The law and HIV
Whenever a person tests positive for HIV in South Australia, the medical practitioner has a duty to notify the South Australia Health Department. Any information about this result must be carried out in confidence, in a face to face consultation. If partners in a relationship are tested, they must be counselled jointly and they receive the results of their test in a joint consultation.
As a person living with HIV, under South Australian legislation, doctors, dentists, hospitals and other health care providers cannot refuse to treat you because of HIV. This is discrimination in the provision of services, and is prohibited under both state and federal law. You are entitled to receive medical treatment like anyone else.
Your medical healthcare providers must explain to you or your representative, details and consequences of taking any medical treatment as well as the risk of any proposed medical treatment; the likely consequences of not taking the treatment; and any alternative treatment or actions that might be reasonable, under section 15 of the Consent to Medical Treatment and Palliative Care Act 1995 (SA).
If you are 16 years and over, you are also entitled to make decisions about your own medical treatment which includes the right to refuse treatment, under section 6 of the Consent to Medical Treatment and Palliative Care Act 1995 (SA). Anyone who is living with HIV who intentionally transmits HIV to another person, is liable under civil and criminal law.
Discrimination & HIV
While HIV discrimination is not specifically stated to be unlawful under state or federal law, it is covered under state law on the grounds of ‘impairment’ and under federal law on the grounds of ‘disability’. It is unlawful to discriminate against someone due to their impairment or disability and therefore a person living with HIV who is treated less favourably than a person who does not live with HIV, can make a complaint of discrimination to the Equal Opportunities Commission under the Equal Opportunities Act 1984 (SA). Under Federal law, the Disability Discrimination Act 1992 (Cwlth) defines the term ‘disability’ to include people living with HIV or AIDS.
Blood or Organ Donation
While there is no legislation in South Australia prohibiting the donation of organs or blood by people living with HIV, it is common practice not to accept organ donation and blood from people living with HIV.
Disclosure & HIV
Some people choose to tell people (disclose) that they are living with HIV before having sex. Other people choose not to disclose. This choice is an individual one. Even though there are no specific laws in South Australia that require people living with HIV to disclose their status to sexual partners, however under section 37 of the Public and Environmental Health Act 1987 (SA) people living with HIV must “take all reasonable measures to prevent transmission of the disease to others”.
Reasonable measures would most likely include the correct use of condoms, the use of HIV treatments to achieve and sustain an undetectable HIV viral load, sterile injecting practices and PrEP.
Employment & HIV
While it is unlawful for an employer to ask applicants or employees to test for HIV, there are some situations where you are required to disclose you are living with HIV. These exemptions include healthcare workers living with HIV, who are required to follow national guidelines when performing exposure prone procedures such as surgeries; and the Australian Defence Force which is exempted from laws prohibiting discrimination on the ground of disability in connection with employment, engagement or appointment in the Defence Force. All Australian Defence Force applicants will be tested for HIV and serving members will be tested at certain times, such as being posted or returning from overseas.
Travel & HIV
People living with HIV who travel overseas will need to take some extra precautions, depending on the destination. Some countries restrict the entry, residence and stay of foreigners who are living with HIV. These travel restrictions change regularly, and it is recommended people living with HIV check The Global Database on HIV related travel restrictions for updates. It is also strongly recommended that people living with HIV check the Australian Department of Foreign Affairs and Trade website Smartraveller.
Immigration & HIV
It is recommended that people living with HIV who wish to immigrate to Australia or apply for permanent Australian residence, consult with an experienced immigration lawyer or seek advice from a specialised legal centre such as the HIV/AIDS Legal Centre. All applicants for permanent residence in Australia will be tested for HIV (among other tests) in order to meet the ‘Health Requirement’ to be granted a visa. There is no automatic exclusion on people living with HIV and a considerable number of people living with HIV have succeeded in obtaining permanent residence in Australia.
Sources for this page include the HIV Justice Network | South Australia, ‘HIV/AIDS and the law in South Australia, A resource for workers’, HIV and viral hepatitis disclosure | SA Health, The Global Database on HIV related travel restrictions, Travel and Migration | AFAO, and HIV/AIDS Legal Centre (HALC).
What do I need to know?
- Women living with HIV (WLHIV) can lead normal, happy, healthy sexual relationships like anyone else.
- With the support of their doctors, WLHIV are able to use a number of strategies to bear their own children without passing HIV from mother-to-child.
- WLHIV can benefit from the support of other women living with HIV. Contact PLSA for more information.