HIV Australia | Vol. 8 No. 4 | January 2011

MELISSA WOODROFFE explains how suppression orders are used protect the confidentiality of a person’s HIV status in court

The legal system in Australia is based on the long-standing principle of open justice. As such, the business of our courts is open to the public (and hence the media) . who may attend, with very limited exceptions.

Clearly this has implications for people living with HIV who come before the court system, either as offenders or as victims. When a person's HIV status is to be raised in a court or tribunal, what protections exist to prevent this information being more widely circulated to members of the public and to the media?

Why is suppression of a person's HIV status important in the court system?

HIV remains a condition that is subject to stigma and discrimination in society and many people living with HIV are very careful about when and to whom they disclose their HIV status. It should be remembered that there are only very limited circumstances in which a person is required to disclose their HIV status. Thus, many people choose to keep the information private and do not inform their employer, and sometimes do not even tell friends or family.

Where a person has been treated badly due to their HIV status, for example, discriminated against or vilified, it is important that they are able to come forward and make a complaint. Clearly people are going to be discouraged from making a complaint if it causes their HIV status to become widely known via media reports, or through members of the public attending Court. Hence the importance of suppression orders in such matters.

The existence of a supportive legal system has assisted Australia's response to the HIV epidemic by fostering an environment where the rights of HIV-positive people are respected and protected. This supportive legal environment extends to the maintenance of confidentiality regarding a person's HIV status in the court system and other areas of life.

Recent court cases related to HIV transmission have aroused considerable media interest. The reporting of such cases by the media is often sensationalised and designed to engender fear and panic in the reader. Such reporting has the potential to jeopardise and undermine successful public health measures by negatively affecting public perception of HIV and HIV-positive people.

Under what circumstances might a person's HIV status be raised in court?

The laws relating to HIV transmission and disclosure of positive status differ across Australian states/territories, with some jurisdictions including provisions regarding disclosure in both criminal and public health statutes. In NSW, for example, the Crimes Act 1900 provides for offences in relation to the deliberate or reckless transmission of HIV, and the Public Health Act makes it an offence to fail to disclose one's HIV status prior to sexual intercourse. Furthermore, across jurisdictions, a person's HIV status may be relevant to the sentencing process, as either an aggravating or mitigating factor.

There will be many instances where the person living with HIV is the victim, by virtue of experiencing discrimination or vilification, for example. It is important that in such circumstances, a person who has been discriminated against or vilified on the basis of their HIV status, or perceived HIV status, is able to come forward and make a complaint and seek an appropriate remedy without worrying that their HIV status will become public knowledge during a hearing or be reported in the media.

The legal situation regarding suppression of information heard in a court or tribunal

Some powers to make suppression orders are clearly articulated within a statute (for example the Public Health Act and the Administrative Decisions Tribunal Act provide powers to close a court and to make suppression orders). In other instances, powers to make suppression orders are provided to courts by the common law.

There are three main types of protection under the umbrella of 'suppression orders':

• to close the courtroom to the public;
• to prohibit any publication of the details of the matter; and
• to provide for the use of pseudonyms for all parties and for the exclusion of any other identifying information, so that when the decision is published or reported in the media the HIV-positive person cannot be identified.

Inherent power of the courts to make suppression orders

Suppression orders on their own do not prevent the public or media from attending a court hearing and listening to and observing proceedings. While penalties exist for breaches of suppression orders, often the damage will already have been done in terms of disclosure of the information. The courts ultimately have to balance the competing interests of the public interest in open justice and the importance of maintaining the confidentiality of a person's HIV status.

A closed court, with associated use of pseudonyms in any published decision provides the greatest level of protection to the privacy of an HIV-positive person. However, a closed court impacts to the greatest extent on the principle of open justice.

In the absence of any statutory authority, under common law the power to make suppression orders is part of the implied power of the court. The courts have power to make such orders as are reasonably necessary to secure the proper administration of justice in the proceedings before them. ¹

The test is one of necessity, namely, whether it is 'really necessary to secure the proper administration of justice' in the proceedings. ² The necessity for such measures would arise only in 'wholly exceptional' circumstances, not merely in situations where such measures would be useful or desirable ³ or would save embarrassment, distress or financial loss. ⁴

Statutory powers to make suppression orders

Public Health Legislation

Section 13 of the Public Health Act 1991 (NSW) makes it an offence to fail to disclose one's HIV status prior to sexual intercourse, irrespective of whether safe sex practices are used. Section 37 of the Act allows for the local court to be closed when alleged offences under this section are heard. This is particularly important given that without such protection, even a person found not guilty of the charge would still have lost control over who had knowledge of their HIV-positive status.

