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Cloning of Humans (Prohibition) Bill 2001
CLONING OF HUMANS (PROHIBITION)
BILL 2001
EXPLANATORY NOTES
GENERAL OUTLINE
Policy Objectives of the Bill
The policy objective of the Bill is to prohibit the creation or attempted
creation of cloned humans, or `human reproductive cloning', and to
prohibit the gestation of human embryo clones. The Bill is not intended to
prohibit other research into the use of human cells or human tissue which
uses cloning technologies.
Means of Achieving Objectives
The objectives of the Bill will be achieved by the prohibition of two
practices: the creation or attempted creation of a human clone by a
technological or other artificial process; and the placing of a human
embryo clone in the body of a human or animal for any period of gestation.
Background
Human reproductive cloning is widely considered, at international,
national and state levels, to be unacceptable and contrary to human dignity.
The United Nations Educational, Scientific and Cultural Organisation
(UNESCO) and the World Health Organisation have condemned the use of
cloning for replication of humans as unacceptable. In Australia, the
National Health and Medical Research Council's Ethical Guidelines on
Assisted Reproductive Technology describe reproductive cloning as a
prohibited and unacceptable practice. The Fertility Society of Australia
and the Australian Academy of Science, regard human reproductive
cloning as unacceptable. The Code of Ethical Conduct for Biotechnology in
Queensland, commits government biotechnology organisations and
organisations which subscribe to the Code to not undertake human
reproductive cloning.
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Cloning of Humans (Prohibition) Bill 2001
Australian Health Ministers have agreed that States and Territories
should pursue a ban on human reproductive cloning in each jurisdiction. In
addition, the Council of Australian Governments made a commitment in
June 2001 to achieve nationally consistent provisions in legislation to
prohibit human cloning. This Bill implements those agreements in
Queensland.
Advances in cloning technologies mean that the possibility of cloning
human beings is no longer scientifically remote. Reproductive cloning has
been demonstrated in several different mammal species in recent years.
The Bill ensures that there is an enforceable prohibition of human
reproductive cloning. This legislative approach is considered to be
necessary and appropriate because it applies a prohibition on cloning of
humans to all individuals and corporations, rather than relying on voluntary
compliance with guidelines and codes.
Scope of the prohibition
The Bill does not prohibit a specific cloning technology, but is framed so
as to prohibit creation of a human clone by any technological or artificial
process. Human reproductive cloning that is achieved by, for example,
somatic cell nuclear transfer or parthenogenesis will therefore be
prohibited. However, the Bill does not prohibit, for example, natural
`twinning' (the development of identical twins by way of natural splitting
of the embryo) which may occur in the course of an assisted reproductive
technology (ART) treatment procedure. In the event that identical embryos
develop naturally during ART treatment and are transferred to a woman for
gestation, neither would be a `human clone' as defined in the Bill.
A `clone' is generally regarded as an identical genetic copy. However a
human clone or human embryo clone created by somatic cell nuclear
transfer would contain some genetic material in the mitochondria
(organelles in the cell cytoplasm) which would be different to the genes in
the nucleus of the cell from which the copy has been made. Also, a clone
could be genetically modified so that it is not identical to the original from
which it was copied. For these reasons, in a proceeding for an offence
against the Act that a human or a human embryo is a genetic copy, it is
sufficient to prove that the set of nuclear genes has been copied. It is not
necessary to prove that the copy is an identical genetic copy.
If a human embryo clone has been created, then placing it in a human or
animal body for any period of gestation is an offence. In circumstances
where, for example, a human embryo clone had been created elsewhere and
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Cloning of Humans (Prohibition) Bill 2001
imported into Queensland, placing the human embryo clone in a human or
animal body for gestation is also an offence. Should it become technically
possible in future for an embryo to gestate in the human male body, the
prohibition on placement of a human embryo clone in the human body for
any period of gestation makes placement in the human male body an
offence.
The prohibition on cloning a human in this Bill does not extend to the
use of cloning technologies in medical research and treatment which do not
involve human reproductive cloning. Cloning technologies are used to
replicate DNA or individual cells, and in medical research into potential
treatments for a range of diseases.
As already noted, the Council of Australian Governments has committed
itself to achieving nationally consistent provisions in legislation to ban
human cloning in each jurisdiction. To implement that commitment to
national consistency in Queensland, it is not considered that there is any
practical alternative to a legislative prohibition on human reproductive
cloning. The state has no legislation that prohibits creation of a human
clone. Voluntary compliance with guidelines and codes may not in future
be sufficient to prevent an attempt at human reproductive cloning.
Currently, Commonwealth legislation prohibits cloning of a whole
human being. However, this legislation relies on the Commonwealth
corporations power, and does therefore not apply to individuals. The
Commonwealth has indicated its intention to wind back or repeal the
relevant legislative provision when States and Territories have enacted
legislation to prohibit human reproductive cloning.
