Public Health Laws

New South Wales (NSW)

A person who knows they have HIV is guilty of an offence if he or she has sexual intercourse with another person unless, before intercourse takes place, the other person has been informed of and voluntarily accepts the risk of contracting HIV.

An amendment to this section introduced a defence if the person with HIV ‘took reasonable precautions’ to prevent transmission, effective from early 2012, however, this defence has not yet been tested in a court case, so it is not yet clear how courts will interpret this change.

Western Australia (WA)

Western Australia’s public health laws have little bearing on HIV as they deal with diseases transmitted through casual contact or inadequate public sanitation, however, departmental guidelines may be applied to people identified as putting others at risk of infection. If people fail to follow public health orders, they may be prosecuted.

South Australia (SA)

Although the law does not specifically require a person with HIV to disclose their HIV status to a prospective sexual partner, it states that an HIV-positive person must take all reasonable measures to prevent transmission of the disease to others.

Australian Capital Territory (ACT)

There are no specific laws obliging HIV-positive people to disclose their status before having sex, however, public health regulations state that a person who knows or suspects they have HIV, or knows or suspects they are a contact of a person with HIV, must take reasonable and appropriate precautions against transmitting the virus. ‘Reasonable precautions’ include precautions taken on the advice of a doctor or an authorised officer.

Queensland (QLD)

Queensland law makes it an offence to recklessly transmit HIV or put someone at risk of contracting HIV, however, it is a defence if the person knew the accused was infected with HIV and voluntarily accepted the risk of infection.

Tasmania (TAS)

A person who is aware of being HIV positive must inform in advance any sexual contact or person with whom needles are shared of that fact. HIV-positive persons are also required to take “all reasonable measures and precautions” to prevent the transmission of HIV to others, and must not knowingly or recklessly place another person at risk of contracting the disease, however, it is a defence if the other person knew of, and voluntarily accepted, the risk of contracting HIV. Those principles, however, have no penalty attached so it is difficult to predict what they may mean in practice.

Victoria (VIC)

Victorian public health laws changed on 1 January 2010, with removal of the offence of knowingly or recklessly infecting another person with HIV. Victoria’s new public health laws take a different approach. The law does not specifically address disclosure, but includes the principle that any person who has or suspects they have HIV should ascertain whether they have HIV and the precautions required to prevent transmission, and then take all reasonable steps to eliminate or reduce the risk of transmission. The new law also includes the principle that any person at risk of contracting HIV should take all reasonable measures to prevent contracting HIV.

Northern Territory (NT)

There are no general public health laws dealing with HIV transmission or disclosure of HIV status in the Northern Territory, however, there are departmental guidelines that may be applied to people identified as putting others at risk of infection. If people fail to follow public health orders, they may be prosecuted.