Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) - [2025] ARTA 59

Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59 (5 February 2025)
Applicant/s:  Celine Baumgarten
Respondent:  eSafety Commissioner
Tribunal Number:                2024/3798
GAP Reference Number:    2024-001-028

Tribunal:Justice Kyrou, President, Deputy President O'Donovan, Senior Member Manetta
Place:Melbourne
Date:5 February 2025

Decision:The respondent made a reviewable decision in respect of which the Tribunal has jurisdiction.

................................[sgd]........................................
Justice Kyrou, President
................................[sgd]........................................
Deputy President O'Donovan
................................[sgd]........................................
Senior Member Manetta
Catchwords
PRACTICE AND PROCEDURE – Tribunal’s jurisdiction – respondent has power to give a removal notice to a social media service provider requiring removal of online material – Tribunal has jurisdiction to review a decision to give a removal notice – statutory preconditions for giving a removal notice relating to applicant’s online material not satisfied – respondent gave a social media service provider a written communication described as a complaint alert regarding the applicant’s online material – service provider withheld the material from its social media platform within Australia less than two hours after receiving the alert – whether action taken by respondent was an exercise of powers conferred by the relevant enactment for the purposes of the Tribunal’s jurisdiction – whether a decision to give a removal notice was in fact made even though it was not legally effective – whether decision reviewable by the Tribunal – found Tribunal has jurisdiction to review action taken by respondent in accordance with the principles in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
PRACTICE AND PROCEDURE – referral of a proceeding to the Guidance and Appeals Panel – issue of significance to administrative decision-making – the identified issue of significance to administrative decision-making is a gateway and does not define the matters to be determined by the Panel
PRACTICE AND PROCEDURE – application for review lodged with the Administrative Appeals Tribunal but not determined at the time that Tribunal was replaced by the Administrative Review Tribunal – jurisdiction to be determined by reference to the provisions of the Administrative Appeals Tribunal Act 1975 as in force at the time the application for review was lodged
Legislation
Administrative Appeals Tribunal Act 1975
Administrative Review Tribunal Act 2024
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Online Safety Act 2021
Cases
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217
Table of Contents
Statement of Reasons
KYROU P
INTRODUCTION AND SUMMARY
RELEVANT STATUTORY PROVISIONS
Online Safety Act
Administrative Appeals Tribunal Act
PRINCIPLES RELATING TO THE TRIBUNAL’S JURISDICTION
EVIDENCE
UNCONTESTED FACTS
X’s terms of service
Action taken by the Commissioner in relation to the applicant’s post on X
Procedural background
CONTESTED FACTS
Evidence on contested facts
Mr Hannath’s evidence
Ms Caruana’s evidence

Parties’ submissions on contested facts
Conclusion on contested facts
PARTIES’ SUBMISSIONS ON THE TRIBUNAL’S JURISDICTION
DECISION ON THE TRIBUNAL’S JURISDICTION
Was the Commissioner’s communication to X a requirement to remove the Post?
The Commissioner’s decision to give the Composite Alert is a reviewable decision
Alternative factual analysis and observations on the Commissioner’s submissions
CONCLUSION AND FUTURE CONDUCT OF THE PROCEEDING
APPENDIX TO THE REASONS OF KYROU P
O’DONOVAN DP
FACTS
STATUTORY FRAMEWORK
LEGAL PRINCIPLES
APPLICATION TO THE FACTS
MANETTA SM
INTERPRETATION OF S 220(2)
OBJECTIVE CONSTRUCTION OF THE ALERT
IS THE ALERT REFERABLE TO AN EXERCISE OF THE POWER UNDER S 88?
Statement of Reasons
KYROU P
INTRODUCTION AND SUMMARY

On 6 November 2024, I referred this proceeding to the Guidance and Appeals Panel (‘GAP’) pursuant to s 122(1) of the Administrative Review Tribunal Act 2024 (‘ART Act’) on the basis that it raises the following issue of significance to administrative decision-making:
Whether, on the facts to be found by the Tribunal, an agency such as the respondent may avoid the jurisdiction of the Tribunal by achieving an outcome by taking steps which may not amount to a formal exercise of a statutory power instead of achieving that outcome by formally exercising a statutory power whose exercise is subject to review by the Tribunal.
In broad terms, I have found that the events giving rise to the proceeding are as follows:
(a)On 29 May 2024, the applicant posted a tweet on the social media service X (previously known as Twitter), the contents of which are not presently relevant (‘Post’).
(b)The eSafety Commissioner (‘Commissioner’)[1] did not make a decision which was expressed to be the giving of a removal notice under s 88(1) of the Online Safety Act 2021 (‘OSA’)[2] in respect of the Post. That is because the Commissioner determined that not all of the statutory preconditions for the giving of such a notice were satisfied. It is not in dispute that, had a decision been made to give such a notice, it would have been a reviewable decision under s 220(2) of the OSA.[3]
(c)However, the Commissioner made a decision to send to X a written communication (described by the Commissioner as a ‘complaint alert’[4]) which, having regard to its objective features, amounts as a matter of fact to a removal notice requiring X to remove the Post even though it was not a legally effective removal notice under s 88(1) of the OSA.
(d)X interpreted the Commissioner’s communication as a legal requirement to remove the Post, and withheld it within Australia.
(e)The applicant made an application to the predecessor of the Administrative Review Tribunal (‘ART’ or ‘Tribunal’), namely the Administrative Appeals Tribunal (‘AAT’), for review of the Commissioner’s action on the basis that it constitutes a reviewable decision under s 220(2) of the OSA, namely, ‘a decision of the Commissioner under section … 88 to give a removal notice’.
(f)The Commissioner has contended that the AAT did not have jurisdiction to review her action.
[1]Unless the context indicates otherwise, references to the Commissioner in these reasons include the Commissioner acting through her authorised delegates and other staff.
[2]Section 88 of the OSA is set out at [‎11] below.
[3]Section 220 of the OSA is set out at [‎13] below.
[4]See [‎74] below.
Following the abolition of the AAT, all issues relating to the applicant’s application for review fall to be determined by the ART. The initial task for the ART is to determine whether the AAT had jurisdiction to review the Commissioner’s action on the basis that it constituted the making of a reviewable decision under s 220(2) of the OSA, read together with s 25(1) of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’).[5]
[5]Section 25 of the AAT Act is set out at [‎16] below.
In undertaking that task, the Tribunal is entitled to consider all matters relevant to the jurisdictional issue and is not confined to addressing the issue set out at [‎1] above. That is because, although s 122(1) of the ART Act requires as one of the preconditions for a referral to the GAP that the President is satisfied that a proceeding raises an issue of significance to administrative decision-making, once a proceeding is referred to the GAP, all issues in the proceeding are before the GAP and not just the issue of significance to administrative decision-making. Put another way, a finding that a proceeding raises an issue of significance to administrative decision-making is a gateway for the proceeding to be heard by the GAP, and does not delimit or alter the issues in the proceeding to be determined by the GAP. The sole question currently before the Tribunal is whether the Commissioner made a reviewable decision in respect of which the Tribunal has jurisdiction.
For the reasons set out below, I have concluded that that question should be answered in the affirmative.
RELEVANT STATUTORY PROVISIONS
Online Safety Act
The OSA commenced on 23 January 2022. Section 3 of the OSA states that the objects of the Act are ‘to improve online safety for Australians’ and ‘to promote online safety for Australians’. Section 26 establishes the office of the Commissioner. Under s 27(1), the functions of the Commissioner include the following:
(b)to promote online safety for Australians;
(c) to support and encourage the implementation of measures to improve online safety for Australians;
…
(l) to consult and cooperate with other persons, organisations and governments on online safety for Australians …
…
(s)to do anything incidental to or conducive to the performance of any of the above functions.
Under s 28 of the OSA, the Commissioner ‘has power to do all things necessary or convenient to be done for or in connection with the performance of the Commissioner’s functions.’
One of the types of online harms which the OSA addresses is ‘cyber-abuse material targeted at an Australian adult’. Section 7(1) defines this relevantly as follows:
7   Cyber‑abuse material targeted at an Australian adult
(1) For the purposes of this Act, if material satisfies the following conditions:
(a)the material is provided on:
(i)     a social media service; or
(ii)    a relevant electronic service; or
(iii)   a designated internet service;
(b)an ordinary reasonable person would conclude that it is likely that the material was intended to have an effect of causing serious harm to a particular Australian adult;
(c)an ordinary reasonable person in the position of the Australian adult would regard the material as being, in all the circumstances, menacing, harassing or offensive;
(d)such other conditions (if any) as are set out in the legislative rules;
then:
(e)the material is cyber‑abuse material targeted at the Australian adult; and
(f)the Australian adult is the target of the material.
…
It can be seen that s 7(1) of the OSA contains a number of preconditions for material to constitute ‘cyber-abuse material targeted at [an] Australian adult’. For convenience, I will refer to the requirement in s 7(1)(b) as the ‘intention to cause serious harm’ requirement and to the requirement in s 7(1)(c) as the ‘menacing, harassing or offensive material’ requirement.
Section 36 of the OSA relevantly enables an Australian adult to complain to the Commissioner that they are the target of cyber-abuse material that has been provided on a social media service, or to authorise another person to make a complaint. Section 37(1) provides that the Commissioner may investigate a complaint made under s 36.
Section 88 of the OSA confers power on the Commissioner to give what is described as a ‘removal notice’ to a provider of a social media service, a relevant electronic service or a designated internet service. It is common ground that X is a social media service. Section 88 relevantly provides as follows:
88 Removal notice given to the provider of a social media service …
(1)If:
(a)material is, or has been, provided on:
(i)     a social media service; or
(ii)    a relevant electronic service; or
(iii)   a designated internet service; and
(b)the Commissioner is satisfied that the material is or was cyber‑abuse material targeted at an Australian adult; and
(c)the material was the subject of a complaint that was made to the provider of the service; and
(d)if such a complaint was made—the material was not removed from the service within:
(i)     48 hours after the complaint was made; or
(ii)    such longer period as the Commissioner allows; and
(e)a complaint has been made to the Commissioner under section 36 about the material;
the Commissioner may give the provider of the service a written notice, to be known as a removal notice, requiring the provider to:
(f)take all reasonable steps to ensure the removal of the material from the service; and
(g)do so within:
(i)     24 hours after the notice was given to the provider; or
(ii)    such longer period as the Commissioner allows.
(2)So far as is reasonably practicable, the material must be identified in the removal notice in a way that is sufficient to enable the provider of the service to comply with the notice.
Notice of refusal to give a removal notice
(3)If the Commissioner decides to refuse to give a removal notice under subsection (1), the Commissioner must give written notice of the refusal to the person who made the complaint to the Commissioner under section 36.
Section 91 of the OSA provides that a civil penalty of 500 penalty units may be imposed for failure to comply with a removal notice under s 88.
