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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Reproductive Technology (Clinical Practices)
(Miscellaneous) Amendment Bill 2008
A BILL FOR
An Act to amend the Reproductive Technology (Clinical Practices)
Act 1988.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Reproductive Technology
(Clinical Practices) Act 1988
4 Amendment of long
title
5 Amendment of section 1—Short title
6 Amendment of section
3—Interpretation
7 Insertion of section
4A
4A Fundamental principle
8 Repeal of Parts 2 and
3
Part 2—Registration
5 Authorisation and
registration required to provide assisted reproductive
treatment
6 Eligibility for
registration
7 Application for
registration
8 Registration
9 Conditions
of registration
10 Suspension or cancellation of
registration
11 Removal from
Register
12 Reinstatement on
register
13 Appeals
14 Related
matters
Part 3—Donor conception register
15 Donor
conception register
9 Insertion of section
16
16 Record keeping
10 Amendment of section
17—Powers of authorised persons
11 Amendment of section
18—Confidentiality
12 Amendment of section
20—Regulations
13 Insertion of section 21
21 Review
of operation of Act
14 Repeal of Schedule
Schedule 1—Transitional
provisions
1 Existing licensees
2 Record keeping
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Reproductive Technology (Clinical
Practices) (Miscellaneous) Amendment Act 2008.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part
2—Amendment of Reproductive Technology
(Clinical Practices) Act 1988
Long title—delete "the use of reproductive technology and research
involving experimentation with human reproductive material" and
substitute:
assisted reproductive treatment
5—Amendment of
section 1—Short title
Section 1—delete "Reproductive Technology (Clinical Practices) Act
1988" and substitute:
Assisted Reproductive Treatment Act 1988
6—Amendment of
section 3—Interpretation
(1) Section 3, definition of artificial fertilisation
procedure—delete the definition
(2) Section 3, definition of artificial
insemination—delete the definition and substitute:
assisted insemination means assisted reproductive treatment
(not being an in vitro fertilisation procedure or a surgical procedure) in
which human sperm are introduced, by artificial means, into the human female
reproductive system;
assisted reproductive treatment means any medical procedure
directed at fertilisation of a human ovum by artificial means and includes an in
vitro fertilisation procedure;
(3) Section 3, definition of the code of ethical
practice—delete the definition and substitute:
donor conception register—see section 15;
(4) Section 3, definition of reproductive
technology—delete the definition
After section 4 insert:
4A—Fundamental principle
The welfare of a woman to whom assisted reproductive treatment is provided
in accordance with this Act, and that of any child to be born in consequence of
such treatment, must be treated as being of fundamental importance in respect of
the operation of this Act, and in assisted reproductive treatment provided in
accordance with this Act.
Parts 2 and 3—delete the Parts and substitute:
Part 2—Registration
5—Authorisation and registration required to
provide assisted reproductive treatment
(1) A person must not provide assisted reproductive treatment unless the
person is authorised to do so in accordance with the regulations and registered
under this Part.
Maximum penalty: $120 000.
(2) Subsection (1) does not apply in relation to assisted
reproductive treatment consisting of—
(a) assisted insemination provided by a health professional approved by
the Minister for the purposes of this subsection; or
(b) assisted insemination provided other than for fee or reward.
(3) An approval under subsection (2)(a) may be conditional or
unconditional.
(4) The Minister may, by notice in writing given to a health professional
approved under subsection (2)(a), vary or cancel the approval on any
grounds the Minister thinks fit.
(5) A health professional who is approved under subsection (2)(a) and
who contravenes or fails to comply with a condition of the approval is guilty of
an offence.
Maximum penalty: $120 000.
(6) In this section—
health professional means—
(a) a medical practitioner; or
(b) any other person who belongs to a profession, or who has an
occupation, declared by the regulations to be a profession or occupation within
the ambit of this definition.
6—Eligibility for registration
A person is eligible for registration under this Part if the person, on
application to the Minister, satisfies the Minister that he or
she—
(a) is a fit and proper person to be registered; and
(b) holds any licence, accreditation or other qualification required by
the regulations for the purposes of registration; and
(c) satisfies any other requirements prescribed by the
regulations.
