Federal Court of Australia

eSafety Commissioner v Baumgarten [2026] FCAFC 12

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    There be no orders as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER CJ AND BEACH J:

1    The appeal by the eSafety Commissioner should be dismissed, for the reasons set out below.

Summary of the Tribunal proceeding and the appeal

2    The Commissioner appeals pursuant to s 172 of the Administrative Review Tribunal Act 2024 (Cth) from a decision of the Administrative Review Tribunal. Like its predecessor under the Administrative Appeals Tribunal Act 1975 (Cth), an appeal from the Tribunal is “on a question of law”. The meaning of that phrase was explained by a Full Court in Haritos v Federal Commissioner of Taxation [2015] FCAFC 92; 233 FCR 315 at [62] and [110]-[202] and applied in May v Military Rehabilitation and Compensation Commission [2015] FCAFC 93; 233 FCR 397. No different approach should be taken to s 172.

3    The Tribunal’s decision concerned a merits review application by Celine Baumgarten, the Respondent to the appeal before this Court. In late May 2024, Ms Baumgarten had posted on the social media service X (previously known as Twitter). The post was also made on Instagram, which is operated by the corporation Meta Platforms, Inc. A complaint by an individual about the post was made to the Commissioner, both in relation to its posting on X and on Instagram.

4    In response to the complaint, the Commissioner, through her officer Ms Caruana, sent a written communication to X, which the Commissioner described as a “complaint alert”. The narrative of what occurred is set out in the President’s reasons in Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59 at [57]-[71] and need not be repeated in detail here. Where necessary we refer to the factual findings of the Tribunal below.

5    As a result of the communication from the Commissioner, X removed the Respondent’s post.

6    The removal of the post by X was what led the Respondent to seek review of the decision in the Tribunal. In her application to the Tribunal, the Respondent clearly set out the basis for her review application (footnotes omitted):

1.    This is an application under Section 220(2) of the Online Safety Act 20[2]1 (Cth) (‘the Act’) against the decision to issue a removal notice to X (formerly known as Twitter), which was presumably made under Section 88 of the Act by the eSafety Commissioner. The precise date of the notice is presently unknown to the applicant, but it must be very recent, as the post itself was only published to X on the 29th of May 2024.

2.    The ‘end user’ who wrote and published the post in question was Celine Baumgarten (‘the Applicant’), who did so on her handle ‘@celinevmachine_’. She lives in Australia. This post was authorized and finalized by an organization called Gays Against Groomers, which is a 501(c)(4) non-profit organization registered in the United States of America. X informed the Applicant of the posts ‘geo-blocking’ within Australia by way of an email sent to her on June 3, 2024 at 7:28PM AEST.

3.    As stated on her X profile, the Applicant is bisexual. Having conducted some considerable research, she reached the view that ‘queer theory’ and attempting to ‘trans’ gay people was a topic of serious public concern. She recently joined Gays Against Groomers with a view towards challenging this activity to protect the public and especially young children. She is currently helping to establish an Australian chapter of this organisation. Being bisexual herself, she certainly has nothing against gay people. In fact, she seeks to protect them. The applicant is bemused by the notice and regards it as censorship of the types of gay people the eSafety Commissioner personally disagrees with.

4.    The presumed claim that the Applicant has engaged in creating and disseminating ‘cyberabuse material’ is a grave allegation, made without any reference or notification to her, and is entirely misconceived. Given the serious connotations of that term, we argue that she is entitled to vindication. We also contend that the non-profit (and essentially charitable) organization called Gays Against Groomers is similarly entitled to this vindication.

5.    In this case, we are presumably dealing with an ‘informal notice’ ostensibly issued outside of the regime under the Online Safety Act 2021 (Cth). There are three fundamental issues in this case:

a.    Issue 1: The notice – although it might contain some defects – is reviewable and actually in force. The eSafety Commissioner cannot evade challenges to its notices by claiming they are ‘informal’ and failing to notify the ‘end user’ of their appeal rights.

b.    Issue 2: The material published online by the Applicant is not capable of falling within the relevant cyber abuse scheme. In the alternative, the material could be easily modified as to fall outwith the scheme, by de-identifying the asserted ‘target’: the Commissioner simply did not have jurisdiction to remove the entire post.

c.    Issue 3: The conduct of the eSafety Commissioner was ultra vires, as it does not comply with the implied freedom of political communication, and is thus outwith her powers pursuant to Section 233 of the Online Safety Act 2021 (Cth).

6.    Given the wider implications of the ‘informal notice’ scheme the eSafety Commissioner purports to operate, this case is likely to be the most serious of the claims proceeding in the Administrative Appeals Tribunal against her office.

7    X subsequently reinstated the post two months after the Respondent filed her review application. Therefore, the evidence before the Tribunal appropriately focussed on X’s initial rather than its subsequent reaction. Instagram did not remove the post.

8    The Commissioner contended to the Tribunal, and contends here, that this meant that the Tribunal had no jurisdiction to conduct any merits review. In substance the Commissioner contended to the Tribunal, and contends to this Court, that the “complaint alert” sent to X by Ms Caruana was not the giving of a notice for the purposes of s 88 of the Online Safety Act 2021 (Cth), and did not therefore fall within the terms of s 220 of the OS Act as a reviewable decision for the purposes of the Tribunal’s jurisdiction.

9    On 5 February 2025, the Tribunal decided it did have jurisdiction to review the Commissioner’s decision: see Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59. This conclusion was described by the Tribunal as an interlocutory decision. A few weeks later, on 26 February 2025, the Tribunal issued a decision on the merits review itself: see Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 153. The Tribunal set aside the Commissioner’s decision and remitted the matter to the Commissioner for reconsideration in accordance with the Tribunal’s order and reasons. This second decision was largely one that the Commissioner accepted was inevitable once the “complaint alert” communication had been characterised as a decision under s 88 of the OS Act and a reviewable decision for the purposes of s 220 of the OS Act. That is because it was obvious, and accepted by the Commissioner, that the statutory preconditions for the giving of a removal notice had not been satisfied.

