The committee is considering the Online Safety Amendment (Strengthening Enforcement for the Social Media Minimum Age) Bill 2026 and amendments (1) and (2) on sheet ST132 moved by Senator Green. The question is that the amendment be agreed to.

(Quorum formed)

On a point of order, Chair. I know that you put the amendment. I understand Senator Henderson is wishing to speak to the amendment. For the clarification of the chamber, the government is happy for that to happen, in the good faith that we are seeking to get through quite a bit of this bill and these amendments this evening.

The TEMPORARY CHAIR: I will therefore take a step back. We are continuing with the consideration of the government amendments.

I want to say the coalition strongly supports stronger protections for children online and holding the world's biggest technology companies to account, but protecting children cannot become an excuse to hand politicians open ended powers over lawful speech or to hand draconian powers to the eSafety Commissioner. This bill before the Senate right now quite improperly, as we discovered in our Senate inquiry, gives the regulator, the eSafety Commissioner, the ability to demand documents from any person who uses social media, including parents and their children.

That is why the bill attracted widespread criticism in our Senate inquiry, where we received multiple submissions, including from the Law Council of Australia and the Australian Human Rights Commissioner, Dr Lorraine Finlay, that this was a case of overreach. In fact, when we debated this in the Senate inquiry, both the minister's own department and the eSafety Commissioner agreed it was not the intention of the government to seek to issue notices in relation to the production of documents to any person. The target of the government's concern was not just the social media companies themselves but also age assurance providers, app store providers and other relevant providers in relation to the eSafety Commissioner investigation, assuming that it is in the context of possible enforcement proceedings. That is why we have put up an amendment to narrow that particular proposal—so that we have a bill before the Senate which does the job as intended by the government.

It is disappointing that, as we have been advised, the government plans to vote against our amendment, which would properly seek to confine the eSafety Commissioner's powers in a way which reflected the intention of the government and of the eSafety Commissioner. We know, of course, that the eSafety Commissioner raised significant concerns about the operation of the social media ban when she had a lunch with a journalist from the Sydney Morning Herald. Then, of course, that was subsequently reported in a way that I think probably did cause the eSafety Commissioner—certainly the minister—some embarrassment because the eSafety Commissioner was pretty scathing about how the social media ban was not working.

We know that there's a non-compliance rate of at least 70 per cent. Some studies have shown it is more like 80 per cent. We understand and support the fact that the eSafety Commissioner was seeking these additional powers in relation to issuing notices for the production of documents, but it is absolutely not necessary, it is improper and it is unreasonable to give the eSafety Commissioner more powers than are required for her to do the job. I have to say, in relation to the government's amendment, that the government quite disgracefully called on the coalition to pass this bill more than two months ago. We were of the view that this needed appropriate transparency and scrutiny. Of course, during our Senate inquiry, we received widespread evidence, not just from grieving parents and not just from other regulators, that the bill was deficient in a number of different respects.

This is an amendment that, frankly, the government should have no issue agreeing to—the one that we have brought forward. Instead, what we have is a dramatic increase to the eSafety Commissioner's powers—compulsory interrogation powers which would apply to any person, not just to those concerned with the direct enforcement of the social media ban. Given the draconian nature of these powers, given that there is no right to self-incrimination and given the manner in which the eSafety Commissioner wants to utilise these powers concerning any person, it could be a child, it could be a podcaster, it could be a parent. Again, this is significant overreach.

We want to see the social media ban properly enforced. We are sick of the deception from the government. Frankly, I again call out the Prime Minister for continuing to mislead Australians by suggesting that, because of the social media ban, more than five million accounts have been shut down or deactivated. We know that that is just not true because the vast majority of those five million or more accounts are in fact Google accounts. Of course, you cannot have a YouTube account. They are Google accounts which primarily relate to children who might have a Google account for the purposes of having a Gmail email address.

We are seeing significant and overreach, and we are seeing the government making most improper comments in relation to the coalition's position. We just want to see this bill work as intended. I again condemn the fact that the government has indicated it will not be supporting what is a wholly reasonable amendment which would reflect the government's intent. So I ask the minister: Minister, can you advise why it is that, in relation to the opposition's amendment on sheet 4088, the government will not be supporting that amendment?

Thanks very much for the question, Senator Henderson. Of course, your amendments aren't before the chair right now, but in the interests of clarity I'm happy to move forward to that response. In the first instance, for the benefit of the chamber and for those watching along, I want to make very clear, in relation to the examination powers that are being proposed, that no: children and parents will not be required to give evidence to the eSafety Commissioner. The examination powers can be used only where the eSafety Commissioner believes, on reasonable grounds, that a person has information relevant to compliance with the social media minimum-age obligation.

