Kirkham and eSafety Commissioner (Practice and procedure)
[2025] ARTA 1231
•5 August 2025
Kirkham and eSafety Commissioner (Practice and procedure) [2025] ARTA 1231 (5 August 2025)
Applicant/s: Reuben Kirkham
Respondent: eSafety Commissioner
Tribunal Number: 2025/1002
Tribunal:Deputy President P Britten-Jones
Place:Melbourne
Date:5 August 2025
Decision:The application under s 270 of the Administrative Review Tribunal Act 2024 (Cth) is granted and the Tribunal directs the Respondent to give the Applicant a statement of reasons for the reviewable decision within 28 days
...................[SGD].....................................................
Deputy President P Britten-Jones
Catchwords
APPLICATION FOR REASONS OF REVIEWABLE DECISION – section 270 of the Administrative Review Tribunal Act 2024 (Cth) – sections 220(4) and (8) of the Online Safety Act 2021 (Cth) provide jurisdiction to the Tribunal to review a decision to refuse to give a removal notice – complaint about cyber-abuse material made under s 36 of the Online Safety Act 2021 (Cth) – eSafety Commissioner responds to complaint by advising that material was not assessed as cyber-abuse material – whether a reviewable decision was made under s 88(1) or s 90(1) of the Online Safety Act 2021 (Cth) – application granted because there was a reviewable decision
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Review Tribunal Act 2024 (Cth)
Online Safety Act 2021 (Cth)Administrative Appeals Tribunal Act 1975 (Cth)
Cases
Australian Postal Corporation v Forgie and Another (2003) 130 FCR 279
Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59
Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; (1979) 24 ALR 307
Comcare v Sassella (2001) 34 AAR 142
Deputy Commissioner of v Board of Control of Michigan Technological University (1979) 28 ALR 551
Director-General of Social Services v Hales (1983) 47 ALR 281
Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission (2001) 113 FCR 230
Hutchins v Commissioner of Taxation (1996) 65 FCR 269
Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16
Re Young v Telstra Corporation (1993) 32 ALD 307
Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422X Corp. v eSafety Commissioner [2025] ARTA 852
Secondary Materials
‘Excerpts from a conversation with Julie Inman Grant, Australia’s eSafety Commissioner’, Council of Foreign Relations (Web Page) < Memorandum, Administrative Review Tribunal Bill 2024 (Cth)
Explanatory Memorandum, Online Safety Bill 2021 (Cth)
Statement of Reasons
This is an application made under s 270 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) for a statement of reasons. Section 270 is found within Division 3 of Part 10 of the ART Act which provides for decision-makers to give reasons for decisions.
The Applicant contends that the Respondent (the eSafety Commissioner) made a decision in response to a complaint the Applicant made under s 36 of the Online Safety Act 2021 (Cth) (the OS Act) for formal notices to be given under ss 88, 89 and 90 of the OS Act.
The Applicant’s Request for Reasons
The Applicant requested[1] a statement of reasons from the eSafety Commissioner under s 268 of the ART Act which provides as follows:
[1] See Respondent’s Bundle of Documents, Applicant’s email dated 15 January 2025 at 17-8.
Requesting reasons for reviewable decision from decision - maker
(1) A person whose interests are affected by a reviewable decision may request the decision-maker to give the person a statement of reasons for the decision.
Note 1: For which decisions are reviewable decisions, see section 12.
Note 2: For when an organisation's or association's interests are taken to be affected, see section 15.
Note 3: For what must be included in a statement of reasons, see the definition of statement of reasons in section 4.
(2) The request must be given to the decision-maker in writing.
Note: Requests may be refused if made outside specified timeframes (see subsection 269(8)).
Section 269 of the ART Act provides that if a person requests the decision-maker for a reviewable decision to give the person a statement of reasons for the decision under s 268, then a statement of reasons must be given within 28 days of the request.
Section 270 of the ART Act provides that an application may be made to the Tribunal to obtain reasons for a reviewable decision:
Applying to Tribunal to obtain reasons for reviewable decision
When this section applies
(1) This section applies if a person requests the decision - maker for a reviewable decision to give the person a statement of reasons for the decision under section 268 and:
(a) the person is given notice that the request is refused; or
(b) the person is not given a statement in response to the request within 28 days after the request is received.
Tribunal may require decision-maker to give statement of reasons
(2) The person may apply to the Tribunal for a decision about whether the decision-maker should give the person the statement of reasons.
(3) The Tribunal must decide whether the decision-maker should give the person the statement of reasons.
(4) If the Tribunal decides that the decision-maker should give the person the statement of reasons, the decision-maker must give the person the statement of reasons within 28 days after the Tribunal notifies the decision-maker of the Tribunal's decision.
Does there need to be a Reviewable Decision?
The Applicant expressed doubt as to whether there needs to be a reviewable decision for a statement of reasons to be ordered by the Tribunal.[2] He submits that the Tribunal can request a full statement of reasons from the eSafety Commissioner for whatever her office might have decided.[3]
[2] Further submissions of Applicant dated 18 May 2025 at 1 [3].
[3] Ibid [4].
The Applicant’s submission should be rejected because the provisions in Division 3 of Part 10 of the ART Act that provide for the obligation of a decision-maker to give reasons for a decision are predicated on there being a reviewable decision. Section 268 contains a note to see s 12 for which decisions are reviewable decisions. Sections 269 and 270 refer not just to a decision-maker but to ‘the decision-maker for a reviewable decision’. It is also apparent from these provisions that the application to the Tribunal for reasons under s 270 is confined to reasons for a reviewable decision and not some other decision. This is apparent from s 268 which provides that it is a person whose interests are affected by a reviewable decision who may request reasons for that decision. It is also confirmed by the Explanatory Memorandum[4] which says that clause 268 provides the ‘process for a person to request a statement of reasons for a reviewable decision from a decision-maker’. The reference in both ss 269 and 270 to ‘reasons for the decision under s 268’ is a reference to reasons for a reviewable decision.
