New South Wales has a new Public Health Act starting today, with a small but important change in the way the Act deals with HIV.
The revised Act was passed by the previous Labor government, but has been waiting for gazettal for the last two years. NSW is one of two states in Australia (the other is Tasmania) that legally mandate HIV disclosure before sex, and the changes to the Act provide a new defence to prosecution for non-disclosure if the HIV-positive person can show they took ‘reasonable precautions’ to prevent transmission.
The relevant section of the new Act is as follows:
79 Duties of persons in relation to sexually transmitted infections (cf 1991 Act, s 13)
(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 [$5500].
(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.
The new s. 79 largely mirrors the old s. 13, with the added subsection 3 adding the defence of reasonable precautions.
This is a step forward for people with HIV in NSW, albeit a tiny one, but it’s unfortunate that the NSW parliament didn’t take the opportunity to remove the disclosure requirement altogether, or at least change the section to require disclosure or reasonable precautions.
Instead, including it as a defence opens the prospect of people being prosecuted for non-disclosure even though they practiced safe sex, with the defendant bearing the onus of proof to use the new defence. We don’t know yet what the courts will decide constitutes taking ‘reasonable precautions’, so there’s still a level of uncertainty as to what positive people have to do to comply with the law.
The legal requirement for disclosure has been on the books in NSW for two decades and it’s one of those laws that are honoured more in the breach than the observance. There must be countless thousands of cases of sex without disclosure happening in NSW every year, and yet there have only ever been two prosecutions. Sally Cameron explains, in a Facebook discussion:
NSW Public Health Act was used only twice. In the first case (2005), the case was dismissed due to lack of evidence. In the second (2009), the accused was found guilty but discharged without conviction. The single case that resulted in a conviction involved a man who had used a condom with his female partner, then disclosed his HIV pos status when he realised the condom had slipped & told her about PEP. Even the judge agreed that while technically an offence had been committed, a penalty was not warranted.
The purpose of the Public Health Act is to protect public health, and its provisions should be based on sound scientific evidence. HIV transmission is prevented by avoiding risky behaviours, not by forcing people to disclose their HIV status under penalty of law. Forced disclosure shifts the burden of prevention to the person with HIV, it violates the right to privacy and it stigmatises positive people. It also discourages people who might be positive from testing, as the law only applies to people who know they are HIV-positive.
It’s important to note that the changes are to the Public Health Act, and not the criminal law. People with HIV can still face charges of reckless behaviour causing grievous bodily harm in NSW if they transmit HIV.
ACON, Positive Life NSW and the HIV/AIDS Legal Centre have all welcomed the new legal defence.