Genetic information: submission to ALRC inquiry
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Protection of human genetic
information: Submission in response to ALRC Discussion Paper 66
Professor David Weisbrot
President
Australian Law Reform Commission
GPO Box 3708
Sydney NSW 2001
Dear Professor Weisbrot
I am pleased to enclose a submission in response to the ALRC's Discussion
Paper DP66 on protection of human genetic information.
If further discussions on issues raised in this submission would be useful
may I suggest Mr David Mason, Director of this Commission's Disability
Rights policy unit, as first point of contact, by phone on 02 9284 9724
or by email on david.mason@humanrights.gov.au .
Yours sincerely
Dr Sev Ozdowski OAM
Acting Disability Discrimination Commissioner
16 January 2003
Submission in response to Discussion Paper DP66
As the Inquiry would be aware the Human Rights and Equal Opportunity
Commission (HREOC) has been consulted throughout the conduct of this reference.
The Aboriginal and Torres Strait Islander Social Justice Commissioner
made a submission in response to the earlier Issues Paper for this inquiry.
Most HREOC input to this point, however, has been through less formal
discussions and communication between officers.
With the release of the Discussion Paper containing specific proposals
it appears an appropriate point to put responses more publicly on the
record, in particular regarding disability discrimination issues, through
a formal submission.
In general this submission endorses the approaches indicated by proposals
in the Discussion Paper, and seeks to add suggestions for their implementation.
This endorsement is made subject to the need for further consultation
in some respects.
The following comments in this submission are organised by reference
to proposals and questions in the Discussion Paper.
Anti-Discrimination Law
Proposal 8-1. Discrimination on the ground of genetic status should
continue to be dealt with under the framework of existing federal, state
and territory anti-discrimination laws, subject to the specific proposals
for legislative amendments identified in this Discussion Paper.
Response:
I endorse the approach of confirming the applicability, and where necessary
improving the operation, of existing mechanisms for dealing with discrimination
- and in particular the Disability Discrimination Act (DDA) and equivalent
State and Territory provisions - rather than introducing specific legislation
to deal with genetic discrimination alone.
This is a matter of effective use of resources and experience in use
of existing mechanisms, and also of avoiding giving unduly exceptional
status or priority to genetic related discrimination at the expense of
other discrimination issues.
Developments regarding genetic information are likely to expand the range
of situations where people face discrimination or potential discrimination
on the basis that they have or are regarded as having a disability, or
may develop a disability in future.
Accordingly genetic discrimination may be an issue of concern for many
members of the community who have not seen themselves as affected or potentially
affected by disability discrimination (notwithstanding the substantial
proportion of the community who do have a disability and the potential
for anyone to acquire or be affected by disability during life).
However, for many members of the Australian community who have a disability
which is obvious and present, rather than potential and hidden at the
genetic level, issues of being treated as a member of an "underclass"
as a result of departure from perceived standards of normality are a matter
of daily realities, rather than a matter of potential and future threat.
While some issues presented by genetic discrimination are novel, many
are not, and are best approached by ensuring that existing mechanisms
for dealing with disability discrimination are clearly applicable.
Question 8-1. Should the name of the Disability Discrimination Act 1992
(Cth) (DDA) be amended to the Disability and Genetic Discrimination Act
1992 (Cth)? Should the objects of the DDA be amended to clarify that discrimination
on the basis of genetic status falls within the Act?
Response:
As noted, I supports the objective of making clearer that the DDA covers
genetic discrimination.
In addition to changes to substantive provisions discussed below, I would
support revisiting of the objects clause of the legislation in this context.
I would be interested to see community views regarding a change to the
short title of the legislation, including those which may emerge from
other submissions.
Such a change would have the advantage of confirming in a simple and
easily stated way the applicability of the legislation to genetic discrimination
issues for the benefit of people who would not readily identify with a
"disability" label.
However, in addition to genetic discrimination issues there are also
numerous other issues where, although the DDA applies in law, the disability
label does not fit as a matter of common perception, such that people
affected by discrimination may fail to take advantage of their rights
and people with relevant responsibilities may fail to take the applicability
of the legislation sufficiently into account.