7—Application for registration
(1) An application for registration under this Part must—
(a) be made to the Minister in the manner and form approved by the
Minister; and
(b) be accompanied by the prescribed fee.
(2) An applicant for registration must, if the Minister so requires,
provide the Minister with specified information to enable the Minister to
determine the application.
8—Registration
(1) The Minister must keep a register of persons authorised to provide
assisted reproductive treatment under this Act (the
Register).
(2) The Register must include, in relation to each person on the
Register—
(a) the person's full name or business name and business address;
and
(b) details of any condition of registration; and
(c) any other information prescribed by the regulations,
and may include such other information as the Minister thinks
fit.
9—Conditions of registration
(1) The Minister must, by notice in writing given to a person registered
under this Part, impose conditions of the following kinds on the person's
registration:
(a) a condition requiring the person to hold, while the person is
registered under this Part, a specified licence, accreditation or other
qualification that is in force;
(b) a condition setting out the kinds of assisted reproductive treatment
the person may provide and any requirements that must be complied with in the
provision of such treatment;
(c) a condition preventing the provision of assisted reproductive
treatment except in the following circumstances:
(i) if a woman who would be the mother of any child born as a consequence
of the assisted reproductive treatment is, or appears to be,
infertile;
(ii) if a man who is living with a woman (on a genuine domestic basis as
her husband) who would be the mother of any child born as a consequence of the
assisted reproductive treatment is, or appears to be, infertile;
(iii) if there appears to be a risk that a serious genetic defect, serious
disease or serious illness would be transmitted to a child conceived
naturally;
(iv) if—
(A) the donor of the relevant human semen has died; and
(B) before the donor died—
• the donor's semen was collected; or
• a human ovum (being the ovum of a woman who, immediately before
the death of the deceased, was living with the donor on a genuine domestic
basis) was fertilised by means of assisted reproductive treatment using the
donor's semen; or
• an embryo had been created as a consequence of such assisted
reproductive treatment; and
(C) before the donor died, the donor consented to the use of the semen,
fertilised ovum or embryo (as the case requires) after his death in the
provision of the proposed assisted reproductive treatment; and
(D) if the donor gave any directions in relation to the use of the semen,
ovum or embryo (as the case requires)—the directions have, as far as is
reasonably practicable, been complied with; and
(E) the assisted reproductive treatment is provided for the benefit of a
woman who, immediately before the death of the donor, was living with the donor
on a genuine domestic basis;
(v) in any other circumstances prescribed by the regulations;
(d) a condition requiring the person to ensure that the regulations are
complied with;
(e) any other condition required by the regulations,
and may impose any other condition the Minister thinks fit.
(2) The Minister may, by notice in writing given to a person registered
under this Part, vary the conditions of the person's registration by the
addition, substitution or deletion of 1 or more conditions.
(3) A person who is registered under this Part and who contravenes or
fails to comply with a condition of the person's registration is guilty of an
offence.
Maximum penalty: $120 000.
10—Suspension or cancellation of
registration
(1) The Minister may suspend or cancel a person's registration under this
Part if the Minister is satisfied that the person has contravened, or failed to
comply with, a condition of that registration.
(2) A person must be given a reasonable opportunity to make submissions in
relation to the matter before action is taken under
subsection (1).
11—Removal from Register
(1) The Minister must, on application by a person registered under this
Part, remove the person from the Register.
(2) The Minister must remove from the Register a person—
(a) who ceases to hold a licence, accreditation or other qualification
required for registration under this Part; or
(b) who ceases for any other reason to be entitled to be registered;
or
(c) whose registration has been suspended or cancelled under this
Act.
(3) The Minister may act under subsection (2) without giving prior
notice to the person.
12—Reinstatement on register
(1) A person who has been removed from the Register under this
Act—
(a) on the person's application; or
(b) under section 11 (other than a person whose registration has been
suspended under this Act),
may apply to the Minister at any time for reinstatement on the
Register.
(2) A person whose registration under this Part has been suspended may
apply to the Minister for reinstatement on the Register (but not, in the case
where the person's registration has been suspended for a specified period, until
after the expiration of that period).
