While you weren't looking, a law passed putting people with HIV at risk of being thrown in jail.

A law was hurried through NSW parliament this week that went largely unreported, unnoticed. A law that means anyone with a sexually transmitted infection must take “reasonable precautions” to stop the spread of their condition.

At first, it looked like a victory for HIV positive members of the community, as it spelled an end to mandatory disclosure laws that have long been criticised for being outdated and ineffective at curbing transmission.

But instead, bodies like The Institute of Many and the Aids Council of New South Wales are saying those they are fighting for are now worse off, and they’re scared.

Because this new requirement comes with a punishment. Six months behind bars.

So what’s changed?

Section 79 of the NSW Public Health Act. This little bit of legislation previously forced HIV-positive people to disclose their sexual health status with their partner before engaging in any sexual activity. That has now been removed, bringing NSW in line with other states.

This decision has caused concern among some. Liberal MP Peter Phelps told Parliament, “If a person does not accept that disclosure is necessary, they are effectively saying a person can con their way into sex. I do not think that is appropriate.”

Nic Holas, HIV-positive activist, advocate and co-founder of The Institute of Many, can appreciate why people who don’t “live and breathe” this complex issue every day may be concerned. But he insists that law ran counter to best, evidence-based practice.

“The removal of the disclosure requirement has come about because the science around HIV has come leaps and bounds since those awful times when these laws were brought about,” he told Mamamia.

“In 2017 something like 95 per cent of people living with HIV in Australia are on effective treatments, which means that it’s technically impossible to pass on their HIV. But regardless of that fact, we still live with that fear and concern, and this means we are some of the most responsible people in regards to sex. So even though this disclosure requirement has been lifted, that is actually a really great thing because it sends the message to everyone that good sexual health is everyone’s responsibility.”

ACON, too, echoed this idea. In a statement, the group said it supported the removal of such a law as it perpetuates the false idea that HIV-positive people are unable or unwilling to negotiate safe sexual practices with their partners – a notion that it described as “unwarranted, unfair, stigmatising”.

“We know that the person most likely to pass on HIV, is someone who doesn’t know that they have it (and therefore are unable to disclose),” the statement read. “Therefore this law did not reflect where the true risk of transmission lies. Regular testing needs to be encouraged, alongside direct prevention strategies, to reduce the number of people in the community with undiagnosed infection.”

So why are advocacy groups concerned?

They’re worried about what’s replaced it, which is this: “A person who knows that he or she has a notifiable disease, or a scheduled medical condition, that is sexually transmissible is required to take reasonable precautions against spreading the disease or condition. Maximum penalty: 100 penalty units or imprisonment for 6 months, or both.”

Holas’ issue with this is twofold.

“Firstly, that’s an incredibly heavy handed sentence. Secondly, ‘reasonable precaution’ is as yet undefined,” he said.

“That’s pretty scary, because it’s one of the worst examples of HIV law we’ve seen in Australia. And we know for a fact – and the World Health Organisation backs this up – that heavy-handed punitive measures, like long-term prison sentences, do the exact opposite of what they’re intended to do. Because they create a false sense of security for the [HIV] negative person and a culture of fear among positive people.

“This actually discourages people from getting tested, because if you don’t get tested you can’t get charged.”

How has the government responded to the backlash?

In a statement issued to Mamamia, Dr Vicky Sheppeard, Director Communicable Diseases, NSW Health said the changes to the Act strengthen the existing requirement to take steps to prevent spread of the infection.

“The changes move toward a contemporary approach to encouraging testing and treating STIs,” she said.

Addressing concern about the vague nature of “reasonable precautions”, Dr Sheppeard said, “In general, reasonable precautions against spreading STIs could include using a condom to prevent the transmission of an STI or being on effective treatment that suppresses HIV virus to prevent the spread of HIV infection. A patient’s doctor can provide specific advice depending on his or her condition.”

The new measures, including the impact of penalties, will be reviewed in two years’ time.

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