10    Thus, although the Commissioner correctly identifies the second decision as the one subject to an appeal under s 172, it is the Tribunal’s reasoning contained in the first decision that is challenged by the Commissioner on the appeal. References to the decision of the Tribunal in the remainder of this judgment are references to that first decision.

The Respondent’s application for merits review and the Tribunal’s decision

11    The Respondent’s review application was commenced in the Administrative Appeals Tribunal. As the President noted at [15], by item 24 in schedule 16 of the Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), any proceeding commenced in the AAT which was not determined by 14 October 2024 continues in the Tribunal and was to be determined by the application of the provisions of the ART Act.

12    Nevertheless, as the President also noted, it is the terms of the AAT Act, as in force on 7 June 2024 when the review was commenced, which governed the jurisdiction of the Tribunal.

The informal “complaint alert” process as revealed in the evidence to the Tribunal

13    It was agreed before the Tribunal that (see [130]):

the Commissioner did not have power under the [OS Act] in the present case to give X any form of communication which compelled X to remove the Post or withhold it within Australia.

14    It was part of the Commissioner’s positive case to the Tribunal that she and her officers adopted an alternative, less formal process to the one for which s 88 provides. The Commissioner’s evidence described this as a “complaint alert” process. The Commissioner’s positive case before the Tribunal contended that this process was quite distinct, legally and factually, from the s 88 process and her officers’ communications to X were quite distinct from a removal notice.

15    The evidence was, and the Tribunal appears to have accepted, that the Commissioner issues “a few hundred complaint alerts to service providers every year in relation to adult cyber-abuse material. In the … 12 months [prior to the Tribunal’s decision], the Commissioner [had] issued three or four removal notices”.

16    To give an example of how the Commissioner’s evidence before the Tribunal explained the distinction for which she contended, at [86] of his Honour’s reasons the President states:

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.

17    The President also recorded Mr Hannath’s evidence as being (see [85]):

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.

What was communicated to X – the evidence and the Tribunal findings

18    The Commissioner’s factual case was that her officer responsible for this complaint, Ms Caruana, had on 3 June 2024 accessed X’s legal requests submission site (the President describes this as the Legal Requests Portal) and sent X what the Commissioner described as a complaint alert. Precisely what was communicated to X was the subject of a factual dispute before the Tribunal.

19    Before the Tribunal was evidence (through the tender of an email) about what X itself contended Ms Caruana (on behalf of the Commissioner) had entered into the complaint form that X received from the eSafety Commissioner. This is described in the President’s reasons as “Annexure B”. This version contains details such as a reference (said to be from Ms Caruana) to:

Legal Basis: Section 7, Online Safety Act 2021

20    In contrast, the Commissioner’s evidence was that the following communication was in substance all that was sent:

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

21    In evidence before the Tribunal were several other communications, including between X and the individual complainant to the Commissioner, and between X and Ms Baumgarten. It is not necessary to set those out here; they are all described and extracted in the President’s reasons from [58]-[71]. Some of these feature in the parties’ arguments on the appeal and where necessary we refer to them below.

22    The President made the following finding (at [116] and [118]):

For the above reasons, I am of the opinion that, on 3 June 2024, Ms Caruana entered the text of the Draft Complaint Alert into the Commissioner’s case management system, and then accessed X’s Legal Requests Portal. After making the affirmation in the Commissioner’s first and second screenshots, Ms Caruana entered into X’s Legal Requests Portal the information in Annexure B that relates to the fields that are common to Annexure B and the ‘Removal request form’. She then pasted the text of the Draft Complaint Alert from the Commissioner’s case management system into the ‘Please provide any additional details’ field of the ‘Removal request form’. All of these actions took place on the same day. Accordingly, on 3 June 2024, X received from the Commissioner a combination of the abovementioned affirmation, the information that relates to the fields that are common to Annexure B and the ‘Removal request form’ and the Draft Complaint Alert. I will refer to all of this information collectively as ‘the Composite Alert’.

….

I wish to stress that, although I have rejected the Commissioner’s submission that Ms Caruana gave to X only the Draft Complaint Alert, for the reasons discussed at [155] below, my conclusion on jurisdiction would have been the same if I had found that Ms Caruana did not give to X the Composite Alert but only gave the Draft Complaint Alert. Accordingly, my finding that Ms Caruana gave to X the Composite Alert is not critical to my analysis or conclusion on jurisdiction.

The Tribunal’s reasoning

23    The three members of the Tribunal gave different reasons for the decision, but generally to the same effect. The principal reasons of the Tribunal were given by the President, Justice Kyrou. Deputy President O’Donovan and Senior Member Manetta each gave separate reasons.

24    At [37] the President identified 2 requirements for there to be a reviewable decision:

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.

25    The key question was whether the Commissioner’s communication should properly be characterised as a removal notice for the purposes of s 88 of the OS Act. All three members of the Tribunal found it should.

26    It was agreed (see the President’s reasons at [130]) before the Tribunal that, aside from the s 88 power:

the Commissioner did not have power under the [OS Act] in the present case to give X any form of communication which compelled X to remove the Post or withhold it within Australia.

27    There was however a debate before the Tribunal about what precisely was communicated to X, and how. This is dealt with in the President’s reasons under the heading “Contested Facts”. It is not necessary to set out the whole compass of the factual debate.

