HIV in the Australian legal landscape
Australia’s response to HIV is complicated by the division of governance between the Commonwealth (the national government) and the States. Health care is jointly funded by both levels of government (as well as by patients/recipients in many instances).
Each state and territory has its own public health laws which could be applied to HIV transmission, which are administered by separate state based health departments. Similarly, the Commonwealth and the States have responsibility for different areas of law.
Criminal laws which might be applied to HIV transmission are generally the responsibility of the States. Again, these laws differ across jurisdictions, and they are administered by state agencies (police, Attorney General’s departments, offices of Public Prosecutions, and by state based courts). In summary, each state and territory has its own particular public health and criminal laws which could be applied to HIV transmission and these laws differ from state to state (a brief summary is available here). While there are definite similarities in approach, there are also real differences.
Australia’s confidence in a public health response to HIV has created the enabling environment for Australia’s excellent record in HIV prevention and management.
Until recently criminal and public health laws have existed in a kind of uneasy status quo, because either area of law might have been drawn upon to tackle specific situations where an individual’s behaviour has/or is at risk of causing harm to others. Criminal laws have so rarely been used that in most jurisdictions the relationship between these two areas of law (informed by two very different approaches to addressing individuals’ difficult behaviours) had not been closely examined – let alone tested. All that has now changed.
When Australia hosts the Fourth International AIDS Society Conference on HIV Treatment and Pathogenesis later this month, expect strong criticism of Australia’s Prime Minister John Howard for his proposal to exclude HIV-positive migrants from the country.
That being said, the migration controversy isn’t the only HIV-related political hot potato kicking around at the moment. To understand why a country with an exemplary record on HIV prevention, treatment and human rights has suddenly taken on an illiberal guise, some understanding of the political background may be useful.
Over the last few months Australia has moved from a state of disinterest over HIV to a political feeding frenzy, driven by two high profile cases involving individuals who have been charged with deliberately or recklessly transmitting HIV to a number of other persons. And, in an extraordinary turn of events, a recent increase in HIV infection rates in a number of states somehow morphed into the Prime Minister’s call to review Australia’s immigration laws.
The case of Michael Neal
Michael Neal was arrested in Victoria in May 2006. He has now been charged with over 100 offences including attempting to infect others with HIV, rape and possessing child pornography. Briefly, the charges relate to a number of ‘victims’, at least one of whom has tested positive. Police claim that despite knowing he was HIV positive, Neal had unprotected sex with many men between 2000 and 2005. He was previously in a relationship with one of those men, whom it is alleged he drugged and then had extended unprotected sex with.
The Australian media has quoted ‘a police official’ as saying that Neal boasted about the number of people he had infected, and that he asked at least one other person to help spread the disease.
There have also been allegations of so-called ‘conversion parties’ organised to infect unsuspecting HIV-negative men. At this point it is vital to note that the case has not yet gone to trial (only a committal hearing has been conducted), so none of the luridly-reported allegations have yet been tested in court and a court may not find them credible.
Neal’s case has had a crucial effect on HIV management in Australia because it has highlighted the gap between public health and criminal laws and their administration in one particular Australian state, with knock-on effects in all the others. It is understood that the Victorian Department of Human Services received complaints that Neal was “deliberately spreading HIV” in 2001. Nine more complaints were received over the next five years.
From July 2004, the Department made a number of orders against Neal, with which he failed to comply. In January 2006, Victoria's HIV Case Advisory Panel recommended to the state's Chief Health Officer that Neal be detained in the interests of public health. The Department failed to use its authority to detain him or to inform police. Neal was arrested by police some four months later, a period during which it is alleged he attempted to infect the final man to whom charges relate.
The Victorian Opposition Health Spokesperson and the chairman of the national Ministerial Advisory Committee on AIDS, Sexual Health and Hepatitis, called for the Chief Health Officer’s sacking. The Minister defended his actions by saying they resulted from “a breakdown of communication between the Advisory Panel and the Chief Health Officer” that is, the Chief Health Officer was unaware of the Panel’s recommendation. The Minister denied having any knowledge of the case.
The Neal case has revealed the absence of appropriate procedures between health department officials and police. Police obtained Neal’s file from the health department by showing up with a warrant, and also attempted to seize files from community based health agencies, such as the Victorian Aids Council, without a warrant.
It is unknown exactly what transpired, but police were then wrongly given files relating not only to Neal, but to Neal and 16 other HIV-positive people with whom the health department had been concerned over the last two decades. Police have now charged a second man with recklessly causing serious injury by not declaring his HIV status to a female sexual partner.
This series of events has motivated an internal, confidential review of health department procedures for dealing with HIV-positive people who engage in problematic behaviours.
The case of Stuart McDonald
In April 2007 Stuart McDonald was detained without charge under South Australia’s public health Act. He has now been charged with seven counts of endangering life, and has been released on bail. Again, the behaviours alleged to have taken place remain untested, and may or may not have occurred.
It is alleged McDonald met the men concerned using aliases through the internet dating service ‘Gaydar’. The prosecution has described him as ‘an active manipulator’ and alleges that on some occasions he removed the condom during sex. Phylogenetic testing has been used, with authorities stating that eleven men now carry his strain of HIV, unrecorded in the state until 1998 when he moved there. Whether McDonald was the direct source of all those infections, or merely the vector who introduced a new strain of HIV into the state remains to be proven.
This case too has had a significant effect on Australian opinion regarding the intersection between public health and criminal laws around HIV, and has motivated significant political interest. It has been reported that the Health Department was told some time ago that McDonald had knowingly infected someone, and that a second person had also made a complaint.
Prior to his detention, McDonald was made subject to a supervisory order and, after some delay, appeared before a panel of experts in October 2005. Authorities now believe McDonald continued his unsafe activities.
