Leslie Massey
Torture is illegal in Australia under the Commonwealth Criminal Code Act 1995 (Division 274). The Australian government is also a signatory to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT), which prohibits acts of torture and requires signatories to take measures to prevent them. 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. Torture is generally defined as the deliberate infliction of severe pain or suffering, whether physical or mental, and it is often interpreted as requiring the authorisation of a public official. Australia's compliance with CAT has been the subject of scrutiny, particularly in relation to the treatment of asylum seekers and the protection of refugees.
| Characteristics | Values |
|---|---|
| Torture | Deliberate infliction of severe pain or suffering |
| Includes physical pain and mental suffering | |
| Requires act or authorisation of a public official | |
| Cruel, inhuman or degrading treatment | Broader concept than torture |
| Includes treatment that is less severe or does not meet technical requirements of torture definition | |
| Includes abuse or humiliation | |
| Includes excessive force or unduly prolonged detention | |
| Prohibition on torture | Absolute right |
| Cannot be limited or qualified under any circumstance | |
| No exceptional circumstances, including wars or public emergencies, can justify torture | |
| An order from a superior officer or public authority cannot justify torture | |
| Evidence obtained as a result of torture is not admissible in criminal proceedings | |
| Australia is a party to seven core international human rights treaties | |
| Division 274 of the Criminal Code Act 1995 criminalises acts of torture | |
| Prohibition on torture is in Article 7 of the International Covenant on Civil and Political Rights (ICCPR) | |
| Australia is a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) | |
| Australia is considering enacting a specific offence of torture |
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What You'll Learn
- Torture is illegal in Australia under the Commonwealth Criminal Code Act 1995 (Division 274)
- Australia is a signatory to the Convention Against Torture (CAT)
- Victims of torture have the right to complain and seek redress
- Evidence obtained through torture is inadmissible in criminal proceedings
- Australia is working towards ratifying the Optional Protocol to the Convention Against Torture
Torture is illegal in Australia under the Commonwealth Criminal Code Act 1995 (Division 274)
The Australian government is considering enacting a specific offence of torture in Commonwealth law, as defined in Article 1 of CAT, with extraterritorial application. While legislation exists that criminalises torture, there are gaps in Australia's laws. For instance, the prohibition on torture in the Crimes (Torture) Act 1988 (Cth) is narrow, applying only to acts committed outside Australia by public officials or those acting in an official capacity.
The Australian Human Rights Commission Act 1986 and relevant criminal laws and procedures apply to the Commonwealth Government. The Human Rights and Equal Opportunity Commission (HREOC) is responsible for promoting and protecting human rights, but it does not have the legal power to monitor Australia's compliance with CAT directly. Instead, HREOC can investigate complaints arising under the International Covenant on Civil and Political Rights (ICCPR) or the Convention on the Rights of the Child (CRC), which include provisions prohibiting torture and cruel, inhuman, or degrading treatment.
Australia's obligations under international human rights law include not removing individuals to countries where they are at substantial risk of torture or cruel, inhuman, or degrading treatment. This obligation was affirmed in the case of Mr Sadiq Shek Elmi, a failed asylum seeker who lodged a complaint with the Committee against Torture, claiming that his deportation to Somalia would violate Article 3 of CAT due to the risk of persecution. The Committee determined that Australia had an obligation to refrain from forcibly returning Mr Elmi to Somalia or any other country where he might be expelled to Somalia.
In conclusion, torture is illegal in Australia under the Commonwealth Criminal Code Act 1995 (Division 274), and the country has obligations under international human rights law to prevent and prohibit acts of torture and cruel, inhuman, or degrading treatment.
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Australia is a signatory to the Convention Against Torture (CAT)
The prohibition on torture and cruel, inhuman, or degrading treatment is an absolute right in Australia and is criminalized in Australian law. The country'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. Australia's implementation of the CAT is monitored by the United Nations Committee Against Torture (the Committee), which receives information from Australia's national human rights institution, HREOC.
The Optional Protocol to the CAT, which Australia signed in 2009, establishes the UN Subcommittee on Prevention of Torture. It provides for visits by the Subcommittee and domestic authorities to places of detention to ensure compliance with human rights standards. The Protocol assists in implementing the CAT and helps states meet their obligations.
Australia's compliance with the CAT is demonstrated through its legislative, judicial, and administrative measures. For instance, Division 274 of the Criminal Code Act 1995 criminalizes acts of torture, and the country has specialized services to assist survivors of torture and human rights abuses. Additionally, Australia's Supreme Courts have ruled in favor of protecting individuals from cruel and degrading treatment, as seen in the cases of Davies v State of Victoria and R v Porritt.
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Victims of torture have the right to complain and seek redress
Torture is a crime in Australia under the Commonwealth Criminal Code Act 1995 (Division 274). The country is also a signatory to seven core international human rights treaties, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 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.
The prohibition on torture is an absolute right in Australia, meaning it cannot be limited or qualified under any circumstance. This includes during wars or other public emergencies, and orders from superior officers or public authorities cannot be invoked as justification for torture.
