(NSW) Clarify that Not Explicitly Disclosing HIV Status Cannot be Prosecuted as Assault

Isobel Tyquin
Jul 28
5 min read

Author: Isobel Tyquin | Publish date: 28/07/2025

Problem Identification:

In NSW, individuals could be prosecuted for sexual assault if they do not explicitly disclose their Human Immunodeficiency Virus (HIV) status.

Section 61HJ(k)(3) of the Crimes Act 1900 (NSW) (the Act) states that fraudulent inducement to sexual activity, which nullifies consent, does not refer to ‘misrepresentation about … wealth, income or feelings’. However, there is no limitation in the Act of which specific lies or misrepresentations could potentially violate consent. This law has not been tested in court.

Advocacy organisations, such as ACON, have expressed concern that the fraudulent inducement clause could criminalise people with HIV who do not explicitly disclose their HIV status to their sexual partners. They have argued that this can needlessly contribute to stigma and discrimination, undermining public health efforts to reduce transmission. Advocates have also raised concerns about the impact on people with an undetectable viral load (UVL) who cannot transmit HIV.

Context:

HIV refers to a viral infection that weakens the immune system. HIV may progress to Acquired Immune Deficiency Syndrome (AIDS) if untreated. ACON have noted that the majority of People Living with HIV (PLHIV) in NSW receive treatment, and 99% of people receiving treatment have an UVL.

Infection and disease were expressly mentioned in connection with fraudulent inducement during the introduction of the Crimes Act, deepening the concern of advocacy organisations as to the potential impacts of this law on people living with HIV. The National Association of People with HIV Australia (NAPWHA) have stated that this raises concerns about interpretations in NSW courts, potential broader impacts on other jurisdictions, and potential misrepresentations that could invalidate consent.

ACON have further stated that this legislation may be 'at odds’ with the 2017 amendment to the Public Health Act 2010 (NSW), which states that individuals with HIV are not required to disclose their HIV status to a partner if they are taking ‘reasonable precautions’ as outlined in the Public Health Regulation 2022 (NSW). NAPWHA have stated that ‘on its face [the Act] partially recriminalises non-disclosure… of HIV status.’

Laws criminalising HIV have been known to contribute to stigma and undermine public health efforts to reduce transmission by discouraging testing and disclosure. NAPWHA have drawn parallels between the fraudulent inducement clause in the Act and Canadian legislation with a similar function, warning that laws of this kind ‘will disincentivise testing for HIV… increase the risk of HIV transmission… increase unnecessary stigma and discrimination against people with HIV and… complicate the delivery of HIV treatment and healthcare.’

Australian advocacy groups, such as ACON and the HIV and AIDS Legal Centre (HALC), have recommended amending section 61HJ(k) of the Act to specifically exclude misrepresentation of HIV status from fraudulent inducement. They have argued that this could protect the privacy and safety of people living with HIV.

There is international precedent for decriminalising HIV. The Netherlands and Denmark have completely decriminalised HIV, except for intentional exposure and transmission (in the Netherlands). While available data is limited, the latest HIV monitoring report from the Netherlands showed that both the number of newly diagnosed cases of HIV and the estimated number of newly acquired infections have been declining since 2010.

Solution Identification:

Amend section 61HJ(k)(3) of the Crimes Act 1900 (NSW) to clarify that fraudulent inducement does not include misrepresentation about a person’s HIV status.

This could remove the possibility of prosecution for non-disclosure of HIV status. Further, this could help to decrease stigma about HIV and assist public health efforts to reduce transmission by encouraging testing and disclosure of HIV status.

Advice:

The NSW Attorney General should amend section 61HK(k)(3) of the Crimes Act 1900 (NSW) as specified above at the next opportunity.

Public Support:

Where to go to learn more:

