New Publication: Mapping the Legal Landscape Around Hepatitis B in Australia
The law has the potential to enable the health, rights and wellbeing of people living with blood-borne viruses – but also to create obstacles. In the case of hepatitis B, we know that people living with chronic infection are sometimes viewed by people and systems as posing an infection risk in healthcare settings and in higher education settings training people to become healthcare professionals. If and when this view is legally enforced, it creates rules and processes that can act as unjust barriers for people living with hepatitis B seeking jobs and qualifications.
Another example is migration law. Australian migration law sees people living with hepatitis B as a risk to Australia’s health and community services, and it may deny them entry, stay or residence. Although health-related migration criteria have recently changed for the better, they still impact people living with hepatitis B. One of the troubling effects of these laws is that people may avoid monitoring or seeking treatment for their hepatitis B as they fear this may negatively impact their chance of securing a visa. For others, barriers to accessing health care in Australia can mean their hepatitis B status remains unknown, or they can’t afford access to treatment.
Understanding more about how the law affects people living with hepatitis B in Australia is the key objective of our latest publication, titled ‘Hepatitis B and the Law in Australia: A Mapping Review of Contemporary Case Law’. The report, which is part of our national legal needs (LeNS) study, examines the existing legal landscape surrounding hepatitis B in Australia by focusing on where and how hepatitis B becomes relevant in formal legal processes or disputes.
Legal mapping of this type – which searches for, screens and analyses relevant judgments and tribunal decisions in a jurisdiction – is a way to ‘take the pulse’ of the legal environment around a particular topic. A legal mapping review provides a ‘map’ of the types of disputes or areas of law that come up around that particular topic or issue – in this case hepatitis B. Although there are limitations to what they can unearth (for example, the details of some judgements are not always available to the public), they are an important approach in socio-legal research. In the case of hepatitis B, we know that the law impacts people’s health, so reviewing and analysing past cases and judgements starts to help us understand how.
Over 200,000 people are estimated to be living with chronic hepatitis B infection in Australia, making hepatitis B the most prevalent blood-borne virus in Australia. Given this, we expected to find a large number of relevant examples. This was not the case at all. Indeed, our searches across all Australian jurisdictions – Commonwealth, state and territory – uncovered only 40 relevant judgements or decisions. The precise reasons for this remain unclear, however emerging evidence from other parts of the LeNS study suggests some reasons for why hepatitis B is underrepresented in case law. One is that many members of the communities where hepatitis B is most prevalent have limited access to legal services, and so their legal issues seldom make it as far as courts and tribunals. In other words, it’s not that people with hepatitis B don’t experience legal challenges of all kinds of – including ones directly related to having hepatitis B – but rather that their ability to access legal remedies for these is limited.
A clearer result of this mapping review is that, while hepatitis B emerges in a range of areas of law in Australia, including family law, anti-discrimination law and workers’ compensation law, there are two areas in which it appears most frequently: the criminal law and migration law.
In criminal cases, hepatitis B mostly emerged in relation to sentencing. Here, the condition was rarely viewed as an aggravating or mitigating factor, which is quite different to how other health conditions – including other blood-borne viruses, such as HIV and hepatitis C – are often treated by courts in criminal sentencing.
As for migration, our review uncovered cases in which hepatitis B formed part of people’s claim for protection under refugee status, was related to visa cancellations, or in cases featuring Australia’s now-updated ‘health requirement’ rules. As we write in our report:
The predominance of migration-related matters does not necessarily follow from the fact that people living with hepatitis B in Australia were born overseas. Rather, it is the specific legal and regulatory settings of Australia’s migration system itself that generate migration-related matters where hepatitis B becomes a feature.
These findings matter for several reasons. For one, most hepatitis B-related cases are ones in which the state acts as a party or prosecutor (as opposed to private law matters, of which we uncovered very few examples). This means that state practice will be a key site of intervention for improving the legal environment around hepatitis B.
Second, the surprisingly small number of cases addressing hepatitis B in any significant way raises complex but important questions about the legal environment surrounding the virus and the people it effects. Why does hepatitis B emerge in so few cases, compared with HIV and hepatitis C, which are significantly less prevalent conditions in Australia? This is a question that the larger findings of the LeNS study will continue to address, and that we will continue to report on here.
Download and read the complete report here.
Citation: David J. Carter, Anthea Vogl, Rhys Evans, James Brown, Hamish Robertson & Dion Kagan (2024), ‘Hepatitis B and the Law in Australia: A Mapping Review of Contemporary Case Law’ (2024), Health+Law, Sydney, http://dx.doi.org/10.2139/ssrn.4977213.