Why Australia’s Social Media Ban for Kids May Breach Its Constitution

On 29 November 2024, the Australian federal Parliament enacted a world-first law, which imposed a minimum age for access to most social media sites in the country. The law will not come into full force for at least twelve months, to give time to social media platforms to devise appropriate methods for verifying the ages of users.

The law is aimed at protecting kids from harm, in particular to their mental health. However, critics have argued that harms to children might follow from the ban. For example, Suicide Prevention Australia has slammed the law, which will deny important mental health resources and support networks to some kids.  There is also a disturbing and absurd irony that 15-year-olds in Australia will not be able to access Facebook, but ten-year-olds can go to jail.

Yet the government, with support from the opposition as well as State governments, is determined to shut kids out of the social media space. However, it may be prohibited from doing so. The law might contravene the implied freedom of political communication (IFPC) in the Australian Constitution.

Children and Politics

Children are not apolitical. Significant “underage” political activists include Greta Thunberg and the global Schools Strike 4 Climate movement. Leo Puglisi is an Australian schoolboy who started the respected Youtube channel 6 News, which has always been staffed by teen journalists, when he was 11. Some of the most compelling footage of the Amsterdam football riots on 7 November involving Maccabi Tel Aviv supporters came from a 13-year-old Dutch journalist Ome Bender. Many children are of course politically engaged without being so prominent. And many adult political identities are forged in childhood.

Social media is the crucial means by which children communicate, debate and become galvanised about political issues. They pay little attention to legacy media such as newspapers or television news, which lack the interactivity and immediacy of social media. Furthermore, legacy media rarely publishes content from children, unlike social media.

The implied freedom of political communication

Notoriously, Australia’s Constitution contains few human rights. However, it has provided limited protection for free speech in the form of the IFPC since 1992, when the IFPC was first uncovered by the High Court of Australia.

The IFPC is not contained in the actual words of the Constitution. Rather, it is implied from those parts of the Constitution which guarantee representative and responsible government at the national level, as confirmed by a unanimous High Court in Lange v ABC (1997). Whilst the IFPC was controversial at its inception, the IFPC is now well entrenched in the Constitution.

When does the IFPC apply?

The IFPC applies where a legal “burden” is imposed on “political communication”. Hence, it protects only political speech rather than all speech. “Political communication” concerns matters that might affect one’s federal vote, one’s opinion of the federal government, and on proposed changes to the constitution. That definition from Lange (1997) has since been interpreted to encompass almost any political topic. Few cases have failed because the relevant communication was not relevantly “political”.

A “burden” arises where the “flow” of political communication is disrupted. The ban will disrupt the flow of political communication to children, as they will be excluded from social media platforms. Perhaps it is arguable, given the IFPC is drawn in part from constitutional provisions relating to federal elections, that such communication is not protected by the IFPC as children do not vote. However, in the Unions NSW cases, restrictions on donations from non-voters, namely corporations and trade unions, were found to breach the IFPC. Unlike corporations and trade unions, children are future voters. In any case, the freedom certainly applies to burdens on the flow of political communication from children, which affects anyone including adult voters.

It is clear that the IFPC is engaged by the social media age ban.

Limits to IFPC

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

First, one must establish whether the impugned law has a purpose which is compatible with Australia’s system of representative and responsible government. The purpose of protecting children from harm would satisfy this step. It is rare for the High Court to find that a law has an improper purpose.

The High Court then follows a three-step test of “structured proportionality”, a test largely borrowed from the German constitutional tradition. The High Court has adopted this approach to proportionality in the context of IFPC since McCloy v NSW (2015).

First, one asks whether the law is suitable for achieving its purpose. Laws fail this test if the law lacks a rational connection to the purpose. Here, a social media ban could be found to be suitable if there is good evidence that social media harms children.

However, there are concerns over whether a ban is workable, especially when we do not yet know how social media platforms will be verifying age. The ban will not be “suitable” if it does not work or is easy to circumvent.

Furthermore, as mentioned above, there is evidence of harms to children from a ban. For example, social media gives some children access to online communities which alleviate feelings of isolation and alienation: this can particularly be the case for those with diverse sexualities and gender identities, especially in remote and rural areas. If the ban significantly harms children, it is not a suitable way of protecting children from harm.

Second, the Court asks whether the ban is necessary for achieving the purpose, or whether there are ways of achieving the purpose which impose a lesser burden on political communication. On 17 November, less than two weeks before the law was passed, a parliamentary inquiry tabled a report on the impact of social media on Australian society. Notably, it did not recommend a ban. Instead, it favoured the imposition of a duty of care for platforms to take steps to prevent harm to users. The federal Parliament’s own investigation concluded that a ban was not necessary to protect children, which might lead the High Court to adopt the same conclusion.

Thirdly, the Court weighs the extent of the impact on political communication against the importance of the purpose of reducing harm to children. The impact on the flow of political communication is huge, given a large age group will be banned from using most social media, so that side of the equation should carry considerable weight in this “balancing” exercise.

Hence, the social media ban could plausibly fail each of the three steps in the test of structured proportionality. It only needs to fail one of the steps in order to be unconstitutional and thus invalid.

Conclusion

There have been many constitutional challenges to laws in the last three decades on the basis that they breach the IFPC. It is in fact one of the most litigated aspects of the Constitution. Yet the vast majority of impugned laws survive such challenges, as they almost always pass the test of proportionality.

However, this law cuts a giant swathe of political communication out of existence by kicking a massive age cohort off social media platforms. It might be a rare example that fails the proportionality test. Social media companies have the means and incentive to mount a constitutional challenge to find out; surely they are going to do so.

This blog is updated and adapted from an earlier piece in The Conversation.