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

IAIN BRADY outlines the operation of HIV disclosure law in NSW and its impact, both in theory and in practice, on HIV-positive people

The world leading response to the HIV epidemic that Australia has pioneered has from the start been based on bipartisan political action and the collaboration of the community based HIV sector, governments and health departments.

This partnership has been fundamental to developing and delivering public health policy and services, and the shaping of laws relating to HIV. It has ultimately been responsible for the effective containment of the spread of HIV in Australia, delivering one of the lowest prevalence rates in the world.

This partnership appears to be alive and well; it looks soon to produce a major step forward for NSW law, with the reformed Public Health Act 2010 (the 2010 Act) having passed both houses of parliament and receiving royal assent on 7 December 2010. It is yet to enter into force. ¹

Criminalisation – the legal view

Disclosure laws have long been a bugbear for people living with HIV (PLHIV) and for public health policy. Many countries have laws requiring HIV-positive people to disclose their status to others in a range of situations, core among these being prior to having sex. Papua New Guinea, for instance, in its reasonably progressive HIV/AIDS Management and Prevention Act 2003, requires disclosure prior to sex by an HIV-positive person. ² In Australia, the only jurisdiction to still require such disclosure prior to sex is NSW, albeit with a tandem exculpatory defence introduced in the new 2010 Act.

The rationale for the approach is simplistic; it is thought that if the law requires people living with HIV to tell sexual partners their HIV status, they will and that as a result they will either not have sex, or they will practise safe sex. The hope is that the rate of new infections will be lowered as a result.

Criminalisation in practice

The reality is starkly different. HIV stigma is ubiquitous and insidious. The predictable result of forced disclosure of HIV status is to engender anonymous sexual encounters, to harbour HIV denialism and foster reticence towards testing and knowledge of HIV status. Such laws detract from safe sex health messages which encourage self-care and care for sexual partners, while also undermining health care workers’ engagement with HIV-positive patients as they require counseling of unpalatable impositions. They undermine trust and confidence in relationships between practitioners and HIV-positive patients.

Disclosure requirements have been in force in NSW since the passage of the Public Health Act 1991 (the 1991 Act). ³ Under section 13 of the 1991 Act, an HIV-positive person must tell their sexual partner prior to having sex that they have the condition and that there is a transmission risk by having sex. ⁴ While the penalty for failure to observe this requirement has been modest, with a $5,500 maximum, the impacts of these disclosure requirements have been far-reaching; they undermine the work of healthcare workers and public health messages regarding safe sex, and stigmatise HIV.

Legally, section 13 has had limited impact but its existence has been a constant source of friction and concern within the sector. There have only been two prosecutions under the section since it was introduced. One was dismissed. The other, rightly, was dealt with by a bond and no conviction. ⁵ Its impacts resonate at a deeper level – there is a general stigmatising impact of such legislation, no matter whether the law is rarely applied. The disclosure requirement serves to reinforce fears of contagion.

Moreover there has been a dulling effect, which counters public health messages. People conscious of the requirement for disclosure have been comforted that they will be told of HIV status, as the law requires it. The requirement has given air to the question, ‘Are you positive?’ prior to sexual encounters, as if the answer should change behaviours. In our practice we have seen numerous people who have been infected after having been lulled into a false sense of safety within the construct created by the disclosure requirement.

We have seen other negative effects of this law in our practice. Recently we have seen two clients with problems emanating from this law. Both had sex without disclosure. One had safe sex. The other had unsafe sex in a park: there was little discussion. Afterwards each client was being blackmailed by their sex partner. The HIV status of the sex partner was unknown in both cases.

In one case, when the safe sex led to a possible transmission risk, our client disclosed and suggested post-exposure prophylaxis (PEP) to their sex partner. The client took him to hospital and paid for some medications. More money was then demanded in order to fix the problem. The other case involved unsafe casual sex; the HIV-positive client was quite drunk and the sex partner was quite eager to be penetrated. The threatening text messages over the following days indicated that a police complaint was on the cards. The receptive partner was pressing for disclosure – only after the fact, and having ignored recommendations to seek PEP and testing.

These cases speak more of the chilling effect of the disclosure requirement law, rather than an encouragement to comply with safe sex practices.

Law reform advocacy

In 2005, the NSW Government initiated a review of the 1991 Act, with a view to renovating it generally. That review lead to a new draft legislation, the Public Health Bill 2010 Consultation Draft which was released for public comment in February last year. The consultation draft was disappointing. It contained many deleterious proposals for changes to the 1991 Act in respect of HIV management and privacy. The proposal for Section 13 was for renumbering, a clearer title, and higher penalties. ⁶ Despite extensive HIV sector efforts during the review process from 2005 onwards, it seemed there was to be only deleterious change to the 1991 Act.

The partnership between the community- based HIV sector, the NSW Health and the bipartisan engagement of politicians came into play again powerfully. The community and professionally-based HIV sector made submissions and representation jointly and individually. Australasian Society of HIV Medicine (ASHM), the Australian Federation of AIDS Organisations (AFAO) and ACON notably headed a strong joint submission focused on section 13, which was largely adopted by the Ministerial Advisory Council. ⁷ They provided a Sondheimian chorus calling for positive change to the consultation draft. They jointly vocalised the span of arguments and positions against the 1991 Act disclosure provisions.

