DNA-based technologies

9.73 It has been argued that DNA-based technologies differ from biometric technologies because they require actual physical samples to be taken from a person, as opposed to the taking of an image or scan of a person; and because DNA matching is not automated or done in real time.^[156] The use of DNA-based technologies, however, raise a number of the same privacy issues as are raised by the use of biometric technologies.

Genetic samples

9.74 In 2003, the ALRC and the Australian Health Ethics Committee (AHEC) of the National Health and Medical Research Council released Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC 96). The report was the product of a joint two-year inquiry into the legal and ethical issues surrounding human genetic information. In this report the ALRC and AHEC considered the privacy of human genetic samples, an issue that is discussed further below, and the privacy of human genetic information, which is discussed in Part H.

9.75 The ALRC and AHEC concluded that the Privacy Act did not cover genetic samples. This was because it was unlikely that genetic samples constituted ‘information’, or information stored in a ‘record’, for the purposes of the Privacy Act. Further, an unidentified and uncoded genetic sample might not constitute ‘personal information’ for the purposes of the Act.^[157]

9.76 The ALRC and AHEC, therefore, recommended that the Privacy Act be amended to extend the coverage of the Information Privacy Principles (IPPs) and the NPPs to identifiable genetic samples. In particular, the ALRC and AHEC recommended that: the definition of ‘personal information’ be amended to include bodily samples from an individual whose identity was apparent or could reasonably be ascertained from the sample; and that the definition of a ‘record’ be amended to include a bodily sample.^[158]

9.77 The ALRC and AHEC also recommended that the Privacy Act be amended to provide that an individual had a right to access part of his or her own bodily samples, through a nominated medical practitioner, for the purpose of medical testing, diagnosis or treatment. Access could be refused, however, in certain circumstances.^[159]

9.78 Finally, the ALRC and AHEC recommended that the Privacy Act be amended to enable an individual to access part of a bodily sample of his or her first-degree genetic relatives, through a nominated medical practitioner, where such access was necessary to lessen or prevent a serious threat to his or her life, health, or safety. An organisation subject to the Privacy Act that received such a request would be obliged to seek consent from the genetic relative, where practicable, before determining whether to provide access. Again, access could be refused in certain circumstances, including when it would have an unreasonable impact upon the privacy of the individual from whom the sample was taken.^[160] The Australian Government rejected these recommendations and, to date, they have not been implemented.^[161] The ALRC has not revisited these issues in the current Inquiry.