28    The President’s conclusion is expressed at [131]:

In my opinion, the principles in [Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 41 FLR 338] support a conclusion that the Tribunal has jurisdiction in respect of the Commissioner’s action in relation to the Post. That is so on the following basis. First, the Commissioner in fact made a decision to give to X the Composite Alert. Secondly, having regard to its objective features, the Composite Alert amounts, as a matter of fact, to a removal notice in respect of the Post under the only provision of the [OS Act] pursuant to which such a notice could have been given (namely, s 88). That is so notwithstanding the fact that the Commissioner did not intend for the Composite Alert to be a removal notice under s 88 or the fact that the Composite Alert was not a legally effective removal notice under s 88. Accordingly, the Commissioner’s decision was a decision in fact made to give to X a removal notice under s 88 within the meaning of s 220(2) of the [OS Act].

29    The President explained his Honour’s reasoning for this conclusion in detail at [133]-[144]. Where necessary we refer to this reasoning below in addressing the arguments on the appeal.

30    At [145] the President summarised his Honour’s factual conclusions:

(a)    the Commissioner in fact made a decision to give the Composite Alert to X;

(b)     having regard to its objective features, the Composite Alert as a matter of fact communicated to X that it was legally required to take all reasonable steps to remove the Post as rapidly as possible;

(c)     thus, the Composite Alert communicated to X the substantive content of a removal notice under s 88(1) of the [OS Act], namely, that X must take all reasonable steps to ensure the removal of the Post within 24 hours;

(d)     accordingly, the Composite Alert amounts, as a matter of fact, to a removal notice requiring X to remove the Post within 24 hours; and

(e)     X treated the Composite Alert as a mandatory legal requirement to take all reasonable steps to remove the Post within 24 hours. It withheld the Post within Australia because it received the Composite Alert and therefore there is a causal relationship between receipt of the Composite Alert and X’s decision to withhold the Post within Australia.

31    Then at [147] the President returned to Lawlor, and also made an observation about the Commissioner’s “subjective intention”:

All that is required is that a decision to give a notice of some kind was made, and that, having regard to its objective features, the notice that was given amounts, as a matter of fact, to a removal notice as described in s 88(1).

32    At [150], the President made it clear this reasoning was based on the legal approach outlined by Bowen CJ and Smithers J in Lawlor. We return to Lawlor below. The President concluded at [152]:

A conclusion that the applicant in the present case did not have a right of review in respect of the withholding of the Post from X within Australia would undermine the right of review conferred by s 220(2) of the [OS Act]. That is because if an end-user such as the applicant could only exercise that right where the Commissioner acted within her statutory power in requiring that the end-user’s post be removed – and was denied that right where the Commissioner acted without power in requiring that the post be removed – the rights of merits review of end-users would be dependent on whether the Commissioner acted within or outside her powers. As both Bowen CJ and Smithers J stated in Lawlor, to deprive the AAT of jurisdiction where administrators made decisions without power would put beyond merits review many administrative decisions. I would add that such an outcome would render immune from merits review the types of decisions for which merits review is particularly warranted in order to provide transparency and accountability in administrative decision-making.

33    At [155], and in the alternative, the President found that even if what Ms Caruana did was as the Commissioner contended, and that she gave only what the President described as the “draft complaint alert”, his Honour’s conclusion on jurisdiction would have been the same.

34    The President also found that what he called the “Composite Alert” amounted “as a matter of fact, to a removal notice in respect of the Post”: see generally [135]-[144]. In this section, the President considered the objective features of the communication itself (as the President had found them), and the objective features “which as a matter of fact communicated to X that it was legally required to take all reasonable steps to remove the Post as rapidly as possible”, as well as the “context of the nature, specific purpose and strict parameters of X’s Legal Requests Portal”.

35    We extract one of the key factual findings of the President (at [144(e)]:

The complainant in the present case made the Complaint to X regarding the Post on 31 May 2024. X did not withhold the Post prior to Ms Caruana entering information into X’s Legal Requests Portal at 6:05 pm on 3 June 2024. X withheld the Post within Australia at 7:18pm on 3 June 2024, that is, within one hour and 13 minutes of the information being entered. The clear inference, which I draw, is that X withheld the Post within Australia because it received the information and that there is a causal relationship between the receipt of the information and X’s decision to withhold the Post within Australia.

36    The President then concluded at [146]-[148] (footnotes omitted):

146.     The conclusions set out at [145] above are sufficient to support a finding that the Commissioner made a decision which, viewed objectively and from a factual rather than legal perspective, was a decision made in fact to give to X a removal notice. The only section of the [OS Act] which conferred power on the Commissioner to give X a removal notice in relation to the Post was s 88. Accordingly, the Commissioner’s decision was a decision in fact made to give a removal notice under s 88 within the meaning of s 220(2). Consistent with the principles in Lawlor, it was a decision ‘made in the exercise of powers conferred by that enactment’ for purposes of s 25(1) of the AAT Act.

147.     My conclusion on jurisdiction is not affected by the fact that the communication that the Commissioner decided to send to X was not a valid removal notice under s 88(1) of the [OS Act]. That was also the case in Lawlor, where the action of the Collector was not a valid revocation of the licensee’s licence under Division 1 of Part V of the Customs Act. Nor does it matter that the Commissioner subjectively did not intend to give a removal notice under s 88(1). All that is required is that a decision to give a notice of some kind was made, and that, having regard to its objective features, the notice that was given amounts, as a matter of fact, to a removal notice as described in s 88(1).

148.     As those requirements have been met in the present case, it does not assist the Commissioner to establish that Ms Caruana subjectively considered that the Post did not satisfy the definition of ‘cyber-abuse targeted at an Australian adult’ in s 7, that there was no power to give X a removal notice under s 88(1), and that Ms Caruana intended to merely alert X to a possible breach of its terms of service rather than give X a removal notice. Equally, it does not matter that Ms Caruana did not have delegated authority to give a removal notice under s 88. Further, it does not matter that the communication the Commissioner sent to X could not legally compel it to remove the Post.

