South Australia

South Australia does not have an HIV-specific law, but the general criminal law has been used to prosecute alleged HIV ‘exposure’ and transmission.

Section 29(1) of the Criminal Law Consolidation Act 1935 criminalises undertaking an act or omission knowing that doing so will endanger the life of another person, and being reckless about whether the person’s life is endangered or intending to endanger the person’s life.

South Australia’s Public Health Act also has provisions relating to HIV. It states that a person who has a controlled notifiable condition (including HIV) has a responsibility to take reasonable steps or precautions to avoid placing others at risk. It also states that a person must not, in a way that is reasonably practical, put themselves at risk of contracting a controlled notifiable condition (including HIV). There are no criminal penalties attached.

Of the four known HIV criminalisation cases, three related to alleged ‘exposure’ without transmission. In the first case tried in 2006, the accused was convicted on three counts under section 29(1) for allegedly having unprotected sex with three women. He unsuccessfully ran a defence argument that there was no scientific evidence that HIV causes AIDS, and that it was not sexually transmitted. The second case, reported in 2009, involved alleged sexual ‘exposure’. The accused was released on bail, however the outcome of the case is not known.

The third case attracted substantial media scrutiny, and involved both a criminal trial and civil claims against the South Australia Government. In the case, a man was charged under section 29(1) with eight counts of endangering the life of another after allegedly engaging in unprotected sex with eight men without disclosing his HIV status. He was released on bail awaiting trial and subsequently pled not guilty. The man was finally convicted on two counts and in 2011 was sentenced to six years and 10 months’ imprisonment. Concurrently, the claimants lodged a civil case against officials after it was alleged the health department had not acted quickly enough to address the accused’s behaviours which were deemed to have put others at risk of HIV.

A fourth case in 2016 involved a man who allegedly spat on police officers during an arrest, claiming to be living with HIV. Although transmission did not occur, the man received a four year and six month sentence in total (including an armed robbery charge). This incident also prompted legislators to propose new laws requiring mandatory blood testing of people who assault police. Section 20AA of the Criminal Law Consolidation Act 1935 now makes it an offence to cause harm to an emergency worker, including by causing ‘human biological material’ (blood, saliva, semen, faeces, urine, vomit) to come into contact with them, punishable with up to 15 years’ imprisonment.

The South Australian Code for the case management of behaviours that present a risk of HIV Infection aims ‘to operate in a non-judgemental way to achieve safe behaviours through education and voluntary co-operation with flexible strategies and supports’. Interventions range from supportive interventions to, if a person fails to follow directions, detention. The Code aligns with 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.