- While some people affected by mental illness (directly, or as families
or carers or as advocates) are familiar with the label of psychiatric
disability, others may have the view that they are not "disabled"
by their illness or condition and thus may believe that the DDA is not
for them. - A similar issue also applies not only to people affected by other
illnesses, including cancer survivors, but to many other categories
of disability. This is so although the substance of the legislation
avoids the mistake of the United States and United Kingdom legislation,
which require that a person be "substantially limited" in
a "major life activity" to benefit from the legislation, so
that perversely the less a person is "disabled" by their disability
the less protection they have against unjustified discrimination. The
DDA does not require that a disability be permanent, or severe, or current,
or unable to have its effects alleviated by appropriate equipment or
treatment. It is no defence for a discriminator to say that the variation
from a presumed standard of normality is so common or so little disabling
as not to be a disability. This is illustrated by a recent complaint
against a Federal Government Agency which insisted with no apparent
justification that employees engaged in inspection duties should be
able to pass an eye test without wearing glasses. Most people with glasses
would not identify as having a disability, even though the legislation
does protect them if they face discrimination. - Many people who have impaired vision or hearing or mobility or other
disabilities as a result of advancing age do not appear to identify
readily as having a disability. This may be because of a realistic perception
that these impairments are normal particularly as a person gets older,
combined with the common perception that disability is not normal.
It is clearly not possible for a concise title to reflect all of the
other areas where "disability" may not be a clear enough sign
that the legislation applies, and concerns may be raised as to why genetic
issues alone should be highlighted.
In particular, if a change of title to include reference to genetic discrimination
is to be made, perceptions may need to be dealt with that, rather than
the object being only to confirm that the legislation covers genetic discrimination
issues, these issues are to be given priority equal to all other disability
issues combined - which HREOC would not see as justified.
Proposal 8-2. Federal anti-discrimination legislation should be amended
to:
-
define 'disability' in the DDA and define 'impairment' in the regulations
made under the Human Rights and Equal Opportunity Commission Act 1986
(Cth) (HREOC Act) to clarify the application of the legislation to
discrimination based on genetic status; -
define 'impairment' in the regulations made under the HREOC Act
to clarify the application of the legislation to a disability that
may exist in the future; -
insert a definition of 'disability' in the Workplace Relations Act
1996 (Cth) to conform with federal anti-discrimination legislation,
as amended by these proposals.
Response:
Definition of disability in DDA:
I agree with views that although genetic discrimination at least in most
instances is already covered by the DDA, it would be desirable to make
this coverage clearer and beyond dispute.
Definition of impairment for HREOC Act purposes:
Since the passage of the DDA, the coverage of impairment in the HREOC
Act has less practical significance than previously. However, I agree
that there is no good reason for the definition of impairment for the
purposes of this Act to be more restrictive than that in the DDA (and
in fact that some confusion may result from this) Accordingly, changes
to the DDA definitions should be reflected in the regulations to the HREOC
Act which define impairment. It would also be appropriate to take the
opportunity to clarify that for HREOC Act purposes future disability is
also covered.
It should be noted that in the case of State of Victoria, State of South
Australia and State of Western Australia v The Commonwealth the High Court
drew attention to the need for consultation requirements to be satisfied
before there could be valid use of, or action based on, the provision
in the Discrimination (Employment and Occupation) Convention for parties
to include additional grounds of discrimination, such as disability. It
may be that the Inquiry's consultations with trade union, employer and
community representatives have already been sufficient for this purpose;
however, the Inquiry may wish to direct government attention to this issue
in making final recommendations.
Workplace Relations Act definition:
As I understand the present position, although the Workplace Relations
Act does not itself provide a definition of disability, in practice the
definition of disability from the DDA is used in practice to guide application
of this Act. No good reason is apparent why the Workplace Relations Act
should not state expressly that the same definition applies as for the
DDA.
Proposal 8-3. The States and Territories also should consider amending
their anti-discrimination legislation to accord with the policies reflected
in Proposal 8-2.
Response:
In this area and more generally, HREOC supports Federal and State anti-discrimination
laws taking a consistent approach wherever possible. For State laws to
provide more restricted coverage than the DDA can serve only to mislead
or confuse employers, service providers and others covered by the legislation
regarding the extent of their obligations, since responsibilities under
the DDA will apply in any case; and may cause procedural problems for
complainants if they choose the wrong jurisdiction. Most States and Territories
have in fact moved to harmonise their legislation with the DDA. This process
should continue, through action by individual jurisdictions and preferably
also through co-ordinated action through relevant Ministerial councils.
