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Digital Duty of Care submission

Our submission: reject the Digital Duty of Care Bill

The Online Safety Amendment (Digital Duty of Care) Bill 2026 would place a broad new duty on online services to "ensure a safe online environment" (proposed s 26), enforced by the eSafety Commissioner, with a civil penalty of 60,000 penalty units for failing to comply (s 26C).

The Libertarian Party WA opposes this bill outright. Our submission, lodged with the Senate Environment and Communications Legislation Committee and signed by Jordan Woodhams, WA President, asks the Committee to recommend that the bill be rejected in full.

Key points

  • Serious harms are largely already crimes. The bill's own Explanatory Memorandum says the serious harms it covers are "closely aligned with material and conduct that is illegal under the Commonwealth Criminal Code Act 1995" (EM, PDF p. 17). Threats, harassment and child abuse material are already offences (Criminal Code ss 474.15, 474.17, 474.22). Where the bill goes further, it reaches lawful material (s 25E).
  • A vague duty, a huge penalty and no allowance for cost. No platform can know in advance that it has met a duty to "ensure a safe online environment". Section 26A(3) says "the cost of the action or measures must not be taken into account". The predictable result is that platforms remove lawful speech to protect themselves.
  • Wide powers for the regulator and the Minister. These include remedial directions backed by 6,000 penalty units (s 26E), demands for information about and access to platforms' "decision-making algorithms" (s 28A), and guidelines that Parliament cannot disallow (s 28). The Minister can also declare which design features have "negative behavioural impacts" (s 25G(2)).
  • No bill of rights, so Parliament is the only check. Australia has no federal bill of rights. Adults are responsible for their own choices, and parents for their children's. The Senate should exercise the same check it did in 2024, when the Government abandoned its misinformation bill because it had "no pathway" through the Senate.

If Parliament proceeds regardless, our submission sets out seven minimum amendments, including repealing s 26A(3), deleting s 25E(1)(c) and (f), and adding a sunset clause.

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Full submission

Inquiry into the Online Safety Amendment (Digital Duty of Care) Bill 2026

Submitted by: Libertarian Party, Western Australian Division
Signed by: Jordan Woodhams, WA President, Libertarian Party WA
Level of authorisation: Authorised by the State Executive, Libertarian Party WA

References are to proposed sections of the Online Safety Act 2021 (the Act) as inserted by the Bill (Schedule 2, Part 1, unless stated), and to the Explanatory Memorandum (EM), cited by heading and PDF page because its paragraphs are not numbered.

Summary

The Libertarian Party WA submits that this bill should be rejected in full.

Government should not appoint a regulator to police lawful speech or to dictate how private platforms are designed. Adults are responsible for their own choices, and parents for their children's. Serious wrongs online, including threats, fraud and child sexual exploitation, are already crimes. The bill adds a vague duty to "ensure a safe online environment", excludes cost from the test of compliance, backs it with penalties of 60,000 penalty units, and leaves the Commissioner and the Minister to fill in the detail. The predictable result is that private platforms, acting under state pressure, will remove large amounts of lawful speech. Australia has no bill of rights, so Parliament is the only check on that outcome.

Recommendation 1: That the bill be rejected in full.

Recommendation 2: That Parliament review and wind back the eSafety Commissioner's existing discretionary powers over lawful adult material, in particular adult cyber-abuse removal notices (Part 7 of the Act) and removal and remedial notices for Class 2 material under the online content scheme (Part 9).

If Parliament proceeds regardless, the amendments in section 7 are the minimum required.

1. About us

The Libertarian Party is a registered political party. Its WA Division represents members across Western Australia who hold that free expression, personal responsibility and limited government are the foundations of a free society.

2. The serious harms are largely already crimes

The EM itself says that the serious harms covered by the duty are "closely aligned with material and conduct that is illegal under the Commonwealth Criminal Code Act 1995" (EM, Statement of Compatibility, PDF p. 17; see also Section 25D, PDF p. 54). The Criminal Code already makes it an offence to use a carriage service to make threats (s 474.15), to menace or harass (s 474.17), and to access or transmit child abuse material (s 474.22). Fraud is an offence under Commonwealth and state law (for example, Criminal Code (Cth) s 474.14 and Pt 7.3; Criminal Code (WA) s 409). The Act also already provides complaint and removal schemes for cyber-bullying of children, adult cyber-abuse, non-consensual intimate images and refused-classification material, and Schedule 1 of this bill extends them.

The EM also says that "most of the categories of harmful content under the Bill are already covered under the Act", through the Basic Online Safety Expectations and industry codes (EM, PDF p. 17). The bill repeals both (Sch 2 item 13; Sch 3) and replaces them with a single open-ended duty. Where its reach goes beyond existing law, it extends to material that is lawful. Section 25E covers material that "may not be considered illegal" (EM, Section 25E, PDF p. 57), including material that "encourages or promotes hostile attitudes towards women or gender equality" (s 25E(1)(c)) and "any other material or conduct ... that may cause serious harm to children" (s 25E(1)(f)).

When conduct is criminal, the answer is to enforce the criminal law, with its due process, burden of proof and independent courts. When speech is lawful, the state has no business directing its suppression, whether directly or through a platform.

The EM criticises existing law as "reactive and remedial" (PDF p. 16). That is a feature, not a flaw: punishing wrongdoing after it is proved, rather than requiring private companies to anticipate and suppress speech in advance, is how a free society protects both safety and liberty. Where offenders are offshore, the answer is international law-enforcement cooperation and the existing removal notices, not a general duty to pre-emptively restrict lawful speech.

