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Legislative Assembly for the ACT: 2004 Week 08 Hansard (Wednesday, 4 August 2004) . . Page.. 3396 ..

taking of the sample for the purpose of genetic testing and the person who took it, who submitted it or who conducts the genetic testing knows that there was no consent.

This provision, in its current format, inadvertently targets employees such as the laboratory worker who receives a sample from B who has taken the sample from A and conducts genetic testing on the sample. If the laboratory worker assumes that there is a valid consent form or adverts his or her mind to the question of whether there is a valid consent form but does not bother to confirm or deny the assumption and conducts the test, the laboratory worker would be captured by the recklessness provision. Similarly, if the laboratory worker just processes the job without even considering the validity of consent, given the nebulous consent of recklessness, that worker could also be caught and would be likely to be caught by the offence.

The government believes the bill unfairly targets laboratory and health professional workers. The bill makes it an offence for a person to conduct genetic testing without checking if there is a valid consent form and an employee would be liable even if he or she were not responsible for the obtaining of the consent. The government submits that the bill proposed is inconsistent with standard concepts of criminal law and the values of a legal system where innocent victims are not convicted and where citizens know and understand their rights and obligations under the law. For that reason, as well as the others that I have stated earlier, the government does not support this bill.

Fundamentally and in summary, the government believes that the issue that is sought to be addressed through this legislation was appropriately addressed in 2003 by amendments in the Discrimination Amendment Act to expand the meaning of impairment. Those amendments were designed to be consistent with the inclusion of that expanded scope of disability within the Commonwealth legislation. The government believes that the bill being debated now is inconsistent with the Commonwealth’s Discrimination Act and, as a result of that inconsistency, almost certainly would not be of any effect.

We believe that it is confusing to now impose or to seek to impose specific legislation in relation to so-called genetic discrimination when that discrimination is included quite clearly within the expanded definition of impairment in the amendments passed by the Assembly last year. We also believe, as I have indicated, that the penalty provisions proposed to be inserted in the Crimes Act in relation to the taking and using of samples are inconsistent with good and standard criminal law practice.

MS DUNDAS (11.18): The ACT Democrats will be supporting this bill in principle. In 1998 Australian Democrat Senator Natasha Stott Despoja first tabled the Genetic Privacy and Non-Discrimination Bill in the Australian Senate. It was re-listed on the Senate notice paper in 2002, so if the Chief Minister is particularly concerned about fears of inconsistency with federal legislation he might want to talk to his federal colleagues about what the Democrats are trying to do up on the hill. The Australian Democrats have long been at the forefront of the debate on the genetic rights of Australians, and protection from discrimination on the basis of genetic data has been central to our concerns.

The rapid developments of genetic technology have changed the basic identity of individuals. It is now possible to distinguish between individuals on the basis of their

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