Inquiry’s views

30.49 From the information provided to this Inquiry it appears that the use of genetic information in the Australian workplace is not widespread. However, complaints of discrimination are beginning to emerge and it is likely that the number of formal complaints received by agencies such as HREOC does not represent the number of disputes or grievances in the community at large. The situation in the United States demonstrates that a shift in economic incentives can encourage more widespread use of genetic information in the workplace. It is probable that, as tests become cheaper and more reliable, Australian employers will seek to make more use of them to attempt to ensure a healthier workforce, lower risk and higher productivity. These changes may occur quickly.

30.50 The Androgen Insensitivity Syndrome Support Group made the following point in its submission to the Inquiry:

Without doubt, the underlying principle of equal opportunity and anti-discrimination legislation is the Australian ideal of a fair go for all. In practice, it is most often the case that equal opportunity legislation is one step behind rapid societal attitude changes. An inevitable by-product of this ‘legislation lag’ is that some person often has to suffer damage before the law recognises the need for change.^[37]

30.51 For the reason articulated in this submission, it is important to ensure that regulatory structures, and the anti-discrimination framework in particular, are adequate to protect people from inappropriate use of genetic information in employment, both now and in the future. Individuals should not have to suffer harm before the law recognises the need for change. This Inquiry provides an opportunity to develop appropriate policies in a dispassionate environment, free from a sense of crisis or urgency that might attend belated attention to these issues. The Inquiry’s recommendations do not involve the imposition of a new regulatory structure; rather, they build on existing legal regimes and seek to improve existing laws and practices.

30.52 On the basis of the evidence available, the Inquiry is of the view that a complete prohibition on the use of genetic information in employment is not justified. As knowledge and understanding of genetic information increases, there will be scope for applying genetic information in employment in ways that draw an appropriate balance between the interests of employers, employees and the public at large. In the Inquiry’s view, a more productive approach is to examine carefully the legal framework within which such information may be collected and used, and to ensure that the appropriate safeguards are in place to guide collection and use.

30.53 In the following chapters, the Inquiry makes a range of recommendations for amendments to anti-discrimination, occupational health and safety, and privacy laws to ensure that this balance of interests is achieved. In particular, in Chapter 31 the Inquiry recommends that the DDA should be amended to make it clear that an employer is prohibited from requesting or requiring genetic information from a job applicant or employee unless the information is reasonably required for a purpose that does not involve unlawful discrimination, such as ensuring that a person is able to perform the inherent requirements of the job. As noted above, this may include some requests for genetic information in relation to occupational health and safety issues. The recommendations in Chapter 32 seek to ensure that, in the occupational health and safety context, genetic information is used only in limited circumstances and is subject to the oversight of the Human Genetics Commission of Australia.

30.54 In order to affirm the Inquiry’s belief that existing legislative frameworks, once adapted, are appropriate vehicles for finding the right balance of interests in the context of employment, the Inquiry recommends that employers should not collect or use genetic information in relation to job applicants or employees, except in the limited circumstances where this is consistent with privacy, anti-discrimination, and occupational health and safety legislation, as amended in accordance with the Recommendations in this Report.