Australia: Government Response to Genetic Discrimination Report

In December 2005, the Federal Government released its response to the Australian Law Reform Commission's ("ALRC") report on genetic information, "Essentially Yours: The Protection of Human Genetic Information". The ALRC report looks at the legal and ethical issues that arise from the use of human genetic information. Genetic privacy and discrimination were highlighted as issues requiring attention.

The report made 144 recommendations, covered a wide range of different topics including information privacy, protection against unfair discrimination in employment and insurance, the use of genetic information in forensic investigations and parentage testing and ensuring the highest ethical standards in medical research and practice.

In its response, the Government has indicated its acceptance of a majority of the recommendations made by in the report. Of particular relevance to employment law, the report recommended that:

• Employers cannot collect or use genetic information of employees or potential employees, except where consistent with anti-discrimination, occupational health and safety and privacy legislation. The government accepted this recommendation in principle
• The Disability Discrimination Act 1992 (Cth) ("DDA"), the Human Rights and Equal Opportunities Commission Act 1984 (Cth) and the Workplace Relations Act 1996 (Cth) should be amended to prevent genetic information being taken into account when ascertaining whether an applicant is capable of performing the inherent requirements of the job, except where it is reasonable to do so. The Government believes that this recommendation is consistent with the current provisions in the DDA
• If genetic information is used to assess an employee or potential employee's ability to perform the inherent requirements of the job, then employers must have clearly defined job descriptions which identify the inherent requirements. The Government agrees in principle, but notes that it is reasonable for employers to take into account costs of developing new policies as well as benefits
• The DDA should be amended to prohibit employers from requesting or requiring genetic information from employees and potential employees except where that information is reasonably required for a lawful purpose. The Government agrees in principle
• The proposed Human Genetics Commission of Australia (see below) should determine whether genetic tests should be used in employment for screening for susceptibility to work-related conditions, and should collaborate with other stakeholders to develop national guidelines for such screening. The Government considers this recommendation unnecessary at this stage, taking into account the limited application of genetic screening to Australian workplaces
• The Human Genetics Commission of Australia and the Heads of Workplace Safety and Compensation Authorities should develop a policy regarding the role of genetic information in the assessment of workers' compensation claims. The Government considers this recommendation premature given that there is no evidence that such information is currently used in workers' compensation claims in any Australian jurisdiction; and
• Employee records regarding genetic information should be protected by the Privacy Act 1988 (Cth). The government said that this will be considered as part of the employee records review.

A other key recommendations and government responses include:

• There should be a statutory advisory body established to provide advice on human genetic issues. This would be called the Human Genetics Commission of Australia. The Government agreed with this recommendation
• Health and information privacy laws should be harmonised to address the use of human genetic information by developing nationally consistent rules for handling all health information. While the Government agreed with this, it also said that the protection of genetic information would remain within the framework of the Privacy Act;
• Discrimination laws should continue to prohibit discrimination on the basis of genetic status. The Government agrees with this in principle but also acknowledges that there may be need for additional legislative protection. Additionally, the Government has agreed with the ALRC on the importance of preventing discrimination based on past or present genetic status.

At this time, no new legislation has been introduced by the Federal Government seeking to implement the recommended changes to the anti-discrimination jurisdiction. However, it will be interesting to see what will happen to the Genetic Privacy and Non-Discrimination Bill 2004 which remains before Parliament. The Bill was initially introduced in 1998 and was reintroduced in November 2004.

The Bill proposes to introduce certain protections for genetic privacy of individuals and to make genetic discrimination unlawful. The Bill also defines the circumstances in which genetic information and DNA samples may be collected, stored, analysed, and disclosed, the rights of individuals and persons with respect to genetic information, the responsibilities of persons with respect to genetic information, and the unlawfulness of genetic discrimination against individuals and families.

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