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Constitutional and Law Reform Commission of Papua New Guinea - Working Paper No 1 |
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
---------------------------------------------
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.
The depressed economy and the low level of national unity give rise to much violent crime, principally robbery, rape and murder. This is not confined to urban centres alone. Nation-wide cultural traditions of xenophobia and retaliation legitimize self-help measures for the redress of wrongs. This can take place on an individual or group level. Tribal clashes are frequent, even in "mixed" urban areas, and may continue for long periods of time.
A government radio network covers most of the country but provincial radio stations face severe funding and maintenance difficulties and closures are frequent. Domestic television consists of one commercial station available only in urban centres. One daily and several weekly national newspapers circulate widely. Despite high illiteracy rates, there is a keen demand for printed material. One feature of informational culture is that village societies tend to accept the first message, however inaccurate, as the true message, and this attitude tends not to change despite subsequent re-education efforts.
Health services are provided mainly by the government. Private doctors practice in the larger urban centres, and missions operate their own services in remote rural areas. Large employers, such a mining companies, are required to provide medical facilities on-site. Government health services, provided through the Department of Health and Provincial Governments, are relatively inexpensive, but problems are frequently faced with funding, staffing and drug distribution, etc.
(b) Legal System
Adopted from the English common law adversarial system, with a typical appellate court hierarchy, principles of stare decisis etc. The National Court is the first superior court of record, and the Supreme Court is the original court of Constitutional interpretation and ultimate appellate authority. Most overseas decisions have persuasive authority only. A substantial body of indigenous case law has developed since Independence in 1975.
The inferior courts consist of District Courts, each declared for its own area which is in practical terms a province, and limited jurisdictionally in other ways as well;[1] Local Courts with a more limited jurisdiction still;[2] and Village Courts, which apply customary principles to village level-disputes and are subject only to the Constitution and to laws which are specifically applied to them.[3] These courts operate with varying degrees of success and adherence to constitutional principles.
The formal courts are paying increasing attention to custom, which may be pleaded as a question of fact. Due to the diversity of cultures, however, a unified customary law is unlikely to develop, though general trends can be extracted.
The Constitution, adopted at Independence in 1975, is one of the world's lengthiest and most detailed. It commences[4] with a statement of National Goals and Directive Principles, Basic Rights and Social Obligations, which are non-justiciable but are the yardstick against which national law and policy is to be formulated and measured. It is notable for its entrenchment of human rights, largely following upon the Universal Declaration of Human Rights. These are predicated on the concept of the rights (and obligations) of the individual, in contradistinction to traditional Papua New Guinea societies, whose mores are founded on the rights and obligations of the group.
Rights[5] are classified into fundamental and qualified, with some of the latter applicable to citizens only. All such rights are enforceable by the National and Supreme Courts, either on the court's own initiative or on application by any person interested in the protection or enforcement of the right, both upon cases of actual or imminent infringement and situations of a reasonable probability of infringement. The independence of the judiciary and the comparative ease of access by the literate and urban population to the courts has meant that rights are strenuously upheld, where adjudicated, and a considerable body of constitutional case law has already developed. The main inhibiting factors to this process have been widespread ignorance of constitutional rights and the legal process, and illiteracy and remoteness in the rural sector.
Fundamental Rights are:
Right to Life (Section 35)
Freedom from Inhuman Treatment (Section 36)
Right to Protection of the Law (Section 37).
Other Rights are each defined in detail and at length, and may be qualified generally in the interests of defence, public safety, public order, public welfare, public health, the protection of children and persons under legal or practical disability, the development of underprivileged or less advanced groups or areas, or to protect the rights and freedoms of others, to the extent that the qualification is reasonably justifiable in a democratic society.[6] The validity of any qualification or definitive interpretation may be and often has been adjudicated by the Supreme Court.
The HIV/AIDS epidemic has implications for nearly all human rights, but the primary operational right is the Fundamental Right to Life. AIDS threatens human life, and governments and the international community are obligated to take all measures to protect human life. Hence any action which prohibits or restricts an individual's ability to protect him or herself from contracting AIDS contravenes this most fundamental of rights.
The most notable Qualified Right in the context of HIV/AIDS is Section 49, the Right to Privacy, in respect of personal and family life, communications and personal papers and effects.
As the bulk of the nation's statutory law was formulated prior to the Constitution, it is possible that many statutes are in conflict with the Constitution's basic principles, and some of their provisions may be unconstitutional. Many such matters remain to be tested in the Supreme Court.
