It is not often that a minister describes the most sweeping power she has ever asked for with the words ‘I guess’.
Asked this week who would decide what counts as a new serious harm online, Anika Wells said the test would ‘ultimately be, I guess, made by me on the expert technical advice of the eSafety Commissioner’.
The power behind them sits at the centre of the Digital Duty of Care bill, released in draft on 8 September under the cheerful title ‘My Feed, My Way’.
It is two bills bound together, and they pull in opposite directions. One returns a measure of control to the people who use social media. The other gathers it into the hands of a single minister.
The reform worth keeping
Under the draft, every user aged 16 and over will be asked to choose their feed: the one a platform’s algorithm assembles, or one made only of the accounts they have chosen to follow.
This is a genuine reform, and its virtue lies in what it leaves out. It does not tell anyone what to view or read. It simply requires the platform to ask, and moves a decision from engineers in California or Beijing, to the person holding the phone.
The power that should go
Platforms must take responsible steps to prevent foreseeable harms, on pain of fines up to $109.2 million.
For children, the harms are listed. For adults, they are confined to what is already illegal. But the minister may add new categories by regulation, whenever she is satisfied, in her own judgment, that the content could harm children or seriously harm adults.
The fines runs one way
A platform that leaves up material the regulator later judges harmful risks paying millions. A platform that removes lawful material risks nothing. Faced with that arithmetic, it will remove first and review never.
The fine is itself a kind of algorithm: a rule that runs without judgment, and always towards deletion. The minister will be able to say, with perfect accuracy, that she asked for nothing to be removed. The censorship will be real. The censor will be invisible.
Communist East Germany understood this. Its constitution promised a free press, and its officials insisted there was no censorship. Writers learned instead to guess where the line lay, and to cut their own work before anyone asked. They had an expression for it: the scissors in the head. A $109.2 million fine will put the same scissors in every platform.
The regulator’s instincts are already on record. In April 2024 the eSafety Commissioner went to court to force X to hide footage of the Wakeley Church stabbing from every user in the world. Few will mourn that footage. The claim was the problem: an Australian official deciding what the whole internet could see.
The Federal Court declined to extend the order, She was stopped because a court sat. Under a duty of care, the platform deletes first, and there is no government order for a court to strike down.
Nor does it stop at social media. Wells concedes the duty “does go to all online services”, and that is where journalism now lives, this newspaper included. Caution will do the editing.
An old phrase, new lodgings
‘Serious harm’ is not new to Labor’s vocabulary. It was the threshold in the misinformation bill the government abandoned in 2024, after the critics across the spectrum warned that nobody could say where its line fell. Parliament will have to pass this bill. But if it does, each new category of serious harm will arrive by regulation, and parliament need never vote on one again.
Wells says parliament is the safeguard. Her rules are disallowable instruments, ‘ultimately for parliament to deliberate on. That’s a good check and balance’. Yet regulation takes effect unless the Senate votes it down, and the government needs only one senate ally to defeat such a motion. Wells calls that a check and balance. It is a lock to which the government holds the key.
The Greens helped defeat Labor’s misinformation bill in 2024. They should refuse to hand over the key this time.
Judge in her own cause
Wells told The Saturday Paper of a constituent who repeated a claim about the government. ‘That is a scare campaign from online,’ Wells told her. The woman ‘didn’t believe me’. Until this year, Wells said, voters believed her when she looked them in the eye. ‘What I’m noticing now is that they don’t’.
Her diagnosis: ‘the power of the algorithm is so strong that it is overwhelming our public institutions’.
She has also felt the feeds heat more than most. After last December’s outrage over her travel claims, her announcements drew months of mockery of her character rather than her policies. In May the expenses watchdog found four breaches, and she repaid more than $10,000.
Some of the criticism was deserved, Much of it was cruel. It would be surprising if she did not come away believing the feed is a kind of harm. That is precisely why she should not be the one to define it.
The principle does not depend on Wells, or on Labor. It is the oldest rule of fair judgment: no one should sit in their own cause, of any party, should decide which criticism the public may see: not of ministers, not of governments, not of ideas.
The objection
Children need protecting, and the platforms have earned no trust. Neither fact requires an open-ended power in ministerial hands. Children’s protections can be written into the statue, where any change needs a vote. The harms that justify state action against adults are already crimes; threats, grooming, exploitation, incitement. What the bill adds is not protection, it is control. It is censorship.
Any student of history knows that humanity’s long, stumbling march towards its own freedom has been made against the censors, never with them.
Divide the bill
Parliament should separate the two halves. Pass the algorithm choice. Strike out the minister’s power to create categories of harm. Fix the children’s protections in the legislation itself.
We are not the government’s children to be told what we may see. Give us the switch. Deny the government its second algorithm.
Chaiy Donati is a former President of Queensland Young Labor
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