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  • In recent amendments to the Public Health Act 2010, the requirement to disclose HIV status has been replaced with a requirement to take ‘reasonable precautions’ to prevent the transmission of HIV.
  • In Zaburoni v The Queen [2016] HCA 12 the High Court considered for the first time the issue of when a person has the requisite intention to transmit HIV to their sexual partner.
  • As the spread of HIV is a public health issue, a public health approach should be the first and preferred option, with the criminal law only being utilised for cases where a person intentionally transmits HIV.

In 1991, Justice Michael Kirby of the High Court of Australia, as he was then, stated: ‘There will be calls for “law and order” and a “war on AIDS”. Beware of those who cry out for simple solutions, for [in] combating HIV/AIDS there are none. In particular, do not put faith in the enlargement of the criminal law.’ (Justice Michael Kirby, High Court of Australia, The Ten Commandments’, National AIDS Bulletin, March 1991.)

As anticipated, the ‘war on AIDS’ began and criminal penalties were applied to cases of HIV transmission and, in some states, non-disclosure and exposure (where there was no transmission of HIV) under both public health and criminal legislation. In 1991 NSW Public Health legislation introduced a requirement that people with HIV and other sexually transmissible infections were required to disclose their HIV status to sexual partners before engaging in sexual intercourse. In addition, the Crimes Act 1900 makes the transmission of HIV (a grievous bodily disease) an offence within grievous bodily harm provisions.

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