Waleed Aly:
The argument against this measure is lining up at the moment. It’s coming from the opposition parties. It’s also coming from think tanks and the like, that really runs along the lines of this being government overreach and censorship. Dr. Andrew Bushnell is the Director of Law and Freedom Programme at the Institute of Public Affairs and is concerned about the censorship aspect of this. Dr. Bushnell, thank you very much for your time.
Andrew Bushnell:
Thanks for having me.
Waleed Aly:
Why is this a censorship question?
Andrew Bushnell:
Well, I think the first thing to note about the proposed law, so we got the draught bill yesterday, the first thing to note about the digital duty of care is just this extraordinary breadth. So it is defined in the new legislation as the responsibility of online services to provide a safe online environment. So online services is everything from social media, which is getting a lot of the attention, but to your AI tools, even the App Store itself. So that’s all covered. So it’s extraordinarily broad. And then the idea of a safe online environment.
Now, safety there is predicated on basically a misleading comparison between online safety and physical safety, because of course the internet is not a physical environment. It’s a place where minds meet. So regulating how people interact there is fraught with politics, of course. So that suggests a light touch is better, but we have not got a light touch. That’s why we’ve dubbed it the ‘Alborithm’ because it’s a government approved internet.
Waleed Aly:
It’s not a government approved internet at all. By having an opt-in… Sorry, I keep getting this the wrong way around. An opt-out thing from an algorithm, that’s not government approval. That’s your own approval of how you want the information delivered to you.
Andrew Bushnell:
If all we were talking about was just simply a toggle for between different feeds, then actually all the government would be proposing is that social media, for example, would look like X, right? On Twitter, X, you can already toggle between feeds. And of course, if it was only about the kids, well, kids aren’t allowed on X either. But I don’t think that anyone really believes that the government’s model is that all platforms should look like Twitter.
Waleed Aly:
No, but hang on. So let’s just be clear, which bit of it are you upset about? Do you have a problem with the opt-out bit?
Andrew Bushnell:
No. So you are focusing on the regulation of the algorithms, but the digital duty of care is much broader than that.
Waleed Aly:
No, I understand. So I’m just trying to get clear which bit you’re objecting to. So is the opt-out bit-
Andrew Bushnell:
Yeah, that’s right. So the definition of harms that are covered by the concept of a safe online environment is where the problem really lies.
Waleed Aly:
All right. So we’re not talking about the opt-out part of it, we’re talking about the broader digital duty of care, the creation of an online environment that’s safe. The government’s argument is, well, everything gets regulated for safety in that way. Food does, cars do, all sorts of things. The harms that are being wrought by the algorithm at the moment are manifest. They are studied. We’ve heard all sorts of harrowing stories about that. They identify specific content, things that are misogynistic or terrorist content, things of that nature, pornography, and so on. These sorts of things are kind of regulated in things like broadcast television. Why is this such a broad leap or a huge leap from what we’ve already done with other things? Isn’t actually the aberration here the way that the online world seems exempt from all these regulations we’ve known for so long?
Andrew Bushnell:
Well, as I said, I think that first of all, it’s not really analogous. I mean, it’s not a physical space. All the harms that can happen-
Waleed Aly:
Well, neither is the television, that’s not a physical space.
Andrew Bushnell:
But the main point actually, the key part of the, if you want to just narrow down to a specific part of the proposed legislation, you might be hearing this in the future, so I’ll just say it’s section 25C2, which is the power of the minister to create new harms. Now the only restriction on that is that legislative instruments can be disallowed in the Senate or the House, but it won’t happen in the House, of course. So basically what it sets up is a scheme where adults are supposed to be protected from harms and the minister can define what those harms are. So that’s a much more expansive bit of legislation than simply saying that there is some specific harms.
Now, of course, some of the specific harms listed in the legislation are not particularly objectionable, things, as you mentioned, like terrorist offences because they’re already illegal. But it really comes down to this question of can we trust the government? Can we trust the eSafety Commissioner with this power to create new harms? And I should say as well that the idea of a safe online environment is treated differently for adults and for kids. And that’s a large part of this argument that the standards are different. However-
Waleed Aly:
But they’re not different on, for example, broadcast because you don’t know who’s watching a television set. It could be anybody. We have ratings as guides and things like that.
I take your point about the creation of new harms, and I think what you’re arguing there is that the boundary’s undefined and you could have politically motivated additions to this that are really just about politics. But as you say, that would have to go through the Senate. So it’s not the government that would decide that, it’s the parliament that would decide that. And that’s quite a different thing, isn’t it, Andrew? Doesn’t that mean that actually the only way you could add harms is where you have a broad enough consensus across a democratically elected society that this thing constitutes a sufficient harm to be regulated in this way?
Andrew Bushnell:
No. Well, you’ve got it backwards because the minister would be able to propose the harms and then the Senate would have to positively act to disallow them.
Waleed Aly:
Right.
Andrew Bushnell:
So the only safeguard would be if there was enough political impetus on the parties controlling the Senate to do that.
Waleed Aly:
Yes, that’s what it is.
Andrew Bushnell:
Which is not the same as, for example, in the United Kingdom, where new harms have to be positively approved by parliament.
Waleed Aly:
Okay. So let’s say they made that tweak. Would you support the legislation?
Andrew Bushnell:
No, because it’s still too expansive. So basically we’ve been warning about this for a while and we made several different points about how the concept of digital duty of harm is too broad. And the draught legislation basically confirms that first of all, digital duty of care is inherently built around a subjective and vague idea of harm. We’ve seen that in the legislation. That vagueness allows political interventions around harm such as misinformation, disinformation.
And then by its very breadth and the way that it operates, it’s designed to encourage over-compliance. It’s designed to encourage all online services to err on the side of caution and to rapidly converge on risk averse standards. So there won’t be any competition on the internet in relation to one platform might be more edgy and another one safe. They’ll rapidly converge on standards across the internet because that’ll be the easiest way to acquit their duty.
And on that, the compliance burdens that are proposed here are really heavy. There’s a lot of not just transparency reporting, but regular risk assessments that are very thorough, which would entail reporting to the regulator.
Waleed Aly:
Yeah, this is a burden a lot of businesses carry. Yeah.
Andrew Bushnell:
Yes, but their burdens don’t all fall on users in this way. So this would require collecting more information about users, sharing that with the government. So the compliance burden basically… And then of course combined with the heavy penalties will strongly incentivize them to, as I say, err on the side of caution. And that has a chilling effect on freedom of speech. So it’s being portrayed as a targeted narrow intervention around certain harms for certain users, but it’s actually written as a very broad intervention across the entire internet for all users, and potentially any harms that the government finds.
Waleed Aly:
Andrew, thank you. I’m going to have to leave it there because we’re out of time. This is a really fascinating debate. I can point people in the direction of a paper you’ve written about this, which they can find on the IPA website. It’s a research note arguing this is enabling censorship of the internet. Thank you. Appreciate your time.
Andrew Bushnell:
Thank you so much.
Waleed Aly:
Dr. Andrew Bushnell, Director of the Law and Freedom Programme at the Institute of Public Affairs.
This transcript with Andrew Bushnell talking on Mornings – ABC Melbourne from 9 September 2026 has been edited for clarity.
