Government opens technical consultation on genetic testing ban

In September, Financial Services Minister Stephen Jones announced that the federal government would introduce a legislative ban on using genetic test results in life insurance underwriting.

The minister said this would “give Australians the confidence to undertake genetic testing without fear it will impact their ability to access financial security through life insurance”.

Before the announcement, the government launched a consultation on the issue of genetic discrimination in life insurance in November 2023, resulting in over 1,000 submissions, 97 per cent of which supported the total ban of the practice. Monash University also released a report in favour of the ban.

On Wednesday, the minister launched a technical consultation on the legislative design and technical details of the ban, including the definition of a genetic test, enforcement of the ban and implementation.

“Genetic research is constantly evolving. The consultation is to ensure this legislation captures the intent of the government’s decision and does not have unintended consequences,” Jones said in a statement.

“The government’s decision to introduce a total ban is world leading and work is underway to legislate the ban as soon as practicable. Delivering this reform requires consideration of technical details of the legislation, which aren’t easily adapted from other jurisdictional laws.”

According to the consultation paper, there is not yet a “settled position or definition” of a genetic test either in Australia or internationally.

“However, multiple international jurisdictions have defined the term ‘genetic test’ for the purposes of their own regimes, which legislate or codify different matters related to genetic testing and life insurance. These definitions vary in their technical complexity and specificity,” the paper said.

This means that regardless of the ban’s legislative design, there will likely be a need to define the term “genetic test” within the legislation.

In addition to the question of definition, Treasury has also sought responses on the following topics:

• The proposed design option for the ban, including its feasibility, whether it is likely to achieve the government’s policy aims, and whether there are any practical, legal or administrative considerations.
• Any specific implications of the ban for the duty to take reasonable care not to make a misrepresentation, the duty of disclosure and the duty to act in utmost good faith.
• Whether aspects of the definition of “genetic test” for the purposes of the measure may be suitably placed in subordinate legislation.
• Factors that may require aspects of the definition of “genetic test” to be flexible and remain fit for purpose.
• The approach to when/how genetic test results can be considered released under consent to a life insurer, and subsequently used in underwriting assessments.
• Enforcement options available for the ban in the Insurance Contracts Act and the DDA.
• The proposed prospective nature of the ban, and the inclusion of historic (pre-ban) tests from the ban from the date of implementation.
• How (if at all) the ban should affect variations of existing contracts.
• How the ban could operate in relation to in-progress applications for life insurance.
• What, if any, transition period should be provided for implementing the ban and why?

“The Albanese government is committed to providing Australians with the confidence to undergo potentially life-saving genetic testing without fear of it affecting their life insurance,” Jones said.

Submissions to the consultation are open until 12 March, with the minister adding that the government would release exposure draft legislation ahead of introduction to Parliament.

In December, the Council of Australian Life Insurers (CALI) called on the government to introduce legislation for the ban as soon as possible in this parliamentary term.

Having backed the ban upon its initial announcement, CALI chief executive Christine Cupitt said the government must introduce the legislation as soon as possible to ensure Australians can confidently undergo genetic testing without fear.

“Government legislation is critical to ensuring that all Australians have the confidence to get a genetic test without worrying about any future impacts on their ability to get the life insurance cover they need,” Cupitt said at the time.

“We’ve long been clear about the need for strict government regulation to ensure that no one is deterred from taking a genetic test to proactively manage their health.”