Current employment practice

34.3 In Chapter 29 the Inquiry indicated that genetic information is used by some employers in Australia, although it is not possible to determine the extent of that use. Federal anti-discrimination laws generally target the unlawful use of information, but it is also important to ensure that the information itself is protected by ensuring that genetic information is collected, used, stored and disclosed by employers only in appropriate ways.

34.4 In an Information Paper prepared in 1996, the then federal Privacy Commissioner expressed the concern that:

While there is no evidence that trade in such information is being conducted to an appreciable extent in Australia, there may be economic incentives for firms to disclose personal genetic information (with or without the consent of the individual concerned).

Industry associations (or wider employer bodies) could wish to maintain shared lists of employees judged to be genetically unsuitable for employment. Especially if the genetic tests to determine health risk were expensive, this would allow a reduction in the cost per employer.[1]

34.5 The Australian Council of Trade Unions (ACTU) stated in its submission that:

It appears that there is potentially some trade in such information, as was seen last year when a small company established an internet site and invited employers to submit names and details of employees who took, in their view, excessive sick leave. The plan was to charge potential employers a fee for access to the database so obtained. While this project does seem to involve some breaches of the Privacy Act (although there is also an exemption for small business), it does indicate the level of interest in the subject of employee absenteeism. … There can be little doubt that genetic information, if obtainable by employers, would be circulated to potential employers and others, particularly in the private sector.[2]

34.6 One current use of genetic information by employers, which highlights the need for appropriate privacy protection, is the collection of genetic samples from classes of employees for the purposes of identification. As noted in Chapter 29, the Tasmanian police service collects genetic samples from new recruits and in Western Australia the Commissioner of Police has the power to require police officers to provide a genetic sample.[3] The samples are collected for the purpose of eliminating police officers’ genetic material as possible contaminants at crime scenes.

34.7 In the United States, the Department of Defense collects genetic samples from every service member on active duty, or in the reserves, on a mandatory basis for storage in a DNA Repository. The samples are collected for the purpose of identifying the remains of service members. The policy was unsuccessfully challenged in 1995 by two marines who objected to providing a sample on the basis that it was an unreasonable intrusion on their privacy.[4]

34.8 Chapter 29 noted that the Australian Defence Force is considering whether to adopt a similar policy. There are approximately 50,000 permanent defence force personnel in Australia and almost 20,000 reserves who could potentially be required to provide a genetic sample if this policy were implemented in Australia.[5] With such developments on the horizon it is important to ensure that privacy in employment is given adequate protection.

34.9 The broad-based and systematic collection of genetic information from employees is not currently a widespread practice in Australia. However, employers commonly collect a wide range of health information, including some genetic information, from employees for the purposes of pre-employment health screening, occupational health and safety assessment and monitoring, and so on. Dr Roger Magnusson noted in his submission to the Inquiry that:

[T]here is nothing discrete or self-contained about genetic information as a form of health information. As clinical genetics continues to develop, any attempt to compartmentalise genetic health data from other forms of health information will likely become unworkable. This is because—as the clinical implications of the genetic determinants of disease come to be better understood—genetic testing, and the volume of clinical genetic information, will both increase.[6]

34.10 On this basis, and as noted in a range of other contexts in this Report, the collection and use by employers and others of genetic information, as one element of general health information, is likely to become more common in the future.

[1] Federal Privacy Commissioner, The Privacy Implications of Genetic Testing (1996), OFPC, Sydney.

[2] Australian Council of Trade Unions, Submission G037, 14 January 2002.

[3]Criminal Investigation (Identifying People) Act 2002 (WA) s 22.

[4] E Reiter, ‘The Department of Defense DNA Repository: Practical Analysis of the Government’s Interest and the Potential for Genetic Discrimination’ (1999) 47 Buffalo Law Review 975.

[5] Department of Defence, Defence Annual Report 2000–01 (2001), Commonwealth of Australia.

[6] R Magnusson, Submission G039, 10 January 2002.