Part I. Other Contexts

35. Parentage Testing

35–1 The Commonwealth should enact legislation to provide that DNA parentage testing in Australia is conducted only by laboratories accredited by the National Association of Testing Authorities, Australia (NATA), and only in accordance with NATA accreditation requirements.

35–2 NATA should review its accreditation requirements for DNA parentage testing 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.

35–3 The Commonwealth should review Part IIA of the Family Law Regulations 1984 (Cth) (FL Regulations) to ensure that the requirements for parentage testing meet the highest technical and ethical standards, particularly in relation to consent to testing, protecting the integrity of genetic samples, and providing information as to counselling. In so doing, the Commonwealth should have regard to the accreditation requirements for parentage testing developed by NATA in accordance with Recommendation 35–2.

35–4 The Commonwealth should enact legislation to provide that parentage testing reports are not admissible in proceedings under the Family Law Act 1975 (Cth) (FLA) unless the testing complies with the relevant provisions of theFL Regulations. The States and Territories should consider enacting parallel legislation to ensure that parentage testing reports are not admissible in state or territory proceedings unless the testing complies with NATA accreditation requirements.

35–5 NATA should develop accreditation requirements that require laboratories to be satisfied that the sample of each adult donor has been supplied for parentage testing with his or her consent. Provision should also be made for obtaining consent from the deceased’s next-of-kin or other authorised person in relation to a sample from a deceased person.

35–6 The Commonwealth should amend the FL Regulations to insert a prescribed consent form in relation to parentage testing for each adult donor indicating that the sample has been supplied with his or her consent. Provision should also be made for obtaining consent from the deceased’s next-of-kin or other authorised person in relation to a sample from a deceased person.

35–7 The Commonwealth should enact legislation to provide that where a child: (a) has attained 12 years of age; and (b) has sufficient maturity to make a free and informed decision, testing of the child’s genetic sample can be performed only with the written consent of the child or pursuant to a court order. The child’s maturity, and the voluntariness of the child’s consent, should be assessed by an independent professional, being a family and child counsellor as defined under the FLA, a social worker or a psychologist.

35–8 NATA should develop accreditation requirements to ensure that laboratories conducting DNA parentage tests obtain the written consent of each mature child in accordance with Recommendation35–7.

35–9 The Commonwealth should enact legislation to provide that where a child is:

1. under 12 years of age; or
2. 12 years of age or over but less than 18 years of age and does not have sufficient maturity to make a free and informed decision whether to submit a genetic sample for parentage testing;

such testing can be performed only with the written consent of all persons with parental responsibility for the child, or pursuant to a court order. Where one person with parental responsibility withholds consent or cannot reasonably be contacted, a court should be authorised to make a decision on behalf of the child.

35–10 NATA should develop accreditation requirements to ensure that laboratories conducting DNA parentage tests obtain, in relation to each child’s sample, the written consent of all persons with parental responsibility for the child, in accordance with Recommendation 35–9.

35–11 NATA should develop accreditation requirements that require laboratories performing DNA parentage tests to inform all persons who provide genetic samples of the availability of counselling, both at the time the samples are submitted for testing and at the time the results are available.

35–12 NATA should extend its accreditation program to cover DNA kinship testing other than parentage testing (for example, sibling testing). NATA should apply the requirements for parentage testing, as amended by the Recommendations in this Report, to other kinship testing, in so far as they are applicable.

37. Immigration

37–1 The Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) should review its policies and procedures on kinship testing. In particular, the revised policies should ensure that:

1. visa applicants are advised at an early stage in the application process that they may be asked to undergo genetic testing to prove an asserted kinship relationship;
2. where DIMIA doubts the veracity of documentary evidence submitted to establish the existence of a kinship relationship, visa applicants should be provided with adequate reasons and given an opportunity to address the doubts by undergoing genetic testing or providing other evidence;
3. information in community languages is disseminated to visa applicants about the potential implications of the test and the desirability of seeking counselling;
4. in relation to offshore testing, the panel doctor who takes a sample for kinship testing offers the applicant counselling, or information about the availability of counselling;
5. DIMIA has adequate procedures for preventing identity fraud; and
6. consent is obtained for the disclosure of genetic test results to third parties, including sponsors.

37–2 In implementing Recommendation 37–1, policies and procedures for conducting genetic kinship testing for the purpose of migration decision making should be formalised through a Minister’s direction made under s 499 of the Migration Act 1958 (Cth), amendments to the Procedures Advice Manual, or both, as appropriate.

37–3 The Department of Health and Ageing, in consultation with DIMIA and the Human Genetics Commission of Australia, 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. These policies should include detailed guidelines for Medical Officers of the Commonwealth on the use of genetic information.

38. Sport

38–1 The Australian Sports Commission (ASC) should monitor the use of genetic testing and genetic information for identifying or selecting athletes with a view to developing policies and guidelines for sports organisations and athletes. The policies and guidelines should be developed in consultation with the Human Genetics Commission of Australia (HGCA), the Human Rights and Equal Opportunity Commission (HREOC), the Office of the Federal Privacy Commissioner (OFPC), and other stakeholders.

38–2 The ASC should develop policies and guidelines for sports organisations and athletes on the use of genetic information in relation to predisposition to sports-related illness or injury. The policies and guidelines should be deve-loped in consultation with the HGCA, HREOC, OFPC and other stakeholders.