37    The other Tribunal members reached a similar conclusion.

38    Deputy President O’Donovan noted (at [214]) that “at first blush” the Commissioner’s contentions might have much to commend them. However, he also relied (at [217]) on Lawlor to approach the review on the basis that all that is required for jurisdiction is:

a decision made in fact … regardless of whether or not that decision is legally effective

39    He found the “evidence in this case establishes that a decision was made by Ms Caruana to issue the notice she did on 3 [June] 2024” , and even though (subjectively) she never intended to exercise any power under s 88 of the OS Act, and never believed that she was doing so, the decision in Lawlor is authority for the proposition that the Tribunal has jurisdiction to review a decision in such circumstances. The Deputy President said (at [234]) that in Lawlor (emphasis added):

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.

40    He added (at [239]):

Third, it does not (or may not) matter if the decisionmaker 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 decisionmaker 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.

41    This led the Deputy President to conclude (at [240]) that:

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 [OS Act].

42    The Deputy President set out at [242] the features he identified as demonstrating on the facts that (at [243]):

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 [OS Act].

43    Senior Member Manetta agreed with the President’s findings of fact and “the general thrust of his reasons and conclusions” but also expressed some separate reasons. His view was that (see [253]):

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 [OS Act] as a source of their jurisdiction.

44    Senior Member Manetta then approached the fact finding task on the following basis. He considered (at [258], emphasis in original):

what, if anything, the alert required on an objective construction. … [I]f 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.

45    He concluded (at [259]):

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.

46    At [260]-[262] the Senior Member explains why he reached this conclusion. It is not necessary to set that reasoning out here, but we return to it where appropriate below. He then also concluded that the alert was “objectively referable to an exercise of the power of the Commissioner under s 88 to give a removal notice”. Some of this reasoning relied on the evidence about the reaction of X, some of which we have set out in relation to the President’s reasoning above. On this issue, Senior Member Manetta stated (at [267]):

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 [OS Act]. 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.

The appeal

47    In part because of the way the oral argument proceeded, it is as well to begin with some basic propositions about the nature of an appeal under s 172 of the ART Act, and about the Court’s function. These matters were addressed authoritatively in two five member Full Court decisions: Haritos and May.

Haritos and May

48    These decisions concerned the nature of an appeal under s 44 of the AAT Act, but there is no suggestion the construction and operation of s 172 should be approached any differently. Haritos and May considered, and overruled, a number of earlier Full Court decisions about the nature of an appeal to this Court under s 44 of the AAT Act. There is a summary of the Full Court’s findings at [161] in May, which repeats the summary at [62] in Haritos. Relevantly for the purposes of the present appeal, we note the following propositions:

(a)    The subject matter of the Court’s jurisdiction is confined to a question or questions of law, but this should not be read as if the words “pure” or “only” qualified “question of law”. Not all so-called “mixed questions of fact and law” stand outside an appeal on a question of law.

(b)    A question of law within s 44 is not confined to jurisdictional error but extends to a non-jurisdictional question of law. This means (see May at [181]) in most cases there will be little additional work for an application under s 39B of the Judiciary Act 1903 (Cth) or s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) to do, and dismissal of a s 44 appeal may well create issue estoppel, and, or alternatively, Anshun estoppel, as against a subsequent proceeding by way of further judicial review.

(c)    The statement of the question of law with sufficient precision is a matter of importance to the efficient and effective hearing and determination of appeals from the Tribunal.

49    Also:

(a)    A question which asks whether the Tribunal erred in its interpretation of a statutory term by reference to matters the drafter [of the notice of appeal] contends were not properly part of that interpretation, raises a question of law: May at [170].

(b)    The misconstruction of a statutory term (or phrase) by the Tribunal, and application of that misconstruction to the facts as found by the Tribunal can lead to a legal error of the kind susceptible to correction in an appeal under s 172 (or, previously, s 44 of the AAT Act): May at [231].

(c)    It may be an error of law to make a decision which is irrational, illogical and not based upon findings or inferences of fact supported by logical grounds, although such a conclusion is not to be lightly drawn: Haritos at [212]-[213].

50    In Haritos, the Full Court made a number of statements about the role of the Court in relation to the fact finding of the AAT. In our opinion these statements are equally applicable to the Tribunal. As the argument on this appeal developed, these statements should be steadily borne in mind.

51    First, as to the caution in approaching evidence before the Tribunal, and this Court’s limited role in considering the Tribunal’s fact finding, in Haritos at [85] the Full Court cited with approval the following passage from Brown v Repatriation Commission (1985) 7 FCR 302 at 304:

The existence of a question of law is not merely a qualifying condition to ground an appeal from a decision of the Tribunal; rather, it and it alone is the subject matter of the appeal, and the ambit of the appeal is confined to it. Although it is necessary in some appeals pursuant to s 107VZZH for this Court to consider the evidence before the Tribunal (for example, where the alleged question of law is that there is no evidence upon which the Tribunal could reasonably support its finding) the court should be cautious before embarking on its own analysis of the evidence where the task of assessing facts has been placed by the legislature in the hands of specialist bodies such as the Tribunal and the Commission which are equipped to deal with them.

52    From [110] in Haritos the Full Court turned to consider in detail the vexed question of the distinction between questions of fact and questions of law. We need not descend into that discussion because the conclusions of the Full Court explain what is necessary to determine the present appeal by the Commissioner.

53    At [133], the Full Court emphasised the distinct function of the Court on an appeal under s 44 (in our opinion, equally applicable to s 172), by reference to the following extract from the High Court’s decision in Repatriation Commission v Owens (1996) 70 ALJR 904 at 904:

The only appeal from the decision lay to the Federal Court but that appeal was limited to a question of law. The purpose of limiting an appeal to a question of law is to ensure that the merits of the case are dealt with not by the Federal Court but by the Administrative Appeals Tribunal. This distribution of function is critical to the correct operation of the administrative review process.

