What the Act says
The rights protected in section 17(a) and (b) prohibit torture and cruel, inhuman or degrading treatment or punishment.
Torture is a crime in Australia under the Commonwealth Criminal Code Act 1995 and the Queensland Criminal Code.
Section 17(a) and (b) are based on Article 7 of the International Covenant on Civil and Political Rights, which Australia ratified in 1980.
The right protected in section 17(c) ensures that medical or scientific treatment cannot occur without full, free and informed consent. Section 17(c) is broader than the right protected by Article 7 of the International Covenant on Civil and Political Rights.
Scope of the rights
Most human rights can be limited under Queensland’s Human Rights Act, but only where it is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Torture and cruel, inhuman or degrading treatment and punishment are absolutely prohibited under international law, so no limitation of this right could ever be justified.
The right to be free from medical treatment without consent can be subject to reasonable and justifiable limits.
Torture
Torture refers to acts that intentionally inflict severe physical or mental pain or suffering for purposes such as obtaining a confession, punishment, intimidation or discrimination. Public entities also have positive obligations to prevent acts of torture.
Cruel, inhuman or degrading treatment or punishment
This concept is broader than torture and includes abuse or humiliation that may not meet the definition of torture. It can involve acts that cause severe:
- physical or mental suffering
- fear, anguish or a sense of inferiority
- humiliation, or debasement of a person.
Public entities also have positive obligations to take reasonable steps to prevent cruel, inhuman or degrading treatment where they are aware of a real risk of such treatment occurring.
Medical or scientific experimentation or treatment
Article 7 of the International Covenant on Civil and Political Rights absolutely prohibits medical or scientific experimentation without free consent, recognising it as a form of torture or cruel, inhuman or degrading treatment.
The right protected in section 17(c) of the Human Rights Act goes further by requiring that full, free and informed consent must also be given for medical or scientific treatment. In international law, medical treatment without consent may, in some circumstances, amount to cruel, inhuman or degrading treatment.
Case examples
Prolonged solitary confinement
A Queensland prisoner argued his prolonged solitary confinement violated section 17(b). The Supreme Court outlined factors to assess cruel, inhuman, or degrading treatment, including the severity, duration and intent of the conduct.
The applicant did not provide sufficient evidence to demonstrate a breach of section 17(b), but the court found that the right to humane treatment when deprived of liberty (section 30) was limited.
Owen-D'Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 (22 October 2021)
Full case note: Owen-D’Arcy v Chief Executive, Queensland Corrective Services (PDF File 239.4 KB).
Employers requiring staff to be vaccinated against Covid (Queensland)
Members of the Queensland Police Service challenged directions that required them to receive doses and boosters of the COVID-19 vaccine. Queensland Ambulance Service staff brought a similar challenge that was heard at the same time.
The court accepted that the applicants’ rights to not be subjected to medical treatment without the person’s full, free and informed consent (s 17(c)) had been limited by the directions. While consent is often accompanied by some form of pressure, the Court held that ‘where a person’s livelihood can be put at serious risk if consent is not given’ then that is sufficient to render consent not ‘full, free and informed’.
However, the limitation was demonstrably justified taking into account:
- the purpose of minimising the risks of transmission and employer responsibility for workplace health and safety
- the expert evidence that vaccinations had an effect in protecting against serious infection
- that alternatives to mandatory vaccination would not achieve the same purpose, and
- the knowledge about the virus, variants, virulence and transmissibility was limited and being added to on an almost daily basis.
Johnston v Carroll [2024] QSC 2 (7 February 2024)
Full case note: Johnston v Commissioner of Police (PDF File, 279.8 KB)
Cruel treatment to a person with disabilities (Victoria)
A person with disabilities living in a Community Residential Unit was dragged naked along a hallway, causing bruising and grazing. The Supreme Court of Victoria found this constituted ‘cruel’ and ‘degrading’ treatment.
Davies v State of Victoria [2012] VSC 343 (15 August 2012)
Compulsory medical treatment (Victoria)
A man argued that compulsory mental health treatment without timely review by his psychiatrist violated his rights. The Tribunal found that the involuntary treatment did not meet the threshold for cruel, inhuman, or degrading treatment. The Tribunal found that the treatment did limit his right not to be subjected to medical treatment without consent, but the limitation could be justified because it was only given on the grounds of medical necessity, and the system under which it was administered was subject to a range of safeguards.
Re Kracke v Mental Health Review Board [2009] VCAT 646 (23 April 2009)
This information is not intended to be a substitute for legal advice.