Robert French on the realities of a social media age ban

The Albanese government has announced it will ban children from accessing social media. This follows work by the South Australian government, which commissioned a report on implementing a ban.

That report was done by Robert French, the former High Court Chief Justice and current chancellor of the University of Western Australia. Though it was prepared as a basis for SA legislation, French has provided a model that could be used in drafting a federal law.

French joined the podcast to discuss his model.

On the ban itself, French outlines some of the reasons for the policy:

There’s no doubt a very strong argument being advanced by the proponents of the ban that the harms that come to the child come from both the information or harmful information to which a child might be exposed, but also from the very nature of the medium itself. So if you ban somebody from a particular medium because it’s addictive or has other harmful side effects, collateral damage as it were, it’s not the information so much that is being restricted.

While framing a model for SA, French says he kept the door open for federal legislation:

In devising a model for state legislation, I was very conscious of the importance of compatibility so far as possible with the existing Commonwealth legislation. And to use language very similar to that used in the Commonwealth legislation so that if there were a move in the direction of a national scheme, the proposals in the legislative model in the report could be applied or modified, as the case may be, to the national legislation, which is the National Online Safety Act.

While French acknowledges possible privacy concerns, he explains why the long-time storage of personal data would be unnecessary:

I think the question of privacy depends upon what information is handed over to whom in order to verify or assure that they are of the appropriate age range and for how long the recipient of that information is entitled to keep it.

So that sort of stuff can be covered under the Privacy Act. And of course, once you’ve got a person registered as of a certain age and if, provided your subject satisfies as the same user, then the need for repeated use of the personal data should be unnecessary.

Now that the federal government has committed to legislating a ban, French says a state law wouldn’t be necessary:

The federal legislation can pretty well cover the territory. […] The constitutional powers of the Commonwealth in this area are pretty broad, and I suspect that there won’t be any need for top-up or supplementary legislation from within the states.

I should make the point that [SA] does not have its legislation ready to go at this point. What it has from the report is a legislative model. And, this is an approach to how you could frame a law that would have the effect that you’re looking for.