The Impact of Modern Technology on the Duty of Confidentiality

Written By Chloe Widmaier

A Introduction

In today’s world, technology has had a dramatic impact on the legal profession.[1] Indeed, lawyers increasingly rely on new technologies to access information, communicate with clients and colleagues, and market themselves and their firms. [2] However, new technologies have also caused many problems. Perhaps the most serious problem is the impact of technology on the crucial duty of confidentiality – the idea that a lawyer will protect their client’s information – and the fact that new technology has compromised the duty. [3] In the United States, the Colorado Bar Association summarised the effect of modern technology on the duty of confidentiality:

It is impossible to predict how technological advances will alter the means by which communications can be conveyed or intercepted. However, regardless of technological developments, the [lawyer] must exercise reasonable care to guard against the risk that the medium….may somehow compromise the confidential nature of the information.[4]

This impact is especially troublesome as the duty of confidentiality is essential in promoting positive public opinion in the legal profession, and is key in encouraging clients to fully confide in their lawyers.[5]

This report will first briefly discuss what the duty of confidentiality entails. Second, it will examine the troubles lawyer’s face when determining who is a potential client when they are dealing with online inquires. Then this report will examine the risks associated with email communication, handling and storing files electronically, and metadata and examine their respective impacts on the duty of confidentiality. Finally, this report will ultimately suggest possibly ways to protect the duty of confidentiality from modern technology.

B An Overview of the Duty of Confidentiality and the Impact of Technology

The duties and requirements of a lawyer, have historically been found in the common law and in equity.[6] However, more recently they have been codified in the Queensland Law Society’s, Australian Solicitors Conduct Rules 2012 (the Rules).[7] Rule 9 of the Rules specifically covers the obligations of lawyers with respect to the duty of confidentiality. [8] According to Rule 9.1, a lawyer, ‘must not disclose any information which is confidential to a client and acquired by that [lawyer] during the client’s engagement to any person who is not…’ a member of the lawyer’s law firm or a barrister or employee of a person engaged by the lawyer’s law practice.[9] While there are a few exceptions, such as if the client authorises the disclosure, generally this is the rule.[10] Barristers are essentially bound by the same rule, through rule 108 of the Bar Association of Queensland’s, Barristers’ Conduct Rules.[11]

Furthermore, ‘confidential information’ has been defined by case law as ‘all communications made by the client regarding their affairs and all information learnt directly or indirectly about the client’.[12] This is a very broad definition intended to ensure that potentially any information a client gives is protected under the duty of confidentiality.

C Potential Clients

The internet raises issues with respect to identifying who is a client and when a lawyer-client relationship arises and with it, the duty of confidentiality. Typically, when dealing with clients, a lawyer’s duties and obligations commence with the execution of a retainer.[13] However, in the online context of internet websites and chatrooms, where individuals are able to submit informal inquires, identifying when an individual is owed a duty of confidentiality is complicated.[14] Some argue it depends on if the lawyer is giving legal advice or legal information – if they are found to be giving legal advice then the relationship and the relevant duties are activated.[15] However, this difference is often difficult to distinguish.[16] Definitions and guidelines– like those from the New South Wales Legal Technology Committee[17] – have been developed to help lawyers determine if they are giving advice or information.[18] However, the best solution is perhaps to always assume that a lawyer-client relationship exists.[19] Nevertheless, this approach presents its own concerns as well. For example, what if both sides in a legal dispute contact the same lawyer? Hopefully, the lawyer in that scenario would realise there would be a conflict of interest and would refer the second party to another lawyer.[20] It has been alternatively suggested that perhaps a better solution is for lawyers to use disclaimers when dealing with online inquires, which may offer some protection. Yet, lawyers should still exercise caution, as disclaimers do not always provided total immunity protection from legal proceedings.[21]

D Emails

Often lawyer’s emails will contain confidential information, which potentially puts that information at risk. This is due to the fact that when an individual sends an email, the information is sent to the internet service provider who breaks it down into packets of information.[22] These packets are then moved on to other servers until they reach the recipients sever where they are reassembled. [23] As the information travels along it is at risk of being intercepted at any moment, especially after it has been converted into the information packets.[24] Indeed, so-called packet-sniffing programs exist which intercept and copy the information in the packets.[25] Furthermore, the ease of emails invites mistakes, as for example, when an email is sent to an incorrect recipient.[26] Indeed, in the case of GT Corporation v Amare Safety[27] the defendant Amare accidently sent 50,000 privileged documents to the plaintiff GT during the discovery stage.[28] The information provided a strategic advantage to GT and indirectly contributed to Amare Safety ultimately losing the case.[29]

