The Times Australia
Mirvac Harbourside
The Times Australia
.

Banning under-16s from social media may be unconstitutional – and ripe for High Court challenge

  • Written by Sarah Joseph, Professor of Human Rights Law, Griffith University

On November 21 2024, the Albanese government unveiled its bill[1] to introduce a minimum age of 16 for most social media platforms. The government claims the bill is necessary to protect children from social harm[2].

But it might violate the implied freedom of political communication (IFPC) in the Constitution if it is passed. If so, it will be invalid.

Children, politics, and media

Children are not apolitical. Significant “underage” political activists include Greta Thunberg[3], the Schools Strike 4 Climate[4] movement, and the local Channel 6 news channel[5], founded by Leo Puglisi when he was 12.

Some of the most compelling footage of the Amsterdam soccer riots[6] involving Maccabi Tel Aviv supporters came from a 13-year-old journalist known as Bender. And children do not need to be activists to be politically engaged: a person’s political consciousness and identity often starts to evolve in childhood.

Social media is a crucial source of political information and communication[7] for children. They pay comparatively little attention to legacy media sources such as newspapers or television news. Furthermore, legacy media rarely publishes content from children, unlike social media. The interactivity of the latter allows for conversation, debate and galvanisation that is simply not replicated in the former.

What is the implied freedom of political communication?

The IFPC applies where a legal “burden” is placed on political communication, which is defined as communications on matters that might affect a person’s federal vote, their opinion of the federal government, and constitutional referendums. That definition from Lange v ABC[8] (1997) has since been interpreted to encompass communication about virtually any topic that can be viewed as political.

A “burden” arises where the “flow” of political communication is disrupted, which includes a legal disincentive to communicate openly.

In the first Unions NSW case (2013)[9], restrictions on political donations from non-voters, namely corporations and trade unions, were found to breach the IFPC[10]. Restrictions on political donations and expenditure would reduce the political information available to voters and others.

The proposed ban would disrupt the flow of political communication to and from children. Unlike corporations and trade unions, children are future voters. Their later political choices are often influenced by views developed while they are children. Furthermore, the minimum age requirement will deprive us all of children’s political voices on social media.

The IFPC is not absolute. Once a burden on political communication is established, the High Court will then apply a test of proportionality to establish whether the law is nevertheless constitutional. Almost all IFPC cases have turned on this issue of proportionality.

So the government would first have to establish whether the impugned law has a purpose that is compatible with Australia’s system of representative government. The purpose of protecting children would satisfy this step.

There is then a three-step test to establish proportionality. First, is the law suitable for achieving its purpose? Laws fail this test if they lack a rational connection to the purpose. Here, a social media minimum age might be suitable if there is good evidence that social media harms children.

However, we do not yet know how the minimum age requirement will be practically implemented, in particular how social media platforms will verify the age of users. The ban will not be “suitable” if it is unworkable or easy to thwart.

Furthermore, there are views[11] that a ban could harm children and breach their human rights[12]. For example, social media might give some children access to online communities that alleviate feelings of isolation and alienation. If a ban significantly harms children, it is not a suitable or rational way to protect them.

Second, is the ban is necessary for achieving the purpose? Or are there other ways of achieving the purpose that might impose a lesser burden on political communication?

Notably, a parliamentary inquiry[13], which tabled its report on the impact of social media on Australian society on November 17, did not recommend a ban. Instead, it favoured the imposition of a duty of care[14] for online platforms to take steps to prevent harm to users. Parliament’s own investigation concluded that less drastic means might suffice to protect children, which indicates the minimum age requirement might fail the test of necessity.

Third, the extent of the impact on political communication is weighed against the importance of the purpose of reducing harm to children. The potential impact on the flow of political communication is massive, given a huge age group will be excluded from using most social media, so that side of the equation should carry considerable weight in any “balancing” exercise.

The bill, if passed, is arguably vulnerable to failing all three steps of the proportionality analysis. It only needs to fail one to be invalid.

