New South Wales

Number of reported cases At least 11 How do we calculate the number of cases

Overview

New South Wales does not have an HIV-specific law, but the general criminal law has been used to prosecute HIV exposure and alleged transmission, including under charges of recklessly causing bodily harm or wounding.

New South Wales’ Public Health Act has provisions relating to HIV. It states that a person who has a notifiable disease (including HIV) must take reasonable precautions to avoid placing others at risk. The Act also makes it illegal for an owner or occupier of a building to allow a person living with HIV to have sexual intercourse related to sex work.

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. 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.

Ten HIV criminalisation cases in NSW have related to men accused of HIV transmission. The very first case (1991) related to a syringe attack, although the accused died before the case proceeded to trial. All of the other eight cases involved alleged transmission during sex during which a condom was not used. Six cases involved female complainants, and three cases involved male complainants.

In April 2020, 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 has recently proposed laws to compel HIV (hepatitis B and hepatitis C) testing of a person accused of exposing a police officer or emergency worker to body fluids.

Laws

Crimes Act 1900

General criminal law (active)
Relevant text of the law
Section 33 Wounding or grievous bodily harm with intent

(1) Intent to cause grievous bodily harm

A person who-

(a) wounds any person, or

(b) causes grievous bodily harm to any person,

with intent to cause grievous bodily harm to that or any other person is guilty of an offence.

Maximum penalty–Imprisonment for 25 years.

(2) Intent to resist arrest

A person who–

(a) wounds any person, or

(b) causes grievous bodily harm to any person,

with intent to resist or prevent his or her (or another person‘s) lawful arrest or detention is guilty of an offence.

Maximum penalty–Imprisonment for 25 years.

(3) Alternative verdict If on the trial of a person charged with an offence against this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against section 35, the jury may acquit the person of the offence charged and find the person guilty of an offence against section 35. The person is liable to punishment accordingly.

 
35 Reckless grievous bodily harm or wounding

(1) Reckless grievous bodily harm–in company A person who, in the company of another person or persons

(a) causes grievous bodily harm to any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

Maximum penalty–Imprisonment for 14 years.

(2) Reckless grievous bodily harm A person who–

(a) causes grievous bodily harm to any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

: Maximum penalty–Imprisonment for 10 years.

(3) Reckless wounding–in company A person who, in the company of another person or persons

(a) wounds any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

: Maximum penalty–Imprisonment for 10 years.

(4) Reckless wounding A person who–

(a) wounds any person, and

(b) is reckless as to causing actual bodily harm to that or any other person,

is guilty of an offence.

: Maximum penalty–Imprisonment for 7 years.

(5) Alternative verdict If on the trial of a person charged with an offence against any subsection of this section the jury is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section (that carries a lesser maximum penalty), the jury may acquit the person of the offence charged and find the person guilty of an offence against that other subsection. The person is liable to punishment accordingly.

 

54 Causing grievous bodily harm

Whosoever by any unlawful or negligent act, or omission, causes grievous bodily harm to any person, shall be liable to imprisonment for two years.

——————–

Section 35 Maliciously inflict grievous bodily harm (was repealed)

Public Health Act 2010

Public health law (active)
Relevant text of the law

Section 79 Duties of persons in relation to sexually transmissible diseases or conditions

(1) A person who knows that he or she has a notifiable disease, or a scheduled medical condition, that is sexually transmissible is required to take reasonable precautions against spreading the disease or condition.

Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.

(2) An owner or occupier of a building or place who knowingly permits another person to have sexual intercourse in contravention of subsection (1) at the building or place for the purpose of prostitution is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.

(3) A person (other than a member of the NSW Health Service) must notify the Secretary if the person commences proceedings against a person for an offence under this section.

Acknowledgements

Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.

This information was last reviewed in August 2020