As with all of the human rights protected in the Charter, the rights protected in s. 10 may be subject to reasonable limitations that can be demonstrably justified in a democratic society in accordance with s. 7 of the Charter. You should refer to Part 2 of these guidelines for further information on s. 7. However, it may be more difficult than usual to justify reasonable limitations on those rights within s. 10 that are regarded as absolute in international human rights law. An absolute right is one that in international human rights law must be respected at all times and cannot be limited.

The following rights in s. 10 are regarded as absolute rights in international law:

  • the prohibition on torture;
  • the prohibition on ‘cruel, inhuman or degrading’ treatment and punishment; and
  • the prohibition on medical and scientific experimentation without consent.

The prohibition on medical treatment without consent is not regarded as an absolute right in international human rights law.

Victorian law currently provides for medical treatment to occur without consent in a number of situations. For example:

  • consent provided by a substitute decision-maker such as a medical practitioner, where there is an emergency or where a person is incapable of giving consent (for example, administering a blood transfusion to a child without the consent of a parent under s.24 of the Human Tissue Act 1982 (Vic.));
  • procedures permitted without consent in accordance with Divisions 4 and 6 of Part 4A of the Guardianship and Administration Act 1986 (Vic.);
  • involuntary treatment of people with a mental illness under the Mental Health Act 1986 (Vic.).

Legal and policy officers reviewing this legislation (and any future policy proposals that provide for medical treatment without consent) should ensure that the legislation meets the standard for acceptable limitations in s. 7.