Australia

Last updated on: 11 October 2012

Criminalisation of HIV transmission/exposure

Australia
Whether Specific law enacted: 
Yes (1 State only)
Number of people prosecuted: 
36 (includes 4 charged under public health laws)
Number of people convicted: 
21 (estimated, includes 3 public health law convictions)
Applicable law: 

See relevant laws under each state and territory. There is a specific law about HIV transmission in only one of eight jurisdictions.

In Victoria, it is an offence under the Crimes Act 1958 to intentionally cause a very serious disease (which is currently defined in the Public Health and Wellbeing Act 2008 as HIV only). The offence carries a maximum penalty of 25 years imprisonment.

In NSW, Queensland, South Australia, Tasmania, and Victoria, exposure to and transmission of HIV during non-commercial sex is punishable under public health laws as well as criminal law.

In the Australian Capital Territory, Northern Territory and Western Australia prosecution only takes place under criminal law.

The first two prosecutions took place in 1991 - these were dismissed. The vast majority of cases (16) have been in Victoria. There have been a number of high profile prosecutions and convictions in the Australian Capital Territory, New South Wales, Queensland, South Australia and Victoria since 2005.

Key wording in the law: 

See relevant laws under each state and territory.

Key Cases: 

In Australia, each state and territory has its own particular public health and criminal laws which could be applied to HIV transmission. While there are similarities in approach, there are also real differences. Prosecutions have now occurred in all of Australia's eight jurisdictions, although charges were dismissed in the only case in the Northern Territory (1997).

Each of the six states and two territories has its own public health laws administered by separate state health departments. Most states and territories have public health laws related to HIV exposure or transmission which could be applied. The Northern Territory does not, and the laws of Western Australia are intended to address highly contagious diseases so are unlikely to be applied to address HIV infection risk. Penalties under public health laws are usually far lower than under criminal laws, and many public health Acts include privacy protections so defendants cannot be publically named.

All states and territories have formal public health management guidelines on people who put others at risk of HIV infection. These guidelines require that interventions be as supportive as possible, and that the least invasive, effective interventions be used. Individuals are rarely charged with public health offences.

Criminal laws which could be applied to HIV transmission are generally the responsibility of state and territory governments. Again, these laws differ across jurisdictions, and are administered by state and territory agencies (police, Attorney General Departments, Offices of Public Prosecutions, and State and Territory courts).

Until recently criminal and public health laws have existed in a kind of uneasy status quo because either area of law might be used to tackle specific situations in which an individual’s behaviour has/or is at risk of causing harm to others. Criminal charges have been used more frequently than public health charges. Even so, until recently criminal laws were so rarely used in most jurisdictions that the relationship between these two areas of law (informed by two very different approaches to addressing individual behaviours) had not been closely examined – let alone tested. This is now changing following recent high profile prosecutions and convictions in the Australian Capital Territory, New South Wales, Queensland, South Australia and Victoria.

Discussion: 

There is no centralised record of people prosecuted for transmitting, or exposing others to, HIV in Australia, so the exact number of cases remains unknown. Best efforts put the number of prosecutions at 36: 32 of those cases involving criminal laws and four cases involving public health laws.

The first HIV transmission or exposure case known to have proceeded through a committal hearing was that of a man charged with reckless endangerment offences for having unprotected sex with a woman without disclosing his HIV status (Queen v. PD, 1992). The accused was ordered to stand trial but died from an HIV-related illness before the trial commenced (Ward 1998).

The first decision relating to HIV exposure risk was that in R v. B, concluded in 1995. The first decision on HIV transmission was made in DPP v. F in 1998. Prosecutions before 2001 were uncommon, with almost all cases run in Victoria, and guilty decisions recorded and upheld in only three of the eleven known cases).

Criminal prosecutions have now been held in six of eight jurisdictions. Since 2004, cases have occurred more often, with a notable national increase in prosecutions since 2007. The issue of HIV criminality linked to sexual acts has moved from being theoretical to actual.

Chart 1 assigns Australian cases according to the year each prosecution was concluded.

