Speech - The Sydney Institute - The governance of digital platforms

Good evening ladies and gentlemen.

It is a pleasure to be here at this most esteemed function. 

There are too many Parliamentary colleagues and distinguished guests here this evening to acknowledge within Gerard’s very strict timeframe. But I do call out the Hon Milton Dick, Speaker of the House of Representatives, as well as the Hon Prue Car, Deputy Premier of NSW. 

I am delighted to be in all your company. 

I acknowledge the traditional owners - the Gadigal people of the Eora nation, and pay my respect to Elders past, present and emerging.

Thank you to Gerard and Anne Henderson and The Sydney Institute for the invitation. 

This is the third time I have had the honour of addressing The Sydney Institute. The first occasion was in 2013 after, to the astonishment of most of Western civilization, I managed to hold my 0.8 per cent marginal seat of Greenway (with a swing towards me, no less) when Tony Abbott came to power. 

Gerard asked me to explain to The Sydney Institute how on earth that happened, and I was happy to oblige with a few reflections. 

The second occasion was just prior to the 2019 election, where I laid out an incoming Labor Government’s agenda for the communications portfolio. Turns out, I had to keep that up my sleeve for another term, but it has come in handy since. 

I can honestly tell you, I never expected to be invited to address this annual dinner comprising so many eminent people, as Minister in my portfolio of passion. 

As you know, the Albanese Government recently made a significant announcement in my portfolio about legislating a minimum age for access to social media. 

We are proposing important changes to protect young Australians, and tonight, we have another big reform to announce.

Our motivations are clear, and the harms of social media hardly need rehashing. 

The special psychological vulnerability of children and the risks they’re exposed to on social media is understood within this room.

What I want to do tonight is present to you our approach: why it makes sense, and why it will work.

We are doing the right thing, for the right reasons, at the right time.

We are drawing on lessons of the past, and building on the best policy instincts of modern Labor for the future.

GROWING UP IN WESTERN SYDNEY

As I recalled more than five years ago, in the late 1980s I was in my final years at an all-girls Catholic school.

Blacktown born and bred, I was living the Western Sydney life: studying hard, working at the local supermarket, and third speaker in the senior debating team.

I studied 3 unit economics and my teacher, Miss Mathews, turned the class into a curriculum on the then Treasurer Paul Keating - waving around the latest Ross Gittens article, reading it to us with a reverence worthy of the Magna Carta. 

When I’m asked how and why I got into politics, often by local school children, I recall my engaging teachers at Our Lady of Mercy Parramatta.

I was lucky my dad, Frank, worked as Circulation Manager at John Fairfax and Sons. 

Every night he came home with a bag of newspapers and magazines from around Australia and the world. 

Information was my fuel; I devoured everything Dad brought me in print.

Taking my HSC, I could not have imagined a world where – in the palm of my hand – I would have access to almost every book ever written, every news article in the Washington Post or the Financial Times, the moment they were published. 

If you had told me this back then, it would have blown my mind.

I do remember the first time I used the internet. I was dating a guy who was working at the Law and Justice Foundation, and that’s when I was astounded to learn that legal cases were available in a digital format. 

For me, this was revolutionary, as it meant I didn’t have to spend all my hard-earned money as a checkout operator paying to photocopy cases for my law degree anymore. 

I was so impressed with this epiphany that I ended up marrying that man – shout out to you, Michael. Good to catch up this evening. 

Yet another proof point of why I am truly optimistic about the power and potential of technology and communications to deliver a better future with greater opportunity.

It is the task of Labor governments to lean into this future.

When I think back to my formative years, my parents had a far better understanding of the media I was consuming, than I do of my two young daughters today.

This was the Australia in which the Privacy Act passed the Parliament – unamended in any real substance – the Australia of 1988. 

The then Treasurer Paul Keating warned of challenges to come in the information age - and I quote:

We know in this, the age of knowledge, the age of truly mass communications, with the ubiquity of digital tools, that the occasions for incursions into the privacy of people will continue to rise exponentially. 

We can take the determinist view which concedes that the privacy of all of us is now effectively gone, or, we can assert that an innate right of humanity, of, indeed the human condition, is the right to individual privacy.

Barely fifteen years earlier, the same had been true of the Whitlam Labor Government, which came to office at a time when Australia was a consumer policy backwater.

The country was burdened by what was called the Restrictive Trade Practices Act, a piece of statute representing the intellectual accumulation of the do-nothing consumer agenda of the 1960s in official Canberra.

It contrasted sharply with the substantial thought about citizens as consumers, which marked global social democratic and liberal politics of the time. 

 Historians of the period will tell you that price fixing was the norm in Australia. 

Consumers barely had a look in. You had to cop it - that is just the way it was.