Question 8-2. What form of words should be used in federal anti-discrimination
laws to ensure that they apply to discrimination based on genetic status?
A possible model is provided by the NSW Anti-Discrimination Board submission
recommending that the definition of disability in the DDA (and all State/Territory
anti-discrimination legislation) to be amended to make clear that disability
includes genetic mutations or chromosome abnormalities:
- causing or capable of causing disease, illness, malfunction, malformation
or disfigurement of a part of the person's body, or - resulting in the person learning differently from a person without
the disorder or malfunction, or - affecting a person's thought processes, perception of reality, emotions
or judgment or that results in disturbed behaviour.
However, it may also be possible to achieve an appropriate result more
simply and concisely, by adding only "any genetic mutation or chromosomal
variation, or the lack of such a mutation or variation, which may lead
to illness or disability" to the list in the definition of disability.
It may be argued that adding such a provision could blur the lines between
disability discrimination and other areas of discrimination - in particular,
racial discrimination (given that some degree of genetic difference is
one of the features of most racial distinctions); and of course sex discrimination
(the variation between XX and XY being obviously relevant).
As noted by the Inquiry, there may be a genetic basis for racially linked
variations in susceptibility to or immunity from a number of disorders.
Similarly, people with XX chromosomes experience breast cancer, for example,
at a far higher rate than people with the XY mutation.
However, it is not clear that this potential blurring of boundaries presents
any substantial problem.
Each State and Territory as well as the Commonwealth has sex and race
discrimination legislation in place, in each case administered by the
same body as the applicable disability discrimination legislation. Issues
of more than one ground of discrimination potentially applying to the
same situation present a relatively minor administrative issue in this
context. Complaints which are in substance about race or sex discrimination
could still be expected to be lodged as such rather than as genetic discrimination
complaints, particularly in view of the fact that race and sex discrimination
laws in most cases provide more limited exceptions than the equivalent
disability discrimination provisions.
Question 8-3. Should discrimination on the ground of a medical record
be added to the DDA and other relevant legislation as a prohibited basis
of discrimination?
Response:
I agree with the view provided by the NSW ADB submission, that no substantive
effect would be added to the DDA by inclusion of a ground of unlawful
discrimination on the basis of "irrelevant medical record" as
is contained in Tasmanian and Northern Territory anti-discrimination legislation.
(It should be noted that if express provisions regarding medical records
are to be included, drafting in terms of "irrelevant" medical
record should be avoided. As with any information, medical records may
be relevant and yet be given excessive weight or otherwise be used in
a manner which leads to discrimination. For example discrimination may
occur if relevant medical information is used to exclude a person from
an employment opportunity without reference to the possibility of reasonable
adjustments to remove, or reduce to acceptable levels, a health risk.
)
Discrimination on the basis of information in a medical record would
be covered by the DDA as discrimination on the basis of a past disability
(where the record discloses a condition which the person had at the time
of a prior examination), or a current disability (if the condition is
still current), or a future disability (if the record discloses or is
taken as disclosing a risk or propensity), or the disability of an associate
(if for example the record is that of a family member or partner), or
an imputed disability (if a record is wrongly taken as disclosing a condition
which a person does not in fact have).
However, as with genetic discrimination it may be argued that even though
the DDA already applies to discrimination on the basis of medical records,
this is not sufficiently clearly stated for effective application of the
law in practice.
I have therefore given some consideration to how medical records might
be deal with more explicitly within the DDA.
Inclusion of medical record within the definition of disability does
not seem a desirable approach. Although, as indicated above, the DDA takes
a broad approach to the meaning of disability, for the legislation to
state that having a medical record is in itself a disability would appears
to stretch the meaning of disability further than it can credibly bear.
Another means available for achieving direct coverage of medical record
discrimination as unlawful discrimination would be to include discrimination
on grounds of medical record as an independent ground of discrimination
in each of the areas covered by the DDA.
This is not recommended, however, as it would seem to add undue complexity
to the legislation without sufficient offsetting benefit (as the Inquiry
observed regarding the possibility of similar amendments to include a
separate substantive ground of genetic discrimination).
An alternative approach would be to include more express reference to
medical information in a revised section 30 dealing with collection of
information.