However, even in respect of such dangers, it is unclear if the duty of confidentiality mandates the protection of such communications. While some argue that there is an implied obligation to encrypt email messages it appears that there is no official duty to do so.[30] Indeed, according to the American Bar Association (ABA), despite the risk of emails, the ABA’s policy is that emails are to be treated the same as traditional mail and no encryption is required.[31] However, some still contend that if a lawyer believes that additional security is necessary – if there is a real threat or the information is especially important – then additional security precautions should be taken to protect the information. [32] Furthermore, it has been advised that lawyers should be kept informed of new developments in technology that may reduce such risks at a reasonable cost. [33] Additionally, it has been suggested that lawyers should inform their clients, especially if they are vulnerable, of the dangers of internet email communication.[34] Indeed, email guidelines such as that created by the Victorian Legal Practitioners’ Liability Committee provide valuable suggestions regarding email communication.[35]

E Handling and the Storage of Electronic Files

Currently, a large percentage of the documents a lawyer deals with are received and stored electronically. Electronic files are deceptively easy to amend and send to client parties and other individuals.[36] However, lawyers must be careful when they store or modify documents electronically as accidents can have extremely detrimental consequences.

Indeed, the ease at which documents can be stored invites mistakes. Take, for example, the situation in Hernandez v Esso Standard Oil Co.[37]In that case, a single mouse click by the defendants, Esso Oil, inadvertently merged privileged with non-privileged folders which were sent to the plaintiff, Hernandez. [38] It was held by the court that the click by Esso resulted in a waiver of privilege and caused Esso to lose 2,000 pages of privileged documents.[39] It is therefore necessary to be alert and careful when handling electronic documents.

The fact that a computer can store a significant amount of information also makes storing documents electronically more risky due to the danger of hackers. If a hacker manages to infiltrate a computer system they can easily steal or copy the information being stored without the owner even realising it or at least not until after the data breach has occurred.[40] Combined this with the fact that, under rule 14.2 of the Rules, a lawyer or a law firm may only destroy client documents seven years after the end of the engagement.[41] This means that lawyers have to keep and store a large amount of documents for a long period of time.[42] This in turn, puts confidential client information at an increased risk of being copied or stolen by hackers.[43] However, the situation worsens by the fact that if client instructions or legislative requirements to the contrary then the data may have to be stored even longer, further increasing the risk of it being compromised.

The definition of ‘client documents’ are documents to which a client is entitled.[44] This definition does help to limit the number of documents required to be stored and lawyers often include a provision in their contracts allowing them to destroy the documents after the seven year period. [45] There is still a large risk of the confidential information being taken.[46] While client documents can be protected possibly by implementing encryption programs, there is no true full proof protection, as can be seen by the recent Panama papers scandal.[47]

F Metadata

Lawyers must also be cautious of word processing programs, because these programs create and store metadata. Metadata is commonly referred to as ‘data about data’ and is hidden information contained in word processing programs. [48] The information contained in the metadata includes details describing how, when, where, what and by whom a file was edited or created.[49] Metadata has many useful applications, it can be used to locate relevant documents easily, especially if there are inconsistences in the documents, for example different terminology. [50] However, metadata can also be dangerous as it may inadvertently reveal information regarding a matter.[51]

The Ok Tedi Mine case is an example of metadata being inadvertently disclosed to the opposite party and then being used as leverage. In that case, a mine in Papua New Guinea was operated by BHP Billiton (BHP).[52] The mine was found to have polluted the nearby Ok Tedi River.[53] An action was then brought an action against BHP.[54] Following the commencement of that action a piece of legislation was passed by the Government of Papua New Guinea which made it a criminal offence to sue BHP for polluting the Ok Tedi River and also it made it an offence to assist anyone who sought to bring such an action.[55]  However, it was inadvertently discovered through metadata that it was BHP’s lawyers who had drafted the legislation.[56] As a result BHP was charged with being in contempt of the court.[57] Following that decision BHP decided to settle the issue out of court for a undisclosed amount.[58]

Similar to issues with respect to emails, there are ways lawyers can protect their clients from risks related to metadata. Perhaps the best method is for lawyers to resume making paper copies of all their documents, as that would remove all traces of metadata. However, this is considered inefficient and impractical, and it is unlikely this method would be adopted by many.[59] Another more practical way to keep metadata safe is by installing programs that remove the metadata from the documents before they are sent.[60] However, lawyers must remember to use the program or the metadata will remain in the document and may lead to issues as discussed above.

G Conclusion

Modern technology has substantially changed how lawyers work. While technology has provided many benefits, such as easier means of communication and storage it has also caused many problems. Specifically, it has undermined the duty of confidentiality lawyers owe to their clients. It has made it difficult for lawyers to determine who their clients are in certain circumstances and has led to inadvertent disclosure of confidential information through emails, electronic storage, and metadata. While there appears to be some solutions emerging to address these issues, through software, guidelines, disclaimers, and other means. These do not appear to be complete solutions. It seems that for the foreseeable future confidential information will continue to be at risk.

[1] Law Reform Committee, Parliament of Victoria, When a Stranger Calls: Guidelines for Legal Services on Websites, Phone or E-mail (1999) 29.

