Are we victims of our own success? Addressing the gaps in Australia’s enabling environment

HIV Australia | Vol. 12 No. 2 | July 2014

By Sally Cameron

The trajectory of social values is not linear … progress is not assured.²

Arguments for an enabling environment are not simply about addressing human rights or demonstrating a fine moral compass. They are pragmatic³ because effective HIV strategy requires inclusivity and ‘buy-in’ from affected communities.

We started well. The emerging public health crisis (known first as GRID, then AIDS and eventually HIV) galvanised affected populations. It was a community crisis.

Gay men, people living with HIV, sex workers and people who inject drugs organised. Some brave individuals outed themselves – as having HIV, as gay, as a sex worker or as someone who injects drugs … and by putting a face to the ‘name’, they humanised the epidemic, and owned it.

Communities were active and adamant. Medical and nursing staff risked their own health as well as social judgement.⁴ And by some stroke of great good fortune, our governments were interested and (mostly) brave.

In the absence of effective medical interventions, attention turned to the social and legislative factors driving HIV stigma and increasing risk of HIV transmission.

A new phrase was coined: the ‘enabling environment’. It described the necessity of a supportive legal and policy framework required if HIV education and related public health measures were to work.

Those at risk of HIV infection and those living with HIV must be engaged in the HIV response. As it turns out, attention to the ‘enabling environment’ has proven a concept fundamental to the success of Australia’s HIV response.

In early 1990, the Intergovernmental Committee on AIDS established a Legal Working Party to review legislation impacting HIV/AIDS and make recommendations for law reform.

Their report, including 89 recommendations for reform of diverse laws,⁵ was considered a blueprint for national law reform. While acknowledging that different jurisdictions would need to consider local needs and priorities, both the Intergovernmental Committee on AIDS and the Australian Health Ministers Advisory Council unanimously endorsed the report and its recommendations.

Australia’s approach to HIV became an international model, and accolades followed, including invitations to Australian jurists to develop international guidelines on a human rights-based approach to HIV.⁶

Reform slows

The introduction of antiretroviral therapy (ART) in the mid-90s facilitated a shift in focus to medical interventions: HIV was treatable.

Next, effective treatments triggered a reconceptualisation of HIV as a chronic manageable condition, and we started to ponder the implications of living with HIV long term.

Recently we’ve focused on (arguing about) the importance of increasing HIV testing and early diagnosis, early treatment initiation and treatment as prevention. While treatment advances are inarguably wonderful, they have meant that HIV is no longer considered a community crisis requiring radical legal and policy interventions.

Lack of political will is compounded by the unintended consequences of a great deal of great policy analysis and law reform that has delivered impressive results.

So too the HIV prevention efforts of peer organisations of sex workers, people who use injecting drugs and their allies has proven so effective that there is no HIV ‘crisis’ in these populations.

We’ve leveraged some fundamental reforms in Australian law and policy, and consequently facilitated a shift in Australian social values and norms: a shift that has greatly improved the lives of many in affected populations. At this point, do we really need to take on the hard stuff?

Successive Australian national HIV strategies have lauded the enabling environment and the importance of legal and human rights issues, however, they are no longer priorities. Although included in the strategy, they are linked only to broad not specific ‘priority actions’ or ‘implementation strategies’?

Despite sustained advocacy by some (more than others), the more contentious issues of law reform have been adrift for some time.

Discrimination

Australian anti-discrimination law is unrecognisable when compared to the legal landscape of the early 1980s. State and federal law make it unlawful to discriminate against any person with HIV or any person thought to have HIV.

Under state law, it is also unlawful to discriminate against people on the grounds of sexuality (variously described in different jurisdictions), and gender identity (also variously described) in most instances.

Recent reform of Commonwealth anti-discrimination law also makes discrimination unlawful on the grounds of sexual orientation, gender identity and (a first in the world) intersex status. Anti-discrimination protections extend beyond ‘anti-discrimination law’.

In 2008 the Australian Government introduced legislation to remove discrimination affecting same-sex couples and their children from 85 Commonwealth laws. These included changes to tax, superannuation, social security, Medicare and the Pharmaceutical Benefits Scheme, aged care, child support, immigration, citizenship and veterans’ affairs.

Despite such tangible achievements, real gaps remain: notably, anti-discrimination law exemptions allowing religious organisations to discriminate against individuals on the grounds of sexual orientation and gender identity, including in employment and provision of services.

