Lost in Transmission: Law's 'Insubordinate Openness' and the use of HIV-Related Criminal Offences in the Governance of HIV in New South Wales. David Carter Submitted in fulfilment of the requirements for the degree of Master of Laws (Research) University of New South Wales 2011 THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: Carter First name: David Other name/s: James Abbreviation for degree as given in the University calendar: LLM School: Law Faculty: Law Title: Lost in Transmission: Law’s ‘insubordinate openness’ and the use of HIV-Related Criminal Offences in the Governance of HIV in New South Wales. Recently, the HIV sector in New South Wales has developed a strong interest in HIV-related criminal offences which have been vigorously contested in policy and public health literature. This research attempts to move beyond specific issues of public policy or doctrinal development and situates the imposition of HIV-related criminal offences as a part of a broader question of the nature of law itself, its place in contemporary approaches to regulation and understandings of power and importantly its relationship with other techniques of governance such as the disciplines of public health and health promotion in particular. The central argument of this research is that law is mischaracterised in current debates about the governance of HIV. In characterising the nature of law ‘itself’ and the interplay between legal-juridical power on the one hand and bio- and disciplinary power on the other, an anaemic characterisation of the law has led to a kind of knee-jerk antinomianism which risks embedding or simply re-creating the problems which the entire law reform and public health project sets out to solve. I undertake the review of HIV-related criminal law through the work of Foucault. I use Foucault in an exegetical mode rather than the more traditional methodological application of Foucault’s various methods. By reading Foucault’s substantive statements on law we see that rather than Foucault "refus[ing] to accord any major role to legal regulation in creating the distinctive features of modernity,” a revised characterisation of the governance of HIV requires that we cease portraying HIV-related law and public health approaches as mutually exclusive. We must reorient our understanding towards one where law and public health are understood to exist in a relationship of mutual co-constitution through processes of strategic withdrawal and conflict. This position provides a new contribution to a literature which has generally underplayed the dynamic interrelation of HIV-related law and public health, which has tended to call for decriminalisation and other discrete modes of law reform, reflective of a view which sees law and its disciplinary ‘other’ as separately constituted domains and a law which prohibits rather than adapts to resistance and transgression. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). …………………………………………………………… ……………………………………..……………… ……….……………………...……… Signature Witness . Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award COPYRIGHT STATEMENT ‘I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation.' Signed ……………………………………………........................... Date ……………………………………………........................... AUTHENTICITY STATEMENT ‘I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format.’ Signed ……………………………………………........................... Date …………………………………………….................... Originality Statement I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project's design and conception or in style, presentation and linguistic expression is acknowledged. Signed ……………………………………………........... Date ……………………………………………........... Required length of the LLM Thesis is 60,000 words including footnotes and any appendices. i Acknowledgements To Dr Ben Golder and Dr Tyrone Kirchengast, both exceptional guides to the production of a thesis but more importantly to my broader questions about what it might mean to be an academic and the responsibilities of that role, thank you both. I have learnt far more than can be shown in these pages, for that I am in your debt. Clearly your patience and wisdom, both legal and otherwise, has produced both this thesis and the candidate in only the most positive of Foucualdian ways. Thank you to the School of Law at the University of New South Wales and to the towns of Grafton, Bourke, Brewarrina, Dubbo, Coffs Harbour, Canberra and Hobart where this thesis was written. To my family Les, Lyn and Michael you are each the reason why I can attempt any of the things that I do. Thank you for your support, interest and most of all your unwavering assumption that I can achieve things like this. This thesis began as a short essay whilst an undergraduate at the University of Technology, Sydney. Thank you to Professor Lesley Hitchens of the Faculty of Law, UTS, for both her support and generosity during this time. Thank you also to Penny Crofts in whose classes my interest in this topic and many others was nourished, challenged and grew. Finally, thank you to Matthew Bickham, Rachael Bowles, John Burns, Michael Carter, Bonnie Faulkner, Sam Hartridge, Celia Langton, Julie Morgan, Jessica Pisanelli, Lynette Reeves, Brooke Shepherd and Richard Shepherd. Each of you, in numerous ways, has a claim on this thesis beyond just the words on the page. Acknowledgement and thanks must go in particular to Michael Carter for his proofreading and comments on drafts. ii Contents Abstract ................................................................................................................................................... v 1 Introduction ..................................................................................................................................... 2 1.1 Introduction ............................................................................................................................. 2 1.2 Aim of the Thesis .................................................................................................................. 10 1.3 Context of the Thesis ............................................................................................................ 13 1.4 The Literature: Context and Overview ................................................................................. 17 1.5 Critique ................................................................................................................................. 26 1.5.1 A Foucauldian Vision of Law. ...................................................................................... 29 1.6 Structure of the Thesis .......................................................................................................... 30 2 HIV-Related Law in NSW ............................................................................................................ 33 2.1 Current