54    Later, the Full Court put it simply at [167]:

Clearly a factual conclusion separate from any question of law is outside the scope of s 44.

55    In the very next paragraph however, and in contrast, the Full Court gave some helpful examples that had arisen during argument of “mixed” questions:

Senior Counsel for the respondent, when asked in argument what is a question of mixed fact and law, submitted that it was a question that required the Court to determine not only a question of law, but also to determine a question of fact, that is, to find a fact. Senior Counsel for the respondent accepted, however, that a contention put that the Tribunal’s treatment of the evidence lacked a logical basis would be a question of law, even if that involved evaluating the evidence. He also accepted that the contention that the Tribunal wrongly applied the onus of proof was a question of law.

56    Then at [174] the Full Court extracted the description from Gleeson CJ, Gummow and Callinan JJ in Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [24]:

Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law [citation omitted]. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in Australian Gas Light Co v Valuer-General [(1940) 40 SR (NSW) 126] at 138:

[I]f the facts inferred … from the evidence … are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law.

57    Another catalogue of potential questions that can legitimately fall within the scope of an appeal on a question of law is set out at [182]:

The Full Court has also accepted that a determination of a question of fact by the Tribunal may give rise to “a question of law”. Some examples are whether the Tribunal has identified the relevant legal test to be applied; whether the Tribunal has applied the correct test even if the reasons suggest that the correct test has been identified; whether there is evidence to support a finding of fact; whether facts found fall within the statutory provision; and whether the Tribunal has adopted a manner of decision-making which fails to discharge its “obligations according to law”: see [Cyonara Snowfox Pty Ltd v Federal Commissioner of Taxation [2012] FCAFC 177; 208 FCR 471] at [113].

58    Finally, at [192]:

As French CJ, Gummow and Bell JJ emphasised in Osland [v Secretary to the Department of Justice (No 2) [2010] HCA 24; 241 CLR 320], at [19], the Court “should not usurp the fact-finding function of the AAT”, citing Repatriation Commission v O’Brien (1985) 155 CLR 422 at 430 per Gibbs CJ, Wilson and Dawson JJ. It follows that the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact finding. As Brennan J said in Waterford v Commonwealth (1987) 163 CLR 54 at 77:

A finding by the A.A.T. on a matter of fact cannot be reviewed on appeal unless the finding is vitiated by an error of law. Section 44 of the A.A.T. Act confers on a party to a proceeding before the A.A.T. a right of appeal to the Federal Court of Australia “from any decision of the Tribunal in that proceeding” but only “on a question of law”. The error of law which an appellant must rely on to succeed must arise on the facts as the A.A.T. has found them to be or it must vitiate the findings made or it must have led the A.A.T. to omit to make a finding it was legally required to make. There is no error of law simply in making a wrong finding of fact. …

59    The point which emerges from all these descriptions, and from the analysis of the Full Court in Haritos, is that on an appeal under s 44 of the AAT Act (and therefore under s 172 of the ART Act), the Court proceeds on the basis of the facts as found by the Tribunal. In some situations, the Court may be involved in assessing the fact finding by the Tribunal in order to determine a question of law raised in a notice of appeal. But that is only because the particular question of law posed requires the Court to consider a Tribunal’s fact finding as part of the determination of the legal issue. A paradigm example is an allegation of legal unreasonableness. Otherwise, as the extract from Owens above illustrates, the merits of the case are dealt with by the Tribunal, and it is the Tribunal which finds the facts – a distribution of function that is critical to the correct operation of the administrative review process, and the constitutional function of this Court. We are not here dealing with jurisdictional facts properly so called that may require independent fact finding by the Court.

60    This is all consistent with s 177(1) of the ART Act, which replicates s 40(7) of the AAT Act and which authorises this Court to make findings of fact in an appeal from the Tribunal only if:

(a)    the findings of fact are not inconsistent with findings of fact made by the Tribunal (other than findings made by the Tribunal as the result of an error of law); and

(b)    it appears to the Court that it is convenient to do so.

61    Neither party submitted that s 177 had any role to play in this appeal.

The Commissioner’s arguments on appeal in summary

62    The Notice of Appeal contains three questions of law. We accept that each of them is, in accordance with Haritos and May, a question of law.

Question of law 1

63    The first question occupied most of the written and oral argument on appeal, and asked:

Did the Tribunal have jurisdiction to hear and determine the application for review made by the Respondent on 7 June 2024?

64    The Commissioner’s grounds centred on the following (correct) proposition in the first particular in the NoA:

The jurisdiction of the Tribunal depended on the Respondent’s application to the Tribunal being for a review of a decision of the Commissioner under, relevantly, s 88 of the [OS Act], to give a removal notice to the provider of a social media service.

65    That proposition is correct because, relevantly, s 220(2) of the OS Act confers jurisdiction on the Tribunal to review a “decision of the Commissioner, under section … 88 to give a removal notice” to X. The Commissioner contended the Tribunal had erred in concluding there was a decision under s 88 of the OS Act to give a removal notice to X.

66    The particulars challenged two aspects of the Tribunal’s fact finding in reaching the conclusion it had jurisdiction:

(a)    The form of the communication sent to X and the state of mind of the Commissioner’s delegate who sent it. The Commissioner contended that the communication was not expressed to be a removal notice and did not refer to s 88. The Commissioner contended the evidence before the Tribunal was that:

the employee who sent the 3 June communication had positively decided that the preconditions to the exercise of power in s 88 of the Online Safety Act were not met; did not intend to exercise the power in s 88 and never believed that she was doing so.

