Submissions and consultations

30.42 A number of individuals and organisations took the view that employers should not be able to request or use genetic information for any purpose.[29] This was generally put on the basis that the information is rarely relevant, that it is complex and subject to misinterpretation, and that it is subject to misuse by employers seeking to advance their commercial interests. Some submissions supported a partial prohibition, subject to limited occupational health and safety exceptions.[30]

30.43 However, the majority of submissions received in relation to this issue supported the Inquiry’s proposal. There was significant support for the proposition that an employer should be able to ask for and use genetic information in limited circumstances, for example, where the information is reasonably required to:

    • determine whether a person is able to perform the inherent requirements of a job;

    • decide what reasonable accommodation might be necessary to enable a person to perform the inherent requirements of a job; or

    • promote occupational health and safety.[31]

30.44 A number of submissions expressed the view that the circumstances in which an employer would be able to justify the collection of genetic information consistently with anti-discrimination and occupational health and safety regimes is likely to be extremely limited. The Australian Medical Association (AMA), for example, commented:

The AMA would have serious concerns in allowing employers to collect and use genetic information in relation to their employees. We would find it very difficult for an employer to justify requesting or requiring genetic test information in order to ensure that the individual is able to perform the inherent requirements of the job.[32]

30.45 The Australian Chamber of Commerce and Industry (ACCI) did not support further regulation at this stage and submitted that:

There are three necessary preconditions for regulatory intervention … with respect to the employment dimensions of the use of human genetic information. They are:

    • Demonstrated need for regulation;

    • Evidence of regulatory failure, or a lack of appropriate existing regulation;

    • Evidence that the benefits of further regulation outweigh the potential costs to employers and employees.

30.46 ACCI went on to express the view that:

There is also the potential for premature or ill-judged regulation to have extremely negative effects in terms of inhibiting employers from hiring or making decisions which are essential with respect to managing their business, or of provoking a reaction and hesitation from employers to avail themselves of emerging technology which can be of assistance to employers, employees and the community.[33]

30.47 In its submission to the Inquiry, Privacy NSW set out some of the arguments in support of allowing employers to use genetic testing and information. They included the following:

Within a free market economy it is an article of faith that both firms and individuals should be able to seek and use information that (they believe) will make them economically better off. It follows then that firms should be entitled to use personal information to minimise projected risk and maximise expected profits, and should be entitled to demand this information as one condition of a consensual transaction.[34]

30.48 However, concern has been expressed about employers’ ability to interpret test results accurately and objectively, given the considerable uncertainty about the quantification of risks and how that information should be evaluated.[35] It was suggested in a number of submissions that, if employers are able to request or require genetic information, these requests and the interpretation of test results should be subject to independent oversight and that authoritative guidelines should be developed.[36] The difficulties associated with the interpretation of genetic tests are considered in more detail in Chapter 3.

[29] Androgen Insensitivity Syndrome Support Group Australia, Submission G106, 26 February 2002; P Henman, Submission G055, 15 January 2002; Human Genetics Society of Australasia, Submission G050, 14 January 2002.

[30] Genetic Support Council WA, Submission G243, 19 December 2002; Australian Council of Trade Unions, Submission G278, 20 December 2002; Department of Human Services South Australia, Submission G288, 23 December 2002.

[31] Institute of Actuaries of Australia, Submission G105, 7 March 2002; Centre for Law and Genetics, Submission G048, 14 January 2002; Genetic Support Council WA, Submission G112, 13 March 2002; Anti-Discrimination Board of NSW, Submission G157, 1 May 2002.

[32] Australian Medical Association, Submission G212, 29 November 2002.

[33] Australian Chamber of Commerce and Industry, Submission G308, 24 January 2003.

[34] Office of the Privacy Commissioner (NSW), Submission G118, 18 March 2002.

[35] M Otlowski, Implications of Genetic Testing for Australian Employment Law and Practice (2001) Centre for Law and Genetics, Hobart, 4.

[36] Centre for Law and Genetics, Submission G048, 14 January 2002; National Council of Women Australia, Submission G095, 31 January 2002; Anti-Discrimination Board of NSW, Submission G157, 1 May 2002.