I just wanted to make sure that that was clear and on the record—that the eSafety Commissioner must have a belief, on reasonable grounds, that a person has information that is relevant to the compliance of the social media minimum-age obligation. Parents and kids might have their own anecdotal experience about whether the law has worked for their family, but it's fair to say that they won't have evidence of systematic noncompliance by these billion-dollar companies. Big tech tends to keep that information pretty close to their chest, which is why these powers are required.

The law is very clear that the obligation relevant to the compliance action is on social media platforms to prevent Australian kids from having accounts. This is not about targeting parents or kids. On that basis, Senator Henderson, I will seek to jump forward to your amendment, which deals with essentially the same topic. We will not be supporting your amendment, because, although we acknowledge the concerns that the proposed power to enable the eSafety Commissioner to seek information from third parties could unintentionally capture parents, the government can confirm that children and parents will not be required to give evidence to the eSafety Commissioner. As I said, the powers will be used only where the eSafety Commissioner believes, on reasonable grounds, that a person has information relevant to the obligation.

I want to also note that the framing of the power towards a person whom the regulator reasonably believes to hold relevant information is consistent with the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, published by the Attorney-General's Department. As I said, the government has serious concerns that the coalition's proposed amendment could limit eSafety's ability to investigate noncompliance with the law and hold non-compliant companies to account. The proposed amendment to include only a provider of an electronic service or related party of the provider of the electronic services would prevent the eSafety Commissioner from examining former employees, for example, of age-restricted platforms or any service provider, including ones under an NDA who may have critical documents or information. There are also parts of your amendment, Senator Henderson, that go to administrative review to the issuing of a notice. No other regulator is subject to this limitation.

Minister, thank you very much. You certainly have confirmed that it is not the intention of the eSafety Commissioner to issue notices in relation to the production of documents to children and to parents. That's terrific to hear. But what you're asking us to do is to trust the government in relation to that assurance. The bill before the Senate says something very different. It says that the eSafety Commissioner can issue that notice to any person in relation to compliance with the social media ban. And I have to say that, like many Australians, I don't trust the government. Even if I did trust the government on this issue, it's not appropriate for the government to be bringing forward a bill that does not reflect the government's intention. When any government proposes laws which amount to overreach and amount to an inappropriate use of power or an excessive use of power, we would say that that is most improper. That is very disappointing. I think that this is all being done for political purposes. The government is well aware of our serious concerns, but the government is also well aware of the serious concerns of many witnesses who appeared in the Senate inquiry.

I want to say that we have brought forward some other amendments which will be considered. The coalition strongly believes that parents need to be back in control of their children's online safety. We want to see greater transparency from big tech—we want to hold big tech to account—but we also oppose sweeping new coercive powers for the eSafety Commissioner. Australian families deserve more choice, more control and more transparency online.

I have to say the discussion we had in question time today and Minister Wong's statement about opting out of the algorithm show that the government doesn't really understand what it's doing when it comes to online safety. Even if the government's proposal were to opt out of a content recommendation feed based on a user's profile, an algorithm is still required to serve that content. An algorithm is a set of rules which determine how content is served. Even if there is a non-profiling algorithm that is an option for a user, there will be some type of algorithm still required.

We believe—this is not the complete solution but a starting point—algorithmic transparency is critical. It's critical even for the eSafety Commissioner to do her job. If the eSafety Commissioner is going to be commencing proceedings insofar as whether social media companies have made reasonable efforts to remove children under the age of 16 from their platform, then understanding what is driving the way content is served is very important. That's why, in one of our amendments focusing on algorithmic transparency, we are seeking transparency in relation to the content recommendation algorithm, the content moderation algorithm and the age assurance algorithm. This is very narrow. It only concerns large social media platforms.

I note—and this evidence was brought forward in our Senate inquiry principally by the Free Speech Union of Australia—X in part publishes its algorithm for its 'for you' feed. Anyone can search for it and look for it, and it's very instructive as to how X determines how content is served. We certainly think that this is a very important first step. We want to understand whether social media platforms are driving hidden harms through their algorithmic parameters. We want to understand what's being censored, what's being suppressed, what's being hidden and what's being amplified. We want to understand whether, when there is very harmful content being served, the algorithm recognises that and then addresses that appropriately. Algorithmic transparency, as I say, is a very significant first step.

I do note with some concern that the Tech Council has put out a statement raising concerns. I'm having a quick look at that now. They've raised concerns and say that the amendment could increase security risks by enabling private companies to track sensitive information, scammers to deploy spyware, criminal groups to compromise devices or predators to surveil children. It could turn a measure intended to protect children into a new route for monitoring them. We agree. Unfortunately, I don't think the Tech Council has read our amendment, because the amendment makes it very clear that, when we are seeking algorithmic transparency, there are very, very significant carve-outs.