(b)    The Tribunal’s (impermissible) reliance on:

findings about the guidelines for use of X Corp.’s portal, a finding about the content of the 3 June communication (the composite alert finding), a finding about X Corp’s state of mind (the state of mind finding) and certain features of the 3 June communication

67    Thus, question of law 1, as advanced by the Commissioner appears to take the approach described in Vetter in the extract above at [56] – that the facts as found by the Tribunal could not answer, or satisfy, the statutory description of a “decision to give a removal notice under s 88”. In the particulars at (vi) the words used are “did not permit a conclusion”, but the sense is the same. While on another view these allegations by the Commissioner amount to no more than a quarrel with the merits of the Tribunal’s fact finding, in our opinion the better view is that the Commissioner was contending for a Vetter kind of error.

68    The Commissioner contended that there were two principal reasons for the Tribunal’s error in seeing these facts as it found them to be sufficient to answer the statutory description in s 88. This was developed in her written submissions rather than in the NoA.

69    The first was that the Tribunal had misunderstood the decision of this Court in Lawlor. The Commissioner submitted (at [14]):

The Tribunal took the conclusion that proof of intention (in the sense of an honest belief as to the power exercised) was not necessary to mean that intention was not relevant. It was on this basis that it treated as irrelevant the objective facts which showed that the Investigator had not made a decision to issue a removal notice (see [11.a] above) and instead based its decision on how the complaint alert might have appeared to X (see [11.b] above). This was an error.

70    The second was that, in any event, the Tribunal could not lawfully conclude there was a decision to give a removal notice under s 88 because none of what the Commissioner described (at [16]) as “three important concepts” in s 220(2), read with s 88, existed:

(a)    As a matter of fact there was no “decision by the Commissioner” because a “decision” means, in context, “the action of deciding”, requiring a “mental process of reaching a conclusion on the part of the decision-maker”, regardless of whether the conclusion is legally effective. The Commissioner relied on authorities such as Semunigus v Minister for Immigration and Multicultural Affairs [2000] FCA 240; 96 FCR 533 and Pintarich v Federal Commissioner of Taxation [2018] FCAFC 79; 262 FCR 41;

(b)    The relevant decision “is to give a removal notice”, so the Commissioner’s conclusion (or that of her officer) “in fact” must be to give “that kind of notice”; and

(c)    To be a “removal notice”, a communication requires a “clear statement” that the relevant decision has been made, and “must include such content as required by the statute”.

71    While these submissions were developed and refined in various ways, in writing and orally, the substance of the Commissioner’s submission was that the Tribunal’s fact finding had focussed on a number of peripheral aspects of the evidence, and had not focussed on – in particular – the form of the communication and the evidence of the Commissioner’s officer about her state of mind. The Commissioner’s submissions did not go so far as to say that the matters she contends the Tribunal focussed on (such as X’s reaction to the communication) were irrelevant. Rather, the Commissioner submitted that the Tribunal’s focus had strayed so far from the text and content of s 220(2) and s 88 that it had erred in elevating essentially peripheral aspects of the evidence, and downplaying what should have been the core aspects of the evidence.

72    There were many occasions during oral submissions, and indeed in some of the written submissions, where this approach appeared to stray into a focus on the merits and outcome of the Tribunal’s reasoning. That would of course be impermissible. There were many occasions where the submissions amounted to “this was not a s 88 notice”, which was not helpful to understanding the Commissioner’s argument. Indeed, this led both counsel and the Court during the hearing into close analysis of the evidence before the Tribunal – outside the Tribunal’s findings of fact – which should not have occurred.

73    However, when understood as we have attempted to explain it above, the Commissioner’s argument falls within what is permissible in an appeal under s 172 of the ART Act.

Question of law 2

74    The second question of law asked:

Was the Tribunal’s finding that the Commissioner issued the “Composite Alert” to X Corp. on 3 June 2024:

a.     a finding made without evidence?

b.     alternatively, an inference that was reasonably open to the Tribunal from the facts found?

75    Like question of law 3, this question challenges a particular aspect of the Tribunal’s fact finding. The challenge is in accordance with the authorities to which we have referred because it is put at the appropriately high threshold where fact finding reveals legal error.

76    This second question of law deals with the Tribunal’s description of the communication sent by the Commissioner as a “Composite Alert”. The Tribunal (and, in particular, the President) used this phrase, as we understand it, to contrast its factual conclusions with the contentions of the Commissioner before the Tribunal. The Commissioner had contended the only communication sent by her officer, Ms Caruana, was what was called in the evidence the “draft complaint alert”, a reference to an internal document of the Commissioner which was accepted to be headed “draft” but which the Commissioner contended matched in content what was sent by Ms Caruana to X through its portal.

77    The Commissioner contended this “Composite Alert” was a “construct of the Tribunal”, and substantially relied on a document adduced by the Respondent which was said to have come from X, called in the evidence “Annexure B”. The Commissioner’s contention was that:

Annexure B was not rationally probative of the fact in issue, and therefore was no evidence at all.

78    Therefore, the Commissioner submitted that the Tribunal’s finding that the Commissioner sent a “Composite Alert” to X, being a critical platform of its conclusion that a s 88 notice had been given, was not reasonably open, and was made on the basis of no evidence.

Question of law 3

79    The third question of law asked:

Was the Tribunal’s finding – that X Corp. understood a communication from the Commissioner to X Corp. on 3 June 2024 as a mandatory legal requirement to take all reasonable steps to remove a post within 24 hours:

a.    a finding made without evidence?

b.    alternatively, an inference that was reasonably open to the Tribunal from the facts found?

80    This question challenges the Tribunal’s fact finding, generally based on inference, about X’s reaction to the Commissioner’s communications. It is common ground that in reaching its conclusion on jurisdiction, the Tribunal relied on the findings it made, including inferences drawn, about X’s reaction to the communication as part of its conclusion that the Commissioner had given a s 88 notice.

