Submission to the Northern Territory Law Reform Committing into Consent for Sexual Offences, July 2023

The document has been developed by Gen Dally (NTAHC) with contributions from James Holland (Health Equity Matters), Hannah Walter (Health Equity Matters), Liewen Hu (HALC), Aaron Cogle (NAPWHA), Phillippa VennBrown (NAPWHA), Mish Pony (Scarlet Alliance) and Leanne Melling (SWOP NT).

There is consensus in Australia’s National strategies for bloodborne viruses (BBV) and sexually transmissible infections (STI), and the public health policy space, that HIV and all other STI must be treated as a health issue, not a criminal issue. People must not be legally required to disclose HIV, nor to answer truthfully if asked about HIV. Further, people must not be required to disclose any other STI status before sex at law. This is because such requirements in fact discourage disclosure thereby making further transmissions more likely, not less and because of the serious consequences of criminalisation, stigma, discrimination and violence upon disclosure. In particular, when a person has an undetectable viral load, HIV is not transmissible. It is imperative that these provisions are not introduced to criminalise trans and gender diverse people, sex workers, or people living with STI inclusive of people living with HIV.

We note the Northern Territory has not regressed to criminalise people for BBV/STI status and in fact the Northern territory has advanced in protecting marginalised communities that includes enshrining protections against discrimination in law as protected attributes for sex workers and their work, people living with HIV and Hepatitis and for people who are LGBTI+.

We raise specific concerns that for sex workers, a key component of consent is payment and that in the current legislation and proposed bill it is not clear that “false representation as to the nature or purpose of the act” would cover non-payment of services. We submit that non-payment should be given as an example that falls user “false representation as to the nature or purpose of the act”. This is integral to ensure these protections extend to sex workers as we note that the NT Sex Industry Act 2019 does not cover adequately “false representation –nonpayment.”

“In sex work, a key aspect of consent for sexual services is payment for the services negotiated. If payment is not made or withdrawn, whether or not the sex worker is yet aware, consent is also withdrawn.”

We also note that the Criminal Justice Legislation Amendment (Sexual Offences) Bill 2023 (NT) (the Bill) proposes to criminalise non-consensual condom removal. We agree that this should be included in legislation.