Australia

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Video and written reports for Beyond Blame: Challenging HIV Criminalisation at AIDS 2016 now available

08 Sep 2016
On 17 July 2016, approximately 150 advocates, activists, researchers, and community leaders met in Durban, South Africa, for Beyond Blame: Challenging HIV Criminalisation – a full-day pre-conference meeting preceding the 21st International AIDS Conference (AIDS 2016) to discuss progress on … More

Global advocacy highlights against HIV criminalisation presented at AIDS 2016

22 Jul 2016
Yesterday, at the International AIDS Conference in Durban, the HIV Justice Network and GNP+ presented highlights relating to global advocacy against HIV criminalisation based on updated research from our Advancing HIV Justice 2 report. Advancing HIV Justice: Building momentum in … More

HIV Justice Network presents important new HIV criminalisation data today at AIDS 2016

21 Jul 2016
Today, at the International AIDS Conference in Durban, the HIV Justice Network and GNP+ will present important new data on HIV criminalisation based on updated research from our Advancing HIV Justice 2 report. Global Trends in HIV Criminalisation (Download the … More

Australia: Zaburoni v Queen legal analysis

26 Jun 2016
This analysis is by David Buchanan SC, Barrister at Forbes Chambers, Sydney. It was originally published in LGBT Law Notes and is republished here with his permission. In a case that should reduce the extent of overcharging in HIV criminal … More

Australia: Queensland people living with HIV organisation, QPP, issues position statement on HIV criminalisation (press release)

07 Apr 2016
Queensland Positive People (QPP) is a peer-based advocacy organisation which is committed to actively promoting self-determination and empowerment for all people living with HIV (PLHIV) throughout Queensland. Below is their press release issued on 6 April 2016 in the light … More

Australia: New campaign launched by state PLHIV organisation to amend HIV disclosure requirement in New South Wales’ Public Health Act

08 Mar 2016
Positive Life’s Communications and Policy Officer, Scott Harlum (pictured), explains why the organisation will advocate for changes to HIV disclosure requirements in the Public Health Act as part of the review. The Public Health Act is a key piece of … More

Australia: Victoria’s HIV-specific criminal law, Section 19A, finally repealed today

28 May 2015
In a joint media release, Living Positive Victoria and the Victorian AIDS Council have welcomed the passage of the Crimes Amendment (Repeal of Section 19A) Act 2015 by the Victorian Parliament. The Act repeals Australia’s only HIV-specific law criminalising the … More

[Feature] Beyond Blame: Challenging HIV Criminalisation

01 Oct 2014
Beyond Blame: Challenging HIV Criminalisation A pre-conference meeting for AIDS 2014 In July 2014, at a meeting held to just prior to the International AIDS Conference in Melbourne, Australia around 150 participants from all regions of the world came together … More

Outrage HIV Justice Film Festival debuts at AIDS 2014 in Melbourne, first ever film festival to focus on HIV criminalisation

30 Jun 2014
In the lead-up to AIDS 2014, ten powerful thought-provoking films from seven countries over three days (18, 19 and 21 July 2014) will outrage Melbourne film-goers by exploring how laws and policies aimed at controlling, punishing or disempowering specific groups … More

Australia: Campaign against Victoria’s HIV-specific criminal law launched to tie in with Melbourne Declaration for AIDS 2014

19 May 2014
Living Positive Victoria, the organisation representing people living with HIV in the Australian state of Victoria, has launched a campaign for community and cross-party political support to reform the state’s HIV-specific criminal law, the only such law in Australia. Section … More

Research agenda into the public health impact of overly broad HIV criminalisation highlights five areas where researchers and advocates can collaborate

31 Jan 2014
A newly published report suggests a number of concrete ways that research into the impact of overly broad HIV criminalisation on public health can move the policy agenda forward, and help reform laws and create better policies for people living … More

UNAIDS announces new project examining “best available scientific evidence to inform the criminal law”

27 Apr 2011
A new project announced yesterday by UNAIDS will “further investigate current scientific, medical, legal and human rights aspects of the criminalization of HIV transmission. This project aims to ensure that the application, if any, of criminal law to HIV transmission … More

