HIV Australia Vol. 4 No. 2 - Legal

December 2004 - February 2005

‘Enabling environment’ or environmental degradation?

By John Godwin

A hallmark of Australia’s national HIV/AIDS response has been the commitment to law and policy reforms that provide an ‘enabling environment’ for prevention, treatment and care efforts.

Past National HIV/AIDS Strategies recognised that such an ‘enabling environment’ was one characterised by protective and supportive laws and policies that promote the rights of affected communities, rather than punitive or coercive measures that might impede effective HIV/AIDS responses by alienating affected populations. Past Strategies recognised the need to systematically address this ‘enabling environment’ as crucial to sustaining the success of the national response. Indeed in the 4th National Strategy, the ‘enabling environment’ of supportive laws and public policies was the first of four priority areas for action, the other areas being health promotion, treatment, care and support, research and international assistance.

In the post-HAART era, there is talk of a new consensus emerging, in which testing, treatment and care and prevention aspects can be managed largely within a medical paradigm. Social impacts, such as vilification and ostracism, are increasingly viewed, by and large as a historical phenomenon, or issues for which adequate laws and policies already exist.

Halcyon days

The inclusion of ‘enabling environment’ in previous strategies had its origin in the approach taken to HIV/AIDS in the late 1980s. Governments and communities alike recognised from the early days of the epidemic that HIV/AIDS was far broader than a health issue. The Ottawa Charter for Health Promotion of 1986 had introduced the notion of ‘healthy public policy’, the need to scrutinise the health impact of public policies. Governments at state and federal level took ownership of Ottawa Charter principles in HIV/AIDS and other areas of health policy. This coincided with public health professionals’ advocacy of what became known as ‘the new public health’, new ways of addressing disease control that defined and challenged the broader social determinants of health through social policy interventions.

From the perspective of the communities hardest hit by HIV/AIDS, the policy agenda in the 1980s was readily apparent: health promotion would be greatly assisted by introducing legal protections from discrimination for people living with HIV/AIDS, and by decriminalising homosexuality, sex work and possession of needles and syringes.  And so, by and large, law reform in these areas came to pass.

Governments were in many instances keen to grapple with legislative aspects of the epidemic. Anti-discrimination and privacy laws were passed, and most states and territories introduced HIV-inspired amendments to their public health and criminal laws. This provoked often-vigorous community debate. HIV/AIDS policy was a field with a media profile. Issues such as condoms in prisons, needle exchanges, employment and treatment rights were live political issues.

Various working parties mapped out reform agendas across topics such as discrimination, privacy, censorship, insurance, prisons, euthanasia and family law. Most notably, the Final Report of the Legal Working Party of the Inter-Governmental Committee on AIDS (1992) set a wide ranging law reform agenda for Australia that guided advocacy and reform directions for a decade to come. Throughout the 1980s and 1990s, the Commonwealth provided leadership, often working closely with AFAO and the health sector (in line with the Strategy’s underpinning partnership principle), by addressing many of these areas in a proactive way and defining model approaches and principles for reform across all jurisdictions and portfolios.

Important principles to emerge from this work included:

• Use of a human rights framework as a starting point for policy responses, particularly the rights of people living with HIV/AIDS and those of vulnerable populations – gay men, people who inject drugs, sex workers, prisoners and Indigenous Australians – with a particular emphasis on rights to informed consent, privacy and confidentiality, equality and non-discrimination.

• The importance of the participation of people living with HIV/AIDS and affected communities at all stages of law and policy formulation, review and reform.
• Harm reduction as a guiding principle for both policy reforms and health promotion practice with people who use illicit drugs, and increasingly with other populations, such as gay and other homosexually active men in the context of reducing the risks of sexual transmission.

Our work here is done … Far from it!

A social mobilisation and community health model requiring ‘whole of government’ action on HIV/AIDS that previous Strategies aspired to is now in danger of being superseded by an increasingly medicalised response.

This danger was evidenced by the attempt to marry HIV and STIs in the 2004 Consultation Draft of the 5th National Strategy. STIs such as chlamydia that are readily treatable and which affect the general population as a whole may be reasonably well served by a medical model of disease control. However the complex prevention, care and social impact challenges presented by HIV/AIDS demand and require a much broader, community-based response.

To ensure that social policy and law reform issues do not fall off the HIV/AIDS Strategy agenda, AFAO recommended in its response to the Consultation Draft of the 5th Strategy that a new Legal Working Party be established in 2005. Much of the detail of the policy work conducted under previous Strategies was done through a Legal Working Party that reported to the national HIV/AIDS advisory bodies. The previous Legal Working Party ceased to function in 2003. A revived Legal Working Party could be convened by the Ministerial Advisory Committee on HIV/AIDS, Sexual Health and Hepatitis (MACASHH), to report on actions required. AFAO recommended that this Working Party should have input from the states and territories (via the Intergovernmental Committee on HIV/AIDS and Related Diseases representation) and draw on expertise within the affected communities (e.g. via National Association of People Living with HIV/AIDS [NAPWA], AFAO, Australian Injecting and Illicit Drug Users League [AIVL] and Scarlet Alliance).

Whether or not such a mechanism is established under the 5th National Strategy, the reality is that policy makers, legislators and advocates will continue to grapple with a diverse range of law reform and policy issues that directly impact on people living with and affected by HIV/AIDS.

A Rights Agenda for the 5th National Strategy?

Stigma and discrimination

The findings of the HIV Futures 4[i]study reminded us that discrimination is still a reality for many people living with HIV/AIDS by highlighting the ongoing experiences of less favourable treatment of people living with HIV/AIDS in areas such as provision of health care services, housing and insurance.

