I will start with a quote from political philosopher John Locke. In Two Treatises of Government in 1690, he said:

… the end of law is not to abolish or restrain, but to preserve and enlarge freedom …

The bill before us, the Online Safety Amendment (Digital Duty of Care) Bill 2026, seeks to introduce a digital duty of care which will require online service providers to deliver a safe online environment that takes effective measures and manages the design features of their services with the goal to effectively provide protection from serious harm and illegal material and conduct such as terrorist or child sexual exploitation material. I would say there is already statute with respect to illegal material—terrorist and child sexual exploitation material. It also seeks to provide protection for Australian children from harmful material and conduct and harmful design features. Again, I would say there's already legislation that's supposed to protect children and they're not actually supposed to even be online until they're older than 16.

I do appreciate that the government is trying to address some of the awful behaviour that does happen online. It's antisocial in many cases. Even on posts that are about people letting a room in their house, you'll see a litany of comments, with people making all sorts of absurd comments. Often they actually don't even read the original post. But the question is: do we legislate for that in here? I would say no, and I would say we can't.

I would like to keep this debate and my contribution quite dry. I'm going to look at what various learned legal professionals have said and not go down the emotive path that many in here have done with this. I understand that they come from a different place on this. However, I've reviewed the submission of the Law Council of Australia regarding this exposure draft and they say that:

The Law Council acknowledges concerns about online harms that may impact mental health and wellbeing. Certain forms of online content, online abuse, image-based abuse, algorithmic amplification and self-harm-related content can contribute to adverse mental health outcomes, particularly for children and other vulnerable persons.

But they then state that:

… any reforms in this area must consider and have regard to potentially competing rights, such as freedom of expression.

While proposed subsection 233(1) of the act has been retained, which makes explicit that the act does not apply to the extent, if any, that it would infringe on any constitutional doctrine of implied freedom of political communication, there is no proposal for freedom of expression or similar to be included as a consideration in the administration of the act. Freedoms of expression are not included in the objects of the act, which the Law Council see as an important addition. This is the cornerstone of our democracy and this must be at the forefront of all of our thoughts.

While ministerial discretion to extend the definition of material or conduct that is seriously harmful or harmful to children has been omitted from the bill as introduced and that material or conduct may be extended only by return to the parliament, the definitions of harmful material or conduct are sufficiently vague and broad to engender concern. The Law Council of Australia says of the exposure draft that:

While at face value, the material and conduct referred to at section 25C could reasonably be regarded as seriously harmful, we are concerned that there are instances where the drafting could result in unintended consequences.

To me, the words 'unintended consequences' should strike fear in all of us. It is not the position of this place to create unintended consequences.

I note the bill as introduced now addresses the Law Council of Australia's concerns that the definition of 'seriously harmful material and conduct' could capture services that publish material for legitimate journalistic, legal, educational or other public interest purposes at least in part through proposed section 25F on excluded material. The Law Council proposes that the definition of 'seriously harmful material and conduct' link materials to an existing criminal offence, which would provide greater certainty in determining whether it's appropriate. It said:

Section 25D lists a range of content that is deemed to be material and conduct harmful to children. Similar to the above reflections on section 25C, while few would argue that the core content listed has the potential to be harmful to children, there is a need to ensure that definitions are sufficiently targeted and clear.

The Law Council broadly supports the requirement for providers to undertake periodic risk assessments but suggests that the legislation be clarified to direct assessments towards identifying risks that could undermine a safe online environment or otherwise expose children to harm. Again, I'll just remind the House that we have already passed legislation which means that children shouldn't actually even be on any social media.

A requirement to identify all reasonable foreseeable risks is also very broad. In support of a risk based and proportionate approach to compliance, the legislation should make clear that the nature and extent of a risk assessment should be appropriate, having regard to the nature, size, complexity, functionality, reach and risk profile of the relevant service. Smaller businesses that are only minor participants within the online services ecosystem and have limited ability to influence broader online harms should not be subject to the same compliance expectations as large platforms with substantial user bases, sophisticated functionality and significant control over user interactions.