[2] Philip Kellow, 'The Federal Court of Australia: Electronic Filing and the E-court On-line Forum' [2002] University of Technology Sydney Law Review 123, 124; Law Reform Committee, Parliament of Victoria, When a Stranger Calls: Guidelines for Legal Services on Websites, Phone or E-mail (1999) 29.

[3] Tuckiar v The King [1934] 52 CLR 335.

[4] Colorado Bar Association Ethics Committee, ‘Preservation of Client Confidences in View of Modern Communications Technology’ (1992) 90.

[5] Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners (Queensland Law Society, 1st ed, 2014) 61; Colorado Bar Association Ethics Committee, ‘Preservation of Client Confidences in View of Modern Communications Technology’ (1992) 90.

[6] Ibid.

[7] Queensland Law Society, Australian Solicitors Conduct Rules (at 21 May 2012).

[8] Ibid.

[9] Ibid r 9.1.

[10] Ibid r 9.2

[11] Bar Association of Queensland, Barristers’ Conduct Rules (at 23 December 2011) r 108.

[12] Legal Practices Complaints Committee v Trowell [2009] WASAT 42.

[13] Queensland Law Society, Duties to Potential Clients (November 2008) Queensland Law Society, 46 <http://www.qls.com.au/Knowledge_centre/Ethics/Resources/Confidentiality/Confidentiality/Duties_to_potential_clients  >.

[14] Ibid.

[15] Del O’Roark, The Impact of the Internet on a Lawyer’s Standard of Care & Professional Responsibility’ (September 2008) Bench & Bar, 41 <http://www.lmick.com/_resources/documents/bench_and_bar/2008_bench_and_bar_september.pdf>.

[16] Law Reform Committee, Parliament of Victoria, When a Stranger Calls: Guidelines for Legal Services on Websites, Phone or E-mail (1999) 29, 31.

[17] New South Wales Legal Technology Committee, Guidelines on Social Media Policies (March 2012) New South Wales Legal Technology Committee <https://www.lawsociety.com.au/cs/groups/public/documents/internetcontent/587803.pdf>.

[18] Law Reform Committee, Parliament of Victoria, When a Stranger Calls: Guidelines for Legal Services on Websites, Phone or E-mail (1999) 29, 31.

[19] Ibid.

[20] Queensland Law Society, Australian Solicitors Conduct Rules (at 21 May 2012) r 11.2

[21] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54.

[22] Steven Masur, ‘Confidentiality in a High-Tech World’ (2007) 24(5) GPSOLO http://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_magazine_index/confidentiality.html\>.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] Law Reform Committee, above n 17, 42.

[27] [2007] VSC 123.

[28] Guzya; Hill, ‘Commercial litigation: How a click of a mouse can cost thousands’ (2011) 39 American Bar Law Review 191, 192.

[29] Ibid.

[30] Charles Luce, Lawyering on the Internet: Confidentiality, Solicitation, Ethics and Etiquette (1998) Money White <http://www.moyewhite.com/ethics/netethic.htm>.

[31] American Bar Association Committee on Ethics and Professional Responsibility, ‘Protecting the Confidentiality of Encrypted E-mail’ (1999) 99-143 American Bar Association 99.

[32] Ibid.

[33] Charles Luce, Lawyering on the Internet: Confidentiality, Solicitation, Ethics and Etiquette (1998) Money White <http://www.moyewhite.com/ethics/netethic.htm>.

[34] Charles Luce, Lawyering on the Internet: Confidentiality, Solicitation, Ethics and Etiquette (1998) Money White <http://www.moyewhite.com/ethics/netethic.htm>; Charles Luce, Lawyering on the Internet: Confidentiality, Solicitation, Ethics and Etiquette (1998) Money White <http://www.moyewhite.com/ethics/netethic.htm>.

[35] Legal Practitioners’ Liability Committee, E-mail guidelines, (23 May, 2007) Legal Practitioners’ Liability Committee < http://lplc.com.au/bulletins/e-mail-guidelines/>. 

[36] Hill, above n 28, 192.

[37] (3) 1485 WL 1967364 (US, 2006).

[38] Ibid.

[39] Ibid.

[40] Hill, above n 28, 193.

[41] Queensland Law Society, Australian Solicitors Conduct Rules (at 21 May 2012) r 14; Queensland Law Society, Can I destroy client files after 7 years? (2011) Queensland Law Society <http://www.qls.com.au/Knowledge_centre/Ethics/Resources/Client_documents_and_liens/Can_I_destroy_client_files_after_7_years>.

[42] Ibid.

[43] Ibid.

[44] Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners (Queensland Law Society, 1st ed, 2014) 61; Fordham v Legal Practitioners complaints committee (1997) 18 WAR 467.                                                                                  

[45] Queensland Law Society, The Australian Solicitors Conduct Rules 2012 in Practice: A Commentary for Australian Legal Practitioners (Queensland Law Society, 1st ed, 2014) 61; Fordham v Legal Practitioners complaints committee (1997) 18 WAR 467.                                                                                                       

[46] Ibid.

