Australia has made something of an art form of leading the world with digital laws that look interesting at first blush but then prove either difficult to implement or impotent.

Way back in 2015 came the “Hockey Tax” in which Treasurer Joe Hockey passed a law requiring Netflix—not then a registered Australian company—to pay taxes on subscriptions sold to Australians. Netflix eventually made a “donation” to the Australian Treasury, but it was impossible to determine whether the amount was proportionate to the number of subscriptions sold, because only Netflix knew the actual number.

Then in 2021 came the now-infamous News Media Bargaining Code debacle. Under the code, the government threatened to force mediation on Facebook and Google if they did not come to “voluntary” agreements to compensate Australian media companies for lost advertising revenues previously used to cross-subsidize Australian news-content creation. Following Facebook’s high-profile disconnection of Australian content for a day, the internet platforms acquiesced, in sums to be paid to (selected) Australian media companies. But the contracts are now up for renegotiation, and Meta has refused to renegotiate. Australia, like Canada, may find itself disconnected from Facebook permanently.

Not daunted, the government in 2021 passed the Online Safety Act, creating a “world-leading” eSafety commissioner with powers to require internet platforms to take down content deemed harmful to Australians. That didn’t work too well in 2024, when Elon Musk won a court case confirming that the eSafety Commissioner could not order platforms to take down content deemed harmful to Australians internationally simply because Australians could access it via virtual private networks. As Musk articulated, the Australian eSafety commissioner should not be able to dictate what the rest of the world can see on X or other platforms.

So it should not be surprising to find Australia again endeavoring to lead the English-speaking world, this time with its “right to disconnect” law embedded in new Fair Work Act workplace legislation. Employees of firms with 15 or more employees (employees of smaller firms must wait 12 months before they may disconnect) now have the “right to refuse to read or respond to work-related calls, texts and emails outside their working hours, unless that refusal is unreasonable.”

What matters is not whether the employer’s call is reasonable; it is the employee’s right to “reasonably refuse” to answer. Among the things that will determine whether a refusal is unreasonable are the employee’s role, their personal circumstances, the method and reason for the contact, how much disruption it causes them, and whether they are compensated for being available or for working additional hours.

The law comes from a well-meaning objective to allow workers to maintain an effective work-life balance. But real concerns have been expressed about the law’s workability.

Many exceptions and gray areas threaten the law’s implementation. Salaried employees, for example, have no specified work hours in the first place. Emergency workers have to be contactable as part of their normal terms of employment. And who should be held responsible for lost profits and ultimately business viability if non-essential but still important businesses (e.g., the local burger bar) cannot open because a counter worker calls in sick at the last minute and all the potential replacements opt to disconnect?

As has been argued by opponents, almost all the circumstances addressed by the law ought to be able to be worked out respectfully between employers and employees and included in workplace contracts without the need for intrusive legislation. After all, good communication—both ways—is fundamental for good workplace relationships. And if respectful communication and co-operation fail, provisions already exist in other parts of workplace law to cover workplace stress and activities such as bullying and harassment—whether by cellphone, email or other non-digital means.

Indeed, other jurisdictions where such provisions have been trialed, such as France, started first not with a prescriptive law, but with the obligation to negotiate rules about when work starts and ends, and protocols for contact outside work hours. Such agreements are much more likely to be respected by both parties, leading to more effective engagement overall in the workplace. Moreover, enforcement has proven problematic. It behooves legislators to consider whether just because something is “digital,” new laws are required to govern its use. If new technologies seamlessly incorporate themselves into our daily lives, they may be best governed by laws based on the processes of the exchanges they support and not the substance of the technologies on which they take place. Think before copying Australia.

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