Media

Wednesday, 21 May 2025

Australian Lawyers and Australian Democracy in 2025

The Honourable Justice David Mossop delivered the 38th Annual Sir Richard Blackburn Lecture during Law Week on 20 May 2025.

The 2025 Blackburn Lecture addresses the external challenges to Australia's democracy, in particular those arising from the changes in the information landscape. 

Introduction

In the first Blackburn Lecture in 1986, Sir Richard Blackburn said that the lecture named in his honour must stimulate thought. He said, “A lecture is not a means of imparting information; it is, or should be, a means of stimulating the minds of those who already have enough information to make the lecture worthwhile.”

Today, I wish to stimulate you to think about the increasingly uncertain and potentially hostile information and international relations environment in which Australian democracy exists and what lawyers can do to secure that democracy in the remaining decades of the 21^st century.

Let me briefly describe two historical examples that provide the context for today’s information landscape. Each of them should seem like old news in the context of the rapidly changing information environment.

The first example is an example of foreign interference in democratic processes. In 2019, Robert Mueller, a former head of the FBI, published a report on Russian interference in the 2016 US Presidential Election^i. That report covered a wide range of activities undertaken by Russia. For present purposes, I want to focus on the longer-term contamination of the information environment by the Internet Research Agency. That was an organisation funded by Yevgeny Prigozhin, then an ally of the Russian president. The activities of the Internet Research Agency commenced as early as 2014. It involved employees of the Internet Research Agency using fictitious US personas operating social media accounts and group pages designed to attract US audiencesⁱⁱ. These accounts and group pages addressed divisive US political and social issues. They falsely claimed to be controlled by US activists. Having established large US audiences, they then supported the Trump campaign and disparaged candidate Hillary Clinton. They took out paid advertisements on social media and communicated electronically with real-world political activists seeking to coordinate political activities. Mueller reported that multiple Internet Research Agency controlled Facebook groups and Instagram accounts had hundreds of thousands of US participants. Internet Research Agency-controlled Twitter accounts had tens of thousands of followers, including multiple US political figures (such as Donald Trump Jr, Eric Trump, Kellyanne Conway, Brad Parscale and Michael Flynn), who retweeted Internet Research Agency created content.

The second example to which I will draw attention is illustrative of the power of the content of social media algorithms to affect political debate.

Following the end of military rule in Myanmar in 2011, Facebook became an extremely important social platform in that country. In 2016 and 2017, Facebook’s business model was focussed upon maximising user engagement. The algorithm suggesting content to users was adjusted so as to maximise time spent on the service. Each time a video played, it was, in effect, an experiment on user behaviour. Content demonstrating outrage generated more user engagement. In Myanmar, this drive towards user engagement led watchers of videos toward more extreme content, in particular anti-Rohingya content, contributing to social divisions and making anti-Rohingya ethnic cleansing by the army or Buddhist extremists more likely. Contributing to the trend towards extremist content was the fact that 53 percent of Facebook videos in Myanmar at the time were being auto‑played for users, having been selected by the Facebook algorithmⁱⁱⁱ.

The important point to note about this is that it was the commercial goal of Facebook – to maximise user engagement – which, through the algorithms governing what content was offered to individual users, generated the byproducts of social division and a tendency towards extremism. It was not intentional, but a consequence of the curation function being targeted to particular commercial goals. However, it was very definitely a curation function similar to that of a newspaper editor, but being targeted at an individual user with a detailed history of that user’s past interests and behaviour on the platform.

As I have indicated, both of these events are old news. Since then, the most obvious advance in information technology is the development and widespread distribution of generative AI, that is, artificial intelligence models which generate language or visual content^iv.The capacity of AI systems in the very near future is difficult for non-experts to appreciate, although experts indicate that the field is rapidly advancing in ways which are likely to have widespread and fundamental effects^v.There is strong competition between nation states for dominance in the field of AI. There is also strong commercial competition favouring rapid advances. Control over AI models is likely to be concentrated in a small number of companies outside Australia, or in nations other than Australia.