Criminal law is codified, and is primarily governed by the Criminal Code (Chapter 262), which was adopted from the Code of Queensland. Much of it persists in its original form, with no modernization or adaptation to the country's circumstances.
Papua New Guinea's legal system, consisting of a body of imported law which is often paternalistic, outdated and inappropriate, a modern and detailed system of entrenched constitutional rights, and a growing recognition of general trends in customary law which are often in conflict with both of the foregoing, contains fundamental tensions and conflicts, many of which remain to be resolved.[7]
(c) Dimensions of the Epidemic in Papua New Guinea
By late 1992, 127 HIV infections and 46 AIDS cases had been identified. The great majority of these were detected in the Capital. Slightly over half of infected persons are male, and the principal age category for both sexes is the 15-30 age group.[8]
A high rate of under-reporting is suspected for Papua New Guinea. High levels of many tropical diseases, including malaria in all varieties including the most virulent; the remoteness of much of the country's population and the inadequacies of health outreach services; and the customary attributing of deaths to supernatural causes, means that many cases of HIV infection may well have occurred, and resulted in AIDS death, without anyone being any the wiser.
The predominant mode of spread is heterosexual activity, with some consequent perinatal infection. Only one case of transfusion infection has been reported and the transfusion took place overseas. Within the country, 93% of blood transfusion supplies are screened, the remainder being used in remote areas. The Department of Health has established Infection Control Guidelines for HIV/AIDS and other Blood-Borne Infections, for all its medical facilities. Intravenous illegal drug use is so far unknown, and the only real danger of blood transmission lies in traditional tattooing practices and other cultural practices (whether traditional or otherwise) which may involve shared cutting and piercing instruments.
A National Policy Document prepared in the Ministry of Health was endorsed by the National Executive Council in 1988. The Department of Health was directed to formulate a medium-term (5-year) plan; to safeguard personal identity and insist of prior consent for testing; and to include "groups such as Prisoners, Stewards and Stewardesses, Police, Defence Force Personnel and Prostitutes in the proposed sentinel groups".[9]
To date, few of these directives have been implemented. Initiatives of other Departments so far have been taken by the Defence Force, which has instituted testing as part of the Annual Medical Board;[10] and the Foreign Affairs Department, which has established negative-testing requirements for some categories of alien entrants, although policy does not appear to have been cohesively formulated and is somewhat arbitrarily applied. The Education Department is commencing policy formulation in relation to classroom operations etc. In the private sector, Ok Tedi Mining, which operates a large mine in a remote area, has set a policy in place;[11] other commercial enterprises, both statutory and non-government, have so far failed to do so despite encouragement.
A Medium Term Plan was Developed in 1989, by WHO and the Department of Health. A review in 1992 found that excellent progress is being made, although much anticipated funding has not been forthcoming and the programme suffers lack of resources, staffing etc.[12]
Epidemic management is currently vested in the Department of Health, which has established a National AIDS Committee (originally the National AIDS Surveillance Committee, established in 1986) to advise the Departmental Secretary. Committee membership is drawn from the public and private sectors. The committee currently meets quarterly and works through Education, Research, NGO and Legal Sub-Committees. A WHO epidemiologist works with the Department, which also has close links with the Medical Faculty of the University of Papua New Guinea and the Institute of Medical Research in Goroka.
No public health legislation has yet been enacted specifically in respect of HIV/AIDS. The existing Public Health Act (Chapter 226) contains separate Parts for: infectious diseases, with provision for proclamation of a disease; venereal diseases, which are exclusively defined in the body of the Act; and other special provisions for typhoid, Hansen's Disease and malaria. The Part most appropriate as it stands at present for HIV/AIDS would be Part V. - Venereal Diseases. Should it be considered appropriate to bring HIV/AIDS within the ambit of this Part of the Act, legislative intervention will be required. The decision to include or not will depend on the direction of policy formulation and the extent of its conformity with the existing provisions of the Act. For example, Part V. includes provisions and procedures for treatment and cure which are inappropriate to HIV/AIDS, and some partner notification requirements which may run contrary to policies on confidentiality. Some amendment may be necessary to take account of such matters. Consequently, references to the Act in this paper are made for information purposes only, and should not be taken to refer to HIV/AIDS.
Medical ethics in Papua New Guinea are monitored by the Medical Board, which has disciplinary jurisdiction over registered medical practitioners, dental practitioners and allied health workers, including the power to reprimand, suspend or de-register the practitioner. Nurses and nurse aides are similarly governed by the Papua New Guinea Nursing Council.[13] The Medical Society of Papua New Guinea has the responsibility of informing doctors of their duties and the ethical demands of their profession. The Society has drawn up a Code of Ethics based principally on those published by the World Medical Association, the Fiji Medical Association and the Hong Kong Branch of the British Medical Association. Although such a Code does not have the force of law, its contents may be used in determining the standard of care required of a doctor.
