The proposed Digital Duty of Care Bill introduced by Communications Minister Anika Wells has reignited concerns over the use of so-called Henry VIII clauses, which allow ministers to amend legislation through regulations without full parliamentary approval. Legal experts and parliamentary committees warn that such provisions undermine democratic oversight by shifting significant legislative power from elected representatives to the executive.

Henry VIII clauses are a longstanding feature in Australian legislation, enabling ministers to modify statutes by legislative instruments rather than through the usual parliamentary process. Last year, the Senate’s scrutiny-of-bills committee expressed significant concern about these clauses, noting they reduce the level of parliamentary scrutiny and could alter the balance of power between parliament and the executive. Despite this, the Albanese government’s draft bill includes such a clause, raising alarms among legal professionals and rights advocates.

The bill aims to establish a digital duty of care, imposing penalties exceeding A$100 million on online platforms that distribute material deemed harmful. However, the bill leaves the definition of "harm" intentionally broad, granting the communications minister authority to determine what constitutes serious harm through legislative instruments. Clause 25C(2) specifically permits the minister to define material or conduct likely to cause serious harm without further parliamentary debate.

This regulatory mechanism moves beyond standard legislative practice, which requires meaningful parliamentary scrutiny and debate. Once a disallowable instrument is tabled, parliament has only 15 sitting days to reject it but cannot amend it, limiting the extent of parliamentary oversight. A legal review conducted by nine lawyers at Mallesons law firm affirmed these concerns, emphasizing that expansions of the bill’s reach should be decided by parliament following proper consultation, rather than unilaterally by the minister.

The Australian Human Rights Commission president, Hugh de Kretser, supports the need for a digital duty of care but insists that any alteration to the scope of harm categories must receive full parliamentary consideration to protect freedom of expression.

In addition to powers to extend the bill’s coverage, the legislation would also allow the minister to issue exemptions to entities deemed low risk or minimally used, effectively enabling the government to adjust the law’s scope both upward and downward without parliamentary input. This flexibility has drawn criticism for leaving the law’s reach uncertain at the time of its approval.

Critics argue this represents a significant erosion of parliamentary authority and democratic accountability. Historical parallels have been drawn to the 1539 Statute of Proclamations under England’s King Henry VIII, which similarly empowered the executive at the expense of parliament. Legal commentator Chris Merritt warns that the legislation could only pass if parliament accepts diminished authority, becoming "weak, supine and malleable."

As the bill progresses, the debate over maintaining robust parliamentary scrutiny versus granting executive flexibility continues to intensify, spotlighting broader issues concerning legislative power, democratic oversight, and freedom of communication in the digital era.