I would also be prepared to consider development of guidelines on medical
information and the DDA in the light of further submissions from interested
parties and taking into account any final recommendations the Inquiry
may make in this area.
Proposal 8-4. The regulations made under the HREOC Act should be amended
expressly to include discrimination on the basis of association with a
person who has an impairment or disability.
Response
As noted above I would support HREOCA coverage being brought into line
with that under the DDA. However, in this context attention is required
to how the DDA currently deals with associates.
The difficulty is that while the substantive sections dealing with unlawful
discrimination address discrimination against associates as well as against
people with a disability, the definitions of direct and indirect discrimination
in sections 5 and 6 refer only to a disability of the aggrieved person.
At present (consistent with accepted rules of statutory construction)
HREOC seeks to interpret and apply the DDA in a way which gives effect
to the substantive provisions regarding associates rather than rendering
them meaningless. It would be preferable however for the definitions of
discrimination to expressly include associates rather than leaving this
to interpretation.
Section 5 at present reads:
1. For the purposes of this Act, a person ( discriminator ) discriminates
against another person ( aggrieved person ) on the ground of a disability
of the aggrieved person if, because of the aggrieved person's disability,
the discriminator treats or proposes to treat the aggrieved person less
favourably than, in circumstances that are the same or are not materially
different, the discriminator treats or would treat a person without the
disability.
2. For the purposes of subsection (1), circumstances in which a person
treats or would treat another person with a disability are not materially
different because of the fact that different accommodation or services
may be required by the person with a disability.
Fairly simple amendments to this provision would appear to suffice, possibly
along the following lines:
(5) (1) (a) For the purposes of this Act, a person (discriminator) discriminates
against another person (aggrieved person) on the ground of a disability
of the aggrieved person if, because of the aggrieved person's disability,
the discriminator treats or proposes to treat the aggrieved person less
favourably than, in circumstances that are the same or are not materially
different, the discriminator treats or would treat a person without the
disability.
(1) (b) For the purposes of this Act, a person ( discriminator ) discriminates
against another person (aggrieved person) on the ground of the aggrieved
person being an associate of a person with a disability if, because of
the aggrieved person's association with a person with a disability, the
discriminator treats or proposes to treat the aggrieved person less favourably
than, in circumstances that are the same or are not materially different,
the discriminator treats or would treat a person who is not an associate
of a person with a disability.
(2) For the purposes of subsection (1), circumstances are not materially
different because a person with a disability or a person who is an associate
of a person with a disability requires some adjustment or accommodation
to be provided by reason of the disability, unless that adjustment would
impose unjustifiable hardship.
The recommended drafting splits paragraph (1) into two separate clauses
for people with a disability and associates in the interests of clarity
rather than inserting associates into the existing single clause.
It will be noted that the recommended paragraph (2) incorporates an express
unjustifiable hardship limitation on the duty to provide adjustments which
is implicit from paragraph 5(2). This is not specifically motivated by
considerations regarding genetic discrimination but by the more general
issue that this paragraph was intended when the DDA was passed to incorporate
a duty of reasonable adjustment rather than an absolute duty to make any
and all adjustments that might be required however onerous.
DDA section 6 also fails to refer to associates. Redrafting the existing
section 6 to include associates would be more complicated. It appears
preferable instead to adopt the more recent drafting for indirect discrimination
included in the Sex Discrimination Act. Such a provision would read along
the following lines:
6.1 For the purposes of this Act, a person (the discriminator) discriminates
against another person (the aggrieved person) on the ground of the disability
of the aggrieved person if the discriminator imposes, or proposes to impose,
a condition or requirement or practice that is not reasonable and that
has, or is likely to have, the effect of disadvantaging people who have
a disability relative to people who do not have a disability, or the particular
disability concerned.
6.2 For the purposes of this Act, a person (the discriminator) discriminates
against another person (the aggrieved person ) on the ground of the aggrieved
person being an associate of a person with a disability if the discriminator
imposes, or proposes to impose, a condition or requirement or practice
that is not reasonable and that has, or is likely to have, the effect
of disadvantaging people who are associates of persons with a disability,
relative to people who are not associates of persons with a disability
or with a particular disability concerned.
Genetic Discrimination in Insurance
Proposal 24-3. No predictive genetic test should be used by insurers
in underwriting mutually rated insurance unless the test has been approved
for that purpose by the proposed HGCA.
