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Legislative Assembly for the ACT: 2004 Week 08 Hansard (Wednesday, 4 August 2004) . . Page.. 3400 ..

information in a way that intrude on privacy may be that in the interests of justice—that is that a person should be able to place before a court all information relevant to that person pursuing their legal entitlements—prevails over any privacy interest of the person about whom the information was collected.

It seems to me that the problem of information being required for a legal case would be overcome without too much difficulty since the court is already involved. If the information is relevant to the case a court order should not be a problem. Genetic information is a new type of information and is potentially very powerful. Someone holding information that indicates that I have a genetic predisposition to a particular condition is in a position to do great damage. Part of this damage might be on the basis of prejudice, by telling other people. Part of the damage would then be due to ignorance. We do not yet fully understand the interplay between genetics and environment—what we eat, our attitudes, and accidental events. Genetic information must be considered in the context of the complexity of our genetic make-up and the effects of our genetic make-up on our lives and our great lack of understanding of this complexity.

So while it might be useful for me to know that I have a particular genetic tendency for some diseases, we know that that means I will have a particular difficulty to deal with in my health. We do not know about others. It is a predisposition, and if I know about it early enough in my life I can try to live in a way to minimise the chance of that condition developing. Because of this inexact nature of genetic information it is perhaps more dangerous. Misinterpretation and overreaction are more likely. So, I agree that there is an issue here. The question now is whether we need to change our current laws in order to deal with this issue.

The government is arguing that none of the amendments proposed in this bill is necessary, and that we are already covered. The first part of Mrs Cross’s bill is to insert an additional ground of discrimination into section 7 of the act to specifically identify discrimination on the basis of a genetic characteristic or a genetic predisposition to a condition or disease. My office has had advice from the Discrimination Commissioner that although it is likely that genetic discrimination is covered already by section 5AA’s definition of disabilities, including potential future disability, it may be useful to clarify that this includes genetic information. The commissioner referred to reports from the Productivity Commission and from the Law Reform Committee, both of which reached similar conclusions on this point. However, her advice is also that it may work better to have an amendment to section 5AA (1)—this would avoid the problem created by relying on 5AA (2)—specifically that it excludes work-related discrimination and discrimination by qualifying bodies. This is one question to be resolved in the detail stage.

The second part of the bill, also amending the Discrimination Act, would make it unlawful for an insurance company to discriminate on the basis of predictive genetic information. Because of the uncertain nature of so-called predictive genetic information and the uncertainties I have already mentioned about what will occur, there is a case to be made for excluding this kind of information from use by the insurance industry. A study by Matthew Stulic in the Murdoch University law journal in 2000 noted that:

… there is international evidence to suggest that genetic composition was becoming a factor in the denial or curtailment of insurance coverage. This is true of health insurance … and life insurance.

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