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

On November 21 2024, the Albanese authorities unveiled its invoice to introduce a minimal age of 16 for many social media platforms. The federal government claims the invoice is important to guard youngsters from social hurt.

Nevertheless it may violate the implied freedom of political communication (IFPC) within the Structure whether it is handed. In that case, it is going to be invalid.

Youngsters, politics, and media

Youngsters usually are not apolitical. Important “underage” political activists embrace Greta Thunberg, the Faculties Strike 4 Local weather motion, and the native Channel 6 information channel, based by Leo Puglisi when he was 12.

A few of the most compelling footage of the Amsterdam soccer riots involving Maccabi Tel Aviv supporters got here from a 13-year-old journalist referred to as Bender. And youngsters don’t must be activists to be politically engaged: an individual’s political consciousness and id usually begins to evolve in childhood.

Social media is an important supply of political info and communication for youngsters. They pay comparatively little consideration to legacy media sources similar to newspapers or tv information. Moreover, legacy media hardly ever publishes content material from youngsters, not like social media. The interactivity of the latter permits for dialog, debate and galvanisation that’s merely not replicated within the former.

What’s the implied freedom of political communication?

The IFPC applies the place a authorized “burden” is positioned on political communication, which is outlined as communications on issues that may have an effect on an individual’s federal vote, their opinion of the federal authorities, and constitutional referendums. That definition from Lange v ABC (1997) has since been interpreted to embody communication about just about any subject that may be seen as political.

A “burden” arises the place the “movement” of political communication is disrupted, which features a authorized disincentive to speak brazenly.

Within the first Unions NSW case (2013), restrictions on political donations from non-voters, particularly firms and commerce unions, had been discovered to breach the IFPC. Restrictions on political donations and expenditure would cut back the political info obtainable to voters and others.

The proposed ban would disrupt the movement of political communication to and from youngsters. In contrast to firms and commerce unions, youngsters are future voters. Their later political selections are sometimes influenced by views developed whereas they’re youngsters. Moreover, the minimal age requirement will deprive us all of kids’s political voices on social media.

The IFPC isn’t absolute. As soon as a burden on political communication is established, the Excessive Courtroom will then apply a take a look at of proportionality to ascertain whether or not the legislation is however constitutional. Nearly all IFPC circumstances have turned on this challenge of proportionality.

So the federal government would first have to ascertain whether or not the impugned legislation has a objective that’s appropriate with Australia’s system of consultant authorities. The aim of defending youngsters would fulfill this step.

There’s then a three-step take a look at to ascertain proportionality. First, is the legislation appropriate for attaining its objective? Legal guidelines fail this take a look at in the event that they lack a rational connection to the aim. Right here, a social media minimal age may be appropriate if there’s good proof that social media harms youngsters.

Nevertheless, we don’t but understand how the minimal age requirement will likely be virtually applied, particularly how social media platforms will confirm the age of customers. The ban won’t be “appropriate” whether it is unworkable or simple to thwart.

Moreover, there are views {that a} ban may hurt youngsters and breach their human rights. For instance, social media may give some youngsters entry to on-line communities that alleviate emotions of isolation and alienation. If a ban considerably harms youngsters, it’s not an appropriate or rational strategy to shield them.

Second, is the ban is important for attaining the aim? Or are there different methods of attaining the aim that may impose a lesser burden on political communication?

Notably, a parliamentary inquiry, which tabled its report on the affect of social media on Australian society on November 17, didn’t advocate a ban. As a substitute, it favoured the imposition of an obligation of take care of on-line platforms to take steps to forestall hurt to customers. Parliament’s personal investigation concluded that much less drastic means may suffice to guard youngsters, which signifies the minimal age requirement may fail the take a look at of necessity.

Third, the extent of the affect on political communication is weighed in opposition to the significance of the aim of lowering hurt to youngsters. The potential affect on the movement of political communication is very large, given an enormous age group will likely be excluded from utilizing most social media, in order that aspect of the equation ought to carry appreciable weight in any “balancing” train.

The invoice, if handed, is arguably susceptible to failing all three steps of the proportionality evaluation. It solely must fail one to be invalid.

A invoice that’s ripe for constitutional problem

The IFPC has been one of the vital litigated facets of the Structure up to now three a long time. The overwhelming majority of impugned legal guidelines have survived problem as a result of they’ve been discovered to cross the take a look at of proportionality.

But this invoice seeks to chop a large swathe of political communication out of existence in Australia. It may feasibly be a uncommon instance of a legislation that disrupts political communication to such an extent that it’s invalid. Social media corporations will certainly mount a constitutional problem to seek out out.