Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
Australia’s Crimes (Torture) Act (1988), as amended to 2001, states:
(1) In this Act, unless the contrary intention appears:
act of torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for such purposes as:
(i) obtaining from the person or from a third person information or a confession;
(ii) punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(iii) intimidating or coercing the person or a third person; or
(b) for any reason based on discrimination of any kind;
but does not include any such act arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the International Covenant on Civil and Political Rights (being the Covenant a copy of the English text of which is set out in Schedule 2 to the Human Rights and Equal Opportunity Commission Act 1986
The Crimes (Torture) Act (1988) was repealed by the Crimes Legislation Amendment (Torture Prohibition and Death Penalty Abolition) Act (2010), which in part amended the Criminal Code Act (1995).
In 2009, in the Snedden case – an action for defamation related to an article in a national newspaper alleging that the plaintiff had committed or condoned atrocities in Bosnia-Herzegovina in 1991 – the New South Wales Supreme Court held:
96. … Before passing to a consideration of the evidence … it is convenient to address what constitutes torture, both in general terms and as a war crime.
100. [The] definition [of torture that] appears in the Statute of the International Tribunal for the Former Yugoslavia … is based upon the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. That Convention was adopted by the Schedule to the Crimes (Torture) Act 1988 (Cth) wherein:-
the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
101. It is apparent that torture within the meaning of the Crimes (Torture) Act
goes beyond the infliction of severe pain or suffering by a person acting in an official capacity. It extends to the infliction of severe pain or suffering at the instigation of, or with the consent or acquiescence of such a person. It is appropriate, in my view, that this construction of the term “torture” is applied for the purposes of these proceedings, in preference to that relied upon by a foreign tribunal in an unrelated matter. It does not include an omission, but the relevant inclusive prohibited purposes are substantially the same.