| dc.description.abstract | Digital platforms have become central to Australia’s economic and social infrastructure, yet they operate largely outside the comprehensive licensing and registration frameworks that govern every other systemically important sector of the economy. This regulatory exception represents a profound anomaly in Australian administrative law and creates significant enforcement challenges for regulators, limited recourse for consumers, and a fundamental accountability deficit for businesses whose reach and impact exceed many traditional industries already subject to rigorous oversight.
The universal requirement for business registration and industry-specific licensing has been a cornerstone of Australian commercial regulation for over a century, underpinning legal enforceability, consumer protection, and public accountability across banking, telecommunications, energy, broadcasting, healthcare, and construction sectors. The absence of equivalent requirements for digital platforms undermines the coherence of Australia’s regulatory architecture and leaves both markets and citizens exposed to risks that peer jurisdictions have moved decisively to address.
This is in the context of other aspects of platform regulation where there have been reforms. For example, restriction on use of social media by under-sixteens under the Online Safety Amendment (Social Media Minimum Age) Act 2024 (Cth) and the associated Online Safety (Age-Restricted Social Media Platforms) Rules 2025, the News Media Bargaining Code under the Competition and Consumer Act 2010 (Cth), and the prevention of scams in the Scams Prevention Framework Act 2025 (Cth).
The constitutional foundations for a mandatory platform licensing regime are well established through the Commonwealth’s telecommunications power, corporations power, and trade and commerce power, supplemented where relevant by the external affairs power. These heads of constitutional authority have supported the evolution of Australia’s telecommunications regulatory framework and provide ample scope for extending licensing obligations to digital platforms operating in Australia or having outcomes for Australian users and markets.
The critical design challenge, as highlighted by both the Australian Competition and Consumer Commission and international regulatory experience, lies in ensuring that licensing obligations bind not merely an Australian-incorporated subsidiary but the entire suite of associated entities that control, influence, or benefit from platform operations. Legislative mechanisms requiring designation of a principal entity with statutory liability for the conduct of related corporate actors, coupled with express extraterritorial application for conduct with Australian outcomes, can remedy the jurisdictional arbitrage that has frustrated effective enforcement under existing frameworks.
International regulatory convergence demonstrates both the feasibility and necessity of platform licensing regimes. The European Union’s Digital Markets Act and Digital Services Act, the United Kingdom’s Online Safety Act and Digital Markets, Competition and Consumers Act, Japan’s Act on Improving Transparency and Fairness of Digital Platforms, and South Korea’s telecommunications-based framework all impose mandatory registration, designation criteria for systemically significant platforms, and enforceable ex ante obligations tailored to platform power and risk. These frameworks share common features including risk-based designation thresholds, transparency obligations regarding algorithmic systems and content moderation, mandatory reporting and audit requirements, substantial financial penalties for non-compliance, and mechanisms for reaching cross-border conduct and affiliated entities. Importantly, these regulatory innovations have emerged in some of the world’s most dynamic and innovative economies, undermining arguments that platform regulation is either economically harmful or technically infeasible. Australia’s continued reliance on reactive, retrospective enforcement through general competition and consumer law places it increasingly out of step with international best practice.
A statutory licensing regime provides the superior framework for operationalising the emerging policy consensus around a digital duty of care. Both the Joint Select Committee on Social Media and Australian Society and the Rickard Review of the Online Safety Act have recommended the imposition of a single, overarching statutory duty of care for the wellbeing of Australian users, representing a fundamental shift from reactive content moderation to proactive systems-based safety obligations. However, a duty of care remains an abstract legal principle until connected to a tangible regulatory framework capable of monitoring compliance and imposing meaningful sanctions. A licensing model transforms this duty into enforceable licence conditions, creating a continuous relationship of regulatory supervision rather than episodic enforcement actions. Precedents in financial services licensing and broadcasting regulation demonstrate how licensing serves as a charter of accountability, with conditions encompassing risk assessment, adequate resources and systems, transparency and reporting, human review and redress mechanisms, and ongoing fitness-to-hold-a-licence standards.
The current regulatory vacuum is not accidental but can be traced to the pace of innovation, the global operations of platform business groups, and the historical focus of telecommunications and broadcasting law on traditional infrastructure. As a result, platforms have exploited corporate and contractual complexity, deploying multi-entity structures, offshore domicile, and ambiguous boundaries between content hosting, service provision, and commercial facilitation, to shield the global business from effective Australian oversight. Enforcement agencies have repeatedly faced defendants who argue that the relevant conduct or control lies outside Australia, or that no Australian-facing entity can be properly joined for liability, especially for conduct arising from algorithms or cross-border information flow. Determining the veracity of these arguments requires significant time from the publicly funded court system. Examples include the Office of the Australian Information Commissioner actions in respect of Meta and Cambridge Analytica, where the harm occurred in 2015 and the settlement in 2024; Valve Corporation v Australian Competition and Consumer Commission ([2017] FCAFC 224 on appeal from Australian Competition and Consumer Commission v Valve Corporation [2016] FCA 1584;[2016] FCA 1553; and [2016] FCA 196.); and Epic Games, Inc v Apple Inc [2025] FCA 900, Epic Games, Inc v Google LLC [2025] FCA 901, and Anthony v Apple Inc [2025] FCA 902.
The introduction of a platform licensing regime represents not merely a technical regulatory adjustment but the formalisation of a new social licence for the digital age.
Years of platform self-regulation have been comprehensively described by parliamentary inquiry as a failed experiment, producing persistent harms, erosion of public trust, and a fundamental misalignment between the scale of platform power and the adequacy of accountability mechanisms. A licensing framework addresses these deficiencies through multiple channels including creating legal enforceability by establishing a direct regulatory relationship with designated platforms and their associated entities, enabling proportionate and graduated enforcement through a hierarchy of regulatory tools culminating in licence suspension or revocation, mandating proactive risk management through ongoing licence conditions rather than reactive enforcement after harm has occurred, and rebuilding public confidence through transparent, visible regulatory supervision by properly resourced authorities.
Access to the Australian market should be understood as a privilege contingent upon demonstrable commitment to user safety and legal compliance, not an unregulated entitlement. Similarly, good behaviour should be seen as a necessary requirement of access to Australian markets and consumers. The cost associated with good behaviour is business cost, not a voluntary burden which may or may not be taken up due to competitive pressure. By bringing digital platforms within the same framework of responsibility and accountability expected of all systemically important industries, a licensing regime offers a coherent pathway to effective governance in an increasingly digital society. In critical infrastructure and essential services, this responsibility and accountability is legislated as a condition of doing business. This issue is also critical in the context of Artificial Intelligence (AI) deployment. | en_AU |
