Feds can't ban cells

The Federal government has no constitutional power to ban embryonic stem cell research, even if it wanted to.

Opposition by the states will sink any Commonwealth attempt to ban research.

Since late February, scientists and some State premiers have lobbied the Federal government over fears that Cabinet would try to ban ES cell research in Australia.

But lawyers doubt that the Commonwealth has the power to do so.

There is no head of power under the all-important Section 51 of the Constitution that clearly specifies that the Commonwealth has the power to make laws about ES cell research, cloning or biotechnology, according to experts who spoke with Australian Biotechnology News.

"This raises doubts as to whether the Commonwealth can in fact legislate to ban the use of embryos for stem cell research," said Freehills lawyer Sangeeta Puran.

"If the Commonwealth does not have the relevant lawmaking powers under Section 51, then it can only regulate the use of embryos for stem cell research if the Constitution is amended by referendum."

Puran said that if there was no referendum on stem cell research, or the states did not refer power over the issue to the Commonwealth, then it was up to the states to regulate the use of embryos for stem cell research.

Constitutional law expert John Waugh, at the University of Melbourne, agreed that, in general, the Commonwealth government had no constitutional power over what research was carried out.

An exception might be if Australia was signatory to an international treaty that bound us to world standards, he said.

But it's worth remembering, Waugh said, that much of the government's real power is financial.

"That's the way most of its power over research and healthcare work - the power of the purse-strings," Waugh said.

Prime Minister John Howard deferred any Cabinet decision on embryonic stem cell research until after the April 5 Council of Australian Governments meeting.

At the council's last meeting, in July 2001, the states agreed to work towards nationally consistent approaches to regulate reproductive technologies and related emerging human technologies.

Puran said there were similar questions about the Constitutional validity of the Commonwealth government's power with respect to the Gene Technology Act.

"The act purports to be based on heads of power such as the trading and commerce power," she said. 'The exact basis on which the Commonwealth is relying on such heads of power is far from clear."