Question 24-3. Would Proposal 24-3 be implemented most effectively through
an industry code or legislation? If the latter, should this be through
amendment to: (a) the insurance exemption in anti-discrimination legislation;
(b) the duty of disclosure in the Insurance Contracts Act 1984 (Cth);
or (c) both?
Response:
Government, the public and industry should be able to expect insurance
to be properly regulated by insurance law and industry mechanisms in the
first instance, with discrimination law providing a safety net or check
on these mechanisms if necessary rather than needing to be the first resort
on any issue.
My preference is therefore for this proposal to be addressed through
insurance legislation and/or an industry code rather than through the
DDA.
I am not in a position to offer a view on the need for amendments to
the Insurance Contracts Act to implement the Inquiry's proposal 24-3 as
against reliance on an industry code alone. However, it can be said that
if either an industry code or Insurance Contracts Act provisions are in
place then amendments to the DDA would not appear to be also required.
There is scope for an appropriate industry code to be recognized for
DDA purposes without legislative amendment through the provision for temporary
exemptions to be granted by HREOC.
HREOC would also be able to make appropriate changes to its existing
"advisory note" guidance material on insurance to reflect the
outcomes of this Inquiry.
Proposal 24-4. The insurance industry, through its peak bodies and in
consultation with the proposed HGCA, should develop and publish policies
on the use of family medical history for underwriting mutually rated insurance.
Response:
I endorse the approach set out in this proposal. As noted above appropriate
policies could be endorsed for DDA purposes through HREOC guidance material
and more authoritatively through the temporary exemption process.
Proposal 24-5. The Insurance Contracts Act 1984 (Cth) should be amended
to clarify the nature of the obligation of an insurer to provide written
reasons for an unfavourable underwriting decision. Where such a decision
is based on genetic information, the insurer should give reasons that
are clear and meaningful and that explain the actuarial or statistical
basis for the decision.
Response:
I agree with this proposal. The capacity of HREOC to require production
of information by an insurer (dealt with in proposal 24-6) arises only
in the context of a complaint. It is clearly in the interests of all concerned
that reasons for unfavourable decisions (whether justifiable or not) be
clarified before matters get to the point of a complaint under the DDA.
Proposal 24-6. The Disability Discrimination Act 1992 (Cth) and related
legislation should be amended to clarify the nature of the information
required to be disclosed by an insurer and to ensure that the complainant
is entitled to access to the information so disclosed.
Response:
I agree with this proposal although noting that the relevant provision,
DDA section 107, has had limited practical significance in the administration
of the DDA to date, and that as indicated above provisions for disclosure
of reasons at an earlier stage and not only in the context of a DDA complaint
are likely to have greater beneficial effect.
Proposal 24-7. The insurance industry, through its peak bodies, should
develop a policy regarding the provision of reasons by an insurer to an
applicant in response to an unfavourable underwriting decision based on
family medical history. The policy should ensure that the reasons given
are clear and meaningful and that they explain the actuarial or statistical
basis for the decision.
Response:
As with proposal 24-4 I endorse the approach set out in this proposal.
As noted above appropriate policies could be endorsed for DDA purposes
through HREOC guidance material and more authoritatively through the temporary
exemption process.
Proposal 24-8. The insurance industry, through its peak bodies, should
develop appropriate mechanisms for reviewing underwriting decisions involving
the use of genetic information. Such reviews should be conducted in a
timely and efficient manner; undertaken by a panel of individuals, each
of whom is independent of the insurer that made the decision; carried
out by suitably qualified individuals with a demonstrated understanding
of insurance law and anti-discrimination law, underwriting practice, and
clinical genetics; and binding on the insurer but not on the complainant.
Response:
As with proposal 24-4, I endorse the approach set out in this proposal.
As noted above appropriate policies could be endorsed for DDA purposes
through HREOC guidance material, and potentially more authoritatively
through the temporary exemption process.
Proposal 24-9. The insurance industry, through its peak bodies, should
review its policies and practices in relation to the training and education
of industry members and their authorised representatives in relation to
the nature, collection and use of genetic information in insurance.
Response:
I endorse this proposal, noting that HREOC and consumer representative
bodies are currently engaged in constructive processes with the Investment
and Financial Services Association for similar purposes in relation to
the industry's approach to people who have experienced a depressive illness.
