Report Cards

• Article 16: No child shall be subject to unlawful or arbitrary interference with their privacy.
• Article 40 (2)(vii): Right to privacy in penal proceedings.

Areas lacking progress

NATIONAL: Lack of comprehensive national legislation protecting a child’s right to privacy

There is no comprehensive national legislation protecting a child’s right to privacy in Australia. Currently, the Privacy Act 1988 (Cth) applies to “a natural person” [1] however there are no specific provisions that explicitly cater to the specific needs of children and young people. [2] The Government also has chosen not to incorporate the ALRC recommendation of a statutory tort of breach of privacy into the current privacy law reforms. [3]

NATIONAL: Lack of child-friendly complaints mechanisms

There are no child-specific complaints mechanisms available to children who have had their privacy breached, although amendments to the Privacy Act 1988 (Cth) have provided the Australian Information Commissioner (Privacy Commissioner) with new powers to investigate complaints. [4] Further, privacy complaints are limited to those made against government agencies and officers and large private organisations.

NATIONAL: Lack of prohibition on publication of criminal proceedings involving children

There is no prohibition on the publication of criminal proceedings involving children and young offenders in the Northern Territory. The Court however may make an order against publication. [5]

In addition, the Prohibited Behaviour Orders Act 2010 (WA) that applies to people over the age of 16 requires the publication of the details of those subject to a Prohibited Behaviour Order. [6] This includes the publication of their name, photograph, town of origin and details of the order, unless otherwise ordered by the court.

NATIONAL: More public education on cyber safety needed

In 2013, the Office of the Australian Information Commissioner (OAIC) conducted a study on the attitudes of Australian people towards privacy and their awareness of the Federal privacy laws. The study, which was initiated through surveying over the phone, found that Australians believe the largest privacy risks exist through online services. [7] This finding confirms an earlier study conducted by the OAIC in 2010 relating to cyber safety and children and young people, which recommended education as key to empowering individuals to protect their privacy online and identified cyber safety as a national problem. [8] As part of the 2010 National Safe Schools Framework, the Department of Education launched the Safe Schools Hub in March 2013, which provides a suite of digital resources to support schools. [9] Some of these resources include a professional training and learning modules for pre-service and current teachers, and central online information resources for parents and children. [10] In February 2013,the Victorian Government also launched their ‘It’s There for Life!’ campaign, targeting the education of young people and their decision to post online. [11] Young people were also targeted in the 2012 Privacy Awareness Week, with the then Privacy Commissioner Timothy Pilgrim, getting involved in an online session of the Federal Government’s initiative, Cybersmart Detectives. [12] The 2014 Privacy Awareness Week will be held on 4-11 May 2014.

Negative developments

NATIONAL: National Disability Insurance Scheme interferes with the right to privacy

The National Disability Insurance Scheme Act 2013 deals with protected information, including personal information, that the Agency may obtain in the course of performing its functions. A person may obtain, use or disclose protected information if the CEO of the Agency has reasonable grounds for believing that it is ‘reasonably necessary’ for:

• research matters relevant to the NDIS;
• actuarial analysis of matters relevant to the NDIS; or
• policy development.

Storing and sharing personal information, including its release without a person’s knowledge or consent, all amount to interferences with the right to privacy, which is protected by article 16 of the CRC. There are no requirements for steps to be taken to de-identify the information or to obtain the person’s consent before releasing personal information.

QLD: Proposed name and shame laws

Jarrod Bleijie, the Attorney General and Minister for Justice, Queensland in March 2013 announced planned reforms to the juvenile justice system, which include allowing the names of repeat young offenders to be made public. [13] These new name and shame laws could see the names of children as young as 10 being revealed following their second offence. Whilst the Mr Bleijie has described the reforms as “tough but necessary”, [14] experts had warned a NSW parliamentary committee in 2008 when similar laws were being considered, that such laws would be viewed by some children as badges of honour and would in fact encourage them in “committing more and more serious offences”. [15] A University of the Sunshine Coast psychology lecturer, Dr Rachael Sharman, has also warned of the “huge” potential of backfire, as “these kids are not taught normal family values, such as guilt, remorse and shame” and so “would not understand the massive repercussions this would have on their lives later on”. [16]

• Consider enacting comprehensive national legislation guaranteeing children’s right to privacy.
• Establish child-friendly complaints mechanisms for children who have had their privacy breached.
• Undertake measures to ensure privacy protection in penal proceedings.
• Western Australia should abolish their Prohibited Behaviour Orders Act 2010.
• The Northern Territory should amend legislation so as to prohibit the publication of the details of young offenders.
• Queensland should abandon proposed reforms allowing for the publication of the names of repeat young offenders.

1. Privacy Act 1988 (Cth) s6.
2. Australian Law Reform Commission, ‘Australian Privacy Law and Practice, Report No. 108 (2008) 2253 [68.1] < http://www.alrc.gov.au/sites/default/files/pdfs/publications/108_vol3.pdf> (accessed 30 January 2014).
3. Ibid., Recommendation 74; See also Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth).
4. Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth), s68. See also Privacy Act 1988 (Cth) s36.
5. Youth Justice Act 2005 (NT) s50.
6. Prohibited Behaviour Orders Act 2010 (WA) s34.
7. Office of the Australian Information Commissioner, Australian Government, ‘Community Attitudes to Privacy survey’ (Research report, 2013) 3.
8. Office of the Australian Information Commissioner, Australian Government ‘Inquiry into Cyber Safety Issues Affecting Children and Young People’ (Submission to the Joint Select Committee on Cyber Safety, July 2010) 2.
9. Education Services Australia, ‘Safe Schools Hub’ (website) <http://www.esa.edu.au/projects/safe-schools-hub> (accessed 30 January 2014).
10. Ibid.
11. Victorian Government, ‘When you post or share, It’s There for Life!’ (media release, 28 February 2013) <http://www.premier.vic.gov.au/media-centre/media-releases/6155-when-you-post-or-share-its-there-for-life.html> (accessed 30 January 2014).
12. Office of the Australian Information Commissioner, Australian Government, ‘Young people a priority during Privacy Awareness Week’ (media release, 1 May 2012) <http://www.oaic.gov.au/news-and-events/media-releases/privacy-media-releases/young-people-a-priority-during-privacy-awareness-week> (accessed 30 January 2014).
13. Queensland Government, Attorney General and Minister for Justice, Safer Streets Crime Action Plan- Youth Justice, March 2013, available at http://www.justice.qld.gov.au/__data/assets/pdf_file/0007/177775/safer-streets-crime-action-plan-youth-justice.pdf, 7 (accessed 22 August 2013).
14. Queensland Government, ‘Reforms get tough on youth crime’ (media release, 26 September 2013) <http://statements.qld.gov.au/Statement/2013/9/26/reforms-get-tough-on-youth-crime> (accessed 30 January 2014).
15. Cited in SBS, ‘Qld will name and shame child offenders’ (website, 26 September 2013) <http://www.sbs.com.au/news/article/2013/09/26/qld-will-name-and-shame-child-offenders> (accessed 30 January 2014).
16. Kate Clifford, Sunshine Coast Daily, ‘Name and shame law for juvenile offenders slammed’ (website, 27 September 2013) <http://www.sunshinecoastdaily.com.au/news/name-shame-law-slammed/2034155/> (accessed 30 January 2014).