Australia’s federal tech regulators unite to form defence against digital platforms and co-ordinate government oversight of the digital economy

“It’s the collective ability to bring together our resources and expertise that I think is a real step forward,” Information and Privacy Commissioner Angelene Falk told The Australian Financial Review.

“It moves us from bilateral arrangements to a multi-lateral arrangement to ensure that all the opportunities and significant challenges the online environment brings are being dealt with through a cohesive regulatory system of oversight.

“What this represents is a recognition of the speed at which the online environment is changing the kind of regulatory challenges that we are facing and the need for us to bring together and bring to bear our collective resources and expertise to those challenges.”

British example

Ms Falk pointed to the work of a similar body, Britain’s Digital Regulation Co-operation Forum, where a secretariat has been created and staff seconded to support a more unified approach.

“I think that’s a great ambition, and if you look at the issues they’re looking at, which is around design frameworks and the way in which digital platforms design their settings, processing algorithms, digital advertising technologies, issues of end-to-end encryption, [they are] all issues currently on the desktop of regulators around Australia,” Ms Falk said.

In Australia, a multiplicity of regulators, service portals and policy agencies now oversee a plethora of digital issues and a rapidly expanding book of one- off regulations.

These include child and adult safety, scams and identity theft, misinformation and obnoxious content, data sharing and surveillance, marketing overreach such as profiling of vulnerable groups, facial recognition and artificial intelligence practices, privacy breaches, and anti-competitive behaviours such as preferencing of services to keep users locked into platforms.

The Commissioner for eSafety, Julie Inman Grant, said her agency was relatively new, which meant it was largely free of legacy constraints and hierarchy.

“That’s made us quite innovative and quite nimble, but we also aren’t resourced in the same way as, say, an ACCC,” she said.

“It’s been [around] a long time and has vast numbers of investigators.

“We’re starting to see a lot of technology policy and regulatory overlap in our issues, so this is really kind of an intelligence sharing network. It’s a way to really try to leverage those core competencies.”

Ms Inman Grant said there were emerging areas of technology that required consideration such as the development of the virtual reality space known as the metaverse and the deployment of front-end distributed technologies such as blockchain, known as web3.

“We’ll be regulating not just software or services, but hardware and products and things like haptic suits, maybe even … high-tech sex toys.”

Pre-internet laws

The regulators are also challenged by much of federal privacy, communications, security, consumer and data regulation being hopelessly outdated.

This has left regulators having to rely on laws drafted before the internet and with multiple policy agencies, spread thinly across the federal government, trying to respond to the often complex issues that rapid digital transformation is presenting.

Despite the speed of digitisation, reform initiatives have been slow to eventuate, with several big legislative reviews such as a new digital identity regime, data sharing, facial recognition deployment, a bolstering of consumer protections and an overhaul of privacy laws taking years to be developed and enacted.

The forum will meet bi-monthly and will initially be led by ACMA chief executive and former media industry lobbyist Creina Chapman. The chairman position will rotate every six months.

“Regulators … face many of the same challenges – addressing emerging consumer harms, encouraging innovation while balancing protections, and countering the market power of these large, complex and diverse multinational entities,” the regulators said in a joint statement.

They indicated an aim was to streamline overlapping regulation and reduce duplication, with the forum seeking to increase co-operation and information-sharing between digital platform regulators.

Not a decision-making body

The forum is seeking to promote “proportionate, cohesive, well-designed and efficiently implemented digital platform regulation”.

The new forum will share information, but the regulators have been careful to ensure their own enforcement and compliance work is not affected, noting the forum is explicitly not a decision-making body.

The terms of reference also state the forum will have no bearing on members’ existing regulatory powers, legislative functions or responsibilities. Nor will it create any new enforceable rights or impose any legally binding obligations on any of the regulators.

“Collaboration under the DP-REG is intended to be flexible and recognise the limits of each member’s respective regulatory frameworks,” the regulators said.

Nor are the regulators prevented from engaging bilaterally or outside the forum on issues related to digital platforms.

Significantly, the forum does not include any cybersecurity, identity, data sharing, open banking or financial agencies. These include the Australian Signals Directorate, the Australian Tax Office, the Australian Securities and Investments Commission, Services Australia, the Digital Transformation Agency and the recently formed National Data Sharing Commissioner.

Nor does it include any of the half dozen policy-setting departments such as Treasury, Infrastructure, Home Affairs, Prime Minister and Cabinet and Attorney-Generals which have been developing policy and regulatory responses to the increasing digitisation of the economy.

These agencies can be invited to attend as required.


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