New South Wales

New South Wales (NSW) does not have an HIV-specific law, but the general criminal law has been used to prosecute perceived HIV ‘exposure’ and alleged transmission.

All known HIV criminalisation cases in NSW have involved men accused of HIV transmission. A number of provisions have been used to prosecute these cases, including recklessly or intentionally causing bodily harm or wounding under the Crimes Act. The very first case (1991) related to a syringe attack, although the accused died before the case proceeded to trial. All of the other cases, excluding the 2020 case below, involved alleged transmission during sex during in which a condom was not used. Most of these cases have been prosecuted as causing grievous bodily harm, which carries a penalty of up to 14 years’ imprisonment for reckless conduct, and up to 25 years’ where there is intent.

Most recently, in February 2022, a man living with HIV was found not guilty for allegedly ‘exposing’ a sexual partner to HIV. The ruling followed the changes to the law in 2017 which, as stated above, removed an obligation to disclose HIV status prior to sex if ‘reasonable precautions’ are taken to prevent transmission, which includes wearing a condom. In this case, although the defendant did not disclose his status, he did wear a condom and HIV was not transmitted, as such there was no criminal offence committed.

The Public Health Act has provisions relating to HIV. It states that a person who has a notifiable disease (which includes HIV) must take ‘reasonable precautions’ to avoid placing others at risk. Guidance has defined these precautions to include:

• taking a prescribed antibiotic course for bacterial STIs; or
• use of a condom; or
• for HIV, having an HIV viral load of less than 200 copies/mL, usually resulting from being on effective treatment; or
• for HIV, seeking and receiving confirmation from a sexual partner that they are taking HIV pre-exposure prophylaxis.

The Public Health Act also makes it illegal for an owner or occupier of a building to allow a person living with HIV to engage in sex work in that building. Prior to reform in 2017, there was an obligation to disclose HIV status prior to sex.

The Mandatory Disease Testing Act 2021 also contains provisions relevant to people living with HIV. This statute was introduced in response to an April 2020 case, in which an HIV-positive man was charged with two counts of intimidating to cause fear and three counts of common assault after allegedly punching and biting security guards and spitting blood on a nurse. His HIV-status was included in a media report, however it is unclear whether the intimidating to cause fear charge related to his HIV-status or risks associated with COVID-19.

The NSW Government introduced a bill in 2020 that provided for mandatory testing of a person for blood-borne diseases, including HIV (as well as hepatitis B and hepatitis C), where they deliberately cause a health, emergency, or public sector worker to come into contact with their bodily fluid, including blood, faeces, saliva, and semen, thereby putting that person at a perceived risk of ‘exposure’ to contracting that disease. The order would require the person to submit to testing within two days, and while the test cannot generally be undertaken by force, there is an exception for detained people on whom reasonable force can be used to ensure compliance. Failure to comply with an order is a criminal offence, as is providing false or misleading information in this context, and both are liable to a fine and/or imprisonment for up to one year. The results of the test cannot be used as evidence in other criminal proceedings, meaning that a positive HIV test could not be used as the basis for a prosecution for offences under the general criminal law, such as causing bodily harm. Despite being met with significant criticism, including from civil society and health officials who highlighted that there has not been any recorded occupational transmission of HIV for many years, the bill was adopted in 2021 as the Mandatory Disease Testing Act. In November 2023, the NSW Council of Civil Liberties made an appeal to the NSW Ombudsman to repeal the law on the basis that it was ineffective and stigmatising.

In May 2021, the NSW Attorney General said that the state would be adopting a new affirmative consent model, following the recommendations made by the NSW Law Reform Commission in a November 2020 report. Amongst these is a recommendation that the Crimes Act should state that ‘a person does not consent to sexual activity if the person participates in the sexual activity because the person is mistaken about the nature of the sexual activity’. It is not clear whether this could apply to people who do not disclose their HIV status prior to sexual intercourse. The bill, including this recommendation, was passed in November 2021 and received assent in December, becoming the Crimes Legislation Amendment (Sexual Consent Reforms) Act 2021.

NSW also has public health guidelines for the Management of people with HIV who risk Infecting Others. The public health provisions are managed by health department staff, ranging from supportive interventions at a clinical level to, if a person fails to follow directions, detention. These guidelines also refer to the National Guidelines for Managing HIV Transmission Risk Behaviours which state that the least coercive actions should be used first, aiming to place the person under the least restriction possible, and to de-escalate or discharge the person from management.