School of Social and Political Sciences - Theses
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ItemRegulatory strategies for controlling irresponsible behaviour by those infected with HIV( 1995)This thesis examines the selection of suitable options to regulate irresponsible behaviour by those infected with HIV. Whilst regulation of disease transmission has been regarded as the domain of the public health system, in recent years, there has been an increasing use of the criminal justice system to regulate this conduct. Accompanying this increased use have been criticisms that the criminal justice system is an inappropriate regulatory response because it is overly punitive and is problematic from a number of social and legal perspectives. In Victoria, the Health Act 1958, the Crimes Act 1958 the Prostitution Regulation Act and the Summary Offences Act 1966 govern conduct in this field. This study investigated the aims, philosophy and operation of both these systems with a view to determining which system is the most effective regulatory option. Five recent Victorian cases involving irresponsible behaviour were examined. Three of these were dealt with by the criminal justice system and two were regulated using public health provisions, providing a comparison of the regulation of this conduct in practice by both systems. It was found that neither system could deal adequately with all issues involved in the effective regulation of this behaviour. However, the Victorian public health system was better able to deal effectively with more of the critical issues than the criminal justice system, namely, protection of the community from dangerous behaviour, prevention of irresponsible conduct through deterrence, rehabilitation of offenders and avoidance of unnecessary restriction on individual liberty. Additionally, the public health system could deal better with issues of compliance with rules of procedural justice, provision of medical treatment for offenders and victims and maintenance of the health of offenders and victims, efficiency in terms of cost and delay and provision of trained personnel to investigate allegations of irresponsible behaviour and to determine appropriate action to be taken. Whilst the criminal justice system could deal better with the issues of protection of the privacy of offenders and victims and the punishment of offenders, these issues were not of sufficient importance to outweigh the benefits health regulation may bring in terms of protection of the community, prevention of the conduct through deterrence and rehabilitation. Indeed, the educative and non-punitive approach proffered by this system is more conducive to reducing the occurrence of this behaviour and providing remedies for it when it occurs. In light of this study's findings, future research should determine appropriate responses to the behaviour of individuals who have a mental illness and/or intellectual disability and who behave irresponsibly and examine the• practical operation of Victoria's HIV / AIDS Advisory Case Management Panel, particularly the panel's decision-making processes.