Australia: Defendant in AU$750k Sydney gay civil case now faces criminal charges

30 Jul 2010
A 55 year-old gay man who was successfully sued for AU$757,487 in April for allegedly misrepresenting his HIV-positive status as HIV-negative to his former long-term partner who is now also HIV-positive, is now facing criminal charges. one count of “cause … More

Australia: Man gets 4 1/2 years for impossible HIV transmission

16 Dec 2009
Update: December 16thWepukhulu Zebtek was sentenced to four-and-a-half years in prison by Judge Allan Fenbury who “said the sentence would deter other carriers of the HIV virus from not informing their sexual partners”. Mr Zebtek will be eligible for parole … More

Australia: New publication examines criminalisation; works as advocacy tool

24 Nov 2009
NAPWA monograph:click on image to downloadThere have been some very important policy developments in Australia recently that I’ve been waiting to post about until I’d finished reading the entire (Australian) National Association of People Living With HIV/AIDS (NAPWA) monograph, The … More

Last reviewed 01 June 2017

Specific laws

Specific law enacted No

Previously one state (Victoria), reformed May 2016

Specific law criminalising HIV non disclosure, exposure, or transmission: Yes

Prosecuted using non-HIV specific laws: No

Prosecuted using both specific and non specific laws: Yes

Is non-disclosure actionable: No

Is exposure actionable: Yes

Is transmission actionable: Yes

Prosecutions

Number of prosecutions 39

Includes 4 charged under public health laws

Convictions

Number of convictions 21

Estimated, includes 3 public health law convictions

Laws

Applicable laws

There is no specific criminal law about HIV transmission in any of the eight Australian jurisdictions since the repeal of Section 19A of the Victorian Crimes Act 1958 in May 2015. However, there are numerous laws and regulations in place to address instances of people who put others at risk of HIV transmission.

In all states and territories: intentional or reckless transmission of HIV is a crime:

  • Intentional transmission means where the accused person has the infection of the other party as their desired and intended outcome, and transmission actually occurs

  • Reckless transmission is where the accused knew the transmission of HIV was a possible or probable consequence of their actions, and they failed to take adequate precautions to prevent it occurring.

In Victoria, South Australia and the Northern Territory, prosecutions are also possible for endangerment i.e. for placing another person in danger of contracting HIV. Following changes to the law in NSW and Tasmania (2015), disclosing HIV status is now not legally required in any part of Australia, provided the person takes “reasonable precautions” to prevent the transmission of HIV. “Reasonable precautions” is not defined by law in any jurisdiction. While using condoms for anal or vaginal sex is generally accepted as satisfying the test; the status of relying on other precautions such as an undetectable viral load remains untested.

While laws vary between states and territories, in every state and territory two systems apply: public health and criminal law.

Public Health

Every state and territory has a public health system designed to help people understand what they need to do to avoid putting others at risk of HIV infection. These systems, which usually start with advice from a doctor and sometimes also a counsellor, are designed to be supportive.  

In cases of a person not managing their behaviour and putting others at risk of HIV infection, states and territories are able to make public health orders. Although infrequently used, these orders may include restrictions on a person’s behaviour and, in rare instances, may include detention.

Additionally, there are specific public health laws that may be applied to any person who transmits HIV or exposes another person to HIV transmission. The wording (and consequently the requirements) of these public health laws and the penalties imposed vary considerably from state to state. Depending on the circumstances of the case and the state in which the offence occurred, a person convicted of such an offence would be liable for a fine of between $1,000 and $40,000 or imprisonment.

Furthermore, the South Australia Public Health Act 2011 contains a general duty to 'prevent or minimize any harm to public health'. The relatively new offences of causing a “material” or “serious” risk to public health both carry variable but significant penalties: ranging from a fine of between $25,000 and $1,000,000 and/or imprisonment 2-10 years.

Criminal Law

In certain instances, an HIV-positive person who exposes another person to HIV or transmits HIV may be found guilty of a criminal offence. There have been relatively few criminal prosecutions for HIV exposure or transmission (some 39 to date), although there is some evidence that people may be being prosecuted more frequently than a decade ago. Relevant criminal laws vary greatly between states, and in each state, possible charges differ according to the circumstances involved. Consequently, it is not feasible to list the range of possible offences.

Generally criminal law offences carry far weightier punishment than public health offences even though they may be applied to similar behaviours. In most instances, charges are not HIV specific but relate to a person having acted dangerously (e.g. ‘reckless conduct that places or may place another person at risk of serious injury’ [Vic]) or having caused injury or harm (e.g. inflicting grievous bodily harm with intent [NSW]). Charges and penalties vary depending on the circumstances involved and particularly, whether the act occurred intentionally, recklessly or negligently. Maximum penalties vary between states and territories but are generally from some two years imprisonment (for acts that are negligent) to 15 years to life (for acts considered intentional).

Applicable key wording

In all states and territories: intentional or reckless transmission of HIV is a crime:

  • Intentional transmission means where the accused person has the infection of the other party as their desired and intended outcome, and transmission actually occurs

  • Reckless transmission is where the accused knew the transmission of HIV was a possible or probable consequence of their actions, and they failed to take adequate precautions to prevent it occurring.

In Victoria, SA and the NT, prosecutions are also possible for endangerment i.e. for placing another person in danger of contracting HIV.

Following changes to the law in NSW and Tasmania (2015), disclosing r HIV status is now not legally required in any part of Australia, provided the person takes “reasonable precautions” to prevent the transmission of HIV. “Reasonable precautions” is not defined by law in any jurisdiction. While using condoms for anal or vaginal sex is generally accepted as satisfying the test; the status of relying on other precautions such as an undetectable viral load remains untested.

 The Australian Capital Territory public health law states that a person who has HIV, or thinks they may have HIV, must take reasonable precautions to prevent transmission. ‘Reasonable precautions’ include precautions taken on the advice of a doctor or authorised officer.

 In New South Wales, people living with HIV must disclose their status before sex, unless they take “reasonable precautions” to prevent transmission (Public Health Act 2010, Section 79).

 In the Northern Territory, there are no general public health laws dealing with HIV transmission or disclosure of HIV status, however, there are departmental guidelines that may be applied to people identified as putting others at risk of infection. If people fail to follow public health orders, they may be prosecuted. Disclosure is not required if you take reasonable precautions. People with HIV can be charged with “recklessly endangering serious harm” if they place another person at risk of contracting HIV (Criminal Code s 174D).

 Under Queensland law disclosure is not required, However, people living with HIV must not “recklessly put someone at risk of” or “recklessly transmit” HIV (Public Health Act 2005). It is a defence if the person knew the accused was infected with HIV and voluntarily accepted the risk of infection.

 In South Australia, disclosure is not required, however HIV-positive people can be charged with a crime if they engage in conduct that places another person at risk of HIV (Criminal Law Consolidation Act 1935, Section 29). In addition the relatively new offences of causing “material” or “serious” risk to public health (Public Health Act 2011 Sections 57-58, respectively) both carry significant penalties, including large fines and/or imprisonment. The Act contains a general duty on all persons in the community who undertake activities to ensure that they take reasonable steps to 'prevent or minimize any harm to public health'. This general duty has been designed to be the centrepiece for the Acts’ operation, including its most common means of enforcement. Draft Guidelines developed by the South Australian Department for Health and Ageing expressly name HIV as one of a broad range of contexts to which the ‘outcomes measured’ test related to the general duty can be applied.

 Tasmanian law changed in 2015. Public health law no longer requires disclosure of HIV-positive status before sex but a person who knows they have HIV must take all reasonable measures and precautions to prevent transmission, and must not knowingly or recklessly place another person at risk. It is a defence if the other person knew of, and voluntarily accepted, the risk of getting HIV.

 According to Victorian law, disclosure is not automatically required, however people living with HIV may be charged with the offence of “conduct endangering persons” under the Crimes Act 1958 if they engage in behaviour that places another person at risk of acquiring HIV without first disclosing their HIV status and obtaining the other person’s consent.

 Western Australia’s public health laws have little bearing on HIV as they deal with diseases transmitted through casual contact, however, departmental guidelines may be applied to people identified as putting others at risk of infection. If people fail to follow public health orders, they may be prosecuted.


