Federal Communications Minister Anika Wells is facing a Senate challenge to her decision to block access to documents that could reveal what the government knew about the constitutional validity of its social media ban before introducing it.
Wells has refused to provide the documents on public interest immunity grounds, claiming that their release would compromise the government’s position as it defends two High Court challenges to legislation that give effect to the ban.
However, Western Australia Senator Fatima Payman, who moved the original motion for the order in the upper house last November, has told iTnews that she intends to challenge Wells’ claim in a fresh motion to be put to the Senate next week.
The motion is expected to challenge the validity of Wells’ claim for public interest immunity based on Senate rules and require her to comply with the original order by February 6.
A spokesperson said that if the Wells continued to resist the orders, Senator Payman was prepared to take further action, including requiring the communication’s minister’s representative in the Senate to provide an explanation in the chamber.
“Senator Payman does intend to pursue compliance action in the Senate in relation to [the orders]. Senator Payman does not rule out further action in this area, if the Minister for Communications remains noncompliant, including requiring the Minister representing the Minister for Communications in the Senate to attend the Senate and provide an explanation of the failure to comply with the order for the production of documents,” the spokesperson said.
Wells was originally given until December 12 last year to table the documents.
The order focused on communications between Wells’ office and the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts, and the Office of the eSafety Commissioner.
Payman’s sweeping list of relevant documents included copies of all ministerial submissions, records of conversation, letters, briefing notes, meeting agendas, file notes, meeting invitations, meeting notes, meeting minutes, emails and electronic messages.
Payman’s aim was to find out what the government knew about the potential for a constitutional challenge to the ban before it pursued the new laws.
The High Court challenges concern amendments to Part 4A of the Online Safety Act 2021 which bring the new ban into effect.
In a letter to Special Minister for State Don Farrell and forwarded on to Senate President Sue Lines, Wells wrote:
“Noting Part 4A of the Act is currently the subject of legal proceedings before the High Court of Australia (Digital Freedom Project Inc & Ors v Commonwealth & Ors; Reddit Inc v Commonwealth & Ors), I claim public interest immunity on documents in scope of this order as their release would prejudice the Commonwealth’s position in those legal proceedings.”
It’s understood that Senator Payman will argue in her motion that the High Court is unlikely to be swayed by the contents of the documents and that greater public interest lay in revealing it for scrutiny.
The social media ban effectively blocks individuals under the age of 16 from using the platforms be requiring their operators to take reasonable steps to stop them having accounts on the services.
It applies to services popular with teenagers and children, including YouTube, X, Facebook, Instagram, TikTok, Snapchat, Reddit, Twitch, Threads and Kick.
Some platforms, including Discord, GitHub, Google Classroom, LEGO Play, Pinterest, Steam, WhatsApp, YouTube Kids and Roblox are not included in the ban.
Roblox avoided the ban by introducing a facial age verification mechanism that allows it to ensure that its in-game chat feature can only be used for conversations between users in appropriate age ranges.
Two teenagers under the aegis of the Digital Freedom Project (DFP) lodged the first High Court challenge to the ban.
The DFP is challenging the ban on grounds that it is overly detrimental to political communication freedom of Australia’s youth demographics.
Social media platform operator Reddit lodged a second challenge but on grounds that the ban is being imposed on its service incorrectly.
Reddit’s challenge focuses on privacy concerns with the ban, arguing that it is “forcing intrusive and potentially insecure” age verification processes on adults.
The government introduced the ban to prevent minors being exposed to harmful content on social media, including illegal content, hate speech, violent imagery and pornography.
iTnews has seen a copy of the DFP’s statement of claim which identifies the Commonwealth of Australia, eSafety Commissioner Julie Inman Grant and Wells herself as defendants.
The DFP alleges that the ban will interfere with and adversely affect the exercise of freedom of communication on governmental and political matters in Australia by individuals aged between 13 and 15 years old.
“For these reasons the minimum age provisions burden the freedom of communication on political and governmental matters embedded in the Constitution,” it wrote in its statement of claim.
It further argues that the minimum age provisions are not “reasonably appropriate and adapted” to address problems linked to the age group accessing social media content the government deems harmful.
The DFP argues that the ban “is an oppressive, overreaching and inappropriate means to achieve the object of child protection, and fails to impose any incentive for social media platform providers to ameliorate the actual harmful features of their services delivered to young Australians.”