36.1 Genetic testing provides a powerful tool for identifying or dispelling biological linkages between individuals, that is, in establishing kinship relations. Chapter 35 considered this matter in the context of parentage testing. Chapter 37 considers this matter in the context of establishing kinship relationships for immigration purposes. In Chapters 2 and 3, the Report noted that genetic information not only has a strong familial dimension, but can also contain links beyond the individual to the broader descent group or community. Chapter 3 also contains the Inquiry’s arguments against accepting the notion of genetic essentialism, that is, the reductionist idea that human beings are no more than the sum of their genes.

36.2 In IP 26, the Inquiry noted that it had heard suggestions that:

in future, there may be arguments that genetic information could or should be used as a means of establishing or proving Aboriginal or Torres Strait Islander identity, for the purposes of determining eligibility for membership or voting rights in Indigenous organisations such as the Aboriginal and Torres Strait Islander Commission (ATSIC); for the purposes of determining eligibility for the provision of entitlements and services reserved for Indigenous people (such as Abstudy); or, perhaps, even in the context of native title determination applications. The push to use genetic information could come from either direction: that is, a person asserting Aboriginal identity which has not been accepted by the community, or a government authority might seek to offer genetic evidence in support of this claim; conversely, a party might use (or call for) genetic information to dispute someone else’s entitlements, voting rights, etc.[1]

36.3 However, the Inquiry strongly questioned whether genetic testing is an appropriate means of determining ‘Aboriginality’, even if there is the technical capacity to do so.

To date, the concept has relied upon a social construct of identity: that a person is a member of an Aboriginal community if he or she identifies as a member of the community, and is accepted by that community as one of its members. There is a real question whether there would be any value in insisting upon evidence of a genetic link to that community. This certainly would affect the status of persons adopted into that community, and perhaps persons with mixed Aboriginal and European or Asian (or other) ancestry, among others. As a matter of policy, should genetic science have any role to play in determining personal identity, or in determining racial or ethnic identity and membership?[2]

36.4 The Inquiry has heard from genetic counsellors and others about positive uses of genetic testing technology in Australia to re–establish links between individuals and their Aboriginal family members—links that were severed by adoption, circumstance, or government policies of a previous era that promoted separation and assimilation (the ‘Stolen Generations’).[3] This exercise involves the use of genetic testing or other genetic information to confirm direct kinship relationships. It does not in itself contain any determination of a person’s culture, race or ethnicity—although these things may flow separately from the person’s re-integration into their family and community.

36.5 As detailed below, the Inquiry was correct in foreshadowing that arguments might arise about whether genetic information could or should be used as a means of establishing Aboriginal or Torres Strait Islander identity for the purposes of determining eligibility to vote in Aboriginal and Torres Strait Islander Commission (ATSIC) elections—as occurred in Tasmania in 2002.[4] The Inquiry remains sceptical about whether there is any proper role for genetic testing in determining Aboriginal identity, which is basically a social and cultural matter.

[1] Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, IP 26 (2001), ALRC, Sydney [12.26].

[2] Ibid [12.27].

[3] This has parallels in other parts of the world. Professor Jeong-Ro Yoon of the Korea Advanced Institute of Science and Technology informed the Inquiry that similar efforts have been made to re-unite families separated since the 1950s by the border established between North and South Korea.

[4] R Guilliatt, ‘A Whiter Shade of Black?’, The Good Weekend (The Sydney Morning Herald), 15 June 2002, 18, 22.