You want to talk about a club that ran part of the economy? This was it.

As former ACCC Chair Graeme Samuel has remarked, the Act “actually didn't mean an awful lot”, polite speak that it allowed rent seekers to keep seeking rent.

But with the 1972 election and the appointment of Lionel Murphy as Attorney-General, things were about to change.

This was the scene for the introduction of the Trade Practices Act in 1974 – that’s right, 50 years ago.

The Trade Practices Act was new. Not just in its purpose or scale – but in its methods.

Here was “systems regulation” in the consumer, competition and product safety spheres.

As the then Minister for Manufacturing Industry, Kep Enderby, said in his second reading speech:

In consumer transactions unfair practices are widespread. The existing law is still founded on the principle known as caveat emptor - meaning 'let the buyer beware’.

That principle may have been appropriate for transactions conducted in village markets. It has ceased to be appropriate as a general rule. 

Now… the marketing of goods and services is conducted on an organised basis and by trained business executives. The untrained consumer is no match … and needs protection by the law …

The legislation allowed businesses to lodge authorisations which granted automatic protection against the new law, until the application was processed.

It’s said that on the last day of January in 1975 - when applications were due - the Commission’s Sydney office remained open to receive last minute requests.

At midnight, the Regional Director famously covered up the clock so staff could keep going and say applications were processed on the 31st. 

This underscores the level of change in the works - and how many businesses needed transitional arrangements to prepare for a modern consumer regime.

The core Labor value of fairness had taken legislative form, and was given life through a more vibrant and successful economy. 

The Act demonstrated itself as a cornerstone of a modern economy and influenced how subsequent laws were framed in the region, including New Zealand, Singapore, Malaysia, Hong Kong, Papua New Guinea and Fiji. 

It’s hard to imagine Australia’s competitive modern economy without the protections of the Trade Practices Act. 

The lessons of Labor governments in the 1970s and 80s is we have to assert our values in a way that encourages the positive change we want to see.

In doing so, we cannot shy away from asserting our norms, simply because the digital landscape changed. Rather, we have to intervene in the face of challenges and shape the outcomes we want, sometimes in novel and potentially radical ways.

THE PROBLEM HAS CHANGED

The challenge before us is harnessing the benefits of the digital economy while managing the impact of social media on our children, society and democracy.

While consumer protection has matured over recent decades, protections for consumers and children on digital platforms are either nascent or developing as digital products and services continue to evolve.

The internet has long been a regulated space in Australia. 

Since the turn of the century, the online content scheme under the Broadcasting Services Act was enacted to protect consumers, particularly children, from exposure to inappropriate or harmful material.

Following this, the contribution of our predecessors was the Online Safety Act, which built further protections into our laws.

In its current approach, it enables the online safety regulator to deal with complaints about cyber abuse and seek removal of harmful content considered unacceptable or illegal - including child sexual abuse material, pro-terror material, and abhorrent violence.

It was world-leading legislation for its time, and I acknowledge my predecessor Paul Fletcher for his work in making it a reality.

And Julie Inman Grant, our eSafety Commissioner, for her tireless work and forceful advocacy, particularly in relation to the protection of children.

Labor was right to provide bipartisan support for the establishment of the institution and its law, including in 2021. 

But while the Online Safety Act serves a meaningful purpose, the nature of the task today now surpasses what it was designed to do.

The Online Safety Act has been a crucial tool for incentivising digital platforms to remove illegal content, usually applied remedially and case by case. 

However, it does not, in a fundamental sense, incentivise the design of a safer, healthier, digital platforms ecosystem.

To my mind, what’s required is a shift away from reacting to harms by relying on content regulation alone, and moving towards systems-based prevention, accompanied by a broadening of our regulatory and social policy perspective of what online harms are experienced by children.

If I were to describe pre-1974, and post-1974, as two distinct phases of regulation – from the pre-modern world of caveat emptor to something like a modern consumer protections system – then I believe we are heading towards a third phase with a distinctly digital character.

And, unlike the first two phases of consumer and privacy policy, where the actors were predominantly onshore and the harms mainly economic …

… this third, truly digital phase of consumer protection, is characterised by the actors being offshore, with the harms now including people’s mental health.

In 1985, Bill Gates brought us the Microsoft operating system.

Around a decade later, Larry Page and Sergey Brin introduced Google, which delivered information to our fingertips.

Close to a decade after that, Steve Jobs humanised technology through the iPhone, if not only enabled by our thumbs.

These entrepreneurs transformed the world, and, in doing so, helped democratise information and the benefits of technology.

As Australians, we admire and applaud this. Few societies are quicker to adopt new technology than our own.

And we were right to be optimistic.