A bill that is ripe for constitutional challenge

The IFPC has been one of the most litigated aspects of the Constitution in the past three decades. The vast majority of impugned laws have survived challenge because they have been found to pass the test of proportionality.

Yet this bill seeks to cut a giant swathe of political communication out of existence in Australia. It could feasibly be a rare example of a law that disrupts political communication to such an extent that it is invalid. Social media companies will surely mount a constitutional challenge to find out.

References

  1. ^ bill (minister.infrastructure.gov.au)
  2. ^ protect children from social harm (www.pm.gov.au)
  3. ^ Greta Thunberg (www.theguardian.com)
  4. ^ Schools Strike 4 Climate (www.theguardian.com)
  5. ^ local Channel 6 news channel (www.6newsau.com)
  6. ^ Amsterdam soccer riots (www.youtube.com)
  7. ^ source of political information and communication (journals.sagepub.com)
  8. ^ Lange v ABC (jade.io)
  9. ^ first Unions NSW case (2013) (www.austlii.edu.au)
  10. ^ breach the IFPC (theconversation.com)
  11. ^ views (au.reset.tech)
  12. ^ human rights (humanrights.gov.au)
  13. ^ parliamentary inquiry (www.aph.gov.au)
  14. ^ imposition of a duty of care (www.theguardian.com)

Read more https://theconversation.com/banning-under-16s-from-social-media-may-be-unconstitutional-and-ripe-for-high-court-challenge-244282

To become a fairer nation, Australia needs to set national inequality targets

“Income inequality hits a 20-year high[1]”. “Housing is less affordable than ever[2]”. “The staggering truth a...

Mirvac Harbourside

Times Magazine

Building a Strong Online Presence with Katoomba Web Design

Katoomba web design is more than just creating a website that looks good—it’s about building an onli...

September Sunset Polo

International Polo Tour To Bridge Historic Sport, Life-Changing Philanthropy, and Breath-Taking Beau...

5 Ways Microsoft Fabric Simplifies Your Data Analytics Workflow

In today's data-driven world, businesses are constantly seeking ways to streamline their data anal...

7 Questions to Ask Before You Sign IT Support Companies in Sydney

Choosing an IT partner can feel like buying an insurance policy you hope you never need. The right c...

Choosing the Right Legal Aid Lawyer in Sutherland Shire: Key Considerations

Legal aid services play an essential role in ensuring access to justice for all. For people in t...

Watercolor vs. Oil vs. Digital: Which Medium Fits Your Pet's Personality?

When it comes to immortalizing your pet’s unique personality in art, choosing the right medium is ...

The Times Features

Do kids really need vitamin supplements?

Walk down the health aisle of any supermarket and you’ll see shelves lined with brightly packa...

Why is it so shameful to have missing or damaged teeth?

When your teeth and gums are in good condition, you might not even notice their impact on your...

Australian travellers at risk of ATM fee rip-offs according to new data from Wise

Wise, the global technology company building the smartest way to spend and manage money internat...

Does ‘fasted’ cardio help you lose weight? Here’s the science

Every few years, the concept of fasted exercise training pops up all over social media. Faste...

How Music and Culture Are Shaping Family Road Trips in Australia

School holiday season is here, and Aussies aren’t just hitting the road - they’re following the musi...

The Role of Spinal Physiotherapy in Recovery and Long-Term Wellbeing

Back pain and spinal conditions are among the most common reasons people seek medical support, oft...

Italian Lamb Ragu Recipe: The Best Ragù di Agnello for Pasta

Ciao! It’s Friday night, and the weekend is calling for a little Italian magic. What’s better than t...

It’s OK to use paracetamol in pregnancy. Here’s what the science says about the link with autism

United States President Donald Trump has urged pregnant women[1] to avoid paracetamol except in ...

How much money do you need to be happy? Here’s what the research says

Over the next decade, Elon Musk could become the world’s first trillionaire[1]. The Tesla board ...