(3) An application for reinstatement must—
(a) be made to the Minister in the manner and form determined by the
Minister; and
(b) be accompanied by the prescribed reinstatement fee.
(4) An applicant for reinstatement must, if the Minister so requires,
provide the Minister with specified information to enable the Minister to
determine the application.
(5) The Minister may refuse to reinstate the applicant on the Register
until any proceedings in relation to the applicant under this Act, or a law of
another State or a Territory of the Commonwealth providing for the registration
or some other form of accreditation of persons who provide assisted reproductive
treatment, have been finally disposed of.
13—Appeals
(1) An appeal lies to the Supreme Court against the following
decisions:
(a) a refusal by the Minister to approve a health professional for the
purposes of section 5(2);
(b) a decision by the Minister to vary or cancel the approval of a health
professional under section 5(4);
(c) a refusal by the Minister to register a person under this
Part;
(d) a decision by the Minister to impose, substitute or delete a condition
of registration under this Part;
(e) a decision by the Minister to suspend or cancel the registration of a
person;
(f) a refusal by the Minister to reinstate a person on the
Register.
(2) Subject to any contrary order of the Supreme Court, an appeal cannot
be commenced after 1 month from the day on which the appellant receives notice
of the decision against which the appeal lies.
(3) On an appeal, the Supreme Court may—
(a) annul, vary or reverse the decision subject to the appeal;
and
(b) make any consequential or ancillary orders the Supreme Court thinks
fit.
14—Related matters
(1) The Register must be kept available for inspection by any person
during ordinary office hours at a place or places determined by the Minister and
the Register, or extracts of the Register, may be made available to the public
by electronic means.
(2) A person may, on payment of the prescribed fee, obtain a copy of any
part of the Register.
(3) A certificate stating that a person was, or was not, registered on the
Register at a particular date, or during a particular period, and purporting to
be signed by the Minister will, in the absence of proof to the contrary, be
accepted in legal proceedings as proof of the registration, or of the fact that
the person was not so registered, on the date, or during the period, stated in
the certificate.
Part 3—Donor conception
register
15—Donor conception register
(1) The Minister may keep a register of donors of human reproductive
material used in, or in relation to, assisted reproductive treatment provided in
accordance with this Act and resulting in the birth of a child (the donor
conception register).
(2) If the Minister does keep the donor conception register, the register
must contain, in relation to each donor on the register—
(a) the donor's full name and nominated contact address; and
(b) the full name and nominated contact address of the person to whom
assisted reproductive treatment using the donor's human reproductive material
was provided; and
(c) the full name of any child born as a consequence of such assisted
reproductive treatment (if known); and
(d) any other information required by the regulations,
and may include any other information that the Minister thinks
fit.
(3) The Minister must correct an entry in the donor conception register
that is not correct.
(4) The donor conception register may only be inspected in accordance with
the regulations.
(5) A certificate stating that a donor was, or was not, registered on the
donor conception register in relation to the birth of a specified child, and
purporting to be signed by the Minister will, in the absence of proof to the
contrary, be accepted in legal proceedings as proof of the registration, or of
the fact that the person was not so registered.
(6) The Minister may, by notice in writing, for the purpose of preparing
and maintaining the donor conception register, require a person to provide the
Minister with such information as the Minister may require.
(7) A person must not, without reasonable excuse, refuse or fail to comply
with a requirement under subsection (6).
Maximum penalty: $10 000.
(8) This section does not apply in relation to assisted reproductive
treatment provided before the commencement of this section.
Before section 17 insert:
16—Record keeping
(1) A person who is registered under Part 2 must make such records, and
keep such documents, as may be required by the regulations in relation to the
provision of assisted reproductive treatment by the person.
Maximum penalty: $50 000.
(2) A health professional who is approved under section 5(2)(a) to provide
assisted insemination must make such records, and keep such documents, as may be
required by the regulations in relation to assisted insemination provided in
pursuance of the approval.
Maximum penalty: $50 000.
(3) A person who is required to make a record or keep a document under
this section must retain the record or document in accordance with any
requirement set out in the regulations.
Maximum penalty: $50 000.
10—Amendment of
section 17—Powers of authorised persons
(1) Section 17(1)(a)—delete "artificial fertilisation procedures are
carried out" and substitute:
assisted reproductive treatment is provided
(2) Section 17(1)(d)—delete "artificial fertilisation procedures"
and substitute:
assisted reproductive treatment
(3) Section 17(2), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $10 000.
11—Amendment of
section 18—Confidentiality
(1) Section 18(1)—before paragraph (a) insert:
(aa) as required or authorised by or under this or any other Act;
or
(2) Section 18(1)(b)—delete "carry out an artificial fertilisation
procedure" and substitute:
provide assisted reproductive treatment
(3) Section 18(1)(c)—delete "(given in the prescribed
manner)"
(4) Section 18(1), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $10 000 or imprisonment for 6 months.
(5) Section 18(2)—delete "carrying out an artificial fertilisation
procedure" and substitute:
providing assisted reproductive treatment
(6) Section 18(2)—before paragraph (a) insert:
(aa) as required or authorised by or under this or any other Act;
or
(7) Section 18(2)(a)—delete "carry out that procedure" and
substitute:
provide that treatment
(8) Section 18(2)(b)—delete "the code of ethical practice" and
substitute:
or under this Act
(9) Section 18(2)—after paragraph (b) insert:
or
(c) with the consent of the person to whom the information
relates.
(10) Section 18(2), penalty provision—delete the penalty provision
and substitute:
Maximum penalty: $10 000 or imprisonment for 6 months.
(11) Section 18—after subsection (2) insert:
(3) Nothing in this section prevents information (being information that
does not disclose the identity of a person) being used to enable the Minister to
accumulate statistical information and to enable the Minister to authorise use
of the statistical information for the purposes of research or
education.
12—Amendment of
section 20—Regulations
(1) Section 20(2)(b)—delete "licensees" and substitute:
persons registered under Part 2 of this Act
(2) Section 20(2)(c)—delete "$2 000" and substitute:
$10 000
(3) Section 20(2)—after paragraph (c) insert:
(d) require a person to provide information to the Minister for purposes
related to the preparation and maintenance of the donor conception
register;
(e) confer a discretionary power on the Minister or any other person or
body.
(4) Section 20(4)—delete subsection (4)
After section 20 insert:
21—Review of operation of Act
(1) The Minister must, as soon as practicable after the fifth anniversary
of the commencement of this section, conduct a review of the operation and
effectiveness of this Act as amended by the Reproductive Technology (Clinical
Practices) (Miscellaneous) Amendment Act 2008.
(2) The Minister, or any person conducting the review on behalf of the
Minister, must maintain the confidentiality of information provided to the
Minister in the course of the review (but nothing in this section prevents
information (being information that does not disclose the identity of a person)
being used to enable the Minister to accumulate and publish statistical
information for the purposes of a report under this section).
(3) The Minister must prepare a report based on the review and must,
within 12 sitting days after the report is prepared, cause copies of the
report to be laid before each House of Parliament.
Schedule—delete the Schedule
Schedule
1—Transitional provisions
(1) A person who, immediately before the commencement of this clause, held
a licence under Part 3 of the Reproductive Technology (Clinical Practices)
Act 1988 (as in force immediately before the commencement of this
clause) will be taken to be registered under Part 2 of that Act (as enacted by
this Act).
(2) Any licence condition to which the licence was subject under section
13(3)(a) and (e) of the Reproductive Technology (Clinical Practices)
Act 1988 (as in force immediately before the commencement of this
clause) will be taken to continue to apply as a condition of registration under
Part 2 of that Act (as enacted by this Act).
A person who held a licence under Part 3 of the Reproductive Technology
(Clinical Practices) Act 1988 (as in force immediately before the
commencement of this clause) must keep any record required to have been made or
kept as a condition to which the licence was subject under section 13(3)(d) of
that Act (as in force immediately before the commencement of this clause) as if
the record were a record required to be made or kept under that Act after the
commencement of Part 2 of this Act.