If we combine these three features:

1. foreign interference illustrated by the Russian influence campaign described in the Mueller report;
2. the power of individualised algorithmic control of content illustrated by Facebook in Myanmar; and
3. the widespread deployment of generative AI,

it is possible to recognise the significant potential problem that modern information technology in an increasingly unstable international environment could pose to a small and naïve democracy like Australia. That is particularly so if a sophisticated and well‑resourced entity or nation state wished to make a concerted effort to influence the outcome of the Australian democratic process. A well-targeted intervention in the political process could change the outcome of an election. Having regard to the resources devoted to other reported espionage and foreign interference activities targeting Australia^vi, interference in the political process through information operations would be a rational tool to use.

Australian democracy is pretty good

Let me tell you a few things that you already know about Australian democracy. We have a spacious, sunny, relaxed, natural resource-rich country. As a result of being a relatively small country, a relatively long way from anywhere, our democracy has largely been sufficiently protected by geography.

The benefits that Australian democracy delivers to its people are wonderful. We have a highly regulated, safe society and high standard of living compared to Australians in the past or to countries elsewhere in the world today. We tend to take all of this for granted. Our children, who have little perspective that it might be, or have been, otherwise, even more so. At the core of this are questions of law and economics. Obviously, in this talk I am focussing on law.

Australians have a lot to be proud of about Australian democracy largely because, in the past, good decisions have been made in constitutional design and legislative choice. As a result, we have:

1. compulsory voting^vii;
2. a single federal law regulating the conduct of federal elections^viii;
3. an independent electoral commission, so that elections are conducted without gerrymandering and/or voter suppression^ix;
4. preferential voting^x;
5. a requirement that ministers be members of Parliament^xi;
6. a significant degree of public funding for federal elections^xii;
7. laws requiring disclosure of donations^xiii;
8. laws providing some accountability for political statements^xiv.

While definitely having its imperfections, when the functioning of our democracy is compared with others, it can be seen that we are doing pretty well. Obviously, the situation over the last few years in the United States of America would tend to reinforce our smugness about the relative health of our democracy.

One of the distinctive features of Australian democracy, which it is important that I spend a little bit more time on, is that there are very few constitutionalised rights^xv. There is a protection against the acquisition of property other than on just terms and, since the early 1990s, the implied freedom of political communication. Other constitutional rights such as freedom of religion^xvi and the protection of trial by jury^xvii are, because of the manner in which they have been interpreted, of less practical significance. Because of the limited scope of constitutionalised rights, social progress and the protection of individual rights has had to be driven by democratic means rather than by attempts to enforce or reinterpret constitutional standards. This has positive consequences for the work of the judiciary, reducing the potential for politicisation and avoiding a culture of judicial celebrity^xviii.

If one compares Australia to the United States and asks where and how the debates about contentious issues have been worked out, Australia is notable for having resolved such issues through the democratic and legislative process rather than by the interpretation or reinterpretation of constitutional standards. While many lawyers have bemoaned the lack of constitutionally entrenched rights, this is a strength of Australian democracy rather than a weakness. It means that hard social problems are worked out slowly and messily via the democratic process rather than being pronounced from on high by judges interpreting a constitution. That messy democratic process is not attractive for rights‑focussed lawyers because it occurs outside the legal system where they are comfortable and subordinates their intellectual skills in constructing legal theories to the less glorious skills involved in the democratic process: persuading ordinary people and ordinary legislators about what is right or wrong. However, it means that, when social questions are worked out, the solutions reached are more likely to be enduring because the whole of the population (or at least a majority) has been brought along with the social change and owns the result. As illustrations of the differing approaches, compare, for example, the Australian and United States approaches to abortion and gun control.

This significant feature of our constitutional arrangements means that, both in a constitutional and cultural sense, the focus must be upon using the underlying democratic processes in order to achieve whatever social conditions we want. We are not dragged down by dead language of the “founding fathers” but have to work out our own positions on contentious social issues, even if the process is messy and social progress is slow.

This characteristic of our constitution makes it all the more important that we cultivate the conditions in which democracy can work.

The changing environment

The environment in which our happy democracy survives is changing in a number of significant respects. I could give you a chronology of the years since the collapse of the Soviet Union, but it is probably more useful if I describe the changes thematically.