1. Public Health
1.1 Surveillance
A WHO epidemiologist is working with the Department of Health, principally but not exclusively on HIV/AIDS.
Anonymous testing of some 93% of donated blood is carried out, with infected batches being discarded.
Anonymous non-consensual surveillance testing has recently been carried out at 12 ante-natal or STD clinics, for public health informational purposes only. This project has just concluded but may be resumed again later.
Data on positive testing, wherever carried out, is forwarded to the STD/AIDS Unit headquarters, where it is collated and circulated in statistical form. Quarterly reports are published.
1.2 Notification
There is no current legal requirement for notification of HIV infection. However, anonymous or coded test result reporting is collated at the STD/AIDS Unit of the Department of Health. Reporting is relatively comprehensive, although substantial under-reporting is recognized. It is from these reports that the national database is compiled, and a quarterly report has been distributed since late 1990.
Part V. of the Public Health Act provides for the appointment by the Minister of a Commissioner for the purposes of the Part (Section 49). There have been many departmental reorganizations and reclassifications since the Act was originally written, and the present-day equivalent of the position is Senior Medical Officer, STD/AIDS Unit.[14]
Medical practitioners diagnosing a case of a venereal disease must notify the disease to the Commissioner (Section 52). The practitioner must also advise the sufferer of the dangers of infection and the "legal consequences" of infecting others, and warn him/her against contracting a marriage until cured (Section 53).
1.3 Testing
Under the Medical Code of Ethics, no-one may be required to submit him/herself for medical examination unless the law requires it.
Test specimens are taken at STD clinics; provincial hospitals, health centres and subcentres; special survey sites; and private practitioner surgeries. Serodia and ELISA tests are performed in Papua New Guinea; Western Blot confirmation is carried out in Australia. Coding is used to identify specimens and other patient data are collected.
Mandatory nominal testing may infringe the Qualified Right to Privacy, unless it is carried out in an "optional" situation e.g. for employment application. So far, such testing is performed in only three specific instances, on Defence Force servicemen, foreign work applicants and job applicants to one large mining company.
The Defence Force has instituted a policy of mandatory testing of all applicants for enlistment, and all servicemen as part of their Annual Medical Board. Voluntary testing of authorized civilians, and the families of servicemen, is encouraged. Alongside these testing policies, the Force has instituted strong awareness measures, including the promotion of its own brand of condom.[15]
Where applicants for entry visas are required to undergo medical testing before entry (e.g. applicants for work visas), an AIDS test is now required as part of the medical.
Ok Tedi Mining requires a pre-employment medical for prospective employees. There is no obligation on existing employees to inform the company of their HIV/AIDS status, nor are they required to undergo testing.[16]
1.4 Compulsory Treatment
Under the Code of Ethics, no-one is compelled to submit him/herself for treatment unless the law requires it. It is the patient's consent which makes it lawful for the doctor to examine or treat.
Section 56 of the Public Health Act requires a person becoming aware that he is suffering a venereal disease to consult and place himself under the treatment of a medical practitioner, clinic or hospital within 3 days for the purposes of treatment, and must continue to present for treatment at prescribed intervals until certified cured.
1.5 Quarantine
Part IV of the Public Health Act provides various anti-infection measures, including quarantine, for declared infectious diseases, although these have rarely been imposed in practice. In the light of the Constitutional Rights to Liberty of the Person in Section 42, and The Right of citizens to Freedom of Movement within the country in Section 52, the imposition of any legislative restrictions, such as quarantine, on HIV/AIDS sufferers would prove difficult. Even if such measures were to be attempted on the grounds of public health, they may possibly be held unconstitutional.
1.6 Drug Trials.
In the field of clinical research, the Medical Society recommends that the principles laid out by the World Medical Association be followed. These include conformity to the moral and scientific principles that justify medical research; careful assessment of inherent risk; the subject's freely given consent should be obtained after full explanation of the nature, purpose and risks of the research has been given, and consent may be withdrawn at any time; personal integrity of the subject should be safeguarded.
The Dangerous Drugs Act (Chapter 228), the Drugs Act (Chapter 229) and the Poisons and Dangerous Substances Act(Chapter 231) govern the import, compounding and sale of drugs, poisons etc. The Acts are administered by the Minister for Health and the Finance Minister insofar as they relate to the import of drugs. Additionally, items may be declared prohibited imports under the Customs Act (Chapter 101) and Regulations. Drug and vaccine trials could be controlled and monitored by the provisions of these Acts.
