If it ain’t broke, don’t fix it. But what happens if it is broken, and the fix is more political than practical? That’s what I’ve observed in the six months of the government’s social media ban foray, but it seems they’re not done yet.

The government has decided to double down on an approach which is clearly not working. Under legislation introduced to Parliament this week, the fines for companies that aren’t complying with the social media ban will rise from $49.5 to $99 million. The eSafety Commissioner will also be given more power to investigate social media platforms, including requesting the production of documents.

The process has been rushed from the start, and I can’t remember when haste ever led to a great outcome – it’s cutting corners that tends to cost more. I’m not the only lawyer that thinks this. Australia’s Human Rights Commissioner, Lorraine Finlay, weighed in on the debate, saying that greater scrutiny needs to be had right through this process. In a public social media post – the irony when under 16s can’t access this debate online! – Dr Finlay said, ‘Strengthening a law before it has been properly operationalised risks responding to a problem that has not yet been clearly diagnosed.’

And while we don’t have the full diagnosis of the problem yet, there are some things that are clear six months in.

The widely accepted view in Australia is that the Social Media Minimum Age law has been flawed from the start. A British Medical Journal study found over 85 per cent of adolescents under 16 were still accessing at least one restricted platform each week. Our internet sheriffs have found major problems themselves, with March data showing seven in ten underage children continued to hold accounts on Facebook, Instagram, Snapchat, and TikTok.

That’s probably why we’ve heard eSafety Commissioner Julie Inman Grant in recent weeks opine to media that the ban had ‘very thin scaffolding’ and that she was ‘not really that keen on it’ in the first place.

Why would the government seemingly ignore this evidence and Inman Grant’s reservations and choose to plough ahead with its social media ban without proper review?

Well, because the politics are simply too good to pass up – the government leaps at any opportunity to speak about how it’s got parents’ backs in the fight against ‘big tech’. The Prime Minister, whose political instincts have been honed over 30 years in Parliament, has even come in over the top of the Communications Minister, Anika Wells, to lead the passage of the new laws.

What of these newest changes by the government? Do they hit the mark when it comes to changing patterns of social media-starved teens? Because even in the legal world, it is accepted that harsher punishments don’t guarantee a change of behaviour.

A 2011 report by the Sentencing Advisory Council found that ‘increases in the severity of penalties, such as increasing the length of imprisonment, do not produce a corresponding increase in the general deterrent effect’. Of course, fines and civil punishments are meant to act as deterrents, but how can they do that when the whole system is flawed?

But here we are, six months in and two versions of the ‘world-leading’ ban that still isn’t keeping kids offline. No laws have actually changed. They’ve doubled the fines. They’ve increased the powers of the eSafety Commissioner to investigate compliance with the same law.

The tragedy here is that, while the government is doubling down on the social media ban, it’s stalling on more evidence-based models to reduce online harm. This includes introducing a Digital Duty of Care, which the government has already committed to doing.

The concept of a duty of care has long been entrenched in legal theory and decisions. A common principle from it is referred to as manufacturer’s liability, which states that manufacturers are responsible for the goods they produce and any harm that eventuates from their use or consumption.

Applying this to a Digital Duty of Care in Australia, it would mean that all online service providers would be obligated to assess and mitigate risks on their services, including across content, activity, and features.

The government recently issued a discussion paper outlining its proposed model. Although there are clear faults with how it’s currently proposed – for example its loose definitions that are susceptible to weaponisation by the government of the day – this does not mean that the entire concept cannot be effective.

In essence, big tech companies will breach this duty of care if they fail to ‘take reasonable steps to maintain effective systems and processes’ to prevent Australians from being exposed to harmful online content or activity. Instead of simply banning everything we don’t like, this has a softer focus with more effective outcomes – introducing an obligation that tech companies will need to adhere to when operating in Australia.

Rather than trying to capitalise on the politics of picking a fight with big tech and threatening increased fines, the government should channel its efforts into getting the Digital Duty of Care right. This will set a high bar for social media companies operating in Australia and hold them accountable for the safety of their platforms.

Dr. Alexander Hatzikalimnios is a lawyer, legal academic and commentator. He writes on digital regulation & technology, free speech, and fundamental rights.