Justice David Mossop of the ACT Supreme Court has issued a call to arms for lawyers generally, and the High Court in particular, to prepare for palpable threats to “a small, naive democracy like Australia”.

In a swingeing 38th Blackburn Lecture, delivered and seemingly ignored by the legacy media in May, and carried in full in the ACT Law Society’s recent edition of its tri-annual Ethos, Justice Mossop, a judicial officer for 13 years, described Australian democracy currently as “pretty good”.

However, via a combination of foreign interference and individualised algorithms, now supercharged by generative artificial intelligence, “a well-targeted intervention in the political process could”, he declared bluntly, “change the outcome of an election”.

He admitted he had no “uplifting conclusion” to the problems he outlined, but suggested lawyers had a duty to work to preserve what we had.

The scope of foreign interference should have been well aware to us all since the alleged Russian intervention in the 2016 United States presidential election, which helped cruel the chances of Democrat candidate Hillary Clinton.

The power of individualised algorithms was rarely better observed than in Myanmar when, absent evil intent, the Facebook model of maximising user engagement had a pivotal effect after the end of military rule in 2011.

“Content demonstrating outrage generated more user engagement,” the judge noted. “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 and Buddhist extremists more likely.” At the time, 53% of Facebook videos in Myanmar were auto-played, selected by the Facebook algorithm.

But the turbocharger was AI.

“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 …” Judge Mossop said.

“If we combine these three features:

“(a) foreign interference illustrated by the Russian influence campaign …

“(b) the power of individualised algorithmic control of content, illustrated by Facebook in Myanmar; and

“(c) 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 naive 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.”

Lawyers in their daily work, even simply by continuing to run hearings and sentences in the lower courts, performed a useful task in ensuring respect for institutions, but they could do more to be inspired and inspiring leaders and to drive democracy education.

Government lawyers had a role that was “somewhat more acute”.

“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,” Justice Mossop said. “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.”

But it was the High Court — “the magnificent seven …. the very hard workers across the lake who shape our Constitution” — which was especially in Justice Mossop’s crosshairs.

As far as they administer the constitutional freedom of political communication, they were central to our democracy.

But there was a big “but”…

“Their lives are inconsistent with spending much time on social media, even though they will know, in a general sense, that is a thing, and that other people use it,” the Judge said

Justice Mossop used an analogy of gardening throughout his address: “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 a myriad smaller decisions about what to plant where and how to maintain things in the state 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.”

The High Court needed to get its hands dirty to stop the noxious foreign weeds.

“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…

“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.”

Those appearing in the rarefied atmosphere had a special duty to educate “the magnificent seven”.

“In short, the judges of the High Court should give significant weight to the need for gardening … and lawyers appearing there should be conscious of the need to educate them about the need for gardening.”

The views expressed in this article may or may not reflect those of Pearls and Irritations.