Hamblin, Julie --- "The Herald and Weekly Times v Baum M (Constituting the Magistrates Court at Prahran)" [1994] PrivLawPRpr 36; (1994) 1(3) Privacy Law & Policy Reporter 52

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THE HERALD AND WEEKLY TIMES v BRAUN M (Constituting the Magistrates Court at Prahran)

Unreported, Beach J, Supreme Court of Victoria, 13 January 1994

Court proceedings - disclosure of identity - HIV/AIDS - Health Act 1958(Vic), s129(1), s119

The Herald and Weekly Times (HWT) appealed against a magistrate's order preventing publication of any information that would identify the defendant in the proceedings before the court. The defendant, a male transvestite said to be infected with HIV, was charged with three separate offences of loitering in a public place for the purposes of prostitution. The non-publication order was made by the magistrate under s129(1) of the Health Act 1958 (Vic) which permits such orders to be made where the court or Tribunal is of the opinion that ''it is necessary to do so because of the social or economic consequences to a person if the information is disclosed'. The HWT sought to have the non-publication order set aside on the grounds, inter alia, that there was no adequate evidence that the defendant would suffer any adverse social or economic consequences if his identity was published, and that themagistrate had failed to give adequate weight to s119 of the Health Act which provides that a person with an infectious disease has a right to have his or her privacy respected so long as those rights do not infringe upon the well being of others (emphasis added).

Beach J held that the magistrate had evidence of possible adverse social consequences for the defendant if his identity was disclosed, because two psychiatric nurses had given evidence that the disclosure of the defendant's identity would cause him great stress and could lead to a deterioration in hismedical condition. However, he went on to find that s119 clearly expressed an intention on the part of the Victorian Parliament to strip a person with HIV of his or her right to privacy if that person failed to behave responsibly and that failure infringed upon the well being of others. There was evidence from the chief medical officer of the Department of Health that the defendant had been the subject of review by the department's HIV/AIDS assessment panel and that he did present a public health risk, since he was likely to practice unsafe sex andto share needles. He therefore concluded that s119 justified the setting aside of the non-publication order because of the risks the defendant posed to the public and the possibility that the publication of his identity could prevent some members of the public from being infected with HIV.

Julie Hamblin