[47] James Temperton and Matt Burgess, The security flaws at the heart of the Panama Papers (6 April 2016) Wired <http://www.wired.co.uk/news/archive/2016-04/06/panama-papers-mossack-fonseca-website-security-problems>.

[48] Hill, above n 28, 192.

[49] Ibid.

[50] Dan Pinnington, Beware the Dangers of Metadata (2004) Lawyers’ Professional Indemnity Company, 1 <http://www.practicepro.ca/lawpromag/metadata.pdf.>.

[51] Ibid.

[52] Stephen Warne, A good summation of Microsoft Word metadata issues for lawyers (17 March 2007) The Australian Professional Liability Blog < http://lawyerslawyer.net/2007/03/17/a-good-summation-of-microsoft-word-metadata-issues-for-lawyers/>.

[53] Ibid.

[54] Ibid.

[55] Ibid.

[56] Ibid.

[57] Ibid.

[58] BHP Billiton, BHP Billiton Withdraws from Ok Tedi Copper Mine and Establishes Development Fund for Benefit of Paupa New Guinea People (8 February 2002) BHP Billiton < http://www.bhpbilliton.com/investors/news/bhp-billiton-withdraws-from-ok-tedi-copper-mine-and-establishes-development-fund-for-benefit-of-papua-new-guinea>.

[59] Donna Payne, ‘Metadata: The Good, the Bad, and the Misunderstood’ (April 2013) 30(2) GP Solo < http://www.americanbar.org/publications/gp_solo/2013/march_april/metadata_the_good_the_bad_and_the_misunderstood.html>.

[60] Ibid.

Social Justice Forum #1 - Let's Talk About Sex! Transcript

JATL started off the year with a bang, holding its first Social Justice Forum of the year. Let's Talk About Sex focusses on how the law affects the safety outcomes of marginalised and stigmatised people in Queensland, in the context of sex and sexuality.

We heard from Emile McPhee, the Executive Director of LGBTI Legal Service, Sharna Quigley from Queensland Positive People and Clarissa, a Queensland-based sex-worker. A big thank you to Rose and the social justice team for organising such an excellent event, and don't feel too bad for missing the first forum - stay tuned for the next one!

Emile McPhee - LGBTI Legal Service

When seeking feedback on this, I got told to prepare myself for some hefty backlash. I’m hoping that nothing I say is too controversial, but please hold on any heckling until the end. We’re a long way from where we were pre-1990, when homosexuality in Queensland was illegal. So far from that now that there’s now earnest discussion on expunging criminal convictions for consensual homosexual acts, in recognition that this should never have been prosecuted.

However, we’re still not where we should be.

One of my main concerns is the unequal age of consent which remains in Queensland, unlike any other jurisdiction in Australia, and one of few around the world. Section 215 of the Criminal Code establishes an age of consent of 16 years. Below that age, a person cannot consent – regardless of what they say. However, section 208 retains the offence of ‘unlawful sodomy’, contained under the Chapter ‘Offences against morality’.

That section provides that any person who sodomises someone under 18, or permits a male under 18 to sodomises them, is guilty of a crime. The maximum sentence is 14 years imprisonment – the same as any other sexual act with someone between 12 and 16.

This is out of touch with the rest of Australia and the world. Across jurisdictions, the age of consent varies – typically between 16 and 18 years of age. However, in the vast majority, the age of consent does not depend on the type of sexual act. Three arguments are typically put up against reform of this. First, that it is not discriminatory against gay men. In my mind, this is an incredibly weak argument. Granted, it is not directly discriminatory – sexuality is not a relevant consideration. However, there can be no doubt that it is indirectly discriminatory – a rule which applies to everyone in the same way, but has a worse effect on some people than others.

Despite prohibition of this sort of discrimination under the Queensland (and Commonwealth) Anti-discrimination Acts, the ‘unlawful sodomy’ provisions remain.

The second argument is that it’s not prosecuted, so it’s not an issue. I can’t think of a worse reason against law reform. If anything, it is a cause for law reform – if an offence is not prosecuted, does that not indicate that it should no longer be an offence? To take things to extremes (and please pardon me for the slipper slope fallacy I’m about to commit). Imagine if there was a law prohibiting women from voting (not that hard to imagine), or men from working with children. Now imagine this law was never enforced – it’s just a ‘remnant’ of times gone by. In what way is that a valid argument not to remove the offence?

A related argument is that, where the anal intercourse is consensual, no-one would ever be the victim to bring charges. Unfortunately, that’s not the case. Take, for example, a homophobic parent who encounters their seventeen-year-old son having anal sex with his eighteen-year-old boyfriend. The father could be the one to have charges pressed against the boyfriend. This might sound like an extreme example, but last year at the LGBTI Legal Service we saw someone who was facing similar circumstances.

