HIV Law Reform

HIV Law Reform

Fundamental to Australia’s success in responding to HIV has been the creation of a supportive legal framework, commonly referred to as an ‘enabling legal environment’.

The construction of a supportive legal and policy framework protects people with HIV and key populations against human rights abuses and discrimination. The result is that HIV prevention, care and support strategies targeting each community are more likely to be effective.

The central role of people with HIV and people affected by HIV in building the ‘enabling’ environment has been key to Australia’s approach in responding to HIV. Community-led policy analysis and law reform advocacy has ensured the maintenance of a human rights framework that generally supports prevention strategies.

Public health policy

HIV is a notifiable disease in all Australian jurisdictions, meaning that medical practitioners must notify health authorities when an HIV diagnosis is made.

HIV is a notifiable disease in all states and territories, providing a mechanism for doctors to mandatorily report de-identified HIV diagnoses. Medical records remain confidential, and laboratories and state, territory and national databases (maintained by Departments of Health and the Kirby Institute) are given coded information regarding each HIV diagnosis and related data (such as age, location, mode of transmission).

Public health legislation in each state allows health authorities to manage people with HIVwho are at risk of transmitting HIV to others. This management typically involves a series of interventions, beginning with counselling and escalating to imposition of a public health order and even confinement if necessary

Criminal prosecutions of people with HIV

Each state and territory has different laws under which people may be prosecuted for transmitting or exposing others to HIV.

Criminal prosecution of people for exposure or transmission of HIV is problematic because prosecutions:

  • do not reduce HIV transmission risk
  • single out HIV as worse than other chronic conditions
  • attribute blame to the individual accused
  • reduce trust in health care practitioners, which may affect individual’s treatment options as well as transmission risk
  • increase stigma against people living with HIV
  • increase the number of people living with HIV in Australian prisons
  • are unacceptably arbitrary.

Criminal prosecutions stigmatise people living with HIV and discourage people who engage in high risk-behaviours from engaging with the health system.

Mandatory HIV testing laws

The South Australian, Western Australia and Northern Territory governments have passed mandatory testing laws that provide police and emergency service workers with the authority to mandatorily test individuals accused of spitting on, or biting, them for HIV and other BBVs.
AFAO is particularly concerned that these laws reinforce common misunderstandings of HIV and other BBV transmission. These laws perpetuate outdated understandings of HIV and BBVs fuelling anxieties experienced by police who might be spat on or bitten.

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

AFAO’s Background Briefing: Spitting and Mandatory Testing for HIV and other Blood Borne Viruses (2015) summarises key issues in relation to recent laws passed in SA and WA providing for forced BBV testing of individuals who are considered to have potentially exposed a police officer to the risk of contracting a BBV.

The more in-depth Briefing Paper: Mandatory testing for BBVs for alleged offenders in South Australia & Western Australia details how these laws perpetuate the common misconception that HIV can be transmitted through contact with saliva, such as through spitting, and confuse issues about HIV risk and third party transmission.

Sex work law reform

Scarlet Alliance, the Australian Sex Workers’ Association, recommends the full decriminalisation of sex work in every Australian state and territory, combined with anti-discrimination protections at federal and state levels as an essential component of improving human rights.

Decriminalisation includes:

  • The removal of police as regulators of the sex industry
  • Repealing criminal laws specific to the sex industry  (including  laws  that criminalise sex workers, our workplaces, clients and support structures)
  • Regulating sex industry  businesses  through  standard business,  planning  and  industrial  codes, and
  • No singling out sex workers for specific regulation.

All jurisdictions should amend their anti-discrimination legislation to include protections for sex workers.

Drug law reform

The Australian Injecting and Illicit Drug User League (AIVL), calls for the elimination of punitive drug treatment approaches and expanded drug treatment options, including injectable pharmacotherapies.