Section 220 of the OSA sets out the merits review jurisdiction of the ART from 14 October 2024 (until 13 October 2024, it set out in identical terms the jurisdiction of the AAT) in respect of decisions made by the Commissioner. It relevantly provides as follows:
220 Review of decisions by the … Tribunal
…
Removal notice—cyber‑bullying, intimate images and cyber-abuse
(2)An application may be made to the … Tribunal for a review of a decision of the Commissioner under section 65, 77 or 88 to give a removal notice to the provider of:
(a)a social media service; or
(b)a relevant electronic service; or
(c)a designated internet service.
(3)An application under subsection (2) may only be made by:
(a)the provider of the social media service, relevant electronic service or designated internet service; or
(b)if the material that is the subject of the notice was posted on the service by an end‑user of the service—the end‑user.
(4)An application may be made to the … Tribunal for a review of a decision of the Commissioner to refuse to give the provider of:
(a)a social media service; or
(b)a relevant electronic service; or
(c)a designated internet service;
a section 65, 77 or 88 removal notice that relates to material provided on the service.
(5)An application under subsection (4) may only be made:
(a)by a person who made a section 30, 32 or 36 complaint about the material provided on the service; or
(b)in the case of a refusal to give a section 65 or 88 removal notice—by, or with the consent of, the person who was the target of the material provided on the service; …
…
The Bill for the OSA in the form in which it was initially introduced into the Parliament did not refer to ‘informal notices’ or ‘informal requests’. Section 183 deals with the annual reports of the Commissioner. Section 183(2) was inserted during the parliamentary process to add a large list of items to be included in the annual reports,[6] including new paragraph (zi) of s 183(2) which is in the following terms: ‘the number of informal notices given, and informal requests made, by the Commissioner to a person in relation to cyber-abuse material targeted at an Australian adult during that year’. The OSA does not define ‘informal notices’ or ‘informal requests’, and these terms only appear in s 183(2) of the Act.
[6]See: Online Safety Bill 2021 (4 February 2021), s 183, p. 148; Online Safety Bill 2021 Schedule of the amendments made by the Senate (22 June 2021), item 8, pp. 3-5.
Administrative Appeals Tribunal Act
Upon the commencement of the ART Act on 14 October 2024, the ART replaced the AAT. In broad terms, item 24 in schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (‘Transitional Act’) provides that any proceeding commenced in the AAT which is not determined by 14 October 2024 continues in the ART and is to be determined by the application of the provisions of the ART Act. This proceeding was commenced on 7 June 2024. It was not determined by 14 October 2024. If the AAT had jurisdiction in respect of the proceeding, it now falls to be determined by the ART in accordance with the provisions of the ART Act. The question whether the AAT had jurisdiction in respect of the proceeding – and whether it is now properly before the ART – must be determined in accordance with the AAT Act as in force on 7 June 2024.[7]
[7]Because the definition of ‘decision’ in s 4 of the ART Act is similar to the definition of that term in s 3(3) of the AAT Act and the provisions of the ART Act and the AAT Act which set out what is a reviewable decision (s 12 of the ART Act and s 25 of the AAT Act) are also similar, my analysis and conclusion regarding jurisdiction would have been the same if the provisions of the ART Act had applied.
Section 25(1) of the AAT Act, as in force on 7 June 2024, provided as follows:
25 Tribunal may review certain decisions
Enactment may provide for applications for review of decisions
(1)An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
The definition of ‘decision’ in s 3(3) of the AAT Act, as in force on 7 June 2024, was expressed to include the following:
(a)making, suspending, revoking or refusing to make an order or determination;
(b)giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission;
(c)issuing, suspending, revoking or refusing to issue a licence, authority or other instrument;
(d)imposing a condition or restriction;
(e)making a declaration, demand or requirement;
(f)retaining, or refusing to deliver up, an article;
(g)doing or refusing to do any other act or thing.
PRINCIPLES RELATING TO THE TRIBUNAL’S JURISDICTION
The AAT (as is the case with its successor, the ART) did not have a general review jurisdiction. As s 25 of the AAT Act makes clear, the AAT’s jurisdiction was largely conferred by other enactments. The starting point for assessing whether the AAT had jurisdiction to review a decision was the legislative instrument which provided for an application to be made to the AAT for review of a decision made under the instrument.
The most relevant authority for present purposes is the 1979 decision of the Full Court of the Federal Court in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd.[8]
[8](1979) 41 FLR 338 (‘Lawlor’).
In that case, an officer of the Collector of Customs (‘Collector’) revoked a private warehouse licence held by Brian Lawlor Automotive Pty Ltd (‘licensee’), which was previously granted to the licensee by the Collector under Division 1 of Part V of the Customs Act 1901. The document setting out the revocation was a letter dated 31 October 1977 from the Collector to the licensee. The letter referred to the licence, set out a finding that the licensee was not a fit and proper person to hold the licence and then relevantly stated, ‘Accordingly, you are advised that [the licence] is revoked, the revocation to take effect from 21 November 1977.’[9] The letter did not refer to the source of power for the revocation of the licence and, in particular, did not state that the revocation was pursuant to Division 1 of Part V of the Customs Act.
[9]Lawlor (1979) 41 FLR 338, 347.
In Lawlor, it was common ground that the revocation of the licensee’s licence was not authorised by any provision in Division 1 of Part V of the Customs Act. The issue was whether the AAT had jurisdiction to review the revocation of the licence in circumstances where the revocation was invalid because it was made without legislative power to do so. The Full Court (Bowen CJ and Smithers J, Deane J dissenting) held that the AAT had jurisdiction.

In 1979, s 25(1) of the AAT Act was in the terms set out at [‎16] above and s 3(3) was in the terms set out at [‎17] above. Section 25(4) provided that the AAT had ‘power to review any decision in respect of which application is made to it under any enactment.’ Section s 26(1) stated that the provisions of the schedule to the AAT Act had effect according to their tenor. Section 26(2) stated that a reference in s 25(4) of the AAT Act to an enactment included a reference to the schedule. Item 12(2) of the schedule provided that applications may be made to the AAT for review of ‘a decision … under Division 1 of Part V of the Customs Act’.
In Lawlor, Bowen CJ and Smithers J, in separate judgments, described the Collector’s action as a ‘purported’ revocation of the licensee’s license because it was a purported exercise of the power in Division 1 of Part V of the Customs Act to revoke the licence. They held that the AAT had jurisdiction to review the purported revocation of the licensee’s licence.
Bowen CJ held that the word ‘decision’ in s 25(1) of the AAT Act ‘simply refers to a decision in fact made, regardless of whether or not it is a legally effective decision.’[10] He then considered the meaning of the words ‘made in the exercise of powers conferred by that enactment’ in s 25(1). He stated that these words had three possible meanings, namely that it must be shown that there was a decision made (a) in pursuance of a legally effective exercise of powers conferred by the enactment; or (b) in the honest belief that it was in the exercise of powers conferred by the enactment; or (c) in purported exercise of powers conferred by the enactment. He elaborated that the words ‘purported exercise’ in (c) were used ‘as including the notion that the official may be making his decision on the basis that he is exercising powers conferred by the enactment whether or not on a proper interpretation of the enactment such powers are conferred.’[11]
[10]Lawlor (1979) 41 FLR 338, 342.
[11]Lawlor (1979) 41 FLR 338, 342.
In rejecting interpretation (a), Bowen CJ said that the AAT Act ‘is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal free of technicalities, against that decision on questions of fact and of law.’[12] He stated that, if it were held in accordance with interpretation (a) that the AAT lacked jurisdiction in respect of unlawful decisions, such an interpretation would render useless many applications for review to the AAT. He rejected interpretation (b) because it would be inappropriate to interpret s 25(1) of the AAT Act so as to make its operation dependent upon the state of mind of an official.[13]
[12]Lawlor (1979) 41 FLR 338, 342.
[13]Lawlor (1979) 41 FLR 338, 343-4.
Bowen CJ adopted interpretation (c) because it was consistent with the context in the AAT Act. He stated that if there had to be a valid decision or a lawful exercise of powers conferred by an enactment in order for the AAT to have jurisdiction, the number of matters falling outside the AAT’s jurisdiction would be very large. He elaborated as follows:
[I]n my opinion an applicant to the Tribunal has standing and the Tribunal has jurisdiction provided there is a decision in fact and provided further that the decision purports to have been made in exercise of powers conferred by an enactment whether or not as a matter of law it was validly made and whether or not action on the basis there was power to make the decision was right or wrong.[14]
[14]Lawlor (1979) 41 FLR 338, 346.
Bowen CJ stated that he had difficulty in drawing a distinction between a case where it is said that there is no decision because there is no relevant power at all in the relevant enactment, and cases where it is said there is no decision because the official, in one of a number of ways, has travelled outside the confines of the power conferred so the decision was ultra vires. He stated that, in most cases, it would be ‘reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official purported to act’[15] and that the AAT would have jurisdiction to entertain an appeal from a decision in fact made which purported to be made in the exercise of power under an enactment. The AAT could then proceed to determine whether the decision was properly made in fact and in law.
[15]Lawlor (1979) 41 FLR 338, 344.
Bowen CJ held that, in the case before the Court, the AAT had jurisdiction because the licensee had established that there was a decision in fact which purported to be under an enactment or in the exercise of powers conferred by an enactment.
Smithers J stated that it is reasonable to construe the word ‘decision’ in its natural meaning, namely, ‘the action of deciding’.[16] He held that that ‘Parliament intended the word “decision” to refer not only to decisions made but also to action taken to implement those decisions.’[17] He stated that a document setting out a decision (such as a letter communicating a revocation of a licence) may be a ‘decision’, but so too may the preceding act of making that decision (such as a decision to revoke a licence).
[16]Lawlor (1979) 41 FLR 338, 369.
[17]Lawlor (1979) 41 FLR 338, 370.
Smithers J rejected the proposition that ss 25-26 of the AAT Act and the schedule to that Act should be interpreted as empowering the AAT to review only decisions which are legally effective. He stated that, to construe the AAT Act in this manner ‘would leave untouched those administrative acts which are invalid and legally ineffective for one reason or another, but were performed in the course of action falling within the general purposes of a statute.’[18] He stated that such a situation ‘would not be compatible with the objective of the [AAT Act]’ and ‘would remove from review those decisions most in need of review’.[19]
[18]Lawlor (1979) 41 FLR 338, 367.
[19]Lawlor (1979) 41 FLR 338, 367.
On the basis of authorities that he examined, Smithers J stated that phrases such as ‘pursuant to’, ‘by virtue of’ and ‘under’ that describe the source of a statutory power for an administrative decision are capable of extending to acts not authorised by the relevant statute. Accordingly, he held that this provided compelling reason to accord the expression ‘made in the exercise of powers conferred by that enactment’ in s 25(1) of the AAT Act and the expression ‘under Division 1 of Part V of the Customs Act’ in item 12(2) of the schedule to the AAT Act a ‘liberal meaning appropriate to the purposes of the Act as appearing therein.’[20]
[20]Lawlor (1979) 41 FLR 338, 372.
