What the Act says
These rights are based on Articles 23(1) (family) and 24(1) and (2) (children) of the International Covenant on Civil and Political Rights, which Australia ratified in 1980.
Scope of the right
Both this right (section 26) and the right to privacy (section 25) protect family and children. However, while section 25 protects against unlawful or arbitrary interference with a person’s family, section 26 is stronger than non-interference, and guarantees institutional protection of family and positive measures for protection of children by society and the State.
Protection of families
Families are recognised as the foundation of society and are entitled to protection from society and the State.
The term 'family' is interpreted broadly under international law and includes diverse cultural understandings of family, as well as small family units with or without children.
The right may apply to relationships between (long-term) foster parents and children.
Protection of children
Children are entitled to special protection because of their particular vulnerability. This protection should be provided by their families, society and the State. While the Act does not define ‘child’, it is generally understood to mean anyone under 18 years of age.
Every child has the right, without discrimination, to protection that is needed by the child and is in their best interests as a child.
The content of the right is informed by the United Nations Convention on the Rights of the Child. According to the Convention, in all actions concerning children, ‘the best interest of the child’ is the primary consideration and the views of the child should be given due weight in accordance with their age and maturity. The best interests of the child is aimed at ensuring the full and effective enjoyment of all the child’s human rights and their holistic development. What is in a child’s best interests will depend on their individual circumstances.
Children are also entitled to all rights under the Human Rights Act 2019, except in specific cases (for example, the right to vote under section 23(2a)).
Right to a name and registration of birth
Every person born in Queensland has the right to a name and to have their birth registered under Queensland law as soon as practicable. The right requires the State to ensure birth registration services are available, as outlined in the Births, Deaths and Marriages Registration Act 2003. However, it doesn't require the State to actively register a birth or name a child if the parent does not submit the registration.
Limitation
This right may be limited by public entities, but only where the limitation is reasonable and demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
Learn more about justification and other obligations on public entities to respect human rights.
Case examples
Decision to terminate pregnancy relating to a child
A Queensland health service sought the court’s intervention in relation to a 14-year-old child who was pregnant. Having determined that the child was not competent to consent to termination of the pregnancy, the court considered what decision was in the child’s best interests. The court needed to identify the human rights relevant to this function, and to weigh any competing considerations and their impacts on the child’s human rights.
Having regard to relevant human rights, the court accepted the risks of continuing the pregnancy were greater for the child than the risks of terminating the pregnancy. The court also took into account that the child most frequently expressed the view that she preferred to undergo the termination. Accordingly, the court ordered the child be permitted to undergo termination of the pregnancy as that was in her best interests.
Darling Downs Hospital & Health Service v J [2024] QSC 330 (26 August 2024)
Mother has right to seek review of contact between siblings
The Queensland Department of Children, Youth Justice and Multicultural Affairs made a decision regarding contact between siblings in its care. The children’s mother applied for a review of the decision. As the decision did not involve the mother, the department sought to have the application dismissed on the basis the mother was not ‘a person affected by the decision’ as required by the Child Protection Act 1999. Having regard to the general principles under that Act to support the family to allow the child to return to their family if it is in their best interests, as well as section 26 of the Human Rights Act, the tribunal concluded that the mother was a person affected by a decision concerning contact between her children.
SBN v Department of Children, Youth Justice and Multicultural Affairs [2022] QCAT 321 (9 September 2022).
Requirement to provide address in order to register for home schooling
To escape domestic violence, a woman moved to a new address in Queensland with her children. She applied to the Department of Education to home school one of her children, but refused to disclose her new address to keep her family safe. The application was refused because, in the department’s view, specific details of her address were required under legislation. The woman applied for a review of the decision.
The tribunal interpreted the legislation as not requiring the woman to disclose her street address where it would risk the health and safety of her children, particularly as she had given alternative contact details. This interpretation ensured compatibility with the rights to privacy, protection of children, and education.
The tribunal set aside the department’s decision and substituted a decision to grant home education registration for the student.
(SF v Department of Education [2021] QCAT 10) (13 January 2021)
This information is not intended to be a substitute for legal advice.