Section 10 prohibits torture; cruel, inhuman or degrading treatment; and involuntary medical experimentation or treatment.


Torture and cruel, inhuman and degrading treatment:

You will need to consider s. 10 in assessing legislation, a policy or a program where it:
 

  • affects the physical or mental well-being of a person in a manner that may:
    • cause serious physical or mental pain or suffering, or
       
    • humiliate or debase a person (albeit non-intentionally);
       
  • creates new powers or increases existing powers of police, inspectors or authorised officers or other persons;
     
  • removes the right to complain of mistreatment by a public authority or limits access by those with a role of independent scrutiny (for example, the Ombudsman) to places of detention;
     
  • affects the operation of detention facilities and conditions under which individuals may be detained (including access to goods and services, such as medical treatment, while in detention);
     
  • creates new types of penalties for offences or dramatically increases the size and/or range of penalties for offences or introduces minimum mandatory sentences that may be argued to be disproportionate to the offences committed;
     
  • authorises changes to rules of evidence or procedure that would allow for evidence obtained as a result of torture, inhuman or degrading treatment, to be used in courts or tribunals;
     
  • introduces or permits corporal punishment by a public authority;
     
  • authorises a person to be searched or puts in place procedures for conducting searches;
     
  • regulates the treatment of persons located at any site for which a public authority is responsible, including, for example, a public hospital, an approved mental health service, a prison, a government school, a disability or aged care service, and supported residential service;
     
  • allows for prolonged periods of solitary confinement or other particularly harsh prison regimes;
     
  • involves crisis or crisis-incident intervention strategies or behavioural management plans that include the use of seclusion, chemical restraint and/or physical restraint.


Consent to medical experimentation or treatment


You will need to consider s. 10 in assessing legislation, a policy or a program where it:
 

  • defines and regulates procedures for obtaining consent to medical treatment and experiments (especially procedures relating to a requirement of full disclosure of information about the treatment or experiment, and procedures for obtaining consent from or on behalf of children and other vulnerable people);
     
  • regulates medical treatment of persons without their consent;
     
  • regulates the conduct of medical or scientific research;
     
  • allows for the approval of forms of medical experimentation or treatment that will involve the trialling of new medical or scientific techniques.


 

These policy triggers are not comprehensive.