Smithers J then stated:
In my opinion, adopting what I have called a liberal construction of the relevant expressions in ss 25 and 26 and the Schedule to the [AAT Act] which is appropriate to the nature and object of that Act, the necessary conclusion is that those decisions are reviewable which are made by an administrator in purported or assumed pursuance of the relevant statutory provision.[21]
[21]Lawlor (1979) 41 FLR 338, 373.
Smithers J stated that, ‘[i]f an administrator makes a particular decision in the course of government administration, then whether or not he is authorized to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.’[22] He restated this preposition as follows: ‘the fact that a decision is made by an administrator to take action which he has no power to take in a legally effective way does not exclude that decision from review by the Tribunal.’[23]
[22]Lawlor (1979) 41 FLR 338, 368.
[23]Lawlor (1979) 41 FLR 338, 370.
Smithers J concluded that the AAT had jurisdiction to review the purported revocation of the licensee’s licence for the following reasons:
The decision to revoke the [licensee’s] licence was obviously made by the Collector in purported or assumed pursuance of Divn 1 of Part V of the Customs Act. Accordingly it was a decision made under that provision and reviewable by the [AAT].[24]
[24]Lawlor (1979) 41 FLR 338, 373.
Lawlor has been consistently applied by the courts to the predecessors of the ART, namely, the AAT,[25] the Refugee Review Tribunal,[26] the Migration Review Tribunal[27] and the Social Security Appeals Tribunal.[28]
[25]Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217, 232-7 [39]-[52] (‘Plaintiff M174/2016’)
[26]Yilmaz v Minister for Immigration and Multicultural Affairs (2000) 100 FCR 495, 500 [25]-[26], 514-15 [88].
[27]Zubair v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 344, 353-4 [29]-[32].
[28]Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213, 219-21.
Decisions that have referred to Lawlor often cite it for the proposition that the AAT had jurisdiction to review purported decisions in the sense that the decisions purported to exercise a particular power in circumstances where that power was not available and therefore the decision was legally ineffective. Such a description reflects the facts in Lawlor. However, Bowen CJ made it clear that the AAT’s jurisdiction did not depend upon the state of mind of the decision-maker. Accordingly, the word ‘purported’ does not confine the principles in Lawlor to situations where the decision-maker’s subjective intention or purpose is to make a particular decision falling within the AAT’s jurisdiction. Rather, whether a reviewable decision has been made must be assessed objectively. One must look at the objective features of the decision or action that the relevant enactment specifies is a reviewable decision and compare them to the objective features of the decision made or the action taken by the decision-maker in a particular case, and then objectively determine whether the latter decision or action amounts, as a matter of fact, to a reviewable decision. A determination of whether a decision-maker’s decision or action is a reviewable decision is not affected by whether:
(a)the decision-maker intended it to be a reviewable decision; or
(b)the decision was legally ineffective because the decision-maker lacked the power to make a reviewable decision.
It follows that, in the present case, the expression ‘a decision of the Commissioner under section … 88 to give a removal notice’ in s 220(2) of the OSA does not require a search for a legally valid decision to give a removal notice under s 88. To meet the jurisdictional preconditions of s 220(2), in the present case it is sufficient that the following requirements are met. First, the Commissioner has in fact made a decision to give a notice to X. Secondly, having regard to its objective features, the notice amounts, as a matter of fact, to a removal notice under s 88 regardless of what was subjectively intended by the Commissioner in relation to the notice or whether the notice was legally effective under s 88.
The above analysis is consistent with Plaintiff M174/2016 v Minister for Immigration and Border Protection.[29] One of the issues in that case was whether the jurisdiction of the Immigration Assessment Authority (‘IAA’) to review a ‘fast track reviewable decision’ of the Minister or their delegate made under Part 7AA of the Migration Act 1958 was confined to a validly made, legally effective decision. The High Court applied Lawlor in finding that the IAA’s jurisdiction was not so confined. The plurality (Gageler, Keane and Nettle JJ) referred to the Lawlor ‘construction’ of s 25 of the AAT Act. Their Honours stated that the Full Court of the Federal Court in Lawlor ‘construed the reference in s 25 of the [AAT Act] to a “decision” in respect of which an enactment might provide for review by [the AAT] as a reference to nothing more than “a decision in fact made, regardless of whether or not it is a legally effective decision.”’[30] Gordon and Edelman JJ delivered short concurring judgments which broadly agreed with the plurality.
[29](2018) 264 CLR 217, 232-3 [39], 236-7 [52].
[30]Plaintiff M174/2016 (2018) 264 CLR 217, 232-3 [39].
EVIDENCE
The applicant relied upon an affidavit sworn by Reuben Kirkham on 4 October 2024. Dr Kirkham is a director of Free Speech Union of Australia Pty Ltd, which represented the applicant in this proceeding together with Scott Young of Counsel. Dr Kirkham is not a lawyer. He was not cross-examined on his affidavit. I will refer to the affidavit further below.
The applicant also relied upon the following categories of documents:
(a)some documents in a bundle of 57 pages lodged by the Commissioner on the basis that they may be relevant to the jurisdictional issue to be determined by the Tribunal (‘Bundle Documents’); and
(b)some documents in a bundle of 48 pages lodged by the applicant, being documents obtained on her behalf from the Commissioner under the Freedom of Information Act 1982 (‘FOI Documents’).
The Commissioner relied upon three affidavits. The first affidavit was affirmed by a solicitor acting for the Commissioner, which is not presently relevant. The second affidavit was affirmed by Luke Hannath on 17 October 2024. He is a lawyer and, in June 2024, he was the acting manager of the adult cyber abuse team (‘ACA team’) in the Commissioner’s office. The third affidavit was affirmed by Samantha Caruana on 11 December 2024. In June 2024, she was an investigator in the ACA team, and reported to Mr Hannath. Both Mr Hannath and Ms Caruana were cross-examined.
The Commissioner also relied upon some documents in the Bundle Documents and the FOI Documents.
In the course of the cross-examination of Mr Hannath, reference was made to two policy documents of the Commissioner, namely, ‘Compliance and Enforcement Policy eSC CEP December 2021’, and ‘Adult Cyber Abuse Scheme Regulatory Guidance eSC RG 3 December 2023’. Also, two emails forming part of the FOI Documents which had redactions in relation to the names of the sender and recipients were supplemented by versions of the emails without those redactions. These policy documents and unredacted emails form part of the material before the Tribunal on the jurisdictional issue, in addition to the documents referred to at [‎39] to [‎42] above.
The online portal that Ms Caruana used to communicate with X in relation to the Post does not provide a copy of the information entered into the portal. Accordingly, the Tribunal did not have before it the fields of the portal that Ms Caruana populated in the present case. Prior to the conclusion of the hearing, the Tribunal enquired of counsel for the Commissioner whether it would be possible for the Commissioner to now utilise X’s portal for the purpose of taking screenshots of the pages and fields that the Commissioner would need to populate in lodging a complaint alert. The Tribunal was informed that the Commissioner was willing to attempt this exercise. The Tribunal requested the Commissioner to do so and to lodge with the Tribunal the screenshots obtained by her, provided that the applicant agreed to that course. On 14 January 2025, the Commissioner lodged with the Tribunal five screenshots, and advised that the applicant did not object to their lodgement. I will refer to these screenshots below.
UNCONTESTED FACTS
The facts summarised at [‎46] to [‎71] below are based upon the documents referred to at [‎39] to [‎44] above and matters that were common ground between the parties.
X’s terms of service
The parties did not file with the Tribunal all of the provisions of X’s terms of service and policies to which reference is made in other documents. It can be inferred from those references that X had policies which prohibited the posting of material which:
(a)incited others to harass members of a protected category;
(b)incited behaviour that targeted individuals or groups of people belonging to protected categories;
(c)targeted others with repeated slurs, tropes or other content that intended to degrade or reinforce negative or harmful stereotypes about a protected category, including severe repetitive usage of slurs or racist/sexist tropes where the context is to harass or intimidate others.
It can also be inferred that, where X formed the view that a post violated its policies, its terms of service authorised it to remove the post from its platform or withhold access to it in a particular country.
The parties provided to the Tribunal X’s ‘Platform Use Guidelines’. In those guidelines, X explained ‘country withheld content’ relevantly as follows:
Why might content be withheld?
Many countries, including the United States, have laws that may apply to posts and/or X account content. In our continuing effort to make our services available to people everywhere, if we receive a valid and properly scoped request from an authorized entity, it may be necessary to withhold access to certain content in a particular country from time to time. Such withholdings will be limited to the specific jurisdiction that has issued the valid legal demand or where the content has been found to violate local law(s)…
…
Withheld posts
If you see the above message, it means X was compelled to withhold the original post in response to a valid legal demand, such as a court order.
If you see the above message, it means X withheld content based on local law(s)
in response to a report filed through specific support intake channels.
…
How can I submit a legal request to have content withheld?
If you are a law enforcement agent, government official, or other third-party intending to submit a valid legal request and would like to have potentially illegal content or accounts removed from X, we ask that you first review the X Rules and, if applicable, submit a request to have the content reviewed for possible violations of X's Terms of Service, here: you have already submitted a request and have received a response from X indicating that the content in question does not currently violate X's Terms of Service, you can submit a request for content to be withheld through our legal request submission site: You will then receive an automated response confirming that your request has been received by our support system. We will send another email once we've had a chance to evaluate your request. [31]
[31]Underlining added for emphasis.
It appears from the text at [‎48] above under the heading ‘How can I submit a legal request to have content withheld?’ that there are two pathways for a law enforcement agent, government official or other third-party to follow in relation to requesting that content be withheld:
(a)In the first instance, if the entity is intending to submit a valid legal request, it should submit a request to have the content reviewed for possible violation of X’s Terms of Service using the appropriate form (‘General Portal’);
(b)If a request has already been lodged using the General Portal in (a) above and X has responded stating that the content does not violate its terms of service, a request can then be submitted using X’s legal requests submission site (‘Legal Requests Portal’).
The first screenshot of X’s Legal Requests Portal that the Commissioner lodged with the Tribunal on 14 January 2025 (‘Commissioner’s first screenshot’) relevantly states the following:
Legal Requests
Legal request submissions
Please confirm your identity
Welcome to Twitter’s online legal request submission site. You can submit your legal request (e.g., subpoena or court order) for account information or content removal by following the steps below. We also accept emergency disclosure requests from law enforcement through this site. All non-legal requests should be submitted through our Help Center forms.
If you are a law enforcement agent, government official, or other third-party intending to submit a valid legal request, please enter your full name, official email address, and confirm your authority by checking the box below. No other uses of this form are permitted.
…
□ I affirm that I have any required legal authority to submit this request and the submission is a permitted use of this system.[32]
[32]Underlining added for emphasis.

The second screenshot of X’s Legal Requests Portal that the Commissioner lodged with the Tribunal on 14 January 2025 (‘Commissioner’s second screenshot’) is very similar to the Commissioner’s first screenshot and need not be reproduced.
