68.1 There is no federal legislation specifically addressing the privacy of children and young people. While the Privacy Act 1988 (Cth) applies to individuals under the age of 18, there is no provision dealing explicitly with the particular needs of children and young people. It is not always clear how the Act applies to these individuals, or who can and should make decisions about privacy on behalf of an individual under the age of 18.
68.2 The need for the Privacy Act to address children’s privacy was discussed at the time of passage of the Privacy Amendment (Private Sector) Act 2000 (Cth). The Opposition moved amendments that would require a ‘commercial service’ to obtain the consent of a child’s parent before collecting, using or disclosing personal information concerning a child aged 13 or under. While the amendment was not agreed to, the Government indicated that the issue would be investigated further.
68.3 In 2001, the then Attorney-General, the Hon Daryl Williams MP, announced the establishment of a consultative group on children’s privacy, convened by the Attorney-General’s Department. The consultative group met twice, but despite plans for publication of a discussion paper on children’s privacy, the matter was not progressed.
68.4 Children’s privacy was exempted specifically from the review of the private sector provisions of the Privacy Act that was completed by the Office of the Privacy Commissioner (OPC) in 2005. The 2005 review of the Privacy Act by the Senate Legal and Constitutional References Committee did not examine the issue of children’s privacy.
68.5 This Inquiry has provided the first opportunity to undertake a comprehensive examination of issues relating to the privacy of children and young people. In this chapter, the ALRC considers a number of issues about decision making by and for individuals under the age of 18, and what, if any, changes are needed in the Privacy Act or other legislation. Generally, the ALRC supports the existing approach that individuals under the age of 18 should be assessed individually to determine whether they have the capacity under the Act to make a decision. The ALRC also recommends a range of mechanisms, including guidance from the OPC and training for staff in agencies and organisations, aimed at ensuring that appropriate assessments are undertaken.
68.6 The ALRC also has recognised, however, that there are many situations where individual assessment is not reasonable or practicable, and recommends that, in the absence of an individual assessment, there be an age at which an individual is presumed to have capacity to make a decision on his or her own. After considering the latest research on child development and the brain development of adolescents, and community debates about ages of capacity, the ALRC recommends that the age be set at 15. Below this age, it is recommended that an individual who has not been assessed individually should be considered incapable of making a decision under the Privacy Act. The ALRC recommends a number of new provisions for the Privacy Act to implement this policy, and to define who is capable of making a decision on behalf of an individual who is not capable of making a decision under the Act.
68.7 In Chapter 69, the ALRC considers a number of areas where specific privacy issues concerning children and young people arise.
 The amendment was headed ‘Special protection for children’: Commonwealth of Australia, Parliamentary Debates, Senate, 30 November 2006, 20302 (N Bolkus). The amendment was supported by the Australian Democrats: Commonwealth of Australia, Parliamentary Debates, Senate, 29 November 2000, 20162 (N Stott Despoja), 20165.
 The Government acknowledged that the notion of children’s privacy had merit, but that the form of the amendment needed consultation before it could be accepted: Commonwealth of Australia, Parliamentary Debates, Senate, 30 November 2000, 20304 (A Vanstone—Minister for Justice and Customs).
 D Williams (Attorney-General), ‘First Meeting of Consultative Group on Children’s Privacy’ (Press Release, 4 June 2001).
 Australian Government Attorney-General’s Department, Children’s Privacy (2000) <www.ag.gov.au/
www/agd/agd.nsf/Page/Privacy_Privatesectorprivacy_ChildrensPrivacy> at 10 April 2008.
 The terms of reference for that review stated that children’s privacy was one of ‘certain aspects of the private sector provisions [which] are currently, or have recently substantively been, the subject of separate review’: Office of the Privacy Commissioner, Getting in on the Act: The Review of the Private Sector Provisions of the Privacy Act 1988 (2005), 22, App 1.
 Parliament of Australia—Senate Legal and Constitutional References Committee, The Real Big Brother: Inquiry into the Privacy Act 1988 (2005).