Communications Minister Anika Wells is set to back down on ministerial powers in Labor’s Digital Duty of Care laws amid backlash over free speech concerns.
News24.com.au can reveal Ms Wells is preparing to remove the provision that would give her power to determine what constitutes “serious harm” on the internet.
The decision follows opposition from the Coalition and the Greens, amid concerns the exposure draft laws included too much ministerial discretion.
Under the proposed change, the minister will instead have to legislate each time the government seeks to define serious harm, sources told News24.com.au.
Ms Wells is expected to introduce the legislation this week, with the minister due to address the National Press Club on Thursday.
The proposed backdown comes after Greens leader David Shoebridge warned Labor would not secure the support in the upper house required to pass the bill.
“We’ve had a look at that draft legislation, and there is too much ministerial discretion in it,” Mr Shoebridge told News24.com.au.
“And we don’t think that giving a minister excessive discretion is a good way of going. And we’ve made this clear publicly.”
The Greens backed the principle of forcing tech giants to make their platforms safer but raised serious concerns about powers being handed to the government.
“You don’t want to do it as policing content, some kind of whack-a-mole policing on content,” Mr Shoebridge said.
“What you want to do is look at the fundamental systems and that’s our focus, getting the system safer.”
Free speech concerns
The proposed change represents a significant concession from Labor, which needs support in the upper house to pass its Digital Duty of Care legislation.
The Greens, Coalition and One Nation all rejected the exposure draft in its proposed form.
The Coalition has vowed to oppose the legislation, arguing the proposed regime risks giving the government excessive influence over online freedoms.
“Our worst fears have been realised… with the release of the exposure draft of the Digital Duty of Care,” Ms Henderson told News24.
“It provides the minister with unfettered powers to make any regulation into what she would describe as serious harm.
“Now, this means almost anything. The government could shut down any content or material that they deem to be harmful.”
At the centre of the dispute was a provision allowing the Communications Minister to determine content that could cause “serious harm”.
The government had argued the mechanism included a safeguard because the instrument can be disallowed by parliament.
But critics questioned whether that safeguard was sufficient when the minister would determine what constitutes serious harm.
Ms Wells previously acknowledged the extent of her proposed authority when discussing the draft legislation.
“The test for what would constitute a new serious harm would ultimately be, I guess, made by me on the expert technical advice of the eSafety Commissioner,” she said.
“However, it’s a disallowable instrument. So it is the parliament that ultimately determines whether I’ve got that right or wrong.”
The minister had also indicated she was open to amendments to secure support for the legislation.
“If it needs to go to the parliament to secure Coalition support, I am more than open to that,” Ms Wells had said.
Removing the ministerial instrument-making power would address one of the most contentious elements of the proposal.
Voters reject ministerial power
The proposed retreat follows News24.com.au revealing most voters were uncomfortable with the minister having authority to determine harmful content.
Forty-eight per cent of Australians were uncomfortable with the minister being handed the power to decide what constitutes harmful content.
Twenty per cent said there was “too much power with the Minister for Communications to determine what is harmful content”.
Another 28 per cent said the law was needed but the Communications Minister should not have that power.
By comparison, 42 per cent backed the proposition that “the law is needed to make sure there is no harmful content online”, while 10 per cent did not have a view.
Responding to News24.com.au/YouGov Pulse polling showing widespread concern about the ministerial power, Ms Wells said she was open to amending the laws.
“If it needs to go to the parliament to secure Coalition support, I am more than open to that,” she said.
Further concerns over eSafety powers
Separate provisions in the proposed legislation authorise the eSafety Commissioner to assume “sock puppet” powers to carry out functions under the Online Safety Act.
The bill defines a sock puppet as a “false or fictitious identity” assumed by someone while using or carrying out activities involving an online service.
Under section 205J, the Commissioner “may assume a sock puppet identity” to perform eSafety functions or exercise powers under the Online Safety Act.
The provision would overrule any federal, state or territory law preventing fake online accounts.
The powers extend to creating and using accounts to access services, downloading material, engaging with platforms and testing platform features.
In limited circumstances, the commissioner could interact with users, although the bill says this could only occur to prevent the account being shut down.
Section 205K(2) also authorises the Commissioner to “generate material using an online service (including by means of artificial intelligence)” using sock puppets.
The provision would apply provided the “production, dissemination or possession” of that material is not an offence under federal, state or territory law.
Approved online-safety researchers would also be authorised to assume sock-puppet identities, although the AI provision only applies to the Commissioner.
Institute of Public Affairs research fellow Margaret Chambers said the sock puppet provision raised concerns about “information warfare”.
“The Commissioner has shown that her version of ‘online safety’ is ideological and extends to censoring political debate,” she said.
“It is hardly surprising that an aggressive and unaccountable regulator would seek to co-opt artificial intelligence to promote its ideologically sanitised vision for the internet.”