[4] Explanatory Memorandum, Administrative Review Tribunal Bill 2024 (Cth) 223 [1547] (‘Explanatory Memorandum, ART Bill’).
The Issue
It follows that I accept the Respondent’s submission that the question before the Tribunal is whether the Respondent made a reviewable decision in respect of which the Applicant is entitled to request a statement of reasons under s 268.
Background Facts
On 20 December 2024, material entitled “Excerpts from a conversation with Julie Inman Grant, Australia’s eSafety Commissioner” was posted on the Council of Foreign Relations website.[5] The material stated:
… There are front groups; one is called Free Speech Union of Australia, and they’ve run a campaign to increase the number of FOIs by 3000 percent. …
[5] ‘Excerpts from a conversation with Julie Inman Grant, Australia’s eSafety Commissioner’, Council of Foreign Relations (Web Page) <>
On 9 January 2025, the Applicant made a complaint to the eSafety Commissioner under s 36 of the OS Act.[6] In the complaint, the Applicant alleged:
The eSafety Commissioner herself has been raising conspiracy theories about myself. The material raises a conspiracy theory that the Free Speech Union is a ‘front group’ for X and Elon Musk and that we conducted a ‘campaign to increase the number of FOIs by 3000 per cent’. It also wrongly implies that the Free Speech Union is against ‘child safety’. By extension, as a Director and the only employee focused on the eSafety Commissioner, this is really about myself.
[6] Respondent’s Bundle of Documents 3-16.
On 13 January 2025, the Applicant lodged a document with the eSafety Commissioner entitled “Detailed Arguments and Submissions” and requested that the Respondent issue notices pursuant to ss 88, 89, and 90 of the OS Act.
By email dated 15 January 2025, the Office of the eSafety Commissioner informed the Applicant that it had reviewed the material the subject of the complaint and found that it did not target a particular Australian adult, and, therefore, the material did not meet the criteria for the eSafety Commissioner to take formal removal action.[7]
[7] Ibid 17-8.
On 15 January 2025, the Applicant requested a statement of reasons from the eSafety Commissioner under s 268 of the ART Act.[8] On 20 January 2025, the Office of the eSafety Commissioner advised the Applicant that the material was not assessed as cyber-abuse material and that a statement of reasons would not be provided because no reviewable decision had been made.[9]
[8] Ibid 19.
[9] Ibid 23.
On 12 February 2025, the Applicant lodged an application with the Tribunal under s 270 of the ART Act.
The Online Safety Legislation
The objects of the OS Act are to improve and promote online safety for Australians.[10]
[10] Online Safety Act 2021 (Cth) s 3.
The OS Act provides for there to be an eSafety Commissioner to, amongst other things, administer a complaints system for cyber-abuse material targeted at an Australian adult. As part of the complaints system, a complainant may request the eSafety Commissioner to give a removal notice requiring the removal of the material.
Section 7 of the OS Act sets out what is cyber-abuse material targeted at an Australian adult as follows:
(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.
If an Australian adult has reason to believe that the adult was or is the target of cyber-abuse material, then a complaint to the eSafety Commissioner may be made under s 36 of the OS Act. If the person making the complaint wants the eSafety Commissioner to give the provider of the service a removal notice under s 88 of the OS Act requiring the provider to remove the material from the service, the complaint must be accompanied by evidence that the material was the subject of a complaint that was previously made to the provider of the service.
Section 88 provides for a removal notice to be given to the provider of a service as follows:
(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.
Sections 89 and 90 are in the same form as s 88 and provide for removal notices to be given to an end-user and a hosting service provider. Sections 88, 89 and 90 of the OS Act contain the same five preconditions[11] including that the eSafety Commissioner is satisfied that the material is or was cyber-abuse material targeted at an Australian adult. If the preconditions in each of the three provisions are made out, the eSafety Commissioner has a discretion to give a removal notice.
[11] Sections 89 and 90 contain a sixth precondition which is not relevant for the purposes of these reasons.
Section 220 of the OS Act provides for the review of certain decisions by the Tribunal including as follows:
(a)Section 220(2) provides that an application may be made to the Tribunal for a review of a decision of the Commissioner under s 88 to give a removal notice to the provider of a social media service, relevant electronic service or designated internet service.
(b)Section 220(4) provides that 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 social media service, relevant electronic service or designated internet service a s 88 removal notice that relates to material provided on the service.
(c)Sections 220(6) and (10A) provide that an application may be made for a review of a decision of the Commissioner to give a removal notice under ss 90 and 89 respectively.
(d)Section 220(8) provides that an application may be made for a review of a decision of the Commissioner to refuse to give a s 90 removal notice.
Sections 220(4) and (8) are the relevant provisions in this case because they provide for reviewable decisions where the eSafety Commissioner has refused to give a removal notice under ss 88 and 90.[12] There is no reviewable decision with respect to a decision to refuse to give a removal notice under s 89 of the OS Act.
[12] My references in these reasons to s 88 and its sub-paragraphs can be taken to include a reference to s 90 and its sub-paragraphs.
