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Right to protection from torture and cruel, inhuman or degrading treatment

Section 10 of the Charter of Human Rights and Responsibilities (the Charter) protects Victorians from torture and any treatment or punishment that is cruel, inhuman or degrading. The Charter applies to public authorities in Victoria, such as state and local government departments and agencies, and people delivering services on behalf of government.

How does the law protect me?

Under the Charter, you cannot be subjected to torture, or treated or punished in a cruel, inhuman or degrading way. Such treatment might occur when public authorities such as the police use force, when people are held in custody or care by the government – for example, in prisons, mental health facilities, disability services or schools – or when public authorities authorise medical treatment.  

Torture and other conduct that is cruel, inhuman or degrading is often 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 – for example, Victoria’s Crimes Act 1958 (sections 16–33). 

Victoria’s Charter does not apply to the Australian Government. Instead, Australia must fulfil its obligations under international human rights law, the Australian Human Rights Commission Act 1986 and relevant criminal laws and procedures.

Can this right be limited in any way?

As well as being covered by the Charter, the right to protection from torture and cruel, inhuman or degrading treatment is also covered by international law. It is considered a non-derogable right – that means the government cannot limit or suspend this right under any circumstances. 

Examples

Cruel and degrading treatment – Davies v State of Victoria [2012] VSC 343 (15 August 2012)

In 2012, the Supreme Court of Victoria heard a case in which a person with a disability living in a Department of Human Services community residential unit had been dragged naked along a hallway by staff. The court found that this was cruel and degrading treatment and contrary to section 10(b) of the Charter. The case was part of a wrongful dismissal brought against the Department of Human Services by the staff member who had been terminated following this incident.

More information

Compulsory medical treatment – Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009)

In this case, Mr Kracke was subject to compulsory medical treatment prescribed by his psychiatrist. The Medical Health Review Board was required to review the psychiatrist’s authorisation within a certain time period, but failed to do so. Mr Kracke argued that, without this review, the orders became invalid and his treatment was a breach of section 10 of the Charter, which specifically prohibits medical treatment without consent. VCAT found that because Mr Kracke was in medical need, the compulsory medical treatment was a reasonable limitation on Mr Kracke’s rights.  

More information

How we can help

We can give you information about Victoria’s Charter of Human Rights and Responsibilities but the Victorian Equal Opportunity and Human Rights Commission does not handle complaints related to the Charter.

If you would like more information about the Charter and your rights contact us.

For information about the legal history of this right, case law or Australia’s human rights framework, you can read more in our Policy and Legal sections of this website.

How to make a human rights complaint

If you think your human rights have been breached, you should contact the Victorian Ombudsman.

If you want to make a complaint about police conduct, contact the Independent Broad-based Anti-corruption Commission.

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Address
Level 3, 204 Lygon Street Carlton Victoria 3053

General enquiries
enquiries@veohrc.vic.gov.au

Reception
1300 891 848

Enquiry line
1300 292 153 or (03) 9032 3583

Interpreters
1300 152 494

NRS Voice Relay
1300 555 727 then use 1300 292 153

Media enquiries
0447 526 642

The Victorian Equal Opportunity and Human Rights Commission acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and deep connection to the land.

We acknowledge that the Commission is on the land of the Kulin Nation and pay our respects to Elders past and present.