2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Mrs Helen Cross)

Discrimination (Genetic Status) Amendment Bill 2003

Contents
	Page
	1	Name of Act	2
	2	Commencement	2
	3	Legislation amended	2
	4	Grounds
New section 7 (ja)	2
	5	Section 7	2
	6	Insurance
Section 28	3
	7	New section 28 (2)	3
	8	Superannuation
New section 29 (1A)	3
	9	Section 29	3
	10	Dictionary, new definitions	3
Schedule 1	Other amendments	5
Part 1.1	Crimes Act 1900	5
Part 1.2	Health Records (Privacy and Access) Act 1997	8

2003
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)
(Mrs Helen Cross)

Discrimination (Genetic Status) Amendment Bill 2003

A Bill for
An Act to amend the Discrimination Act 1991, and for other purposes

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1	Name of Act
This Act is the Discrimination (Genetic Status) Amendment Act 2003.
2	Commencement
This Act commences on the day after its notification day.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).
3	Legislation amended
This Act amends the Discrimination Act 1991.
Note	This Act also amends the following legislation (see sch 1):
·	Health Records (Privacy and Access) Act 1997 
·	Crimes Act 1900.
4	Grounds
New section 7 (ja)
insert
	(ja)	a genetic characteristic or a genetic predisposition to a condition or disease;
5	Section 7
renumber paragraphs when Act next republished under Legislation Act
6	Insurance
Section 28
omit
Part 3
substitute
	(1)	Part 3
7	New section 28 (2)
insert
	(2)	Subsection (1) does not apply to the use of predictive genetic information to discriminate against a person in relation to the terms on which an annuity or a policy of insurance is offered to, or may be obtained by, the person.
8	Superannuation
New section 29 (1A)
insert
	(1A)	Subsection (1) does not apply to the use of predictive genetic information to discriminate against a person in the terms or conditions relating to a superannuation or provident fund or scheme.
9	Section 29
renumber subsections when Act next republished under Legislation Act
10	Dictionary, new definitions 
insert
genetic testing includes gene testing (DNA testing) and biochemical testing (protein testing). 
predictive genetic information means information obtained by genetic testing that identifies a genetic predisposition to a condition or disease. 

Schedule 1	Other amendments
(see s 3)
Part 1.1	Crimes Act 1900
[1.1]	Section 7A, note 1
insert
·	s 49G (Genetic testing without consent)
·	s 49H (Unlawful obtaining of genetic testing consent)
[1.2]	New part 2B
insert
Part 2B	Genetic testing
49F	Definitions for pt 2B
In this part:
genetic testing includes gene testing (DNA testing) and biochemical testing (protein testing). 
relevant person, for a sample, means—
	(a)	if the person from whom the sample is taken is an adult (other than a person mentioned in paragraph (c))—that person; and
	(b)	if the person from whom the sample is taken is a child—a person who has custody of the child; and
	(c)	if the person from whom the sample is taken is otherwise incapable of consenting to having a medical test carried out—the person who has the care and control of that person.
sample means any sample of a person’s body tissue, and includes a sample of the person’s blood, saliva or hair.
49G	Genetic testing without consent
	(1)	A person commits an offence if—
	(a)	the person—
	(i)	takes a sample from someone else for the purpose of genetic testing; or
	(ii)	submits a sample from someone else for genetic testing; or
	(iii)	conducts genetic testing on a sample from someone else; and
	(b)	a relevant person has not consented to the taking of the sample for the purpose of genetic testing; and
	(c)	the person knows that a relevant person has not consented to the taking of the sample for the purpose of genetic testing.
Maximum penalty:  200 penalty units, imprisonment for 2 years or both.
	(2)	A person commits an offence if—
	(a)	the person—
	(i)	takes a sample from someone else for the purpose of genetic testing; or
	(ii)	submits a sample from someone else for genetic testing; or
	(iii)	conducts genetic testing on a sample from someone else; and
	(b)	a relevant person has not consented to the taking of the sample for the purpose of genetic testing; and
	(c)	the person is reckless about whether a relevant person has consented to the taking of the sample for the purpose of genetic testing.
Maximum penalty:  100 penalty units, imprisonment for 1 year or both.
	(3)	This section does not apply to a person acting in accordance with—
	(a)	a law in force in the Territory relating to the taking of forensic samples; or
	(b)	a court order.
49H	Unlawful obtaining of genetic testing consent
	(1)	A person commits an offence if the person—
	(a)	obtains by deception a relevant person’s consent to the taking of a sample for the purpose of genetic testing; or
	(b)	coerces a relevant person to consent to the taking of a sample for the purpose of genetic testing.
Maximum penalty:  200 penalty units, imprisonment for 2 years or both.
	(2)	Without limiting subsection (1) (b), a person coerces someone to give consent if the person requires the consent—
	(a)	as a condition or precondition of someone’s employment; or
	(b)	as a condition or precondition for the provision of insurance services or health services. 
Part 1.2	Health Records (Privacy and Access) Act 1997
[1.3]	Section 4, definition of health service, paragraph (a)
substitute
	(a)	any activity that is intended or claimed (expressly or by implication), by the person performing it—
	(i)	to assess, record, improve or maintain the physical, mental or emotional health of a consumer; or 
	(ii)	to diagnose or treat an illness or disability of a consumer
including an activity relating to the collection of genetic information about a predisposition of the consumer to illness or disability; or
[1.4]	Section 4, definition of personal health information
substitute
personal health information, for a consumer, means any personal information—
	(a)	relating to the health, an illness or a disability of the consumer; or
	(b)	collected by a health provider in relation to the health, an illness or a disability of the consumer;
whether or not the information is recorded in a health record, and includes genetic information about a predisposition of the consumer to illness or disability.

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on 	2003.
2	Notification
	Notified under the Legislation Act on	2003.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

© Australian Capital Territory 2003