Prohibition on torture and cruel, inhuman or degrading treatment or punishment

Public sector guidance sheet

Disclaimer
This material is provided to persons who have a role in Commonwealth legislation, policy and programs as general guidance only and is not to be relied upon as legal advice. Commonwealth agencies subject to the Legal Services Directions 2005 requiring legal advice in relation to matters raised in this Guidance Sheet must seek that advice in accordance with the Directions.

What is the prohibition on torture and cruel, inhuman or degrading treatment or punishment?

For an act to be prohibited as torture, it must involve severe pain and suffering, it must be intentionally inflicted, and it must be inflicted for a purpose referred to in the definition in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). While the requirement that the perpetrator be a public official or a person acting in an official capacity is contained in CAT, it is not contained in the ICCPR.

Conduct not meeting the threshold of torture may be regarded as cruel, inhuman or degrading treatment or punishment ('ill treatment').

As a party to CAT, Australia is obliged to take effective legislative, administrative, judicial and other measures to prevent acts of torture in any territory under its jurisdiction.

Australia is also obliged to prevent conduct not meeting the threshold for torture but that may be regarded as other acts of cruel, inhuman or degrading treatment or punishment in any territory under its jurisdiction.

Accordingly, no legislation, policy or program should permit the infliction of torture or cruel, inhuman or degrading treatment or punishment.

Torture is criminalised in Australian law and acts of cruel, inhuman or degrading treatment are covered by a range of offences in existing Commonwealth, state and territory legislation. The victims of torture must have the right to complain to competent authorities and to obtain redress. Evidence obtained as a result of torture must not be admissible in criminal proceedings.

A person must not be removed from Australia to another country if there is a real risk that the person may suffer torture or cruel, inhuman or degrading treatment or punishment in that other country.

Where does the prohibition on torture and cruel, inhuman or degrading treatment or punishment come from?

Australia is a party to seven core international human rights treaties. The prohibition on torture and cruel, inhuman or degrading treatment or punishment is contained in article 7 of the International Covenant on Civil and Political Rights (ICCPR) and articles 1, 2, 3, 13, 14, 15 and 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

See also articles 37 and 39 of the Convention on the Rights of the Child (CRC) and article 15 of the Convention on the Rights of Persons with Disabilities (CRPD).

When do I need to consider the prohibition on torture or cruel inhuman or degrading treatment or punishment?

You will need to consider the prohibition if you are working on legislation, a policy or a program that:

  • creates new powers or modifies existing powers for public officials such as police, intelligence or security agency officials, military personnel or immigration or customs officials
  • affects the operation of detention facilities and the conditions under which persons are detained, whether in prisons or police lockups, places of military detention, or immigration detention centres
  • affects the operation of institutional care facilities used for purposes as medical, disability or aged care, and the conditions under which persons are housed for institutional care
  • affects the conditions under which persons may be investigated for criminal offences, including powers of search and seizure
  • introduces new types of penalties or significantly increases existing penalties for offences, including mandatory penalties
  • affects the right to complain about mistreatment by public officials, or
  • affects existing restrictions on the admissibility of evidence in criminal proceedings that may have been obtained as a result of torture or other cruel, inhuman or degrading treatment.

This list should not be regarded as exhaustive.

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What is the scope of the prohibition on torture or cruel inhuman or degrading treatment or punishment?

For an act to be prohibited as torture, it must involve severe pain and suffering, it must be intentionally inflicted, it must be inflicted for a purpose referred to in the definition in CAT and it must be inflicted by or at the instigation of or with the consent or acquiescence of a public official or person acting in an official capacity. While the requirement that the perpetrator be a public official or a person acting in an official capacity is contained in CAT, it is not contained in the ICCPR.

The 'purpose' requirement is interpreted broadly, and in almost all circumstances the infliction of severe pain or suffering by a public official or other person acting in an official capacity would always be prohibited.

Conduct not meeting the threshold of torture may be regarded as cruel, inhuman or degrading treatment or punishment ('ill treatment') and, if so would be prohibited under article 16 of CAT as well as article 7 of the ICCPR. The ill treatment may be either physical or mental.

While ill treatment is not defined in the ICCPR or CAT, the UN treaty bodies responsible for overseeing the implementation of these treaties have provided guidance on the sort of treatment that is prohibited. Examples of cruel, inhuman or degrading treatment include acts carried out by police officers using excessive force, such as using restraints where they are not required, using a weapon to punish an offender for not cooperating or unduly prolonged detention that causes mental harm. Punishment may be regarded as degrading if, for instance, it entails a degree of humiliation beyond the level usually involved in punishment.

Government use of privately run detention facilities does not absolve it of the responsibility to ensure that acts of torture or other ill treatment do not occur in the facilities.

The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment establishes the UN Subcommittee on Prevention of Torture. It provides for visits by the Subcommittee to places of detention to ensure that relevant human rights standards are being observed. It also envisages visits by domestic authorities for this purpose. Australia signed the Optional Protocol on 19 May 2009 and is in the process of working towards ratification.

Can the prohibition on torture or cruel, inhuman or degrading treatment or punishment be limited?

Limitation

The prohibition on torture is an absolute right. This means it cannot be limited or qualified under any circumstance. For further information see the additional information sheet on Absolute Rights.

