Section 10(a) is based on article 7 of the ICCPR, and it corresponds to article 3 of the European Convention on Human Rights. The Explanatory Memorandum refers courts to art 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (the ‘Convention against Torture’) when examining whether conduct amounts to torture (Charter of Human Rights and Responsibilities Bill 2006 Explanatory Memorandum, 10).
The Convention against Torture defines ‘torture’ in the following terms:
[A]ny 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 (art 1).
For an act to be torture under this definition, the following elements are required. The act must:
inflict severe physical or mental pain or suffering;
be for a prohibited purpose; and
be inflicted by or with the consent or acquiescence of a public official or a person acting in an official capacity.
The vulnerability of the victim, particularly where they are in detention and therefore powerless against the treatment or punishment, is also a factor to be considered (see Report of the Special Rapporteur on the question of Torture to the Commission on Human Rights, UN Doc E/CN.4/2006/6 (23 December 2005) ).
Prohibited purposes include obtaining information or a confession, punishment, intimidation or coercion, or discrimination. These are examples, and other purposes may also be prohibited.
The conduct must be inflicted by or with the consent or acquiescence of a public official or a person acting in an official capacity. This is line with the application of the Charter to public authorities, as defined in s 4 of the Charter (see Bare v IBAC (2015) 48 VR 129;  VSCA 197  (Warren CJ)).
While Charter rights are to be interpreted broadly, the requirement of severity in the case of torture sets a high threshold. However, conduct not meeting this threshold may amount to ‘cruel, inhuman or degrading’ treatment or punishment.
The European Court of Human Rights has held that whether an act amounts to torture or to cruel, inhuman or degrading treatment or punishment is relative. It ‘depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age, and state of health of the victim’ (Ireland v United Kingdom (1978) 25 Eur Court HR (ser A) ; (1979–80) 2 EHRR 25 ).
Reasonable and justified limits under s 7(2)
Freedom from torture is an absolute right under international human rights law, which means it may not be limited under any circumstances. It is very unlikely that any limitation on the prohibition of torture would be sanctioned under the limitations provision in s 7(2).