Discussion

Australia’s only HIV-specific criminal law was repealed on 28 May 2015. According to Section 19A of the Victorian Crimes Act 1958 it was a criminal offence to intentionally transmit a ‘very serious disease’, defined only as HIV. The section carried a maximum 25-year prison sentence, making it one of the most serious crimes in the State. Treating intentional HIV transmission as a more serious offence than other many other forms of violence reinforced stigma by suggesting that people living with HIV were inherently dangerous. The law had been enacted in 1993, following a number of cases in which blood-filled syringes were used in armed robberies and a high-profile case in which a prison officer (in another state) was stabbed with a hypodermic syringe. Although the law was supposedly passed to deal with such incidents, in practice it was applied exclusively against people accused of sexual transmission of HIV.

The HIV Legal Working Group was formed in 2010 by the two largest HIV organizations in in the State. After failing to obtain prosecutorial guidelines, it focused on repealing Section 19A of the Crimes Act 1958 (Vic) as a clear advocacy target linked to the 20th International AIDS Conference (AIDS 2014) in Melbourne, Australia, 20-25th July 2014. The group developed a policy brief setting out the case for repeal and sought dialogue with both parties in the months before the conference. During the conference both the ruling and opposition parties publicly supported repeal, which finally took place under the Labor Government (former opposition) in May 2015.

Section 19A of the Crimes Act 1958 (Vic), the only HIV specific criminal offence in Australia, treated intentional HIV transmission as inherently more serious than other forms of violence, reinforcing stigma; suggesting that people living with HIV were inherently dangerous; and was never used in the circumstances for which it was originally enacted (the deliberate transmission of HIV by a blood-filled syringe). The only known conviction under 19A  occurred in 2009. Michael John Neal, a 50-year-old gay man, was charged with two counts of intentional transmission and 14 counts of attempted intentional transmission under 19A. He was acquitted of the intentional transmission counts and found guilty on eight counts of attempted intentional transmission (five of which were overturned on appeal). On appeal, the final sentence in Neal was seven years for the first count, plus 18 months each for the remaining two counts (ten years total) (Source: Living Positive Victoria/Victorian AIDS Council, 2014).


Further reading

http://www.hivjustice.net/site/news/?country=360&from-month=-1&from-year=-1&to-month=-1&to-year=-1

Australian Federation of AIDS Organisations (June 2016). Gay Men & HIV Disclosure. http://www.afao.org.au/__data/assets/pdf_file/0005/4595/674_afao_factsheet_HIV_disclosure_2016_3.pdf

Paul Kidd (2 March 2016). Laying down the law, Positive Living, Autumn 2016 at 10. National Association of People with HIV Australia (NAPWHA), http://www.positivelivingmagazine.com.au/content/laying-down-law

Living Positive Victoria/Victorian AIDS Council (8 July 2014). Policy Brief: Repeal of Section 19A. http://www.livingpositivevictoria.org.au/_literature_169693/Policy_Brief_Repeal_of_Section_19A.pdf

Edwin J Bernard and Sally Cameron. Advancing HIV Justice 2: Building momentum in global advocacy against HIV criminalisation. HIV Justice Network and GNP+. Brighton/Amsterdam, April 2016. http://www.hivjustice.net/wp-content/uploads/2016/05/AHJ2.final2_.10May2016.pdf

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

South Australian Public Health Act 2011. Version 17.6.2013.https://www.legislation.sa.gov.au/lz/c/a/south%20australian%20public%20health%20act%202011/current/2011.21.un.pdf

Department for Health and Ageing (2011). South Australian Public Health Act 2011. General duty, notices and emergency situations, offences. Draft Guidelines (for Consultation). http://www.lga.sa.gov.au/webdata/resources/files/Draft_Guidelines_-_General_Duty_and_Notice_and_Emergency_Situations.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

Latest cases and news can be found at: http://www.hivjustice.net/country/au/

Cases

Overview

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. The latest best estimate by the Australian Federation of AIDS Organisations (2016) is 39 prosecutions with at least four cases involving public health laws up to 2012. Given that there are an estimated 21,391 people living with (diagnosed) HIV in Australia (Source: The Kirby Institute), prosecutions per capita of people living with HIV are estimated at 1.68 per 1000.

 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 R v. B in 1995, while 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 11 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. 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.




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

As the total number of prosecutions has increased, so too has the range of situations in which charges have been made. Up to 1st April 2012, of 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 people living with HIV 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. 

Last reviewed 01 June 2017

Last reviewed 01 June 2017

Last reviewed 01 June 2017