The third screenshot of X’s Legal Requests Portal that the Commissioner lodged with the Tribunal on 14 January 2025 (‘Commissioner’s third screenshot’) was headed ‘Twitter Legal Request Submissions’ and gave the user of the portal a choice of four types of request to submit. They were ‘Emergency disclosure request’, ‘Preservation request’, ‘Information request’ and ‘Removal request’. The note under the heading ‘Information request’ stated ‘Submit a request for Twitter/Periscope account information based on valid, properly scoped legal process (e.g., subpoena, warrant).’ The note under the heading ‘Removal request’ stated ‘Submit a request for Twitter to withhold content based on a valid, properly scoped legal request.’
The fourth and fifth screenshots were blank forms for a ‘Removal request’ (‘Removal request form’ or ‘Commissioner’s fourth screenshot’) and an ‘Information request’ (‘Information request form’ or ‘Commissioner’s fifth screenshot’), respectively.
The Commissioner’s fourth screenshot (being the ‘Removal request form’) relevantly contains the following fields:
Removal Request
We may remove certain content in response to a valid and properly scoped request. Please fill-in the required details below to assist us in processing your content removal request.
More information is available in our Guidelines for Law Enforcement and CWC Help Center Article.
Contact Information
Full name*
Title*
Organization*
E-mail*
Phone*
Fax
Street*
City*
Country*
ZIP code
Authorizing jurisdiction* (Select a jurisdiction)
Jurisdiction authorizing your request. If the request is authorized by a U.S. Federal agency, please select “United States (Federal)”.
Reported Content
Please add the account(s) and/or reported posting(s) (e.g., Tweets, Broadcasts) that are the subject of your investigation. Please select at least one option (Twitter username(s), or Periscope username(s), or Account ID(s), or reported link(s)).
Reporting* Please fill out all the relevant sections and leave sections that do not apply blank. For instructions on how to find the account user ID, please refer to our law enforcement guidelines.
Reported link(s)
Link(s) of the Tweet or Periscope broadcast. For instructions on how to find a Tweet URL, please refer to this page.
Twitter account ID(s)
Reported account IDs of the subject account(s).
Twitter username(s), for example, @TwitterSafety
Reported @usernames of the subject account(s). Please check the username of the account on Twitter prior to reporting and also note that account holders can change their username from time to time.
…
Required Information
Please upload a dated and signed copy of your valid legal process or report.
Matter type*
oCivil
oCriminal
Issue type*
□Child sexual exploitation
□Copyright infringement
□Trademark infringement
□Violent threats or incitement
□Harassment
□Private information
□Impersonation
□Graphic Content
□Defamation
□Sensitive information
□Infringement of privacy rights
□Hateful conduct
□Illegal content
□Other
Quick review
□ This request can be processed by external vendors.
Twitter can give access to external vendors for processing without facing any civil or criminal liability.
Court order*
oI have a court order regarding this matter.
oI don't have a court order regarding this matter
Legal basis*
Statute or other legal basis supporting your request for content removal (e.g., Article 24 bis of the Law on the Freedom of the Press).
Please provide any additional details
All other available details or context regarding the particular circumstances to help us better understand the situation.
User and Lumen Notice
As outlined in our Guidelines for Law Enforcement and Legal Request FAQ article, unless the reported content violates Twitter's Terms of Service, and unless we are prohibited from doing so, our policy is to notify users of legal requests to withhold content, and to provide them with a copy of the request. When certain content has been withheld, a "Tweet withheld" or “Account withheld" banner will be visible to users in lieu of the reported content. For a visualization, please see our Country withheld content page here. Twitter also partners with Lumen to publish legal requests to remove content unless, similar to our practice of notifying users, the reported content violates Twitter's Terms of Service and/or if we are prohibited from doing so.
Please acknowledge that you understand Twitter's user and Lumen notice policy:
Acknowledgement*
oI acknowledge and understand Twitter may notify the reported user(s) and Lumen of my request and will provide a copy of all attachments. Unless instructed otherwise, Twitter will not redact any of the information included in the attachment(s).
oProviding notice to the user and to Lumen is not appropriate at this time.
Attachments
File attachments Please upload a court order or other legal process you have obtained, if applicable.
…
Please note: Reports submitted through this form are reviewed and responded to as quickly as possible. Questions about submissions and follow-ups will be directed to the email address provided above.
Submit[33]
[33]Underlining added for emphasis.
The Commissioner’s fifth screenshot (being the ‘Information request form’) contains a broad range of fields, similar to the Commissioner’s fourth screenshot above. The extract that follows omits some of the fields under the heading ‘Contact Information’ and some other irrelevant information.
Information Request
In line with our Privacy Policy and in compliance with applicable law, we may disclose account information to law enforcement or to authorized legal representatives in response to valid legal process.
More information is available in our Guidelines for Law Enforcement.
Contact Information
…
Organization*
...
Country* (Select a country )
ZIP code
Authorizing jurisdiction* (Select a jurisdiction )
Jurisdiction authorizing your request. If the request is authorized by a U.S. Federal agency, please select “United States (Federal)”.
Subject of the Information Request
Reporting* Please fill out all the relevant sections and leave sections that do not apply blank. For instructions on how to find the Twitter account user ID, please refer to our law enforcement guidelines.
Twitter account ID(s)
Reported account IDs of the subject account(s).
Twitter username(s), for example, @TwitterSafety
Reported @usernames of the subject account(s). Please check the username of the account on Twitter prior to reporting and also note that account holders can change their username from time to time.
…
Email address(es) and Phone number(s)
Email address or phone number you believe to be associated with a Twitter account.
Required Information
Matter type*
oCivil
oCriminal
Request type*
oCourt order
oFormal request
oLetter rogatory
oRIPA: Grade 1
oRIPA: Grade 2/3
oSubpoena
oWarrant
oOther
Previous preservation
□Have you previously issued a preservation associated with the account(s)?
If you have not previously submitted a preservation request and would like to, you may submit one through our online submissions site. More information for law enforcement is available in our Guidelines for Law Enforcement.
Production date YYYY-MM-DD
Date by which response is due (i.e. due date).
Issue type*
□Election Related
□Child sexual exploitation
□Cybercrime
□Defamation
□Explicit content
□Fraud
□Harassment
□Harm to minor (non-CSE)
□Illegal substances
□IP infringement
□Missing persons / kidnapping
□National security
□Murder
□Non-consensual nudity
□Suicide / self-harm
□Threats to journalists
□Violent threats or incitement
□Violent crime
□Other
Case number* Your internal case or docket number.
Requested information*
□Basic account information
□Creation IP*
□Phone number
□IP session logs
□Tweets
□Direct messages
□Media
□Other information
Requested dates YYYY-MM-DD to YYYY-MM-DD
Please select an inclusive date range.
User Notice
As outlined in Twitter's Guidelines for Law Enforcement, our policy is to notify users of requests for their account information and provide them with a copy of the legal process, unless we are prohibited (e.g. non-disclosure order or counterproductive circumstances). Prior to notifying a user, we seek confirmation of this policy as well as any additional information regarding the possible prohibition of user notice from the requesting law enforcement agent.
Please acknowledge that you understand Twitter's user notice policy:
Acknowledgement*
oYes, I acknowledge and understand Twitter's user notice policy.
oNo, providing notice to the user is not appropriate at this time.
Attachments
File attachments* Please attach a copy of your official legal request and non-disclosure order.
…
Please note: Reports submitted through this form are reviewed and responded to as quickly as possible. Questions about submissions and follow-ups will be directed to the email address provided above.
Submit[34]
[34]Underlining added for emphasis.
The Tribunal also had before it a document setting out information that the Commissioner had entered into X’s Legal Requests Portal in an unrelated matter. The document was in the following form:
Confirmation – Removal Request
Please confirm following input:
Removal Request
Required information
Authority name                   Australia
Matter type  Civil
Court order  No
Legal basis Section 7 of the Online Safety Act 2021
Additional information         […][35]
[35]Use of […] in these reasons indicates that text has not been reproduced by the Tribunal because it contains personal identifiers or other information, disclosure of which is not necessary for a proper understanding of the Tribunal’s reasons.
Action taken by the Commissioner in relation to the applicant’s post on X
The applicant made the Post on X on Wednesday 29 May 2024 at 11:03am. The Post was also posted on Instagram, which is operated by Meta.
On Friday 31 May 2024 at 8:38pm, the Commissioner received a complaint from a member of the public about the Post (‘Complaint’). The Complaint was against X as well as Instagram. In the Complaint, the complainant stated that they were authorised to make the Complaint by the person targeted by the Post and that the complainant had reported the Post to X and to Instagram that same day.
On 31 May 2024 at 8:38pm an automated email was sent by the Commissioner to the complainant which relevantly stated:
Thank you for making a complaint to the Office of the eSafety Commissioner.
…
What we can do
·Give advice on what you can do yourself
·Assist you in resolving your concern, which may include approaching social media services to have material removed
·Get your consent before acting upon anything …
On Monday 3 June 2024, Ms Caruana considered the Complaint and concluded that the Post did not satisfy the definition of ‘cyber-abuse material targeted at an Australian adult’ in s 7 of the OSA. Her reasoning was that, although the Post satisfied the ‘menacing, harassing or offensive material’ requirement in s 7(1)(c), it did not satisfy the ‘intention to cause serious harm’ requirement in s 7(1)(b).
On 3 June 2024 at 4:57pm, the Commissioner sent an email to the complainant, which relevantly stated:
We can see that the material is targeting [redacted by Commissioner] and that it may be in violation of Instagram and X policies.
To assist you, we will informally [escalate] your report to Instagram and X to notify them of the potential violation. Once platforms receive our report, they may take action against the material.
On 3 June 2024 at 6:05pm, Ms Caruana accessed X’s Legal Requests Portal and entered information relating to the Complaint. Ms Caruana did not take a screenshot of the information she entered. The content of that information is a contentious factual issue which I will discuss in detail below.
At approximately the same time, Ms Caruana entered similar information into Meta’s portal.
On 3 June 2024 at 6:05pm, the Commissioner received an automated email from X, which relevantly stated:
This automated response confirms receipt of your request to Twitter to remove
content regarding user(s) @ (first user identified in your request).
Your request has been escalated to the appropriate team and will be reviewed and
responded to as soon as possible. …
We will contact you at the law enforcement/government email address you have
[36]Underlining added for emphasis.
provided should we require more information. …[36]
On 3 June 2024 at 7:18pm, the Commissioner received another email from X which stated that the Post ‘has been withheld in Australia’.
On 3 June 2024 at 7:28pm, X sent an email to the applicant which relevantly stated:
In the interest of transparency, we are writing to inform you that X has received a request from the eSafety Commissioner regarding your X account … that claims the following content violates the law(s) of Australia.
…
In order to comply with X’s obligations under Australia’s local laws, we have withheld this content in Australia; the content remains available elsewhere. For more information about our Country Withheld Content policy, please see this page: …
As X strongly believes in defending and respecting the voice of our users, it is our policy to notify our users if we receive a legal request from an authorized entity (such as law enforcement or a government agency) to remove content from their account. …
We … want you to have an opportunity to evaluate the request and, if you wish, take appropriate action to protect your interests. This may include seeking legal counsel and challenging the request in court …[37]
[37]Underlining added for emphasis.