In the proposed section 63P—protection of safety, security and privacy—the algorithmic transparency obligation does not apply to any personal information. It does not apply to any information which materially compromises the safety or security of an end user or the platform. It does not apply because there is no reference to proprietary information such as the source code, and it does not apply to information materially to assist a person to circumvent or defeat systems designed to protect children or prevent cyberattacks, fraud, spam, platform manipulation or other malicious activity. There's a very, very strong set of safeguards in this amendment.

I have to say that I am disappointed that the Tech Council has misrepresented our amendment in the way that it has. I understand why the Tech Council doesn't want transparency, but, frankly, our perspective is we don't care because we think that, as a very important starting point, to hold the big tech social media platforms to account, algorithmic transparency is critical.

The other very important amendment that we have brought forward is an amendment which requires platforms, particularly the likes of Google, Microsoft and Apple, to open up their safety tools to Australian consumers. At the moment, those safety tools can be triggered to stop pornography, other really harmful material, from ever reaching the phone. That is available to government departments and to large corporations through enterprise agreements but it's not available to parents. It's not available to Australian consumers. We say that parents must have the freedom to choose digital safety services that they want to use to protect their children. There are some wonderful options available for parents. There are various different apps available that can be used to block harmful content, to restrict apps and websites, to manage screen time and to keep children safe online. Because what these safety tools do if they are opened up to third party apps and to parents is they stop the harm ever reaching the device, not just the phone but any device. We think that parents deserve the same access to these safety tools as large corporations and government departments. This is about the simple principle that families should have that choice, not big tech.

We are very concerned that the government does not see any merit in supporting these amendments, as I have been advised. This makes no sense. Parents deserve these safety tools. Parents deserve every option in this country to keep their kids safe online. This was a recommendation of the digital platforms inquiry run by the ACCC in report No. 5 handed down in September 2022. What has the government done about this? Nothing, and that's not good enough.

I'd just like to ask the minister, in relation to the amendment that the government's had to put forward, whether the government now concedes that it was important to not ram this legislation through on the day, as you insisted, when it was introduced. There's been a lot of squawking about the purpose of sending this piece of legislation to a Senate inquiry, and the government's been pretty disrespectful to the process of the Senate. I'm wondering, given that you've had to come and correct your own piece of legislation that corrects your own law, whether perhaps there could be an apology to the Senate.

I'm not really sure what you're referring to in terms of 'squawking'. I know that this is an important piece of legislation with urgency, which the eSafety Commissioner and parents have spoken about.

You asked me about the timeline. If the Senate had passed the bill urgently in July, the eSafety Commissioner would have had at least one, maybe two, tranches of information documents from social media platforms and information from age assurance companies by now. If we'd passed the bill, like Australian parents had asked, we would have introduced another bill to give the eSafety Commissioner examination powers.

We have always said that this law was the first of its kind in the world, and we were clear from the start that it would need to be updated throughout its implementation. We make no apologies for coming back to the Senate, increasing penalties and creating further powers to ensure that the laws passed by this parliament can be enforced and big tech companies are held to account. The government will leave no stone unturned, making sure that the eSafety Commissioner has everything needed to hold these companies to account.

For the record, the Greens support these amendments because we were in the Senate inquiry and we asked the questions of the eSafety Commissioner. The eSafety Commissioner confirmed that they had indeed asked the government for these powers well before the government had drafted and put forward this existing piece of legislation, so I don't know why it was left off the list. That seems to be a mystery to me, but I'm glad that it is now on there.

What I would like to know is: in relation to the remainder of the bills, does the government genuinely believe that a $99 million fine is sufficient to hold these tech companies to account?

My apologies in advance because we're jumping around topics a little bit. Thank you for the support for these amendments. I will have some information for you about the penalties, but I know that the penalties that we have included are a substantial increase from what was proposed. We think that that is necessary, and we thank the Greens for their support of those amendments.

What is incredibly important is that these penalties have been modelled on other types of penalties that are consistent with increased penalties in the Competition and Consumer Act. They are amongst the highest penalties available in Commonwealth legislation. I'm conscious of the commentary from the Greens, particularly from you, about the need to go very strong and very hard on big tech companies. I do appreciate that. We wanted to ensure that those penalties were consistent with other Commonwealth legislation. The failure to take steps to prevent under-16s from having a social media account will result in penalties of up to $109.2 million.

I too would call on you—I know you weren't the offender—on behalf of the government to apologise to the Senate for earlier comments and the campaign that was run primarily against the coalition in relation to our decision, along with those of the Greens and of others on the crossbench, to send this bill to a Senate inquiry. I have to say I was particularly appalled by the Minister for Communications, Ms Wells, and the way that she pitted grieving parents in relation to our decision to send this to a Senate inquiry.

