Genetic profiling is a contemporary issue relating to the individual and technology which restricts access to unbiased decisions and privacy. Genetic profiling interferes with the individuals bodily, genetic and behavioural privacy, as it can be used for the benefit of identifying bodies to using the results of a DNA test to choose whether to employ one individual over another, due to future concerns. It can easily be argued that genetic profiling is in the need of law reform as a result of legal implications and the lack of individual’s rights.
Bodily privacy is a significant issue in Genetic Profiling, as it is a human right which is in constant need of law reform. Technology is continually advancing, and genetic profiling is becoming more available to everyone, especially law enforcement agencies, such as police, meaning that there needs to be laws to protect the rights of individuals. In the case G v. H (1994) 181 CLR 387, it was decided that a man who was thought to be the father of a child, but refused to have a DNA test to be definite was ruled as the father.
This ruling goes against the “right to remain silent”, and the “presumption of innocence until proven guilty” which are fundamental principles of Australia’s justice system, mentioned in the common law system of criminal justice, international human rights law, and civil law. Law reform is needed in this case, to extinguish the injustice, as genetic profiling has been a breach of individuals’ bodily privacy, not allowing the freedom of choice, but instead being ruled against, as shown in the case, which resulted in decisions against the individual being made due to the refusal of genetic profiling.
Law reform may take action, and is able to create new legislation to go into depth over specific issues in the law, such as whether the refusal of a DNA test should prove a person guilty, or whether the individual should not have the right to presumption of innocence until proven guilty in particular circumstances. There is also the same issue which arises for suspects, as under the Crimes Act 1914, section 23XJ it states that “a person authorised to carry out a forensic procedure on a person, or a constable, may use reasonable force:” “(a) to enable a forensic procedure to be carried out”.
This can refer to non-intimate forensic procedures, such as the taking of a sample of blood, saliva, hair, nail, under nails, the use of swabs, vacuum suction, the taking of hand print, finger print, foot print or toe print, or the taking of photograph or videorecording. These non-intimate forensic procedures are able to take place with informed consent and order of a magistrate to adults in custody, while adults not in custody also require an order of a senior police officer. On the other hand, an incapable person, and children at least ten but under eighteen require only an order of a magistrate.
This statement causes conflict, and remains an area which lacks law reform, as incapable individuals and children should have equal rights as to every other individual, therefore should have the equal opportunity to consent, or have a family member to consent on their behalf to the genetic tests, as it is an invasion of bodily privacy in genetic profiling. No matter what age an individual falls in, or what state they are in, they should be capable of the same benefits and rights as any other person, and with law reform this can be assessed to ultimately achieve justice through equality and fairness.
Genetic profiling can be considered the lack of rights in genetic privacy, having the ability to restrict individuals’ rights and access to employment, becoming a law reform issue. Fitness and psychological tests, which assesses a person’s stability for the physical and mental demands of a particular job, can be taken advantage of; creating inequality as employees are chosen as a result of their future well-being, rather than their present.
Article 27 section 1A of the Convention on the Rights of Persons with Disabilities (2006) states the “prohibit discrimination on the basis of disability with regard to all matters concerning all forms of employment”. This relates to genetic profiling, as under the treaty disability includes a disability that “may exist in the future (including because of a genetic predisposition to that disability)”. The Disability Discrimination Act 1992 also states against “discrimination in employment” under part two -Prohibition of Disability Discrimination-, division one section fifteen.
This Act states that “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 grounds of the other persons disability” “(b)in determining who should be offered employment”. This means that no employer is allowed to, under the treaty or the Act not employ any individual due to a disability they may acquire in the future, which would also include any disabilities that a DNA test may result in being likely to develop, but instead must treat them equally with very other applicant, this would result in the fair outcome of all applicants who apply for jobs producing justice. The Sydney Morning Herald Article labelled ‘Politicians Warned on DNA Profiling’ goes into detail over advances in genetic profiling, with a new test able to use tiny scraps of DNA to identify physical characteristics. This has caused discussion and conflict, as it is a representation of a genetic privacy breach, “I’d be very concerned if these photo fits are going to be quite crude depictions of people, based essentially on their ethnic and racial characteristics” says ANU criminology lecturer Emmeline Taylor.
In cases such as this, law reform would have a substantial contribution, as it would play its role of fixing injustices, as well as updating laws for new technology, removing issues in genetic privacy and profiling, as it is a constantly changing technology which required the frequent updating of legislation, which is the purpose of law reform. Behavioural privacy also plays a significant role in genetic profiling, as it is a technology which is frequently being enhanced, requiring constant review and law reform, ensuring that justice will be present, both presently and in the future, to protect the rights of each individual.
Behavioural privacy refers to the use of genetic profiling predicting the past in an inadequate, unjust manner, as to restrict the confidentiality of individuals. Issues on genetic profiling, specifically behavioural privacy have arisen and been expressed in an article titled ‘Call to control police use of DNA’, as Associate Professor Jeremy Gans, of Melbourne Law School says ”Australian legislation leaves rape victims, just like their rapists, exposed to investigation aimed at determining their connection with any unsolved crime on a jurisdiction’s DNA database”.
This is present, as the Crimes Act 1914, division 7A section 23XX, part two, which states that inadmissibility of evidence from improper forensic procedures etc. , does not apply where “(a) a provision of this Part required forensic material to be destroyed; and (b) the forensic material has not been destroyed”. The results of the analysis and other evidence are not allowed if presented by prosecution in proceedings against the person, but are allowed to be brought up in proceedings by the person, which is explained further in section 23XY.
This questions whether individuals have too high of a control over their behavioural privacy, having the ability to not bring up evidence of their genetic profiling by choice. Although, if the period of twelve months has not passed, or there is still a relevant offence being instituted against the suspect, the DNA test is still in the database, and is able to lawfully be used against the individual in other cases which may arise, or past cases, which had remained unsolved.
This creates discussion over individuals’ rights, as a simple voluntary DNA test, used to find a suspect, may be able to contribute to convict that individual of an offence or other crime, to which they may have previously taken part in. This can cause individuals to avoid voluntary DNA tests, as to prevent the past being brought up in the DNA database, and convicting them of a crime, causing a need of amendment in the law, by law reform; to generate a system to which victims and voluntary individuals can be protected of their past while using forensic material to contribute to solving a case.
For justice to be present, there needs to be legislation which covers these aspects, protecting the behavioural privacy of individuals, while still allowing individuals to contribute to cases without the threat of the past being discovered and brought forward against them. This is the core value of law reform, as it is able to create updated legislation to cover the new technology including genetic profiling; providing fair and equal results for each individual, as everyone has the right to be able to contribute evidence towards cases, and this should not be restricted by an individuals’ fear of the past.
Genetic Profiling is a constantly changing technology creating contemporary issues; with the aspects of bodily, genetic and behavioural privacy frequently being monitored for law reform, to assure individuals that justice is not only attainable, but in the possession of every Australian citizen. The use of amendments has been reflected upon throughout issues in legislation, due to the advances of technology in genetic profiling.
Individuals rights are significantly effected throughout genetic profiling, with the choice of DNA tests not being available, creating inequality and a lack of rights in bodily privacy, while genetic privacy shows the unlawfulness of employment, which require DNA test, but use it in the wrong aspects; and behavioural privacy, which allows a simple DNA test of a volunteer or victim to condemn the individual of a past crime. Together the three aspects of bodily, genetic and behavioural privacy create the concerns of genetic profiling, as a contemporary issue in need of law reform, and eventually justice.
Courtney from Study Moose
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