This article will help you better understand some ethical and legal issues when working with young people. But remember, we’re not lawyers, so what you read below is not legal advice and shouldn’t be taken as such. If you do need legal advice, please get in touch with Youthlaw or ask a lawyer.

Ethical practice

Good work with young people is ethical work. YACVic's Code of Ethical Practice – A First Step for the Victorian Youth Sector is an agreed framework and set of values for what constitutes safe, professional and ethical youth work. The Code is based upon human rights and the following principles of youth work:

• the empowerment of all young people
• young people’s participation
• social justice for young people
• the safety of young people
• respect for young people’s human
• dignity and worth
• young people’s connectedness to
• important people in their lives, such as
• family and community
• positive health and wellbeing outcomes for young people
• the positive transitions and healthy development of young people.

In addition, youth work practice responsibilities describe key elements of what
youth workers do when guided by the youth work principles:

• Recognition of Indigenous peoples.
• Young people as the primary consideration.
• Duty of care (see below).
• Privacy and confidentiality (see below).
• Boundaries.
• Transparency, honesty and integrity.
• Social context.
• Anti-oppressive practice: non-discrimination, equity and self-awareness.
• Cooperation and collaboration.
• Knowledge, skill and self-care.

For more information about ethical practice, download a copy of the Code or feel free to contact YACVic.

Duty of care

A duty of care is a legal requirement to take reasonable care to protect another person from a foreseeable risk of injury. If you are involving young people in a project, program, event or activity, you owe them a duty of care.

For more information about duty of care, and to better understand how your obligations work in practice, watch Youthlaw’s video:

Privacy laws

There are several laws that control how businesses, government funded or community sector organisations can collect, use and keep personal and health information.

• The Privacy Act 1988 (Cth) applies to Commonwealth government organisations and their funded services, as well as companies and corporations (regulated by the Office of the Australian Information Commissioner).
• The Information Privacy Act 2000 (Vic) applies to Victorian state and local government organisations, as well as their contracted service providers (regulated by the Office of the Victorian Privacy Commissioner). This act contains ten Information Privacy Principles (IPPs). It sets standards for how personal information and sensitive information is collected, handled and disposed of. It applies to all forms of recorded information about a person, including information recorded during a consultation with young people.
• The Health Records Act 2001 (Vic) applies to a large number of organisations who hold health information in Victoria (regulated by the Office of the Health Services Commissioner). It sets standards for how health information about a person is collected, handled and disposed of, including information recorded in a consultation with young people.

These laws will help you to respect young people’s privacy and plan how you’re going to collect and store information. And if you’re a government-funded service, be aware that breaching the Information Privacy Principles (IPPs) could result in a complaint being made against you followed by an investigation by the Victorian Privacy Commissioner or Health Services Commissioner.

Personal information

Personal information is classed as information or opinions about a person whose identity can be seen or reasonably assumedbased on the information – e.g. a person’s name, address and date of birth.

Health information is information about the physical or mental health of a person, or information about a person’s disability. It includes information about a person’s access to health services, the type of services and any opinions about matters relating to a person’s health.

Sensitive information is a form of personal information that includes information about a person’s racial or ethnic origin, political views, religious beliefs, sexual preference, group membership or criminal record. Sensitive information must only be collected (with the individual’s consent) if the information is required for the purpose of providing government-funded welfare or educational services, or for research of these services.

Privacy laws and consultation

If you’re consulting with young people, you should consider the following questions:

• What is the exact purpose of the consultation? Reflect on your needs, aims and objectives and think how you can explain these to participants.

• What personal information are you asking for? You should only collect personal info needed for the exact purpose of the consultation.

• Can participants choose to remain anonymous? Victorian privacy laws state that where lawful and practical, organisations must provide an option of anonymity (see IPP 8).

• How will you store and manage the information you collect? Privacy laws state that an organisation must have clear policies on how it manages personal information. Before starting a consultation, this policy should exist and be available to all participants and anyone who asks for them.

• How will you use the information you collect? The information you collected can only be used for the specific purpose of your consultation, or otherwise in accordance with privacy laws (see IPP 2.1(c-h)).

• What is your privacy statement? If you work for a large organisation you likely have one of these already – check with your communications department.

Privacy statements

If you’re collecting information that identifies someone, you need to tell them:

• the name of the organisation collecting the info, and how it can be contacted;
• the specific purpose for collecting the personal information;
• how the participant can gain access to the personal information they provide;
• who, if anyone, the organisation is going to share the personal information with;
• how the information will be kept secure.

This information is called a privacy statement. Privacy statements are usually given to the person before or at the time of the consultation - e.g. displayed at the start of an online survey, read out at the start of a forum.

Storing and retaining information

The privacy laws highlight the importance of storing personal information securely. Some measures to consider are:

• storing information in a secure place;
• removing a person’s identity from the information as soon as possible;
• protecting digital information with a password;
• backing up digital information and storing it securely, separately from the computer on which the information is stored.

If you are unsure how long you should retain personal information, contact Public Record Office Victoria for advice.

Consultation and contracts

If you are going to contract out a consultation to someone else, you’ll need to be mindful that you still have obligations under the Information Privacy Act 2000 and Health Records Act 2001. You can include a clause in your contracts or service agreements that your contracted agency must agree to abide by the Privacy Principles. You should also make sure that all information collected on behalf of your organisation is returned to you.

Consent and young people

Legal capacity to consent is not age-dependent. People have the legal capacity to consent if they have the mental ability and maturity to understand the nature and effect of what they are consenting to. Age is a relevant factor in assessing this, but not decisive unless the person is very young. It is fair to assume that a young person has the capacity to consent to being involved in the consultation unless there is evidence or reason to believe otherwise. For example, if you know a young person has a learning difficulty, you will have to make a judgement about whether it’s likely to significantly impair their capacity to understand relevant issues.

If you make the judgement that a young person does not have the capacity to give consent, it may be possible to have a parent or guardian consent on their behalf. In this case, it is good practice to gain the parent or guardian’s consent in addition to the young person’s consent. This way the young person has support but is still actively involved in the decision about whether or not to take part. 

What makes consent valid?

To be valid, consent needs to be informed, freely given, specific and current. If the information is sensitive or health information, signed consent needs to be given.

• Informed means the person has the capacity to understand the situation and consequences of taking part.
• Freely given means the person can make his/her own decision free from influences or pressures.
• Specific means the consent applies only for the information to be used for the purpose outlined.
• Current means the consent must not be given so long ago that relevant circumstances or the person’s view may reasonably have changed.

Privacy, consent and confidentiality

For answers to some frequently asked questions about privacy, confidentiality and young people’s consent, we recommend you watch Youthlaw’s handy video:

Mandatory reporting of child abuse

Victorian law requires certain professionals to report child abuse in certain circumstances. For more information, watch Youthlaw’s video below: