HIV and the law

The Privacy Act regulates the collection, storage, use, and disclosure of personal information. It prohibits disclosure of medical information without signed consent, and therefore protects the privacy of people living with HIV regarding their HIV status.

This Act becomes particularly relevant in the workplace; even though it is blatantly illegal, the Aotearoa New Zealand People Living with HIV Stigma Index reported 4% of respondents had their HIV status disclosed to an employer without their consent, and 8% had their HIV status disclosed to a colleague. 4% had been refused employment or lost a source of income because of their HIV status.

Workers in precarious employment or with other vulnerabilities, particularly migrant workers, often wonder if the protections of The Privacy Act and the Human Rights Act (see below) apply to them as well, even before they have secured a visa. The simple answer is yes: discrimination is illegal regardless of someone’s immigration or visa status.

There are a few limited exceptions to the protections against mandatory disclosure in The Privacy Act. If you want to donate blood, organs, semen, or eggs, obtain life insurance, or have sex with anyone without a condom, you are legally mandated to disclose your HIV positive status (even if you have an undetectable viral load). Sex workers are not obligated to disclose their HIV/STI status, as it is illegal to provide or receive commercial sex services without a condom or dental dam for penetrative or oral sex. It is illegal for the operator of a commercial sexual business to state or imply that a medical examination of a worker has taken place, or that they are free of HIV/STIs (PRA 8.1.d).

Similarly, your privacy is legally protected in employment, with the exception of military personnel, aviation workers, and healthcare workers. The Aotearoa New Zealand HIV Stigma Index reported particularly high rates of non-disclosure among healthcare workers, due to anticipating stigma and negative reactions from colleagues. It’s important to note that although disclosure to specific authorities is mandated for the jobs named above, that does not mean all jobs within that sector are unavailable to people living with HIV, or that someone must disclose their status to their colleagues.

We do not want the possibility of disclosure at work to be discouraging to anyone living with HIV. Some of these regulations (particularly in healthcare) were developed over a decade ago, when the HIV epidemic looked very different, so their ongoing relevance is under debate and something Burnett Foundation Aotearoa is raising. These decisions are also often made by people within an organisation who understand bureaucratic risk exposure, but not HIV epidemiology or human rights protections for people living with HIV. Even if you fall into one of the few exceptional categories in which disclosure is mandated and discrimination seems lawful, please reach out to Burnett Foundation Aotearoa to at least discuss whether we can be of some help.

The Human Rights Act prohibits discrimination due to (among other things) disability, which includes, “the presence in the body of organisms capable of causing illness” (Sec 21.h.vii); it is consequently illegal to discriminate against someone due to their HIV positive status.

People living with HIV have the same human rights as everyone else, including the right to health, privacy, non-interference from the state and non-discrimination. No one can refuse you a job, housing, medical services, or dental services because of your HIV diagnosis. This right to non-discrimination extends to your partners, family, friends, colleagues, and other people associated with you. No one can treat people unfairly because of their relationship with you. 

Unfortunately, the HRA allows insurance companies to discriminate against people living with HIV. Most insurance providers currently exclude coverage of any costs relating to HIV for health insurance, and exclude people living with HIV from life insurance products. Acknowledging the advances in HIV medications, some insurance companies will now offer life insurance to people living with HIV. However, these policies often have limited terms (5-7 years) and higher premiums. This discrimination is also allowed for under the Fair Trading Act (1986) provision of ‘unfair contract terms.’

Fortunately, we are familiar with at least one exception: Rainbow Lifestyle Protection (insurance broker in Christchurch) have been providing life insurance to people living with HIV through Fidelity Life. We are also in contact with someone living with HIV who has obtained health insurance through Southern Cross.

If obtaining private health insurance is something you are interested in, make sure you are very clear about what is covered: some companies will provide health insurance to people living with HIV, but will not cover any care that is directly related to HIV itself. The premiums and coverage in both health and life insurance can be highly variable, so it is not possible to determine what someone might offer you personally without a thorough assessment.  

Section 201 of the Crimes Act states, “Every one is liable to imprisonment for a term not exceeding 14 years who, willfully and without lawful justification or excuse, causes or produces in any other person any disease or sickness” (201.1). Although HIV is not specifically mentioned, in practice it is the only infectious disease to which this law is applied. Disclosure with sexual partners is not required if condoms are used as this is recognised as “taking reasonable precautions,” (156) and consequently cannot meet the standard for “willfully” causing or producing illness in another.

The law has not been tested in people living with HIV with a suppressed or undetectable viral load (UVL), meaning even if there is zero risk of transmission, it is still possible you could be prosecuted for having sex without a condom if you do not disclose your HIV positive status. We are unaware of any legislation or case law regarding sharing needles or other injecting equipment.

Burnett Foundation Aotearoa explicitly recognises this as discrimination, and also notes that it is likely counter-productive: you can only be criminally prosecuted for non-disclosure if you know your status, so criminalising non-disclosure simply incentivises people to avoid testing. Criminalising non-disclosure is consequently not only a human rights violation, it is ineffective in preventing onward transmission of HIV. This legislation negatively impacts everyone living with HIV, as it institutionalises and perpetuates HIV stigma. This stigma contributes to self-isolation, affects mental wellbeing, and can negatively impact people’s willingness to seek and maintain effective HIV treatment.

We are actively involved in advocacy to decriminalise HIV in Aotearoa New Zealand, as decriminalisation is a necessary step on the path to creating a society where people living with HIV are safe, fully supported, and free from stigma.

The first principle of the Harmful Digital Communications Act states “A digital communication should not disclose sensitive personal facts about an individual” (6.1). Your HIV status is sensitive, personal information, so even though anti-discrimination laws do not generally protect against disclosure in private relationships, it does mean you can file a complaint if someone in your private life discloses your status on social media, for instance, without consent.

The Health Regulatory Authorities of New Zealand (HRANZ) is an informal group made up of 16 registering authorities that oversee and manage matters of interest among healthcare organisations. HRANZ issued joint guidelines for registered healthcare workers with a transmissible major viral infection (TMVI), which they restrict to HIV, Hepatitis C (HCV), and Hepatitis B (HBV). The guidelines are clear that broad restrictions on people living with HIV working within healthcare are inappropriate; instead, they focus on exposure-prone procedures, which “are characterized by the potential for direct contact between the skin (usually finger or thumb of the health care worker) and sharp surgical instruments or needles in body cavities or in poorly visualized or confined body sites including the mouth.”

Mandatory screening for HIV and HCV is not recommended as the risk does not warrant it; mandatory screening of HBV is recommended for those performing exposure-prone procedures. However, HRANZ says workers who perform exposure-prone procedures must know their HIV/HCV status.

If you know you have HIV/HCV/HBV, you must not continue with clinical practice based on your own assessment of safety; you must seek outside counsel for advice. Each registration authority should maintain a list of health care workers who are qualified to act as consultants in these matters. Section 45 of the HPCAA confirms that if someone knows a healthcare worker has been counselled to modify practice because of their HIV/HCV/HBV status but they do not do so, mandatory reporting to the appropriate registration authority is required.

The New Zealand Defense Force requires its members to be “medically and physically fit,” as determined by a number of tests throughout the recruitment process. Although HIV is not explicitly mentioned as a long-term condition that would limit or prohibit enrollment in the military, Burnett Foundation Aotearoa is in contact with individuals who have been denied entry into the NZDF due to their HIV positive status, despite having an undetectable viral load.

This guidance is based on outdated misinformation about the management of HIV. As of May 2024, the New Zealand Defense Force confirmed the policy regarding service from people living with HIV is under review. Burnett Foundation Aotearoa will continue to advocate for changes that are both scientifically accurate and support the rights of people living with HIV. We will update this page with information when any changes become public.

