Medical records

9.95 The HREOC Act, as well as the Tasmanian and the Northern Territory anti-discrimination legislation, includes provisions relating to discrimination on the basis of medical records. Under the HREOC Act it is possible to lodge a complaint of discrimination in employment on the basis of a distinction, exclusion or preference made on the ground of a medical record. As noted above, the complaint procedures under these provisions do not give rise to a legally enforceable remedy. Section 16 of the Tasmanian anti-discrimination legislation and s 19 of the Northern Territory legislation provide that a person must not discriminate on the basis of an irrelevant medical record.^[69] DP 66 sought feedback on whether the DDA and other relevant legislation should be amended to include discrimination on the ground of medical record.

Submissions and consultations

9.96 A number of submissions expressed support for including medical records as a further ground of discrimination in the DDA.^[70] No examples were provided, however, of situations in which this would extend the protection offered by the existing provisions.

9.97 The Anti-Discrimination Board of NSW, on the other hand, expressed the view that:

The ADB does not consider that the prohibition in relation to discrimination on the ground of ‘irrelevant medical record’ in Tasmanian and Northern Territory anti-discrimination legislation adds anything additional to that which is already covered by the prohibition of discrimination on the ground of disability, combined with adequate provisions in relation to unlawful questions and requests for information and privacy protection in relation to health information.^[71]

9.98 In consultation, the Attorney-General’s Department noted that ‘medical record’ would sit oddly with the other elements of the definition of disability and that an amendment of this kind would move the focus of the legislation away from the attributes of the individual to the form in which those attributes are recorded.^[72] Several submissions expressed the view that the legislation should not be amended if there was no demonstrated need.^[73]

Inquiry’s views

9.99 The Inquiry has not been able to identify any situations in which discrimination on the ground of a person’s genetic medical record would not be covered by the existing provisions in relation to discrimination on the ground of disability, amended in accordance with the recommendations in this Report. For example, discrimination on the ground of an accurate medical record of a genetic condition or predisposition would be covered by discrimination on the ground of existing or possible future disability. Discrimination on the ground of an incorrect medical record would be covered by imputed disability. On the basis that such an amendment would not extend the protection provided by existing anti-discrimination legislation, the Inquiry does not recommend that this amendment be made.