Protection from torture and cruel, inhumane or degrading treatment

Section 10 of the Victorian Charter of Human Rights is about protecting people from torture and cruel, inhuman or degrading treatment. Section 10 applies to everyone in Victoria, including people in prison.

It says a person must not be:

1. Subjected to torture; or
2. Treated or punished in a cruel, inhuman or degrading way; or
3. Subjected to medical or scientific experimentation or treatment without their full, free and informed consent.

What is torture?

The Charter does not have a clear definition of what torture is.

A definition of torture can be found in the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment1984 (known as ‘the CAT’).

Article 1(1) of the CAT defines torture as any act that:

1. Causes severe pain or suffering (physical or mental); and
2. Is inflicted on purpose, in order to:
   1. Discriminate;
   2. Get information;
   3. Punish;
   4. Intimidate; or
   5. Coerce;

and

3. Is done by, on behalf of, or with the consent of a public official or person working in an official capacity (a person working for or on behalf of the government).

Important: The CAT says that torture does not include pain or suffering that is an “inevitable part of a lawful punishment”. Lawful punishment includes being in prison. For example, torture would not include the severe emotional pain of not being allowed to leave a prison.

What is cruel, inhuman or degrading treatment?

Neither the Victorian Charter nor the CAT have a clear definition of what is cruel, inhuman or degrading treatment.

The Victorian Supreme Court case of Certain Children (by their litigation guardian Sister Marie Brigid Arthur) v Minister for Families and Children & Ors (No 2) (2017) 52 VR 441 looked at what could be considered cruel, inhuman or degrading treatment. This was a case about whether part of an adult prison could be used to imprison young people.

At paragraph 239, the Court said treatment could be degrading if it “humiliates or debases a person, causes fear, anguish or a sense of inferiority, or is capable of possibly breaking moral or physical resistance or driving a person to act against their will or conscience.”

The Court said for treatment to be considered inhuman it “must reach a minimum level of severity manifesting in bodily injury or intense physical or mental suffering”.

The Court said whether something amounts to cruel, inhuman or degrading treatment will depend on the circumstances of each case, including how long the treatment went for, the physical and mental effects on the person, and their gender, age and health.

Rule 43 of the Mandela Rules (international guidelines on the treatment of people in prison around the world) says “in no circumstances may restrictions or disciplinary sanctions amount to torture or other cruel, inhuman or degrading treatment or punishment”. The rule says the following practices should be prohibited:

• Indefinite solitary confinement (“solitary confinement” is keeping someone in their cell for 22 hours or more a day without meaningful human contact)
• Prolonged solitary confinement (more than 15 days)
• Putting a person in a dark or constantly lit cell
• Corporal punishment (like hitting or whipping) or taking away food or water
• Collective punishment (punishing multiple people for one person’s actions)
• Using restraints as punishment for a prison offence
• Refusing contact with family for any reason other than temporary maintenance of security and order

Important: Section 32(2) of the Victorian Charter of Human Rights says that international law (including the Mandela Rules) can be taken into account when interpreting Victorian laws like the Corrections Act 1986 (Vic).

Pain or suffering that is an inevitable part of a lawful punishment

There is an international legal case called Frérot v France (2007) that says cruel, inhuman or degrading treatment does not include pain or suffering that is an inevitable part of a lawful punishment (which includes being in prison). For example, it would not include the severe emotional pain of not being able to see your partner every day while you are in prison.

Use the link on the left of this page to see examples of cruel, inhumane or degrading treatment in prisons.