The Civil Aviation Authority (CAA) of New Zealand currently has no publicly published guidelines for pilots or air traffic controllers who live with HIV, but in correspondence with Burnett Foundation Aotearoa, CAA confirmed that someone living with HIV does not meet CAA’s part 67 medical standards and certification, and is thus of aeromedical significance. This means that in order to work in this capacity, someone living with HIV would need to make an application for flexibility with the Director of the CAA. The power of the Director to grant this flexibility is given directly to the Director in the Civil Aviation Act (1990) (27B.2). Rather than have a blanket policy, CAA assesses the suitability of people who might require a medical exception (which includes people living with HIV) on a case-by-case basis, often taking into account certification guidelines from other authorities such as CASA in Australia and FAA in the United States.

CAA confirmed they have issued Class 1 and 2 medical certificates to a number of pilots living with HIV, with restrictions and surveillances measures applied to these medical certificates to ensure piles and air traffic controllers remain safe to operate.

If you think you have been discriminated against, you can file a complaint with the Human Rights Commission (www.tikatangata.org.nz). The first step is to contact the Commission’s InfoLine team: freephone 0800 496 877 or email [email protected] to be connected to a case advisor. These case advisors are not able to investigate complaints or determine if the law has been breached, but they can offer free advice on the kinds of discrimination that is unlawful, and how to file a complaint should you choose to do so.

If you have faced discrimination related to a health or disability service (HIV is considered a disability), then you have a right to make a complaint. The Health and Disability Commissioner’s website (www.hdc.org.nz) has a step-by-step guide on the process, and can connect you with a free health and disability advocate to help in formulating your concerns.

The Employment Relations Act (2000) confirms an employee’s right to raise a personal grievance with the Employment Relations Authority (www.era.govt.nz) if they have been treated unfairly. It is important to remember that ‘unfair’ treatment is not restricted to being fired, but can include things like poor treatment at work, or changing your hours or pay without consultation. If you have received any unfair or discriminatory treatment from your employer (or if they have failed to protect you from mistreatment from your coworkers) due to your HIV status (or refusal to disclose it), you might be able to raise a grievance. The ERA’s webpage on personal grievances further explains what can be considered unfair treatment, and how to raise a grievance.

A personal grievance must be raised within 90 days of the offending incident, or from when the employee first became aware of the incident (whichever is later). You have 3 years to proceed with your grievance after it is first filed, but you are only able to raise a personal grievance after the 90 days if: 1) your employer consents OR 2) you are filing a sexual harassment complaint (these have a 12-month window to file).

Independent contractors do not have these protections, but are still protected by the human rights laws that apply to everyone. If you are a contractor who was discriminated against, you cannot raise a grievance with the ERA, but can refer to the other applicable sections in this website.

If you have been discriminated against by a healthcare worker (or in any healthcare setting), the best course of action is to send a complaint to the Health and Disability Commissioner (see above). You may also wish to send a supplementary letter to one of the relevant regulatory authorities listed here:

The Medical Council of New Zealand (www.mcnz.org.nz) oversees 16 health professional regulation bodies, which can be contacted directly.

Concerns about a nurse’s behaviour can be made to the Nursing Council of New Zealand (www.nursingcouncil.org.nz) here.

If your dentist is a member of the New Zealand Dental Association (www.nzda.org.nz), they might be able to help with any complaints of discrimination. Their website has a hotline where you can call to determine whether your dentist is a member of the NZDA, and offers a guide to filing complaints.

There are many other professional roles that are accountable to larger regulatory authorities. We have compiled a list here, but it is not meant to be exhaustive; if you are in doubt as to whether you have faced discrimination, please do not hesitate to contact Burnett Foundation Aotearoa for some initial guidance.

Immigration advisors may not discriminate against you because of your HIV status, nor may they disclose any personal information about you without your permission. Licensed advisors are overseen by the Immigration Advisors Authority (www.iaa.govt.nz). It is important to read the fine print on any contract you sign when engaging an immigration advisor’s services, as some might say you consent to them releasing any pertinent information about you. Guidance on how to raise a complaint about either a licensed or unlicensed advisor can be found here.

The Police are not allowed to discriminate against you based on your HIV status; this includes directly treating you poorly or differently because you are living with HIV, or refusing you assistance because of it. They are overseen by the Independent Police Conduct Authority (www.ipca.govt.nz). Further explanation of what kind of conduct you can complain about can be found here. The procedure on how to file a complaint can be found here.