HIV/AIDS discrimination has been addressed within broader disability discrimination laws that were introduced over the last ten to fifteen years. These laws are now coming up for review. For example, the federal Disability Discrimination Act was reviewed by the Productivity Commission in 2004 (Review of the Disability Discrimination Act 1992, 30 April 2004). The HIV/AIDS related implications of legislative changes that may flow from these reviews will require careful scrutiny.

Anti-discrimination laws have always been patchy in their coverage of HIV-affected populations. Reforms are required to ensure that laws adequately protect populations such as sex workers and people who use illicit drugs. AFAO has opposed proposals to change anti-discrimination laws to make it lawful to discriminate against a person on the grounds of the person’s use of illicit drugs.

At a policy level and regardless of legislative changes, improved standards and industry practices are required in relation to insurance that take into account changes to morbidity and mortality as a result of HAART.

Sex work

Criminal laws and ineffective brothel licensing models continue to impede health promotion with sex workers in most jurisdictions. Sex worker groups have raised concerns about the health impacts of new sex work laws that are being proposed as a result of reviews in Tasmania and the Northern Territory. Sex workers are likely to remain a priority population for prevention efforts under the 5th National Strategy. Although sex work laws fall primarily within state and territory jurisdictions, the Australian Government should provide leadership in promoting legislative models that result in optimal health outcomes for sex workers, clients and the general public. The Strategy should promote the introduction of occupational health and safety standards that can be developed in an open and collaborative way with the industry.

The Australian Government is playing an increasingly active role in relation to anti-trafficking law and policy but this tends to be wholly within the context of law enforcement strategies. Sex worker groups such as Scarlet Alliance are arguing for the refocusing of trafficking policy towards the protection and promotion of the rights of migrant sex industry workers to workplace health and safety, and access to health and support services.

Illicit drug use

Priorities identified by AFAO relating to drug use and HIV/AIDS include reform of criminal laws such as personal use offences that may hinder harm reduction efforts, the introduction of an appropriate regulatory framework for new harm reduction initiatives such as medically supervised injection facilities, and the regulatory reforms required for piloting new approaches that states or territories may pursue such as prescription heroin or, as backed by Premier Carr in NSW in 2004, the medicinal use of cannabis.[ii] 

Gay equality

Since the First National Strategy, there have been sweeping gay law reforms in most jurisdictions, but inequalities still exist that hinder health promotion. Further, there is the potential for hard fought reforms to be wound back. For example, the WA Liberal Party adopted a policy prior to the February 2005 state election of seeking to overturn reforms by raising the age of consent for gay male sex to 18, and banning gay adoptions. Had the Liberal Party won that election, gay law reform in that state would in all likelihood have been set back several years. The 5th Strategy should restate the benefits to HIV/AIDS and STI health promotion efforts with gay and homosexually active men that are associated with legal equality, anti-violence protections, supportive school curricula and other inclusive social policies.

Testing and syringe technologies 

Issues that require action include regulation of rapid-test kits and retractable syringe technologies to ensure that any negative impacts on prevention efforts that may flow from the introduction of new technologies are minimised.

Public health and criminal laws 

Ongoing monitoring is required of the impact of recent Supreme Court cases relating to pre-test counselling and duty of care. Debates about how to best manage instances of reckless conduct placing other at risk continue. Media coverage of HIV related prosecutions is often unhelpful and alarmist, and can generate fear and stigma that causes distress to people living with HIV/AIDS and hinders health promotion efforts. There is a need for sharing of experiences across jurisdictions to inform improvement of departmental and prosecution guidelines.

Privacy

It will be particularly important to monitor the impact of the roll out of electronic medical records systems, such as the Australian Government’s HealthConnect project, on people living with HIV/AIDS and HIV/AIDS service providers. Confidentiality concerns for people living with HIV/AIDS are often different from other patient groups, in that there may be good reasons (e.g. relating to experiences of discrimination in health care provision) why a person will want their HIV-related records kept separate from other health records. Medicare ‘smartcards’ and HealthConnect could inadvertently have adverse public health impacts. For example, young people may be deterred from accessing STI or drug user services if they fear that their clinical records are likely to be accessed by their parents or other third parties. This underscores the need for ongoing efforts to ensure that robust privacy protection is part of HealthConnect implementation. 

Trade laws

Implementation of the 5^th National Strategy would benefit from an assessment of the medium to long term impact of the US/Australia Free Trade Agreement, patent laws and World Trade Organisation rules on acess to HIV treatments in Australia and in the Asia Pacific region more broadly, an area of policy that bridges Australia’s domestic and international HIV/AIDS strategies.

Migration

Migration problems continue to be one of the most commonly reported areas of legal difficulty experienced by people living with HIV/AIDS. Migration regulations allow migration officers a discretion in granting entry permits to people living with HIV/AIDS, depending on compassionate circumstances and other matters. Concerns have arisen regarding consistency in the application of this discretion (the ‘health waiver’) to people with HIV/AIDS.  It is important that migration rules operate fairly and do not discriminate unreasonably. There is also a need to monitor the rights of people in migration detention to voluntary HIV and STI testing, treatment and care. 

Given the history of HIV/AIDS in Australia and elsewhere as a highly politicised disease, it should come as no surprise that the epidemic continues to throw up new and challenging policy and legislative issues. In the past, it has made sense to resolve such challenges with reference to the objectives and principles of the then current National Strategy. Advocates and policy makers have been able to tap into national structures such as the Legal Working Party to investigate the pros and cons of different approaches and to nut out best practice. Erosion of the capacity for Government and the community sector to maintain national overseeing of developments in these areas would be a real threat to the coherence of the national response.

The responsibility to remedy this situation now rests squarely with the new MACASHH and its subcommittees that begin their work on the 5th Strategy in 2005. May they rise to the challenge.

This article was written by John Godwin in his capacity as an AFAO policy analyst.