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Legislative Council
 
Crimes Amendment (Repeal of Section 19A) Bill 2015

07 May 2015
Statement of compatibility
JENNY MIKAKOS  (ALP)

 


For Mr HERBERT (Minister for Training and Skills), Ms Mikakos tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the 'charter'), I make this statement of compatibility with respect to the Crimes Amendment (Repeal of Section 19A) Bill 2015.

In my opinion, the Crimes Amendment (Repeal of Section 19A) Bill 2015, as introduced to the Legislative Council, is compatible with human rights as set out in the charter. I base my opinion on the reasons outlined in this statement.

The purpose of the bill is to repeal section 19A of the Crimes Act 1958 which contains an offence that discriminates against persons living with the human immunodeficiency virus (HIV). By repealing section 19A, the bill promotes the right to recognition and equality before the law in section 8 of the charter. Section 8(3) states that every person is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. Equal treatment requires that legislation should not discriminate on the basis of certain personal attributes as set out in the Equal Opportunity Act 2010. Those attributes include a disability, which is defined to cover the presence in the body of organisms that may cause disease, such as HIV.

Section 19A applies a harsher penalty for transmission of HIV compared with other similar offences. The maximum penalty of 25 years imprisonment is higher than for offences involving the intentional transmission of any other disease or causation of any other serious injury. The maximum penalty for these offences is 20 years imprisonment. By disproportionately punishing the transmission of HIV, the offence stigmatises people living with HIV. It reinforces the misunderstanding that HIV infection is a 'death sentence'. This mischaracterisation has a particularly negative impact on the lesbian, gay, bisexual, transgender and intersex communities.

This discrimination is not necessary to protect the health or safety of Victorians. There are offences of general application in the Crimes Act which capture the same conduct as section 19A without singling out any particular group. Following changes to the law, the Crimes Act defines an 'injury' to include infection with a disease. It is an offence, punishable by a maximum of 20 years imprisonment to intentionally cause a serious injury to another person. There are also a range of non-criminal measures that allow the chief health officer to manage the risk of infectious diseases in the community.

Repealing this offence will reduce the stigma and discrimination faced by people living with HIV, and promote the equal protection by the law of all Victorians.

The Hon. Steve Herbert, MP
Minister for Training and Skills