U16'S go to the High Court

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Episode Transcript

Speaker 1 (00:00):
Fifteen year old Noah Jones and Macy Nayland Marny are
two teenagers taking the under sixteen social media band to
the High Court. Here's what Noah Jones had to say
on the Today Show.

Speaker 2 (00:10):
I'm grateful to be the plaintiff for young Australians having
like the right to free speech and I feel with
this band in place will be invisible. We won't be
able to share our views or opinions, and we won't
be able to hear political views or opinions, so we'll

(00:30):
just be isolated and we'll be isolated from our country
and the rest of the world.

Speaker 1 (00:35):
He is a professor of constitutional law at Monass University.
Luke Beck joins us. Good morning, Luke, how are.

Speaker 3 (00:40):
You you know, I'm good. Thanks for having me our pleasure.

Speaker 1 (00:43):
Now, can you tell us a little bit about firstly,
the under sixteen challenged by these teenagers, what it means
to take it to the High Court. Firstly, to get
it to the High Court is a case in itself.
Can you explain it for us?

Speaker 3 (00:55):
Yeah, So the under sixteen social media and what everyone's
care it isn't really a ban on social media. What
the law says is that social media platforms must take
reasonable steps to prevent under sixteens having an account. Now
that doesn't mean they can't use social media. Lots of
social media platforms allow you to use it in logged

(01:18):
out mode, and under sixteens will be able to continue
to do that, and already at the moment before the
law comes into effect next Wednesday, most social media platforms
terms of service say that under thirteens aren't allowed to
have an account, and that's a result of an American law.
So the practical effect of this law is that thirteen,
fourteen and fifteen year olds won't be able to have

(01:39):
an account anymore, but they'll still be able to use
social media in logged out mode. And so this case
in the High Court is saying that the social media
then on accounts for under sixteens is unconstitutional because it
impermissibly burdens the implied freedom of political communication. I think

(02:00):
that's a rather weak case and we've got to look
at it through the right lens. So in the Australian
constitutional system there's no sort of sense of individual rights
as there is in the United States. And the issue
here is not free speech, it's political communication, which is
much narrower so our constitutions. The Australian Constitution says that

(02:23):
members of Parliament must be chosen by the people, and
the High Court says, in order for that process of
choosing to be meaningful, we need to have freedom of
political communication. And whenever you get a law that has
the practical effect of reducing the overall amount of political
communication that can take place in Australia, you have to

(02:44):
ask whether the law has a legitimate purpose and whether
the law is proportionate. Now, this social media, this law
restricting accounts for under sixteens, would only have a really
minor or slight reduction in political commuit because whilst a
lot of teenagers use social media a lot of the time,

(03:05):
most of what they're doing on social media is not
engaging in political communication. It's a whole bunch of other stuff,
but a tiny little bit of it might be political communication.

Speaker 1 (03:13):
Isn't that enough?

Speaker 3 (03:14):
Yeah, So that's enough to say there's a burden on
political communication. There's a light reduction in the overall amount
of political communication that takes place in Australia. But then
you have to ask, well, is there a legitimate purpose?
And yes, there is the purpose of this law is
to protect the health and wellbeing of young people in
a way that's quite similar to lots of other existing laws,
the way you already have in Australia. They say that

(03:35):
cinemas are not allowed to sell tickets for teenagers for
certain rated movies. We say that shops are not allowed
to sell certain video games to teenagers.

Speaker 1 (03:43):
But that's a censorship thing, like you know you're looking online,
doesn't mean you're looking at those sorts of movies or
rated down products.

Speaker 3 (03:51):
And so then that takes so there's a legitimate purpose
taking their health and well being. And in getting to that,
the government looked at reports from the Queen's Plan Health,
Queensland Health Chiefs Health Officer, and research out of the
United States and the United Kingdom about the negative mental
health well being impacts that excessive social media use has
on young people, and of course the algorithms that target them,

(04:15):
and of course, and so then you've moved to the
question of whether what the law is doing is proportionate
to achieving that purpose, and the Department of Prime Minister
and Cabinet's Office of Impact Assessment looked at a bunch
of different options. Forget it, for trying to achieve that
purpose of protecting the health and wellbeing of young people online,
and they and they came to conclusion that this is

(04:36):
the most effective way of doing it. And we're saying
that other countries around the world are looking to copy
Australia's law, and Malaysia has a copy of Australia's law
that takes effect next year, and a believe it.

Speaker 1 (04:45):
But also the US argues against it as well. You know,
I mean it's very true. I guess, I guess.

Speaker 3 (04:50):
I mean, we've seen it all, We've heard you know
what's happening.

Speaker 1 (04:53):
My question for you very quickly is because we'll have
to wrap it up, is it? I mean, how strong
do you think their case is? How do you think
this will go?

Speaker 3 (04:59):
I think that will lose because the reduction in political
communication is really small, and there's quite a compelling public
interest purpose here. So whatever free speech arguments you might
want to make, that's not the constitutional issue. The issue
is the reduction in political communication. And there's only tiny
reduction in political communication for a really legitimate purpose in

(05:20):
a way that's quite similar to lots of existing laws
we already have. So I don't think this case is
going to get anywhere, all right.

Speaker 1 (05:26):
We get to be seen, yet to be seen, see
what comes out of it. Thank you so much, my pleasure.
Professor Luke Beck Marny, Professor of Constitutional Law at Monas University,