Contentions of the Parties
In response to the Applicant’s s 36 complaint and request for a removal notice, the eSafety Commissioner made a decision on 15 January 2025 the effect of which, the Applicant contends, was to deal with the complaint made by the Applicant in a final way by refusing to give a removal notice which would have required the material the subject of the complaint to be removed from the service. The Applicant relies on the legislative scheme in the OS Act which provides for a complaint to be made and a request for a removal notice under s 36(3), followed by a decision under s 88 which gives rise to a right of review to the Tribunal under s 220.
The Applicant contends that by reaching the view that the relevant material was not cyber-abuse material targeted at an Australian adult pursuant to s 88(1)(b), the eSafety Commissioner was making a decision to refuse to issue a removal notice. Otherwise, the Applicant contends, he would be prevented by the action of the eSafety Commissioner from pursuing his rights of review.
The Applicant relies upon a United Kingdom decision of Fish Legal v Information Commissioner,[13] which rejected an argument that a decision on a condition precedent was not within the jurisdiction of the UK Tribunal, but in my view the legislative scheme in question was very different to the OS Act. Therefore, I did not find the UK decision to be very helpful. The same can be said about the other decisions dealing with UK Tribunals which were relied upon by the Applicant.
[13] [2015] AACR 33.
The Applicant says that the most relevant decision in Australia is Australian Postal Corporation v Forgie and Another,[14] which I consider later in these reasons.
[14] (2003) 130 FCR 279 (‘Australian Postal Corporation v Forgie’).
The Applicant also relies on Baumgarten and eSafety Commissioner (Guidance and Appeals Panel)[15] in which the decision in Collector of Customs (New South Wales) v Brian Lawlor Automotive Pty Ltd[16] was applied. In both Baumgarten and Lawlor, there was a decision by a regulatory authority to take action purportedly pursuant to legislative provisions despite there being no power to do so. In Lawlor, the question was whether the Tribunal had jurisdiction to review the purported decision to revoke a licence. In Baumgarten, it was a decision to give a removal notice under the OS Act. The decision made in both cases was not a valid exercise of statutory power, but the Tribunal had jurisdiction because a decision had in fact been made purportedly under the relevant statute.
[15] [2025] ARTA 59 (‘Baumgarten’).
[16] (1979) 41 FLR 338; (1979) 24 ALR 307 (‘Lawlor’).
In this case, the Applicant contends that ‘a decision was made’[17] and it was ‘a decision to not issue a notice’,[18] which is a reviewable decision under s 220(4) and s 220(8). The Applicant says[19] that ‘A refusal is a refusal’ and that ‘Refusals to take a requested action are appealable decisions to this Tribunal’ relying upon the broad definition of ‘decision’ in s 4 of the ART Act which includes refusing to act.
[17] Applicant submissions dated 12 February 2025 at [7].
[18] Ibid footnote 6.
[19] Further Submissions of the Applicant dated 18 May 2025 at 5 [16].
The eSafety Commissioner says that the legislative scheme in s 88 of the OS Act provides for two relevant concepts. The first is the non-giving of a notice relying upon s 88(1)(b). The second is a refusal to give a notice pursuant to the discretion provided for in s 88.
The eSafety Commissioner contends that it did not make a “refusal” decision under s 88(1) but rather ‘assessed whether the material was cyber-abuse material targeted at an Australian adult’[20] for the purposes of considering whether the precondition in s 88(1)(b) was satisfied. The eSafety Commissioner did not consider whether to give, or refuse to give, a removal notice because the discretion under s 88 to do so was not enlivened because the precondition was not satisfied. It follows, according to the eSafety Commissioner, that there was no reviewable decision within the meaning of s 220 of the OS Act. If there is no reviewable decision, the Applicant has no right to request a statement of reasons under s 268 of the OS Act.
[20] Respondent submissions dated 5 May 2025 at [3(3)].
The Applicant rejects this ‘two-stage process’ and says that there should be a single assessment as to what action was taken by the eSafety Commissioner.[21]
[21] Further Submissions of the Applicant dated 18 May 2025 at 4 [12].
Case Law as to whether there is a Reviewable Decision
The Tribunal may only review decisions in relation to which it has been given jurisdiction. Section 12 of the ART Act provides that a decision is a reviewable decision if an Act or legislative instrument provides for an application to be made to the Tribunal for review of the decision. Section 13 says that a legislative instrument may provide for an application to be made to the Tribunal for review of a decision made under the instrument. In this case, the relevant Act that provides for an application to be made to the Tribunal is the OS Act at s 220. It is in this context that one considers the case law relevant to jurisdiction and whether there is a reviewable decision.
Lockhart J in Director-General of Social Services v Hales[22] said:
No narrow or pedantic approach is called for in determining whether a decision falls within the scope of review by the Administrative Appeals Tribunal. The multiplicity of statutes which continue to grow and to confer jurisdiction on the Administrative Appeals Tribunal, and the manifold and diverse circumstances which attract the power of the decision-maker, all call for a liberal approach to the definition of the word “decision” … It is necessary to examine the Act which confers jurisdiction on the Administrative Appeals Tribunal and the administrative framework in which it operates to determine whether there is a “decision” susceptible of review under the Administrative Appeals Tribunal Act.
[22] (1983) 47 ALR 281 at 306.
In Semunigus v Minister for Immigration and Multicultural Affairs,[23] the question arose as to whether a reviewable decision had been made. Finn J said:
[19] For present purposes I am prepared to hold that the making of a decision involves both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by an overt act of such character as, in the circumstances, gives finality to the conclusion - as precludes the conclusion being revisited by the decision-maker at his or her option before the decision is to be regarded as final.
