Associates

9.100 Because of the familial nature of genetic information, it is possible that individuals will be discriminated against, not on the basis of information about themselves, but on the basis of information about their genetic relatives. Employers may seek to rely on the fact that genetic information about a member of a person’s family may sometimes provide relevant information about the person. An employer may, for example, refuse to employ an applicant because of a family history of breast cancer. In the anti-discrimination context, this act may be characterised either as (a) an act on the basis of the applicant’s ‘association’ with others, which is discussed below, or (b) an act on the basis of an ‘imputed’ disability, which has been discussed above.

9.101 Anti-discrimination legislation in Australia generally recognises that it is unlawful to discriminate against a person on the basis of his or her association with another person.^[74] For example, s 15 of the DDA provides in part as follows:

(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against a person on the ground of the other person’s disability or a disability of any of that other person’s associates:

(a) in the arrangements made for the purpose of determining who should be offered employment; or

(b) in determining who should be offered employment; or

(c) in the terms or conditions on which employment is offered.

9.102 The ‘associate’ qualification is repeated in each provision setting out an area of activity in which discrimination on the ground of disability is prohibited.

9.103 Associate is defined in s 4 of the DDA as follows:

associate, in relation to a person, includes:

(a) a spouse of the person; and

(b) another person who is living with the person on a genuine domestic basis; and

(c) a relative of the person; and

(d) a carer of the person; and

(e) another person who is in a business, sporting or recreational relationship with the person.

relative, in relation to a person, means a person who is related to the first‑mentioned person by blood, marriage, affinity or adoption.

9.104 In relation to genetic status, the most relevant elements are para (c) of the definition of ‘associate’ (a relative of the person), and the definition of ‘relative.’ In combination, these provisions appear to be wide enough to cover those who are discriminated against on the basis of the genetic status of their relatives. This would extend to the situation where families comprise members who are not genetically related, such as adopted children, stepchildren, or children born through artificial reproductive technology using donor gametes.

9.105 Some state and territory legislation deals with the issue slightly differently by including ‘association with a person’ as a further ground of discrimination. For example, s 6 of the Equal Opportunity Act 1995 (Vic) provides:

The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 3 …

(b) impairment; …

(m) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.

9.106 The HREOC Act and the WRA do not expressly address discrimination on the basis of association with another person.^[75] The language of the HREOC Act and the WRA is potentially wide enough to cover discrimination on the basis of personal association but the issue is unclear.

9.107 Provisions on imputed disability will often cover cases of genetic discrimination where a person who does not have a disability is discriminated against on the basis of his or her association with a person who does have a disability. But this is not always the case. In IW v City of Perth^[76] the High Court indicated that problems might arise where the relevant legislation does not cover discrimination on the basis of association. On the facts of that case it would not have been possible to rely on imputed disability because the ‘person’ alleging discrimination was an organisation, which could not itself suffer a disability.

9.108 In DP 66 the Inquiry proposed, therefore, that the regulations made under the HREOC Actshould be amended expressly to include discrimination on the basis of association with a person who has an impairment or disability.

Submissions and consultations

9.109 Most submissions that addressed this issue supported the proposed amendment to the HREOC regulations. The Anti-Discrimination Board of NSW expressed the view that, while coverage under the DDA and most state and territory legislation was adequate:

Precisely because the genetic information obtained from one person may be indicative of the genetic make up of that person’s blood relatives, it is essential that all State/Territory anti-discrimination legislation covers such circumstances.^[77]

9.110 The acting Disability Discrimination Commissioner, while supporting the change to the HREOC regulations, raised the following concern in relation to the DDA associate provisions:

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.^[78]

Inquiry’s views

9.111 In the Inquiry’s view there is merit in amending the regulations made under the HREOC Act to include discrimination on the basis of association. This would bring the HREOC Act into line with the DDA in this regard.

9.112 The Inquiry notes the concern of the acting Disability Discrimination Commissioner in relation to the operation of the existing associate provisions in the DDA. In light of these concerns, the Inquiry would support a more comprehensive review of these provisions by the Commonwealth. However, given the Inquiry’s Terms of Reference, the recommendation below is limited to addressing the gap in coverage under the HREOC Act.