He was 18, watching porn with his sixteen-year-old boyfriend. Unfortunately, the boyfriend’s father came into the room. That father pressed charges against the eighteen-year-old for indecent dealings.

The final argument, and it is trickier, is that anal sex is somehow different from every other kind of sex, and that people are not mature enough to make a decision to consent to it (whether giving or receiving) until they are 18. Whenever this argument is raised, things start to get emotive. Most gay men (at least) would be fairly affronted by such a position. I know I certainly am. However, those on the other side of the fence remain adamant that it is a detrimental act and that the best interests of children everywhere require that they be more mature before progressing ‘down that path’.

I think there is sufficient evidence against this proposition. And there is even more suggesting that it’s discriminatory criminalisation that endangers young people.

Another issue with the offence of ‘unlawful sodomy’ (yes, there’s more) is that it is not well known. It has almost mythical status, which is concerning given that it actually exists. Acts are criminal regardless of whether you know they’re a crime. So, young people may be committing a crime without realising it. The bigger issue is that the mythical status only helps to muddy waters and make it all the more difficult for the LGBTI community and professionals they interact with to properly understand the law, and receive or provide information.

All this creates a widespread and at times unnoticed stigma that homosexual sex is bad and to be discouraged, within not only the LGBTI community, but also the community more broadly. Retaining a separate offence of ‘unlawful sodomy’ is a serious impediment to the delivery of safe-sex education to young LGBTI people. It creates a difficult situation for teachers and other professionals, who may have an obligation to notify authorities about young people engaging in illegal anal intercourse. What young person would approach a teacher or adviser, if the response would be ‘you can’t do it, and if you do I might have to report you’.

The effect of all this is that young people are less likely to come forward about the sexuality, less likely to seek or obtain advice on safe sex and less likely to engage in safe sex. This is not in anyone’s best interest.

It’s interesting in this light to reflect on the recent and rather forceful backlash against the Safe School Coalition in Queensland. For those who don’t know about Safe Schools, it’s an anti-bullying program that offers resources and support to enable staff and students to be more inclusive of homosexual, intersex and gender diverse student, staff and families. According to the Australian Christian Lobby, however, it promotes ‘radical sexual experimentation’ and cross dressing.

On a less extreme note, some say that it is too sexual and advanced, and denies children their ‘innocence’. The program is aimed at secondary schools – when people are reaching puberty. To my mind, there is no better time to talk about gender and sexual diversity than when these issues are, biologically, coming to the forefront. Particularly in the case of intersex or transgender youth, this can be an exceptionally difficult time, and it is critically important to give them the support and information that they need. Instead, we’re providing only heteronormative sex education at that age, and holding back resources on anything else until some unknown time, perhaps once they’ve already lost their innocence.

By delaying the information sharing until a later point, we are doing nothing to promote acceptance or tolerance, are are instead fostering a divide between straight male/female individuals and their LGBTI peers. Again, this only goes to create uncertainty and a lack of information within the LGBTI community.   Those who identify as LGBTI are not only shown they are ‘different’, but also that they must learn things for themselves. This pushes their lives further into the unspoken underworld and continues to contribute to the feelings of alienation that many LGBTI youths (and adults) experience, leading to increased rates of depression and unsafe sex.

We need to continue to create a more open and accepting community. Young people (and adults) should be taught that there is nothing ‘different’ or wrong about LGBTI people, and that everyone is equal. Retaining laws like ‘unlawful sodomy’ and teaching only heteronormative sexual education is a serious impediment to this.

Repealing section 206 and implementing programs like Safe Schools are not a complete fix. But they are an important step forward in the continual journey towards true equality.

It’s not a debate about morality / rights or wrongs. It’s a different approach.

Sharna Quigley - Queensland Positive People

I’ve got a few speaking notes, if I’m going over time let me know because I love to talk (especially about sex). I’m an advocacy officer for QLD positive people, a peer-based organisation representing people with HIV in QLD, and when I was approached to speak today I thought what an amazing opportunity I’ve been given. When I went through Law School, a long time ago, health and HIV never came up. Law school is a bit of a snapshot of the ‘bigger picture’ and when you think about law it’s also important to think about safety.

In fact, often legal mechanisms create vulnerability, and vulnerability is what I see often for people living with HIV in QLD, because we do not have a very effective legal framework for people with or at risk of HIV.

So what laws interact with HIV in Queensland? It gets a bit murky and muddy because there are two pieces of legislation. Firstly, there’s a Criminal Code, and then there’s the Public Health Act.

In Queensland, it is a criminal offence to intentionally transmit HIV with the view to do harm. It also makes it a criminal offence to commit grievous bodily harm, which includes transmitting a serious disease to someone. The stakes are high here, with the offence of intentionally transmitting HIV of having a maximum sentence of life imprisonment, whereas committing grievous bodily harm has a maximum sentence of 14 years.  

