Crimes (Torture) Act 1988
Act No. 148 of 1988 as amended
[Note: This Act was repealed by Act No. 37 of 2010 on 14 April 2010]
This compilation was prepared on 5 August 2009
taking into account amendments up to Act No. 70 of 2009
The text of any of those amendments not in force
on that date is appended in the Notes section
The operation of amendments that have been incorporated may be
affected by application provisions that are set out in the Notes section
Prepared by the Office of Legislative Drafting and Publishing,
Attorney‑General’s Department, Canberra
Contents
1 Short title [see Note 1]
2 Commencement [see Note 1]
3 Interpretation
4 Application
5 Effect of this Act on other laws
5A Application of the Criminal Code
6 Offence of torture
7 Only Australian citizens or persons present in Australia may be prosecuted
8 Prosecutions
9 Jurisdiction of courts and choice of law
10 Alternative verdicts
11 No defence of exceptional circumstances or superior orders
12 Section 38 of Judiciary Act
13 Assistance under article 6 of Convention
Schedule—Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
Notes
An Act to give effect to certain provisions of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and for related purposes
1 Short title [see Note 1]
This Act may be cited as the Crimes (Torture) Act 1988.
2 Commencement [see Note 1]
This Act commences on a day to be fixed by Proclamation.
3 Interpretation
(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 Australian Human Rights Commission Act 1986).
Australia includes the external Territories.
Convention means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly of the United Nations on 10 December 1984, a copy of the English text of which is set out in the Schedule.
(2) Except so far as the contrary intention appears, an expression that is used both in this Act and in the Convention (whether or not a particular meaning is given to it by the Convention) has, in this Act, the same meaning…
Overview
The Crimes (Torture) Act 1988 was enacted to give effect to certain provisions of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and to address the gap in Australian criminal law regarding the prohibition of torture. The Act was enacted by the Parliament of Australia. The primary policy objective of the Act was to align Australian domestic law with international obligations under the Convention Against Torture, ensuring that acts of torture committed by Australian citizens or within Australia, or acts committed outside Australia by Australian officials, are prosecuted and punished under Australian law. The Act established criminal offences for acts of torture, outlined jurisdictional matters, and provided for the prosecution of such offences subject to the consent of the Attorney-General.
Scope and Application
The Crimes (Torture) Act 1988, now repealed, was enacted to give effect to certain provisions of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Act applied to all Australian citizens and individuals present in Australia, extending its extra-territorial reach to acts of torture committed by or at the instigation of a public official or a person acting in an official capacity, provided such acts would constitute an offence if committed within Australia. The Act stipulated that only Australian citizens or those present in Australia could be prosecuted for offences under its purview. Prosecutions required written consent from the Attorney-General, although arrests and charges could be made without such consent until proceedings were formally initiated. The Act also provided for alternative verdicts in cases where the jury found the accused guilty of a different offence. It explicitly stated that exceptional circumstances or superior orders were not recognised as defences for acts of torture. The Act’s jurisdiction and procedural aspects were aligned with state and territory jurisdictions, with specific provisions regarding the choice of law and the application of the Criminal Code. The Act did not exclude or limit the operation of other laws and aligned closely with international obligations under the Convention Against Torture.
Key Provisions
- The Crimes (Torture) Act 1988 sets out the legal framework for implementing the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment within Australia. Section 6 makes it an offence to commit torture, defined as intentionally inflicting severe pain or suffering on a person for certain purposes. Section 7 limits prosecution to Australian citizens or those present in Australia. Section 8 requires the Attorney-General's consent for proceedings. Section 9 deals with jurisdiction and choice of law for offences. Section 10 allows for alternative verdicts if the jury is not satisfied with the charged offence but finds the accused guilty of another offence under the Act.
- The Act imposes obligations on parties and entities it governs. Section 6(1) makes public officials and those acting at their instigation or consent liable for committing torture outside Australia if it would constitute an offence in Australia. Section 7 limits prosecution to Australian citizens or those present in Australia. Section 8 requires the Attorney-General's consent for proceedings. Section 9 deals with jurisdiction and choice of law for offences.
- Section 6 provides that committing torture is an offence punishable by the same penalty as if done in Australia. Section 11 makes it clear that exceptional circumstances or superior orders cannot be used as a defence. While not explicitly stated, breaches of the Act likely result in penalties under Australian criminal law, given the serious nature of the offences.
- In summary, the Act criminalises torture by Australian citizens or those in Australia, requires the Attorney-General's consent for prosecution, and imposes obligations on public officials and those acting at their instigation to prevent torture. Breaches likely incur penalties under Australian criminal law.
- Area of Law
- Human Rights Law
- Criminal Law
- Instrument
- Act
- Concepts
- Definitions & Interpretation
- Offence Provisions
- Enforcement Powers
- Extraterritorial Application
