Briefing: A Duty of Care in Australia's Online Safety Act

This policy briefing reflects discussions held at a roundtable of 21 experts from academia and civil society in March 2024, where we explored the opportunities and challenges of introducing a duty of care into Australia’s Online Safety Act. The event was held under the Chatham House Rule, and this briefing presents an overview of the discussion.

This discussion was timely. While online safety advocates have been calling for a duty of care in online safety regulation since 2019, there is a current policy opportunity to see this realised in Australia. In its response to the House of Representatives Inquiry into Social Media and Online Safety in April 2023, the Government announced its intention to bring forward the statutory review of the Online Safety Act from 2025 to 2024. In March 2024, the Department of Infrastructure, Transport, Regional Development, Communications and the Arts released the Terms of Reference for this review, which includes explicit proposals to consider:

“Whether the regulatory arrangements, tools and powers available to the Commissioner should be amended and/or simplified, including through consideration of: a. the introduction of a duty of care requirement towards users (similar to the United Kingdom’s Online Safety Act 2023 or the primary duty of care under Australia’s work health and safety legislation) and how this may interact with existing elements of the Act.”

The statutory review is being led by Delia Rickard, former Deputy Chair of the Australian Competition and Consumer Commission, and must report back by October 31st 2024. While the review is not open for public input yet, there will be an Issues Paper accompanied by a call for public submissions in the first half of 2024. The purpose of this discussion was to prepare civil society for this debate and to help inform the review team as they develop their issues paper.