As we subsequently heard in evidence in a Senate inquiry, every parent who tragically lost a child and who appeared before us made it very clear that more needed to be done to keep kids safe online and that this particular bill—and of course this was introduced a number of months ago—was not nearly good enough. It's very surprising that these powers in the bill before Senate today, the government's amendment, were not in the original legislation, which shows and is further evidence of the rushed nature of the social media ban. So I too would say to the minister shame on you, Minister, for the disgraceful campaign that you ran primarily against the coalition.

We received very strong support from many witnesses before the Senate inquiry in relation to the scrutiny and transparency of legislation being incredibly important. The role of the Senate is to scrutinise legislation and to give Australians the opportunity to make submissions and for their voices to be heard. Shame on the minister for trying to shut that down.

Of course, the great irony about all of this is that the government is now amending its own bill, which is a pretty glaring insight. The government could not even get the original bill right, as it saw fit. So I would ask, Minister, on behalf of the government, to please make that apology.

I also want to make a correction. I made an error in relation to the Tech Council's statement. My apologies. The Tech Council of Australia has raised concerns about one of our amendments, but it is the amendment in relation to parental safety tools. That's pretty disappointing, I have to say. We have been yelling from the rooftops, saying to Google, to Apple and to Microsoft, 'Give us these safety tools!' If there is some issue with the way that this amendment has been drafted, I have no issues with that matter being raised. But what I have an issue with is that these big tech giants have sat back and denied parents the opportunity to access these safety tools, and that is not good enough.

Companies such as Qoria—and Tim Levy, the CEO—who have given evidence a number of times in various committees, again gave evidence in our Senate inquiry and made it very clear that Australian kids were missing out because parents could not access these safety tools.

What about if Apple and Google and Microsoft do the right thing and start being proactive? Apple has released some safety tools, but, to a large degree, these are still locked up. These are locked up from third-party apps, and it is time that these very significant huge tech players that control so much of what happens on our devices—it is time that parents had access to the same safety tools which are available to large government departments and corporations.

Minister, obviously the government have now released the exposure draft of their duty of care legislation. What is the process of consultation on that draft from the government going to be?

Thank you, Senator Hanson-Young. I acknowledge your advocacy, particularly around the digital duty of care. The government has released an exposure draft. That is not relevant to this bill. I can seek to get you information, but it's not relevant to this bill. We can provide you with some information about the intention around timing of introduction and so forth, but we will be in the hands of the Senate as to when that bill could be passed by this parliament. The minister may have indicated a desire to pass that bill by the end of the year, but we will be in the hands of the Senate. We will ensure that proper scrutiny takes place. That bill, although very relevant to online safety and the broader issues focusing on children and how children can be safe online, isn't necessarily relevant to the particular powers in this legislation. But I'll seek to get some information for you.

The reason I'm asking is because it is linked. The government are saying that they won't vote for certain amendments on the basis of the fact that the duty of care bill is coming down the line. For the sake of transparency and public understanding, it would be good, if you do have it, to give us an outline of the timeframe.

I can update the Senate. The information I provided before was correct. We've released an exposure draft. There will be a two-week consultation on that exposure draft. We will seek to introduce the legislation in mid-October and, of course, we'll be in the hands of the Senate for the scrutiny of that legislation.

Thanks very much, Minister, for that update. We obviously have expressed some very significant concerns in relation to—

Shame on you!

I'll take that interjection—'Shame on you'. Minister, shame on the government because now that we know what's in the digital duty of care legislation, we are very concerned that this is a serious threat to free speech. I am seeking confirmation that the government will agree to send this exposure draft, once it's introduced into the parliament, to a Senate inquiry because this needs a very significant amount of work.

The minister had a train wreck interview with Laura Jayes on News24 this morning. The minister struggled to explain the very legislation that she released yesterday. She was asked whether this applied to news websites—of course, that is an online service. Initially, she said no and then she said, 'Oh, yes, it does go to all online services.' In itself, given the incredible powers that have been included in this bill, the ability of the minister to determine categories of either serious harm, in the case of adults, or harm, in the case of children, without any guardrails made by regulation, without any parliamentary oversight, is extremely concerning. We have no comfort whatsoever that this is not another trojan horse for the misinformation and disinformation bill.

Frankly, if the government was concerned about the online safety of Australians, and children in particular, that's what this digital duty of care bill would have been all about. But what's now very clear is that the ministerial power to define new harms by legislative instrument represents a very significant threat to free speech. What if the minister decided that material which questioned the right of children to know about gender ideology, as one contested issue, was harmful? We have no idea—no guardrails. Unlike in the UK, the ability for the minister to determine what is seriously harmful includes news media websites. This is not just a very significant risk in relation to the minister's unfettered powers; the government has not even carved out news media, Australian journalists and other voices which have a legitimate role in a democratic society. This was a real shock when this bill was released yesterday.

