Genetic testing provides a powerful tool for identifying or dispelling biological linkages between individuals—that is, in establishing kinship relations. Chapter 35 considers 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 notes 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 36 considers some of these sensitive questions of the relationship between kinship and identity. Chapter 38 takes a different tangent, examining the potential use of genetic testing and information in sport.
Chapter 35 discusses the use of DNA testing for the purpose of determining parentage or kinship. This may arise in a variety of contexts—most commonly in family law and child support proceedings, but also in relation to succession to estates, identification of human remains, genealogical curiosity, and so on.
The Inquiry received a large number of submissions and representations from various support groups, laboratories conducting parentage testing, and private individuals—both in support of, and sharply critical of, aspects of the current regulatory framework and industry practice. In particular, many submissions were forwarded by ‘men’s rights’ or ‘father’s rights’ groups. Concerns focused on access to parentage testing; the provision of what is known as ‘motherless testing’; consent and decision making in relation to testing (in particular on behalf of children); the provision of associated counselling and support; and the need to protect against fraudulent practices both in relation to alleged ‘paternity fraud’ and fraudulent parentage testing.
The Inquiry recognises the sensitivities in this area, and the need for greater regulation of parentage testing in the public interest. The Inquiry recommends that DNA parentage testing should be conducted only by NATA-accredited laboratories, operating in accordance with the specific accreditation requirements in this area. The Inquiry also recommends that NATA should review these accreditation requirements to ensure that they meet the highest technical and ethical standards, particularly in relation to consent to testing, protecting the integrity of genetic samples, and providing information about counselling.
The Inquiry recommends that parentage testing reports should be inadmissible in proceedings under the Family Law Act 1975 (Cth) unless the testing complies with the Family Law Regulations 1984 (Cth). Other forms of kinship testing, such as sibship testing, are currently unregulated, and the Inquiry recommends that the NATA accreditation program be extended to these forms of testing.
One of the central concerns of the Inquiry was to ensure that the personal dignity and autonomy of the child not be overlooked in any argument about parental rights. After considerable thought, the Inquiry recommends a two-tiered system for regulating consent for children’s participation in parentage testing. A child over the age of 12 years, who is independently assessed as having sufficient maturity to do so, should be permitted to decide whether to give or withhold consent.
While the Inquiry received a number of submissions supporting continued access to ‘motherless’ testing, the Inquiry has not found these arguments compelling. Therefore, for a child under 12 years, or who is over that age but lacks sufficient maturity, the Inquiry recommends that all those with parental responsibility for the child must make the decision on behalf of the child. In those cases in which agreement cannot be reached—for example, because a mature child or a person with parental responsibility withholds consent or is unavailable—a court may order the child’s participation, after taking the child’s interests into account.
Finally, the Inquiry recommends that NATA should develop accreditation requirements requiring laboratories to inform all persons who provide genetic samples for parentage testing of the availability of counselling both at the time the samples are submitted and at the time the results are made available.
Chapter 36 considers issues of kinship and identity, and discusses the use of genetic testing and information in Australia and overseas, in efforts to establish (or refute) membership of particular communities. The Inquiry was correct in forecasting, in earlier consultation papers, that arguments could 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. However, the Inquiry remains deeply sceptical about whether there is any proper role for genetic testing in determining Aboriginal identity, which is primarily a social and cultural construct. Accordingly, these are matters to be determined by Aboriginal and Torres Strait Islander people themselves, working through their own communities, institutions and consultation processes. The chapter provides substantial research and commentary from Australia and overseas intended to assist any further consideration of these issues, as well as to promote general community understanding of these sensitive matters.
Chapter 37 examines the law and practices that regulate the use of genetic testing for migration decision making under the Migration Act 1958 (Cth) and associated regulations. Kinship testing may be used in migration decision making to confirm family relationships for certain types of visas or to detect possible fraud (such as sibling marriages and child trafficking) in migration applications.
The use of genetic testing by immigration authorities is primarily regulated by internal policy guidelines, rather than by legislation or regulations. The Inquiry recommends that the use of genetic testing in migration decision making should be subject to more formal control in order to ensure the protection of privacy and personal autonomy.
The Inquiry recommends that the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) review its policies and procedures regarding the provision of information to migration applicants about kinship testing. In particular, these revised policies should ensure that visa applicants are: informed early in the application process that they may be requested to undergo a genetic kinship test; provided with DIMIA’s reasons for requesting the applicant undergo a genetic test and given an opportunity to address the doubts through other evidence; and provided with inform-ation about the implications of testing and the desirability of seeking counselling.
As a general matter, health status is a relevant consideration in migration decision making. Genetic testing has not been a feature of health assessment to date. However, in common with other areas under consideration by this Inquiry, it is not difficult to foresee that this will change in future as genetic testing services increase in availability and reliability, and decrease in unit cost. The Inquiry recommends that the Department of Health and Ageing, in consultation with DIMIA and the HGCA, should develop policies on genetic tests and the use of genetic information (including family medical history) for the purpose of assessing the health requirement under migration legislation.
Chapter 38 examines the use of genetic information in sport—in particular, to identify potential elite athletes carrying ‘performance’ genes and individuals with a genetic predisposition to sports-related injury. While the use of genetic information in this way is still largely experimental, the Inquiry recommends that the Australian Sports Commission develop policies and guidelines for the use of sporting organisations and athletes.