Then we look at another piece of legislation that goes to regulate HIV. Public Health Act defines HIV as a controlled notifiable condition. The Public Health Act is less punitive, but it’s just as dangerous as the Criminal Code. There’s two offences here. Public Health Act makes it an offence to recklessly place another person at risk of HIV. It also creates the offence of recklessly transmitting HIV. One’s about risk, and the second is about actual HIV transmission.

The Public Health Act is also important for people living with an unknown status, or a negative status. There is a guiding principle in s 66 of the legislation that says, effectively, that everyone has the responsibility to practice safe sex. Though there’s no penalty attached to this, it’s important to note that the Public Health has this ‘mantra’ of shared responsibility.

The Public Health Act also gives the Queensland Department of Health a range of overarching powers when it comes to controlled notifiable conditions. It’s important to note that ‘controlled notifiable conditions’ also includes syphilis and herpes, but we don’t really see them going through the courts. These powers include what’s called a ‘Managing Guideline’ – QLD health has a guideline for people living with HIV who could put other people at risk. Within that guideline, there are various steps. Note that it is a defence if a person discloses their status before unprotected sex, and the partner accepts the risk, the person cannot be persecuted.

Namely, a person living with HIV does not have to disclose their status as long as they’re practicing safe sex. There are many biomedical advances when it comes to HIV, including the result of an ‘undetectable viral load’, which is where somebody living with HIV, after taking their medication, has suppressed the virus so much that the virus is technically undetectable. It’s not a cure, but databases show that a person with an undetectable viral load, without the use of prophylactics, has a very very small chance of transmitting HIV. Data even shoes that undetectable viral load is safer than relying 100% on condom.

Unfortunately, the law is slow to catch up with these technical advances. We don’t really have a mechanism to say ‘hey prosecutors, don’t prosecute this!’ For instance, go back to the guidelines for a moment. If it comes to a clinician that a person is engaging in unprotected sex without disclosure, it invokes ‘mandatory counselling’. If the person is unwilling to moderate their behaviour, then there’s ‘escalation’, which includes potential detention or court orders. If a person is still unwilling to change their behaviour, then referral to the police for charges can be made out.

Overall, the public health system and the guideline has been very successful in averting transmission, and empowers people to take control of their health and sexual health as well. Public Health system is also confidential, so privacy is a must, not like criminal prosecutions, as there are no suppression orders in the criminal process.

When we’re talking about safety and vulnerability, it’s important to note that we as an organisation are opposed to using the criminal law to regulate HIV transmission exposure. We would prefer a public health process, that understands the vulnerability or the inability in regards to someone disclosing their status. More often than not, HIV is not spread by intention. It’s in the course of ordinary consensual sex. The blunt tool of the Criminal Code actually furthers infection. Criminalising the disease sends a really wrong message; it encourages risky behaviour and, more importantly, people are more unlikely to test.  It’s safer to not know your status, because you cannot be potentially prosecuted.

It also stigmatises people living with HIV. Media reporting on HIV is horrible. Furthermore, there’s no restorative justice element in the Criminal Code, like there is in the Public Health Act. It does very little to assist someone, and it furthers that HIV is a death sentence, when we know that that’s not the case; it’s a chronic, manageable disease. Life expectancy for someone with HIV, diagnosed at a reasonable time, and who takes their medication, is a normal life expectancy. In some developing countries, there’s data coming out suggesting that people living with HIV have even longer life expectancies, because there’s a lot more monitoring. Basically, HIV is not the death sentence that it is painted as by the media.

Further, safety as protection is important. There are lots of different reasons why we have laws, but I think that an important element is law as safety and protection. Unfortunately, people living with HIV have very little protection from the law, especially when it comes to intimate relationships. I’ve seen quite often that the law mandates disclosure, and a person may want to do this, but often disclosure is used as weapon. It happens a lot in relationship breakdowns. As soon as disclosure happens, things sometimes fall apart. And then, the partner might threaten a person by ‘outing’ their status. In this narrative, there’s no protection. Privacy exists for doctors, clinicians, companies. There is no protection for the individual.

I know that this is a sort of somber way to end this, but there is very little protection, and I think that it is important for emerging law students to be aware of this. This is the nexus between real life and practice, and learning about reform. 

Clarissa - Sex Worker

I’m going to talk about me. My name’s Clarissa, and I’m kind of like you (but maybe not as smart). I wake up in the morning, I press snooze a lot and then panic because I’ve slept in, I go to University, like to go out and eat lots of food, I really like karaoke and I have three jobs. Two of them are casual, and the other one is sex work.

