Oceania

Australian laws and cases are examined in detail in Cameron S and Rule J (2009), however, since that publication a number of ‘historical cases’ have come to light. The most recent publication of data on Australian cases is available on the Global Criminalisation Scan.

Seven of Australia’s eight states or territories have charged 28 individuals for sexual HIV exposure or transmission: no charges have ever been laid in Tasmania. The first charges occurred in 1991, and for the following decade most cases took place in Victoria, which enacted an HIV-specific law in 1993. New South Wales repealed its HIV-specific law in 2007 and now uses statutes for general grievous bodily harm. Whereas all eight jurisdictions are able to prosecute alleged sexual HIV transmission using existing laws (which may include charges of grievous bodily harm, conduct endangering life and knowingly infecting another with a serious bodily disease) only the Northern Territory, South Australia and Victoria criminalise unprotected sex without disclosure where there has been no alleged transmission.

Fifteen of the twenty four cases that were concluded by April 2010 resulted in a guilty verdict (although one was overturned on appeal) of which six were the result of a guilty plea. A total of 14 prosecutions have taken place in Victoria, although in two cases charges were dropped immediately prior to the committal hearing. Five cases were commenced in a one-year period between 2007-8, several of which involved individuals who had previously come to the attention of health authorities, resulting in substantial political fallout¹ and the publication of national guidelines on the management of HIV-positive people who place others at risk.²

All defendants have been male, except for the first accused (a female sex worker who was charged, but the case dropped pre-trial), with eight prosecutions for HIV exposure or transmission known to be related to sex between men. Heterosexual men of African origin appear to be over-represented among those prosecuted, particularly in view of the small size of the African-Australian community.³ A guide for legal practitioners in New South Wales, also relevant to other Australian jurisdictions, was published in May 2009.⁴ The Australasian Society for HIV Medicine recently produced an online Guide to Australian HIV Laws and Policies for Healthcare Professionals.⁵

For more detail on laws and cases see: Cameron S et al. International trends towards the criminalisation of HIV transmission. UK, New Zealand and Canada: laws, cases and response, Cameron S and Rule J (2009).

New Zealand has prosecuted eleven cases of HIV exposure or transmission under existing laws. All of the defendants have been male. Of the ten cases in which a verdict was recorded, eight of the people charged were found guilty. Prosecutions have taken place for 'criminal nuisance '(maximum sentence – one year in prison); 'wounding with intent' (seven years); and 'wilfully infecting with a disease' (14 years). Prosecutions can also take place under the legal “duty of persons in charge of dangerous things”, although there is no specific sentence ascribed to the breaking of this law.

The first prosecution for 'wilfully infecting with a disease' took place in 1995, with the judge ruling that intent had not been proven and instead found the man guilty of the lesser charge of 'wounding with intent'.⁶ The two most recent cases were the only the second and third time that charges of 'wilfully infecting with a disease' have been laid.

A 2009 case, which resulted in the defendant apparently committing suicide in his cell prior to his trial, involved 14 male and female complainants of whom seven alleged that the man was the source of their HIV infection.⁷ The 2010 case, which resulted in an eight-year, four-month prison sentence, involved an HIV-positive man who injected his wife with a needle dipped in his own blood.⁸ One man charged twice in two separate cases was found not guilty in a landmark ruling in 2005. This case established that it is not necessary for a person who knows that he or she is living with HIV to disclose his or her HIV-positive status to a partner if a condom is used during vaginal intercourse, or before unprotected oral sex.⁹

Papua New Guinea enacted an HIV-specific law in 2003. The HIV/AIDS Management and Protection Act criminalises HIV exposure or transmission as “an assault or an attempted assault, as the case may be, occasioning bodily harm.” The maximum sentence is three years in prison. Should death result, this is “an act of unlawful killing” with a maximum sentence of life imprisonment. Disclosure and/or condom use is a defence. Although there have been no reports of prosecutions, a Papua New Guinea MP was investigated in 2006 following the death of two women from HIV-related illnesses, although it appears that the charges were later dropped.¹⁰