Australia’s HIV laws are increasingly out of step with science, public health and human rights.
While HIV is now a manageable condition and effectively non-transmissible with treatment and an undetectable viral load, people living with HIV can still face criminal liability under laws based on fear, misinformation and outdated understandings of HIV.
These laws don’t just fail to prevent transmission. They actively undermine Australia’s HIV response. By discouraging testing, reinforcing stigma and placing responsibility on people who already know their status, they make HIV transmission more likely, not less.
Outdated HIV criminalisation laws in Australia
Across Australia, laws governing HIV, exposure, non-disclosure and transmission are regulated not by a clear, evidence-based national framework, but by a mix of criminal and public health laws that differ in each state and territory. Laws relating to “grievous bodily harm” and the transmission of a “serious disease” continue to be used to prosecute people living with HIV, despite significant advances in treatment that have transformed HIV into a chronic, manageable condition that people can live with over the course of otherwise long and healthy lives.
HIV transmission occurs overwhelmingly among people who do not know their status, and yet the criminal law can only target people who know they are living with HIV. The legal system therefore takes a misguided and punitive approach, targeting those who are diagnosed. This group happens to be the group least likely to transmit HIV. This is an outdated approach that is out of step with contemporary science and understandings of HIV prevention as a shared mutual responsibility. It ignores the agency that HIV negative people have to take their own preventive precautions to appropriately share the responsibility we all have to prevent HIV transmission. Worse still, these laws actively encourage people who think they are HIV negative not to test, to maintain strategic ignorance of their HIV Status (because it protects from potential prosecution) and to rely on others to manage their sexual health; which is perhaps the most ineffective way possible to prevent HIV transmission.
Legal consent and disclosure requirements are inconsistent across states and territories. This creates uncertainty and, in some states and territories, exposes people to potential prosecution even where there is no realistic risk of transmission, particularly when someone is on effective treatment with an undetectable viral load. These inconsistencies contribute to a complex legal landscape where people with HIV may face criminal liability, even when transmission risk is non-existent or, as is the case in NSW and the ACT, they did not realise that misrepresenting their HIV status could invalidate consent for sexual intercourse.
Punishments can be extreme and disproportionate. Offences involving recklessly or intentionally causing “grievous bodily harm” or transmitting a “serious disease” can carry a sentence of 10 to 25 years’ imprisonment, and in some cases even life imprisonment. In NSW, while there is no general legal duty to disclose HIV status before sex, a person may still be found guilty of sexual intercourse without consent if they knowingly misrepresent their status to induce someone to consent to having sex with them, and that sex occurs. This legal approach is not only outdated, but harmful. It reinforces stigma, discourages testing and engagement into care and undermines public health objectives.
Criminalisation laws harm people with HIV
Decades of evidence shows that people with HIV who are on effective antiretroviral treatment and have an undetectable viral load cannot transmit HIV (U=U). In Australia, 98% of people with HIV are on effective treatment and have a suppressed viral load. Yet criminalisation continues to distort the public’s understanding of HIV transmission, reinforcing outdated fears and implying risk in situations where none exists, for example, where a person is on effective treatment, where PrEP is used or where risk of transmission is zero.
Laws that place legal responsibility for HIV transmission primarily on people with HIV impose an unequal and unjust burden. While there is no legal obligation to disclose HIV status prior to sex, criminal liability can arise where a person makes a false representation or misrepresents their status with the intention of persuading someone to have sex with them, for example if directly asked or if misleading information is provided on a dating profile. These confusing laws are inconsistent with a public health approach to HIV prevention and undermine the principle of mutual responsibility for sexual health. They also place a significant pressure and burden on people with HIV, where disclosure can put people at risk of rejection, ostracism, discrimination and even violence.
Framing HIV through a criminal lens perpetuates stigma and discrimination. This can impact people with HIV by creating anxiety around disclosing their status, having open discussions about sexual health and engaging comfortably in relationships.
Criminalisation harms public health and is at odds with scientific evidence
Australia’s HIV response has been built on evidence-based strategies, including testing, treatment and prevention. These approaches have dramatically reduced HIV transmission and enabled people living with HIV to lead long, healthy lives. HIV is now a manageable, chronic condition and people living with HIV have a life expectancy comparable to those not living with HIV. People on effective treatment cannot transmit HIV.
Despite this, criminalisation remains out of step with contemporary science and public health practice. HIV criminalisation undermines public health efforts by disincentivising HIV testing. If people avoid testing and remain unaware of their status, they cannot be found guilty of reckless or intentional transmission, nor can they face sanction for not taking reasonable precautions to prevent transmission, in those jurisdictions where fines or imprisonment could result (eg. NSW, ACT). An effective HIV response relies on people feeling safe to test and access treatment, however legal risks associated with knowing one’s HIV status may discourage people from testing altogether.
From a public health perspective, prevention is achieved through testing, treatment and biomedical tools such as PrEP, not through reliance on disclosure or assumptions about a partner’s status.
HIV is disproportionately subject to criminal prosecution in Australia compared to other sexually transmissible infections or blood-borne viruses, reflecting the extent to which criminalisation is driven by stigma rather than contemporary science or public health evidence.
Aligning laws with evidence and human rights
Rather than relying on punitive laws, HIV transmission should be managed under public health frameworks. Criminal law should only cover the exceedingly rare situations of intentional transmission (at most). There are already public health laws in place in each State and Territory to address the small number of people who may be putting others at risk. These laws allow for various interventions from counselling, all the way to detention and public health orders being made. HIV non-disclosure should not be criminalised in any form (e.g. fraudulent inducement offence like in Victoria or as a circumstance vitiating consent like in NSW and ACT). Additionally, legal language should reflect current science by removing terms like “serious disease” to reduce stigma and acknowledge that HIV is now a manageable chronic condition.
Shifting away from criminalisation and toward evidence-based public health approaches is essential, not only for an effective public health response but also to uphold the human rights of people with HIV. This is supported in the Ninth National HIV Strategy (2024-2030), which identifies HIV criminalisation as a key structural barrier to ending HIV transmission in Australia, noting that laws which criminalise HIV status, exposure and transmission can discourage people from seeking testing, treatment and support. To achieve the goal of virtually eliminating HIV transmission in Australia by 2030, the Strategy emphasises the need for stronger prevention efforts, including testing, PrEP and early treatment, while ensuring people living with HIV can access care, achieve good health and live free from stigma.
If Australia is serious about ending HIV transmission by 2030, its laws must reflect the science.
Laws that criminalise the misrepresentation of HIV status, exposure or transmission, directly undermine prevention efforts, discourages testing and entrenches stigma. Mandatory testing laws, although not operationalised as much in some states, entrench stigma amongst frontline workers. Shifting away from criminalisation and toward public health management means moving towards a public health approach grounded in evidence, shared responsibility and human rights, while supporting prevention efforts and empowering people with HIV to access care, stay healthy and live free from fear and stigma.
Because the current system doesn’t just fail people living with HIV, it makes prevention harder for everyone.