The CAT explicitly provides that no exceptional circumstances whatsoever, including wars or other public emergencies, can justify torture. It also provides that an order from a superior officer or a public authority may not be invoked as a justification of torture.

Derogation

Under article 4 of the ICCPR, countries may take measures derogating from certain of their obligations under the Covenant 'in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed'. However, the prohibition on torture and cruel, inhuman or degrading treatment is specifically excluded from the obligations from which derogation is permitted.

Armed conflict

During a time of armed conflict, international human rights law, including the prohibition on torture and cruel, inhuman or degrading treatment or punishment, remains generally applicable. The obligation not to remove a person to a country where there are substantial grounds for believing that they would be in danger of being subjected to torture or to cruel, inhuman or degrading treatment or punishment also remains generally applicable. However, during armed conflict, international humanitarian law, as the body of law that applies specially to the circumstances of armed conflict, is the relevant standard under which compliance with these international human rights standards is assessed.

Which domestic laws relate to the prohibition on torture or cruel, inhuman or degrading treatment or punishment?

Division 274 of the Criminal Code Act 1995 criminalises acts of torture, in similar terms to the definition in CAT. The offence applies to the conduct of any person, regardless of nationality, and to acts committed anywhere in the world. A prosecution for acts committed wholly outside Australia cannot take place without the consent of the Commonwealth Attorney-General. The offence applies where the perpetrator is a public official, acts in an official capacity or acts at the instigation, or with the consent or acquiescence, of a public official or a person acting in an official capacity.

Division 274 of the Criminal Code does not exclude or limit the concurrent operation of any other Commonwealth, state or territory law. There are numerous laws in all Australian jurisdictions that criminalise conduct that could constitute torture within the meaning of CAT. Examples include assault and other offences against the person.

Other Commonwealth legislation also prohibits conduct that might be characterised as torture or cruel, inhuman or degrading treatment. Division 268 of the Criminal Code criminalises acts of torture and severe infliction of pain or suffering when perpetrated as a crime against humanity or a war crime (see sections 268.13, 268.25 and 268.73). Section 23Q of the Crimes Act 1914 provides that a person who is under arrest must be treated with humanity and with respect for human dignity, and must not be subjected to cruel, inhuman or degrading treatment. Section 105.33 of the Criminal Code makes similar provision in relation to persons being taken into custody or being detained under a preventative detention order, as does section 34T of the Australian Security Intelligence Organisation Act 1979 in relation to questioning or questioning and detention warrants related to terrorism offences under the Act.

What other rights and freedoms relate to the prohibition on torture or cruel, inhuman or degrading treatment or punishment?

The prohibition on torture and other ill treatment may also be relevant to:

  • life in article 6 of the ICCPR
  • privacy in article 17 of the ICCPR
  • liberty and security in article 9 of the ICCPR
  • humane treatment in detention in article 10 of the ICCPR
  • fair treatment in criminal proceedings in article 14 of the ICCPR.

All these rights should be considered in conjunction with the prohibition on torture and other ill treatment.

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Articles from relevant Conventions

International Covenant on Civil and Political Rights

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Article 1

For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Article 2

Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

See also: CRC articles 37, 39; CRPD article 15

What is the obligation not to remove a person to a country where there are substantial grounds for believing that they would be in danger of being subjected to torture or to cruel, inhuman or degrading treatment or punishment?

In addition to the obligation in article 3 of the CAT, the UN Human Rights Committee has stated that there is an obligation under the ICCPR not to extradite, deport, expel or otherwise remove a person where there are substantial grounds for believing that there is a real risk of the person being subjected to torture or cruel, inhuman or degrading treatment or punishment, in violation of article 7 of the ICCPR.

These obligations are often relevant in the migration context, in the removal or deportation of persons from Australia. A range of guidelines and procedures exist to ensure these obligations are considered in this context.

Section 22(3)(b) of the Extradition Act 1988 provides that the subject of an extradition request may only be surrendered if the Attorney-General is satisfied that the person will not be subjected to torture on surrender to the requesting country.

Articles from relevant Conventions

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Article 3

No State Party shall expel, return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

What is the right to complain about acts of torture and obtain compensation?

At the Commonwealth level, complaints about the activities of public officials, including those acting on behalf of security and intelligence agencies may be made to the Inspector-General of Intelligence and Security, and the Commonwealth Ombudsman. Complaints about the Australian Federal Police may be made under the Complaints (Australian Federal Police) Amendment Act 1994. Complaints about immigration detention conditions may be made to the provider of immigration detention services, the Department of Immigration and Citizenship, the Commonwealth Ombudsman and the Australian Human Rights Commission. Complaints about military personnel may be made through internal military channels, the Commonwealth Ombudsman and the Australian Human Rights Commission.

At the state and territory level, mechanisms exist to receive complaints about the activities of police and prison officers, public medical officers, residential carers and public school teachers.

Statutory victims of crime compensation schemes operate in all states and territories.

Articles from relevant Conventions

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Article 13

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

Article 14

Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible.

What is the prohibition on admissibility in criminal proceedings of evidence obtained as a result of torture?

At the federal level, section 84 of the Evidence Act 1995 provides that evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person, or a threat of conduct of that kind. There are equivalent provisions in some state and territory Acts and there is also a common law bar on the admissibility of evidence obtained under duress.

Articles from relevant Conventions

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Where can I read more about the prohibition on torture or cruel, inhuman or degrading treatment or punishment?

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