HIV Disclosure & the Law in QLD
In 2013, QPP published a discussion paper exploring the impacts on criminalising HIV transmission and non-disclosure from a public health perspective.
QPP supports HIV prevention strategies being driven by an evidence-based, best practice model of public health interventions. These are based on the principal goals of:
- Encouraging a shared responsibility for the complex factors that surround behaviours associated with transmitting or contracting HIV.
- Supporting PLHIV to prevent HIV transmission, including how to discuss the facts about protecting sexual partners from contracting HIV.
- Reducing misconceptions of HIV that contribute to stigma, including the need to increase community awareness of the advances that have led to HIV now being considered a chronic, manageable condition – not a death sentence.
- Respecting human rights and improving access to social support, treatment, prevention and health services.
Criminalising transmission contradicts the most essential prevention message: every person has a responsibility to take all reasonable precautions to avoid contracting an STI or HIV. The prosecution of HIV transmission attracts negative media and community attention that unfortunately:
- Misrepresents HIV as a death sentence
- Increases the fear of being known as HIV positive
- Discourages voluntary HIV testing for fear of prosecution and/or stigma
- Discourages PLHIV from engaging with health & social services
- Impedes the environment necessary to enable HIV disclosure
- Jeopardises education, counselling & treatment initiatives that facilitate new scientific advances being introduced and integrated into communities
HIV and the Law in Queensland
There is no specific law regarding HIV transmission in Queensland. Instead, the Public Health Act (2005) and the Queensland Criminal Code Act (1899) govern the transmission of HIV. As these two pieces of legislation have not been tested in great depth in Queensland Court, their exact and precise meaning is not known. However, the best way to understand your legal obligations is to interpret the law as it currently stands.
Public Health Act
The Public Health Act defines HIV as a “controlled notifiable condition” which attaches responsibilities to the entire community.
- An HIV-positive person has a responsibility under section 143 to “not recklessly put someone else at risk of contracting a controlled notifiable condition”. The maximum penalty for breaching this section can be up to 18 months imprisonment.
- An HIV-negative person has a responsibility under section 66(1b) to:“take all reasonable precautions to avoid contracting or being infected with the condition”.
What the law means for you:
For the HIV (-) negative person:
- A responsibility exists to be educated about HIV and protect themselves from contracting HIV.
- There are no penalties attached to breaching this responsibility but it could implicate you in other sections of the legislation.
For the HIV (+) positive person:
- An HIV positive person must not “recklessly” transmit HIV. This is a different requirement than under the Criminal Code where “intent” must be established. However, if criminal intent is established the case may be prosecuted under the Queensland Criminal Code;
- Given that a person must not “recklessly” transmit HIV, it means that a person does not have to disclose their HIV status as long as they practice safe sex; and
- Condoms and water-based lubricant during sex would be considered safe prevention strategies as their effectiveness is founded in evidenced based prevention.
Queensland Criminal Code
All criminal offences in Queensland are governed by the Queensland Criminal Code Act 1899.
Section 317(b) states: “Any person who, with intent to do some grievous bodily harm or transmit a serious disease to any person; is guilty of a crime, and is liable to imprisonment for life.”
Section 320 states : “any person who unlawfully does grievous bodily harm to another is guilty of a crime, and is liable to imprisonment for 14 years”.
“Grievous bodily harm” means:
- The loss of a distinct part or an organ to the body; or
- Serious disfigurement; or
- Any bodily injury of such a nature that, if left untreated, would endanger or be likely to endanger life, or cause or be likely to cause permanent injury to health.
What the law means for you:
If you deliberately or intentionally transmit HIV to someone you can be charged with grievous bodily harm which can carry a maximum possible sentence of life imprisonment.
Consent by the HIV-negative person to voluntarily and knowingly accept the risk of transmission of HIV (without practicing safe sex after disclosure of status of the HIV positive person) is not likely to be a defence under criminal law.
Public Health Act vs. Queensland Criminal Code prosecution
The Police and/or the Office of Public Prosecutions decide whether a person will be charged and subsequently prosecuted under the Public Health Act or the Criminal Code. Generally, a person will be charged under an act or section that appears to best fit the circumstances and evidence of the case.
If you have any questions about HIV disclosure and the law, or require further information, please call QPP’s Advocacy Officer toll free from a land-line on 1800 636 241, use the contact form provided or call (07) 3013 5555 (national).
DISCLAIMER: This guide is NOT intended as a substitute for legal advice. The information contained is for educational purposes only. Please note that each Australian State and Territory has different laws in regards to transmission. Refer to state based PLHIV organisations for further information.
For further reading, the Disclosing your HIV status guide, prepared by the HIV/AIDS Legal Centre (HALC) in partnership with Queensland Positive People (QPP), contains the up-to-date and accurate information about relevant law around disclosure in Queensland.