Western Australia does not have an HIV-specific law, but the general criminal law has been used to prosecute people for HIV exposure and alleged transmission under section 294 which criminalises undertaking an act to do grievous bodily harm, including an act likely to result in a person having a serious disease.
All five of the HIV criminalisation cases have related to alleged transmission. Four of the cases involved consensual sex between adults, while in the first known case (1998) HIV was considered an aggravating factor for sentencing relating to child sexual assault. In 2018, a transgender woman was convicted of causing grievous bodily harm to a man she had sex with while working as a sex worker. The accused was then incarcerated in a male prison. In February 2020, her application to stop her deportation to New Zealand (her country of birth) was successful following her engagement with, and support from, community organisations: Magenta, National Association of People Living with HIV (Australia), and Scarlet Alliance. Despite being an Australian resident, her visa was subject to mandatory cancellation as a result of having a criminal conviction.
Western Australia’s Public Health Act also has provisions relating to HIV. It states that a person who suspects they have a notifiable disease (including HIV) must ascertain whether or not they have the disease and must take reasonable precautions to ensure others are not placed at risk of contracting the disease. It also states that a person who is at risk of contracting a notifiable infectious disease must take all reasonable precautions to avoid contracting the disease. The Public Health Act also sets out special powers in relation to control of ‘dangerous infectious diseases’, including powers to require examination or isolation.
The Western Australian Case Management Program guidelines 2012; A program for individuals with HIV who knowingly expose others to the risk of infection are written for healthcare professionals to help them assist individuals to modify their behaviour through intensive counselling, education and support, noting public health orders and invoking the law should be used only as a last resort. 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.
Criminal Code Act 1913
Section 294 Act intended to cause grievous bodily harm or prevent arrest
(1)Any person who, with intent to maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, or to resist or prevent the lawful arrest or detention of any person —
(h)does any act that is likely to result in a person having a serious disease;
is guilty of a crime, and is liable to imprisonment for 20 years.
Public Health Act 2016
(1) The spread of notifiable infectious diseases should be prevented or limited without unnecessarily restricting personal liberty or privacy, and in the application of this principle particular regard should be had to the principle of proportionality set out in section 3(2).
(2) A person who is at risk of contracting a notifiable infectious disease must take all reasonable precautions to avoid contracting the disease.
(3) A person who suspects that he or she may have a notifiable infectious disease must ascertain —
(a) whether or not he or she has the disease; and
(b) what precautions should be taken to prevent others from contracting the disease.
(4) A person who has a notifiable infectious disease must take all reasonable precautions to ensure that others are not unknowingly placed at risk of contracting the disease.
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.