These exemptions are particularly galling given many religious organisations now provide services previously provided by Commonwealth agencies.

There is also the seemingly intractable thorn in the side: federal marriage law precluding same-sex marriage.

People with a history of injecting drug use are completely locked out of anti-discrimination complaint mechanisms despite stigma and discrimination against people who inject drugs being ‘pervasive and entrenched’,⁷ including in relation to access to health care.⁸

Anti-discrimination laws have largely failed to address discrimination against sex workers. Sex work related anti-discrimination laws exist in the ACT, Queensland, Tasmania and Victoria, and while it’s a start, those laws are narrowly defined and their application limited. In other states, anti-discrimination laws provide no protection.⁹

Criminal laws

By 1997, laws regulating or criminalising gay sex had been repealed in all Australian states and territories, although it must be noted that the last government to fall (yes, you Tasmania) had to be dragged kicking and screaming to the United Nations Human Rights Committee (1994) with a three year lag before state legislation was introduced.¹⁰p>

Age of consent for sexual activity varies across seven of Australia’s eight state jurisdictions (either age 16 or 17) but is otherwise uniform across heterosexual/ homosexual practice.

Queensland remains the notable exception, maintaining a lower age of consent for heterosexual sex (16 years) than sex between men (18 years).

Needle and syringe programs have proven extremely effective, with an estimated 32,000 HIV infections averted, and net financial cost savings exceeding a billion dollars between 2000 and 2009.¹¹ Yet, incredibly, peer distribution of clean injecting equipment (both common and effective) remains illegal in most states.

Laws criminalising injecting drug use in all states and territories exacerbate risk of harm as drug source and quality is frequently unknown, and injecting often occurs in covert environments where injecting is hurried and (crucially for HIV) clean equipment is not available.

Peer-led organisations face an uphill battle implementing HIV prevention measures in an environment where the target group is criminalised, ostensibly driving people who inject drugs away from mainstream services.

The peculiar regulation of sex work across Australia includes decriminalised, licensed and criminalised approaches, with no two of the eight jurisdictions the same.

Things seemed to be looking up when in 1979, the NSW Government decriminalised sex work.¹² ¹³ Research has consistently shown that decriminalisation has facilitated health promotion,¹⁴ improved occupational health and safety,¹⁵ and eradicated police corruption.¹⁶

It has not increased the incidence of sex work in NSW,¹⁷ or led to greater numbers of sex workers compared to states where similar sex work practice is illegal.¹⁸ ¹⁹ By comparison, licensing has proven expensive for governments and business,²⁰ and created a two-tiered system of legal and illegal workers, with illegal workers wary of public health services.²¹

Criminalisation drives sex work underground, reducing access to health and other social supports and impeding outreach. It increases risk of STIs for sex workers and clients as it reduces sex workers’ capacity to exercise control over their work.²²

Police continue to use condoms as evidence that illegal sex work has occurred: a slap in the face to HIV prevention strategies. Notably, criminalisation has not eradicated criminalised practices.²³

Yet, despite the much researched health benefits of decriminalisation, no other state or territory government has moved to a decriminalised model, and the NSW model has recently come under renewed threat.²⁴

Criminalisation of HIV

All Australian states and territories have criminal laws that can be applied to cases of HIV transmission or exposure through sex.

Such cases have been reserved for instances where the accused is alleged to have failed to disclose their HIV status before sex: effectively criminalising sex without disclosure – not HIV transmission per se, as many cases have involved only the risk of HIV transmission (exposure) without HIV transmission occurring.

There are 40 (known) prosecutions: not many given the more than 32,000 HIV diagnoses that have been made in Australia to date,²⁵ ²⁶ but puzzling given that in many instances, there seems little to differentiate these cases from many of the 1000 new HIV infections that occur through sex each year.

Cases are varied: a single or multiple sexual encounter(s); short liaisons or long term relationships; recent encounters or those that occurred long before trial.

Prosecutions undermine the enabling environment because they negate public health messages of mutual responsibility for safe sex practice. They create a false expectation that HIV-positive people will disclose,²⁷ and suggest people can rely on disclosure as a core safe sex practice.

