Victoria

Victoria no longer has an HIV-specific criminal law, as section 19A of the Crimes Act, intentionally causing a very serious disease (defined only as HIV), was repealed in 2015. People have been charged under many different sections of the Crimes Act, including section 19A but more commonly under general criminal laws including intentionally causing serious injury (s16), conduct endangering life (s22), and conduct endangering persons (s23).

Victoria has had more HIV criminalisation cases than any other Australian jurisdiction. Of the 20 cases known to have been investigated, most proceeded to trial. In the first two cases against sex workers (1991), charges were withdrawn before the cases went to trial. Investigations have not proceeded to trial in at least two more recent cases (2011 and 2015). The majority of cases have involved allegations of exposure (only): 15 of 20 cases. All accused have been men except for one of the sex workers charged in 1991.

A precedent setting case in 2011 clarified a number of points of law. The County Court of Victoria had convicted the accused of multiple offences relating to condomless sex with a number of men. The Supreme Court of Victoria Court of Appeal found the accused not guilty of some of those offences. The Court found that to be guilty of attempting to infect another person with HIV, a person must believe they are ‘infectious’, not that they may be ‘infectious’. The Court also ruled that to be guilty of a charge of “reckless conduct endangering persons”, it must be established that it was not reasonably possible that the complainant was aware of the risk of HIV transmission and had voluntarily assumed the risk or, alternatively, that the applicant believed that the complainant was consenting to the assumption of the risk.[1]

Another case, decided in 2008, is also important. That case involved a man accused of transmitting HIV to his ex-girlfriend at some point between 2000 and late 2004. The accused was diagnosed HIV-positive in late 2003 but did not inform his partner, who was diagnosed in late 2004. The Magistrate found that the man could not be convicted of ‘reckless conduct endangering a named person’ because there was a reasonable possibility that the complainant was already HIV-positive by the time the accused was diagnosed. The Court held there was no evidence to establish when either party became HIV positive and directed the jury to acquit the accused on the basis of insufficient evidence.[2]

The Public Health and Wellbeing Act also has provisions relating to HIV. It states that a person who has or suspects they have an infectious disease (including HIV) should ascertain whether they have HIV, learn what precautions they can take, and take all reasonable steps to eliminate or reduce the risk of transmission. It also says that a person at risk of acquiring an infectious disease should take all reasonable precautions to avoid contracting the disease. The Act clearly states that the spread of HIV should be prevented or minimised with the minimum restriction on the rights of any person.

Section 155 of the Public Health and Wellbeing Act makes it an offence to provide a statement which they know to be false when giving a blood donation. This offence carries a penalty of a fine or imprisonment for one year. Although this does not explicitly mention information relating to HIV status, a 1993 case demonstrates that this type of provision can be used to criminalise people living with HIV in Victoria. In the case a man living with HIV was sentenced to 16 months’ imprisonment under section 136 of the Health Act 1958, the predecessor of the Public Health and Wellbeing Act, for providing a false statement when giving a blood donation. There is no suggestion that this resulted in HIV transmission as routine screening picked up the presence of HIV and the donation was rejected (see our report, Bad Blood, for a global analysis of the criminalisation of blood donations).

Victoria also has Guidelines for the management of people living with HIV who put others at risk. It outlines a five-stage approach and, consistent with the Act, states that the measure which is least restrictive of the client’s rights should be chosen, with escalation to higher stages only “if there is an ongoing pattern of behaviour that puts others at risk of HIV”. The Code aligns with the National Guidelines for Managing HIV Transmission Risk Behaviours.

In November 2021, the State Government announced that it would legislate to adopt an affirmative model of consent, following a recommendation from the Victoria Law Reform Commission, which was itself based upon a similar move in New South Wales. It is not yet clear whether this affirmative consent model will, as in New South Wales, provide for the negation of consent where the person is ‘mistaken as to the nature of the activity’, which could have ramifications for the disclosure of HIV status.

[1] For further information refer to the Defence Case Compendium

[2] For further information refer to the Defence Case Compendium