The need to balance the competing intereThe need to balance the competing interests contained in s 29 of the Privacy Act

The need to balance the competing interests contained in s 29 of the Privacy Act

Under s 29 of the Privacy Act, in performing their functions or exercising their powers, the Commissioner must, amongst other things:

(a) have due regard for the protection of important human rights and social interests that compete with privacy…

Australia is a party to seven core international human rights treaties. The rights of parents and children are contained in the United Nations Convention on the Rights of the Child (CRC) and in the International Covenant on Civil and Political Rights (ICCPR).

The Preamble to the Privacy Act makes clear that the legislation was intended to implement, at least in part, Australia’s obligations relating to privacy under the ICCPR. Specifically, article 17 of the ICCPR prohibits unlawful or arbitrary interferences with a person's privacy, family, home and correspondence. However, the right to privacy is not absolute and there may be circumstances in which the guarantees in article 17 can be outweighed by other primary considerations.

With respect to children, article 24 of the ICCPR provides that:

Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.

In addition to the rights enjoyed by all persons under the ICCPR, the CRC sets out child-specific needs and rights. The CRC encompasses civil, political, economic, social and cultural rights for children as well as provisions regarding their care and protection. A number of articles of the CRC are of particular relevance in the context of a consideration of measures that aim to improve outcomes for children through effective early intervention. Relevantly, the CRC recognises that children everywhere are entitled to the right:

• to survival[10]
• to develop to the fullest[11]
• to protection from harmful influences, abuse and exploitation,[12] and
• to participate fully in family, cultural and social life.[13]

Under the CRC, the best interests of children must be the primary concern in making decisions that may affect them.[14] The principle of the best interests of the child applies to all actions concerning children and requires active measures to protect their rights and promote their survival, growth, and well-being.

Privacy is a right that must be appropriately balanced against other competing rights, including the rights of children and families. I consider that the proposed acts or practices advance the protection of human rights and the rights of children. To the extent that they may also limit human rights, those limitations are reasonable and proportionate.