37.1 This chapter examines the law and practices that regulate the use of genetic testing for migration decision making under the Migration Act 1958 (Cth) (Migration Act), the Migration Regulations 1994 (Cth) (Migration Regulations) and the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) Procedures Advice Manual.

37.2 Genetic testing has two possible applications in the migration context:

    • kinship testing—to confirm family relationships for certain types of visas and to detect fraud (such as sibling marriages and child trafficking) for the purpose of migration applications; and

    • health testing—to make determinations on the health status of people applying to migrate.

37.3 The Minister for Immigration and Multicultural and Indigenous Affairs has indicated that, in future, genetic testing might also be used (along with other biometric tests) to identify asylum seekers; to ensure that they do not already have protection elsewhere; and to ensure that they have not previously been refused refugee status by another country.[1] The Inquiry understands that legislation for the use of biometric identification tests is currently under development. Early draft policies included the possibility of using genetic tests, but these tests have subsequently been excluded because they are slower than other biometric identification, such as photographs, fingerprints, and height and weight data.[2] If, in the future, DIMIA wished to use genetic tests for identification purposes, it would clearly be desirable to ensure privacy protection for the personal information generated in the process.

37.4 DIMIA is responsible for the use made of genetic test results in migration decision making. DIMIA has developed internal policies and practices on the use of genetic tests for these purposes, which are set out in its Procedures Advice Manual.[3] These policies and practices must not be inconsistent with the Migration Act and the Migration Regulations.[4]

37.5 Genetic test results held by DIMIA are subject to the Privacy Act 1988 (Cth)(Privacy Act) and to the Information Privacy Principles, even where test information is collected by DIMIA officers overseas.[5] Test results held by private testing laboratories are generally subject to the private sector provisions of the Privacy Act and the National Privacy Principles.[6]

37.6 The Disability Discrimination Act 1992 (Cth) (DDA) contains a specific exemption in relation to migration. Section 52 provides that any discriminatory provisions in the Migration Act, any regulation made under the Act, or any act done by a person in relation to the administration of the Act or regulations, are not unlawful under the DDA. As a result, conduct that would otherwise be unlawful under the DDA because it involves discrimination on the basis of genetic status is lawful, provided the conduct complies with the migration legislation.[7] The framework of Australian anti-discrimination law is outlined in Chapter 9.

[1] L Porter, ‘DNA Tests to Screen Migrants’, Sunday Age (Melbourne), 5 May 2002, 3; Minister for Immigration and Multicultural and Indigenous Affairs, Ruddock Announces Tough New Initiatives, Media Release, 13 October 1999.

[2] Department of Immigration and Multicultural and Indigenous Affairs, Consultation, Canberra, 20 November 2002.

[3] Department of Immigration and Multicultural and Indigenous Affairs, Procedures Advice Manual (PAM3) (1994–2002), DIMIA, Canberra Div 1.2 r 1.12, Member of the Family Unit.

[4]Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 419–420.

[5]Privacy Act 1988 (Cth) s 8(1). See generally Ch 7.

[6] Unless the laboratory is a contracted service provider under a Commonwealth contract: Ibid s 6A(2).

[7] See further on the reasoning behind this exemption: Department of Immigration and Multicultural and Indigenous Affairs, Submission G272, 23 December 2002.