[20] What constitutes such an act can obviously vary with the setting in which the decision is made: it may be no more than a written notation of a conclusion on a departmental file; it may be publication of the conclusion in a particular forum, or communication of it to another; it may be performing a consequential or collateral act that presupposes the decision's having been made, etc.
[23] [1999] FCA 422 (‘Semunigus’); See also Comcare v Sassella (2001) 34 AAR 142 at [22].
In Lawlor,[24] the Federal Court construed the reference in s 25 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) to a “decision” in respect of which an enactment might provide for review. Bowen CJ said:[25]
In the Administrative Appeals Tribunal Act a wide meaning is given to the word ‘decision’ by s 3(3). In s 25 it appears to me that the word simply refers to a decision in fact made regardless of whether or not it is a legally effective decision.
[24] Lawlor (n 16).
[25] Ibid 342.
That same wide meaning to decision is now given by s 4 of the ART Act. I would also note from the Explanatory Memorandum to the Administrative Review Tribunal Bill 2023[26] that the ‘outdated’ language in s 25(1)(a) of the AAT Act has been replaced by an ‘equivalent’ provision in s 13(1) of the ART Act which provides that a legislative instrument may provide for an application to be made to the Tribunal for review of a decision made under that instrument. The reference in s 25(1)(a) of the AAT Act to the review of decisions ‘made in the exercise of powers conferred by that enactment’ has been simplified and replaced by the reference in s 13(1) of the ART Act to the review of a decision ‘made under the instrument’. The adoption of the simplified language does not result in a change of meaning from the earlier Act.
[26] See Explanatory Memorandum, ART Bill (n 4) at 37 [256].
A wide meaning of a decision ensures that those affected by administrative decisions can challenge them. Bowen CJ in Lawlor said in relation to the AAT Act:[27]
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 of law …
[27] Lawlor (n 16) 342.
Smithers J in Lawlor took substantially the same view and concluded:[28]
In the end the question falls to be decided according to the proper construction of those provisions of the Act which define the classes of decisions which the Tribunal has jurisdictions to review, namely … decisions made “under” various statutory provisions …
[28] Ibid 367.
The High Court in Plaintiff M174/2016 v Minister for Immigration and Border Protection,[29] approved the wide meaning of “decision” in Lawlor and said:
The fundamental reason for adopting that construction was fulfilment of the evident legislative purpose of the conferral of jurisdiction on the Tribunal “to promote good government by those carrying out the actual practical task of administering Acts of Parliament and making decisions incidental to that task”: “[i]f administrative decisions are to be subjected to review in the course of good government exclusion from review of decisions made without power would remove from review those decisions most in need of review” and “technicality would be introduced at the outset”.
[29] [2018] HCA 16 at [39] (Gageler, Keane and Nettle JJ).
In the same year as Lawlor was decided, the Full Court of the Federal Court considered again whether the Tribunal had jurisdiction to review an administrative decision: Deputy Commissioner of v Board of Control of Michigan Technological University[30] which I will refer to as the Michigan University case. Smithers J noted:[31]
The situation in this case is, in a sense, the converse of that the subject of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307. In that case an administrator was considered to have made a decision purporting to act under statutory authority which he erroneously considered he did have. In this case an administrator is said to have refrained from exercising a statutory power which he erroneously considered he lacked.
[30] (1979) 28 ALR 551 (‘Michigan University case’).
[31] Ibid at 560 – 1.
The reasoning in the Michigan University case is instructive because the facts are not dissimilar to the facts in this case. Smithers J stated the issue as follows:[32]
It thus remains to determine whether the decision sought to be reviewed was in either of its aspects a decision under s 160 [of the Patents Act 1952] or a decision made in the exercise of the powers conferred on him by sub-reg 7 b (8). For this purpose it is necessary to have regard to what occurred in relation to the two applications which were lodged on behalf of Michigan in the Patents Office on 3 March 1978. The first official act on the part of the office was to communicate to Michigan's patent attorney by letter dated 17 March 1978 an intimation that “the provisions of s 160 are not applicable to the lodgment of an application for restoration under sub-reg 7 b (6). As the application for restoration was not lodged within the prescribed time it is not now possible to restore the application”.
[32] Ibid 557.
The Deputy Commissioner of Patents in the Michigan University case reached the view that there was no power to grant the applications and therefore decided not to entertain the applications. The argument that there was no decision made under s 160 of the Patents Act was rejected by Smithers J who said:[33]
In support of the appellant's contention in its second aspect it was argued that the one thing the Commissioner did not do was to exercise powers under the Act or Regulations thereunder. Of course, in a sense, the Commissioner did refrain from acting or purporting to act in the exercise of powers conferred by s 160(2). He certainly refrained from exercising the power conferred upon him by that sub-section to extend the time for performing any act or taking any steps in relation to an application for a patent. But that does not mean that he has not exercised a power conferred upon him by s 160(2). Section 160 authorizes the Commissioner to consider an application under sub-s (2) thereof. And for that purpose an application includes not only an application which actually satisfies, in fact and in law, the conditions upon which the Commissioner's discretion to give the relief authorized by the sub-section depends, but an application which seeks such relief based on claims or allegations of fact and law which, if sound, would constitute a foundation for the exercise of the Commissioner's discretion. …. It appears to me that upon an application coming before the Commissioner seeking relief under s 160 and claiming that the conditions of fact and law upon which the Commissioner's discretion to give relief depends are satisfied, the Commissioner is authorized by the terms of s 160 to determine, for the purpose of dealing with the application, whether those conditions are satisfied. If he decides that the conditions are or are not satisfied that is a decision made in the exercise of powers conferred on him by the section. His power was to decide the question for the purposes of administration of the Act. In making the necessary decision he was inevitably exercising a power conferred upon him by that section. The fact that, because of the nature of the decision he did not proceed to consider whether he should exercise his discretion to extend times for doing acts under the lapsed application for the patent, which he would otherwise have done is not to the point. Once made the decision might be subject to challenge by interested parties, but subject thereto, whether correct or otherwise, it would stand and have consequences to the respondent.
