a company in which a controlling interest is held by any 1 of the
following, or by 2 or more of the following together:
(i) the Commonwealth;
(ii) a corporation covered by paragraph (a);
(iii) an entity covered by subparagraph (i) or (ii).
corresponding State law—see the Commonwealth Act,
section 7 (1).
court includes a tribunal, authority or person having power
to require the production of documents or the answering of questions.
State agency means—
(a) a Minister of a State; or
(b) a department of government of a State; or
(c) an instrumentality of a State, including a corporation established for
a public purpose under a law of a State; or
(d) a company in which a controlling interest is held by any 1 of the
following, or by 2 or more of the following together:
(i) a State;
(ii) a Minister of a State;
(iii) an entity covered by subparagraph (i) or (ii).
Territory agency means—
(a) a Minister; or
(b) an administrative unit; or
(c) a Territory instrumentality; or
(a) a corporation established for a public purpose under a Territory Act;
or
(d) a company in which a controlling interest is held by any one of the
following, or by 2 or more of the following together:
(i) the Territory;
(ii) an entity covered by paragraph (a), (c) or (e);
(iii) an entity covered by subparagraph (i) or (ii).
Note For the definition of confidential commercial
information, see s 24.
Division
3.6 Review
provisions
41 Definitions
for div 3.6
In this division:
Commonwealth administrative appeals tribunal means the
Administrative Appeals Tribunal established by the Administrative Appeals
Tribunal Act 1975 (Cwlth).
decision has the same meaning as in the Administrative
Appeals Tribunal Act 1975 (Cwlth).
eligible person, in relation to a decision of the NHMRC
licensing committee, means:
(a) in relation to a decision under section 31 not to issue a
licence—the applicant for the licence; or
(b) in relation to a decision about the period throughout which the
licence is to be in force under section 33—the licence holder;
or
(c) in relation to a decision to state a licence condition under section
34 (4)—the licence holder; or
(d) in relation to a decision to vary or refuse to vary a licence under
section 35—the licence holder; or
(e) in relation to a decision to suspend or revoke a licence under
section 36—the person who was the licence holder immediately before
the suspension or revocation.
(1) An eligible person may apply to the Commonwealth administrative
appeals tribunal for review of the following decisions of the NHMRC licensing
committee:
(a) a decision under section 31 not to issue a licence;
(b) a decision about the period throughout which the licence is to be in
force under section 33;
(c) a decision to state a licence condition under section
34 (4);
(d) a decision to vary or refuse to vary a licence under
section 35;
(e) a decision to suspend or revoke a licence under
section 36.
(2) This section has effect subject to the Administrative Appeals
Tribunal Act 1975 (Cwlth).
43 Appointment
of inspectors
(1) The chairperson of the NHMRC licensing committee may, by instrument in
writing, appoint any of the following as inspectors:
(a) a person who is appointed or employed by the Territory;
(b) a person who is appointed or employed by a State;
(c) a person who is appointed or employed by the Commonwealth.
(2) The Legislation Act, part 19.3 (Appointments) does not apply to
appointments under this section.
(3) In exercising functions as an inspector, an inspector must comply with
any directions of the chairperson of the NHMRC licensing committee.
(4) The chairperson of the NHMRC licensing committee must not appoint a
person as an inspector under subsection (1) unless the chairperson is
satisfied that the person has appropriate skills and experience.
(1) The chairperson of the NHMRC licensing committee must issue an
identity card to an inspector.
(2) The identity card—
(a) must be in the approved form; and
(b) must contain a recent photograph of the inspector.
(3) If a person to whom an identity card has been issued ceases to be an
inspector, the person must return the identity card to the chairperson of the
NHMRC licensing committee as soon as practicable.
Maximum penalty: 1 penalty unit.
(4) An inspector must carry his or her identity card at all times when
exercising functions as an inspector.
45 Powers
available to inspectors for monitoring compliance
(1) To find out whether this Act has been complied with, an inspector
may—
(a) enter any premises; and
(b) exercise the monitoring powers set out in section 46.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(2) An inspector is not authorised to enter premises under
subsection (1) unless—
(a) the occupier of the premises has consented to the entry; or
(b) the premises are premises where the occupier of the premises is
carrying out activities authorised by a licence issued under section 31,
and the entry is at a reasonable time.
(1) The monitoring powers that an inspector may exercise under
section 45 (1) (b) are as follows:
(a) to search the premises and anything on the premises;
(b) to inspect, examine, take measurements of, conduct tests on, or take
samples of, any human embryo or thing on the premises that relates to this
Act;
(c) to take photographs, make video or audio recordings or make sketches
of the premises or anything on the premises;
(d) to inspect any book, record or document on the premises;
(e) to take extracts from or make copies of any such book, record or
document;
(f) to take onto the premises the equipment and materials that the
inspector requires to exercise powers in relation to the premises.
(2) For this part, monitoring powers include the power to operate
equipment at premises to see whether—
(a) the equipment; or
(b) a disk, tape or other storage device that—
(i) is at the premises; and
(ii) can be used with the equipment or is associated with it;
contains information that is relevant to deciding whether there has been
compliance with this Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including regulations (see
Legislation Act, s 104).
(3) If the inspector, after operating equipment at the premises, finds
that the equipment, or that a disk, tape or other storage device at the
premises, contains information mentioned in subsection (2), the inspector
may—
(a) operate equipment or facilities at the premises to put the information
in documentary form and copy the document produced; or
(b) if the information can be transferred to a tape, disk or other storage
device that—
(i) is brought to the premises; or
(ii) is at the premises and the use of which has been agreed to in writing
by the occupier of the premises;
operate the equipment or other facilities to copy the information to the
storage device, and remove the storage device from the premises.
