Section 10(1) of the Human Rights Act 2004 says that:
Note: Under the Act, all rights may be subject to reasonable limits (section 28). The nature of the right is relevant when considering what is reasonable.
This factsheet is not intended to be a substitute for legal advice.
Torture generally refers to the deliberate infliction of very severe pain or suffering. This can include acts that cause both physical pain and mental suffering. It is also often interpreted to require the act or authorisation of a public official for purposes such as interrogation, threat, punishment or some other purpose.
Cruel, inhuman or degrading treatment or punishment, is a broader concept than torture. This generally refers to treatment that is less severe or does not meet the technical requirements of the torture definition, but that still involve abuse or humiliation. Examples of cruel, inhuman or degrading treatment include acts carried out by police using excessive force or unduly prolonged detention that causes mental harm. The assessment of whether something falls within this category will depend on the circumstances, including the duration and nature of the treatment and its impact on the victim.
The scope of degrading treatment can include forcing people to perform acts which humiliate them or gravely offend their sensibilities – especially in public – as form of punishment.
All government authorities and agents (including contractors) have a duty to refrain from inflicting torture or other cruel, inhuman or degrading treatment on individuals. Governments also have a duty to prohibit such acts in the law and to prevent them through effective legislative, administrative, judicial and other measures.
Conduct covered by this right will often be a criminal offence. Torture is a crime anywhere in Australia under the Commonwealth Criminal Code Act 1995 (Division 274). Most other acts of cruel, inhuman or degrading treatment would be covered by laws such as those dealing with assault or causing serious injury (see eg Crimes Act 1900 (ACT), sections 19-36).
Public authorities can play a role in promoting, respecting and protecting this right through their laws, policies and programs, and services. They can also support people in our community who have been victims of torture overseas. Cruel, inhuman or degrading treatment comes up more frequently in our domestic context and can be relevant in the situations noted below.
Note: The Human Rights Act does not apply to the Commonwealth Government. So for example, it does not apply to federal officials running immigration detention centres.
Australia’s obligations under international human rights law, the Australian Human Rights Commission Act 1986, and relevant criminal laws and procedures apply to the Commonwealth Government.
The actions of public authorities can both promote and limit rights. Section 10 could be engaged by activities that: