Australia's Under-16 Social Media Ban: Why the High Court Will Likely Let It Stand

This week in Canberra, all seven justices of Australia's High Court sat for two days to hear the first constitutional challenge to the world's first ban on social media accounts for under-16s. The hearing ended on Wednesday with the decision reserved and no date given. The case is Reddit, Inc. v Commonwealth of Australia, joined with a challenge from the Digital Freedom Project, and its outcome will be watched well beyond Australia — because if the ban survives, a dozen other countries are waiting to copy it.

The law itself is barely a year old. Part 4A of the Online Safety Act, which took effect on 10 December 2025, requires ten named platforms — Facebook, Instagram, Snapchat, Threads, TikTok, Twitch, X, YouTube, Kick and Reddit — to take reasonable steps to stop Australians under 16 holding accounts. The government has since doubled the maximum fine for non-compliance to A$99 million per breach, and the eSafety Commissioner is preparing an enforcement case against some of the biggest platforms. Every state and territory solicitor-general has intervened on the Commonwealth's side.

The challengers' argument rests on the implied freedom of political communication — the principle, read into the Constitution by the High Court itself, that laws cannot unduly burden political debate. Reddit's senior counsel, Perry Herzfeld, called the legislation "ill thought out" and "inept", arguing it produces the worst possible outcome: children lose access to safe content while still being exposed to harmful material through adult accounts they can view without logging in. Constitutional law professor Anne Twomey has made the sharper version of this case: the ban may fail the proportionality test if its practical effect does not match its purpose — restricting children's speech without actually shielding them from harm.

The Commonwealth's answer, presented by Joanna Davidson, is that the burden is small and the purpose is legitimate. She listed seven risks in platform design — addictive features, disrupted sleep and depression among them — and argued that developing brains are especially vulnerable. Monash constitutional law professor Luke Beck, who expects the challenge to fail, puts the point more bluntly: 13-, 14- and 15-year-olds were not doing much political communication on social media before the ban, under-13s were already barred by the platforms' own terms of service, and the law bans accounts, not the internet or group chats. The government also notes the ban is only one piece of a larger program, with a digital duty of care bill now before parliament.

I think Beck has the better of it, and I put the chance the court upholds the ban at 65%. The implied freedom is a narrow instrument — the court has struck down laws under it only rarely, and it has been consistently deferential where parliament acts to protect children, in the same way it has accepted restrictions on films, games and tobacco packaging. The unanimous intervention of the states is also a signal: this is not a partisan law, and the court knows it. But 65% is not 90%, and the honest uncertainties matter. Twomey's mismatch argument is the real threat — if the court finds the ban does little to reduce harm while cutting off a channel of speech, proportionality fails. The court could also strike down only part of the scheme, or decide the Digital Freedom Project lacks standing while still hearing Reddit. And a seven-judge bench that reserves its decision is a bench that is taking the challengers seriously.

Whatever the court decides, the stakes travel. Britain, the European Union and several US states are all debating age-based restrictions of their own, and Australia's experiment is the test case they are all watching. If the ban survives, expect copycat laws within a year; if it falls, the global conversation about children's safety online resets toward regulating platform design instead of banning ages. Either way, the judgment — expected in the coming months — will be the most consequential ruling yet on whether a democracy can simply switch its children off from social media. My prediction: the court upholds the ban, in a judgment handed down by 30 June 2027.