Victims of torture have the right to complain to competent authorities and seek redress. This is outlined in Article 7 of the International Covenant on Civil and Political Rights (ICCPR), which states that victims have the right to have their cases examined promptly and impartially by competent authorities. The complainant and witnesses are protected against any ill-treatment or intimidation as a result of their complaint. Additionally, victims have the right to obtain fair and adequate compensation, including the means for full rehabilitation.
At the Commonwealth level, complaints about the activities of public officials, including those acting on behalf of security and intelligence agencies, can be made to the Inspector-General of Intelligence and Security and the Commonwealth Ombudsman. Complaints about the Australian Federal Police are addressed under the Complaints (Australian Federal Police) Amendment Act 1994. Immigration detention conditions can be reported to the Department of Immigration and Citizenship, the Commonwealth Ombudsman, and the Australian Human Rights Commission.
In practice, Australia's compliance with CAT has been questioned, particularly regarding the treatment of asylum seekers and refugees. There have been concerns about insufficient monitoring of the fate of asylum seekers who are refused refugee status and returned to their country of origin, potentially putting them in danger of torture or cruel, inhuman, or degrading treatment. Additionally, there are limitations to accessing recovery and support programs for victims of trafficking, with eligibility criteria often linked to their willingness to assist in investigations or the value of their evidence.
Australia's national human rights institution, the Australian Human Rights Commission (HREOC), provides information to the United Nations Committee Against Torture and works with other sources, such as NGOs, to address issues related to the implementation of CAT in Australia.
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Evidence obtained through torture is inadmissible in criminal proceedings
Torture is illegal in Australia under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). As a party to seven core international human rights treaties, Australia is obliged to take effective legislative, administrative, and judicial measures to prevent acts of torture in any territory under its jurisdiction.
The Australian Human Rights Commission (HREOC) has expressed concerns about the insufficient monitoring of asylum seekers who are refused refugee status and returned to their country of origin, as well as the lack of mandatory refusal of extradition requests when there are substantial grounds for believing that granting the request may result in a breach of a person's rights under CAT.
The prohibition on the use of evidence obtained through torture extends to acts of cruel, inhuman, or degrading treatment. This includes treatment that may not meet the technical definition of torture but still involves abuse or humiliation. 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 right to protection from torture is upheld in Australian law, with Division 274 of the Criminal Code Act 1995 criminalizing acts of torture and applying to the conduct of any person, regardless of nationality or location. The prohibition on torture is an absolute right and cannot be justified under any circumstances, including war or public emergencies.
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Australia is working towards ratifying the Optional Protocol to the Convention Against Torture
Torture is illegal in Australia. The Australian Human Rights Commission Act 1986, international human rights law, and relevant criminal laws and procedures apply to the Commonwealth Government. Australia is a party to seven core international human rights treaties, including the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
The CAT prohibits the infliction of torture and mistreatment in countries that are parties to the treaty. It explicitly provides that no exceptional circumstances, including wars or other public emergencies, can justify torture. The prohibition on torture is an absolute right, meaning it cannot be limited or qualified under any circumstance.
To further strengthen the prohibition of torture, Australia signed the Optional Protocol to the Convention Against Torture (OPCAT) on May 19, 2009, and ratified it in 2017. The OPCAT is an international agreement that aims to prevent torture and cruel, inhuman, or degrading treatment or punishment. It establishes the UN Subcommittee on Prevention of Torture (SPT), which is mandated to conduct visits to places of detention to ensure that relevant human rights standards are being observed.
Australia is working towards ratifying the OPCAT by introducing a system that allows all places of detention to be inspected and monitored by independent international and domestic bodies. The SPT announced its intention to visit Australia in October 2022 to assess the country's compliance with the OPCAT and examine the treatment and protections for people deprived of their liberty. However, upon their arrival, the SPT reported being denied entry into certain facilities in New South Wales and Queensland. This incident led to concerns about Australia's commitment to fulfilling its obligations under the OPCAT.
To address these concerns, Australia has taken several steps. The Australian Human Rights Commission has made submissions to various bodies, including the Queensland Legal Affairs and Safety Committee, the Queensland Ombudsman and Inspector of Detention Services, and the United Nations Subcommittee on Prevention of Torture. These submissions focus on inspection standards for youth detention centers and prisons, as well as Australia's compliance with the OPCAT. Additionally, the Commission has engaged with the Northern Territory Department of the Attorney-General and Justice regarding the draft Monitoring of Places of Detention (Optional Protocol to the Convention Against Torture) Amendment Bill 2022. These efforts demonstrate Australia's ongoing work towards ratifying and implementing the OPCAT effectively.
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Frequently asked questions
Yes, torture is a crime anywhere in Australia under the Commonwealth Criminal Code Act 1995 (Division 274).
Torture generally refers to the deliberate infliction of very severe pain or suffering, both physical and mental. 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 specific purpose.
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. Victims of torture have the right to complain to competent authorities and obtain redress. Evidence obtained as a result of torture must not be admissible in criminal proceedings.