The ‘management’ of McDonald’s case is atypical in numerous ways. He is the first person ever in South Australia to have been detained without charge under the Public and Environmental Health Act.
After being criminally charged, police opposed the granting of bail but the magistrate decided to set onerous bail conditions, including the requirement to wear an electronic monitoring device, being barred from internet access, being tested for alcohol or drugs, and not being allowed any unauthorised visitors. He is also prohibited from leaving the property, except for medical appointments, when he must be accompanied by a department-appointed person.
The Attorney-General subsequently ‘called for a report’ on the granting of bail, but was assured by the Director of Public Prosecutions that given the "unusually stringent" bail conditions imposed on McDonald, his office said it "is confident the community and the alleged victims are properly protected". The Opposition law and order spokeswoman publicly stated that bail conditions needed to be strengthened.
Most tellingly, the South Australian Government commissioned an urgent briefing by barrister, Stephen Walsh QC, which included advice on the adequacy of legislation and guidelines used to deal with such cases. Walsh’s report made 18 recommendations including:
- making it an offence for an HIV-positive person to have sexual relations without disclosing their status and informing the other person of the risk of contracting HIV
- requiring health workers to notify the department of any circumstances in which an HIV-positive person is not taking all reasonable measures to prevent transmission
- developing formal guidelines on when the department should contact the police
Despite questions about the limitations of the briefing, for example, it was not an inquiry or review involving a comprehensive literature search and consultation. The South Australian government has told the state’s Department of Health to take immediate action to implement the recommendations, and has also sought legal advice on possible liability with respect to possible civil action.
National reviews
These cases occurred against a 41% increase in HIV infections in Australia over the last five years - a politically potent figure in the context of an impending federal election with the government well behind in the opinion polls.
The cases, and their inadequate handling, set off alarm bells in every jurisdiction for fear of similar cases ‘in their own backyard’. All health departments have now conducted reviews of relevant guidelines on the management of HIV-positive people who place others at risk, the issue is on the agenda of the next Australian Health Ministers’ Council (AHMC) meeting, and two national reviews are underway, both of which will produce reports which are expected to be presented at the AHMC meeting:
- The Blood Borne Virus and Sexually Transmitted Infections Sub-committee (an inter-governmental body, previously known as ‘IGCHARD’) has been working to develop nationally consistent guidelines for management of people with HIV. Robert Griew, Associate Professor in the School of Public Health and Community Medicine at the University of New South Wales, who recently reviewed NSW’s guidelines, has been commissioned to work on this project.
- The Commonwealth Department of Health and Ageing has also initiated a review which is intended to be independent of existing structures and processes for responding to HIV. The review is being conducted by Professor John McNeil, Head of the Department of Epidemiology and Preventive Medicine at Monash University.
Concurrently, the national Ministerial Advisory body has met to consider the now quite divergent rates of HIV infections in the three major states. The meeting follows intensive re-analysis of all epidemiological, social and behavioural data from the last ten years, in an attempt to clarify why NSW rates have remained stable whereas those in Victoria and Queensland have increased by more than 50% in the last five years.
The Prime Minister enters the debate
Amidst the already highly-charged media environment generated by the Michael Neal committal hearing, the Victorian Government reported its annual HIV notification statistics for 2006, which revealed a 17% increase in HIV infections over the previous year.
Presumably in an attempt to deflect political pressure, the Health Minister announced that of those notifications almost half were “immigrants” to the state leading Melbourne's Herald Sun to claim 'HIV migrants pour into the state'.
That morning the Prime Minister happened to be on radio where he was asked whether HIV-positive people should be allowed to immigrate, and responded “Well, I would like to get a bit more counsel and advice on that. My initial reaction is no. There may be some humanitarian considerations that could temper that in certain cases, but prime facie, no.”
In fact, the Victorian Health Minister’s reference to ‘immigrants’ was a grouping together of those who had been diagnosed overseas and those who had been diagnosed in other Australian states.
Fifty of the 70 ‘immigrants’ were people who had been previously diagnosed in another state. Of the 20 recorded as having come from overseas, the vast majority were from low prevalence countries, such as New Zealand, the UK and the like, or people born in Australia who had travelled and been diagnosed overseas, Margaret Hellard of the Burnet Institute revealed.
Despite the clarification, the Prime Minister rolled on. On June 1st, he declared that HIV-positive people should be banned from entering Australia:
"My view is the best result is that no one with those sort of ailments is allowed into the country ... I'm going to review the current position, and I want procedures put in place that see as far as possible that [it] doesn't happen. We are looking at it in the next week or so."
The Age newspaper has reported that the Prime Minister’s campaign continues despite the advice of his health and immigration ministers recommending that people with HIV/AIDS should not be stopped from moving to Australia, and that immigration has not had a significant impact on HIV infection in Australia.
Australia already has stringent HIV testing for those seeking to migrate permanently. If an applicant is found to be HIV-positive, they are automatically rejected, and must appeal. In practice, very few people are successful. The Immigration Department has said that it has allowed 64 migrants with HIV to stay, “mainly partners; husbands or wives or same-sex partners of Australian citizens".
Postscript
Unfortunately, this week (26 June 2007) an HIV-positive Sudanese born man who entered Australia in July 2006 on ‘an indefinite basis on humanitarian grounds’, was remanded in custody accused of having reckless, unprotected sex. It is alleged he infected his partner who is pregnant to him, had unprotected sex with another woman five times, and had unprotected sex on ten occasions with a 16 year-old girl, at least one instance of which was forced. Again he was under the watch of the Victorian Department of Human Services.
In the current climate, there will likely be broad ramifications.