On 3 June 2024 at 7:44pm, Instagram informed the Commissioner by email that Instagram had ‘found no violations of [its] policies’ in relation to the Post. Instagram did not remove the Post at that time.
On Tuesday 4 June 2024, the applicant tweeted a screenshot of the email at [‎66] above and made some comments that were critical of the Commissioner. At 4:26pm on that day, the ACA team was notified by an internal email of the applicant’s tweet. At 4:47pm, Paul Kernebone, a senior investigator in the ACA team, responded to the email relevantly as follows:
… FYI we (ACA) did receive a complaint about this over the weekend … The content was on X and Instagram. We requested both platforms pull the post.
X geoblocked the content – Instagram declined to…[38]
[38]Underlining added for emphasis.
Mr Kernebone’s email was copied to a number of individuals, including Mr Hannath. On Wednesday 5 June 2024 at 8:53am, Mr Hannath responded to Mr Kernebone’s email as follows:
Further to [the] email below, we should say that this was only an informal escalation, which was deemed to be a potential breach of X’s own terms of service.
It was not a formal removal notice.[39]
[39]Emphasis in original.
On 5 June 2024 at 4:24pm, the Commissioner sent an email to the complainant which relevantly stated:
We have received confirmation from X (Twitter) that they have removed the content for violating their policies.
We have checked the URL to the material and confirm the material is no longer available:
…
We have been advised by Instagram that they have found no violation of their policies in relation to [the Post]…
We have requested an additional review of the decision and provided further context.
[40]It appears from the Commissioner’s internal records that Meta removed the Post from Instagram on 16 June 2024 and that this action was taken by Meta of its own accord without any further communications between it and the Commissioner since 5 June 2024.
We will update you once we receive a response from Meta.[40]
On or about 10 August 2024, X sent an email to the applicant advising that access to the Post ‘was withheld in Australia in error, at the request of the eSafety Commissioner’ and that it ‘was no longer withholding access to the [Post].’ The Post remains available on X.
Procedural background
On Friday 7 June 2024, the applicant lodged an application for review with the AAT. The application described the decision to be reviewed as follows:
The decision was made by the eSafety Commissioner under the Online Safety Act 2021 (Cth) to give a takedown notice to X, presumably under Section 88. The precise date of the decision cannot have been any earlier than the 29th of May 2024, as this is when the Tweet was posted. We believe it was made on the 3rd of June 2024.
In her ‘Notice of Appeal’ document, the applicant stated that her review application was made under s 220(2) of the OSA.
On 18 June 2024, the Commissioner advised the AAT that, in the Commissioner’s opinion, no reviewable decision of a kind referred to in s 220 of the OSA had been made in the present case because all that the Commissioner had done was to send to X a ‘complaint alert’ which ‘informally [notified] X that a complaint had been received and provide[d] details of the complaint for X’s consideration.’ The Commissioner stated that ‘[c]omplaint alerts notify online services that material that may breach their terms of service has been reported to eSafety [and] do not ask nor require the provider to take any action in response.’ The Commissioner added that ‘[t]here is no power to give complaint alerts to online service providers in the [OSA].’
As I have already stated, on 6 November 2024, I referred the proceeding to the GAP pursuant to s 122(1) of the ART Act. On 13 December 2024, an interlocutory hearing was conducted by the GAP on the question of jurisdiction. Pursuant to leave given by the Tribunal, the parties provided supplementary written submissions in January 2025.
CONTESTED FACTS
Evidence on contested facts
The key contested factual matter concerns the precise content of the information that Ms Caruana entered into X’s Legal Requests Portal on 3 June 2024.
In his affidavit of 4 October 2024, Dr Kirkham stated that X’s lawyer telephoned him on 13 August 2024 and said words to the following effect:
I have been instructed to send you the complaint form that X received from the eSafety Commissioner regarding Celine’s post so you can use it in the proceedings. This is the form they submitted through X’s Legal request portal and the reason X took down the post.’
Dr Kirkham annexed to his affidavit an email from X’s lawyer which simply stated, ‘As discussed Reuben’ (Annexure A) and the attachment to the email (Annexure B). Annexure B was in the following terms:
Description: === Contact Information ===
Full name: Ash A
Title: Senior Investigator
Organization: eSafety Commissioner
E-mail: […]
Phone: […]
Fax (optional):
Street: […]
City: […]
Country: au
Zip (optional): […]
State:
Authorizing Jurisdiction: Australia
=== Required Information ===
Authorizing Jurisdiction: au
Matter Type: Civil
Issue Type: Harassment, Private Information
Legal Basis: Section 7, Online Safety Act 2021
Format Type: Formal Request
Issuing Court:
=== Subject of the Information Request ===
Reported Twitter account ID(s):
Reported Twitter username(s): […]
Reported Periscope usernames(s):
Reported Link(s): […]
=== Requested Information ===
Requested Information:
Other info:
=== User and Lumen Notice ===
Acknowledgement of user notice policy: Yes
Notice redaction info:
Notice prohibition legal reason:
=== Quick Review ===
Quick review: No
=== Affirmations ===
I confirm that ‘I am submitting the request without attachment.’
Signed name: Adult Cyber Abuse, eSafety Commissioner
I affirm that, to the best of my knowledge, the above information is true and accurate, and that I am authorized to submit this report.

The Commissioner’s internal records of the information that the Commissioner contends was sent to X on 3 June 2024 include the following text which is described as a ‘draft complaint alert’ (‘Draft Complaint Alert’):
Dear X,
Under the Online Safety Act 2021, the eSafety Commissioner is responsible for handling complaints about cyber abuse material concerning Australian adults and ensuring the rapid removal of such material from social media services, relevant electronic services, or designated internet services. Please refer to our website for more information on our role.
We wish to alert you to a complaint we have received from [redacted by Commissioner] (the complainant). Our reference number […].
We are escalating this complaint to you on the basis that the material may be in violation of your policies.
The complainant has reported that an X account […].
The reported account and material is available at the following URLs: […].
The post appears to have been created by an individual end user, seeking to intimidate and harass the complainant, on the basis the complainant [runs] a Queer Club, for primary school students, which was a student led [initiative]. We understand the complainant's name, workplace and social media accounts have been [publicly] shared in the post, inciting unwanted contact from other users and placing the complainant at risk.
eSafety has assessed that the complained material may be a violation of X terms of services and polices, specifically:
·inciting others to harass members of a protected category on or off platform
·We prohibit inciting behavior that targets individuals or groups of people belonging to protected categories.
·We prohibit targeting others with repeated slurs, tropes or other content that intends to degrade or reinforce negative or harmful stereotypes about a protected category. In some cases, such as (but not limited to) severe, repetitive usage of slurs, or racist/sexist tropes where the context is to harass or intimidate others
We would appreciate your immediate confirmation that you have received this report. We ask that you advise us if any action is taken in response to this report.
Regards,
Cyber Abuse Team
eSafety Commissioner[41]
[41]Underlining added for emphasis.
In relation to the information set out at [‎79] above, a timestamp ‘6/06/2024 2:18pm’ appears underneath the text box containing the Draft Complaint Alert as well as ‘03/06/2024 18:05’ in the subject line or title above that text box.
Mr Hannath’s evidence
Mr Hannath relevantly stated the following in his affidavit:
(a)In his role as acting manager of the ACA team in June 2024, he had delegated authority from the Commissioner to make decisions to give or to refuse to give removal notices under s 88 of the OSA. The team comprised up to three senior investigators and up to four investigators. He oversaw all of the ACA team’s activities.
(b)Where he concluded that material constituted cyber-abuse material, the ACA team would generally send an informal complaint alert to the service provider. This was a report to the service provider which brought the material to their attention and flagged that it may violate particular provisions of their terms of service. If he concluded that the material did not constitute cyber-abuse material, he would assess whether the material potentially violated the service provider’s terms of service and, if he considered that there may be a potential violation, the ACA team would send an informal complaint alert to the service provider. Where he concluded that the material constituted cyber-abuse material and the service provider did not remove the material, he would discuss with the relevant investigator the next steps. Those steps could include giving a removal notice to the service provider, issuing a ‘service provider notification’ under s 93 of the OSA or refusing to give a removal notice. These options were only available where material was assessed as cyber-abuse material targeted at an Australian adult.
(c)The investigator who dealt with the Complaint brought it to his attention ‘[o]n or about 4 June 2024’ and told him what they had done in relation to it.
(d)Prior to reading Dr Kirkham’s affidavit, he had not seen Annexure B or any document in that form. He recognises that some of the fields in Annexure B match some of the fields within X’s online reporting portal. The only field he has not seen within the reporting portal was the one titled ‘Format Type’.
Mr Hannath’s evidence that is summarised at [‎83] to [‎92] below was given by him in cross-examination or in response to questions from the Tribunal.
In June 2024, the members of the ACA team sat in a very close environment and a lot of their practices were communicated within the team by word of mouth. They worked in very close proximity and did not operate in silos, in the sense of moving ahead without consideration of whether others might have a view. They were ‘talking about complaints all day long’. There ‘would be a lot of talking and forums … and a lot of team meetings about things’. The team issued complaint alerts to service providers even though the requirements of s 7 of the OSA were not satisfied when they considered that the material constituted a serious breach of the service provider’s terms of service. That would usually be the case where the ‘menacing, harassing or offensive material’ requirement was met but the ‘intention to cause serious harm’ requirement was not met, or vice versa.
In June 2024, Mr Hannath was the only member of the ACA team who had delegated authority to give or refuse to give a removal notice to a service provider. The power to give or refuse to give a removal notice only arises if the material satisfies the definition of cyber-abuse material targeted at an Australian adult in s 7 of the OSA. If an investigator assessed material as satisfying that definition, they would refer it to him to decide whether to give a removal notice or refuse to give a removal notice. However, if an investigator formed the view that the material did not meet the definition but may constitute a serious breach of a service provider’s terms of service, the investigator could give a complaint alert to the service provider without necessarily obtaining approval from him. If an investigator formed the view that the material did not warrant the giving of a complaint alert, they would inform the complainant that no further action would be taken in relation to their complaint.
The Commissioner issues a few hundred complaint alerts to service providers every year in relation to adult cyber-abuse material. In the past 12 months, the Commissioner issued three or four removal notices. Complaint alerts are a much faster mechanism than removal notices to achieve results because the alerts do not require the drafting of a removal notice and a statement of reasons to accompany the notice. The Commissioner sees her role as including being an advocate for complainants to assist them to achieve removal of material from social media platforms, and assisting in the enforcement of, or compliance with, providers’ terms of service.
Mr Hannath gave the following evidence in relation to the desired regulatory result in the present case:
Is it correct that eSafety’s policy is that taking informal or less intrusive action is preferred if it achieves the Commissioner’s desired regulatory results? --- Yes.
In the context of this case, the desired regulatory result was that the applicant’s post would be removed from Twitter and Instagram? --- Yes.
And that was the desired result, even though the investigator had concluded that the material in question was not cyber abuse material targeting an Australian adult? --- Yes.
