In effect from: 1 July 2025

The Right to Information Act 2009 (Qld) (RTI Act) gives people the right to apply to an agency or Minister for access to documents. This right is subject to limitations set out in section 47(3).

Section 47(3)(a)-(f) sets out when an agency can refuse access to information. This page explains how to apply 47(3)(c):

  • access can be refused to the extent the document is sought under an application by or for a child and comprises the child’s personal information the disclosure of which would not be in the child’s best interests under section 50.

This page also discusses the exempt information provisions and public interest factors that can arise when dealing with an application made by or for a child.

Note: references on this page to an agency include a Minister.

Applications by and for children

The RTI Act allows parents to make applications on behalf of their children because, while children are permitted to make their own applications, they may lack the ability or capacity to do so.

It also allows children to make applications in their own right.

Can the information be released?

The right to apply does not mean the applicant has an automatic right to be given access. The right of access is subject to the limitations in the RTI Act.

Decision makers must consider whether information applied for is exempt from release or contrary to the public interest to release before considering if release would be contrary to the best interests of the child.

Exempt information

Schedule 3 of the RTI Act contains information Parliament has decided it would be contrary to the public interest to disclose. This includes information the disclosure of which is prohibited by another Act. The ones most likely to be relevant to an application by or for a child are:

  • Adoption Act 2009 (Qld), section 314 creates a presumption of confidentiality of information related to the personal history or person’s affairs of adopted children, adoptive parents, and birth parents.
  • Child Protection Act 1999 (Qld), sections 186 to 188 which relate to the confidentiality of notifiers of harm or risk of harm; and confidentiality of information obtained by or given to persons involved in administering that Act.
  • Youth Justice Act 1992 (Qld), section 288 which is a prohibition on disclosure of confidential information relating to a child obtained through involvement in the administration of that Act.

Contrary to public interest information

If information is not exempt under one of the provisions in schedule 3 of the RTI Act, decision makers must consider if it is contrary to the public interest to release. They must identity relevant factors favouring disclosure and non-disclosure in schedule 4 of the RTI Act to determine whether or not the information should be disclosed.

Factors Favouring Disclosure

Schedule 4, part 2 of the RTI Act contains the public interest factors favouring disclosure. Factors which may be of relevance to applications made by or for children include:

  • The information is the applicant’s personal information: This factor applies where the application is made on behalf of the child, as the child is the actual applicant.
  • The information is the personal information of a child within the meaning of section 25, the agent acting for the applicant is the child’s parent within the meaning of section 25 and disclosure of the information is reasonably considered to be in the child’s best interests.

Factors Favouring Nondisclosure

Schedule 4, part 3 of the RTI Act contains the public interest factors favouring non-disclosure. Factors which may be of particular relevance to applications made for children include:

  • Disclosure of the information could reasonably be expected to prejudice the protection of an individual’s right to privacy. Children’s right to protection from arbitrary or unlawful interference with their privacy is recognised by the United Nations Convention on the Rights of the Child (CROC). A right to confidentiality has been accepted in health situations between a health provider and child. Courts have also recognised that parental power to consent to medical treatment on behalf of a child diminishes gradually as the child’s capacities and maturity grow and that this rate of development depends on the individual child.  The child’s right to privacy grows along with their autonomy and is proportionate to a decrease in parental power.
  • The information is the personal information of a child within the meaning of section 25, the applicant is the child’s parent within the meaning of section 25 and disclosure of the information is reasonably considered not to be in the child’s best interests. Even though a parent is making an application on behalf a child, it does not automatically follow that it will be in the best interest of the child for the parent to be given the information or that the parent has the interests of the child as the primary focus of the application.  Decision makers will need to consider all the circumstances of the application and the documents.

Contrary to the best interest of the child

Section 47(3)(c) of the RTI Act allows an agency to refuse access to the personal information of a child if it considers that disclosure would not be in the best interests of the child. This ground for refusing access is separate from, and in addition to, refusal on the grounds that the information is exempt or contrary to the public interest. It applies whether the application is made by the child, or by a parent acting on behalf of a child.

Best interests of a child

Best interests of the child is not defined in the RTI Act, however the RTI Act provides some guidance where the child has made the application. It requires decision makers to have regard to the child’s capacity to understand the information and the context in which it was recorded and make a mature judgement as to what might be in his or her best interests.