If an inspector, during a search of premises, believes on reasonable
grounds that there is at the premises a human embryo or a thing that may provide
evidence of the commission of an offence against this Act, the monitoring powers
include securing the embryo or thing while a warrant to seize it is obtained
(whether by the inspector or by another person).
Note A reference to an offence against a Territory law includes a
reference to a related ancillary offence, eg attempt (see Legislation Act, s
189).
48 Inspector
must produce identity card on request
An inspector is not entitled to exercise any powers under this part in
relation to premises if—
(a) the occupier of the premises has required the inspector to produce his
or her identity card for inspection by the occupier; and
(b) the inspector fails to comply with the requirement.
(1) Before obtaining the consent of a person for section
45 (2) (a), the inspector must tell the person that he or she may
refuse consent.
(2) An entry of an inspector with the consent of a person is not lawful
unless the person voluntarily consented to the entry.
50 Compensation
for damage
(1) The owner of equipment or other facilities is entitled to compensation
for damage to the equipment or other facilities if—
(a) the damage was caused to the equipment or other facilities because of
it being operated by an inspector as mentioned in this part; and
(b) the damage was caused because insufficient care was exercised by the
inspector operating the equipment or other facilities.
(2) In deciding the amount of compensation payable, regard is to be had to
whether the occupier of the premises and his or her employees and agents, if
they were available at the time, had provided any warning or guidance as to the
operation of the equipment or other facilities that was appropriate in
the circumstances.
51 Reports
to Legislative Assembly
As soon as practicable after receiving a copy of a report from the NHMRC
licensing committee under the Commonwealth Act, section 19, the Minister must
present a copy of the report to the Legislative Assembly.
52 Review
of operation of Act
(1) The Minister must review the operation of this Act as soon as
practicable after the 2nd anniversary of the day the Act commences.
(2) The review must consider and report on the scope and operation of this
Act, part 2 and part 3 taking into account the following:
(a) developments in technology in relation to assisted reproductive
technology;
(b) developments in medical research and scientific research and the
potential therapeutic applications of such research;
(c) community standards;
(d) the applicability of establishing a national stem cell bank.
(3) The review may be undertaken as part of the reviews mentioned in the
Research Involving Human Embryos Act 2002 (Cwlth), section 47 and
the Prohibition of Human Cloning Act 2002 (Cwlth),
section 25.
(1) The Minister may, in writing, determine fees for this Act.
Note The Legislation Act contains provisions about the making of
determinations and regulations relating to fees (see pt 6.3)
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(1) The Minister may, in writing, approve forms for this Act.
Note For other provisions about forms, see Legislation Act, s
255.
(2) If the Minister approves a form for a particular purpose, the approved
form must be used for that purpose.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
55 Regulation-making
power
The Executive may make regulations for this Act.
Note Regulations must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
56 Expiry
of certain provisions
(1) This section applies to the following provisions:
• section 31 (3) (b)
• section 34 (1) (c)
• section 34 (3)
• this section.
(2) The provisions expire on the earlier of the following:
(a) 5 April 2005;
(b) if an earlier expiry date is fixed by the Minister under subsection
(3)—that day.
(3) If the Council of Australian Governments declares an expiry date
earlier than 5 April 2005 by notice in the Commonwealth Gazette (as mentioned in
the Commonwealth Act, section 46), the Minister must, in writing, fix that day
as the expiry date.
(4) An instrument under subsection (2) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• corporation
• entity
• exercise
• functions
• State
• under.
accredited ART centre—see section 24.
animal does not include a human.
chimeric embryo means—
(a) a human embryo into which a cell, or any component part of a cell, of
an animal has been introduced; or
(b) anything declared under the regulations to be a chimeric
embryo.
Commonwealth Act means the Research Involving Human
Embryos Act 2002 (Cwlth).
Commonwealth administrative appeals tribunal—see
section 41.
confidential commercial information—see section
24.
decision, for division 3.6 (Review provisions)—see
section 41.
disclose information, for part 3 (Regulation of certain uses
involving excess ART embryos)—see section 24.
eligible person, for division 3.6 (Review
provisions)—see section 41.
excess ART embryo—see section 25.
HREC—see section 24.
human embryo—see section 7.
human embryo clone—see section 8.
human sperm includes human spermatids.
hybrid embryo means—
(a) an embryo created by the fertilisation of a human egg by animal sperm;
or
(b) an embryo created by the fertilisation of an animal egg by human
sperm; or
(c) a human egg into which the nucleus of an animal cell has been
introduced; or
(d) an animal egg into which the nucleus of a human cell has been
introduced; or
(e) a thing declared under the regulations to be a hybrid
embryo.
inspector means a person appointed as an inspector under
section 43 (1).
licence, for part 3 (Regulation of certain uses involving
excess ART embryos)—see section 24.
NHMRC licensing committee means the committee established by
the Research Involving Human Embryos Act 2002 (Cwlth),
section 13.
NHMRC means the National Health and Medical Research Council
established by the National Health and Medical Research Council Act 1992
(Cwlth).
precursor cell means a cell that has the potential to develop
into a human egg or human sperm.
proper consent, for part 3 (Regulation of certain uses
involving excess ART embryos)—see section 24.
relevant Territory entity, for part 3 (Regulation of certain
uses involving excess ART embryos)—see section 24.
responsible person, for part 3 (Regulation of certain uses
involving excess ART embryos), see section 24.
woman means a female human.
Endnotes
1 Presentation speech
Presentation speech made in Legislative Assembly on 2003.
2 Notification
Notified under the Legislation Act on 2003.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2003
[Index]
[Search]
[Download]
[Related Items]
[Help]