Submissions and consultations

46.27 The Inquiry received only a small number of submissions regarding the use of genetic information in civil proceedings. The Human Genetics Society of Australasia (HGSA) submitted:

There should be no occasion in civil law where there is a compulsion for DNA testing … In the broad context the adversarial nature of civil proceedings should be reviewed.[25]

46.28 Privacy NSW commented on the different contexts in which genetic information might be used in civil proceedings and the implications of each one:

Distinct approaches may be required in relation to requiring the production of potential evidence which is already held and requiring parties to submit themselves to the process of creating new evidence. Where evidence already exists there is an understandable tendency for privacy to lose out to relevance. However recent legislation expanding the scope of privilege for confidential professional advice and counselling can be seen to reflect the felt need to impose limits on some of the more intrusive effects of the expanded use of the courts’ subpoena powers, in an age where litigation has come to rely on the potential of advanced information processing.

Where evidence will only become available if a party submits to testing other factors need to be considered. Should genetic evidence collected without the knowledge of a party in the course of an independent medical examination be admissible? Should the party who is sought to be tested be involuntarily exposed to the knowledge which testing might disclose? Should courts be entitled to draw adverse inferences from a refusal to submit to voluntary testing?

This is an instance where safeguards relating to genetic information might best be addressed in the context of legislation relating to evidence, rather than in general privacy legislation.[26]

46.29 The Victoria Police suggested the use of expert panels to advise courts regarding evidence based on genetic information, and commented on the potential unfairness in compelling parties to undergo predictive genetic testing:

Consideration should be given to establishing an expert panel to advise a court on issues relating to the impact of genetic information that reveals that a plaintiff has a predisposition to disease or similar affliction … It would seem unreasonable, however to allow one party to demand that another party in a civil matter undergo DNA testing to reveal genetic dispositions when the results would reveal just that, a disposition towards a condition, not a guarantee. The probability of developing the condition may be further complicated by environmental factors and the possibility of medical advances in treatment in the future.[27]

46.30 DP 66 proposed that the National Judicial College of Australia and the Law Council of Australia should ensure the availability of continuing legal education programs for judges and legal practitioners, respectively, in relation to the use in civil proceedings of evidence based on genetic information.[28]

46.31 All of the submissions that addressed this issue supported the need for greater education of judges and the legal profession in relation to this form of evidence.[29]The Centre for Genetics Education suggested that the Human Genetics Commission of Australia (HGCA) should also have a role in providing education in this context.[30] The HGSA suggested the importance of liaison with other genetics education bodies:

In order to ensure that the legal profession [is] appropriately skilled to understand DNA evidence it is important that continuing education is provided to them. It will be important for liaison with the HGSA and other genetics education organisations to ensure that [the] National Judicial College of Australia and the Law Council of Australia access experts from the medical and scientific community to maintain the highest possible standards in this education.[31]

46.32 The Australian Chamber of Commerce and Industry commented that it

would expect that members of the profession would update their knowledge on all issues, which may guide them in dealing with civil proceedings including genetic testing.

A duty already rests with members of the Australian Industrial Relations Commission, under s 20 of the Workplace Relations Act 1996, to keep acquainted with industrial affairs and conditions.[32]

46.33 The Law Institute of Victoria provided a detailed discussion of the potential application of genetic information to personal injury litigation. It commented:

The Law Institute supports the proposal for the National Judicial College of Australia and the Law Council of Australia, or other appropriate bodies, to ensure the availability of relevant continuing legal education programs for judges and legal practitioners in the area of Human Genetic Information.

The use of evidence based on genetic information in civil proceedings is complex, for many of the reasons set out already in relation to the criminal justice system. It is a rapidly developing area, where training and skills may become redundant very quickly. It is unreasonable to expect lay people to be able to assess the probative value and the prejudicial effect of genetic information without suitable and continuing education …[33]

46.34 The Law Institute of Victoria noted that a small number of its members had no objection to the use of genetic testing in civil proceedings. These members considered that genetic testing is simply another forensic tool which, if properly supervised, should be available in the conduct and resolution of litigation.[34]

[25] Human Genetics Society of Australasia, Submission G050, 14 January 2002.

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

[27] Victoria Police, Submission G086, 21 January 2002.

[28]Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposal 39–1.

[29] Australian Privacy Charter Council, Submission G304, 21 January 2003; Human Genetics Society of Australasia, Submission G267, 20 December 2002; Association of Genetic Support of Australasia, Submission G284, 25 December 2002; Department of Human Services South Australia, Submission G288, 23 December 2002; Androgen Insensitivity Syndrome Support Group Australia, Submission G290, 5 January 2003; Law Institute of Victoria, Submission G275, 19 December 2002.

[30] Centre for Genetics Education, Submission G232, 18 December 2002.

[31] Human Genetics Society of Australasia, Submission G267, 20 December 2002.

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

[33] Law Institute of Victoria, Submission G275, 19 December 2002.

[34] Ibid.