International context

9.12 Australia’s federal anti-discrimination legislation makes reference to a wide range of international instruments, as well as ‘matters external to Australia’ (in the case of the DDA and SDA) and ‘matters of international concern’ (in relation to the DDA).[11] These instruments do not specifically address discrimination on the basis of genetic status. However, as noted in Chapter 4, the international community has, in recent years, been turning its attention to this matter in some detail. The UNESCO Universal Declaration on the Human Genome and Human Rights 1997 recognises that:

research on the human genome and the resulting applications open up vast prospects for progress in improving the health of individuals and of humankind as a whole, but … that such research should fully respect human dignity, freedom and human rights, as well as the prohibition of all forms of discrimination based on genetic characteristics.[12]

9.13 The Declaration is not a binding legal instrument but is evidence of growing international concern and an indication of the general approach of the international community in this area. Article 2 of the Declaration states that:

Everyone has a right to respect for their dignity and for their rights regardless of their genetic characteristics. That dignity makes it imperative not to reduce individuals to their genetic characteristics and to respect their uniqueness and diversity.

9.14 Article 6 goes on to declare that:

No one shall be subjected to discrimination based on genetic characteristics that is intended to infringe or has the effect of infringing human rights, fundamental freedoms and human dignity.

9.15 The Council of Europe’s Convention on Human Rights and Biomedicine, which is a legally binding instrument and has been signed and ratified by 15 countries to date, gives a clear indication of the approach adopted in Europe in relation to this issue. Article 11 states that:

Any form of discrimination against a person on grounds of his or her genetic heritage is prohibited.[13]

9.16 It is against this background that the Inquiry was asked to consider whether the protection offered by existing legislation in Australia is adequate.

[1] A Niccol, GATTACA (1997), Columbia Pictures.

[11] These references were included to help ensure the widest possible constitutional basis for this legislation following the reasoning of the High Court in Koowarta v Bjelke-Petersen (1982) 39 ALR 417.

[12]Universal Declaration on the Human Genome and Human Rights, UNESCO, <
ibc/en/genome/projet/>, 19 February 2003.

[13]Convention for the Protection of Human Rights and Dignity of the Human Being with Regard to the Application of Biology and Medicine, opened for signature 4 April 1997, ETS No 164, (entered into force on 1 December 1999).