The first theme is the manifestation of environmental constraints. Climate change, first coming to prominence with the first report of the Intergovernmental Panel on Climate Change in 1990^xix, will continue to be a destabilising force on populations and governments in a multitude of ways. It operates in a context where the global population, having been around 1.6 billion in 1900, doubled from 4 billion to 8 billion people between 1974 and 2022 and is, manifestly, not environmentally sustainable. As a consequence, even leaving aside the fundamental changes brought about by climate change, environmental systems in Australia, in our region and around the world continue to incrementally break down.

The second theme is the changing behaviour of powerful nation states. The rise of China is obviously significant, particularly since 2012 after the current leader came to power, after which it has adopted a significantly more aggressive posture in international relations^xx. In the period since 2015, there have been the challenges to democracy in the United States since the current president became a political candidate. Since 2008, when Russia invaded Georgia, there has been a significant willingness by that country to challenge fundamental aspects of a rules-based world order, most obviously in relation to Ukraine since the full-scale invasion in 2022.

The third theme relates to the information environment which has dramatically changed. Just remember the speed of change. I first used the World Wide Web, what we now think of as the Internet, in 1996. Facebook became available to the public in 2006. Apple’s iPhones were only invented in 2007. TikTok only started in 2016. ChatGPT was only released in 2023. There is now a race to develop stronger and stronger AI models and dramatic changes can be expected in the next few years. As a result of the rise of the internet and social media, the business models for newspapers and other traditional media broke down as advertising revenue shifted online and news came to be delivered through social media apps. The internet has transformed global commerce over the last 30 years. Artificial intelligence will do the same, but will not take as long.

All of these changes have occurred on top of challenges of better-known types such as the 2007-09 Global Financial Crisis, the COVID-19 pandemic and the usual sources of tension between people and nations, all of which put strains on social cohesion.

Gardens need maintenance

I have outlined some of the external facts about the global situation that would suggest that we are in a time of significant instability in global affairs which is unlikely to abate in the foreseeable future.

Those circumstances mean that Australia is likely to be challenged by external forces, most obviously other state actors, but also by larger trends including the mass movement of people in response to pressures arising from population growth, climate change and government instability. Those challenges do not have clear analogues in Australia’s history from which we may learn an appropriate response.

The information environment within Australia will determine to a significant extent whether and to what extent non-Australian actors determine Australia’s response to those challenges. While the fact that Australia is an island and a long way from anywhere has been a significant protective factor in the past, that is no longer as significant as it once was, particularly in the information space where hostile information operations can easily be conducted from anywhere in the world.

That brings me back to my earlier point about the potential for external interference using the combination of algorithmic control of content and generative AI. Consider the following three points.

Firstly, the costs of such influence operations have decreased, and their potential scope expanded as a result of the capacity of generative AI to generate content. You will all have had experience with the incredible capacity of AI to generate very readable content. There is no doubt that it can be used to generate vast quantities of subtly (or unsubtly) skewed information designed to achieve a particular foreign interference goal. Non‑expert humans will shortly not be able to tell whether that information, whether delivered in writing, as speech or as video, is generated by AI or humans.

Secondly, consider how disinformation can be specifically targeted at the predispositions of individual voters by reaching them through the social media apps that have been accumulating data on them for years. No need to produce a broadsheet newspaper targeted at a general audience on the right or the left. Micro-targeting is now possible. It was a feature of the recent Australian election campaign when deployed by mainstream political parties. The combination of AI and the ability to segment the population using data that they have shared online dramatically reduces the cost of creating plausible disinformation and running a campaign based upon it to influence Australian elections.

Thirdly, the reliance upon social media and portable devices for news has increased dramatically. On average, between 2020 and 2022, an Australian adult spent 63 hours per month or just over two hours per day on the major social media platforms^xxi. In 2023, 46 percent of 18–24-year-olds nominated social media as their main source of news^xxii. Half of all adults used social media as a source of news and 25 percent their main source^xxiii. New voters are now digital natives. When considering the 2028 election, just consider that new voters, now 15 years old, were all born after the invention of the iPhone and their brains have been marinating in social media since they were old enough to use a screen. What proportion of them will derive their knowledge of news and current affairs from social media?

The reduction in cost, the capacity to segment the population so as to individually target narrowly defined groups of voters, and a generation reliant upon non-traditional sources of news provides fertile ground for foreign influence operations.

