Women Speak Australia (WSA) has made a submission on the Australian Government’s Online Safety Amendment (Digital Duty of Care) Bill 2026 exposure draft.
The proposed legislation would introduce a preventative digital duty of care, requiring online services to identify and manage reasonably foreseeable risks of harm arising from online content, design features and systems.
WSA supports measures that protect Australians from genuine online harms, including sexual exploitation, grooming, threats of violence, harassment, abuse and the promotion of suicide, self-harm and disordered eating.
Our submission focuses on a different but closely related question: how “harm” is defined and determined when the proposed framework can affect lawful public expression.
What is “harm”?
The exposure draft sets out a range of material and conduct that would be treated as seriously harmful or harmful to children. However, proposed section 25E describes how harm may be caused without providing a comprehensive definition of what constitutes “harm”.
This matters because the proposed duty is preventative. Online services would be required to identify foreseeable risks and take measures to mitigate them, with significant civil penalties applying for breaches.
WSA considers that legislation with this reach requires clear statutory thresholds distinguishing genuine harm from ordinary offence, disagreement, distress or political controversy.
A particular concern: women and gender equality
WSA has raised specific concerns about proposed section 25D(1)(c), which would classify as harmful to children material or conduct that:
“encourages or promotes hostile attitudes towards women or gender equality”.
The exposure draft does not define “hostile attitudes” or “gender equality”, nor does it establish a clear distinction between hostility and lawful disagreement, criticism, scientific discussion or political advocacy.
Questions concerning sex, gender, women’s rights, medicine, sport and public policy are currently the subject of substantial public and scientific debate.
WSA considers that disagreement about these questions should not, merely because it is controversial, be treated as harmful material.
Women should be able to discuss and advocate for sex-based rights, including female-only services and spaces, women’s sport and safeguarding, without lawful discussion being characterised as harmful simply because it challenges a particular understanding of gender equality.
Who decides what constitutes harm?
The exposure draft also gives the Minister power, through legislative instruments, to determine additional categories of material or conduct that may cause serious harm or harm to children.
WSA considers that significant expansions of the categories of regulated harm should be subject to a transparent evidentiary process.
Our submission calls for the publication of proposed instruments, supporting evidence and the eSafety Commissioner’s advice, together with public consultation and consideration of proportionality and freedom of expression.
Freedom of expression must be considered
The proposed section 25H sets out factors relevant to what is “reasonably practicable”, including the likelihood and degree of harm, available mitigation measures, costs and privacy.
WSA notes that freedom of expression is not expressly included among these considerations.
The proposed exception in section 26(7) applies only to lawful communications occurring privately and solely between consenting adults. It is therefore not a general protection for lawful public expression.
WSA recommends that freedom of expression, including political, scientific, academic and journalistic expression, be expressly considered when determining what measures are reasonably practicable.
Evidence-based risk assessment
The proposed legislation would require online services to undertake written risk assessments identifying foreseeable risks and assessing their likelihood and potential severity.
WSA supports evidence-based risk assessment. However, the legislation should distinguish between demonstrated harms, credible evidence of causation, correlation, theoretical or emerging risks, and contested claims.
Without such distinctions, the concept of foreseeable harm could potentially become broad enough to encompass claims that have not been adequately demonstrated.
WSA’s recommendations
WSA’s submission makes eight recommendations, including that the legislation:
- Define “harm” and “serious harm” with clear thresholds.
- Establish a defined evidentiary threshold for new categories of regulated harm.
- Define “hostile attitudes towards women or gender equality”.
- Protect lawful discussion and advocacy concerning sex, gender and women’s sex-based rights.
- Make freedom of expression an express consideration under section 25H.
- Require measures to be proportionate to the identified harm and no more restrictive than reasonably necessary.
- Strengthen transparency and consultation requirements for delegated powers.
- Require risk assessments to distinguish demonstrated harms and credible evidence from correlation, theoretical risks and contested claims.
The objective of online safety is important. But a preventative regulatory framework with significant enforcement powers also requires precision about what constitutes harm, the evidence required to establish it, and the safeguards applying to lawful expression.