The Information Commissioner has made several decisions relying on this ground of refusal:

  • 49RYXV and the Department of Communities, Child Safety and Disability Services [2014] QICmr 23 (5 June 2014)
  • 76PNOH and the Department of Communities, Child Safety and Disability Services [2014] QICmr 24 (5 June 2014)
  • 2YSV6N and the Department of Communities, Child Safety and Disability Services [2014] QICmr 25 (5 June 2014)
  • AZ4Z4W and the Department of Communities, Child Safety and Disability Services [2014] QICmr 26 (5 June 2014).

Some factors that have been identified in the family law context (Family Law Act 1975, section 60CC) as relevant to the best interests of the child are:

  • The benefit to the child of having a meaningful relationship with both parents.
  • The need to protect the child from physical or psychological harm and from being subjected to or exposed to, abuse, neglect or family violence. Disclosure of information will not be appropriate if there is a real possibility that the child may suffer abuse as a result.
  • Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) relevant to the weight to be given to the child’s views.
  • The child’s maturity, sex, lifestyle and background and other relevant characteristics of the child and of either of the child’s parents.
  • If the child is an Aboriginal or Torres Strait Islander child the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture.

Courts have also recognised that ‘best interests’ is a multi-faceted test and incorporates the wellbeing of the child, all factors which will affect the future of the child; the happiness of the child, immediate welfare as well as matters relevant to the child’s healthy development; and includes not only material wealth or advantage but also emotional, spiritual and mental wellbeing (O’Conner v A and B [1971] 1 WLR 1227 at 1237; In the Marriage of Bishop (1981) 6 Fam LR 882, 888; McGrath (Infants) [1893] 1 Ch 143, 148). Wellbeing factors may include safety, protection, education, health, developmental considerations, attachments and relationships.

Other relevant considerations include the presence of conflict in the family, the relationship between the child and the agency holding the information, and the possibility that disclosure of the information may harm the child. Where there is disharmony between the parents or potential conflict of interest between parent and child, care should be exercised in giving parents access to records that contain the child’s private and sensitive information.

Whether disclosure of the information is in the child's best interests will depend on the nature of the personal information and the particular circumstances. Factors that may be relevant to determining whether disclosure would not be in the child's best interests include:

  • the child's age; and
  • the impact on the child's happiness, welfare and development, and/or well-being.

If the application is made by the child, rather than for the child, section 50(3) of the RTI Act requires the agency to consider whether the child has the capacity to:

  • understand the information and the context in which it was recorded; and
  • make a mature judgement as to what might be in his or her best interests.

If the application is made for the child by their parent, it is relevant to consider the practical effect of disclosing the information to the child’s parent as their representative and whether this would be contrary to the best interests of the child. For example, it may be contrary to the best interests of a child to disclose information to a parent acting on their behalf where disclosure could prejudice the privacy of that child or where the disclosure is likely to discourage the child from communicating openly with government agencies such as the police service or child safety officers.

Often a parent’s interests align with their child’s interests, as the parent is acting with their child’s best interests in mind (Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218, 239-240, 260). However, there may be circumstances where the interests of the child are sufficiently different from that of the parent to warrant refusal of access on this ground (Re Bradford and Director of Family Services; Commissioner, Australian Federal Police (1998) 52 ALD 455, 458-459 (Bradford)).

Relationships of trust with child protection agencies

In Bradford the applicant sought access under the Freedom of Information Act 1982 (Cth) to various documents about herself and her four children, relating to child protection matters, that were held by the Director of Family Services.

President Curtis noted where there are child protection issues, disclosure may undermine the relationship between the child and the agency charged with the protection of children and as such may not be in the child’s best interests.

Seeking the child’s views

The RTI Act does not require a decision maker to take a child’s views into account when determining whether release is contrary to their best interests. International, national and state legislation and guidelines, however, specifically acknowledge the right of children and young people to participate in decisions about their own lives.

Courts have acknowledged that parental controls over a child do not wholly disappear until the child reaches 18, but recognise that control diminishes gradually as the child’s capacity and maturity grows (Department of Health and Community Services v JWB and SMB (Marion’s case) 1992 175 CLR 218 [19] referring to Gillick v West Norfolk Area Health Authority (1986) AC 112). There is no specific age at which this happens; this development depends on the individual child.

In order to assess the best interests of a child, there may be circumstances in which a decision maker considers it appropriate to obtain the child’s view. This is distinct from formal consultation with a third party as outlined in section 37 of the RTI Act

If a child objects to the release of information to their parents or guardians, that fact will not in itself be enough to justify refusal, but it may be a significant factor for the decision maker to consider. The balance to be struck is between the child’s right to privacy on the one hand and on the other not creating unnecessary impediments to parents being able to effectively undertake their parental responsibilities.

Print Page
Back to top