However, deliberate campaigns of disinformation by state actors are only part of the problem. The algorithms that control the streams of information flowing to voters may deliberately or unintentionally channel them towards material that will harm democracy or influence our political process.

So far as unintentionally harming democracy is concerned, consider the Myanmar example referred to earlier. The algorithm certainly drove up engagement which is what the engineers were instructed to do, but, by enhancing social divisions, had significant political consequences in Myanmar.

More generally, it must be remembered that there is no necessary congruence between the interests of the social media platforms (and hence their algorithm design) or AI designers and the interests of a functioning Australian democracy. The algorithms are performing a curation exercise similar to the editor of a newspaper. Yet, unlike the editors of newspapers, they are performing a bespoke curation exercise for every one of their users and it is not easy to get visibility of each such curation exercise. There is no necessary coincidence between the algorithmic goal of maintaining user engagement and the democratic goal of fact-based, civilised debate about complex policy questions. Yet, on the other hand, the level of engagement is extraordinary. The average figures referred to earlier hide the higher levels of use among younger age groups. Such domination of a society’s collective attention is undoubtedly going to change the shape of its democracy.

So far as intentionally harming democracy is concerned, one of the concerns in the United States about TikTok was the accumulation of data on individuals that would allow, if the Chinese government exercised control over the platform, very accurately targeted influence operations on the US population. This is a proposition that applies generally in relation to the data collected and the potential to target very specifically defined segments of the population with messages that influence their political behaviour. It is obviously most acute where a person or government who wishes to influence political behaviour has control of, or sufficient influence over, the social media platform in question. In the current environment, specific examples should come to mind. In the near future, the capacity for influence will be increased as a result of the concentration of control over the underlying technology.

In this environment, it cannot be assumed that a well-functioning democracy is the natural order of things to which society will default in the absence of any active measures to defend and cultivate democratic processes.

I suggest that it is useful to think about democracy as a garden. What you have in your garden will depend upon choices you make. Those choices will include the basic structure – akin to a constitution – but also upon a myriad of smaller decisions about what to plant where and how to maintain things in the state you want. It would be wrong, however, to assume that the basic structure of the garden is enough to give you the garden you want. Without active maintenance, it will revert, over time, to a default state, but that will not be a neat garden with lawn or fruit trees or other desirable features. It will become overgrown with weeds, chaotic, unstructured and may be dominated by a single pest plant.

My fundamental point is that, just as gardens need active management, so too does democracy.

Nobody has an answer

Now, having painted for you that rather bleak picture, I am afraid there is more. Nobody has a simple answer to the challenges presented by the changing information environment. The problems are very new, widespread, touch on sensitive issues and hence are difficult to grapple with. Nobody has a grand theory as to how things will develop. It is difficult to predict how they will manifest themselves in a manner that will require immediate decisive action. The shouty and divisive nature of debate on social media itself makes problems more difficult to solve.

Further, when thinking about what the solutions might be, it is necessary not to fall into the lawyer’s mindset. When the only tool you have is a hammer, there are strong incentives to characterise every problem as being a nail. When you are a lawyer, there is a temptation to see every problem as one that can be solved by another law or legal theory.

The point of this talk is to suggest that lawyers do have a role in solving these problems, but they are not the solution, only part of a solution.

In pollution regulation, it is common to refer to ‘end of pipe’ solutions, namely, solutions that can be implemented at the end of the pipe after the pollution has been generated. While necessary in many cases, they are not as good as solutions that reduce or eliminate the problem in the first place. In the regulation of democracy, end of pipe solutions, which lawyers are very good at designing and thinking about, have their role to play, but it is also necessary to look further upstream in ways that I will talk about next.

The five topics on which I will say something about lawyers and democracy are:

1. the judges of the High Court;
2. lawyers in their daily work;
3. government lawyers;
4. lawyers as enlightened leaders; and
5. democracy education.

The High Court

First, the High Court. When talking about lawyers, it is appropriate to start with the magnificent seven; the very hard workers across the lake who shape our constitution and, in so far as they administer the constitutional freedom of political communication, significantly influence the shape of our democracy. Their lives are inconsistent with spending much time on social media, even though they will know, in a general sense, that it is a thing, and that other people use it.