Genetic Discrimination in Employment
Proposal 27-1. Employers should be able to collect and use genetic information
in relation to their employees only where this is reasonable and relevant
within the terms of anti-discrimination and occupational health and safety
legislation, and subject to the limitations set out in the proposals in
Chapters 28-30.
Response:
I endorse this proposal. Issues in its implementation are discussed by
reference to more specific proposals which follow.
Proposal 28-1. In assessing whether an applicant or employee is able
to perform the inherent requirements of a job, only current ability to
perform the inherent requirements should be relevant. The term 'inherent
requirements' in the DDA, the HREOC Act and the Workplace Relations Act
1996 (Cth) should be clarified accordingly. The States and Territories
also should consider amending their legislation to similar effect.
Response:
I agree with the objective of this proposal. As indicated by the Inquiry,
in most instances legitimate assessments by employers should be concerned
with a person's ability to perform job requirements at present rather
than with what may happen years into the future. This is consistent with
the fact that employment in Australia is a relationship terminable by
either party on relatively short notice: we do not have slavery or long
term servitudes.
However, some caution is necessary regarding the specific proposal to
restrict all consideration to the current ability to perform inherent
requirements.
Such an amendment could restrict entitlements, which in HREOC's view
presently exist under the DDA, for people to have a reasonable time to
comply with job requirements. For example, a person temporarily incapacitated
by illness would expect to have a reasonable time to recover fitness for
work even though not "currently" able to perform job requirements.
A person requiring some initial adjustment period while workplace training
is undertaken or assistive technology is made operational could likewise
be seen as not "currently" able to perform inherent requirements.
It may be possible as a matter of drafting to make a restriction to current
ability to perform job requirements run only against employers and not
against employees. There could however be objections to the equity and
sustainability of such a position. This includes possible concerns regarding
creation of disincentives to employ people with disabilities if the legislation
is seen as preventing reasonable "give and take" in terms of
rights and responsibilities.
I agree that the number of jobs where it is necessary to assess ability
to perform inherent requirements a substantial way into the future is
likely to be small (including cases such as the Inquiry has mentioned
regarding Antarctic postings, long voyages etc).
Administratively it would appear feasible to deal with this small number
of matters through the exemption process. However, as a matter of law
and policy HREOC does not favour approaches which depend on the exemption
process to make the law accord with a realistic interpretation of what
should or should not be defined as discriminatory, rather than having
the law as far as possible make sense as written.
There would be some questions as to whether an exemption under the existing
power would be properly available in such cases:
- HREOC and other bodies administering similar powers have thought to
date that the temporariness of the exemptions that can be granted means
that the need for an exemption should also be temporary (for example
while measures to move towards equality are implemented, even if this
involves a substantial number of years perhaps requiring successive
exemptions) rather than being inherent in the nature of the situation; - On administrative law grounds, the power to grant exemptions should
only be used where this advances the objects of the legislation, and
it is not clear how granting an exemption allowing a person to be simply
excluded without some accompanying positive measures would meet this
test.
For these reasons some degree of flexibility may be needed rather than
an absolute restriction to current ability to perform inherent requirements.
A possible provision could read:
Except where exceptional circumstances can be demonstrated, reference
to a person being unable to perform inherent requirements does not include
circumstances where a person is currently able to perform those requirements
but may become unable to in future. A person is not to be regarded as
unable to perform inherent requirements if the inability is temporary
and can be remedied within a reasonable period in the circumstances (for
example where it is due to illness or where time is required to implement
some reasonable adjustment).
A provision such as this would need either to be inserted to accompany
each reference to inherent requirements (in sections 15, 16, 17, 18, 19
and 21) or preferably as a single note referring to each of the sections
in Division 1.
Proposal 28-2. Peak employer associations should encourage members to
produce clearly defined job descriptions that set out the inherent requirements
of every position in the workplace.
Response:
I agree that re-examination by employers of the inherent requirements
of jobs will often be beneficial, in removing restrictions which may have
become outdated with changes in working methods and technology and in
focusing on results to be achieved rather than on particular methods for
achieving those results which might unnecessarily exclude people with
disabilities.
Further encouragement in this process from peak industry bodies would
be welcome accordingly.
