The slippery slope of spit and test laws
The Autumn issue of Poslink examines how HIV criminalisation increases stigma and inhibits testing, treatment care and support. After years of progress there are still many areas of criminal and public health law that impact people living with HIV in Australia.
In this edition, we asked Paul Kidd, lawyer, anti-criminalisation activist, and a former President of Living Positive Victoria, to tackle the troubling spread of ‘spit-and-test’ laws.
One of the most fundamental principles of Australia’s successful HIV response is that HIV testing should only occur with the informed consent of the person being tested. But what happens when a police member or other emergency services worker is exposed to the risk of HIV at work?
A series of Australian states and territories have enacted special laws that enable testing of individuals whose bodily fluids come into contact with emergency services workers for HIV and other blood-borne viruses (notably hepatitis C) without consent.
In most if not all cases, these laws are being enacted in response to pressure from police, who argue that they should not have to go through lengthy periods of anxiety when they come into contact with bodily fluids in the course of their work. The usual scenario involves spitting, which carries no risk of HIV transmission. Forcibly testing a person also cannot determine if HIV transmission to an emergency services officer has occurred.
Despite reassurances that the risk is very low, the police member may experience crippling anxiety about the risk of HIV or other diseases, sometimes to the extent that they cannot work while they await the all-clear.
No-one would argue that deliberately spitting on someone is anything other than a vile act. If done intentionally or even recklessly, spitting can be considered an assault, and assaults on police and other emergency workers are considered serious crimes that can result in a prison sentence.
But not all cases where a person is alleged to have spat on a police member fit within that category. Many cases where people are alleged to have spat on police turn out to be unintentional: during the course of a forced apprehension or arrest, someone might involuntarily expel some saliva, and the police doing the arrest might come into contact with it.
So-called ‘spit-and-test’ laws have been passed in South Australia, Western Australia and the Northern Territory over recent years, and are proposed for New South Wales. These laws allow the police themselves to order that a person be tested if they consider there is a risk of transmission. But police aren’t medical experts, and they are inevitably biased towards their own colleagues. These laws have been brought in at the behest of police specifically due to the difficulty of getting a court or public health order.
Victoria has had a mandatory testing law for some time, but it operates differently. The Chief Health Officer, not a police officer, is the person who has the power to order the test. The CHO is a medical expert and independent of the police. They understand the risks of HIV transmission in a scientific and unbiased way, and are bound by law to respect the rights of the person proposed to be tested. A person who is subject to a testing order has the right to have it reviewed by The Victorian Civil and Administrative Tribunal,1 and the test can only be forcibly carried out if the CHO gets a court order authorising the police to use force. Perhaps unsurprisingly given these safeguards, an audit of mandatory testing laws published last year by the National Association of People With HIV Australia (NAPWHA) found that zero tests had been ordered since at least 2014.1
Compare that with Western Australia, which passed its spit-and-test law in 2014.2 In that state, a senior police officer is the person who gets to make the decision about whether a ‘suspected transferor’ should be tested. Once the order is made, police can apprehend and detain the person, take them to a health facility, and force them to be tested. Only if the ‘suspected transferor’ is a child or a person with cognitive impairment does any independent body get involved. Shockingly, in a 31⁄2-year period, NAPWHA audit found that 387 applications for mandatory testing were made by police, and only ten of these (2.6 percent) were rejected.
Similar laws to these exist in South Australia and Northern Territory, but NAPWHA was refused access to the data on how many times they were applied. These are highly problematic laws. They fly in the face of one of the most important and long- established principles of our HIV response: testing should be voluntary, confidential, based on the informed consent of the person being tested, and supported by counselling and care. Spit-and-test laws give police, who have no medical expertise, the power to force vulnerable people to be tested for HIV and other diseases against their will, sometimes with the use of force. In most cases, this is justified on the grounds that the police member is subjected to a period of anxiety over the risk of getting a disease, when that anxiety is based on stigma, not science.
The circumstances in which a person’s right to bodily autonomy can be abrogated should be very rare. The NAPWHA audit shows that it is possible to have a system of mandatory testing that only applies in rare cases – Victoria’s laws, which have not resulted in a single mandatory test in over 31⁄2 years, should be the model, not the laws adopted in SA, WA, NT and, soon, NSW.
1 Sally Cameron, The System Is Broken: Audit of Australia’s Mandatory Disease Testing Laws (HIV Justice Network and the National Association of People with HIV Australia, 2019) 23.
2 Mandatory Testing (Infectious Diseases) Act 2014 (WA).