Their predecessors on the High Court recognised in 1992 a constitutionally protected freedom of political communication^xxiv. That was at a time when there was a happy stability in the information landscape. News came in newspapers and on free-to-air TV. That had been the case for the previous 30 years. Concentration of media ownership was an issue which was addressed in a manageable, if not uncontroversial, way. Change was not on the horizon. The World Wide Web did not exist. I will repeat that. The World Wide Web, that part of the internet which we are all familiar with, did not exist. There was still room for the 19^th century view that free speech involved people at speakers’ corner talking to a crowd and, if they said something that was false, the solution was more speech rather than any government regulation of falsity.

The current formulation of the test against which laws are judged by the High Court for compatibility with the implied freedom of political communication involves a structured proportionality test as articulated in McCloy v New South Wales^xxv and slightly amended in Brown v Tasmania^xxvi. After considering whether a burden is imposed upon political communication, and whether the law does so for a legitimate purpose consistent with the constitutionally prescribed system of representative and responsible government, the test involves, as its third step, asking whether the law is “reasonably appropriate and adapted” to advance the law’s legitimate object. The “structured proportionality” elaboration of this test involves asking whether it is “suitable”^xxvii,“necessary”^xxviii and “adequate in balance”^xxix. This is all a very significant judicial elaboration upon the simple words in ss 7, 24 and 128 of the Constitution, but that is a minefield I will not step into today.

My point is that, within the framework of representative and responsible government, there is room for some government control over information in order to ensure that democracy works well and is not distorted by foreign states, foreign actors, or the commercial interests, as reflected in their algorithmic curation, of the influential information providers. As a matter of generality, this statement is unlikely to be controversial. As always, the devil is in the detail. The judgments in LibertyWorks Inc v Commonwealth [2021] HCA 18; 274 CLR 1 provide an example of both propositions. They also provide an example of just how vulnerable constitutional validity is to the varying responses of different judges to the third stage of the test, whether described by reference to the structured proportionality test or otherwise.

In addressing the issue of the implied freedom of political communication in the era of prolific social media algorithmic curation and artificial intelligence, the members of the High Court are unlikely to have, from their own experience, an understanding of the information world lived by the average 15 to 25-year-old, or just how much misinformation is out there on the internet for those who do not actively resist it.

Judges of the High Court are more likely to use the internet like old people (i.e. anyone over 40), appreciating the capacity to digitally subscribe, from the comfort of their couch, to the Washington Post or the New Yorker magazine, or to read the latest curiosity from the Supreme Court of the United States the day after it is delivered. Unlike new voters in the 2028 federal election, they are not spending four hours in bed each night watching whatever the algorithms at TikTok, YouTube, Instagram, Snapchat or X send to their brains. Their view of the information landscape may well be very different from the reality for most Australians. This may affect their approach to the perception of the challenges faced by democracy from the new information age and, hence, to their assessment of the boundaries of the implied freedom when assessing the validity of legislation.

Treating the implied freedom as a significant constraint on legislative choice runs the risk of taking an approach to its operation which precludes the capacity of the Parliament to address the challenges facing Australian democracy. The implied freedom should not prevent gardening so as to shape and strengthen that democracy against novel challenges.

Like all judges, the judges of the High Court may be educated about context by evidence and submissions, but no one should assume that this is not necessary. That may not be easy because of the limitations upon their own personal experience of the emerging information landscape.

In short, the judges of the High Court should give significant weight to the need for gardening, in the sense that I have explained earlier, and lawyers appearing there should be conscious of the need to educate them about the need for gardening.

Lawyers

Next, I turn to lawyers generally. Obviously, this is a broad class of people who do lots of different types of legal work. Many will not spend much time thinking about the state of democracy as distinct from their next court deadline, their billable hours target or their next difficult client.

Let me reassure you. Doing your job in a manner that makes the legal system work is a good thing and a small but important contribution to Australian democracy. There are undoubtedly problems within the legal system, most obviously in terms of access to justice when that involves engaging the services of very expensive professionals. However, the legal system as a whole still reflects the goals of the fair and civilised administration of justice. While, inevitably, there is built into the legal system human fallibility and power imbalances that reflect those that exist in society more broadly, rationality and substantive fairness are still important, the more so as you get closer within the legal system to a court.