While there was a lot of spin about opting in or opting out of the algorithm—'My Feed, My Way'—there is no provision in the bill which actually allows Australians to so-called turn the algorithm off—but, as we know, that's not a correct characterisation of what would happen if a non-profiled feed was available to Australians. The government has now jumped on this issue without saying anything over many months. The impact on small businesses has not been properly explained. The voice of tech experts has not been properly explained or even listened to. We have very, very serious concerns.

Minister, going back to my question, can you confirm if the government will agree to send that particular bill to a Senate inquiry? I understand it's a different bill to the one we're discussing.

I understand that; we're talking about a different bill. But, given this relates to online safety, are you able to tell us whether the government will agree to send that particular bill to a Senate inquiry? I say this, Minister, because, after the track record of the government in condemning the coalition for wanting to scrutinise the bill before the Senate, I've got no trust in this government. I think it's important that we understand that, given the two bills are very related—it's very important that we not go through another appalling campaign like the one we saw from the minister, and that there is confidence that the government will agree to send its proposed digital-duty-of-care legislation to a Senate inquiry.

I'm conscious that I am being asked about a piece of legislation that has not even been introduced into the parliament, and it is very difficult for me to answer questions on it. We will be in the hands of the Senate in terms of scrutiny. The government won't have any issues with a bill being scrutinised properly by the Senate.

I just want to put on the record that the assertions that Senator Henderson is making about the legislation relate to an exposure draft. We've released an exposure draft. We welcome the feedback and the consultation that will occur, and then we will seek to introduce a bill into the parliament and then we will have an opportunity for that bill to be debated. The question Senator Henderson is putting to me is about a bill that doesn't exist at the moment, although it is in exposure draft form. I have been advised that that is the process the government will take.

On that process, it would be a good thing for the coalition in particular to have an opportunity to receive feedback from parents, families and young people during that process about how important this digital duty of care is and how important it will be not just for young people and children but for all Australians. The excuses are stacking up already as to why the coalition doesn't want to support a digital duty of care—before the bill has even been introduced into the parliament. We know why that is happening. We know why they are trying to stack up excuse after excuse after excuse. Now they are talking about the fact that giving people a choice is somehow limiting free speech. That is not true. Giving people a choice is about giving them the freedom to choose the feed that they see.

It is incredibly important, when the coalition talk about this, that we on this side hold them to account for those comments because the language and the talking points that they are using are coming directly from One Nation. I said this today and I'm saying it again because, every time the coalition seek to do that, we will call them out. I have heard you personally, Senator Henderson, talk about how important it is for the government and for tech companies to take action and to make sure that these algorithms are dealt with and that the way that we access online platforms is safe is done in a way that doesn't impact on people and doesn't have those harmful mental health impacts on people. Yet, less than 24 hours after the legislation has been introduced, all of a sudden, it's all about free speech. It's nonsense. It's absolute nonsense.

I understand scrutinising legislation. I understand being concerned about the content or wanting to scrutinise it. I understand reserving a position before amendments are considered. I've seen all of that in this place. But the full-blown war that's being waged against a piece of legislation that is still in exposure draft from those opposite is a disgrace, and I will call that out. The government will not apologise for standing with parents to pass this piece of legislation that is before us or standing with parents yesterday to support the digital duty of care. We will continue to do that. The piece of legislation before us does that by ensuring that we can have better powers to enforce a piece of legislation passed by this parliament and supported by those opposite.

I don't know what has changed since the social media minimum age bill was passed. I know a lot of things have changed. The leader of the Liberal Party has changed, the polls have changed, and One Nation has—

A lot has changed since then on that side of the chamber, but the government is resolute and has not changed its position, and we will continue to support parents against platforms.

Minister, I do want to object very strongly to the way you've just mischaracterised my concerns. I've been a very outspoken critic of big tech and the way the algorithm, particularly the content-recommendation algorithm on some platforms, is driving harm. I just think it's very important that you don't seek to conflate two different issues that are in the digital duty of care bill.

In relation to the content-recommendation algorithm, we have made it very clear that this needs proper consideration and that we have simply warned that rushing a proposal to mandate non-profiled social media feeds, particularly given the potential consequences for Australian small businesses and other online retailers and ecommerce operators, needs proper consideration. I hope and trust that that will occur during the Senate inquiry into the digital duty of care bill. There is a legitimate debate about whether Australians should be able to switch algorithmic profiling on and off. So please don't conflate our concerns.

The concerns I have raised in relation to free speech relate to the minister's ability to make regulations defining categories of harm and categories of serious harm by regulation without parliamentary oversight. This is the misinformation and disinformation bill all over again. I have always strongly called for serious online harms to be expressly prohibited, but that is the role of the parliament. That is not the role of the minister behind closed doors. Many, many Australians do not trust this government, I do not trust this government, and I can assure you that I do not trust the minister and this government to determine what harmful content is in the context of a so-called digital duty of care bill.

