The Online Safety Amendment (Digital Duty of Care) Bill 2026 replaces the Basic Online Safety Expectations and the industry codes and standards with one duty, enforced by the eSafety Commissioner, with a maximum penalty of $109.2 million for a company. Here is the mechanism, who pays, and the strongest case on each side.
On 15 October 2026 the Communications Minister, Anika Wells, introduced the Online Safety Amendment (Digital Duty of Care) Bill 2026 in the House of Representatives. The second reading was moved the same day. The Greens and ABC reporting say an inquiry is expected to report in November.
The core sentence is section 26. A person responsible for an online service "must take appropriate action to ensure a safe online environment, including by taking effective measures to mitigate risks" found in its own risk assessments. Section 26A lists what counts in judging whether action was appropriate: how far it achieves a safe environment, the nature of the harm, the effect on security, and whether the steps are proportionate to the likelihood and degree of harm. Then subsection 26A(3): "the cost of the action or measures must not be taken into account."
The Online Safety Act 2021 now works through take down notices, the Basic Online Safety Expectations and industry codes and standards. The bill repeals the expectations and the codes and puts one duty in their place.
The bill works through five gears:
Two changes since the draft matter. The minister no longer has a power to define new harms; the lists are in the Act, and changing them needs Parliament. And "excluded material" is spelt out. It covers professional news, entertainment in broadcast programs and classified films and games, research, art and education that is not contrary to the public interest, public health material, material "of assistance in reducing harms to individuals", and material in the public interest. Private messages between consenting adults are outside the duty. The duty starts 12 months after Royal Assent; the take down changes start the day after.
The duty moves the decision point. Under the bill the platform makes the first judgement in its risk assessment, eSafety tests that judgement, and a court decides any penalty. eSafety can also issue formal warnings, remedial directions and infringement notices.
The cost exclusion settles who pays, at least in principle. A platform cannot argue that a fix was too expensive. The memorandum's reason is scale: on a service with millions of users, "a small percentage of online harms" can still do serious damage. The memorandum expects only a minor effect on Commonwealth spending, so the cost lands on services, and through them on users and advertisers. Smaller services carry it too unless the minister exempts them.
The best argument for the bill is that it regulates the machine, not the post. Lists of content always run behind. A duty that covers design features reaches parts of a product that no list names, and the cost exclusion stops the largest firms pricing safety out. The independent review of the Act, by Delia Rickard, found the law was no longer sufficient for the scale of harm; the government agreed to implement or consider 64 of its 67 recommendations. Digital Rights Watch called the draft "an extremely welcome development". DIGI, whose members include Google, Meta and TikTok, said in 2025 that a well crafted duty is "in principle" a good way to future proof the law. The Greens back a duty and want it stronger, with a right for individuals to sue and fines tied to global revenue.
The best argument against is that "appropriate" and "safe" are judged after the fact, by a regulator, on a standard where cost cannot count. That points one way: when removal is the cheapest way to look careful, platforms remove too much. The catch all for children, "any other material" that may cause serious harm, is the widest door. The Coalition opposes the bill outright. Liberal senator Sarah Henderson called the draft "a blank cheque for political censorship"; James Paterson said on Thursday the bill is "unsalvageable" because the problem is "the government's intent". Health researchers worried that broad categories would catch harm reduction and sex education; the final bill's exclusion for harm reduction and public health material answers part of that, though platforms will still decide where the line falls.
The UK Online Safety Act 2023 sets duties for user to user and search services, enforced by Ofcom. The maximum fine is the greater of £18 million or 10 per cent of qualifying worldwide revenue. The EU Digital Services Act puts its heaviest duties, including systemic risk assessment, on very large online platforms, and includes rules on recommender systems and fines scaled to worldwide turnover.
Three differences stand out. Scope: Australia reaches internet carriage, equipment and AI services, which is wider than either. Penalty: Australia uses a fixed cap per contravention, while London and Brussels scale to revenue, the gap the Greens want closed. Test: the Australian duty is one broad obligation with the cost of compliance excluded, where the UK and EU set out lists of specific duties.
Hypothesis (not established): a fixed cap of $109.2 million may bite hard on a mid sized service and lightly on the largest platforms. If so, the real lever is the Commissioner's power to demand and test risk assessments, not the fine.
Hypothesis (not established): excluding cost from the test, together with removing the minister's harms power, moves the main argument from the minister's desk to the courts. That may make the system slower and more predictable at once.
The committee's reporting date, whether turnover linked fines or a private right of action are added, which services the minister exempts, and how the under 16 design rule works alongside the social media minimum age law. The memorandum calls the duty complementary to that law, reaching services the age law does not cover and protecting users over 16.
The mechanism is now on the table. The open question is who reads the word "appropriate" first, and who checks their working.
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