Making the justice system work is important. Judicial institutions can only remain effective if the culture of respect for judicial decisions is maintained^xxx. Making justice deliver, and hence reinforcing confidence in the operation of the legal system in practice, is therefore important. Just as competence and impartiality on the part of judges are essential for the maintenance of judicial legitimacy^xxxi, so too is competence and respect for institutions on the part of lawyers.

Maintaining the culture of respect for judicial institutions contributes to maintaining societal acceptance of government institutions more generally. One of the features of social media is the potential for it to undermine institutions through misinformation and the tendency to encourage those at the extremes. Working competently and respectfully within the judicial system helps to protect against that undermining.

Taking care that, under your watch, the legal system continues to function is important. Chief Justice Gageler has described that, as a barrister, he acquired a 1200-year-old Tang dynasty porcelain camel^xxxii. It is about as old as the common law. He described himself as merely having custody of that object for a short period of time, and having the ambition to hand it over to someone who will care for it in the future. His ambition was the same with the common law: to be responsible for it for a short time and hand it over in good order to his successor. So too with Australian lawyers. If they can maintain a system of fair and rational justice, consistent with the rule of law, they will be helping Chief Justice Gageler with his porcelain camel. That is a contribution to Australian democracy.

Government lawyers

That brings me to government lawyers, whose role in democracy is somewhat more acute. This is a topic I have addressed elsewhere^xxxiii. The Robodebt Royal Commission subsequently addressed some particular circumstances which involved government lawyers.

The advice on the lawfulness of the conduct of the executive government given by government lawyers is central to democracy. Any erosion of the quality and integrity of the advice given by government lawyers would be a significant step away from a democratic system based on the rule of law. The reason that government lawyers remain so important is that a rhetorical commitment to the rule of law remains, to date, a central tenet of the offerings of all Australian political parties. In circumstances where a government decision is unlikely to be readily tested in court – and there are many areas where that is the case – the opinions of government lawyers determine whether the government can say that it is complying with the law or not. Those opinions are, therefore, very influential. The integrity of government lawyers and their individual and institutional capacity to say “no” is very important to the democratic system.

Finally on this point, I should mention the role of Law Societies, in particular, the Law Society of the ACT, in formally defining what professional integrity requires in the case of government lawyers. I note that, although the Solicitors Conduct Rules address the obligations of lawyers in private practice and government and non-government lawyers when in court, they fail in any practically actionable way to address the conduct of government lawyers providing advice to government outside the context of court proceedings. There is room for Law Societies to provide more guidance in this area, and that would be a useful contribution to Australian democracy.

Enlightened leaders

I have spoken about lawyers doing their job in a way that maintains public confidence in the legal system. I have spoken of the importance of government lawyers. Now I want to talk about the role of lawyers as enlightened leaders.

Lawyers as a class are well educated, well informed and privileged members of society. To a greater extent than other well educated, well informed and privileged members of society, they have an understanding of our system of government, the relationship between different levels of government and how executive government actually works. As a group they have a greater potential than, for example, dentists or accountants, to influence public debate about the shape of our democracy. They are able to influence that debate in a manner that makes the polity more or less able to address the changes in the information landscape, in particular, more or less able to address misinformation, disinformation and foreign influence.

For the last 800 years or so, the English legal system and its successors in Australia have been defining the powers of the state as against the individual. That remains a never-ending issue. Much of the legal profession is involved in criminal law, which involves, on a daily basis, the competition between the powers of the state and the rights of individuals. Understandably, their view of democracy is affected by their work and the constant competition between state power and the interests of individuals.

Because we have been so happily isolated by geography from external threats during the history of the nation, there has been little to change the focus of the legal profession from defence of the individual against the state to the need to make our democracy more robust to face the challenges of the 21^st century. My hope is that the legal profession as a whole can turn its attention to what is needed to make Australian democracy stronger. That does not mean a capitulation to state power, but rather paying more attention to what a small democratic nation needs to do to protect itself in an uncertain and potentially hostile global and informational environment.

