ACCAN Informed Consent Project (21 August 2009)

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5.6. Young people

In the Project Survey, caseworker organisations and regulators reported a moderate to high proportion of consent complaints regarding young consumers. This issue is a significant concern for the telecommunications sector because of the prevalence of young people with mobile phones (often provided / funded by parents).

Current practice in the communications sector in relation to young people and consent is sometimes poor. Instead of informing young people about the risks of products the communications industry often appears to be attempting to scare young people into paying their bill.

Consider this provision from SMSFun:

Special note to members under 16 years of age or where others pay their mobile account/bill While legally you may not be required to pay your mobile bill, your parent or guardian definitely is. SMSFun logs every request for content, membership, pictures, server and database query with ip, geo-ip and proxy detection features. Should any charges be disputed by the bill payer, SMSFun reserves the right to persue [sic] the user via legal and civil avenues for moneys owed, damages, legal costs and ongoing hardship to SMSFun from any false or misrepresented claims arrising [sic] from any disputed matter. SMSFun may call to verify mobile ownership to any members under 16 years of age.[27]

There is no set age limit for obtaining consent in contract law or privacy law, so the test of capacity relies on the circumstances of each case. Most Australian legal guidance on young people and consent is from the health sector and the leading case says that you must assess the maturity of the individual in each case.[28]

There are inconsistencies in the law: there are some instances where there is a specific age limit (e.g. 18 for tattoos); human research – generally requires parental consent if under 18, with some exceptions;[29] and privacy law has a general test of maturity, although there is a recommendation for requiring parental consent for a default age of 15.

The Australian Law Reform Commission (ALRC) has made a series of important recommendations on Decision Making by and for Individuals Under the Age of 18.[30] The current law is relatively thin on this issue: the Guidelines to the National Privacy Principles (non-binding) require each individual’s case to be assessed individually and where a child is capable of making their own decisions, they should be allowed to.[31]

As part of the ALRC’s investigation, research was conducted on the capacity of young people to make decisions. It was seen that there is a clear correlation between the development of cognitive skills and age, with a gradual increase in skills as age increases. Multiple researchers have positioned the age where minors become able to logically reason and make sound judgments at around 15 to 17 years old and in some studies this was even shown to be 14 years old. The various results regarding capacity and ages revealed that it isn’t possible to identify an age above which all young people are competent in decision-making and below which all children aren’t.

Following an examination of all the relevant evidence the ALRC determined that a clarification of the Privacy Act’s attitude to children’s decision making was needed. They proposed an age of presumption working along side a method of individual assessment, where practicable. The suggested approach is individual assessment; however, where this is not possible, individuals over the age of 15 are to be considered capable of decision-making.

The ALRC made the following relevant recommendations:

• Recommendation 68–1
  The Privacy Act should be amended to provide that where it is reasonable and practicable to make an assessment about the capacity of an individual under the age of 18 to give consent, etc. under the Act, an assessment about the individual’s capacity should be undertaken. Where an assessment of capacity is not reasonable or practicable, then an individual:
  • (a) aged 15 or over is presumed to be capable of giving consent etc.; and
  • (b) under the age of 15 is presumed to be incapable of giving consent etc.
• Recommendation 68–2
  The Privacy Act should be amended to provide that where an individual under the age of 18 is assessed or presumed to not have capacity under the Act, any consent etc. must be provided by a person with parental responsibility for the individual.

If these proposals become law, they will present a significant change to the general approach by industry to obtaining consent from young people.

The ability of commercial organisations to assess a young person’s level of maturity may be limited. In the health sector there has been considerable additional guidance on this issue. For example one health professional organisation (Osteopaths Registration Board of Victoria[32]) has even broken down the question into a series of factors that must be considered by their members:

• Age;
• General maturity of speech and bearing;
• Level of independence from parental care;
• Level of schooling; and
• Ability to understand the gravity and complexity of the treatment proposed.

It may not be realistic to expect this same attention to detail in the communications sector.

Overall, the communications industry would benefit from some guidance on obtaining consent from young people and may also benefit from the development of a default age to simplify the legal position. It is interesting to note that consent to tattooing must be from a parent if a person is under 18 years old and intimate piercing (e.g. not ear piercing) is completely prohibited for under 16 years old (not even with parental consent).[33] This may be a reflection of the community’s recognition on the limits of consent.

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[27] SMS Fun, Register here, <http://www.smsfun.com.au/smsalerts.php>.

[28] Department of Health and Community Services v. JWB and SMB (Marion's Case) (1992) HCA 15; (1992) 175 CLR 218, <http://www.austlii.edu.au/au/cases/cth/high_ct/175clr218.html>; Human Rights and Equal Opportunity Commission, Outline of Submission of the Human Rights and Equal Opportunity Commission, HREOC, 19 May 2003, <http://www.hreoc.gov.au/legal/submissions_court/intervention/P_v_P_legalaid.html>; NSW Law Reform Commission, Report on Young People and Consent to Health Care, report 199, NSWLRC, October 2008, <http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/vwFiles/r119.pdf/$file/r119.pdf>.

[29] J Bessant, The fixed age rule: young people consent and research ethics, Youth Studies Australia, 2006, <http://www.accessmylibrary.com/coms2/summary_0286-29055150_ITM>.

[30] Australian Law Reform Commission, For your information: Australian privacy law and practice, report 108, ALRC, August 2008, <http://www.austlii.edu.au/au/other/alrc/publications/reports/108/>.

[31] Office of the Privacy Commissioner, Guidelines to the National Privacy Principles, OPC, Sydney, September 2001, <http://www.privacy.gov.au/publications/nppgl_01.html>.

[32] Osteopaths Registration Board of Victoria, Consent for treatment and confidentiality in young people, 2005, <http://www.osteoboard.vic.gov.au/docs/treatconsent.pdf>.

[33] Health Care Complaints Commission, When can young persons consent to their medical treatment and care?, HCCC, Sydney, 2009, <http://nwsdgp.org.au/assets/documents/mwm_04-09_HCCC_article_-_when_can_young_people_consent_to_their_medical_treatment_and_care.pdf>.

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