Let's not forget that, under the tort of negligence, Australian companies are already liable for harm caused that is foreseeable. There are already some important principles at play that apply to every single company in this country.

But, as I say, we are extremely concerned about laws that raise very serious free speech concerns. While serious online harms require serious action, Australians should not have to surrender basic freedoms in the process. We are concerned about protecting kids, empowering parents, shining a light on big tech and protecting the freedoms that Australians expect.

Minister, I might say that, if the government were serious about putting parents first, the government would have acted back in 2022 in relation to the recommendations in the digital platforms inquiry—opening up the operating systems so that parents could access safety tools, like corporations and government departments. It's profoundly disappointing that there's been no engagement, no interest from the government, in relation to this incredibly important issue.

This evidence and these concerns have been raised in various Senate committees for a couple of years. If the government were interested in holding big tech to account, the government would be supporting our amendment in relation to algorithmic transparency. So we don't need a lecture from you, Minister, in relation to our commitment to kids, to online safety and to parents, when we are bringing forward really meaningful amendments that matter and the government is turning its back on those proposals.

The question before the chair is that the amendments that have been moved by the government, on sheet ST132, be agreed to. I advise senators that, as a division has been called and it is after 6.30, the division will be deferred. However, we can continue debate on the bill and any subsequent amendments to the extent that other amendments are not in conflict with the amendments on sheet ST132, which have just been debated. I understand there may be an issue with the opposition amendments on sheet 4088, but, if senators wish to make a contribution towards any of the other amendments, I'd be happy to give them the call. I've been advised by the clerk that sheet 4088 is in conflict with sheet ST132, so it's advisable that we don't go there.

by leave—I move amendments (1) and (2) on sheet 4059:

(1) Clause 2, page 2 (table), omit the table, substitute:

(2) Schedule 1, page 4 (after line 8), after item 5, insert:

5A After Part 4A

Insert:

Part 4B — Algorithmic transparency requirements

63L Application of Part — large age-restricted social media platforms

This Part applies to a provider of an age-restricted social media platform in a financial year if the annual turnover (within the meaning of the Corporations Act 2001) of the provider during the last financial year is more than $100 million.

63M Public transparency requirements

(1) Subject to section 63P, a provider to which this Part applies must make publicly available, free of charge and in a readily accessible form, the information specified in subsection (2).

(2) The following information is specified:

(a) for each system used materially to select, rank, recommend, promote, demote or otherwise determine the prevalence or prominence of content, accounts or search results for end-users in Australia of the age-restricted social media platform:

(i) the algorithmic logic and decision-making architecture of the system; and

(ii) the material factors, inputs and signals relied upon; and

(iii) the material parameters, thresholds and weightings applied; and

(iv) an explanation of how those factors affect the content presented to end-users;

(b) for each automated system used materially to identify, classify, remove, restrict, promote, demote or otherwise moderate content or accounts in relation to end-users in Australia of the age-restricted social media platform:

(i) the algorithmic logic and decision-making architecture of the system; and

(ii) the material rules, criteria, inputs, parameters, thresholds and weightings applied; and

(iii) the circumstances in which content or an account is referred for human moderation; and

(iv) the policies and rules governing automated and human moderation and any review or appeal; and

(v) information about the accuracy, error rates and material limitations of the system;

(c) for each system used to determine, estimate, infer, verify or assure the age of an end-user in Australia of the age-restricted social media platform:

(i) the algorithmic logic and decision-making architecture of the system; and

(ii) the manner in which the system is implemented; and

(iii) the categories of information and data relied upon; and

(iv) the material decision rules, parameters and thresholds applied; and

(v) the circumstances in which an end-user is referred to another method of age assurance or required to provide additional information; and

(vi) information about the accuracy, error rates and material limitations of the system, including false positive and false negative rates where available.

63N Information must be meaningful and current

(1) Information published in accordance with section 63M must be sufficiently detailed to permit meaningful independent scrutiny of how the relevant system operates and its effect on Australian end-users.

(2) To avoid doubt, a provider does not comply with section 63M if the provider publishes information that is materially incomplete or misleading, excessively general or otherwise insufficient to support meaningful independent scrutiny.

63P Protection of safety, security and privacy

(1) Section 63M does not apply in relation to information to the extent that the publication of the information could reasonably be expected to:

(a) be a disclosure of personal information; or

(b) materially compromise the safety or security of an end-user or the platform; or

(c) materially assist a person to circumvent or defeat systems designed to protect children or prevent cyber attacks, fraud, spam, platform manipulation or other malicious activity.

(2) Section 63M does not apply in relation to information of a kind prescribed by the legislative rules.

