It’s eight months since the under-16 social media ban began, and a single fact is staring the government in the face:

The ban hasn’t made any difference to the 80 per cent of children still using it.

By the government’s own standard, it has failed. Yet, rather than scrap what is bad policy, it plans to hand even greater powers to the regulator responsible: the Office of the eSafety Commissioner.

Today, Senators have heard from the public about the government’s plans to strengthen the laws through the expansion of the Commissioner’s investigative powers. In essence, the laws seek to give eSafety the unfettered ability to conduct fishing expeditions in the hope of punishing someone – literally anyone – for the government’s failed policy.

While the government insists the target of the new powers will be social media giants, the bill is drafted broadly. It allows the Commissioner to compel ‘a person’ to produce documents showing how companies are complying with the ban, for example.

This will not be limited to tech companies. It could include a parent or even a child, who will be staring down the barrel of a $364,000 fine if they don’t comply. Parents and children should not become collateral damage in the enforcement of bad policy, especially when it’s sold as protecting the young.

The broader consequence of the proposed changes will be that social media platforms are incentivised to over-comply with the ban. Faced with increased penalties, they will err on the side of caution, restricting adults too in their quest to prove they are restricting children.

The regulator’s own record is reason enough not to trust it with more powers. The agency has repeatedly demonstrated an ambition to expand its existing powers and a willingness to wade into political controversy.

When the Commission was first established, its role was confined to child cyber bullying and initially employed just 37 staff. A decade later, the agency has exploded in size and ambition, at last count employing 222 staff – a 500 per cent increase.

The first Commissioner received a salary of $247,810 in 2015. Last financial year, the Commissioner took home a pay packet of $463,781 which was over six times the median salary in 2025. eSafety’s budget has also grown more than six-fold, from $10.9 million in its first year to $70 million this financial year.

eSafety has attempted to expand its censorship powers too. When the agency failed to compel social media platform X to remove footage of the stabbing of Bishop Mar Mari Emmanuel in Sydney from its global platforms, the Commissioner said ‘she welcomed the opportunity to test [eSafety’s] novel regulatory powers’ through litigation.

In March this year, eSafety was slapped down by the Federal Court for its attempt to pressure X (formerly Twitter) into removing a post by a Sydney woman, Celine Baumgarten, who had criticised the creation of a queer club on a primary school campus.

While the post did not meet the legal threshold for a formal takedown order, which requires material to cause ‘serious harm’ to a specific Australian adult and to be menacing, harassing, or offensive, eSafety sought its removal anyway. Rather than issuing a formal notice, which would include appeal rights, eSafety lodged an ‘informal notice’ through X’s legal requests portal, allegedly implying a legal weight it did not have.

The Court found that in doing so, eSafety’s informal notice was a reviewable administrative decision based on its objective characteristics, and could therefore be appealed.

Baumgarten’s case is not an isolated incident. Recent IPA research shows that between July 2021 and June 2025, the eSafety Commissioner issued 1,414 informal notices against ‘adult cyber abuse’ content, the same elastic category of speech that saw Baumgarten’s post removed. A full 77 per cent of these notices resulted in removal, which the recent Court decision indicates could all be subject to appeal. During the same period, eSafety issued just 12 formal removal requests.

In practice, this shows most of the content removal is achieved through the informal system. This is only possible because of the perceived threat of enforcement – which, as in the Baumgarten case, may not even be a real possibility – allowing eSafety to expand its reach while avoiding oversight and accountability.

eSafety’s approach to regulation shows the agency needs no encouragement; it has repeatedly demonstrated an aggressive, expansionist view of its powers.

If the axiom ‘you will know them by their fruits’ is anything to go by, any additional powers will be subject to the same treatment. If anything, the evidence proves the regulator should be reined in, not further empowered.

Margaret Chambers is a Research Fellow at the Institute of Public Affairs.