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The Public Health Act and working with HIV

When can you work with HIV and other STIs?

If you are HIV positive, it is not illegal for you to do sex work in NSW, or to be a client of a sex worker, but the NSW Public Health Act 1991 sets out things you must and must not do. 

If you know you have a scheduled STI—vaginal, anal or oral—you may only have sexual intercourse if:

  • you tell your partner about the risk of contracting the condition
  • you do so BEFORE having sex and
  • your partner voluntarily agrees to accept the risk.  

Sexual intercourse includes any form of vaginal and anal intercourse or oral sex.

This discussion and agreement before sex is called ‘disclosure’ and ‘informed consent’. You must have this discussion even if you are going to use condoms.

It is no defence that the client should have asked you about your HIV status or that you used condoms or other safe sex methods.

But if you are offering a non-penetrative service—such as a hand job—you do not need to negotiate informed consent if you have an STI.

What is a scheduled STI and when does the law about disclosure apply?

This law applies only to scheduled medical conditions including:

  • HIV
  • syphilis
  • hepatitis
  • chlamydia, and
  • gonorrhoea.

AND where sexual intercourse will take place.

Warts, herpes, or hepatitis C are not scheduled STIs.

The law about disclosure applies to everyone with a scheduled STI—both sex workers and clients.

NOTE: Due to safe sex practices, including condom use, there has never been a recorded case of transmission of HIV in the Australian sex industry.

Must an owner or operator of a sex services premises ensure there is informed consent?

It is an offence for an owner or operator of sex services premises to allow sex work to be provided if they are aware that the sex worker or the client KNOWS they have an STI, and will have sexual intercourse without telling the other person and getting informed consent.

If you are a sex industry owner or operator, you must make sure that informed consent takes place. Owners may ask sex workers for a certificate to prove they have had a sexual health check.

What is a ‘certificate of attendance’ and what does it show?

If you are a sex worker, your employer or boss may ask you for a ‘certificate of attendance’.  This is a certificate from a sexual health service that shows you’ve attended the service on a particular date. It does not show your test results—these are private and confidential. It can be written in your working name to protect your privacy. If your boss requires a ‘certificate’, that is all that you should show or give to them.

Can you get a copy of your results and do you have to show them to anyone?

Sexual Health Clinics have to tell you your results if you have an STI, but they will only give you written results if you specifically ask for them.

Written results, whether positive or negative, are best not given or shown to other people. They may make an issue simply of the fact you’ve had a test, or attended a clinic. Some co-workers may refuse to work with you, or cause trouble, if they think you may have something transmissible.

CAREFULLY THINK THROUGH what name you want your certificate of attendance or results to be written under, and how you will keep these papers safe at work or home. Results from Sexual Health Clinics use numbers not names, so they can be meaningless to anybody else.

It is your decision whether you tell anyone else. Your results are private and confidential, so no one—not your boss, family or sexual partners—has the right to see or know the actual results.

REMEMBER: even a negative result is not a guarantee of ‘no infection’, due to the ‘window period’—the time it takes for infections to appear in a test. A ‘clear’ or ‘negative’ test really only shows your health status up to about three months earlier.

Can you still work if you have a positive STI result?

Legally, you can still work with an STI, but if it is a scheduled STI the Public Health Act will apply.  BUT depending on the STI and your medical condition—and whether you have sexual intercourse either at work or privately—you may need to disclose and seek informed consent from any partners or clients.

Ask the medical staff exactly how to prevent transmitting the STI you have, and whether there are sexual acts (services) which have no risks, or manageable risks, for transmission. With some STIs, treatment, safe sex practices and condom use will remove or reduce the risk of transmitting. With other STIs, you may need to stop having sex until the condition is cured or becomes inactive.

What do you tell a client if you are HIV positive?

You should only disclose your HIV status if sexual intercourse is part of your service, and then negotiate very clearly for the client’s informed consent. Remember that sexual intercourse includes any form of vaginal, anal or oral sex.

Before you tell a client, make sure they are prepared to keep what you’re going to say confidential. If you decide to tell a client you are HIV positive, then you need to be prepared for a reaction, including a walk-out. Also, be prepared to answer their questions about HIV, your health, sex and the risks. You should also insist on using condoms and lube. 

What if you are HIV positive and a client refuses safe sex?

If a client says they do not care if you are HIV positive and refuses safe sex, you need to be very cautious. Be prepared to ask them to leave if you think the transmission risk for the service they want are too high. It may be best to only provide an alternative service—such as a hand job or fantasy—for less money rather than provide sexual intercourse without a condom. Sex workers are at the frontline of the HIV battle, so maintain your own standards and protect yourself legally too. You should set the rules.

What if you are HIV positive and your doctor finds out you are not practising safe sex all the time?

Your doctor should not react to you being a sex worker who is HIV positive if you practice safe sex and get informed consent from each client or partner. 

Discussing the issues

But when a doctor finds out that anyone who is HIV positive is having sex without a condom, and without disclosure and informed consent, they will talk through the issues with the person. The doctor would tell the person of the laws and their responsibilities, and discuss the problems with informing sex partners and using condoms. 

A Public Health Order

If talking about the problems of practising safe sex does not help, then the doctor may get a Public Health Order issued to manage your behaviour as an HIV positive person.  Only a small number of sex workers and clients have received a Public Health Order or ‘management’ intervention for potentially breaking the law.

Public Health Act interventions may range from cooperative measures, such as counselling, through to restrictive orders, with detention as a last resort. 

The Crimes Act

Under the NSW Crimes Act, a person who either intentionally infects someone or attempts to infect someone with HIV may be sent to prison for up to 25 years.

If a person acts in a reckless manner that is indifferent to whether their sexual partner contracts HIV—say by not using condoms—and their partner does contract HIV, they may be sent to prison for up to 10 years.

If you have reason to believe you may be HIV positive—you have had high risk sex for example - but have not been tested, then the sentence for negligently transmitting HIV can be up to two years imprisonment.

Criminal cases involving HIV are extremely rare in Australia. Even though it is rare for people to do so, those who put other people at risk of infection are dealt with through the public health process discussed above.

How can owners of sex services premises cover their potential risk?

Sex services premises should have a standard precautions policy in place to protect sex workers and clients from exposure to disease or illness transmission. Standard precautions are used in health and dental settings to protect practitioner and patient from the risk of transmission, and involve:

  • using gloves and other protective barriers
  • using new, clean and sterile equipment—not sharing or reusing things like tools or syringes, and
  • properly washing and sterilising any equipment being used.

Similarly, in a sex work setting, protective barriers—condoms, gloves and dams with lube—should always be used, as neither sex worker nor client can be sure the other does not have HIV or an STI. Sex toys and other equipment also need to be properly cleaned and cared for.

By using standard precautions the health and legal risks are reduced for everyone, as all parties agree to practice safe sex and give their informed consent to the risk of transmission.

Sex industry operators should inform the receptionists and sex workers to make standard precautions and informed consent part of the booking by ensuring:

  • every client is provided with information on HIV and STIs before the service takes place
  • safe sex is the only service offered and provided—condoms, gloves and dams with lube are used as needed.

For business owners, operating sex services premises using standard precautions should fulfil informed consent obligations under the public health act. But it is unclear if standard precautions provide legal protection to clients or sex workers who do not disclose they have a scheduled STI before having sexual intercourse.

For more information about safe sex or caring for sex toys and other equipment, contact SWOP on (02) 9206 2166.