Communications Minister Anika Wells will have sweeping new powers under Labor’s unveiled digital duty of care to determine which online services must comply, designate “harmful” features, and mandate the user-control tools tech giants must provide.
Online platforms will be forced to give Australian users a pop-up box to give them a clear choice on what content appears in their social media feed.
Australian social media users would be able to choose to see only posts in a chronological order from friends and creators they actually follow or continue to let the app use algorithms to recommend content.
Prime Minister Anthony Albanese said the initiative dubbed “My Feed, My Way” which gives Australians control over their social media algorithms would be central to the whole-of-internet changes.
Ms Wells said after receiving the algorithm opt-out notification, users would “have the ability to make that choice over and over”.
However, the draft legislation falls short of calls from safety advocates and the Greens for a mandatory non-algorithmic default feed — a measure that would require users to actively opt into or “turn on” the algorithm.
Greens Communications spokeswoman Sarah Hanson-Young said the government should ensure tech companies axe their “endless doomscroll” feature and vowed the Greens would push for amendments.
“We’ll be kicking the tires extremely hard on this draft legislation and negotiating as good as we can with the government to fix it,” she said.
The 72-page exposure draft has been long-awaited after it was first recommended in 2024 by a review of Australia’s Online Safety Act by Ms Wells predecessor Michelle Rowland.
It expected to be introduced to parliament later this year and aims to shift responsibility by putting the onus on platforms to create a safer environment online.
Instead of tech companies just reacting to individual posts after they are published, they will be legally required to design their platforms, tools, and features to be safe from the very beginning.
However, the Coalition warned that the push to protect people online shouldn’t give the government “a blank cheque to radically expand the coercive power of the state”.
Shadow Communications minister Sarah Henderson claimed it would give Ms Wells “unfettered powers to make regulations”.
“Protecting children online matters enormously, but that does not give the government a blank cheque to radically expand the coercive power of the state,” Senator Henderson said.
“When it comes to online safety, Labor keeps reaching for more power for government while failing to get the basics right.
“It is no coincidence the minister is releasing draft digital duty of care laws that raise serious free-speech concerns on the very day her defective online safety laws are being debated in the Senate.
“Serious online harms require serious action, but Australians should not have to surrender basic freedoms in the process.
“The Coalition’s approach is to protect kids, empower parents, shine a light on Big Tech and protect the freedoms Australians expect.”
She said the proposed legislation should “expressly set out” the list of specific design features deemed harmful. It also didn’t list services forced to comply, or which empowerment tools will have to be used.
Rather than enshrine them in the legislation, the Communications minister of the day will have the power to determine, by legislative instrument, what it includes.
When asked who ultimately decides what constitutes a violation, Minister Wells shifted the responsibility away from her political office to the independent regulator.
“Ultimately the answer to your question is the eSafety Commissioner makes that determination. But what Digital Duty of Care does is install a foundation of basic safety standards that is currently missing,” she said.
One Nation leader Pauline Hanson posted on social media ahead of the announcement that Labor was trying to “censor” political speech online.
“Labor is copying the Chinese Communist Party’s censorship playbook,” she stated.
“There are some issues on social media. But this can’t be an excuse to bring in a China-style censorship regime.
“The Minister and eSafety Commissioner get open-ended power to classify anything as harmful.
“After losing a safe Labor seat in the Secret Harbour by-election, the government is desperately trying to censor the internet to keep their jobs and their grip on power.”
Ms Wells also explained that the Minister’s “rule-making power” is not a new concept and already exists elsewhere in the Online Safety Act.
Under the new powers, the Minister can also consult with the eSafety Commissioner when seeking technical and expert advice.
She added that any such ministerial rule would still be disallowable in the Senate.
Ms Wells also provided previous examples from late last year, such as her intervention when Elon Musk’s AI app “Grok” began allowing users to “nudify” photos and when she included YouTube in the under-16s social media ban.
“We could have disallowed it in the Senate if people took objection to that. Nobody disallowed it,” she said.
“That it’s a real, real-life example of how the rule making power would work.
“I guess it is on the Coalition if they’re going to disagree with that once they’ve read the exposure draft.”
Australia’s duty of care comes after several other nations enacting or proposing similar online safety laws, such as the United Kingdom, European Union, and Malaysia.
Australia’s proposed digital duty of care explicitly excludes “lawful private communications” between “consenting adults” but lacked clarity on how regulators will handle compliance of end-to-end encryption.
When tech companies threatened to leave the UK market rather than weaken message encryption as an act of regulatory resistance, the UK instead postponed mandatory message scanning until technology can perform it without compromising user privacy.
However, Australia’s draft laws make no explicit reference to encrypted platforms.
Also unlike the UK’s Online Safety Act, Australia won’t allow senior managers and tech bosses to face criminal prosecution and jail time if they fail to protect children or ignore the regulator.
Australia will also apply civil financial penalties of up to $109.2 million which Senator Hanson-Young said should be changed to be a per cent of the multi-billion-dollar tech companies’ revenue.
Under the UK’s Act, their regulator Ofcom can impose fines of up to £18 million ($34m) or 10 per cent of the company’s global annual turnover, depending on which is higher.
“The penalties are useless. The penalties need to be increased,” Senator Sarah Hanson-Young said.
“All of the experts around the world agree that if you want to hit big tech where it really hurts, hold them to account — these types of fines need to be a percentage of global revenue, not just a nominal amount.
“That’s what we’ll be pushing for.”
It comes as social media giant Meta has agreed to a $US18 billion ($25b) settlement with US states and territories to resolve claims that Facebook and Instagram harmed children.
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