(emphasis added)
[33] Ibid 560.
The next relevant decision is Australian Postal Corporation v Forgie,[34] in which the Full Court of the Federal Court considered whether the Tribunal had jurisdiction in the context of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). The central question in this case was whether the suspension of an employee's rights to compensation and of the right to institute and continue proceedings in the Tribunal under s 37(7) of the SRC Act required or involved a ‘determination’ as defined in s 60 of the SRC Act. Section 37(7) contained a condition that an employee refuses or fails, without reasonable excuse, to undertake a rehabilitation program. The Australian Postal Corporation submitted that the non-reviewability of the suspension of rights under s 37(7) is consistent with the definition of ‘determination’ in s 60(1) because suspension of entitlements under s 37(7) does not come about as a result of a decision “made under” that subsection, for the reason that the subsection is self-executing. The assessment of whether an excuse is reasonable or not, or whether there has been a refusal or failure to comply with a rehabilitation program, is not “made under” s 37(7) but is simply, it was said, an act required as a consequence of that section.
[34] Australian Postal Corporation v Forgie (n 14).
The Full Court found that there was a reviewable decision:[35]
The inclusion of the words ‘without reasonable excuse’ introduces a distinctive requirement for some deliberative human action. An assessment needs to be made at some point — by a person — as to a refusal or failure to undertake a rehabilitation program, and to the reasonableness or unreasonableness of that refusal or failure. Such a process requires that the person at least consider the circumstances surrounding the employee's failure or refusal to undertake a rehabilitation program and to evaluate what is reasonable in the circumstances. This intellectual process involves matters of judgment and degree. … The process that is required would seem unequivocally to fall, at least, within the s 3(3)(g) AAT Act definition of ‘decision’ as ‘doing or refusing to do any other act or thing’ and hence within the definition of ‘determination’ under the SRC Act.
[35] Ibid 288 [40].
Further, the Full Court found that s 37(7) required a decision to be made:[36]
… in whatever way the process of arriving at a reasonable excuse is to be characterised, ordinary administrative law principles are not excluded. Thus, the process — whatever it should be called — is one that would have to be undertaken in good faith, taking into account only relevant considerations and in accordance with procedural fairness obligations, etc. It would be anomalous if such a process were to be excluded from the broadly-based merits review provisions of the SRC Act, when those provisions are directed expressly to the section under which the process must take place.
[36] Ibid 291-2 [59].
Is there a Reviewable Decision?
The eSafety Commissioner has made submissions which are similar to those made by the unsuccessful parties in the Michigan University case and Australian Postal Corporation v Forgie.[37] However, it is important to consider in detail the particular legislative scheme in the OS Act and how that scheme applies to the facts in this case before reaching any conclusions based on those cases.
[37] Ibid.
Section 36(1) of the OS Act provides that an Australian adult may make a complaint to the eSafety Commissioner if the adult has reason to believe that they were, or are, the target of cyber-abuse material that has been, or is being, provided on a particular social media service, relevant electronic service or designated internet service (referred to as the service). ‘Cyber-abuse material targeted at an Australian adult’ is defined in s 7 of the OS Act and includes elements as to what an ordinary reasonable person would conclude. Section 36(3)(b) refers to where a person wants the eSafety Commissioner to give the provider of the service a removal notice under s 88. Pursuant to s 36(3), the Applicant included in his complaint a request for a removal notice under s 88.
On 9 January 2025, the Applicant lodged his complaint with the eSafety Commissioner and provided details of what he considered to be cyber-abuse material. He included that he had made a complaint to the provider of the service with no satisfactory response. He requested that the eSafety Commissioner give the provider of the service a removal notice under ss 88, 89 and 90. The matters raised by the Applicant in his s 36 complaint were clearly directed at satisfying the preconditions for the issue of a removal notice under s 88.
The eSafety Commissioner responded to the complaint on 15 January 2025 as follows:[38]
We reviewed the material subject to your complaint and found that it does not target a particular Australian adult.
As such, the material you reported does not meet the criteria for eSafety to take formal removal action.
[38] Respondent’s Bundle of Documents 17.
Further, on 20 January 2025, the eSafety Commissioner advised:[39]
For clarity, when eSafety receives a complaint relating to cyber-abuse material targeting an Australian adult, eSafety first assesses whether the material meets the legislative definition for cyber-abuse. This determination is made prior to deciding whether to exercise certain powers of the eSafety Commissioner under the OS Act, which may include the making of a reviewable decision where an application may be made to the Administrative Review Tribunal. In this case, because the material was not assessed as cyber-abuse material, the complaint was not considered by a delegate to make a reviewable decision…. We will therefore not be providing a statement of reasons since no reviewable decision was made.
[39] Ibid 23.
When determining whether a reviewable decision under the OS Act had been made, it does not matter that the eSafety Commissioner subjectively did not intend to exercise her discretion to refuse to give a removal notice under s 88(1). All that is required is that a decision to refuse to give a removal notice was made and that, on an objective basis, the conduct of the Commissioner amounts, as a matter of fact, to a refusal to give a removal notice under s 88(1).[40]
[40] See Baumgarten (n 15) [147] which refers to [25] and Lawlor (n 16) 343.
