Privacy rights of children and young people at international law

68.8 Chapter 1 notes the recognition of privacy as a human right in a number of international conventions. The specific right of privacy for children also is set out in art 16 of the United Nations Convention on the Rights of the Child 1989 (CROC).^[7]

1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

2. The child has the right to the protection of the law against such interference or attacks.

In addition, art 40(2)(b)(vii) of CROC refers to the specific need to have respect for the privacy of a child accused or found guilty of a criminal offence.

68.9 The articles of CROC deal with information privacy, including such things as rights to confidential advice and counselling, and control of access to information stored about the child in records. The articles also have been interpreted to cover ‘privacy’ in terms of physical environment and the privacy of relationships and communications with others.^[8] For example, a concern of the United Nations Committee on the Rights of the Child is the personal space provided to, and the regulation of communications of, children and young people in institutional care, including in juvenile justice facilities and immigration detention.^[9]

68.10 CROC was adopted by the United Nations in November 1989 and ratified by Australia in December 1990, coming into effect in Australia in January 1991.^[10] It is the most universally accepted international convention.^[11] Any federal, state or territory legislation, policy or practice that is inconsistent with CROC places Australia in breach of its international obligations, and could have consequences at the international level.^[12]

68.11 A number of other international guidelines relating to the rights of children make reference to the need to protect privacy, including the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (the Beijing Rules)^[13] and the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty 1990.^[14] Although not necessarily binding on Australia at international law, these rules represent internationally accepted minimum standards and are important reference points in developing policy.

68.12 CROC has aroused significant misgivings within some sections of the Australian community, and in other countries, about the interaction between the rights of children and governments and the rights of parents to raise their family in the way they believe to be most appropriate.^[15] These concerns also were present during the drafting of the Convention, and led to the inclusion of art 5, which reads:

States Parties shall respect the responsibility, rights and duties of parents or, where applicable, the members of the extended family or community as provided for by local custom, legal guardians or other persons legally responsible for the child, to provide, in a manner consistent with the evolving capacities of the child, appropriate direction and guidance in the exercise by the child of the rights recognized in the present Convention.

68.13 CROC embodies a balancing exercise, recognising that the family is the fundamental unit of society, but that children are individuals who are not wholly subsumed by their family. The rights set out in CROC are the rights of children which should be respected by their families, communities and governments. Article 5 clearly anticipates that, while a child should be guided appropriately by parents and others in exercising his or her rights, a child also will become more independent of family as his or her capacities develop. It is at this point—where a child becomes a young person with needs and wishes separate from his or her parents—that difficulties may arise in determining whether a child should be able to exercise rights on his or her own behalf. Article 12 of CROC, which refers to a child’s right to be heard in matters affecting the child, makes a similar assumption regarding the evolving capacity of children.^[16]

68.14 Consistent with CROC, most rights and responsibilities in Australian law refer to a person as an adult when he or she turns 18 years of age.^[17] While historically the law has generally assumed that children do not have the capacity to participate in legal processes on their own behalf, more recent psychological studies have provided a greater understanding of children’s cognitive abilities and prompted a re-evaluation of rules regarding children’s capacity.^[18] Increasingly, the common law and particular statutes are recognising the ability of young people at an age lower than 18 to make decisions on their own behalf, even where this may conflict with the wishes of their parents.