63Q Compliance with this Part

A provider to which this Part applies must comply with this Part.

Civil penalty: 60,000 penalty units.

We've known the whole way, with both the issue of the social media ban and the issue of how we need to tackle making social media platforms accountable for their addictive products and the harmful content that they spew out online, that the only way to really hold tech companies to account is by ensuring that we have access to the right information. Big tech has consistently hidden and kept secret their toxic algorithms. Over and over again, academics, researchers and experts around the world have called on governments—just like here in Australia, elsewhere—to toughen up and get serious with big tech by saying that they have to have some basic transparency requirements in order to ensure that any rules that are put in place are actually followed properly. I'm interested to hear from the government what it is prepared to do in this space. What are you actually prepared to do in this space? To get tough on big tech, you have to blow open the secrecy of their algorithms and the way they manipulate people's data, the way they deliberately design their products to be addictive and the way they feed on people's vulnerabilities.

Big tech makes big claims about certain types of choices, and we all know that that is rubbish. We all know that it is just not true. Their business model is based on secret toxic algorithms that manipulate and feed on people's data and their emotions. So, if we're going to seriously put in place a duty of care, if we're going to make online safer, if we're going to allow people the freedom to turn off the algorithm or to turn down recommendations, then we have to know what's really going on under the hood. I want to know from the government: what are you prepared to do to force out what's going on under the hood of these big social media companies so that everybody can see?

I just want to make some quick remarks. I did speak earlier about the algorithmic transparency requirements and the amendment that we have brought forward, and I am looking forward to the minister's answer to Senator Hanson-Young's question, but I just want to outline why this is so important.

The starting point in understanding any harm that the algorithms of social media companies drive is, 'What is going on?' As Senator Hanson-Young has correctly said, what is going on under the hood? What is the business model? That is why this amendment—and obviously this can be seen in Hansard, but this is for those listening to this debate—in relation to the algorithm seeks:

(a) for each system used materially to select, rank, recommend, promote, demote or otherwise determine the prevalence or prominence of content, accounts or search results for end-users in Australia …

(i) the algorithmic logic and decision-making architecture of the system; and

(ii) the material factors, inputs and signals relied upon; and

(iii) the material parameters, thresholds and weightings applied; and

(iv) an explanation of how those factors affect the content presented to end-users …

In effect, that is the content recommendation algorithm.

Then this amendment also requires the social media platforms—and these are the large social media platforms with turnovers of more than $100 million—to unlock their content moderation algorithm. This is very important. The government's talked a lot about transparency and about protecting children online. We want to see how these social media platforms are moderating content and how this information is being used to identify, classify, remove, restrict, promote, demote or otherwise moderate content or accounts. Again, we want to see the algorithmic logic, the material rules and parameters and the like, the circumstances in which content or an account is referred for human moderation to make sure that it's not the bots at work and that there are humans actually involved, the policies and rules governing automated and human moderation and any information about the accuracy, error rates and material limitations.

The other key part about this algorithmic transparency is understanding the age-assurance algorithm. Again, we are seeking, in this amendment, the algorithmic logic, the manner in which the age-assurance algorithm is implemented, the categories of information and data relied upon, the material decision rules and the circumstances in which an end user is referred to another method of age assurance. These are hugely important issues in relation to the enforcement of the social media ban. We keep hearing about the age assurance that's been put in place, and yet we know it's not working.

Then also, very importantly, this amendment is not seeking proprietary information, such as the source code. There are very important exemptions. For protection, safety, security and privacy, personal information must not be disclosed, nor material which compromises the safety or security of an end user or the platform, nor material which may assist a person to circumvent or defeat systems designed to protect children or prevent cyberattacks, fraud, spam, platform manipulation or other malicious activity.

What's really concerning in relation to the government's position, Minister, is that there is not any of this in the digital duty-of-care exposure draft. How can the eSafety Commissioner determine whether a social media platform is taking reasonable steps to keep children off their platform if we're not able to understand what's going on behind closed doors, how these algorithms are being used to drive harm or not properly moderate content or, in the case of children under the age of 16, how the age-assurance algorithm is actually working? It is concerning because it indicates, firstly, that either the government is not listening to the advice it is receiving, including in our Senate inquiry, or the government doesn't understand why algorithmic transparency is critical. So I ask you, Minister: why have you taken the view that you should not support this particular amendment, and why is this not in the digital duty-of-care exposure draft? What this indicates is that, if you're not prepared to hold big tech to account and ask them for information about their algorithms, you're not prepared to do the job. I say 'you' as in the government. We have certainly seen, on X's For You feed, that X has published all the algorithmic parameters which give users a very good insight into how decisions are being made as to how content is being served. So could you please provide some insight into why the government is turning its back on this very important amendment.