…
But in essence … in this particular case, the Commissioner through [her] staff concluded that [she] could not legally force the removal, correct me if I misunderstood your evidence, but the staff wanted to bring about the removal and wanted to achieve that result through the informal alert process, is that correct? --- Through the informal alert process.
Yes? --- Yes.
Mr Hannath gave the following evidence in response to questions from the Tribunal in relation to the impression that X was likely to have formed upon receiving the information provided by Ms Caruana through X’s Legal Requests Portal:
When I look at the X portal and description of ‘legal’ … I form the view … this is an access point for law enforcement agencies and for regulators who have legal power to demand that I do something?---Yes.
Is that a fair characterisation, do you think, of the way that X describes its portal?---I think that’s fair, your Honour. Yes.
And so in light of that, when the eSafety Commissioner uses that portal, is it fair to say that, given the way that X describes that portal, that they interpret what they’re receiving as a legal demand to take down the post?---I think that’s probably fair, your Honour. Yes.
…
[Do] you agree that, in this particular case … that’s how X interpreted it initially? i.e. They thought that they were receiving a legal demand to take down from the eSafety Commissioner?---Possibly, but not necessarily if the text of the draft complaint alert that is in the tender bundle… was submitted with it, I wouldn’t necessarily assume they would think it was a legal request.
…
If that’s what they reserve that portal for, every time a regulator uses it, doesn’t it stand to reason that X would treat it as, ‘This isn’t just a complaint from an ordinary member of the community. This is a regulator with legal power, legal authority, specified and acknowledged that they have legal authority, requiring us, i.e. mandating us, to take the post down’?---Yes, your Honour. I accept that that could be the way they’d interpret it. I would just say that this obviously wasn’t the only instance of us referring … via this portal to X… X would routinely deny requests that we would put in this portal.
So they do not always comply with requests (indistinct) the commissioner uses this portal? … --- Very rarely would comply with requests that we put through that portal.
Okay. In this case, they did - - -?---Yes.
…
… Out of all the major social media services we would contact, X was by far the least likely to take removal action, and, you know, this was the first time they took removal action for a long period of time that I recall, so I was surprised in that sense.
In response to questions from the Tribunal, Mr Hannath accepted that there was absent from the Draft Complaint Alert any statement that the Commissioner was not exercising a statutory power in providing the alert or that X was not legally required to remove the Post. He also accepted that the Commissioner’s use of X’s Legal Requests Portal could give the impression that it was being asked to do something rather than just having a look at the information provided, due to a combination of the following factors:
(a)the first paragraph of the Draft Complaint Alert referring to the Commissioner’s statutory functions;
(b)the statement that the Commissioner ‘has assessed that the complaint material may be in violation of X’s terms of services and policies’; and
(c)the fact that the portal was reserved for legal enforcement actions.
Mr Hannath sent an email at 8:53am on 5 June 2024 in response to Mr Kernebone’s email of 4 June 2024 in order to confirm that the informal complaint alert mechanism had been used in relation to the Complaint. He clarified the position because Mr Kernebone’s email was unclear as to which method had been used and might be misdescribing what had happened.
Mr Hannath has personal experience of using X’s Legal Requests Portal and seeing pre-populated information there, which was likely retained from previous uses of the portal by the Commissioner’s staff. It was therefore likely that some of the information in the portal relating to the Complaint, when Ms Caruana accessed the portal, was pre-populated. In terms of the items in Annexure B, the parts of the portal that he has seen previously being pre-populated were those under the heading ‘Description == Contact Information ==’. In relation to the item ‘Full name: Ash A’ in Annexure B, Alex Ash was the manager of the ACA team until around January 2024. He has seen that name pre-populated when accessing X’s Legal Requests Portal.
Mr Hannath recognises all of the items in Annexure B other than the item ‘Format Type’. He recalls that X’s portal contained a free-text or ‘additional information’ field, into which he had previously entered information. Next to the item ‘Legal Basis’, he would normally specify that he was not making a legal request but an informal terms of service breach report. However, it was possible that some investigators submitted complaint alerts about adult cyber-abuse material which identified the legal basis as s 7 of the OSA.
There were two ‘mismatches’ between Mr Hannath’s recollection of X’s Legal Requests Portal and Annexure B. The first is the absence of a free-text field in Annexure B. The second is the inclusion in Annexure B of the item ‘Format Type’, which he does not recognise.
Ms Caruana’s evidence
Ms Caruana relevantly stated the following in her affidavit:
(a)She was the investigator responsible for handling the Complaint in June 2024. In her role as investigator, she reported to Mr Hannath.
(b)She assessed the Post as not satisfying the definition of ‘cyber-abuse material targeted at an Australian adult’ in s 7 of the OSA because, although it satisfied the ‘menacing, harassing or offensive material’ requirement, it did not satisfy the ‘intention to cause serious harm’ requirement.
(c)On 3 June 2024, she ‘alerted each of X and Meta to the complaint’. In the case of X, she used X’s Legal Requests Portal, which had fields to be filled out. The substance of the information she provided to X through that portal is set out in the Draft Complaint Alert.
(d)Her usual practice is to type and save the main text of a complaint alert in the Commissioner’s case management system and then copy and paste that text into the relevant service provider’s portal. She would note the date and time at which she had done this in the case management system. She followed her usual practice in relation to the Complaint. She copied and pasted the text of the Draft Complaint Alert into the ‘Please provide additional details’ field of X’s Legal Requests Portal on 3 June 2024 at 6:05pm.
(e)Annexure B is not familiar to her. The form of the document does not reflect the form of X’s Legal Requests Portal that she used on 3 June 2024. However, she recognises some of the fields in Annexure B as similar to some of the fields in X’s Legal Requests Portal.
Ms Caruana’s evidence that is summarised at [‎95] to [‎98] below was given by her in cross-examination or in response to questions from the Tribunal.
It is Ms Caruana’s usual practice to record a complaint alert in the Commissioner’s case management system on the same day that it is sent to a service provider. It is her recollection that she recorded the Draft Complaint Alert in the case management system at 6:05pm on 3 June 2024, but cannot be definitive. A time stamp in the case management system may reflect the time that the system is most recently accessed to amend an entry rather than when the entry was first made. Her usual practice before closing a complaint alert is to go through the notes section of the case management system to see if there are any typographical errors that need to be corrected. She probably followed her usual practice in relation to the Complaint, but cannot recall whether she made any amendments.
In relation to the Complaint, Ms Caruana ‘had a conversation with [her] manager at the time about submitting a complaint alert in regards to the [Post]’. Nobody other than Mr Hannath and herself was ‘involved in [her] decision to send a complaint alert on 3 June’. In submitting the information in the Draft Complaint Alert to X, she was informing X that the material may be in breach of its terms of service, rather than asking X to do anything. She did not request X to ‘pull the post’.
Ms Caruana does not recall whether there was any occasion upon which she informed X through its Legal Requests Portal that the legal basis for her request was s 7 of the OSA. It is possible that she did. She has no recollection of entering ‘Section 7, Online Safety Act 2021’ in the portal in relation to the Complaint, but ‘it is possible, because [she does not] recall definitively’. If she were to have entered those words, she would have meant that the most relevant provision which dealt with the particular post is s 7 of the OSA rather than that the requirements of s 7 are met.
When Ms Caruana was taken through the contents of Annexure B, her evidence was to the effect that some fields looked familiar whereas others did not, that she believed that she recognised some fields whereas she believed she did not recognise others, and that she did not recall some fields. Ultimately, she acknowledged that it was possible that she entered the information appearing in Annexure B into X’s Legal Requests Portal and that she entered the Draft Complaint Alert in the additional information component of the portal.
Parties’ submissions on contested facts
The applicant submitted that the Tribunal could rely upon Dr Kirkham’s affidavit and the information provided to him by X’s lawyer, and should conclude that, on 3 June 2024, Ms Caruana entered into X’s Legal Requests Portal all of the information in Annexure B. The applicant contended that the Tribunal should also find that, whilst Ms Caruana prepared the Draft Complaint Alert, she did not enter any of its text into X’s Legal Requests Portal. That was said to be because the timestamp of 6 June 2024 on the Commissioner’s case management system showed that the text of the Draft Complaint Alert was uploaded onto the system on that date, rather than on 3 June 2024. The applicant accepted that Ms Caruana prepared the Draft Complaint Alert on 3 June 2024, but argued that she forgot to enter it into the Commissioner’s case management system and X’s Legal Requests Portal then, and did not enter it into the case management system until 6 June 2024.
The Commissioner submitted that the evidence relating to Annexure B constituted ‘hearsay upon hearsay’ and the Tribunal could not rationally rely upon it. Whilst the Commissioner eschewed any suggestion that Annexure B was a fabrication, the Commissioner contended that it was unreliable because its provenance was wholly uncertain. The Commissioner argued that, at its highest, the evidence showed that Mr Hannath and Ms Caruana were familiar with some of the fields in Annexure B and unfamiliar with others. Accordingly, so it was said, the Tribunal could not conclude that Ms Caruana entered the information in Annexure B into X’s Legal Requests Portal. The Commissioner submitted that the Tribunal should find that Ms Caruana entered into that portal the text of the Draft Complaint Alert but not the contents of Annexure B. The Commissioner contended that there is no evidentiary basis for a finding by the Tribunal that Ms Caruana forgot to include the text of the Draft Complaint Alert in the information she entered into X’s Legal Requests Portal.
Conclusion on contested facts
The first factual issue that the Tribunal needs to resolve is whether the information in Annexure B was entered into X’s Legal Requests Portal by Ms Caruana on 3 June 2024.
Before I address the first factual issue, I note that it appears to be common ground between the parties that, when Ms Caruana used X’s Legal Requests Portal, she navigated through the Commissioner’s first and second screenshots and made the affirmation that appears at the bottom of both screenshots.[42] There is no direct evidence on whether, when Ms Caruana reached the Commissioner’s third screenshot, she selected and used the ‘Information request form’ in the Commissioner’s fifth screenshot or the ‘Removal request form’ in the Commissioner’s fourth screenshot.
[42]See [‎50]-[‎51] above.

The High Court was satisfied that the Authority had jurisdiction to review the decision because:
… a fast track reviewable decision is nothing more than a decision to refuse to grant a protection visa to a fast track applicant that is made in fact…[93]
[93]Plaintiff M174/2016 (2018) 264 CLR 217, 241 [69].
All of the facts connected the decision to the decision identified as reviewable, and in those circumstances, it did not matter whether the decision was legally valid or not. There was no ambiguity as to the statutory power that the decision maker had attempted to exercise. A finding that certain legal requirements were not met, did not mean that the decision to refuse the visa ceased to meet the statutory description of ‘a decision to refuse to grant a protection visa to a “fast track applicant”’.
The issue in Lawlor was less straightforward. The AAT could review decisions made ‘under Division 1 of Pt V of the Customs Act’. The Collector of Customs had sought to cancel a licence issued under that Division. The AAT determined that there was no power under Division 1 of Part V to cancel such a licence. A majority of the Full Court agreed. Consequently, there was a definite finding that no effective legal decision could have been made under Division 1 of Part V of the Customs Act.
