HIV and the Law

HIV and the Law

All people should enjoy full human rights free from discrimination regardless of their HIV status. At the same time, individuals need to understand how the law may affect them in light of their HIV status.

 

Discrimination

In Australia, the Disability Discrimination Act 1992 makes it illegal to discriminate on the grounds of a person’s HIV positive status for employment, education, the provision of goods, services and facilities, accommodation, buying or selling property, club membership, sport and administration of Commonwealth programs.

 

Privacy and Confidentiality

There are laws in most states in Australia that protect the confidentiality of people with HIV (PWHIV). This means that it’s generally against the law for doctors, nurses and health care providers to tell anyone that you’re positive without your consent.

People using My Health Record with or affected by blood borne viruses and sexually transmitted infections or communities where legislative barriers still affect their health, may want to further explore the implications of data sharing around My Health records and the implications that this may have on privacy and confidentiality. More information about My Health Record can be found in AFAO’s consumer Fact Sheet here.

Also, the general public are not bound by the laws noted above so if you’re concerned about privacy you make sure you are able to trust the people you tell.

 

Disclosure

In some states you are legally required to disclose your HIV status to sexual partners.

Other situations where disclosure may come into play are outlined below:

  • The law states that HIV positive people cannot donate blood, semen, ova or any other body tissues, so application forms given to potential donors may ask about HIV status.
  • The Department of Immigration and Border Protection requires anyone applying for permanent residency and some other types of visas to provide the results of an HIV test.
  • You may be asked about your HIV status if applying for life insurance or by your superannuation fund. Some companies may refuse to insure you or apply conditions on your insurance if you are HIV positive or if you refuse to tell them your status. There may be similar requirements for other types of insurance, such as travel insurance.
  • People working in healthcare are required to disclose their HIV status if they will be performing exposure-prone procedures.
  • People applying to work in the defence forces are required to test for HIV.

 

Criminalisation

There are laws across Australia that can be used to charge an individual with recklessly, negligently or deliberately exposing someone or transmitting HIV to another person. In Australia, state and territories have the authority to enact and enforce these criminal laws. Some jurisdictions have specific offences relating to transmission, while in others HIV positive people have been charged with offences such as causing ‘grievous bodily harm’.

AFAO has long advocated against the criminal prosecution of people with HIV. Prosecutions relating to sexual transmission of HIV undermine public health efforts and stigmatise people living with HIV as dangerous and harmful. This has the effect of discouraging key populations from accessing testing and engaging with the health system.

AFAO’s Background Briefing: Application of Australian Criminal Laws in Cases of HIV Sexual Transmission and Exposure (2015) summarises key policy issues and potential responses.

 

Mandatory Testing

The South Australian, Western Australian and Northern Territory governments have introduced laws that allow forced testing for blood borne viruses (BBVs) of individuals accused of certain offences. These forced testing laws perpetuate the misconception that HIV can be transmitted through saliva, such as through spitting or biting. These laws also confuse issues about HIV risk and third party transmission.

AFAO’s Background Briefing: Spitting and Mandatory Testing for HIV and other Blood Borne Viruses summarises key issues in relation to the laws passed in SA and WA.

The more in-depth Briefing Paper: Mandatory testing for BBVs for alleged offenders in South Australia & Western Australia describes how these laws perpetuate the common misconception that HIV can be transmitted through contact with saliva and details how the laws came into existence.

 

Sex work

Australia’s Seventh National HIV Strategy includes sex workers as one of the communities affected by HIV.

There is no known case in Australia of a sex worker transmitting HIV to a client through sex work. However, in some states, being a HIV positive sex worker is a criminal offence. HIV positive sex workers can also be at risk of criminal prosecution under various state and territory laws regarding HIV exposure and transmission.

Scarlet Alliance, the Australian Sex Workers Association, has extensive experience in documenting the impacts of the different models of sex industry regulation. Scarlet Alliance advocates for the decriminalisation of sex work. Decriminalisation is the most beneficial environment for a sex worker’s human and industrial rights, and health.

Click here for more information on Scarlet Alliance and its activities.

 

Advice and referrals

If you believe you have been treated unfairly or discriminated against in any way because of your HIV status then you can contact your local AIDS Council for information and support.

You can also contact the Australian Human Rights Commission, Australian Health Practitioner Regulation Agency or your Local Community Legal Centre.

If you would like to speak confidentially to someone about HIV and the law, you can speak to your local AIDS councils and/or People with HIV organisations for information and referral to legal and specialist services.

You can also contact HALC (HIV/AIDS Legal Centre). HALC also has a range of guides on HIV and the law, including state specific guides and other information here.