The elements of the offence

12.47 It is easier to recommend the creation of a new criminal offence in principle than to determine how it should be drafted and what exceptions should be recognised. These difficulties were noted by the HGC, which observed in respect of its recommendation that:

[t]here are a number of aspects that merit further close examination. For example, it will be important to ensure that any new offence does not interfere with appropriate and lawful non-consensual use of genetic material or genetic information by the police or courts. We would also not wish to see any new offence that might inhibit the use of genetic testing in medical and research settings.^[50]

12.48 The Inquiry’s views on the approach that should be taken are discussed below. The elements of the new criminal offence which need to be determined are: what constitutes the offending conduct, who are the potential offenders, what should be the required fault element of the offence, what exceptions should be recognised, and what penalties should apply?

The offending conduct

12.49 The offending conduct (the actus reus) might encompass the taking of the sample or deceit in the taking of the sample, the submitting of the sample for testing, testing the sample, using or disclosing the results of testing, or a combination of these acts.

12.50 The New South Wales Legal Aid Commission submitted that

the conduct constituting the offence should be the taking of the sample for the purpose of genetic testing, or submitting the sample for testing without consent, rather than improper use or disclosure of information obtained from the sample.^[51]

12.51 The Department of Human Services South Australia stated that the offending conduct should specifically include the ‘publication’ or ‘use’ of an identified individual’s results without consent from the individual from whom the sample was obtained.^[52]

12.52 The Inquiry’s view is that the offence should focus on submitting the sample for testing and testing the sample. ‘Genetic testing’ will need to be defined for these purposes. Criminalising the taking of the sample is inappropriate given the ubiquity of genetic samples. The harm is not simply in the taking of the sample (leaving aside situations where there is a battery). For example, if an individual chooses to collect a lock of hair found on a hairdresser’s floor, it is difficult to argue that any more harm is done to the person to whom the sample relates than taking a photograph of them without their consent—which is not an offence unless followed by an unlawful use.^[53]

12.53 It has been suggested that the focus of regulation should be on the unauthorised uses of the information derived from testing, especially for financial advantage.^[54] However, there would be significant difficulties involved in defining the unauthorised uses, given the range of information that may be derived from samples and the spectrum of possible uses. Some of these uses would, in any case, be proscribed by existing law, such as where the publication of genetic information is defamatory.

12.54 The Inquiry considers that harm is done to individuals who are tested without their knowledge and consent, even if the testing is done only to satisfy another individual’s curiosity and there is no further use of the information obtained. Once the information comes into existence, the potential for improper use and disclosure will exist. By way of analogy, it is an offence to ‘hack’ into another person’s computer,^[55] or to ‘tap’ their telephone,^[56] without lawful authority, even if no interesting information is obtained in the process.

The offenders

12.55 The primary targets of the criminal offence should be individuals or bodies corporate who submit samples for testing, with the requisite fault element. It may also be desirable to target individuals or bodies corporate who conduct the testing, such as laboratories and their employees, agents or officers. Where the offender is a body corporate, the physical elements of the offence will be attributed to the body corporate where committed by an employee, agent or officer acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority.^[57]

The fault element

12.56 The concept of criminality involves the notion of individual culpability.^[58] Consistently with the approach taken to the drafting of other criminal offences such as stalking, the fault elements should be those of intention or reckless indifference. The Inquiry does not intend that mere error or inadvertence in the conduct of genetic testing should be criminalised.

12.57 In relation to individuals or bodies corporate who submit samples for testing, the Inquiry suggests that the fault elements of the offence should be that the offending individual or body corporate^[59] intends that the sample be tested and knows that the individual from whom the sample has been taken has not consented to testing or is reckless as to that fact,^[60] and there is no lawful authority for the test.

12.58 In relation to laboratories, their employees, agents or officers, the fault elements should be that the offending body corporate or individual knows that the individual from whom the sample has been taken has not consented to testing, or is reckless as to that fact, and there is no lawful authority for the test.

12.59 In this context, the Cancer Council of Victoria Cancer Genetics Advisory Committee noted that human errors occur even in well—run and reputable laboratories and submitted that:

It would be an injustice if a laboratory scientist or director were prosecuted for unknowingly performing a genetic test without first checking that it was accompanied by a signed consent form. The intention of such legislation would be to stop reckless testing and not to penalise individuals or laboratories for occasional errors.^[61]

12.60 Genetic Technologies recognised that there may be a need for criminal sanctions to protect individuals from non-consensual testing.^[62] However, it submitted that laboratories should not be subject to offence provisions.

It is our view that it is the individual commissioning the test who takes responsibility for it. It would be significantly detrimental to the parentage testing industry to make a laboratory liable to complicity in the commission of a crime. Parentage testing is a private matter. Furthermore, there will always be means of obtaining samples in a non-consensual way for those determined to do so.^[63]

12.61 The Inquiry disagrees with this view, in so far as it implies that laboratories have no role to play in ensuring that appropriate consent is obtained. As discussed in Chapter 11, laboratory accreditation standards relating to clinical genetic testing already place some obligations on laboratories in this regard. The Inquiry has recommended that responsible bodies should continue to develop accreditation standards relating to ethical concerns.