However, it should be noted that the objective of achieving job descriptions
setting out the inherent requirements of every position may be unduly
ambitious.
HREOC's website Frequently Asked Questions material on employment notes
that
"the DDA does not require employers to have written duty statements
and where a duty statement does exist it will not necessarily be conclusive.
A requirement contained in a duty statement might not be found to be an
inherent requirement. The Commission and the courts have emphasised that
a requirement is not inherent simply because it is stipulated in a duty
statement or contract of employment. Equally, a requirement might not
appear on a duty statement but still be found to be an inherent requirement."
Proposal 28-3. The DDA should be amended to prohibit an employer from
requesting or requiring genetic information from a job applicant or employee
unless the employer can demonstrate that the information is necessary
for a purpose that does not involve unlawful discrimination, such as ensuring
that a person is able to perform the inherent requirements of the job.
The States and Territories should consider adopting a similar provision
in their anti-discrimination legislation, where one does not already exist.
Response:
I support this proposal. HREOC's concern that discussion of disability
issues in order to resolve employer concerns or to identify necessary
adjustments has been noted by the Inquiry, and in my view appropriately
taken into account by this proposal. This proposal in fact offers an opportunity
to clarify the position regarding requests for disability related information
more generally which in my view would be helpful to all concerned.
The current effect of the DDA is summarized as follows in HREOC's website
FAQ material:
"The D.D.A. does not set out particular forms of words as permitted
or prohibited. Rather, the lawfulness of inquiries or examinations under
the D.D.A. depends on whether they are for a legitimate purpose and are
a reasonable means for achieving that purpose. Employers should ensure
that
- they know why they are collecting information
- this is a legitimate purpose
- information is only used for the purposes for which it was properly
collected and is protected against improper access or disclosure.
Employers are also advised to make clear the purpose for which they request
or require disability information, to reduce misunderstandings which might
lead to fears of discrimination."
A provision in accordance with proposal 28-3 would thus in my view confirm
and clarify the existing effect of the DDA rather than imposing any new
restrictions on employers.
The basis of this advice, however, requires interpretation of several
provisions in the DDA rather than emerging clearly from section 30 which
deals expressly with requests for information. The drafting of this section,
borrowed from the Sex Discrimination Act, is not easily understood, and
may be open to significantly different interpretations.
I agree with the Inquiry's assessment regarding the proposed replacement
for the existing s.27(1) of the Sex Discrimination Act in the Sex Discrimination
Amendment (Pregnancy and Work) Bill 2002 (Cth) as a model for possible
amendments to the DDA. That is, although the language is clearer than
the existing provision, coverage of questions asked of all applicants
or employees is still open to question.
Section 26 of the Northern Territory Anti-Discrimination Act appears
to provide a more suitable starting point as noted by the NSW ADB. This
is not, however, to recommend precisely the same drafting, as in HREOC's
view the Northern Territory provision may present some of the risks of
discouraging appropriate discussion of disability issues previously raised
by HREOC and noted by the Inquiry.
In particular, consideration is needed of whether employers requesting
information should face a legal onus of proof of the legitimacy of requests
for information, or only an evidential burden as applies to issues of
unjustifiable hardship under the DDA. HREOC regards imposing an evidential
burden only as the preferable implementation of a requirement to "demonstrate"
a legitimate purpose.
Proposal 28-4. HREOC should, in consultation with the proposed HGCA
and other relevant stakeholders, develop Disability Standards dealing
with the collection and use of genetic information in employment. As an
interim measure, HREOC should issue guidelines in this area.
Response:
I consider that Disability Standards regarding collection and use of
medical information, either generally and including genetic information,
or specifically regarding genetic information but as a possible model
for dealing with medical information more generally, could be useful.
A decision to proceed with development of standards is, of course, a
matter for the Attorney-General. This decision could be expected to be
influenced by whether support for such an initiative is forthcoming from
representatives of employers, people with disabilities and other relevant
parties.
HREOC would similarly consider the possibility of developing guidelines
having regard to the Inquiry's final recommendations and the views of
relevant parties.
It should be noted that one possible model for standards (and for guidelines)
specifically in relation to genetic information could be to give effect
for discrimination law purposes to the code proposed to be developed by
the National Occupational Health and Safety Commission pursuant to proposals
29-2, 29-4 and 29-6.