Section 88(1) contains five preconditions in ss 88(1)(a) to (e) that must be met before the eSafety Commissioner may give a written removal notice. The use of the word ‘may’ indicates that there is a discretion[41] to give a removal notice which is only enlivened upon satisfaction of the five preconditions. If the five preconditions are satisfied, the eSafety Commissioner retains a discretion pursuant to s 88(1) to give or refuse to give a removal notice. It follows that even if the five preconditions are satisfied, there is no obligation on the eSafety Commissioner to issue a removal notice. If the eSafety Commissioner, despite the satisfaction of the five preconditions, decides to refuse to give a removal notice under s 88(1), then s 88(3) applies and the eSafety Commissioner must give written notice of the refusal to the person who made the complaint to the Commissioner under s 36. However, if one or more of the preconditions are not met, there is no power in the eSafety Commissioner to give a removal notice because the discretion to do so is not enlivened.
[41] See s 33(2A) of the Acts Interpretation Act 1901 (Cth) which says “Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word "may" is used, the act or thing may be done at the discretion of the person, court or body”.
The structure of s 88(1) suggests that there is a first step for the eSafety Commissioner to consider the five preconditions and determine whether any one of them is not made out. This would include consideration pursuant to s 88(1)(b) as to whether the material in question is or was cyber-abuse material targeted at an Australian adult as defined in s 7 of the OS Act. If not satisfied with respect to s 88(1)(b), then any discretion to give (or refuse to give) a removal notice is not enlivened. If the eSafety Commissioner is satisfied with respect to s 88(1)(b) and the other preconditions are made out, then the legislation appears to require a second step by which the eSafety Commissioner would exercise a discretion to give or refuse to give a removal notice.
It is apparent that the approach of the eSafety Commissioner in the January 2025 emails was to advise of a preliminary consideration and determination as to whether the precondition in s 88(1)(b) was satisfied without taking the next step of considering whether ‘to take formal removal action’.[42] This is the “two-stage process” which is rejected by the Applicant who contends that a single assessment by the eSafety Commissioner as to what action to take is more appropriate. There is some force in this contention of the Applicant particularly because of the tight time frames[43] in s 88(1) for the process of a complaint followed by any subsequent removal of online material. A two-stage process has an air of artificiality and impracticality about it because it requires the fundamental issue of cyber-abuse material to be treated as a precondition when one would expect such an important factor to also be considered as part of the ultimate discretion whether to issue a removal notice. In any event, the eSafety Commissioner has approached it in this way and there is some support for that approach in the structure of s 88(1).
[42] See the email from the eSafety Commissioner to the Applicant dated 15 January 2025 at 17-8 of the Respondent’s Bundle of Documents.
[43] Sections 88(1)(d)(i) and (1)(g)(i) and ss 90(1)(d)(i) and (1)(g)(i) provide for 48 hours and 24 hours respectively. See also X Corp. v eSafety Commissioner [2025] ARTA 852 at [78] (‘X Corp. v eSafety Commissioner’).
I consider that the question in relation to cyber-abuse material targeted at an Australian adult, whilst listed as a matter for preliminary consideration as a precondition, would no doubt also be a factor in determining whether to exercise the discretion to give a removal notice. Being included as a precondition would not exclude it as a factor relevant to the exercise of the ultimate discretion. Indeed, given the statutory object of improving and promoting online safety, this factor would likely be determinative of the discretion to be exercised. Given the significance of the issue relating to cyber-abuse material, the Applicant should not be precluded from merits review when the question of whether there is cyber-abuse material targeted at an Australian adult is answered at the preliminary stage by the eSafety Commissioner considering the preconditions, as opposed to when considering whether to exercise her discretion after being satisfied of the five preconditions.
I can leave to one side the arguments of the parties as to the appropriate approach for the eSafety Commissioner because the relevant question that I must determine on the facts before me is whether by satisfying herself that the reported material was not ‘cyber-abuse material targeted at an Australian adult’ and so advising the Applicant, the eSafety Commissioner made a decision to refuse to give a removal notice under s 88(1). I turn now to consider that question.
Is there a decision?
The first aspect of this question is whether the eSafety Commissioner’s conduct amounted to a decision.
By the 15 January 2025 email, the Applicant was advised that the material the subject of the complaint had been reviewed and found that it did not target a particular Australian adult. The eSafety Commissioner further clarified by email dated 20 January 2025 that the process upon receiving a complaint was to ‘first assess[es] whether the material meets the legislative definition for cyber-abuse’.[44] The Commissioner made a ‘determination’ which was that ‘the material was not assessed as cyber-abuse material’. The email confirmed that ‘we are not satisfied that the material you reported is or was cyber-abuse material targeted at an Australian adult’.[45] This determination had a very real impact on the Applicant because it prevented the Applicant from taking his complaint any further (unless the determination is found to be a reviewable decision).
[44] Respondent’s Bundle of Documents 23.
[45] Ibid.
Adopting the language of Smithers J in the Michigan University case,[46] it appears to me that upon an application coming before the eSafety Commissioner making a complaint and seeking relief under s 88 and claiming that the conditions of fact and law upon which the eSafety Commissioner's discretion to give relief depends are satisfied, the eSafety Commissioner is authorized by the terms of s 88 to determine, for the purpose of dealing with the application, whether the condition in s 88(1)(b) is satisfied. If the Commissioner decides that the condition is or is not satisfied, then that is a decision made in the exercise of powers conferred on her by the section.
[46] Michigan University case (n 30) 560.