ACON’s Position Statement on HIV Criminalisation - ACON’s position statement clearly outlined their concern for several laws in NSW that may criminalise PLHIV, including the changes to consent law. The arguments made by ACON in this position statement to amend the fraudulent inducement clause of the Act laid the foundation for this policy brief. Find it here.
HALC fact sheet on HIV and NSW Consent Law - A fact sheet designed for PLHIV in NSW that outlined a person’s responsibility in disclosing their HIV status to sexual partners. They also highlighted their concern with the change to consent law and its potential impacts on PLHIV . Find it here.
NAPWHA HIV and the Law - NAPWHA created this comprehensive report that provided an overview of laws affecting PLHIV across Australia, including how the changes to consent law in NSW may affect PLHIV and undermine efforts to reduce transmission. This was key to understanding the chilling effects of HIV criminalisation on testing and disclosure of HIV status. Find it here.
UNAIDS Reference Group on HIV and Human Rights - The report from UNAIDS highlighted the human rights violations they argue are committed when HIV is criminalised. It provided an excellent background to this brief and highlighted many of the concerns in the brief regarding privacy, reduced testing and increased stigma. Find it here.
Crimes Act 1900 (NSW) - The relevant section of legislation (s61HJ), criminalising fraudulent inducement to sexual activity, which this brief proposes to amend. Find it here.

Human Perspective: When Marcus was diagnosed with HIV, he started treatment straight away, reached an undetectable viral load, and learned that he couldn’t transmit the virus to others. He felt that with modern medicine and public health guidance on his side, he could move forward with his life like anyone else. But he started to worry when he heard that someone could potentially be prosecuted for not disclosing their HIV status to partners, even when there was no risk of transmission. The law hadn’t been tested in court yet but the uncertainty alone was enough to make him feel vulnerable. It caused Marcus immense emotional distress, making him more wary of intimacy and heightening his sense of isolation. Worse, when his friends heard about the law, some stopped getting tested altogether—afraid that knowing their status might expose them to legal risk. For Marcus, the law wasn’t protecting anyone—it was pushing people away from testing, treatment and connection, and fuelling stigma that undermines public health efforts. To protect the anonymity of those involved, this is a fictionalised account drawn from an amalgamation of real-life stories, experiences, and testimonials gathered during the research process for this brief. Any resemblance to actual individuals is purely coincidental.

Conflict of interest/acknowledgment statement:

N/a

Support

If your organisation would like to add your support to this paper or suggest amendments, please email Info@foreaustralia.com.

Reference list:

ACON. (2024). ACON Position Statement HIV Decriminalisation in NSW. https://www.acon.org.au/wp-content/uploads/2024/07/ACON-Position-HIV-Decriminalisation.pdf

Crimes Act 1900 (NSW) s 61HJ. https://legislation.nsw.gov.au/view/html/inforce/current/act-1900-040#sec.61HJ

Department of Communities and Justice. (2024, September 27). Sexual Consent Laws. https://dcj.nsw.gov.au/legal-and-justice/laws-and-legislation/reform-of-sexual-consent-laws.html

Evans, R., & Cogle, A. (2023). HIV and the Law in Australia: National Audit. NAPWHA. https://napwha.org.au/wp-content/uploads/2024/03/HIV-and-the-law-in-Australia.pdf#page=39

Health Equity Matters. (2024) The facts about HIV. Retrieved May 30, 2025 from https://www.healthequitymatters.org.au/about-hiv/about

Hanna Legal. (2025) Lying to Get Laid - Sex by Fraudulent Inducement. https://hannalegal.com.au/2023/03/13/lying-to-get-laid-sex-by-fraudulent-inducement-in-nsw/

HIV/AIDS Legal Centre. (2023). HIV & NSW Consent Law. https://halc.org.au/wp-content/uploads/2023/07/HIV-and-NSW-Consent-Laws-FINAL.pdf

HIV Justice Network. (2020, September). Denmark. Retrieved May 30, 2025, from https://www.hivjustice.net/country/dk/

HIV Justice Network. (2020, September). Netherlands. Retrieved December 17, 2024, from https://www.hivjustice.net/country/nl/

The Lancet HIV. (2018). HIV criminalisation is bad policy based on bad science. The Lancet HIV, 5(9), e473. https://doi.org/10.1016/s2352-3018(18)30219-4

New South Wales. Parliamentary Debates. Legislative Assembly. 10 October 2021. https://www.parliament.nsw.gov.au/Hansard/Pages/HansardResult.aspx#/docid/HANSARD-1323879322-119629

Public Health Act 2010 (NSW) s 79. https://legislation.nsw.gov.au/view/html/inforce/current/act-2010-127#sec.79

Public Health Regulation 2022 (NSW) s 63. https://legislation.nsw.gov.au/view/html/inforce/current/sl-2022-0502#sec.63

Stichting HIV Monitoring. (2024). HIV Monitoring Report 2024 Summary. https://www.hiv-monitoring.nl/application/files/2217/3212/4066/STICHTING_HIV_MONITORING_SUMMARY_2024_EN.pdf