81    The Commissioner contended that there was no evidence, alternatively no inference was reasonably open, that X had understood a communication from the Commissioner to X on 3 June 2024 “as a mandatory legal requirement to take all reasonable steps to remove a post within 24 hours”.

82    The Commissioner described the Tribunal’s reasoning as “a leap from the observation that X had withdrawn the post, together with the contents of an email sent by X to the respondent, to a speculative conclusion as to why it had done so”. She contended that the fact that X had withdrawn the post was not, in the circumstances as found, rationally probative of why it had done so.

Consideration

83    In our opinion none of the three questions of law should be answered in favour of the Commissioner.

84    While the most detailed reasons were given by the President, Deputy President O’Donovan and Senior Member Manetta each also expressed general agreement with the reasoning and conclusions of the President. Therefore, it would be inaccurate to read each of the separate reasons as standing entirely alone. At times, the submissions of the Commissioner tended to take this approach, which we consider not a fair reading of the Tribunal’s reasoning as a whole. The fact there were three sets of reasons also means that for an error to be found to have affected the orders made by the Tribunal, it is likely it would need to be identified in the reasoning of more than one member of the Tribunal, noting the operation of s 58 of the ART Act: see Equality Australia Ltd v Commissioner of the Australian Charities and Not-for-profits Commission [2024] FCAFC 115; 305 FCR 189, concerning the similar s 42 of the AAT Act.

Question of law 1 (ground 1): Jurisdiction

85    Consistently with the authorities it is necessary to identify the facts as found by the Tribunal. These might be direct findings, or inferences. The facts as found must appear from the Tribunal’s reasons. The absence of a finding on some question of fact from the Tribunal’s reasons (whether direct or by an inference), is likely to indicate that it made no finding on that matter: see generally Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5], cited recently in Campbell-Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 153; 306 FCR 1 at [45] (McDonald J; Derrington and Goodman JJ agreeing) and Pearson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 22 at [39] (Perry, Downes and McElwaine JJ). On occasions, the Commissioner’s submissions on ground 1 departed from the Tribunal’s findings of fact, and instead focussed on evidence that the Commissioner submitted should have been subject to a finding of fact favourable to her submissions.

Facts as found

86    The President’s reasons are divided into two categories of fact finding – uncontested facts and contested facts. The Commissioner’s submissions did not suggest this division was inaccurate. The Deputy President adopted the President’s description of the evidence (see [183]) and the Senior Member said (at [247]):

I agree with his findings of fact and the general thrust of his reasons and conclusions.

87    Thus, we focus initially on the fact finding of the President, supplemented where appropriate (because of different or additional fact finding) by the reasons of the Deputy President and the Senior Member.

88    As we have explained above, the Commissioner’s officer who completed and lodged the request was Ms Caruana. The Tribunal took its findings from her affidavit, and her oral evidence, in combination with what the documents revealed.

89    The uncontested facts are set out in the President’s reasons from [46]-[71]. These were as follows. This section is long, but because of the nature of the Commissioner’s challenge to the Tribunal’s reasoning on jurisdiction, read with the authorities to which we have referred above, it is necessary to set out with some completeness the facts as found by the Tribunal and upon which it based its decision about whether the Commissioner had given a notice to X under s 88 of the OS Act.

90    The Tribunal found that X’s relevant terms of service prohibited the posting of certain material, and drew an inference 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: see the President’s reasons at [46]-[47].

91    The President relied on the content of X’s published guidelines about platform use, emphasising (at [48]) the following extracts:

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)…

….

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 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 …

….

you can submit a request for content to be withheld through our legal request submission site …

92    Thus, the President found there are two pathways for a law enforcement agent to follow: asking X, by using the appropriate form, to review a post for possible violation of its terms of service (the President describes this as the General Portal); and second, after such a request if X responds that there is no violation, a request can then be submitted using the Legal Requests Portal: see the President’s reasons at [49].

93    Ms Caruana had taken some screenshots of what she lodged with X, but it was an incomplete set of screenshots. There were five screenshots in evidence and the President sets out the parts he considered relevant at [50]-[55]. The Commissioner did not suggest there were other relevant parts the President had omitted. As the President’s findings in these paragraphs state, the portal used was the Legal Requests Portal; “legal requests” were described by X by examples such as “e.g subpoena or court order”; distinctions were made with “non-legal requests”; different kinds of legal requests were identified on the portal including “Removal request” which was said to be a request “for Twitter to withhold content based on a valid, properly scoped legal request”. That phrase was repeated on X’s forms and in other screen shots.

94    The person making the request was asked to identify their organisation, and their jurisdiction; to upload a “dated and signed copy of your valid legal process or report”; and to identify if there is a court order.

95    Under the heading “Legal basis”, X’s form also asked for “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).”

96    The fifth screenshot in evidence before the Tribunal and taken by the Commissioner had fields such as whether the “matter type” was civil or criminal, and then a drop down list of the kind of request which showed the following:

Request type*

    Court order

    Formal request

    Letter rogatory

    RIPA: Grade 1

    RIPA: Grade 2/3

    Subpoena

    Warrant

    Other

97    Then also the “issue type”, which had a longer drop down list of different issue types including criminal offences, IP infringement, “election related”, “threats to journalists”, “suicide/self-harm”. In other words, a ‘tick the box’ exercise for a law enforcement agency to identify the legal basis for their removal request.

98    At [56] the President made the following finding:

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     [...]

99    As we explain below, the evidence before the Tribunal was clear that the Commissioner’s officers, including Ms Caruana, were familiar with X’s portals, and the fields, and had used them regularly before, because the Commissioner’s practice was to make the kind of request made in this case rather than following the internal process which the Commissioner and her officers preferred to identify as a formal s 88 notice process.

