Overview
South Australia does not have an HIV-specific law, but the general criminal law has been used to prosecute alleged HIV ‘exposure’ and transmission.
Section 29(1) of the Criminal Law Consolidation Act 1935 criminalises undertaking an act or omission knowing that doing so will endanger the life of another person, and being reckless about whether the person’s life is endangered or intending to endanger the person’s life.
South Australia’s Public Health Act also has provisions relating to HIV. It states that a person who has a controlled notifiable condition (including HIV) has a responsibility to take reasonable steps or precautions to avoid placing others at risk. It also states that a person must not, in a way that is reasonably practical, put themselves at risk of contracting a controlled notifiable condition (including HIV). There are no criminal penalties attached.
In 2024 a new bill was proposed to introduce mandatory blood testing for people accused of spitting or biting emergency workers. The Criminal Law (Forensic Procedures) (Blood Testing) Amendment Bill 2024 has been criticised by civil society as stigmatising and ineffective. The state government is moving forward with the bill, despite there being little to no risk of HIV transmission through spitting or biting, and despite a similar law in New South Wales being found to be without benefit.
Of the four known HIV criminalisation cases, three related to alleged ‘exposure’ without transmission. In the first case tried in 2006, the accused was convicted on three counts under section 29(1) for allegedly having unprotected sex with three women. He unsuccessfully ran a defence argument that there was no scientific evidence that HIV causes AIDS, and that it was not sexually transmitted. The second case, reported in 2009, involved alleged sexual ‘exposure’. The accused was released on bail, however the outcome of the case is not known.
The third case attracted substantial media scrutiny, and involved both a criminal trial and civil claims against the South Australia Government. In the case, a man was charged under section 29(1) with eight counts of endangering the life of another after allegedly engaging in unprotected sex with eight men without disclosing his HIV status. He was released on bail awaiting trial and subsequently pled not guilty. The man was finally convicted on two counts and in 2011 was sentenced to six years and 10 months’ imprisonment. Concurrently, the claimants lodged a civil case against officials after it was alleged the health department had not acted quickly enough to address the accused’s behaviours which were deemed to have put others at risk of HIV.
A fourth case in 2016 involved a man who allegedly spat on police officers during an arrest, claiming to be living with HIV. Although transmission did not occur, the man received a four year and six month sentence in total (including an armed robbery charge). This incident also prompted legislators to propose new laws requiring mandatory blood testing of people who assault police. Section 20AA of the Criminal Law Consolidation Act 1935 now makes it an offence to cause harm to an emergency worker, including by causing ‘human biological material’ (blood, saliva, semen, faeces, urine, vomit) to come into contact with them, punishable with up to 15 years’ imprisonment.
The South Australian Code for the case management of behaviours that present a risk of HIV Infection aims ‘to operate in a non-judgemental way to achieve safe behaviours through education and voluntary co-operation with flexible strategies and supports’. 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.
Laws
Criminal Law Consolidation Act 1935
Section 20AA. Causing harm to, or assaulting, certain emergency workers etc
(1) A person who causes harm to a prescribed emergency worker acting in the course of official duties, intending to cause harm, is guilty of an offence.
Maximum penalty: Imprisonment for 15 years.
(2) A person who causes harm to a prescribed emergency worker acting in the course of official duties, and is reckless in doing so, is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
(3) A person who assaults a prescribed emergency worker acting in the course of official duties is guilty of an offence.
Maximum penalty: Imprisonment for 5 years.
(…)
(6) Without limiting the ways in which a person can cause harm to a prescribed emergency worker, harm can be caused (but will not be taken to be caused) by causing human biological material to come into contact with a prescribed emergency worker.
(7) For the purposes of this section, a person causes human biological material to come into contact with a victim if the person performs any act (including, without limiting the generality of this subsection, by spitting or throwing human biological material at the victim, or deliberately applying human biological material to their person knowing that the victim is likely to come into physical contact with the person in the course of their duties) intended or likely to cause human biological material to come into contact with the victim.
Section 29. Acts endangering life or creating risk of serious harm
(1) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to endanger the life of another; and
(b) intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered,
that person is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 15 years;
(b) for an aggravated offence—imprisonment for 18 years.
(2) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to cause serious harm to another; and
(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
that person is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 10 years;
(b) for an aggravated offence—imprisonment for 12 years.
(3) Where a person, without lawful excuse, does an act or makes an omission—
(a) knowing that the act or omission is likely to cause harm to another; and
(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused,
the person is guilty of an offence.
Maximum penalty:
(a) for a basic offence—imprisonment for 5 years;
(b) for an aggravated offence (except one to which paragraph (c) applies)—imprisonment for 7 years;
(c) for an offence aggravated by the circumstances referred to in section 5AA(1)(c), (ca) or (ka)—imprisonment for 8 years.
Public Health Act 2011
Section 14. Specific principles
(…)
(3) A person who has a controlled notifiable condition that is capable of being transmitted to 1 or more other persons has a responsibility to take reasonable steps or precautions to avoid placing others at risk on account of the controlled notifiable condition.
(4) A person must not, insofar as is reasonably practicable, act in a manner that will place himself or herself at risk of contracting a controlled notifiable condition that is capable of being transmitted.
Acknowledgements
Our thanks to Australian law firm Hall & Wilcox for their research assistance to confirm current relevant legislation.
