Testing for Human Immunodeficiency Virus (HIV) or Acquired Immune Deficiency Syndrome (AIDS) is only compulsory when either entering the military or, in South Australia, when the Chief Public Health Officer reasonably believes that a person has or has been exposed to a notifiable condition (which includes HIVAIDS) and is likely to present a risk to health through the transmission of the disease which brings about that condition [See South Australian Public Health Act 2011 ss 63 and 73 and South Australian Public Health (Notifiable and Controlled Notifiable Conditions) Regulations 2012 s 4]. Otherwise, testing a person's blood without his or her consent is assault and may give rise to a claim for compensation. If someone tests positive for HIVAIDS, the doctor must inform health authorities. Both the doctor and the health authorities must keep the information confidential.
If travelling overseas, some countries require an HIV test before entering or granting permanent residency and it is advisable to check the situation with a travel agent.
An insurer may require an HIV test before deciding whether to grant insurance. In this case, the test is not compulsory but the insurer may decide not to provide insurance without it.
Work health and safety laws require anyone who is exposed to HIV infected blood as part of their job must be supplied with gloves and anything else necessary to prevent infection.
Under the Disability Discrimination Act 1992 (Cth), it is unlawful to discriminate due to the presence in the body of organisms causing or capable of causing disease. This includes people who are HIV positive. Discrimination is only permitted if it is reasonably necessary to protect public health [Disability Discrimination Act 1992 (Cth) s 48].
People with AIDS or who test HIV positive are legally obliged not to pass on the disease. This includes not sharing a needle or donating blood or body organs. Where a person knowingly endangers the life of another person with infection from HIV, a claim for damages most likely may be made. The Criminal Law Consolidation Act 1935 (SA) contains offences of causing harm and serious harm, either by intent, ommission or reckless indifference. The definition of physical harm for these offences includes 'infection with a disease' [s 21] and the penalties for these offences range from 5 to 19 years [ss 23-24].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.