Dear Committee Secretary,
Social media ban amendment reveals the federal government’s restrictive approach to regulating the internet
This submission shares with the Committee research by the Institute of Public Affairs (IPA) relevant to the Senate’s inquiry into the Online Safety Amendment (Strengthening Enforcement for the Social Media Minimum Age) Bill 2026 (“the bill”) and to the proposed regulatory scheme of which it is part, namely, the federal government’s commitment to legislating a digital duty of care for all online service providers.
The bill aims to strengthen enforcement of the under-16s social media ban legislated in November 2024. It does this in two ways. First, by doubling the monetary civil penalties for non-compliant social media platforms (ss 63D, 63DA(1), 63DB(1), and 63H), and secondly, by expanding the scope of the information-gathering powers of the eSafety Commissioner to include both information and documents relevant to compliance and to cover both social media platforms and third parties – including any individual – with information and documents (s 63G).
IPA analysis of the bill finds that the combined effect of stronger powers and higher penalties risks incentivising over-compliance where platforms err on the side of excluding lawful users. As such, the IPA recommends that the bill, and the broader regulatory approach to the internet, be abandoned.
The bill would empower eSafety to engage in fishing expeditions to enforce the social media ban
Under the proposed s 63G(1), social media platforms, and indeed, all persons, will be obliged to produce documents upon written request by the Commissioner relevant to compliance with the under-16s social media ban.
This would now include all documents “relevant to compliance”, which, since compliance is a legal requirement, all regulated entities are likely to have. That is, the Commissioner is not limited to cases where there is reason to suspect deliberate or negligent non-compliance.
This provides the Commissioner with the power to trawl through documents for anything that might be interpreted as failing to take reasonable steps to comply. The requirement that the Commissioner only make such requests on “reasonable grounds” is not a protection as in practice it will be the Commissioner determining whether such requests are reasonable.
To comply with these expanded powers, regulated entities will also likely be obliged to document their operations more thoroughly, capturing more information about users. Reasonable compliance steps might require social media platforms and third parties to share this data with each other and with the federal government.
The bill would empower eSafety to target Australian individuals and users
The other proposed expansion of the Commissioner’s powers is to widen the range of regulated entities within their scope. The bill’s explanatory memorandum anticipates this will bring into scope “third parties, such as age assurance providers or app-store operators”.
However, ss 63G(1) and 63G(2) both refer to “a person” with relevant information or documents, meaning that the scope will include users, people with documents or information about users, and all third parties involved in systems and processes enabling compliance with the ban or identifying age-restricted platforms.
Not only does this potentially implicate users in government’s enforcement efforts, in that they might be obliged to share documents relevant to platforms’ compliance, it also further incentivises over-compliance among regulated entities.
Because eSafety might be able to obtain documents from users about their experience of age verification processes – documents that companies will have no visibility of – they will be more likely to adopt highly restrictive standards that err on the side of excluding lawful users or making lawful use more difficult. This will have an impact on Australians’ access to, and use of, social media, burdening their free speech and participation in civic discourse.
The risks of the bill are enhanced by the aggressive enforcement posture of the government
As explained in the bill’s explanatory memorandum, the introduction of the bill is motivated by “significant concerns” that some platforms are failing to comply with the statutory requirement to take “reasonable steps” to enforce the under-16s social media ban, and the eSafety Commissioner is “in an active enforcement stance” regarding five social media platforms: Facebook, Instagram, Snapchat, TikTok, and YouTube.
Moreover, the Minister for Communications has justified the proposed expanded powers of the Commissioner by claiming that, with the extant legislation, when the Commissioner requests information from social media platforms “she has to take them at their word”. In the same press conference, the Minister alleged “big tech” was “doing the bare minimum and thinking they are above domestic law”.
This context is important for anticipating how these new powers will likely be used by eSafety, which, as a regulator, has already demonstrated a tendency to be politically active, including through the advocacy of stricter government control of the internet, the differential treatment of social media platforms BlueSky and X, and the interpretation of its advocacy role as including commentary about topics such as “toxic masculinity.”
The practices of the Office of the eSafety Commissioner indicate a clear risk of overreach in the exercise of any new powers given to it. Recent IPA research details how the Office of the eSafety Commissioner has adopted the practice of sending informal takedown notices to online services regarding adult cyber abuse material to sidestep ordinary review and accountability processes. Between July 2021 and June 2025, eSafety produced 1,414 informal notices but only 12 formal removal requests. In eSafety Commissioner v Baumgarten, the Federal Court found that the eSafety Commissioner had unlawfully presented an informal takedown as a formal legal request. The case raised the question of how regulators like eSafety trade on their formal legal powers to achieve more far-reaching objectives.
The bill foreshadows the dangers of the federal government’s digital duty of care
The bill takes on greater significance when placed in the context of the federal government’s intention to legislate a digital duty of care. The bill’s approach to enforcing the under-16s social media ban by substantially increasing penalties and expanding eSafety’s compulsory evidence-gathering powers is indicative of how future regulations, such as the digital duty care, are likely to be drafted and enforced.
The digital duty of care will impose on all online service providers, including but not limited to social media platforms, an “overarching” requirement to “provide a safe online environment for all Australians” by taking “reasonable steps to maintain effective systems and processes’ that ‘manage risks of serious harm associated with their service[s]”.
Every aspect of this approach poses dangers to Australians’ rights and freedoms:
- The digital duty of care extends across the entire internet: social media platforms, messaging services, apps, websites, and others.
- The duty would apply not only to the content on these services but also, via the concept of ‘safety by design’, to how services are built.
- The harms covered by the digital duty of care are vague and would cover amorphous and political concepts like mental health and social cohesion.
- The Minister and the eSafety Commissioner will be empowered to expand the categories of harms by regulation.
The bill reveals that the government is prepared to grant wide and coercive powers to enforce novel regulations of the internet thereby enhancing the dangers of the proposed digital duty of care explained above.
I thank the Committee for the opportunity to make this submission. Please do not hesitate to contact me at [email protected] for further consultation or discussion.
Kind regards,
Dr Andrew Bushnell
