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. Four cases have relied on 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. The most recent case used section 304; Act or omission causing bodily harm or danger.
All five 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.
The most recent case, September 2020, involved a man accused of failing to disclose his HIV-positive status and having condomless sex with numerous sexual partners, four of whom have tested HIV-positive. The court was told that the accused feared being ostracised if his status became known. He was sentenced to five years’ imprisonment.
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.
Section 304 Act or omission causing bodily harm or danger
(1) If a person omits to do any act that it is the person’s duty to do, or unlawfully does any act, as a result of which —
(a) bodily harm is caused to any person; or
(b) the life, health or safety of any person is or is likely to be endangered,
the person is guilty of a crime and is liable to imprisonment for 7 years.
Summary conviction penalty: imprisonment for 3 years and a fine of $36 000.
(2) If a person, with an intent to harm, omits to do any act that it is the person’s duty to do, or does any act, as a result of which —
(a) bodily harm is caused to any person; or
(b) the life, health or safety of any person is or is likely to be endangered
the person is guilty of a crime and is liable to imprisonment for 20 years.
(3) For the purposes of subsection (2) an intent to harm is an intent to —
(a) unlawfully cause bodily harm to any person; or
(b) unlawfully endanger the life, health or safety of, any person; or
(c) induce any person to deliver property to another person; or
(d) gain a benefit, pecuniary or otherwise, for any person; or
(e) cause a detriment, pecuniary or otherwise, to any person; or
(f) prevent or hinder the doing of an act by a person who is lawfully entitled to do that act; or
(g) compel the doing of an act by a person who is lawfully entitled to abstain from doing that act.
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.