HIV and the law
Australia’s success in responding to HIV is rooted in a supportive legal framework that protects people with HIV and affected communities from human rights abuses and discrimination, enhancing the effectiveness of HIV prevention, care and support strategies.
The involvement of people with HIV and communities affected by HIV in shaping this legal environment has been crucial to Australia’s approach. Community-led policy analysis and law reform advocacy have ensured the maintenance of a human rights framework that generally supports prevention strategies.
HIV and Public Health Legislation in Australia
Public health legislation in each Australian state regulates public health and disease response. HIV is a notifiable disease nationwide, requiring doctors to notify health authorities upon diagnosis.
This notification is de-identified, keeping medical records confidential. Coded information (age, location, transmission mode) is shared with laboratories and state, territory and national databases (maintained by the Departments of Health and the Kirby Institute).
Public health legislation in each state allows health authorities to manage people with HIV who are at risk of infecting others. Very few people with HIV are subject to these public health mechanisms. This management typically involves a series of interventions, beginning with counselling and escalating to the imposition of a public health order and even confinement if necessary.
Anti-discrimination laws
Discrimination based on HIV infection is unlawful throughout Australia. HIV is covered by both federal and state and territory legislation. Federal law – the Disability Discrimination Act 1992 – not only protects people living with HIV but also people believed to have HIV and those who associate with them. This helps prevent discrimination based on misconceptions or false information. The history of the development of anti-discrimination legislation makes it clear that the definition of ‘associate’ is intended to include homosexual as well as heterosexual partners.
State and territory anti-discrimination legislation makes it unlawful to discriminate on the grounds of ‘disability’ or ‘impairment’, including HIV infection. In the ACT and NSW, it is also illegal to vilify a person with HIV. In Tasmania, it is unlawful to incite hatred on the grounds of disability, including HIV.
Law reform priorities
Evidence-Based Approach vs. Criminalisation
Although Australia’s response to HIV has prioritised an evidence-based public health approach, specific laws inadvertently criminalise HIV transmission, exposure and misrepresentation of HIV status.
These laws not only reinforce stigma but also discourage testing and health-seeking behaviour. Reviewing these laws in light of current HIV evidence is crucial to support Australia’s goal of eliminating transmission.
Stigma and Fear of Prosecution
People living with HIV should not have to fear prosecution due to their HIV status. However, some existing laws still reflect outdated fears and prejudices towards people living with HIV, the gay community, people who inject drugs and sex workers.
Impact of Media Coverage
Moreover, media coverage that ignores the contemporary medical realities of HIV perpetuates these views and the associated stigma. The media needs to report accurately and sensitively to help combat misinformation and reduce stigma.
People living with HIV
In Australia, no criminal law criminalises explicitly the transmission of or exposure to HIV. The repeal of the country’s last HIV-specific criminal legislation in 2015 highlighted the recognition that addressing deliberate HIV transmission is more effectively achieved through a public health approach.
Laws which have a substantial and adverse impact on persons with HIV:
- criminalise HIV transmission, exposure and the failure to disclose HIV status to a sexual partner
- define consent in a way that may expose people with HIV to criminalisation
- enable mandatory disease testing that adversely impacts people with HIV.
Criminalisation of HIV transmission, exposure, non-disclosure
While no HIV-specific criminal law exists, individuals can still be prosecuted for the transmission of or exposure to HIV under general criminal law provisions. Public health legislation in some jurisdictions also criminalises HIV transmission or exposure, or both. Various state and territory criminal acts include provisions for charging individuals who intentionally or recklessly transmit or expose others to the risk of acquiring infectious diseases. HIV is often singled out due to stigma and is notably the only blood-borne virus or sexually transmitted infection prosecuted under these laws in practice.
Consent laws
Specific laws define consent in a manner that exposes individuals with HIV to criminalisation. While these laws emphasise mutual affirmative consent, they could inadvertently criminalise misrepresentation of HIV status even when individuals are on HIV treatment with a suppressed viral load, rendering them unable to transmit HIV. Consideration should be given to expanding exemptions within consent laws to include HIV when an individual is virally suppressed.
Mandatory disease testing
Laws enabling mandatory disease testing can disproportionately affect individuals with HIV. Six Australian jurisdictions have mandatory disease testing laws that permit HIV testing if a person’s bodily fluids come into contact with police or emergency services personnel. This contradicts numerous state and territory HIV testing policies, as well as the National HIV Strategy, which emphasises voluntary testing, informed consent and confidentiality.
Sex workers
Scarlet Alliance, Australian Sex Workers Association, recommends the full decriminalisation of sex work in every Australian state and territory.
The full decriminalisation of sex work removes sex work-specific criminal and licensing laws and police powers for all sex workers. Under decriminalisation, laws and regulations that apply to all other workers will apply to sex workers.
Scarlet Alliance, in a briefing paper, has outlined what decriminalisation means, including:
Removal of sex work-specific criminal and licensing laws: Eliminate all sex work-specific criminal and licensing laws and police powers. Licensing creates a two-tiered industry, excluding many sex workers and leading to criminalisation and police targeting. Licensing laws are costly, challenging to comply with, and do not support sex worker rights or safety.
Equal treatment: The decriminalisation of sex work gives sex workers access to existing workplace laws that protect worker’s health, safety and privacy.
Full decriminalisation is not deregulation: Planning, taxation, and industrial laws would still apply.
No Mandatory Registration: Oppose mandatory registration, which threatens privacy and increases stigma and discrimination.
Against Forced Zoning: Laws or policies that force sex workers into specific locations are harmful to their safety and well-being.
Voluntary Health Practices: Support voluntary health practices rather than mandatory STI and BBV testing, perpetuating stigma.
Fair Advertising: Sex workers should be able to advertise services and employment opportunities clearly and without fear of criminal penalties.
Collaborative Work: Allow private sex workers to work together for safety, cost-sharing, and support without being criminalised.
Full decriminalisation involves repealing all sex work-specific laws across states and territories, and must be accompanied by anti-discrimination protections and the expungement of criminal records related to sex work.
People who inject drugs
The Australian Injecting and Illicit Drug User League (AIVL) calls for the elimination of punitive drug treatment approaches and expanded drug treatment options, including injectable pharmacotherapies.
HIV and immigration
Australia’s migration legislation and regulations impose strict health policies on permanent residence applicants, known as the ‘Health Requirement.’ Australian law mandates assessing applicants with chronic health conditions to determine if they will incur a ‘significant cost’ to the community for health care and services. Current policy indicates that applicants with HIV are generally considered to represent such a cost.
The Health Requirement aims to manage public spending and protect the Australian population from health risks. Applicants testing positive for HIV undergo further evaluation to estimate their medical and pharmaceutical costs over the next ten years. Their visa may be denied if these costs exceed the ‘significant cost threshold’ (currently $51,000). As HIV-related costs typically surpass this threshold, applicants with HIV often do not meet the health criteria, resulting in application refusals unless a waiver is available.
The Department of Home Affairs is reviewing the significant cost threshold and the immigration health requirement to align them with contemporary treatments and attitudes towards disability and health conditions. This review seeks to ensure the sustainability of health and community services for Australian residents, considering the impacts on people living with HIV, their families, communities and employers.