Estimated Costs of Government Implementation
There are no significant costs associated with implementation of the Bill.
Consistency with Fundamental Legislative Principles
Two provisions of the Bill raise possible fundamental legislative
principle issues.
Clause 8 effectively provides that an act or omission of a person's
representative in relation to an offence against the Act is taken to have been
done by the person, if the representative was acting within the scope of the
representative's authority. The person will therefore be taken to have
committed the relevant offence unless the person can prove that they could
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Cloning of Humans (Prohibition) Bill 2001
not, by the exercise of reasonable diligence, have prevented the act or
omission.
Clause 9 provides that, if a corporation is convicted of an offence, each
executive officer of the corporation is taken to have committed the offence
of failing to ensure that the corporation complies with the relevant
provision. This clause therefore presumes an executive officer of the
corporation to be guilty until the officer can prove that the officer took all
reasonable steps to ensure the corporation complied with the provision, or
that the officer was not in a position to influence the conduct of the
corporation in relation to the offence.
These provisions effectively provide for the reversal of the onus of proof.
However, given the seriousness of the subject matter of the offences, it is
appropriate that:
� persons be required to oversee the conduct of their
representatives and, in doing so, make reasonable efforts to
ensure that their employees and agents comply with the
requirements of the legislation;
� an executive officer, who is responsible for a contravention of the
legislation, be accountable for his or her actions and not able to
`hide' behind the corporation.
Consultation
National
Following the commitment made by the Council of Australian
Governments on 8 June 2001 to achieve nationally consistent provisions in
legislation to prohibit human cloning, officials from all jurisdictions have
worked on the development of a consistent approach to legislative
provisions to prohibit human reproductive cloning. During national
discussions, the Australian Health Ethics Committee (a committee of the
National Health and Medical Research Council), medical researchers,
practitioners specialising in fertility treatment and health ethicists were
consulted about an approach to legislative provisions to prohibit human
reproductive cloning.
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Cloning of Humans (Prohibition) Bill 2001
Government
The Departments of Premier and Cabinet, Innovation and Information
Economy and Justice and Attorney General have been consulted in relation
to the preparation of the Bill.
Researchers and ethicists
A confidential consultation draft of the Bill was provided to a small
number of medical researchers, ethicists and lawyers for comment to
ensure that the Bill achieves its objective, without impinging on legitimate
areas of medical research which use cloning technologies, but do not
involve human reproductive cloning.
Results of Consultation
The provisions in this Bill are consistent with the approach developed
nationally for consistent legislative provisions to prohibit cloning of
humans. There is general support from government agencies, researchers
and ethicists for this legislative approach to prohibiting human
reproductive cloning.
NOTES ON PROVISIONS
Clause 1 sets out the short title of the Act.
Clause 2 specifies that the dictionary, contained in the schedule, defines
particular words used in the Act.
Clause 3 prohibits the creation of a human clone, or an attempt to create
a human clone by a technological or other artificial process. The penalty
for an offence against this provision is set at 4 000 penalty units or 10 years
imprisonment. In accordance with section 181C of the Penalties and
Sentences Act 1992, for an offence committed by a corporation, a court
may impose a penalty of five times the maximum penalty specified for an
individual.
Clause 4 prohibits the placing of a human embryo clone anywhere in the
body of a human or animal for any period of gestation. A penalty of 4 000
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Cloning of Humans (Prohibition) Bill 2001
penalty units or 10 years imprisonment applies for an offence against this
provision.
Clause 5 provides that, for proving in a proceeding for an offence against
the Act that a human or a human embryo is a genetic copy, it is enough to
prove that the set of genes in the nucleus of the human cell has been copied,
and it is not necessary to prove that the copy is an identical genetic copy. A
human clone is defined to mean a human that is a genetic copy of another
living or dead human. Proof that a human or a human embryo is a human
clone will be demonstrated by proof that the nuclear genes have been
copied.
Clause 6 provides that in proceedings brought under the Act, it is not
material whether the human clone or human embryo clone did not or could
not survive.
Clause 7 provides that an offence against the Act is a crime, and the
offender cannot be arrested without warrant.
Clause 8 specifies that an action or omission of a person's representative,
in relation to an offence against the Act, is taken to have been done by the
person, if the representative was acting within the scope of the
representative's authority. However, the person can utilise the defence
provided for under this provision and prove that they could not, by the
exercise of reasonable diligence, have prevented the act or omission.
Clause 9 places an obligation on the executive officers of a corporation
to ensure that the corporation complies with the legislation. As such, this
provision creates an offence on the part of each executive officer in
situations where the corporation has committed an offence against the Act.
However, it is a defence for an executive officer to prove that he or she
exercised reasonable diligence to ensure the corporation complied with the
provision; or was not in a position to influence the conduct of the
corporation in relation to the offence.
SCHEDULE--DICTIONARY
The Schedule defines particular words used in the Act.
� State of Queensland 2001