The Law and HIV Transmission

Public Health

Every state and territory has a public health system designed to help people understand what they need to do to avoid putting others at risk of HIV infection. These systems, which usually start with advice from a doctor and sometimes also a counsellor, are designed to be supportive. Doctors and public health counsellors understand there are many challenges involved in always behaving in ways that prevent HIV transmission and can provide excellent advice and support. Such support has proven very effective in the vast majority of cases, however, in unusual cases of a person not managing their behaviour and putting others at risk of HIV infection, states and territories are able to make public health orders. Although infrequently used, these orders may include restrictions on a person’s behaviour and, in rare instances, may include detention.

Additional to public health orders, there are specific public health laws that may be applied to any person who transmits HIV or exposes another person to HIV transmission. The wording (and consequently the requirements) of these public health laws and the penalties imposed vary considerably from state to state. Depending on the circumstances of the case and the state in which the offence occurred, a person convicted of such an offence would be liable for a fine of between $1,000 and $40,000 or imprisonment.

Criminal Law

In every state and territory, in certain instances an HIV-positive person who exposes another person to HIV or transmits HIV may be found guilty of a criminal offence. There have been relatively few criminal prosecutions for HIV exposure or transmission (some 28 since the first diagnosis of HIV in Australia in 1982), although there is some evidence that people may be being prosecuted more frequently than a decade ago.

Relevant criminal laws vary greatly between states, and in each state, possible charges differ according to the circumstances involved. Consequently, it is not feasible to list the range of possible offences in this booklet.

In summary, generally criminal law offences carry far weightier punishment than public health offences even though they may be applied to similar behaviours. In most instances, charges are not HIV specific but relate to a person having acted dangerously (e.g. ‘reckless conduct that places or may place another person at risk of serious injury’ [Vic]) or having caused injury or harm (e.g. inflicting grievous bodily harm with intent [NSW]). Charges and penalties vary depending on the circumstances involved and particularly, whether the act occurred intentionally, recklessly or negligently. Failure to disclose HIV positive status prior to sex remains central to all cases. Maximum penalties vary between states and territories but are generally from two years imprisonment (for acts that are negligent) to 15 years to life (for acts considered intentional).