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Law, Ethics and HIV/AIDS: Existing Law in Papua New Guinea, Joint Working Paper [1993] PGLawRComm 1 (1 February 1993)

LAW, ETHICS AND HIV/AIDS

EXISTING LAW OF PAPUA NEW GUINEA

A Joint Working Paper of the
Law Reform Commission and the Department of Health

prepared by

Christine Stewart

Legal Officer - Drafting
Papua New Guinea Law Reform Commission

Printed by Department of Health, P.O. Box 3991, BOROKO

February 1993

This paper was prepared for the UNDP HIV and Development Programme Regional Network - Asia and the Pacific. The author is a member of the National AIDS Committee Legal Sub-Committee, other working members of which are: Mr. Pascoe Kase, Legal Officer, Department of Health, and Dr. Tompkins Tabua, Director, STD/AIDS Unit. The author acknowledges their assistance and co-operation in the preparation of this paper.

The views expressed in this paper are those of the author and not of the Law Reform Commission or the Department of Health.

CONTENTS:

Introduction 1
(a) Cultural Setting 1
(b) Legal System 2
(c) Dimensions of the Epidemic in Papua New Guinea 4

1. Public Health 6
1.1 Surveillance 6
1.2 Notification 6
1.3 Testing 6
1.4 Compulsory Treatment 7
1.5 Quarantine 7
1.6 Drug Trials 7

2. Confidentiality and Discrimination 8
2.1 Confidentiality 8
2.2 Duty to Disclose/Rights to Medical Information 8
2.3 Partner Notification 8
2.4 Duty to Treat 9
2.5 Discrimination 9
2.6 Civil Liability 9

3. Women's Issues 11
3.1 Vulnerability to HIV 11
3.2 Status within families and societies 11
3.3 Economic Rights 11
3.4 Role as Carers 11
3.5 Strategies for Empowerment 11

4. Information Law 12
4.1 Rights to Information 12
4.2 Obstacles to HIV Information 12
4.3 Sex Education 12
5. Families and Careers 13
5.1 Inheritance 13
5.2 Marriage, Divorce and Separation 13
5.3 Maintenance 13
5.4 Custody and Adoption 14
5.5 Carer and Survivor Support 14
5.6 Non-consensual sexual intercourse 14
5.7 Termination of Pregnancy 15
5.8 Age of Marriage and Sexual Consent 15

6. Prisons 16
6.1 Testing 16
6.2 Segregation and Preventive Measures 16
6.3 Counselling, Care and Support 17
6.4 Early release 17

7. Employment Issues 19
7.1 Workplace Testing 19
7.2 Policies on HIV Infected Persons 19
7.3 Sick Leave 19
7.4 Disability Support 19
7.5 Occupational Health and Safety 20
7.6 HIV Education in the Workplace 20

8. Criminal Law 21
8.1 Transmission Offences 21
8.2 Drug Use 21
8.3 Sex Workers 21
8.4 Homosexuality 22
8.5 Illegal Treatment and Advertising 22

9. The Legal Process 23
9.1 Access to the Law and Legal Aid 23
9.2 Evidence 23
9.3 Courtroom Procedure 23
9.4 Sentencing 24

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Introduction

(a) Cultural Setting

Some 85% of the population of nearly 4 million lives in traditional village settings in rural areas, which may be extremely remote and inaccessible. Access is often limited to poor bush roads, small plane airstrips or walking tracks only. In coastal and island regions, and on the major river systems, small boat and canoe transport is common. Despite this, there is a high casual flow rate between rural and urban areas. Cash cropping and access to money have intruded to varying degrees into the subsistence economy.

Village societies are small homogenous groups characterized by face to face relationships and group allegiance determined by one of the very wide variety of kinship systems, ranging from patrilineal/patrilocal through bilateral to various types of matrilineal society. Traditional values, rights and obligations pertain not to the individual but the group, from which the individual's status and position in society is derived.

Traditional society is egalitarian and pre-literate, with an absence of a hereditary ruling class and minimal written community records. There are approximately 800 different languages spoken (and hence as many different variations on social structure) some numbering several thousands of speakers, some spoken in only one village or local area. Two lingua francas and English are the three official languages, with English predominating as the language of business, government and the official sphere, and Tok Pisin as that of spoken communication. Not everyone speaks even one of these three languages. The literacy rate is low and opportunities to enter the formal education system are limited.

Christianity is the professed religion of almost the entire population, with the Catholic, Anglican, Lutheran and United (Protestant) churches predominating, though a wide variety of fundamentalist churches are also present. Religious adherence tends to be determined by village or cultural group, rather than individual choice. Despite the advent of Christianity, traditional religious beliefs, including those of good and evil spirits, sorcery (white and black), telepathy etc. persist at all levels of society, side by side or even syncretized with the introduced religious systems.

Urban centres (the largest being the capital Port Moresby, population approximately 200,000) are characterized by a high rate of urban drift and slum squatter residence, low levels of industrialization and high unemployment.

Traditional economy is based on subsistence horticulture. For many this is their only means of survival. The national economy relies heavily on imported goods, offset by exports of tree crops, which are declining in value, and minerals and oil, which are rising dramatically. The country is governed by a Westminster-style National Parliament, elected by universal franchise, and Provincial Assemblies for each of the 19 provinces. Government authority is comparatively weak, which gives rise to constant demands from various sectors of the society for the imposition of draconian measures to combat social problems.