2. Confidentiality and Discrimination
2.1 Confidentiality
Under the Code of Ethics, a doctor owes his patient absolute secrecy on all matters confided to him. There are some exceptions to the preservation of the bond of secrecy: where the patient gives consent; in the interest of all concerned; where required by law; where there is a question of danger to society. On the other hand, in serious illness where the likelihood of recovery is slight or absent, the doctor may, acting in the patient's best interests, inform a near and responsible relative of the true state of affairs and discuss how far to go in informing the patient. However, the Code does not have the force of law, and any statutory or judicial requirements of disclosure will override the Code's adjuration to preserve secrecy.
Under the Public Health Act, it is both an offence and professional misconduct for a medical practitioner to divulge personal particulars of a person suffering from a venereal disease otherwise than in accordance with the Act.[17] For other such medical matters, the imported legal system imposes the equitable duty of confidence on medical practitioners and so on, with the possibility of a tortious or contractual action for breach. The Constitutional Right to Privacy would extend to communications between a patient and a health care worker. The only proven exception so far to this is a situation where the patient chooses to take the matter to law, in which case medical information should be subpoenaed and come within the custody of the court in the first instance.[18]
Ok Tedi Mining, which provides an industrial and a clinical medical facility in an isolated environment, specifically insists on a policy of confidentiality regarding medical records for all its employees.
2.2 Duty to Disclose/Rights to Medical Information
Under Section 19 of the Evidence Act, medical communications made by a patient to a medical practitioner or his delegate are privileged, except in criminal proceedings (and see 9.3).
Section 51 of the Constitution, Right to Freedom of Information, guarantees to citizens the right of reasonable access to official documents, subject only to the need for secrecy in respect of, inter alia, the maintenance of personal privacy and security of the person. This is a Qualified Right and may be restricted by a law made in the interests of public health, public welfare etc.
2.3 Partner Notification
No partner notification is currently required by law, although the presumption that a doctor has a responsibility to protect others from infection by tracing contacts probably operates. Positive test results are notified to the medical care provider or AIDS counsellor who ordered the test. Both are encouraged to involve the other in counselling, follow-up and partner notification.
A medical practitioner diagnosing a case of venereal disease as defined under the Public Health Act must warn the sufferer of the dangers of infecting others, and against contracting a marriage until cured.[19] Where the practitioner has reason to believe that a person so suffering intends to contract a marriage, he may, after intimating his intention to his patient, warn the intended spouse or his/her parents or guardian, and the Commissioner.[20] Anomalously, there is no mention of the practitioner's right or duty to warn those who are already spouses.
2.4 Duty to Treat
The Medical Code of Ethics imposes a duty on a doctor to give his best care and attention to his patient, regardless of race, religion, tribe, social position, political party or ability to pay, and a doctor must give necessary treatment in an emergency.[21] However, medical services are limited in the more remote areas of the country and medical care is not always available.
2.5 Discrimination
The Constitution in Section 55, Equality of Citizens, guarantees to all citizens "the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex". Laws may however may take affirmative action for females, children, youth and the under-privileged or less advanced.
For employment generally see 7.2.
The Defence Force policy is to refuse admission to the Force of applicants who test positive. Servicemen testing positive who show no evidence of progressive clinical illness are not discharged, but are limited to base duties only within the country, as far as possible in non-combat roles. Those who demonstrate progressive clinical illness are downgraded accordingly and may be discharged for physical disability.
Ok Tedi Mining will employ HIV positive persons with no symptoms, and only discontinues employment when AIDS develops, on the grounds of unfitness to work, as is the case with other diseases such as kidney failure, terminal cancer, unstable diabetes etc. Confidentiality is maintained and a policy of non-discrimination is pursued.
There is no right to education guaranteed by the Constitution, and in fact education is by no means universally available. The Education Department is currently working on policies regarding HIV infection in the school environment.
2.6 Civil Liability
This issue assumes special importance in the Papua New Guinea context. Cultural systems in general throughout the country prescribe the making of compensation, traditionally in kind and more latterly in the form of cash payments, for perceived injury or damage, traditional land usage, etc. Liability is assessed on a no-fault basis, and causal factors are determined far more widely than the common law system believes. Retribution, often in the form of violence, is exacted for non-payment of compensation to which a right is assumed.[22] Compensation demands are a part of daily life in Papua New Guinea, and HIV/AIDS has already become a head of damage. In a contact-tracing incident, a newly-wed husband is demanding compensation for infection from his wife's former partner, although the elements of proof required by the imported legal system are lacking.[23] Contact tracing by authorities has been largely abandoned because of this incident.