What is sex work? There are many different types of sex work. People tend to think of the ‘dead body on Law and Order’ or something similar, or maybe The Secret Diary of a Call Girl, but there are completely different types. Sex work covers lots of parts of the industry – cam workers, porn, phone sex, strippers. Some people work in hotels, I work in a brothel and it’s great (this is called full-service sex work). It doesn’t mean that I sell my body or my soul – I just sell sex, and getting paid for sex is pretty cool. I offer my time, and there’s certain things I’ll do in my time.

Importantly, we’re just ordinary people, students, mums, wives. We sit around, eat food, talk to each other. I also really like my work, though it took me some time to get into it. The media is constantly telling you that you’re ‘gross’ for being a sex worker, but it’s really empowered me. I used to be very insecure with body image and care too much about what other people thought of me, and now I just don’t care (because I’m amazing).

Queensland, unfortunately however, is not the perfect place to live in. Queensland Legislation dictates how sex workers work. Full service sex workers can work in two ways. Firstly, you can work privately, like in your home or a hotel. Alternatively, you can work at a brothel. There are very stringent rules dictating what you can and can’t do depending on what type of full-service sex work that you’re doing. For instance, you cannot work in an escort agency, massage parlours, on the street corner and if you work alone, you’re not allowed to work in a group. For brothel workers, you’re given a choice of 25 brothels in the State to work at, and most of them are around Brisbane, Sunshine Coast and Gold Coast, though there are a few around elsewhere. This means, for example, that if you have a falling out with one of the brothel owners, finding work can be very challenging. Further, many of them would choose not to hire someone like me because I’m too big.

As much as I enjoy my work, the laws make it tough. Sex workers working alone are legally not allowed to advertise what they do. For a worker working by themselves, this can make business extremely difficult. Imagine you were opening up a coffee shop and you want your business to be successful, but you can’t tell anyone that you’re making coffee and you can’t advertise anything that you’re doing. Like I mentioned before, they also have to work alone. This means no support group or network, and it also means no threesomes.

Brothels also face legislative constraints from the Prostitution Licensing Authority. Authorities are extremely stringent when it comes to health and safety – so much so that a brothel can be faced with a $20 000 fine after being audited if a bed sheet has a little bit of lube on it. Further, obtaining a brothel licence is very expensive. Obtaining a licence is also almost ridiculous given the number of rules associated with licensing. For instance, you can’t even be associated with someone with a liquor licence, or else you won’t get your licence. An example of this is the man and wife who own the brothel where I work. Their son would not be able to open a strip club, because that would ruin his parent’s work.

These rules are apparently in place for our protection, but I don’t feel safe with them; I want to be able to do what I want to do. I found out recently that it is legal for authorities, namely the police force, to use entrapment against sex workers. For instance, a police officer undercover could suggest seeing two sex workers working alone – both workers would go to jail, or be fined for not working alone. Instead of allowing people the autonomy and freedom to handle their bookings, it seems that the authorities strive to just put us in jail.

Various sex worker rights groups, like Scarlett Alliance, have provided the government with alternatives, feedback and recommendations, only to be ignored. We can improve these laws, but unfortunately it sometimes seems that the State is resistant to change or even going backwards. In 2012, changes were made to the Anti-Discrimination Act that allow hotel owners to essentially kick out anyone they think is a sex worker. They don’t even need proof, they just have to suspect that you’re a sex worker. Current legislation encourages people to work alone in isolation. It also makes it very difficult for sex workers to uphold their other jobs, and often people are laid of on discriminatory grounds because they choose to do sex work. Sex work can even lead to you losing your children, because apparently you’re not fit to be a mother if you are also a sex worker. You want to have support and help, and not feel that people are constantly out to get you for what you choose to do.

NSW, on the other hand, has relatively good laws when it comes to sex workers. In 1996, sex work de-criminalised and police workers were removed from regulation due to their corruption. Sex workers are supported instead of being victim-blamed. For Queensland to move forward, they really just need to listen to us, instead of deciding on our behalf what is beneficial. Thank you.

Rose: Thank you Clarissa, I especially liked your point about police corruption. I’d like to open up the floor to anyone who has questions.

Audience Member 1 : You were talking about educating Safe Schools program, do you think that this could be incorporated into human rights school education? I don’t know much about the program, but I know about the human rights aspect.

Emile: I think it sounds great. Safe Schools is a program that is very tailored, a lot of thought has gone into it. I do think though that the broader you go the better, as long as you manage to fit everything in there. To me, the main point of Safe School is to make sure that everyone is treated equally and to remove the discrimination. I think that this could totally be done through a broader human rights education model. I think also there would be less backlash then there is currently, as people are less likely to make a fuss over something that’s a ‘human right’ initiative rather than just minority rights, which is this case.

Shan: There is a current e-petition in favour of the program, and one that is anti Safe Schools. The petition that is anti Safe Schools currently has more signatures than the petition for the program, so if it’s something that you’re aligned with I suggest that you check it out.

Audience Member 2: You said that in QLD you don’t need to disclose your HIV status to anyone other than your sexual partner, I believe that in NSW it’s the complete opposite. I was interested to hear your thoughts on how the NSW legislation increases the stigma towards AIDS/HIV positive people.