I want to make particular mention of one group of lawyers doing good work: those at the Centre for Public Integrity, an independent private body whose focus has been on issues such as the National Anti-Corruption Commission. It has provided members of its board as commentators to the media to help educate the public on issues relevant to integrity in government. It has proposed both end of pipe solutions, such as the National Anti-Corruption Commission, as well as upstream measures to enhance government accountability^xxxiv. This type of advocacy and education is important because it contributes to trust in government institutions, something which is essential for democracy to work.

Democracy education

Finally, and probably most importantly, is something which does not necessarily involve lawyers directly, except as persons who might use their influence to achieve it: democracy education.

Since 1973, the voting age has been 18 years^xxxv. The voters in the 2028 election are now 15 years old and likely to be in Year 10 at the moment. That means the most critical point at which there needs to be education for a functioning democracy, at least for new voters, is in the final years of high school, Years 11 and 12.

Similarly, it is in these two years that the brains of Australian teenagers are marinating in whatever the algorithms of YouTube, Instagram, Facebook, Snapchat, TikTok and X deliver to them. For hours at a time each day. Their news about politics in Australia and events around the world is selected for them and delivered to them by those same algorithms, much via influential social media personalities rather than traditional media. Any control on misinformation or disinformation is outsourced to the platforms that provide the stream of content. Each of these Australian youths will be being delivered a different stream of content based upon the algorithm’s knowledge of their past consumption history. Each will be able to be individually targeted in a manner that plays upon that knowledge to influence their political attitudes and their vote. Whether it is TikTok or one of the US‑based applications, Australia has, at the moment, minimal controls over what those algorithms do or the results that they produce.

So far as education of students about external threats to democracy, that seems to stop at the fourth line of the national anthem: “our land is girt by sea”. The fact that we are an island and a long way from anywhere is no longer sufficient to ensure our democracy continues to function effectively. Look at the national curriculum and you will find that democracy education occurs in Years 7 to 10. While this is laudable, it does not make a lot of sense to only teach students about democracy when they are at an age when they will be unaware of, and uninterested in, politics, let alone the need to protect Australian democracy from internal and external threats. Such limited attention is inadequate to make children aware of the information landscape in which they exist, including the significant potential for misinformation and disinformation.

Upcoming voters in Years 11 and 12 should be educated about the basic choices that they need to make. What is the difference between left wing and right wing? How much of the federal budget is spent on different things? What levels of government are responsible for what services? Do governments do more than what they say in their list of promises at elections? Is choosing who you vote for more significant than choosing your new pair of running shoes? What is executive power and how does it work? How does disinformation work? How do algorithms used by social media platforms work?

None of these things are likely to make a dramatic difference in the short term. Raising the knowledge level of the population about democracy is slow and difficult. An active program might provide some degree of inoculation against the forces that actively or inadvertently tend towards a decline in the quality of democratic processes. However, if society does not make an attempt to do so then the field is being left to those, whether actively malign or not, who have no interest in maintaining Australian democracy. This leaves Australia more vulnerable to external influence.

I admit that, while this is probably the most important solution, it is not an end of pipe solution. It is the much harder, longer-term process which involves more than just lawyers or elites more generally. Having said that, as I have pointed out earlier, enlightened leadership is important and a recognition by lawyers that democratic gardening is important is a good first step.

Conclusion

In the absence of any uplifting conclusion, I will summarise what I have said today:

1. The global landscape has become more threatening for Australia than in the last thirty years.
2. The information landscape has become more volatile due to the algorithmic curation of social media and the decline of traditional sources of news.
3. There is significant potential for foreign interference or the decline in democratic processes through algorithmic control of news by decision-makers outside Australia, and the generation of content using AI.
4. Australian lawyers need to be aware of these changes to the environment in which our democracy exists. Lawyers need to recognise the need for democratic gardening, namely the taking of active measures by Parliament to preserve and shape the democracy. Once the need for democratic gardening is recognised, there are a variety of ways in which lawyers can contribute to the maintenance of our democratic system.

My final point: it may well be that it is only when there is some shock to the system – equivalent to the Russian campaign of interference in the lead up to the 2016 election in the United States – that these issues receive greater prominence. Hopefully, in accordance with Justice Blackburn’s mandate, I have stimulated you to consider them before that occurs.