12.62 In the Inquiry’s view, to require that laboratories, and those that manage them, not be ‘recklessly indifferent’ as to the circumstances in which they receive samples for testing does not impose an unduly onerous obligation. The standard of scrutiny expected of laboratories will depend on the source of the request for testing. For example, where a laboratory receives a request for a routine medical test from a medical practitioner, the laboratory need not ‘look behind’ the request. More scrutiny may be needed where testing, such as parentage testing, is provided directly to the public. In any case, laboratories that take appropriate steps to ensure that relevant consent forms have been signed by the appropriate persons (in circumstances that raise no suspicion about their validity) would not commit any offence.

Defining the ambit of the offence

12.63 In framing the new offence, care will need to be taken to ensure that acceptable genetic testing practices do not fall within its ambit. Consideration will need to be given to what constitutes ‘consent’. For example, where the sample has been taken from a child, consent may need to be framed in terms of the proposals set out in Chapter 35, which deal with consent to the collection and testing of a child’s genetic sample for the purpose of determining parentage. Where samples are being tested for medical research purposes, it should be sufficient that consent has been waived by a Human Research Ethics Committee.^[64]

12.64 Legitimate genetic testing practices that should not be caught by the new criminal offence include genetic testing:

• ordered by medical practitioners in order to assist in the treatment of patients (for example, relying on implied consent);
• for medical research purposes, especially where a Human Research Ethics Committee, in granting ethical approval for a research proposal, has waived consent requirements (see Chapter 15);
• for parentage testing involving children—with appropriate parental consent or pursuant to a court order (see Chapter 35);
• for law enforcement purposes pursuant to legislative authority or a court order (see Chapter 39).

12.65 In this context, the Human Genetics Society of Australasia noted that, while it supported legal sanctions in relation to non-consensual paternity testing, it was very concerned about any suggestion that there might be legal sanctions for non-consensual genetic testing carried out by a doctor in the course of health care.

Not only is it difficult to define what is, and what is not, genetic testing but there are also various forms of consent and various settings in which genetic testing is carried out. While accepting the need for consent to genetic testing as a general principle, the HGSA considers that consent to medical genetic testing should not be brought within the scope of the criminal law.^[65]

12.66 The Inquiry considers that the new criminal offence should incorporate reference to a ‘lawful authority’ defence. The Criminal Code Act 1995 (Cth) provides that a person is not criminally responsible for an offence if the conduct constituting the offence is justified or excused by or under a law.^[66]

12.67 Other legislation may provide a useful guide to exceptions that may be required. For example, the Victorian anti-stalking provision does not apply to conduct engaged in by a person performing official duties for the purposes of the enforcement of the criminal law, the administration of any Act, the enforcement of a law imposing a pecuniary penalty, the execution of a warrant, or the protection of the public revenue.^[67]

12.68 Similarly, the use and disclosure principle in the Privacy Act (NPP 2) contains exceptions relating to use and disclosure for research relevant to public health or public safety; serious threats to an individual’s life, health or safety; serious threats to public health or public safety; use by law enforcement agencies in investigation, prosecution and court proceedings; and other uses and disclosures ‘required or authorised by or under other law’.

The penalty

12.69 The Inquiry has no concluded view on the range or level of penalty most appropriate for breach of the proposed new criminal offence. However, the available penalties should reflect the wide spectrum of circumstances in which non-consensual genetic testing may take place. The penalty where a media organisation uses the test results for financial benefit should differ from that imposed on an individual who is concerned about the health of a relative. The penalties for testing for entirely prurient reasons should differ from those where there is some valid reason for wanting to obtain a genetic test result.

12.70 By way of comparison with broadly analogous offences in New South Wales, the maximum penalties for:

• unauthorised access to data held in computers is two years imprisonment;^[68]
• peeping or prying is three months imprisonment or a fine of two penalty units (currently $220);^[69] and
• stalking or intimidation is five years or a fine of 50 penalty units (currently $5500).^[70]

12.71 The Department of Health Western Australia, which gave in principle support for the development of a new model criminal offence, considered that it may be sufficient to impose pecuniary penalties and to provide for courts to issue injunctions restraining repetition.^[71]

12.72 The possible application of proceeds of crime legislation to money or other property derived from the commission of the new criminal offence should also be considered.^[72] Such legislation may, for example, allow profits obtained by a ‘genetic trophy hunter’ to be confiscated.

12.73 The Inquiry considers that the Standing Committee of Attorneys-General is the appropriate body to initiate, through an appropriate committee,^[73] the drafting of a model criminal offence relating to non-consensual genetic testing, intended for enactment into Commonwealth, state and territory law.^[74]