There is no evidence at all that HIV-related prosecutions facilitate disclosure of HIV status prior to sex or decrease risk taking. To the contrary, almost half (45%) of those surveyed for HIV Futures 7 said they were concerned about disclosing their HIV status prior to sex because of the law.²⁸

Furthermore, disclosure has been shown to decrease the likelihood of condom use,²⁹ greatly increasing HIV risk given some 30 percent of new HIV infections among men who have sex with men are the result of sex with men who believe themselves to be HIVnegative.³⁰

The criminalisation of HIV is particularly frustrating given that public health regulations offer remedies that can be tailored to the complexities of individual cases where a person is putting others at risk.

Health systems

Australia is fortunate to have a Medicare system (often) providing access to free or affordable medical services, a Pharmaceutical Benefits Scheme which heavily subsidises the cost of medication, and a social security safety net which further reduces the price of medication for those on limited incomes.

Those particularly concerned about issues of privacy, can access sexual health clinics that are able to offer HIV testing without requiring disclosure of a name or address. Still, laws and regulation continue to undermine effective HIV strategy.

The cost of HIV treatments and treatment co-payments remain a major issue for many people living with HIV. Further, dispensing restrictions mean that frequently medication can only be collected from hospital pharmacies during business hours: an onerous requirement for many in terms of travel and managing work commitments.

In some states, public health laws require that sex workers undergo regular sexual health screening and prevent people working while infected with an STI.

The unfortunate consequences of such laws were borne out in massive negative media coverage of a 2011 ACT case in which a man was charged for undertaking sex work while infected with an STI (HIV), despite no suggestion that he placed any clients at risk of HIV infection (hence no further charges were laid).

Australian research suggests that mandatory testing is expensive, invasive, unnecessary, and without benefit to the individual. Mandatory testing fails to reach the intended target group, draws testing resources away from high risk populations, and does not reduce HIV infection rates.³¹ ³² ³³

A significant proportion of the Australian prison population is incarcerated for drug related offences. In turn, ‘having ever been in prison’ is identified as in independent risk factor for hepatitis C infection³⁴ because unsafe injecting practices occur in prisons,³⁵yet clean injecting equipment is not available in Australian prisons. Despite being announced in 2012, Australia’s first prison syringe program (in the ACT) is yet to commence operation.³⁶

Conclusion

Advocacy for a stronger legal and policy framework is not easy or without risks. Agencies have been defunded for pushing their politicised agenda ‘too hard’.

Governments too fear an electoral backlash, and not without reason. Still greater effort is required to extend our enabling environment to deliver greater successes in HIV prevention, care and support.

Without constant vigilance, hard won victories can quickly be taken away … and there is yet more to be done.

Sally Cameron is HIV Education and Health Promotion Officer – Policy at AFAO

References

1 This article is based on research and analysis undertaken in the development of an article by Sally Cameron and John Godwin for AIDS Education and Prevention, June 2014: ‘Barriers to Legal and Human Rights in Australia in the Era of HIV Treatment as Prevention’.

2 Masters, J. (2005). Social Values and Public Policy: From Opportunities to Rights and Back to Opportunities. Center for Community Futures. Retrieved from: www.cencomfut.com/social_values.htm

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4 Van Reyk, P. (2014). Life during wartime: Nursing on the frontline at Ward 17 South at St Vincent’s Hospital, HIV Australia, Vol. 12, No. 1. AFAO, Sydney.

5 Commonwealth of Australia. (1992). The Final Report of the Legal Working Party of the Intergovernmental Committee on AIDS, Department of Health, Housing and Community Services, Canberra.

6 Office of the High Commissioner for Human Rights (OHCHR), Joint United Nations Programme on HIV/AIDS (UNAIDS) (1998). International Guidelines on HIV/AIDS and Human Rights. OHCHR and UNAIDS, Geneva.

7 Anti-discrimination Board of NSW. (2001). C-Change: Report of the Inquiry into Hepatitis C Related Discrimination. Attorney General’s Department, Sydney.

8 Treloar, C., Abelson, J., Cao, W., et al. (2004). Barriers and Incentives to Treatment for Illicit Drug Users. Monograph Series. No. 53. Australian Government, Canberra.

9 Scarlet Alliance. (2011). Submission on the Commonwealth Government’s Proposed Consolidation of Anti-Discrimination Laws.Scarlet Alliance, Sydney.

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13 Abuses such as sexual assault or trafficking continue to be covered by criminal law.

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