Shan : In NSW it’s tricky, because there is mandated disclosure, but they amended their Public Health Act to make a defence if you’re having protected sex. This makes it more-or-less the same as it is in Queensland, i.e. you don’t have to disclose unless you’re engaging in unprotected sex. In NSW, it is that you do have to disclose unless you’re engaging in protected sex. The only difference really is that the onus has shifted a little bit. As it stands currently, a lot of advocacy organisations in NSW are trying to repeal disclosure, so this is really positive. This depends on the government, but anything to de-stigmatise people living with HIV/AIDS is a positive.

One of the detriments that we see with mandated disclosure laws is that it gives this reverse effect of safety. People think that because they’re mandated to disclosure, they’re going to tell me that they’re positive. We’ve found that a lot of the time, prognosis is coming from people who think that they’re negative because they haven’t been tested. A slightly older study showed that the average time between someone who has acquired HIV and the time that they actually get tested is approximately four and a half years. Medically, HIV is most infectious right after the virus takes over the system, and a lot of infections are coming from people who don’t know their status. People aren’t regularly testing, or might have multiple partners. Basically, you cannot rely on mandatory disclosure to solve this problem.

Audience Member 3 – What happens if you disclose to an authority that you’re having unprotected sex and then continue to do so without telling them? How does disclosure work if it is reliant on honesty?

Shan: In practice we find it really discretionary. We have great clinicians who explain a person’s obligations fully and completely. There also clinicians who may never have had experience with HIV/AIDS, and all of a sudden decides to call the police. Basically, disclosure based on honesty is very effective as long as the clinician is understanding and knowledgeable.

“We never wish anyone gets HIV, but we want a safe debate with facts, and not fear.”

We’ve never actually had a prosecution under the Public Health Act, but there’s currently one under the Criminal Code that is currently at the High Court, and is looking at ‘intention’. The case is N 61. With the Public Health Act, there are five steps. Firstly, counselling, secondly counselling with a psychiatrist, thirdly someone goes to panel. The panel compromises of one person living with HIV, and they decide what happens to the person ‘on trial’ so to speak. So far, nobody has gone above the third stage. However, there are no ‘rights’ to appeal at the Public Health Act. It doesn’t have the protections for the person being complained about because it’s punitive.

Audience Member 4:  What do you think is a good solution to encourage people to test for HIV/AIDS?

Shan: there are many solutions. I hate to harp on about education, but education is the most important thing. It’s also important to break down barriers to testing. A lot of people aren’t comfortable accessing a testing service, so trying to increase those services is very important. We’re trying to push home-based testing for people who do not want to go to an external place until physical symptoms start to manifest themselves. This cannot be done without breaking down the stigma around testing.

Emile: I agree, I think one of the big things is ‘I don’t know if I want to find out’ , and this needs to be flipped into positive thinking. There needs to be less fear of getting tested. It’s not something that’ll be changed overnight.

Shan: One of the testers in our clinic says that the majority of people that he sees, and he uses rapid tests that take about 20 minutes, are not worried about actually having HIV. They’re not worried about the therapy or having to take medication for the rest of their lives. They are worried about disclosing when they’re having sex, that’s why people are on intensive care, because they start having suicidal thoughts that no one could ever love them, or that they’d never be able to have sex again. The actual HIV part of it isn’t such a big problem.

Clarissa: When you work in a brothel, you have to be tested legally every three months, but mostly sex workers are pretty good with taking care of their health. They also have the lowest rate of STIs. It’s the clients who aren’t educated, and they don’t disclose. A lot of the times they’ll ask you to do something without prophylactics, so you just have to turn it around on them and ask them ‘do you think I am STI free?’, and then they stop and think about it.

Shan: It’s hard too because if you test positive, you’re not allowed to work in a brothel but have to work as a single sex worker. A clinician cannot give you your three-monthly certificate if you test positive. There’s a further stigma here – there’s no reason that a person with HIV can’t work at a brothel, and you no longer have the choice to work in brothel environment and you’re forced to work alone, navigating something difficult without any backup.

Emile : we’ve said the word ‘stigma’ a lot today, unfortunately it’s true.

Audience Member 5: What can the law do the alleviate stigma? Do we need to do things besides legislative changes to help this?

Emile: I think that one of the early steps to alleviating stigma is changing the law to even it out to fix up the kinks. From on perspective, it can be the illegal age of consent, from another perspective disclosure rules. I think though that the bigger change has to come from the community, which will take a lot longer. The problem is that it is a vicious circle, because the longer it takes for law reform, people start to rely on the existing, discriminatory laws, which perpetuates the idea for law makers to assume that no one’s asking for change. A lot of it is about educating people – people need to stop bringing moral underpinnings and beliefs into the picture, and be reasonable and look at the evidence.