Chart 1: Known Australian HIV Exposure and Transmission Prosecutions to 1st April 2012 (including cases dropped or dismissed prior to full hearing)

Chart 1: Known Australian HIV Exposure and Transmission Prosecutions to 1st April 2012 (including cases dropped or dismissed prior to full hearing)

Unfortunately, it is not possible to compile data according to the year in which cases were initiated (arguably a more accurate reflection of the application of criminal laws by year), as this information is not available for all cases.

As the total number of prosecutions has increased, so too has the range of situations in which charges have been made. Of the 36 people known to have been charged, 35 were male. The only woman charged was prosecuted in 1991 in relation to sex work. She was not convicted. In some instances, information about the circumstances of the case is no longer available, however, it is known that 17 cases involved female complainants (one cases involved minors) and 13 involved male complainants (one case involving a minor): in an epidemic where some 90% of HIV infected are men. Some accused have been charged in relation to a single sexual contact, others in relation to more than one contact. Some cases involve short-term liaisons and others involve long-term relationships which the aggrieved party believed to be monogamous.

There is no statute of limitations on serious offences, and recently, two cases were pursued involving transmission that had occurred a decade ago or longer (one in New South Wales, and one in Victoria – who was convicted despite the two parties having married five years after the woman had acquired the infection and been diagnosed). Although numbers involved are small, men of African origin are over-represented among those prosecuted, although there has been no analysis on why disproportionate numbers of men from this sub-population have come to the attention of police and prosecutors.

It is understood that the majority of criminal charges involving HIV transmission have arisen following investigation of complaints from HIV-positive people, although some have arisen through referral from health authorities (with additional cases being pursued after Victorian Police seized health department files). Police are required to consider complaints by an aggrieved party, and to investigate them if they believe the complaint has substance. Prosecutors may gain access to medical files through subpoena.

Given that there are an estimated 21,391 people living with (diagnosed) HIV in Australia (Source: The Kirby Institute), prosecutions per capita of PLHIV are estimated at 1.68 per 1000.

Survey respondents/Organisations working on HIV and the Law: 

Thanks to policy analyst and independent consultant, Sally Cameron, for the latest update, April 2012.

Organisations working on HIV and the Law:

National Association of People with AIDS (NAPWA)

Australian Federation of AIDS Organization (AFAO)

Further reading: 

Cameron S. (2012) ‘Rethinking ‘equality’: The gendered experience of HIV risk-taking and prosecutions for HIV exposure and transmission’ in HIV Australia. Vol. 9 No. 4. AFAO. http://www.afao.org.au/library/topic/women/HIVA-9-4-ONLINE.pdf

AFAO (January 2011). The criminalisation of HIV: Criminal Law v Public Health. HIV Australia Vol. 8 No. 4. http://www.afao.org.au/view_articles.asp?pxa=ve&pxs=95&id=323

Australasian Society for HIV Medicine (2010). Guide to Australian HIV Laws and Policies for Healthcare Professionals. http://www.ashm.org.au/HIVLegal/Default.asp?  

Cameron S, Rule J, editors (2009). The Criminalisation of HIV Transmission in Australia: Legality, Morality and Reality. Sydney: National Association of People Living with HIV/AIDS. http://napwa.org.au/files/napwa%20monograph%2009.pdf

Australian Federation of AIDS Organisations (AFAO) (2009).  Criminal Prosecution of HIV Transmission: the policy agenda. http://www.afao.org.au/library_docs/policy/DP09_Criminal_Prosecution.pdf

Mitchell G (2009). Criminal Transmission of HIV: A guide for legal practitioners in NSW. HIV/AIDS Legal Centre. http://www.halc.org.au/downloads/crim_transmission.pdf

AFAO (2008). Criminalization of HIV Transmission and Exposure – Risk, Negotiation and Consent. HIV and the Law . Vol. 6 No. 4. http://www.afao.org.au/view_articles.asp?pxa=ve&pxs=103&pxsc=127&pxsgc=139&id=692

AFAO (2008). Reckless Endangerment Presentation. IAS Conference Mexico. http://www.slideshare.net/AFAO/reckless-endangerment-presentation/