First of all, we are traversing between two pieces of legislation, so I'm going to address the amendment to this bill that is in front of us. Out of respect for senators, I want to give some indication of the government's approach to digital duty of care. But I cannot, for the remaining 10 minutes, do a rule-in, rule-out game around a piece of legislation that has not been introduced to the parliament. What I will say is that the government doesn't support this amendment to this bill, because it does not meet the core objectives of the social media minimum-age law, which is to delay children's access to a social media account and, in turn, prevent children from being sucked down toxic rabbit holes, as being suggested, of harmful content.

The social media minimum age bill and the amendments we seek to make are not about the algorithm being more transparent. This is about protecting vulnerable children from it altogether. Making the algorithm more transparent, though, and giving adults more choice over how algorithms work is an issue where the government is willing to work with the coalition, with the Greens, across the chamber on our digital duty of care bill. Digital duty of care will include an Australian first, the My Feed, My Way initiative, which gives Australians control over their social media algorithms. This will ensure that children are protected from harmful content and features, including chatbots, gaming platforms, apps and messaging platforms. And users can choose to opt in to have their default feed include personalised content recommended by the algorithm.

What we will seek to do, as we consult on this bill in the consultation process on the draft legislation, is help to ensure that the law is developed and that Australians can benefit from better protections from seriously harmful illegal content across digital services and social media. Users will be afforded more choice. So we will seek, through the consultation process, to understand those issues around transparency. We will work with other senators. We will work with stakeholders. We will work with researchers. I understand that there's a researcher named Rys Farthing who has developed quite a lot of research around this issue of transparency.

But what I'd say to you, through you, Chair, is that the bill before us is not the right place for this amendment. The bill in front of us is about increasing the powers to an obligation on big tech companies to ensure that under-16s cannot access their services at all. There is no access to the algorithm at all under the social media ban. What we will seek to do under digital duty of care, particularly through the My Feed, My Way initiative, is work with stakeholders, with people around the chamber, on what that transparency and accountability should look like, but ultimately ensuring that social media platforms will be required to send a notification to new and existing users, offering them a choice over their default feed. That is a very important step forward.

But of course, as I said at the beginning of my contribution, it's not appropriate for me to rule in or out what particular provisions will be in a piece of legislation that has not yet been introduced and that we are still consulting on. But I want to give an indication to senators who have a very deep interest in this area that we will obviously consider any amendments or any proposals put forward through that process.

It is very important that we pass this bill. This bill relates to stronger powers for the eSafety Commissioner to implement the social media age restrictions, ensuring that children don't have access to social media accounts and are prevented from being impacted in any way by algorithms. We've recognised the harm that they cause. We've recognised that children need more time to form digital literacy, and that's why we've brought this bill forward. But, of course, the digital duty of care bill looks at the broader scope of that content for children and for adults and at how we can hold those big tech companies to account to ensure that their platforms are safe for Australians to use. That is how we'll approach this. That's why we're not supporting this amendment.

In saying that, I appreciate that senators will have times when they want things done expediently and times where they want full scrutiny. I don't think it's fair to say that this particular type of amendment would have been fully scrutinised. At this point, we would want to consider a number of issues, particularly in relation to significant challenges around international intellectual property law. These are all the things that we will take into account, but we will make sure that our new laws deliver for Australians, that we consult on them over the next few weeks and that we have an opportunity for this parliament to debate those laws.

This legislation before us, though, is all about making sure that the laws passed by this parliament require social media companies to do the right thing and to take the right steps, and there will be arguments across this chamber criticising the government's approach. Those are political points that are allowed to be made, but, at the end of the day, these big platforms and big tech companies, I believe, do have the ability to prevent under-16s from using their platforms, and what we need to do is give the eSafety Commissioner the powers to enforce those laws.

This amendment in front of us is not about giving the eSafety Commissioner more transparency or more accountability; the bill before us does that. It provides those information-gathering powers. It provides examination powers. It provides powers that are very similar to the original bill that was championed and introduced by the coalition. We want to make sure that the eSafety Commissioner has all of the tools that she needs to bring big tech companies to account, and that is what the bill before us does.

I would like something more concrete from the government about commitment on the transparency measures. To be perfectly honest, I think we need more than just a commitment to talking about these issues. I want to see a more solid commitment. I think it is important that we actually get under the hood of these algorithms, because that is not just how big tech makes massive profits off these dangerous, addictive products but how they seek to tweak and change and manipulate their products to make them as addictive as possible.

I believe Australians should have the right to switch off the algorithm and not have it shoved down their throat. It's up to them. It should be a freedom of choice. But people should also be free to not be tricked by an addictive product. These social media platforms have become so much a part of our lives. Every Australian should be free not just to choose but to be safe online, and part of being safe online is not being force-fed an addictive product. They are deliberately designed to be addictive. We know that. We've seen that in the US.

Progress reported.