Equivalent legislation in Victoria is broader in scope and more sophisticated. Section 133 of the Public Health and Wellbeing Act 1998 (Vic) provides that a court or tribunal should make an order to close the court where evidence is proposed to be given in a matter before a court or tribunal of any matter relating to HIV, and where the court considers that the disclosure of the information would cause adverse social or economic consequences to the person.

Anti-Discrimination Legislation

The Administrative Tribunal Act 1997 gives the Administrative Decisions Tribunal the discretion to make suppression orders if the tribunal is satisfied that it is desirable to do so due to the confidential nature of the matter, or for any other reason. This is an important protection for people who have been discriminated against, victimised, or vilified as a result of their HIV-positive status.

What examples are there of suppression orders being used in respect of a person's HIV status?

Our centre has made a number of applications for suppression orders on behalf of HIV-positive clients. One example concerned a man who had been discriminated against on the basis of his HIV status in the course of his employment at a hotel in a small town. An application was made to close the court to the public. Orders were made to anonymise the names of all the parties, including witnesses, and to remove any mention of the name of the town or hotel involved so that the complainant could not be identified. Similar orders were obtained for a case of HIV vilification against a gay, HIV-positive couple in another NSW town.

In X v Y, a UK case, an injunction was sought to prevent a newspaper from publishing the names of two HIV-positive doctors working in a hospital. ⁵ The paper had obtained the information from confidential hospital records, and argued that there was an overriding public interest in disclosing the information, because the public was entitled to know that the doctors had HIV. The court held that the public interest in preserving the confidentiality of hospital records outweighed the public interest in the freedom of the press to publish the information, because people with HIV must not be deterred from seeking appropriate testing and treatment. The court recognised that confidentiality in relation to a person's HIV status is important . to protect the interests of the person themselves and also to reinforce public health strategies to encourage testing.

Suppression orders have been obtained in a number of Australian criminal cases, protecting the identity of victims and (at times by default) the accused. However, in the case of Mwale, suppression orders were not allowed. Mwale was charged with deliberately infecting a number of partners with HIV. It was held that the public interest in alerting possible sexual partners of the accused (so that they could seek immediate medical advice and testing) outweighed the public interest in preserving the confidentiality of the accused's medical condition.

A recent case in Sydney involved a taxi driver who was charged and convicted of sexual assault. The judge took into account the accused's HIV status in determining his sentence (at the time of the offences the defendant was HIV-negative, so it had no bearing on the assaults). The Supreme Court of Criminal Appeal agreed with the District Court decision to not allow suppression on the basis that the public interest in hearing the reasons for sentencing outweighed the interest in maintaining the confidentiality of medical information. After the sentencing, where the man's HIV status was revealed, the media picked up on the HIV aspect of the case to make sensationalised headlines that completely misled the readers as to the nature of the case, for example:

'A cruel discovery for victims - taxi driver who raped them had HIV.' ⁶

Clearly the man's HIV status had no relevance to the offences, since he did not have HIV at the time of the offences. The headlines served no purpose other than to further stigmatise HIV and people who live with HIV.

In summary, the availability of suppression orders is an extremely important power of the court. Without the availability of these orders to protect the confidentiality of complainants' HIV status, they would in many instances be extremely reluctant to proceed with their complaints. However, in the absence of any statutory authority to make suppression orders, the courts will make a judgement by balancing the public interest in favour of open justice and the public interest in protecting confidential medical information.

References

1 John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 per McHugh JA at 477; John Fairfax Group Pty Ltd v Local Court of NSW (1992) 26 NSWLR 131 at 160; Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 per Mahoney AJ at 345; John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR 344 at 24.37.

2 John Fairfax & Sons Pty Ltd v Police Tribunal of NSW (1986) 5 NSWLR 465 per McHugh JA at 477.

3 John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 per Spigelman CJ at 45.

4 Attorney-General (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 per Mahoney JA at 347; John Fairfax Group Pty Ltd v Local Court of NSW (1992) 26 NSWLR 131 per Kirby P at 142.143.

5 X v Y [1988] 2 All ER 648.

6 Gibson, J. (2010, June 23). 'A cruel discovery for victims - taxi driver who raped them had HIV. Sydney Morning Herald'. Available at: http://www.smh.com.au/nsw/a-cruel-discovery-for-victims--taxi-driver-who-raped-them-had-hiv-20100622-vrd.html (accessed 17 December 2010).

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