Overview
The Australian Capital Territory does not have an HIV-specific law, but the general criminal law has been used to prosecute a case of HIV ‘exposure’.
In 2008, a man working as a sex worker was charged under section 25 of the Prostitution Act for ‘knowingly infecting’ a person with HIV, despite there being no allegation of HIV transmission (the law was later renamed ‘providing or receiving commercial sexual services if infected’). In fact, the charges related only to having worked as a sex worker while living with HIV, thereby allegedly ‘exposing’ his clients. The man was sentenced to two and a half months’ imprisonment.
Although the Prostitution Act is no longer in force, the Public Health Act 1997 includes a section that states that ‘a person who engages in activities that are known to carry a potential risk of exposure to a transmissible notifiable condition’ (which includes HIV), must take ‘reasonable measures’ to ensure another person is not unknowingly put at risk of HIV transmission. There are no criminal penalties attached. We are not aware of any prosecutions under this law.
The Australian Capital Territory also has public health guidelines for Management of People with Human Immunodeficiency Virus (HIV) Who Place Others at Risk. 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. The 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.
Laws
Public Health Act 1997
Section 99. Principles—notifiable conditions
(…)
(b) a person who engages in activities that are known to carry a potential risk of exposure to a transmissible notifiable condition, and any person responsible for the care, support or education of such a person, has the following responsibilities:
(i) to take all reasonable precautions to avoid the contracting of the condition by the person who engages in such activities;
(ii) if there are reasonable grounds for believing that the person who engages in such activities has been exposed to the condition—to ascertain whether the condition has been contracted, and what precautions should reasonably be taken to avoid exposing others to the condition;
(iii) if there are reasonable grounds for believing that the person who engages in such activities has contracted, or is likely to have contracted the condition—to comply with preventative measures or treatment that will minimise the risk to others of exposure to the condition;
(iv) if there are reasonable grounds for believing that the person who engages in such activities has contracted, or is likely to have contracted the condition—to take reasonable measures to ensure that others are not unknowingly placed at risk through any action or inaction of the person or any person responsible for the care, support or education of the person;
Acknowledgements
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.