Last updated 1 December 2020
Section 17 of the Human Rights Act 2019 (Qld) (Human Rights Act) prohibits three types of conduct by public entities: torture, cruel, inhuman or degrading treatment, and medical or scientific experimentation or treatment without consent. In Victoria, treatment has been interpreted broadly as behaving or dealing with someone in a certain way, giving medical care or attention, or applying a process or substance to someone.
Subsection 17(a) protects people from torture. Torture requires intentional infliction of a high degree of suffering (e.g. severe mental or physical pain).
Subsection 17(b) protects people from cruel, inhuman or degrading treatment. Treatment that is cruel or inhuman must also involve severe pain or suffering, but does not necessarily have to be intentionally inflicted. Determining whether treatment has been degrading will be a subjective test that focuses less on suffering and more on humiliation.
Subsection 17(c) prohibits medical or scientific experimentation or treatment without free and informed consent. Consent must be voluntary and the person must be given sufficient information for an informed decision to be made.
The right to protection from torture and cruel, inhuman or degrading treatment will be subject to the general limitation provision in s 13 of the Human Rights Act. This provides human rights may be subject under law to reasonable limits, which are justified in a free and democratic society. See ‘Human Rights may be Limited’ for further explanation.
The right to protection from torture and cruel, inhuman or degrading treatment may be engaged in the following circumstances:
- making decisions about involuntary treatment orders and prescribing drugs with serious side effects under the Mental Health Act 2016 (Qld)
- making transfer decisions for children held in detention (e.g. where children are relocated to an adult correctional facility where conditions are harsher, access to facilities limited and correctional officers are not trained to work with children)
- determining hearing, detention and sentencing proceedings for children
- investigating complaints against police for the use of excessive force during an arrest
- the Department of Housing considering evicting a tenant from public housing. Section 17 is likely to be broad enough to encompass forced evictions.
These examples have been adapted from Australian cases. They are provided by way of example only, and are not a substitute for legal advice.