Today, I met with small business representatives from across the country who are seeing businesses around them fail due to reduced earnings and increased regulatory burden. The last thing that they need for their basic outward-facing website with a contact form is to have to do another risk assessment or, worse still, pay someone to perform it and then maintain the records for many years. The Law Council of Australia proposes guidelines that provide safe-harbour protections for low risk small businesses, and this is an idea that I would like to see adopted.

Finally, the Law Council has stated, in relation to the creation of accounts for research and data access, sock puppet accounts, that, while the bill does contain some safeguards, proposed section 205C permits but does not require the data access rules to address the kinds of data that may be accessed or the privacy, security or confidentiality of that data. As the scheme could involve access to personal or sensitive information, minimum safeguards should be established in the primary legislation. The bill does not establish limits on the number or frequency of data requests, and, although these matters could be addressed in the data access rules, repeated or technically complex requests may impose an undue administrative burden on smaller service providers.

I'd just like to go to this whole sock puppets idea. Really? What on earth are we thinking? This is just Big Brother on steroids. It's just mental that we would give a government department the power to then create all these fake accounts to then try and impersonate themselves as fake people online to try and capture where they think that there's harm being done.

I'd like to mention comments from Leanne Ho. She's pro bono partner at Wotton Kearney. She stated in the Law Society Journal online in, in an article titled 'What if the Harm is More to Democracy or Social Cohesion? Is that Protected?':

Australia doesn't have a Human Rights Act nor a Digital Services Act, like the one in the European Union, where the risks identified in the draft Bill are already recognised under their human rights framework.

And she says:

"So, this creates risks on the community side because the Bill is very much centred on safety rather than human rights so you could have a situation where, depending on the government of the day and the kinds of views that are represented … democratic rights and freedoms could actually be at risk …

I go to the Business Council of Australia. They recommend changes to ensure the framework is clear, proportionate and focuses on those providers which can control online safety risks, set clear statutory boundaries, make compliance and risk assessments proportionate, define harm better, set core obligations in legislation and proportionate enforcement and regulatory safeguards.

My view in where we are with this? I think it's self-evident that children and vulnerable people should be protected from online harm and radicalism. There are, sometimes, illegal acts that are online that are put out for other people to view, but we already have criminal charges on the statute, both on the Commonwealth and in individual states, to address this. In fact, in some states, there's a separate offence for filming and then uploading such crimes. The government has already legislated social media minimum age restrictions. That should already be providing protection for children under 16 years of age. However, we've already seen that, while the government says it's very successful, many others say it's not successful.

I would also like to say, if the government are so concerned about harm, why have they avoided implementing the Murphy report recommendation which we have? We know about the harms with respect to online gambling. If the government is so concerned about people's algorithms and protecting them from their algorithms, why don't we just do an education piece about how on, say, Twitter, you can pick to follow either the For You page, where the online platform determines your algorithms, or a 'Following' page or you could even just have your favourites page and then you just get that? I understand that's the same on Twitter. I'm not sure about all of the other online platforms, but really maybe it's more of an education piece.

The definition of harm, I believe, in this bill is far too subjective. It's broad, and what I consider harmful may not be considered harmful by somebody on the other side of the chamber. This bill also places considerable burden on small businesses, which have already suffered enough this year. They've suffered economically. They've had a massive downturn, many of them. We've had so many businesses close, and they now have new taxes on them that were never mentioned at the election and that were sprung on all of us at the budget. This is burdening them with more compliance that I believe is unforgivable.

So let's take the emotion out of this debate. Let's look at the legislation before us. This bill gives too much power to the eSafety Commissioner. I do not believe there are enough legislative guardrails. For me, this is less about harm and more about the control of adults and their behaviours and actions that are technically not illegal. On that principle, I cannot support this bill.