Managing People Putting Others at Risk. Australian Health Ministers' Council meeting outcomes 24 July 2007. http://www.afao.org.au/library_docs/policy/AHMC%20_24%20July%2007_.pdf

NAPWA (January 2007). Criminalization and the Sexual Transmission of HIV. Policy Position.http://www.hivpolicy.org/Library/HPP001254.pdf

AFAO (March 2007). Criminal Prosecution of HIV Transmission, AFAO Position. http://www.afao.org.au/library_docs/policy/Criminal_Prosecution_March_07.pdf

Other laws and policies with an impact on responses to HIV

Laws and regulations relating to entry, stay or residence in the country: 

Applicants for visas to visit or migrate to Australia are required to meet certain health requirements. These help ensure that:

  • risks to public health in the Australian community are minimised
  • public expenditure on health and community services is contained
  • Australian residents have access to health and other community services in short supply.

Temporary visas

Applicants for a temporary visa do not generally need to complete an HIV test. The exceptions apply to temporary visa applicants intending to work or study to become a doctor, dentist, nurse or paramedic. Students (and their dependents) from sub-Saharan Africa who intend to study in Australia for 12 months or more are also tested for HIV.

Permanent visas

All applicants for a permanent visa must complete an HIV test if they are 15 years or older. People under 15 may be required to undergo testing if they:

  • are an applicant for adoption
  • are unaccompanied minor refugee children
  • have a history of blood transfusions
  • show clinical indications they have HIV.

If a person is found to be HIV positive, a decision on whether they meet the health requirement for a visa is considered on the same grounds as any other pre-existing medical condition. That is, the disease or condition is not likely to:

  • require health care or community services while in Australia
  • result in significant costs to the Australian community
  • prejudice the access of an Australian citizen or permanent resident to health care or community services.

If a person does fail the health requirement, some visa types have a health waiver available. In these circumstances, an applicant can seek to have the health requirement waived based on compelling or compassionate circumstances.

Up-to-date information, including information on Australia’s temporary and permanent visas, and the health requirements for each, is available at www.immi.gov.au.

People with HIV may immigrate to Australia if one of the following criteria is met: 

  • if he/she has a spouse (including a de facto spouse) who is an Australian citizen or permanent resident
  • if he/she has a fiance who is an Australian citizen or permanent resident
  • if he/she has a long-term same-sex relationship with an Australian citizen or permanent resident
  • if he/she is the dependent child of an Australian citizen or permanent resident
  • being a former Australian citizen
  • being a refugee

People applying on one of the above grounds still have to satisfy the Australian authorities that they will not

  • prejudice the access of Australian citizens to healthcare facilities
  • be a risk to public health or safety
  • constitute an undue cost to the Australian community.

Satisfying the first two criteria is not a problem for people with HIV, but they are sometimes refused permission to immigrate because of the cost of their health care. Costs are assessed for each individual applicant, based on his/her life expectancy and on an estimate of the total cost of the medication and of the hospital and other medical care services the person might require. It appears to the AFAO that this criterion is being enforced more harshly, and that more people with HIV are now being refused permission to immigrate because of the estimated costs of their healthcare, than was previously the case.

When entering Australia with their medications, visitors with HIV are advised to carry copies of the prescriptions for their medication with them, or a letter from their doctor listing the drugs the person will carry, and stating that the drugs have been prescribed for the person carrying them.

For longer temporary visas, HIV testing will be required, for example if a person seeks to enter Australia under a Business Sponsorship visa, to work in Australia for two years or more. If a person tests HIV positive, he/she will fail the health requirement, and will not be entitled to have the health requirement waived on compassionate grounds.

For updated information, please go to: www.hivrestrictions.org

Laws relating to same sex, sexual relations: 

Male to Male relationships: Legal

Punishments for male to male relationships: No law

Female to Female Relationships: Legal

Age of consent: Equal for heterosexuals and homosexuals

Marriage and Substitutes for Marriage: Marriage laws vary in this country depending on area

For updated information, please go to: http://ilga.org

Protective laws and policies for people living with HIV: 

Yes