While the global tech giants of the 1990s were scrutinised by competition and antitrust regulators, their software was not – inadvertently or otherwise – underpinned by algorithms that impacted the development of children or gave rise to the mental health risks that we see today.

Much less, they didn’t teach our fourteen-year-old sons new misogynistic epithets, or encourage our twelve-year-old daughters to starve themselves. 

But with the rise of social media platforms, this is exactly what has changed.

Social media is an accelerant for information flows that can influence the upbringing of children, the health of our democracy, and the distinctiveness of our culture.

As a nation of norms and values, we need to put down markers and be clear about what we want to achieve and why.

Just as the Whitlam Government refused to subjugate fairness to the anti-consumer forces of the market economy in the 20th century, the Albanese Government will not cede the health of our children or our democracy to the social media economy of the 21st century.

A DIGITAL DUTY OF CARE

This is why the Albanese Government can announce its decision to develop a Digital Duty of Care regulatory model to keep users safe and help prevent online harms.

I was pleased to recently receive the report of the independent review of the Online Safety Act, undertaken by Delia Rickard, the former Deputy Chair of the ACCC, who also joins us this evening. 

I brought forward the statutory review of that Act by a year, which had been in operation since 2022, but was already out of date.

While we work through her comprehensive report, one message stood out: a Duty of Care is fundamental. 

A Duty of Care is a common law concept and statutory requirement that places a legal obligation to take reasonable steps to protect others from harm.

This is embedded in our work, health and safety regimes, which the Commonwealth, States and Territories implement, regulate and enforce in their own jurisdictions.

It is a proven, workable and flexible model.

This, as part of a growing global effort, will deliver a more systemic and preventative approach to making online services safer and healthier.

Where platforms seriously breach their duty of care – where there are systemic failures – we will ensure the regulator can draw on strong penalty arrangements.

We have the jurisdictional and enforcement mechanisms to protect Australians who use the services of digital platforms.

For example, the Online Safety Act expressly applies to “acts, omissions, matters and things outside Australia”. 

It rightly finds both its policy rationale and its jurisdictional nexus in the harm which occurs onshore to Australians.

To complement the overarching Digital Duty of Care, the Albanese Government will legislate enduring categories of harm, which we propose could include: 

• Harms to young people;
• Harms to mental wellbeing;
• The instruction and promotion of harmful practices; and 
• Other illegal content, conduct and activity.

An essential component of satisfying the Duty of Care is undertaking regular risk assessments against the enduring harms.

These requirements are core features under the European Union Digital Services Act, and the UK Online Safety Act.

Harmonisation with like-minded countries is a key objective, because policy principles that carry across markets, reaching hundreds of millions of users, will be more effective at driving change.

Last week, the Albanese Government also announced we will legislate a minimum age of 16 for social media access, receiving the endorsement of National Cabinet.

This is an important national conversation and the Commonwealth is providing national leadership.

This world-leading legislation will impose a positive obligation on social media to prevent children under this age from having an account.

There have been questions about how age assurance technology will work and whether the enforcement is child proof.

The Government does not pretend any solution from industry will be 100 per cent effective, or that children won’t find a way around it. 

The reality is: some will.

But the fact is: the normative value of the age limit will be immense, because parents will draw on this reference point during their kitchen table discussions with their children.

There is a growing body of evidence about the need for better guardrails.

For example: in 2022 a group of UK psychologists and neuroscientists, analysing longitudinal data on 17,400 young people, found that young girls experience a negative link between social media use and life satisfaction when they are 11 to 13 years-old and young boys when they are 14 to15 years old.

As researcher Dr Amy Orben put it – and I quote - “with our findings, rather than debating whether or not the link exists, we can now focus on the periods of adolescence where we now know we might be most at risk”.

In the United States, the American Psychological Association found significant links between excessive social media use and poor sleep quality and poor mental health outcomes.  In particular, the use of algorithms may increase the likelihood of exposing young people to content that is inappropriate or negatively influential, such as glorifying eating disorders, self-harm or extremist content. 

In the Australian context, Growing Up in Australia: The Longitudinal Study of Australian Children – a partnership between the Department of Social Services, Roy Morgan and the Australian Institute of Family Studies, showed that increased frequency of social media use was associated with elevated symptoms of depression and anxiety.

In compliance with US privacy law, platforms have imposed a minimum age of 13.

Yet, recent research from the eSafety Commissioner’s Social Media Pulse Survey also found that 84% of 8 to 12-year-olds had used at least one social media or messaging service since the start of this year, with 75% having used traditional social media services.

And of the 9 year-olds who had used social media or messaging services since the start of the year, more than a quarter had their own profile or account.

Further, only 13 per cent of 8 to 12-year olds with a current account reported having had an account shut down since the beginning of the year because they were too young to use it.

