‘The Legal Environment Treats Hepatitis B Status as a Trigger or Amplifier of Legal Problems’: Viral Hepatitis Conference Hears Stark Findings from National Study

Health+Law research lead David Carter shares key LeNS findings at VH2025

Last month, over 400 researchers, healthcare workers, community members, policymakers and individual people with lived experience of viral hepatitis descended on Naarm/Melbourne for the 15th Australasian Viral Hepatitis Conference. Under the banner of ‘Real People, Real Action, Real Results’, this year’s gathering focused on empowering community members in their roles as advocates and participants in efforts to eliminate viral hepatitis. Members of the Health+Law team were delighted to participate as conference delegates and to share brand new findings from our national legal needs study (LeNS).

However, much of this new national data – presented across two sessions on days one and two of the conference by Health+Law research lead David Carter – is stark. It includes worrying findings about the law’s treatment of people living with hepatitis B in Australia.

On day one, David appeared alongside Ele Morrison, Deputy CEO of AIVL, Australia’s national peer-led drug user organisation, and Research Officer from the Australian Research Centre in Sex, Health and Society (ARCSHS), La Trobe University and Health+Law collaborator Sean Mulcahy. The panel focused on hepatitis-related stigma and discrimination, human rights-based frameworks, and how laws can either (or both) empower and fail affected people and communities. David’s presentation focused on how migration law’s approach to hepatitis B can enact ‘legal violence’ through the operation of ‘health logics’, the ‘medical border’ and state-led and enacted criminalisation.

Criminalisation operates through the often-false construction of particular groups of people in terms of the risk of harm they are alleged to pose, attributed to either a characteristic or behaviour associated with those people. Historically, criminalisation has been a focus for critique among advocates and community members in HIV- and hepatitis C-affected communities. In particular, criminalisation is widely seen to perpetuate stigma, undermine public health efforts and violate the rights of people living with blood-borne viruses. For example, as has been shown in the case of HIV, criminalisation deters people from testing, accessing treatment, and talking openly with doctors about HIV.

While his previous work on HIV criminalisation has focused on the application of criminal law, David’s presentation at VH2025 reminded delegates that criminalisation can also occur through other areas of laws and legal apparatus – and, in this instance, could be seen in the operation of the health requirement imposed on most migrants living with hepatitis B. The official aim of Australia’s migration health requirement is to protect the Australian community from the ‘significant cost’ and potential ‘prejudice’ to healthcare or community services access that may occur should someone living with hepatitis B migrate to Australia. By characterising these potential financial and access risks as harms, David argued, migration law establishes a ‘criminalising logic’. It creates an adversarial relationship between migrants and non-citizens living with hepatitis B and the state; and, by extension, an adversarial relationship between migrants and other members of the Australian community.

As David asserted in his presentation on the VH2025 panel:

The migration health requirement functions as a criminalising policy tool. It transforms a health condition into a legal liability. It recasts the state as an adversary and produces a ‘suspect self’ who is forced to engage in health-harming defensive adaptations. It even poisons the well of the clinical relationship.

Responding to the conference theme’s call to centralise and elevate the voices of affected people, David’s paper elaborated the logic of criminalisation and its effects on individuals through case studies of people living with hepatitis B who shared their stories of attempting to migrate to Australia with Health+Law researchers. These interviews demonstrate how criminalisation transforms hepatitis B from a biomedical, health and social condition into a legal-bureaucratic liability and a legal problem. In these processes, affected people are turned into ‘suspects’, compelled to hold a ‘defensive position’, and often adapt in self-protecting ways that are harmful to their health, including disengaging from healthcare services. As for the clinician or healthcare worker, their role is reconfigured from ‘trusted partner’ to ‘potential agent of the state’ or ‘a source of legal risk’.

We discuss these criminalising effects of Australian migration law further in our forthcoming national reports as well as other upcoming outputs from LeNS. Read more about Australian migration law and the ‘medical border’ here.

Further LeNS results were the topic of a second paper delivered on day two of the conference. In ‘The legal needs and experiences of people living with hepatitis B in Australia – findings from Australia’s first national study of the legal needs of people with blood-borne viruses’, co-authored by several members of our team, David shared key findings about the legal experiences of people living with hepatitis B in Australia. Many of these findings are troubling.

For example, in our national survey of people living with hepatitis B, participants reported that they experienced legal problems or disputes at rates far higher than reported in recent studies of the Australian general population.

Participants also experienced multiple types of legal or ‘justiciable’ issues. Almost three quarters of the sample reported experiencing issues in five or more broad legal problem areas, indicating a highly complex legal burden. This ‘additive effect’ is known to amplify vulnerability to legal (and other) problems, with each additional issue raising the likelihood a person will encounter further, different problems, producing a cascade of cumulative legal, financial and psychological strain.

Importantly, participants reported that their hepatitis B status made their most severe legal problem worse. This underscores what David called ‘the active targeting of hepatitis B status by the law and legal environment’. As he explained, when participants report that a justiciable issue was ‘caused or made worse’ by their hepatitis B status, they are pinpointing instances where some aspect of the legal environment (a law, legal process or institution) responded to their hepatitis B as a legally salient characteristic, thereby triggering differential legal treatment, problems or a dispute. Across all the different problem types captured by the LeNS survey – including problems in goods and services law, family law, employment law, migration law and more – the legal environment appears to treat hepatitis B status itself ‘as a routine trigger or amplifier of legal conflict’.

Importantly, differential legal treatment ‘doesn’t reside in the virus itself or of the fact that a person is living with it’, David explained, but rather

is produced when law operationalises hepatitis B status as a legal category or classification in particular ways… [For example, if] a person attributes an immigration-related justiciable issue to their HBV status, it is not the virus that caused the immigration problem, immigration law did.

What this emerging picture is beginning to show is that the law in Australia can significantly and differentially target people living with hepatitis B, making them vulnerable to health and other harms, and potentially exacerbating other forms of disadvantage.

These groundbreaking findings present the first detailed national evidence base on how law impacts the health and wellbeing of people living with hepatitis B, with significant ramifications for policy, law and service reform, including in health care.

We’re grateful to ASHM and the organisers of VH2025 for including our work in the conference. To read more about these findings, and to receive the national LeNS report delivered directly to your inbox, sign up for the Health+Law newsletter here.