The thrust of the community-based HIV sector and Ministerial Advisory Council recommendation was for the adoption of best practice legislation such as expressed in the Victorian Public Health and Wellbeing Act 2008. Its section 111 states:

111. Principles

The following principles apply to the management and control of infectious diseases–

(a) the spread of an infectious disease should be prevented or minimised with the minimum restriction on the rights of any person;

(b) a person at risk of contracting an infectious disease should take all reasonable precautions to avoid contracting the infectious disease;

(c) a person who has, or suspects that they may have, an infectious disease should-

(i) ascertain whether he or she has an infectious disease and what precautions he or she should take to prevent any other person from contracting the infectious disease; and

(ii) take all reasonable steps to eliminate or reduce the risk of any other person contracting the infectious disease.

It is to the great credit of the NSW Government, NSW Health and the Health Minister, Carmel Tebbutt that the process of public exposure and consultation was genuine and responsive. By around the middle of 2010, there was finally agreement with NSW Health that the Consultation Draft would be amended to reflect the views of the sector and re-engage the successful partnership of Government, NSW Health and community sector agencies, with bipartisan support.

The devil is as always in the detail.

The amended Bill was introduced to Parliament on 23 November and has passed both houses, being assented to on 7 December 2010. The new provisions contained in Section 79 are, relevantly:

'79 Duties of persons in relation to sexually transmitted infections

(1) A person who knows that he or she suffers from a sexually transmitted infection is guilty of an offence if he or she has sexual intercourse with another person unless, before the intercourse takes place, the other person:

(a) has been informed of the risk of contracting a sexually transmitted infection from the person with whom intercourse is proposed, and

(b) has voluntarily agreed to accept the risk.

Maximum penalty:

50 penalty units.

and;

(3) It is a defence to any proceedings for an offence under this section if the court is satisfied that the defendant took reasonable precautions to prevent the transmission of the sexually transmitted infection.’ (Author’s emphasis)

The Minister’s second reading speech addressed the reforms, stating:

‘The bill before the House provides in clause 79 (3) that a person charged with such an offence has a defence if he or she satisfies a court that he or she took reasonable precautions to prevent the transmission of the sexually transmitted infection. The availability of this defence is an important inclusion. It is important to encourage individuals to take reasonable precautions. Reasonable under the Act will be measured on an objective standard and will include safe sex practices, protecting the people using them from liability just as it will protect them and their partners from disease transmission. It is essential to recognise that this type of positive physical and behavioural precaution is far more effective in protecting public health than the verbal disclosure of an infection. However, where there is a malicious or criminal intent associated with the transmission of a sexually transmitted infection, there are provisions in the Crimes Act that allow for criminal prosecution.’

Current legal landscape of HIV transmission

While there is essentially no change to the lead directive provision of the section, i.e., the requirement to disclose, there is now a defence. This broadly means that the NSW legal position conforms with the best practice model proposed by the community-based HIV sector; the new provisions do loosely conform with the health message of self care and care for others. Although they fall short of the principled statement in the Victorian Act, they will allow health care workers to appropriately and legally advise HIV-positive people in accordance with best practice in public health. They will avoid the patient alienation engendered by the previous unworkable provision.

The downside is that better, principled public policy affirming change has been deferred. These provisions, because they camouflage the faults, may be difficult to amend. They will likely be seen as a sufficient compromise, although not the best we can do. The stigmatising effect remains, as does the false security generated by the requirement for disclosure. The provisions leave HIV-positive people open to a charge of failing to disclose their status prior to sex. The defence would have to be raised in court. The stress of that process, the jeopardy and the potential shaming effect continues the stigma of the provision. It fails to engage appropriate and shared commitments to safe behaviours.

The 2010 Act allows the Government to maintain the position that HIV-positive people are required to disclose their status prior to having sex, placating persistent fears by conservative elements unfamiliar with the public health policy realities and considerations. In this sense, the drafting of the Act is a deft political move to effect positive change without resistance, though there is still further to go from a public health legal perspective.

1 As at 20 December 2010.

2 HIV/AIDS Management and Prevention Act 2003 [PNG] Section 24: REASONABLE CARE, states:
‘A person who is, and is aware of being, infected with HIV shall –

(a) take all reasonable measures and precautions to prevent the transmission of HIV to other, including the use of condom or other effective means of protection from infection during sexual intercourse; and

(b) be inform any intended sexual partner or any person with whom a skin penetrative instrument is to be shared, in advance of the sexual intercourse or sharing of the skin penetrative instrument, that he is infected with HIV, and the taking of those measures and precautions and the giving of that information shall constitute the taking of reasonable care within the meaning of Section 286 of the Criminal Code Act 1974.’

3 The Public Health Act was assented in 1991, commencing on 18 November 1991.

4 The Act, Section 13 relevantly states:

(1) A person who knows that he or she suffers from a sexually transmissible medical condition is guilty of an offence if he or she has sexual intercourse with another person unless, before the intercourse takes place, the other person:

(a) has been informed of the risk of contracting a sexually transmissible medical condition from the person with whom intercourse is proposed; and

(b) has voluntarily agreed to accept the risk.

5 The maximum penalty for the offence was set at 50 penalty units, currently equivalent to $5,500.

6 Application of Section 10 (1) (b) of the Crimes (Sentencing Procedure) Act NSW 1999

The new section was to read:

‘76 Persons with sexually transmitted diseases to inform sexual partners

(1) A person who knows that he or she has a sexually transmitted disease is guilty of an offence if he or she has sexual intercourse with another person, unless before the intercourse takes place, the other person:

(a) has been informed of the risk of contracting a sexually transmitted disease from the defendant, and

(b) has voluntarily agreed to accept the risk.

Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.’

7 The submissions by interested parties may be obtained from NSW Health.

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