Baumgarten and eSafety Commissioner

[2024] AATA 3052

Baumgarten and eSafety Commissioner [2024] AATA 3052 (28 August 2024)

Division:GENERAL DIVISION

File Number(s):      2024/3798

Re:Celine Gillian Baumgarten

APPLICANT

AndeSafety Commissioner

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:28 August 2024

Place:Sydney

Pursuant to subsection 40A(2) of the Administrative Appeals Tribunal Act 1975 (Cth) the applicant’s request to issue summons to the eSafety Commissioner is refused.

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Senior Member A Poljak

CATCHWORDS

PRACTICE AND PROCEDURE – request made to the Tribunal by the applicant to exercise its discretion under subsection 40A(1)(b) of the Administrative Appeals Tribunal Act 1975 (Cth) to issue summonses – Whether request is relevant to the jurisdictional issues the Tribunal is yet to determine – Whether the Tribunal should exercise the discretion in subsection 40A(2) of the AAT Act to refuse the Applicant’s request – Request to issue summons refused.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

REASONS FOR DECISION

Senior Member A Poljak

28 August 2024

1. Celine Gillian Baumgarten, the applicant, posted to X Corp’s (X) platform (the Post) on 29 May 2024. The Post expressed the applicant’s views about a ‘Queer Club’ at a primary school in Victoria, and identified the person who facilitated the ‘Queer Club’.

2. On 31 May 2024, the eSafety Commissioner’s (the Commissioner) office received a complaint from a member of the public about the Post.

3. On 3 June 2024, a member of the Cyber Abuse Team from the Commissioner’s office submitted a ‘complaint alert’ about the Post via X’s law enforcement portal. The complaint alert advised X of the complaint, including describing and characterising it and advised that the Commissioner was alerting X to the complaint because it ‘may be in violation of [X’s] policies’ or ‘terms of service’. Specific terms of service and policies were identified as those the Post ‘may be a violation’ of, viz: ‘inciting others to harass members of a protected category on or off platform’; ‘inciting behaviour that targets individuals or groups of people belonging to protected categories’; and ‘targeting others with repeated slurs, tropes or other content that intends to degrade or reinforce negative or harmful stereotypes about a protected category’. The Commissioner sought confirmation that X had received the report and asked that the Commissioner be informed if X took action in response to the report.

4. On the same day, X advised the Commissioner that the Post had been withheld in Australia.

5. On 7 June 2024, the applicant lodged an application for review with this Tribunal (review application). The review application relates to the removal by X of the post.

6. The Commissioner submits that the Tribunal does not have jurisdiction in this matter, and seeks dismissal of the application pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act).

7. The Tribunal intends to list an interlocutory hearing to decide whether a decision has been made that is reviewable by the Tribunal under section 220 of the Online Safety Act 2021 (Cth) (Online Safety Act) (the jurisdictional question). To assist the Tribunal the Commissioner has produced a tender bundle that contains documents in her possession relevant to the jurisdictional question (tender bundle).

8. In anticipation of the interlocutory hearing to determine the jurisdiction question, the applicant has requested for the Tribunal to issue summons and filed draft summons to produce documents directed to the Commissioner (the summons) and to the Department of Education (Victoria). The applicant has advised that it no longer presses the summons request to the Department of Education. As for the summons to the Commissioner, the summons seeks eight categories of documents, ‘in complete and unredacted form’.

9. These interlocutory proceedings concern the respondent’s objection to the issue of the summons.

   Consideration

10. Pursuant to subsection 40A(1) of the AAT Act, a person may be summoned to appear before the Tribunal to give evidence, or to produce a document or other thing specified in the summons. The Tribunal has discretion to set aside a summons if it is irrelevant to or will not shed light on the issues in the proceedings.

11. The sole question currently for the Tribunal’s determination is the jurisdiction question.

12. The applicant’s summons seeks production of various documents or categories of documents. These are either irrelevant to the jurisdictional question or else have already been produced.

13. In relation to each of the categories of documents sought in the summons:

    (a)Category 1 (complete correspondence with the complainant and/or their representative): Counsel for the Commissioner advised at hearing that the complaint, and the written records of actions taken in response to the complaint have already been produced in the tender bundle.

    (b)Category 2 (complete internal correspondence within the Commissioner’s office concerning the notice which was issued, and consideration of the complaint made under section 36 of the Online Safety Act, including names of people involved): Records of the Commissioner’s assessment of the complaint have already been provided in the Commissioner’s tender bundle. The balance of the documents sought in this category are not relevant to the jurisdictional question.

    (c)Category 3 (All and any records relating to the ‘policy’ of not issuing formal notices, as set out by Toby Dagg (General Manager) before Parliament): The Commissioner has advised that the ‘policy’ is not something that can be gleaned from any one document. It is unclear precisely what documents the applicant seeks in this category. In any event, the category described is not sufficiently relevant to the jurisdictional question. As can be seen from the internal correspondence of the Commissioner included in the tender bundle, there was a decision to communicate, not to issue a removal notice.  

    (d)Category 4 (Copies of all other records completing the legal request form on X’s website, including screenshots and drafts, with the last three months of today’s date (22 July 2024)): The complaint alert submitted to X’s website has already been provided in the Commissioner’s tender bundle. To the extent that this request seeks copies of all screenshots and drafts within the past three months, including those not relevant to the complaint the subject of this proceeding, it is irrelevant and oppressive.

    (e)Category 5 (A blank and complete copy of the form used to make requests of X): This is not a document that the Commissioner has in her possession. At hearing, counsel advised that a request is made by following a series of webpages in X’s online form and can be easily obtained by the applicant in they so wished to commence the process by making a ‘dummy’ complaint.

    (f)Category 6 (Any correspondence with X concerning the proper use of the legal request form and/or portal): The only correspondence between X and the Commissioner’s office in respect of this complaint has already been provided. The documents described are otherwise not relevant to the jurisdictional question.

    (g)Category 7 (Any internal guidance as to completing the form in category 5): The documents described are not relevant to the jurisdictional question.

    (h)Category 8 (All relevant metadata in relation to the records in the present case): This is not relevant to the jurisdictional question.

14. As for the categories above which I have found to not be relevant to the jurisdictional question, I am not convinced that the documents sought are sufficiently relevant to shed light on the principal issues in dispute. If the summons is essentially based on mere speculation that the person named in it has relevant material, it being seen as for the purposes of the hearing of a proceeding becomes more tenuous. And this isn’t, of course, an opportunity for the applicant, in service of a broader agenda of questioning the so-called policy of issuing informal notices, to engage in a fishing expedition or to issue notices on the basis of speculation.

    Decision

15. Pursuant to subsection 40A(2) of the AAT Act the applicant’s request to issue summons to the Commissioner is refused.

16.                 I certify that the preceding 15 (fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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Associate

Dated: 28 August 2024

Date of Interlocutory hearing:	14 August 2024
Counsel for the Applicant	Mr D Helvadjian
Counsel for the Respondent	Mr J Maloney