3. A vague duty, judged after the fact

Section 26(1) provides that a person responsible for an online service "must take appropriate action to ensure a safe online environment". A "safe online environment" is one in which people "are protected from" the listed harms (s 25C). No provider can know in advance that it has met this standard. Compliance is decided after the event by the Commissioner and, for penalties, by a court, under a civil penalty of 60,000 penalty units (s 26C).

The EM says individual pieces of harmful content "will not necessarily constitute a breach", but "may form part of the evidence that there is a systemic issue constituting a breach" (EM, Section 26A, PDF p. 67). Every lawful but contested post therefore becomes a potential item of evidence against the platform hosting it.

Section 26A(3) provides that "the cost of the action or measures must not be taken into account." Nothing in the test rewards a platform for leaving lawful speech up. The rational response is to remove more. That is censorship by private platforms acting under state pressure, and it will fall hardest on contested speech: political argument, satire, religious conviction, minority opinion, and frank discussion of health, sexuality and drugs.

4. Discretion without limits

The bill gives the eSafety Commissioner:

  • formal warnings (s 26D);
  • remedial directions backed by 6,000 penalty units (s 26E);
  • infringement notices (Sch 2, items 15–19);
  • power to demand information about, and access to, a service's "decision-making algorithms" for selecting, recommending, restricting or moderating material (s 28A);
  • power to publish the guidelines that will in practice define compliance (s 28). These are not made by legislative instrument, so Parliament cannot disallow them.

The Minister may, by legislative instrument, declare further design features to have "negative behavioural impacts" (s 25G(2)), decide which services count as social media (s 25C(2)), and grant or withhold exemptions (s 25B(3)).

Dictating the design of lawful products, such as feeds, recommendations and notifications, is not the proper role of government. Adults can choose which services they use and how they use them. Parents are responsible for supervising their own children and are better placed to do so than a Commonwealth regulator.

5. No bill of rights: Parliament is the only check

Australia has no federal bill of rights. The implied freedom of political communication limits government power but confers no personal right (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520). Section 233 of the Act preserves it, but that does not protect the large body of lawful speech that is not political communication. The statement of compatibility (EM, PDF pp. 9–22) is "not binding on any court or tribunal" (Human Rights (Parliamentary Scrutiny) Act 2011 s 8(4)).

In practice, the protection for Australians' lawful speech is whatever Parliament chooses not to enact. Parliament exercised that check in November 2024. The Government abandoned its Communications Legislation Amendment (Combatting Misinformation and Disinformation) Bill 2024, saying there was "no pathway to legislate this proposal through the Senate". The Senate should exercise the same check here.

6. Costs fall on users and small services

The EM justifies excluding cost on the ground that, on "large platforms with millions of users, a small percentage of online harms" can still matter (EM, Section 26A, PDF p. 67). Yet the exclusion applies to every service covered. The financial impact statement says the bill will have "only a minor impact on Commonwealth expenditure or revenue" (EM, PDF p. 8), so compliance costs fall on services and their users. Large global platforms can absorb them. Australian start-ups, community forums and small hosts may not be able to, and will survive only if the Minister grants an exemption (s 25B(3)). A law aimed at the largest firms will entrench them.

7. If Parliament proceeds regardless: minimum amendments

We oppose the bill. If Parliament nonetheless proceeds, these are the minimum amendments required:

  1. Narrow the duty. Replace "ensure a safe online environment" (s 26) with a duty to take reasonable steps against the material listed in s 25D that is unlawful.
  2. Restore proportionality. Repeal s 26A(3).
  3. Remove the open categories. Delete ss 25E(1)(c) and (f).
  4. Protect lawful speech. Add to s 26A(1) a mandatory consideration of freedom of expression and of the risk that measures will restrict lawful material, including excluded material under s 25F.
  5. Restore parliamentary control and review. Make s 28 guidelines a disallowable legislative instrument. Extend merits review to formal warnings under s 26D. The bill already provides Administrative Review Tribunal review of remedial directions and s 28A notices (Sch 2, items 44–45). We note that the EM's explanation of item 45 (PDF p. 100) refers to "section 26AAA, 26AH, 26G", which do not match the bill (26E, 27C, 27F, 27H). Its explanation of item 49 (PDF p. 101) refers to "the provider of an online service" rather than "a person responsible for an online service". The EM should be corrected. Require annual reporting to Parliament on each use of ss 26D, 26E and 28A.
  6. Protect small services by statute. Exempt services below a statutory threshold of Australian users from s 27, rather than leaving this to ministerial grace under s 25B(3).
  7. Sunset and targeted review. Item 51 amends s 239A(1) so that the existing independent review of the whole Act must occur within three years after the duty commences, with the report tabled (s 239A(3)). Amend s 239A to require that review to examine over-removal of lawful material, effects on small and Australian services, and the use of ss 26D, 26E and 28A. In addition, provide that the duty provisions cease after five years unless re-enacted.

Conclusion

A free society deals with crime through the criminal law and leaves lawful speech alone. This bill does the opposite. It deputises private platforms to suppress lawful speech under threat of penalty, on standards set by a regulator and a Minister, with no bill of rights to fall back on. We urge the Committee to recommend that the bill be rejected in full. We would welcome the opportunity to appear at the Committee's hearings.

Jordan Woodhams
WA President, Libertarian Party WA
On behalf of the Libertarian Party, Western Australian Division