The eSafety Commissioner sought to make a distinction between a refusal to give a removal notice (when exercising the ultimate discretion) and a ‘non-giving’ of a removal notice pursuant to s 88(1)(b) (at the earlier stage). Such a distinction is valid, but it amounts to no difference in terms of whether there is a reviewable decision at that earlier stage. The ‘non-giving’ of a removal notice did not amount to doing nothing or a failure to act but rather involved an assessment followed by a conclusion and a notification of what I consider to be a decision.
I find that the conduct of the eSafety Commissioner in:
(a)receiving the Applicant’s complaint about the online material and his request for a removal notice;
(b)reviewing the material the subject of the complaint; and
(c)advising the Applicant that the eSafety Commissioner was not satisfied that the reported material is or was cyber-abuse material targeted at an Australian adult,
amounted to the making of a decision in the sense that it involved both reaching a conclusion on a matter as a result of a mental process having been engaged in and translating that conclusion into a decision by communicating it to the Applicant.[47] Further, the decision required an assessment as to whether the material in question was cyber-abuse material targeted at an Australian adult by way of an intellectual process which involved matters of judgment and degree.[48]
Is there a decision to refuse under s 88(1)?
[47] Semunigus (n 23) [19] – [20].
[48] Australian Postal Corporation v Forgie (n 14) 288 [40].
The next aspect of the question is whether the eSafety Commissioner’s decision (found above) was a decision to refuse to give a removal notice under s 88(1). This involves statutory interpretation of s 220(4) as to what meaning should be given to ‘a decision of the Commissioner to refuse to give the provider … a section … 88 notice’. Is the meaning confined to a refusal exercised as part of the ultimate discretion after being satisfied of the five preconditions or does it include what the Applicant submits is an effective refusal by not being satisfied of the precondition found in s 88(1)(b)? In my view, it is the latter. It would be a very odd result if merits review for an unsuccessful complainant was confined to what amounts to the unlikely event where, despite the five preconditions being satisfied, the eSafety Commissioner nevertheless exercised her discretion to refuse to give a removal notice. The ‘decision’ in ss 220(4) and (8) should be given an interpretation in the context of the OS Act that furthers its objects of improving and promoting online safety and which provides a safeguard against arbitrary decision-making.
The most significant and complex precondition in s 88(1) relates to whether there was cyber-abuse material targeted at an Australian adult pursuant to sub-section (1)(b). It raises potential issues of substantial factual and legal complexity because the definition in s 7 of cyber-abuse targeted at an Australian adult includes elements relating to “an ordinary reasonable person”. The s 7 definition is described by DP O’Donovan in X Corp. and eSafety Commissioner[49] as the primary trigger for regulatory action. It requires the eSafety Commissioner to reach a level of satisfaction, or a state of mind, based upon objective criteria in the definition in s 7 of the OS Act. It therefore involves both subjective and objective criteria. The eSafety Commissioner expressly advised in the 20 January 2025 email that the reported material was assessed to determine ‘whether the material meets the legislative definition for cyber-abuse’.[50] The objective criteria in the definition in s 7 include that:
(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;
[49] [2025] ARTA 852 at [75]
[50] Respondent’s Bundle of Documents 23.
These objective criteria in s 7(1)(b) and (c) would often not be easily determined and would likely require consideration by the eSafety Commissioner of a considerable amount of evidence.[51] Even the narrower issue as to whether the material was targeted at an Australian adult would require consideration of all of the circumstances and an assessment of them in order to reach a conclusion.[52] In contrast, the other preconditions in s 88(1), namely those in sub-sections (1)(a), (c), (d) and (e) are relatively straight forward and easily determined. They are statements of fact which have either happened or not. In contrast to sub-section (1)(b), they are not couched in terms of satisfaction, and they do not require an assessment or a decision, in the sense discussed above, to be made.
[51] See X Corp v eSafety Commissioner (n 43) at [88] – [90] and [103].
[52] See Australian Postal Corporation v Forgie (n 14) at 288 [40].
It might be thought that s 88(3) only applies where the Commissioner decides to refuse to give a removal notice after having been satisfied of the five preconditions because s 88(3) only applies ‘If the Commissioner decides to refuse to give a removal notice under subsection (1)’. I have emphasised “under subsection (1)” because it provides a qualification to the refusal decision, namely that it is a decision to refuse to give a removal notice which is made under s 88(1). However, I do not consider it to be a strained interpretation of a decision under subsection (1) to include a decision (which has the effect of refusing to give a removal notice) made by reference to s 88(1)(b) which forms part of s 88(1). In Hutchins v Commissioner of Taxation[53] in the context of interpreting the phrase ‘made under an enactment’ in s 3(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), Black CJ said:
It is clear that there may be a decision “under an enactment” within the meaning of that expression in the ADJR Act notwithstanding that the enactment concerned does not expressly require or authorise the decision in question but does so impliedly.
[53] (1996) 65 FCR 269 at 271.
Similarly in Electricity Supply Association of Australia Ltd v Australian Competition and Consumer Commission,[54] Finn J held:
The second quality required of a “reviewable decision” is that it be a decision “made under” an enactment … This test requires there to be a “sufficient connection” between the text of the statute in question and the decision sought to be reviewed … This “sufficient connection” requirement itself effects a balance between the policy, on the one hand, of allowing effective redress to persons aggrieved by administrative decision-making processes (so enhancing those processes), and that, on the other hand, of protecting the efficient administration of government from impairment by an extended conception of a reviewable decision.
[54] (2001) 113 FCR 230 at 250-1.