However, neither Brennan J, sitting in the AAT, nor Bowen CJ or Smithers J considered that this took the decision that was made outside of the jurisdiction conferred on the AAT. They were all satisfied that notwithstanding that Division 1 of Part V did not make any provision for the cancelation of licences issued under that Division, the decision that was made still met the description of being a ‘decision under Division 1 of Part V of the Customs Act’.
In reaching his conclusion, Brennan J relied upon the decision-maker’s intention to act under that Division as providing the necessary connection between the decision that was made and the jurisdiction conferred on the Tribunal.[94] If this approach were adopted in the present matter, a finding of jurisdiction would be impossible. Ms Caruana did not ever decide that she would issue a removal notice under s 88, nor did she ever want to. Her belief was that she had broad powers to take steps in relation to X which were additional to and separate from the Commissioner’s powers under s 88. It was pursuant to these more general powers that she decided to take action. If intended exercise of the power specified as reviewable is essential to the ART having jurisdiction, the applicant could not succeed on the evidence in this case.
[94]Re Brian Lawlor Automotive Pty Ltd and collector of Customs (NSW) 1978 1 ALD 167, 179.
However, the approach of Brennan J was expressly rejected by Bowen CJ when the matter was brought before the Full Court.
Bowen CJ gave careful consideration to the statutory phrase used in the Schedule to the AAT Act – ‘decision made “under Division 1 of Part V of the Customs Act”’. He considered the phrase in circumstances where he accepted that Division I of Part V of the Customs Act, did not confer power on the Collector of Customs to revoke a licence. The Chief Justice summarised what he regarded as the available options for understanding the scope of the phrase in the following terms:
This may mean that it must be shown there was a decision made: (a) in pursuance of a legally effective exercise of powers conferred by the enactment; or (b) in the honest belief that it was in the exercise of powers conferred by the enactment; or (c) in purported exercise of powers conferred by the enactment.[95]
[95]Lawlor (1979) 41 FLR 338, 312.
In rejecting interpretation (a) the Chief Justice found:
The Act is clearly intended to give a person whose interests are affected by an administrative decision an effective appeal, free of technicalities, against that decision on questions of fact and law … The adoption of interpretation (a) would remove the most significant area involving questions of law from the jurisdiction of the Tribunal. It would render the appeal in many cases useless. Whenever it appeared in proceedings before the Tribunal that there was an error of law by reason of which the decision was legally ineffective and that the applicant certainly needed relief, the Tribunal would at that point be obliged to refuse relief on the ground that it had no jurisdiction to entertain the application.[96]
[96]Lawlor (1979) 41 FLR 338, 342.
Those arguments apply with equal force in relation to the ART.
The Chief Justice also rejected interpretation (b), the ‘honest belief a power under an enactment was being exercised’, as sufficient and necessary for establishing jurisdiction. He noted:
Interpretation (b) … brings in a subjective element … Under s 25 it is the jurisdiction of the Tribunal which is in question. It seems inappropriate to interpret s 25 so as to make this dependent upon the state of mind of the official. It would, if adopted appear to introduce a false issue and to impose upon the person aggrieved the burden of proving it. He could well be the very person who was ignorant of that state of mind. Perhaps also it would involve the consequence that if the evidence on an appeal to the Tribunal showed that an official did not honestly believe he was acting in the exercise of powers conferred by the enactment, the appeal would have to be dismissed notwithstanding that the absence of honest belief might not affect the legal standing of the decision. [97]
[97]Lawlor (1979) 41 FLR 338, 343.
On that basis interpretation (b) was rejected.
The Chief Justice then explained his reasons for adopting interpretation (c) – a purported exercise of power is sufficient to attract jurisdiction:
Interpretation (c) appears to me to be consistent with the context in the Administrative Appeals Tribunal Act … in the ordinary course, it would be reasonably clear from the objective facts under which enactment or in the exercise of which statutory powers an official had purported to act. The adoption of this view would mean that the Administrative Appeals Tribunal would have jurisdiction to entertain an appeal from a decision in fact made, which purported to be made in the exercise of powers under the enactment. It could then proceed to determine whether the decision was properly made in fact and in law. There is nothing unusual in holding that an administrative decision which is legally ineffective or void is susceptible of appeal. [98]
[98]Lawlor (1979) 41 FLR 338, 343.
In these passages, Bowen CJ sets out an approach to jurisdiction that focusses on objective facts concerning the decision that was made, rather than the subjective state of mind of the decision-maker. If the objective facts support a conclusion that a decision of a certain kind was made, and that decision meets the statutory description of a decision designated as reviewable, the Tribunal is not deprived of jurisdiction by evidence that the decision-maker’s view was that they were doing something unrelated to the identified statutory power. It is also clear that when Bowen CJ refers to a ‘purported decision’ under a statutory power, he is not only talking about one which is consciously represented by its maker to have been made under that power. He is also referring to a decision which, when viewed objectively, appears to have been made under that power.[99] Such a decision remains reviewable even if, in the course of the review, it is shown that the decision was not supported by the statute in question or on any lawful basis at all.
[99]So much follows from his rejection of the relevance of the decision-maker’s subjective state of mind.
Smithers J also considered this question, but was less direct in clarifying the role of the subjective intention of the decision-maker when considering whether there is a connection between the decision that was made and the exercise of the statutory power required for jurisdiction. His judgment does provide limited support for the proposition that the test of whether a decision is made under a statutory provision is an objective one.
Smithers J confirms that:
If an administrator makes a particular decision in the course of government administration, then whether or not he is authorized to do so, there is in fact a decision made. The fact that that decision cannot affect legal rights or liabilities is irrelevant to that fact.[100]
[100]Lawlor (1979) 41 FLR 338, 368.
He also ruled out the need for a subjective belief to be held by the decision-maker ‘that his action was within his statutory power’.[101]
[101]Lawlor (1979) 41 FLR 338, 372.
Smithers J went on to endorse the proposition that decisions, which are made by an administrator in purported or assumed pursuance of the relevant statutory provision, are reviewable. A careful reading of the reasons of both the Chief Justice and Smithers J, indicate that the word ‘purported’ is not used in the sense of its most common usage – to claim that something is authorised by the provision – but in the secondary sense of that word – to imply, or convey that it was authorised.[102]
[102]Macquarie Dictionary (online at 3 February 2025) ‘purport’ (def 2).
The following key principles relevant to determining jurisdiction can be distilled from the majority judgments in Lawlor. The first element needed for jurisdiction is a decision in fact. Second, if a certain kind of decision is identified as reviewable in a statute, it does not affect jurisdiction if the decision actually made did not meet the requirements for a legally valid decision under that provision. Third, it does not (or may not) matter if the decision-maker is mistaken in thinking that the provision authorises the decision they are making. The decision they make can still be reviewable if the statutory formulation conferring jurisdiction is satisfied on the facts. Fourth, in considering whether the statutory formulation conferring jurisdiction is satisfied, the subjective intention of the decision-maker is for the most part irrelevant. It does not matter whether the decision-maker intended to exercise the decision-making power which is subject to review. That is not the test for whether there is an adequate connection between the decision as made and the decision-making power which can be the subject of review. Finally, it is sufficient to attract jurisdiction that the objective features of the decision made, reasonably convey to the person affected by the decision that they have been the subject of the exercise of the relevant statutory power.
APPLICATION TO THE FACTS
Consistent with these principles, the evidence from Ms Caruana about her state of mind when she submitted the notice through the Legal Request Portal is largely irrelevant to the question of jurisdiction. The focus needs to be on what was conveyed by the notice she gave and whether, viewed objectively, a reasonable recipient would have understood that a decision had been made to give a removal notice under s 88 of the OSA.
While the facts do not all go one way, I am satisfied that there are enough features of the notice given, to characterise it as conveying to X:
(a)that the power under s 88 had been exercised; and
(b)it was subject to a removal notice.
Those features are as follows:
(a)The fact that the Legal Request Portal was used conveyed to X, consistent with its Platform Use Guidelines, that what was being submitted was a ‘valid legal request’ to have ‘potentially illegal content … removed from X’;
(b)Ms Caruana, in order to lodge the request had to affirm that she had ‘any required legal authority to submit this request and the submission is a permitted use of the system’;
(c)The only permitted use of the system was to submit ‘valid legal requests’ to have ‘potentially illegal content’ removed;
(d)Ms Caruana identified the legal basis for the request as being s 7 of the OSA, the section which defines ‘cyber-abuse material targeted at an Australian adult’;
(e)In the opening paragraphs of the free text, Ms Caruana stated ‘Under the Online Safety Act 2021, the eSafety Commissioner is responsible for handling complaints about cyber abuse material concerning Australian adults and ensuring the rapid removal of such material from social media services … We wish to alert you to a complaint we have received from [redacted] …’
(f)In the free text, the post the subject of complaint was described in the following terms:
The post appears to have been created by an individual end user, seeking to intimidate and harass the complainant, on the basis the complainant [runs] a Queer Club, for primary school students, which was a student led [initiative]. We understand the complainant’s name, workplace and social media accounts have been [publicly] shared in the post, inciting unwanted contact from other users and placing the complainant at risk.
When these elements are taken together, despite the other content referring to possible violations of X’s terms of service, the notice conveys to the reader that compulsory powers are being used, in response to a complaint, and the complaint concerns cyber-abuse material targeted at an Australian adult. The only possible statutory source for such a decision is s 88 of the OSA.
On that basis, I am satisfied that viewed objectively, the notice conveyed to X that a decision had been made to give a removal notice under s 88 of the OSA.
The reasonableness of this conclusion is confirmed by X’s response in taking down the post, and the terms in which X described their response to the applicant.
I am satisfied that the statutory requirement in s 220(2) that a ‘decision to give a removal notice under section 88’ of the OSA has been met, and the ART has jurisdiction to entertain the application for review. I agree with the terms of the decision formulated by the President. I agree with his observations in the Appendix to his reasons.
I certify that the preceding paragraphs 175 to 246 are a true copy of the written reasons for the interlocutory decision of Deputy President O’Donovan.
..................................................
Associate:
Dated: 5 February 2025
MANETTA SM
I have had the advantage of reading the learned President’s reasons in draft. I am grateful to him for his painstaking examination of the facts and law in this matter. I agree with his findings of fact and the general thrust of his reasons and conclusions. In recognition of counsel’s very careful submissions and arguments, I have decided to set out a summary of my own reasons. In so doing, I have adopted the acronyms and shorthand expressions used by the President.[103] I am content to base myself on the text of the Draft Complaint Alert that the respondent says was given (which I shall call ‘the alert’), although I accept the findings of fact in this regard as they appear in the President’s reasons.[104]
[103]For example, ‘OSA’ for the Online Safety Act, 2021 (Cth); ‘the Post’ for the applicant’s post on X; ‘Draft Complaint Alert’ for the communication the respondent says was given to X by Ms Caruana; ‘AAT’ for the Administrative Appeals Tribunal and ‘X’s Legal Requests Portal’ as described at [‎46(b)] above.
