Options for regulating non-consensual genetic testing

12.27 If unauthorised non-consensual genetic testing is to be proscribed by law, how should the practice be regulated? In particular, should the relevant conduct be subject to criminal or civil remedies,[21] or both (as is the case, for example, with battery)?[22]

12.28 Decisions about the form and level of penalty to be applied to proscribed conduct should depend on the purpose of the penalty, as well as the area of activity, the type of wrongdoer and the nature of the wrongdoing. The purposes of penalties may include punishment or retribution, social condemnation, deterrence, protection of third parties or the public at large, and payment of reparation or compensation.[23]

12.29 The main purposes of criminal law are traditionally considered to be deterrence and punishment. The aim of social condemnation, or stigma, traditionally applies more to criminal than civil penalties.[24] Civil sanctions generally have the practical function of discouraging undesirable behaviour by imposing a financial cost on it,[25] such as by imposing an obligation on a wrongdoer to compensate the injured party for loss.

12.30 The criminal law covers a vast array of activities and offences. These range from murder and assault to offensive language and jay-walking. In the federal sphere, criminal law includes customs infringements and breaches of consumer protection laws.[26] Criminal law is not only concerned with serious offences. There are, for example, scores of low-level record-keeping and information offences, which are treated criminally in many regulatory regimes.[27] In fact, outside areas of regulatory law it is relatively rare for the conduct of individuals to be made subject to non-criminal penalties.[28]

12.31 One guide to the appropriateness, or otherwise, of subjecting non-consensual genetic testing to criminal penalty is the criminalisation of analogous conduct. While it is difficult to identify close analogies, existing crimes legislation (in addition to stealing offences) contains offences relating to:

    • unauthorised supply of forensic material for a DNA database;[29]

    • unauthorised access to data held in computers;[30]

    • ‘peeping or prying’ near buildings;[31]

    • stalking or intimidation;[32] and

    • interference with human remains.[33]

12.32 Analogous offences are also contained in other legislation. For example there are offences in the Human Tissue Acts concerning removing tissue from persons, living or dead, without consent or authority.[34] The unauthorised disclosure of health information obtained by public sector health administrators and employees in the course of their employment is also subject to criminal penalty.[35]

12.33 Alternatively, new civil remedies might be created to deter non-consensual genetic testing. This approach could be taken instead of, or in addition to, the creation of any new criminal offence. One such approach would be to amend the Privacy Act to ensure that the conduct involved in non-consensual genetic testing constitutes an interference with privacy in a broader range of circumstances, enabling the individuals concerned to seek compensation under the Act. This could be backed up by legislation preventing the use of non-consensual genetic test results in court proceedings.[36]

[21] A ‘civil penalty’ is one imposed by courts applying civil rather than criminal court processes: Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report 95 (2002), ALRC, Sydney [2.45].

[22] A battery may constitute both a tort or civil wrong (trespass to the person) and a criminal offence (assault).

[23] Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report 95 (2002), ALRC, Sydney [3.5].

[24] Ibid [3.5]–[3.6].

[25] See J Coffee, ‘Paradigms Lost; The Blurring of the Criminal and Civil Law Models — And What Can Be Done about It?’ (1992) 101 Yale Law Journal 1875.

[26] See D Brown and others, Criminal Laws: Materials and Commentary on Criminal Laws and Process of New South Wales (2001) The Federation Press, Sydney.

[27] A Ashworth, ‘Is the Criminal Law a Lost Cause?’ (2000) 116 Law Quarterly Review 225, 243.

[28] Regulatory law concerns the way that governments regulate private sector activity or otherwise intervene in the operation of different areas of society outside of traditional criminal law. Criminal regulatory offences include a number of traditional crimes such as fraud or obtaining benefits by deception, but also offences that are not so obviously criminal in their nature, such as failing to provide certain types of information or failing to meet a certain licensing standard: Australian Law Reform Commission, Principled Regulation: Federal Civil and Administrative Penalties in Australia, Report 95 (2002), ALRC, Sydney [2.8].

[29]Crimes Act 1914 (Cth) s 23YDAD.

[30]Crimes Act 1900 (NSW) s 308H; Summary Offences Act 1966 (Vic) s 9A.

[31]Crimes Act 1900 (NSW) s 547C.

[32] Ibid s 562AB; Crimes Act 1958 (Vic) s 21A.

[33] Crimes Act 1900 (NSW) s 81C.

[34] See eg Human Tissue Act 1983 (NSW) s 36 and cognate legislation in other jurisdictions.

[35] See eg Health Administration Act 1982 (NSW) s 22; Health Services Act 1988 (Vic) s 141.

[36] L Skene, Consultation, Sydney, 27 June 2002.