The NSW Parliament has recently passed the Public Health Amendment (Review) Bill 2017 which seeks to make amendments to the Public Health Act 2010.
This was the culmination of a statutory review process undertaken by the NSW Ministry of Health. In November 2016, the Ministry tabled its final review, which made reasonable and appropriate recommendations for legislative change.
The majority of the recommendations that were proposed in the report in 2016 were contained in the recently passed Bill.
Importantly, the removal of the existing disclosure provision was supported. ACON is strongly supportive of this for a number of reasons. Firstly, it placed the legal responsibility for preventing HIV transmission on one person rather than framing it in the context of mutual responsibility. There are a range of ways to prevent HIV transmission and it is up all participants in sexual settings to consider the best way to prevent transmission.
Secondly, disclosure is not a reliable safeguard to transmission. We know that the person most likely to pass on HIV, is someone who doesn’t know that they have it (and therefore are unable to disclose). We also know that people with HIV with an undetectable viral load do not transmit HIV. Therefore this law did not reflect where the true risk of transmission lies. Regular testing needs to be encouraged, alongside direct prevention strategies, to reduce the number of people in the community with undiagnosed infection.
Thirdly, we know that people with HIV are highly motivated to prevent HIV transmission and this law implies that they are unable or unwilling to negotiate safe sexual practices with their partners. People with HIV have always been active and central partners in the HIV response and any positioning of this part of our community as separate or less trustworthy is unwarranted, unfair, stigmatising and hurts of all of us as a community.
Finally, the removal of disclosure requirements brings NSW into line with all other states and territories in Australia. Effective responses to HIV (and other STIs) do not require criminal sanctions – in fact, these damage and hold back efforts to end transmission and support the health of people with HIV.
ACON and others recommended that this section be replaced by a set of principles setting out the responsibility of people to neither contract nor pass on sexually transmissible infections, and this was also recommended by the NSW Ministry of Health.
Unfortunately this recommendation was not adopted by the Government.
Instead, a new offence has been created in Section 79 which requires someone who knows they have an STI (including HIV) to take "reasonable precautions", otherwise they would face a fine of up to $11,000 or prison time of up to 6 months.
It is disappointing that this offence was proposed by the NSW Government and passed by Parliament. The transmission of STIs is a health issue and should not be a criminal issue.
Unfortunately sexually transmissible infections continue to be treated differently to other infections and are subject to higher levels of sanctions and scrutiny.
In the debate in NSW Parliament, several MPs raised concerns about this new offence and an amendment was passed to bring forward the review to 2019 ahead of the scheduled statutory review in 2021. This will provide an opportunity for advocacy to occur to ensure that this section is repealed and replaced by measures that reflect good public health evidence and practice.
Over the coming two years, ACON will make it a priority to work with a range of stakeholders to secure changes to this section. The basis for this advocacy is contained within this briefing paper.
It is important that all Members of Parliament, as well as the broader community, understand that treating health issues within a criminal justice framework is counterproductive to public health.
For more information about criminalisation as it relates to HIV specifically, the ASHM Medical Consensus Statement on the sexual transmission of HIV and the law is available at:
We would like to thank our community sector partner organisations and individuals for their engagement in this process and their ongoing work to improve the health and wellbeing of our communities.