UPDATE: NSW Health has now published their own list of reasonable precautions, and the STIs they consider relate s79 of the Public Health Act.
Thank you to everyone who shared our awareness campaign and wrote to the NSW Health Minister.
The changes to the NSW Public Health Act are now in effect. People Living with HIV are no longer required to disclose their status before having sex, which is a welcome change.
However, this joint statement from ACON and the HIV AIDS Legal Centre unpacks the more worrying aspects of the new Public Health Act in NSW. TIM has contacted ACON and requested a more accessible version of this information be produced. An A4 infographic poster version is apparently on the way.
Below are some key points that People Living with HIV (PLHIV) living in or visiting NSW need to know.
1. Discloure is not defence
“Charges could result, even in circumstances where the person with HIV has informed their sexual partner of the risk of transmission, and the person voluntarily agrees to such a risk, and where HIV is not transmitted.”
There has been some confusion as to how disclosure (no longer a requirement) could be counted as a reasonable precaution. It doesn’t. So, whether you disclose or not you still have to take reasonable precautions and if you don’t, you may be charged.
2. This statement only lists three potential reasonable precautions:
- Use of a condom;
- Having an HIV viral load of less than 200 copies/mL, usually resulting from being on effective treatment as directed by an HIV clinician; or
- Confirming that a sexual partner is taking HIV pre-exposure prophylaxis (PrEP).
This is in contrast to a longer list of reasonable precautions recently put forward by Positive Life NSW. However, while this may lead to confusion it is important to say that all of these reasonable precautions are just suggestions:
“What constitutes ‘reasonable precautions’ against the spread of such conditions is not defined by the [Public Health Act]. In the event that a person was charged with this offence and went to trial, what constitutes ‘reasonable precautions’ to stop the spread of the condition would be open to interpretation by a court, based on the circumstances of the case. It is unclear how broadly or narrowly this could be interpreted.”
3. It’s unclear as to which conditions/diseases are included.
This is the potential list:
- Acquired Immune Deficiency Syndrome (AIDS)
- Acute viral hepatitis
- Hepatitis A, B, C, D and E
- Human Immunodeficiency Virus (HIV) infection
- Lymphogranuloma Venerum (LGV)
From the ACON/HALC statement:
“However, s79 does not specifically mention transmission via sexual intercourse. This is in contrast to the previous law which specified via sexual intercourse and defined sexual intercourse.”
“The new provision could include other forms of transmission of the relevant condition, and require reasonable precautions to be taken for example, during pregnancy and birth, breastfeeding or in the use of injecting equipment.”
If you are Hep C + as well as HIV+, you need to know that it is now possible for someone with Hep C to be charged in relation to the use of injecting equipment.
This is not about people who willfully and maliciously set out to harm others. We have criminal law in place to deal with those situations.
The vast majority of People Living with HIV do take reasonable precautions. In fact, record drops in new HIV notifications after recent high uptake of PrEP and an overdue broader acceptance/understanding of UVL point to what we have known for some time – PLHIV have been the ones doing the vast majority of work to keep ourselves, and our partners, safe.
So why are we the ones being punished with unclear guidelines, an insidious presumption of guilt, and heavy-handed punishments?
WHAT YOU CAN DO TODAY: No matter what state or country you live in, you can write to Hon. Brad Hazzard and politely let him know your concerns. You can also contact ACON and Positive Life NSW and politely share your concerns, and call on them to keep advocating for better outcomes for People Living with HIV.