I find that the terms of s 88(1)(b) impliedly requires and authorises a decision to refuse to give a removal notice under s 88(1). Given the significance of the issue relating to cyber-abuse material in terms of making a decision to refuse to give a removal notice, there is a sufficient connection between the terms of s 88(1)(b) and the decision to refuse to give a removal notice. It follows that a decision by which the eSafety Commissioner satisfies herself that the material the subject of the complaint was not targeted at an Australian adult is a decision to refuse to give a removal notice made under s 88(1).
A wide interpretation of a decision to refuse to give a s 88 removal notice should apply so as to ensure that any applicant who fails to satisfy the eSafety Commissioner in relation to the cyber-abuse material precondition in s 88(1)(b) has a right of review. A wide interpretation is consistent with the objects of the OS Act which are to improve and promote online safety for Australians. The Applicant claims to be a target of cyber-abuse material. The OS Act provides him with various remedies if his claims are made out. In that sense the OS Act is beneficial legislation and so too is the ART Act. The policy behind these statutes is to promote opportunities for persons aggrieved by a decision to have that decision reviewed and to ensure that the correct and preferable decision is made.[55]
[55] Re Young v Telstra Corporation (1993) 32 ALD 307 at 309 (per President O’Connor J).
It is particularly important for there to be a right of review where the eSafety Commissioner may have erred in her assessment as to whether the material the subject of the complaint was cyber-abuse material targeted at an Australian adult.
Such an approach does not involve a strained interpretation of ss 220(4) and (8) which provide that an application may be made to the Tribunal for a review of a decision of the Commissioner to refuse to give the provider a s 88 removal notice. As previously stated, the refusal can be given effect by relying upon s 88(1)(b) or by deciding to not exercise the discretion to give a removal notice under s 88(1). Either way, the unsuccessful complainant should be entitled to a written notice of refusal under s 88(3) and a right of review under ss 220(4) or (8).
Two refusal decisions under s 88(1)
It follows in my view that there are two relevant ways for the eSafety Commissioner to make a reviewable decision to refuse to give the provider a s 88(1) removal notice. The first is what happened to the Applicant, namely by the eSafety Commissioner responding to the s 36 complaint and request for a removal notice by assessing the material the subject of the complaint and advising that the precondition in s 88(1)(b) is not satisfied. The second would be where the eSafety Commissioner is satisfied of the five preconditions but nevertheless exercises her discretion to refuse to give a s 88(1) removal notice. Either way, the complaint is being refused with the effect that a removal notice is not given to the provider of the service. Merits review should be available whichever way the refusal is made because otherwise only some of the unsuccessful applicants will be able to apply to the Tribunal for review. The conduct of the eSafety Commissioner in both scenarios involves the making of a decision to refuse to give the provider a removal notice under s 88(1). As previously stated, an effective refusal based on not being satisfied in relation to s 88(1)(b) is a decision to refuse under s 88(1).
My interpretation also has the effect, by operation of s 88(3), of requiring the eSafety Commissioner to give written notice of the refusal to the person who made the complaint under s 36 in both the situations referred to in the above paragraph. It would be an odd result for a complainant to not be entitled to receive written notice of a refusal (with supporting reasons)[56] in circumstances where the complainant requests a removal notice and is unsuccessful because of a failure to satisfy the cyber-abuse precondition in s 88(1)(b).
A further point
[56] There is no express obligation in s 88(3) to give reasons but the Explanatory Memorandum at page 113 says that it would be expected that the eSafety Commissioner would also include reasons why the removal notice was not given.
I would add that, in my view, the decision which is capable of review is not as clearly defined in ss 220(4) and (8) as it could be. Merits review is expressed to be available for ‘a decision of the Commissioner to refuse to give a … removal notice’. A similar phrase to the same effect is contained in s 88(3) which was considered by President Kyrou in his reasons in Baumgarten.[57] My view is supported by President Kyrou who said at [174]:
The facts of the present case and the submissions of the parties indicate that there is uncertainty about the meaning of the words ‘the Commissioner decides to refuse to give a removal notice under subsection (1)’ in s 88(3) of the OSA. That meaning is important because it determines whether the Commissioner is obliged to give written notice to the person who made a complaint under s 36, which in turn determines whether that person has a right of review under s 220(4). … It has not been necessary for me to form a view on the meaning of the words ‘the Commissioner decides to refuse to give a removal notice under subsection (1)’. However, given the importance of those words, consideration should be given to legislative clarification of their meaning.
[57] Baumgarten (n 15) [174].
Unlike the President in Baumgarten, I was required to form a view on the meaning of a decision to refuse to give a removal notice,[58] and I have attempted to do so in these reasons. The meaning I have come to is broader than the meaning given to the same words by the eSafety Commissioner. Some legislative clarification would be welcome.
[58] The same form of words is found in s 220(8).
Conclusion
The eSafety Commissioner refused to provide a statement of reasons to the Applicant because she was of the view that there was no reviewable decision. Given my finding that there was a reviewable decision to refuse to give a removal notice under s 88(1), the Tribunal now directs the eSafety Commissioner to give the Applicant a statement of reasons pursuant to s 270 of the ART Act. Those reasons must be given within 28 days. I note that the direction to give reasons is consistent with the eSafety Commissioner’s obligation to give written notice of the refusal and reasons under s 88(3) of the OS Act.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones.
.......................[sgd].................................................
Associate
Dated: 5 August 2025
Date of hearing:
Date of last submissions:
28 May 2025
23 July 2025
Applicant’s Representative Self-represented Respondent’s Representative: Australian Government Solicitor Respondent’s Counsel: Mr Nicholas Wood SC and Ms Fiona Batten
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