Our legislation will include a new definition of social media that is broad and robust, and is designed to capture more services under the term “age-restricted social media” than what is currently covered under the existing Online Safety Act. 

Common social media services such as Facebook, Instagram, TikTok, and X will be subject to the minimum age limit.

Messaging and gaming services will not be in scope of this definition. 

Our legislation will also contain positive incentives as part of an exemption framework to encourage safe innovation, and also provide for access to social media type services that enable education or health support for young people.

Social media platforms that can demonstrate they meet set criteria and do not employ harmful features, or provide positive benefits for children, may apply to the regulator for approval.

Its implementation will be set under disallowable instruments, under the scrutiny of Parliament. 

In conjunction with the Digital Duty of Care, this will create a powerful incentive for social media to value the safety and wellbeing of users alongside profit.

This is critical because the harms on social media don’t disappear at the age of 16. 

As my colleague, Assistant Minister Dr Andrew Leigh MP, has outlined, since 2007, the mental health of young Australians has gotten worse.

Self-harm hospitalisations for young Australian females aged 16-24 from 2019 to 2021 increased by 43%, standardised for population, relative to 2008-2010; and levels of reported anxiety in young Australian men increased from 9% in 2007 to 24% over 2020 to 2022 - a near three-fold jump.

It is now time for industry to show leadership, and for social media to recognise it has a social responsibility.

The Government is playing its role and recognises that online safety requires a whole of government response.

The Attorney-General has introduced new criminal offences to ban the non-consensual sharing of sexually explicit deepfakes.

The Minister for Social Services and I have engaged with the family, domestic and sexual violence sector on online dating safety, which has resulted in the dating app providers formulating a world-first code to support user safety and incentivise industry to do better.

With the support of the Finance Minister and Treasurer, the Government has quadrupled the ongoing base funding of the online safety regulator.

The Minister for Industry and Science is leading work on Artificial Intelligence, to ensure this technology works for Australians.

The Government has also expanded free digital media literacy training to all schools through the Alannah and Madeline Foundation.

And we have introduced legislation to ensure platforms are accountable for harmful misinformation and disinformation.

The strong and clear advice we have received from our regulators is that misinformation and disinformation is a problem now.

The community is rightly concerned and wants action.

The Australian Media Literacy Alliance highlights that 80 per cent of Australians want the spread of misinformation in Australia to be addressed.

Some platforms are a black box when it comes to their content moderation decisions. Even the industry’s own independent assessment of their transparency reports found they were lacking.

The Parliament now has an opportunity to lift the hood on big tech, and bring unprecedented transparency and accountability to the actions of digital platforms when it comes to seriously harmful misinformation and disinformation online.

These reforms would require digital platforms to have systems and processes in place for dealing with seriously harmful information that is false, misleading or deceptive.

These systems would include the ability for everyday Australians to challenge the content moderation decisions of digital platforms. 

You can’t be serious about online safety or democracy if your position on harmful misinformation and disinformation is to tolerate inaction.

Across the Albanese Government, Ministers are getting on with the job.

A key challenge for Australia over the next decade will be increasing productivity.

The Hawke-Keating reforms of the 1980s and 90s paved the way for higher living standards by promoting competition, reforming the financial system, nurturing creativity, and opening the Australian economy to Asia and the world.

Part of their unfinished business was the potential of traditionally non-traded sectors of the economy, such as health and education - which can now be fundamentally transformed and disrupted by artificial intelligence.

For policy makers to take an elevated view of how technology can shape our future for the better, we need to deal with the excesses of social media, and other emerging technologies like AI, otherwise, they will continue to disproportionately dominate public debate.

We must get to a place where public trust in technology and innovation are in a virtuous circle.

I am confident in our ability to do this.

The truth is there is no consensus on the governance of digital platforms and how to keep children safe and healthy in the digital age.

Yes, the task of change is hard and the road is not straight – but what is clear is that doing nothing is not an option.

My life experience as a competition and regulatory lawyer in the early 2000s taught me there will be junctures where you have to draw on imagination and creativity, and do things differently.

That also means, in policy and political terms, taking considered risks.

There is an enduring human and democratic quality to Labor’s values, and the task of Labor governments is to give them modern form.

Half a century ago, the Trade Practices Act enshrined fairness and decency of market conduct into law in the long-term interests of consumers.

In 1988, the Privacy Act sought to preserve some agency and rights in a world about to be disrupted by technology.

Today, technology is posing a different question for modern politics.

The Albanese Government has outlined its plan to change the way social media operates in this country.

A core priority of this Government is protecting our people, our economy, and our democracy from harms.

We are clear about where we stand - on the side of millions of concerned parents, children and citizens at large.

They all have our support. I hope they have your support too.

Thank you.