[104]See [‎101]-[‎118] of Kyrou P’s reasons.
The critical question before us is whether the AAT had jurisdiction when the application for review was lodged with it.[105] This question requires the Tribunal to ask whether the giving of the alert answers the statutory description in s 220(2) of the OSA of ‘a decision of the Commissioner under s 88 to give a removal notice’.
[105]I accept that if the AAT had jurisdiction, this Tribunal continues to have jurisdiction under the transitional provisions identified by the President at [‎15] of his reasons; and that if the AAT did not have jurisdiction, this Tribunal has no jurisdiction.
This question poses three discrete, and not altogether straightforward, subsidiary questions. These three questions concern, first, the ambit of s 220(2); secondly, the construction of the alert; and thirdly, the question of whether the alert was referable to an exercise of power under s 88 of the OSA.
INTERPRETATION OF S 220(2)
It is convenient to commence with the ambit of the critical expression in s 220(2): ‘a decision of the Commissioner under s 88 to give a removal notice’. In particular, in construing this statutory expression, the Tribunal must decide whether the reasoning in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd[106] is applicable or whether it should be distinguished.
[106](1979) 41 FLR 338 (‘Lawlor’).
I have decided that the reasoning in Lawlor should be applied notwithstanding the difference in the terms of conferral of the AAT’s jurisdiction in the case before us. In Lawlor, there had merely to be ‘a decision under Division 1 of Part V of the Customs Act’, whereas s 220(2) of the OSA conferred jurisdiction on the AAT (and now confers jurisdiction on the Tribunal) in a more specific way; namely, in respect of a ‘decision… under section 88 to give a removal notice’.
That difference notwithstanding, I have concluded that it is appropriate to apply the reasoning in Lawlor. I have decided, first, that a legally invalid decision can nevertheless be a ‘decision’ for the purposes of s 220(2). There is nothing arising from the more specific wording of s 220(2), or arising elsewhere in the OSA, to make the reasoning of the majority in Lawlor inapplicable in this regard.
Furthermore, the expression ‘a decision of the Commissioner under s 88 to give a removal notice’ was not intended, in my view, to confine the AAT’s jurisdiction to those cases where the Commissioner’s officers actually intended to invoke s 88 of the OSA as a source of their jurisdiction. Strictly speaking, this issue did not arise in Lawlor because the decision-maker there intended to act under Division 1 of Part V of the Customs Act, 1901 (Cth) even though he or she had no power to do so.
Nevertheless, Bowen CJ’s observations in Lawlor are especially pertinent, even if they are directed to a different statutory context, and I have decided that I should follow them. His Honour specifically held that the actual state of mind of the decision-maker was not the preferred test in deciding whether ‘a decision made in the exercise of powers conferred by an enactment’ had been taken.[107] He pointed out that a contrary interpretation would impose upon an AAT applicant the burden of proving the decision-maker’s state of mind.[108] He further pointed out that it may be difficult to form a conclusion as to the decision-maker’s intention in a given case.[109] I would add, in amplification of his Honour’s observation, that decision-makers may not reflect upon, or advert to, the exact statutory source of their jurisdiction before acting.
[107]His Honour was addressing the criterion in s 25(1) of the Administrative Appeals Tribunal Act 1975 but he had earlier observed that he did ‘not think that any relevant distinction arises from the fact that the words “in the exercise of powers conferred by an enactment” are used in s 25(1) of the Administrative Appeals Tribunal Act and the words “under Division 1 of Part V of the Customs Act” are used in Part XII of the Schedule to the Act and applied by s 26’: see Lawlor (1979) 41 FLR 338, 342.
[108]Lawlor (1979) 41 FLR 338, 343.
[109]Lawlor (1979) 41 FLR 338, 344.
On my construction of s 220(2) of the OSA, and in conformity with the reasoning in Lawlor, I do not believe that the AAT’s jurisdiction was intended to be excluded where the decision-maker acted invalidly or where the decision-maker did not form the intention of issuing a removal notice under s 88.
Once it is concluded that the decision-maker’s subjective intention is not relevant, the question of a criterion by which to delimit the ambit of s 220(2) of the OSA arises. The answer here, in my opinion, is that s 220(2) applies to those decisions, valid or invalid, that are objectively referable to an exercise of the power to give a removal notice under s 88, whether an exercise of power under s 88 was intended or not. This must follow once the subjective intention of the decision-maker is found to be irrelevant. This is my key conclusion on the question of statutory construction. Bowen CJ refers to a ‘purported’ exercise of power in this regard.[110]
[110]Lawlor (1979) 41 FLR 338, 342.

The next task is to construe the alert objectively,[111] and to decide what, if anything, it required in terms, whether validly or invalidly.[112] Finally, having construed the alert objectively, I must then apply s 220(2) to the alert and decide whether it is objectively referable to, or ‘purports’ to be, an exercise of the power under s 88 to give a removal notice. These two tasks reflect the second and third questions to which I have referred at the outset of these reasons.
[111]Since the subjective intention of the decision-maker is irrelevant.
[112]The respondent has contended that it did not require anything, but was merely in the nature of a request.
OBJECTIVE CONSTRUCTION OF THE ALERT
I now turn to the question of what, if anything, the alert required on an objective construction. This question is critical because if the alert, construed objectively, required nothing of X, but merely requested X to evaluate the Post against its own polices, the alert cannot be objectively referable to an exercise of power under s 88. The essence of s 88 is a direction to remove, not merely a request.
I have decided that the alert, objectively construed, did impose a requirement on X to remove the Post, and was not merely a request to X to evaluate the Post against its own policies. That is not the only reading of the alert, I acknowledge, but it is one that is reasonably open, in my opinion.
The alert opens by referring to the respondent’s responsibility under the OSA of ‘ensuring the rapid removal of cyber abuse material concerning Australian adults’. A statutory responsibility is a duty in law. The first paragraph suggests, therefore, that the respondent’s purpose in providing the alert was to ‘ensure’ the removal of the Post in conformity with the respondent’s legal duty, because the Post amounted to material in respect of which the respondent had a statutory obligation to act; namely, ‘cyber-abuse material targeted at an Australian adult’.[113] This is amplified by the Post being described as one ‘seeking to intimidate and harass the complainant’. The alert notes that the complainant’s ‘name, workplace and social media accounts have been public (sic) shared, inciting unwanted contact from other users and placing the complainant at risk’. This part of the alert suggests the Post poses a threat to the complainant’s safety. Finally, the alert asks X to advise the respondent if any action is taken in relation to this ‘report’. I accept that the word ‘direction’ is not used at this point; but nor is the word ‘request’. The recipient could have reasonably inferred that it was being required by the respondent to remove the Post and also being asked to notify the respondent when it had done so.
[113]This is a defined term in s 7 of the OSA.
I would reiterate that the alert mentions the very facts that might have justified the giving of a removal notice under s 88; namely, the Post was the subject of a complaint,[114] the material in the Post sought to intimidate and harass,[115] and the Post exposed a person to the risk of physical harm by inciting unwanted contact from others (as her name and workplace details were known).[116]
[114]Section 88(1)(c) of the OSA.
[115]Section 7(1)(c) of the definition of ‘cyber-abuse material targeted at an Australian adult’.
[116]Section 7(1)(b) of the definition of ‘cyber-abuse material targeted at an Australian adult’.
All in all, one reasonable construction of the alert is that it sought to impose a requirement on X to remove the Post.
IS THE ALERT REFERABLE TO AN EXERCISE OF THE POWER UNDER S 88?
Finally, I turn to the question of whether the alert is objectively referable to an exercise of the power of the Commissioner under s 88 to give a removal notice. I have already decided that the respondent’s state of mind when issuing the alert is not relevant. I have decided the alert is objectively referable to an exercise of power under s 88. My reasons for this conclusion are as follows.
It is true that the alert is not expressly styled a ‘removal notice under s 88 of the OSA’ as one might expect it to have been. Nevertheless, it seems clear that X’s staff interpreted the alert, filed through X’s Legal Requests Portal, as a direction to remove the Post. One can infer that this must have been X’s view since the Post was removed so rapidly, but was later reinstated. There is also email correspondence, referred to by the President in his reasons, indicating that X had withheld the Post in order to comply with Australian law. As I have said, the alert implies strongly that the respondent thought the Post was harassing and exhibited features that constituted cyber-abuse targeted at an Australian adult. Moreover, there is no prescribed form for a ‘notice’ under s 88: it did not have to assume a particular format.
Given that the alert can reasonably be read as imposing a requirement to remove the Post, and given that it was apparently so interpreted by X’s staff on the evidence before us, the statutory justification in the OSA for imposing such a requirement lay in s 88 as a matter of law. Implied statutory, or common-law powers referred to by the respondent in its written submissions may authorise requests to service providers in furtherance of the objects of the OSA; but they do not authorise, self-evidently, the imposition of any requirement to remove a post.
I acknowledge that there are matters that favour the respondent’s submission. The alert is not labelled a ‘removal notice under s 88’; and it might be said that X, as the operator in Australia of a large public platform, should be familiar with the OSA’s regulatory parameters. Although there was an ambiguity in the terms of the alert, X’s staff ought to have appreciated that there was no intention to exercise the compulsive power under s 88 because the alert did not use explicitly any formal language unequivocally directing a removal of the Post.
These are substantial points, and the question is not without some difficulty; but in my opinion, the alert is objectively referable to an exercise of power under s 88 of the OSA. In reaching this conclusion, I have borne in mind that where a communication from the regulator is ambiguous, the recipient’s reasonable interpretation of that communication assumes importance for the purpose of s 220(2) of the OSA. A removal notice under s 88 is, after all, a direction from the regulator to a particular person. The evaluation of the respondent’s communication must be made in the light of its being a one-on-one communication that either does, or does not, reasonably bear the construction placed upon it by the recipient, X. In my view, it is important that the communication can reasonably be understood as a direction, and not a mere request, and was, as a matter of fact, apparently so understood by X’s staff.
It follows, in my view, that the giving of the alert through X’s Legal Requests Portal by Ms Caruana was objectively referable to an exercise of power under s 88, or ‘purported’ to be an exercise of power under s 88, to revert to Bowen CJ’s language in Lawlor.
I have concluded, therefore, that the giving of the alert amounted to ‘a decision of the Commissioner under s 88 to give a removal notice’, whether or not the decision was legally valid and irrespective of Ms Caruana’s actual intention. The AAT had jurisdiction in this matter under s 220(2) of the OSA.
I agree with the President’s observations in the Appendix to his reasons.
I certify that the preceding paragraphs 247 to 270 are a true copy of the written reasons for the interlocutory decision of Senior Member Manetta.
..................................................
Associate:
Dated: 5 February 2025
Date of interlocutory hearing:  13 December 2024
Counsel for the Applicant:   Mr S Young
Representatives for the Applicant:             Free Speech Union of Australia Pty Ltd
Counsel for the Respondent:  Ms F Gordon KC with Mr J P W Maloney
Solicitors for the Respondent:  Australian Government Solicitor