Queensland

Queensland does not have an HIV-specific law, but the general criminal law has been used to prosecute people for HIV exposure and alleged transmission, including charges of grievous bodily harm and unlawfully transmitting a serious disease to another with intent.

In all seven of the known HIV criminalisation cases, the accused have been men. An early case (1989) related to an erroneously presumed HIV ‘exposure’ after a person rubbed faeces on a police officer’s face. Similarly, a case from 2019 involved a man who claimed he had HIV (but likely did not) and accidentally spilled blood on a police officer while in a drug-induced psychosis. All other cases have related to alleged transmission during sex (3 male and 2 female complainants). Of the six people prosecuted to date, one was found not guilty (2007), although notably the accused was the subject of media coverage which misrepresented the facts of his case and had a substantial effect on him and his family.

A precedent-setting case involved an accused who, it was originally reported, may have exposed more than a hundred women to HIV. He was later charged and convicted of “unlawfully transmitting a serious disease to another with intent do so”, in relation to one woman. He unsuccessfully appealed to the Court of Appeal of the Supreme Court of Queensland, and then to Australia’s High Court. The High Court considered the meaning of ‘intent’ within the charge. The Court agreed that the accused had lied to the complainant about his HIV status numerous times during and after their relationship but found that neither the frequency of unprotected sex nor his lies were enough to demonstrate intention to transmit HIV. Rather, his actions showed an intention to have unprotected sex. Further, it found that foresight of a risk of harm is different from the intent to produce harm. The Court was not satisfied that the accused meant to produce the particular result or had the result as his or her purpose or object at the time they engaged in the conduct. The High Court substituted a guilty verdict of a lesser offence: grievous bodily harm.

Queensland’s Public Health Act also has provisions relating to HIV. It states that a person must not recklessly put someone else at risk of contracting a controlled notifiable condition (including HIV), or recklessly transmit HIV. A person does not commit an offence if the other person knew the accused had the condition and voluntarily accepted the risk.

Queensland also has a public health Protocol for the Management of People Living with HIV who Place Others at Risk, with a five level framework “designed to facilitate behavioural change in those who have not responded to initial interventions at the local level or are unable to change their risk behaviours”. 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 state that preference should be given “to strategies that are least restrictive, as these will generally be the most sustainable and effective in the long term”. The Guidelines are intended to align 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.