The Sixth National HIV Strategy

6.4 Human rights, legislation and anti-discrimination

Page last updated: July 2010

Taking a human rights approach to HIV means creating a supportive social and legal environment where rights are respected and protected and the equitable right to health is fulfilled. A commitment by governments to human rights is particularly important in seeking to establish the cooperation and trust of communities that are marginalised and disadvantaged and that may be subject to legal sanction. Australia’s approach to HIV/AIDS has demonstrated the protection of human rights to be both compatible with
and essential to the effective protection of public health.

Australia was a leader in the development of the 1996 International Guidelines on HIV/AIDS and Human Rights (consolidated in 2006). These were based in part on the recommendations for reform in the 1992 Final Report of the Legal Working Party on AIDS, which identified a range of legislative and regulatory measures that both supported or impeded HIV programs.

Areas for consideration include anti-discrimination laws; the application of criminal and public health law to HIV transmission and/or exposure offences28; the impact of drug control laws on efforts to prevent HIV; sex work law; and immigration law.

The effectiveness of the public health approach to HIV and implementation of the National Guidelines for the Management of People with HIV who place others at risk of infection will be monitored.

Also, consideration will be given to the impact of drug control laws on HIV prevention efforts, and opportunities to further harmonise these laws and policies with public health priorities.

In relation to sex workers, some data suggest that under a decriminalised and deregulated legislative framework sex workers would have increased control over their work and be able to achieve similar or better health outcomes without the expense and invasiveness of mandatory screening.29, 30 The priority is to ensure that legislation, police practices and models of regulatory oversight support health promotion, so sex workers can implement safer sex practices and the industry can provide a more supportive environment for HIV prevention and health promotion.

Priority actions in human rights and anti-discrimination

  • Identify and work to address the legal barriers to evidence-based prevention strategies across jurisdictions.
  • Promote programs to challenge stigma and discrimination including education, compliance and measurement (such as attitude surveys), support for advocacy, and improved access to effective complaint systems.
  • Closely monitor the implementation of the National Guidelines for the Management of People with HIV Who Place Others at Risk.

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28 Cameron S & Rule J, 2009, ‘Outside the HIV strategy: challenges of "locating" Australian prosecutions for HIV exposure and transmission’, National Association of People Living with HIV/AIDs monograph no. 1, National Association of People Living With HIV/AIDS, Sydney.
29 Abel G, Fitzgerald L & Brunton J, 2009, ‘The impact of decriminalisation on the number of sex workers in New Zealand‘, Journal of Social Policy, 38(2): pp. 515–531.
30 Donovan B et.al. 2008,The Law and Sexworker Health (LASH) Project, Australasian Society for HIV Medicine Conference, available at: <http://secure.ashm.org.au/ei/viewpdf.esp?id=37&file=d%3A%5CAmlink%5CEventwin%5Cdocs%5Cpdf%5Cashm08Abstract00330.pdf>.