Compensation has also caused problems in relation to information dissemination. An AIDS sufferer involved himself in an extensive educational campaign, including the making of a video, before he died. The video cannot now be released for show as it is feared his relatives will demand compensation for his death.[24] It is a common belief throughout the country, and particularly in his area, that no deaths are caused by accident. There is always a causative party, who is obliged to pay compensation for a death.
3. Women's Issues
3.1 Vulnerability to HIV
Despite Constitutional guarantees of equality, the status of women in Papua New Guinea, as in many other developing countries, is depressed in many of the ways which increase vulnerability (e.g. fewer educational opportunities, higher illiteracy, less access to the cash economy).
Specifically, most women cannot require fidelity from their male partners. Customary polygamy is legal and still widely practised. Even where monogamy is the overt ideal, promiscuity is unsanctioned but widespread, and double standards between sexes are common. Women cannot usually compel condom use. Condoms are not always available, or affordable, in rural areas. Some churches oppose their use, or even promotion for safe sex. Finally, in the modern Papua New Guinea context, women's vulnerability is increased by the alarmingly high incidence of pack rape.
3.2 Status within Families and Societies
National Goal No. 1 (Integral Human Development) of the Constitution recognize the family as the basic social unit, and equality is guaranteed for all citizens by Section 55. Traditional societies are based on extended family or clan lines. Within the traditional social units, however defined in each culture group, women's status and roles are clearly defined, as different and separate from men's, but not necessarily inferior. Modern reality, however, differs markedly, with society tending towards the nuclear family and concomitant weakening of women's family status.
3.3 Economic Rights
Within traditional society, women played an important role in the subsistence economy as the principal food producers.
The Constitution in National Goal No. 2 calls for equal participation by women citizens in political, economic and developmental activities, but again, reality is different. Urbanization, the tendency to formation of nuclear family units and economic development strategies which are largely targeted towards men, have depressed women's economic status.
3.4 Role as Carers
Women are generally recognized as primary care-givers in society, both traditional and modern. In the Papua New Guinea cultural context, however, the obligation of care does not fall on the wife/mother alone, but also on other women as determined by each society's recognized kinship ties.
3.5 Strategies for Empowerment
In November 1992, the Department of Home Affairs and Youth launched a National Women's Policy, with Guiding Principles of Equality and Participation, Dignity and Respect for Women, appreciation of Melanesian Values while at the same time eliminating discriminatory practices, and promotion of Productive Action for women.[25] However, apart from a brief mention in one of the Goals, the Policy unfortunately does not address any issues of women and health.
4. Information Law
4.1 Rights to Information
The Constitution in Section 46 guarantees Freedom of Expression. It is defined to include freedom to hold and communicate opinions and information and specifically guarantees freedom of the press and mass media. Papua New Guinea does in fact have a strong free press. Set against this is a thriving legal trade in defamation suits.
The Right to Freedom of Information in Section 51 applies to the right of citizens to have reasonable access to official documents. It is qualified by inter alia the need for maintenance of personal privacy and security of the person.
The Right to practice, manifest and propagate Conscience, Thought and Religion (including traditional religious beliefs and customs) may be exercised provided it does not to interfere with the freedom of others to do likewise, and there no unsolicited intervention into another's religious affairs, or religious harassment (Section 45).
The dissemination of HIV/AIDS information is a priority of the NAC and the Health Department, and the area in which most action has been taken so far.
4.2 Obstacles to Information.
The major legal obstacle to information comes currently from the Censorship Board,[26] which has placed bans on information regarding condom use. Appeals to the Board have not yet been successful. This obstacle may be surmounted, however, by legal challenge on constitutional grounds or by HIV/AIDS-specific legislative action.
By Section 228 of the Criminal Code, it is an offence to publish etc. an item which is obscene or might otherwise tend to corrupt morals, unless it can be proved as a question of fact that it was for the public benefit.
A major non-legal obstacle is presented by the churches, most of whom have so far refused to associate themselves with the dissemination of epidemic-related information other than by the preaching of chastity and fidelity. Some of the minor religious movements are actively spreading totally inaccurate and inflammatory messages, and there is currently no legal mechanism by which this tendency can be arrested.
4.3 Sex Education
There is no law pertaining specifically to sex education. The Constitution provides that no person shall be compelled to receive religious instruction, but this does not apply to religious instruction of children with parental consent.