100    From [57]-[71], the President made findings about the action taken by the Commissioner, some of which we have described in the introduction above. Relevantly to question of law 1, in this part of his Honour’s reasons the President made the finding (not challenged by any party on the appeal) that Ms Caruana concluded the post did not satisfy the definition in s 7 of the OS Act of “cyber-abuse material targeted at an Australian adult”. That was because in her view it did not satisfy the “intention to cause serious harm” requirement in s 7(1)(b).

101    On the appeal, the Commissioner placed some weight on this and criticised the Tribunal for not doing so, because Ms Caruana’s view was submitted to have been highly relevant to whether it could be said objectively that the Commissioner had “given a notice under s 88” when, from the start, Ms Caruana herself understood the post did not satisfy the definition in s 7, which was required by s 88(1)(b).

102    At [61], the President sets out the email sent to the complainant, which expressly states the Commissioner proposed to “informally [escalate] your report to Instagram and X to notify them of the potential violation”.

103    A key gap in the evidence before the Tribunal is recited at [62]; namely that while Ms Caruana could have given evidence about when she accessed X’s Legal Requests Portal, and entered information relating to the complaint, she did not take a screenshot of the information she entered. As the President notes, this became a contentious factual issue, which has continued into question of law 2 at a factual level on this appeal.

104    The President then finds the following key facts (with the President’s underlining for emphasis, footnote omitted):

65.     On 3 June 2024 at 7:18pm, the Commissioner received another email from X which stated that the Post ‘has been withheld in Australia’.

66.     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 …

105    At [68]-[69] the President extracts some internal communications within the Commissioner’s office which again reinforce the view of the Commissioner’s officers, including Mr Hannath who gave evidence to the Tribunal, that what Ms Caruana had done was “not a formal removal notice”. Then at [71] the President finds that some time later, on 10 August 2024, X sent an email to the Commissioner advising her 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.

106    From [76]-[118] the President then turns to what he describes as the “contested facts”. Again, we will summarise where the findings are of relevance to the appeal before the Court.

107    The President saw the “key contested factual matter” as what was the “precise content of the information” entered by Ms Caruana on 3 June 2024 onto X’s Legal Requests Portal: [76].

108    On this factual matter, the President made findings that were not wholly accepting of the submissions of either party.

109    From [77]-[78] the President set out the evidence of Dr Kirkham from the Free Speech Union who filed an affidavit relied on by the Respondent before the Tribunal, and which contained two categories of evidence which the Tribunal relied on. Dr Kirkham was not required for cross examination and his evidence was not challenged directly, although the Commissioner submitted the Tribunal should not rely on it.

110    First, evidence about a phone call from X’s lawyer in Australia, Justin Quill, during which Mr Quill is said to have stated:

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.

111    Mr Quill identifies a causal link between the form submitted by Ms Caruana and the removal of the post by X.

112    Second, evidence about what became known as “Annexure B”, which Dr Kirkham deposed was the document sent to him by Mr Quill as “the form they [the Commissioner] submitted through X’s Legal request portal”. The contents of that form are set out at [78] of the President’s reasons and need not be repeated in full here.

113    At [79] the President sets out what the Commissioner contended was entered into X’s Legal Requests Portal by Ms Caruana. The President appears to have accepted (at [113]-[114]) Ms Caruana’s evidence (set out at [93(d)]) that she had followed her usual practice of saving the main text of a complaint alert in the Commissioner’s case management system and then copying and pasting that text into the relevant service provider’s portal.

114    Then from [80]-[98] the President set out what we infer to be the evidence of Mr Hannath and Ms Caruana that the President considered was relevant to the issue he had to decide and that he accepted, consistently with s 111(2) of the ART Act and the authorities referred to above at [85].

115    From [101]-[118], the President sets out his conclusion on the “contested facts”. These passages need to be read and considered as a whole, and in the context of the remainder of the President’s reasons. We have taken that approach, but for the purposes of the appeal we set out here the principal findings made by the President.

116    The President found Ms Caruana used X’s “removal request” form and not the “information request” form. This led the President to find that what appears in Annexure B to Dr Kirkham’s affidavit “cannot be regarded as a complete or entirely accurate record of the information that Ms Caruana entered into X’s Legal Requests Portal” because it was clear from other evidence before the Tribunal that Annexure B contained fields that were only in the information request form and was therefore an “amalgam”.

117    Nevertheless, the President found (see [106]-[110]) that Annexure B should not be completely disregarded and information in some of the fields was information provided by Ms Caruana; namely:

(a)     ‘Organization: eSafety Commissioner’

(b)     ‘Authorizing Jurisdiction: Australia’

(c)     ‘Matter Type: Civil’

(d)    ‘Issue Type: Harassment, Private Information’

(e)     ‘Legal Basis: Section 7, Online Safety Act 2021’

118    The President found Ms Caruana entered all the information, including the “draft complaint alert” on 3 June 2024, and put the text from this draft document into the free text field in the removal request form (see [111]-[114]). The President’s concluding finding on these contested issues is at [116]:

For the above reasons, I am of the opinion that, on 3 June 2024, Ms Caruana entered the text of the Draft Complaint Alert into the Commissioner’s case management system, and then accessed X’s Legal Requests Portal. After making the affirmation in the Commissioner’s first and second screenshots, Ms Caruana entered into X’s Legal Requests Portal the information in Annexure B that relates to the fields that are common to Annexure B and the ‘Removal request form’. She then pasted the text of the Draft Complaint Alert from the Commissioner’s case management system into the ‘Please provide any additional details’ field of the ‘Removal request form’. All of these actions took place on the same day. Accordingly, on 3 June 2024, X received from the Commissioner a combination of the abovementioned affirmation, the information that relates to the fields that are common to Annexure B and the ‘Removal request form’ and the Draft Complaint Alert. I will refer to all of this information collectively as ‘the Composite Alert’.

119    Importantly to some of the matters to be resolved on this appeal, at [118] the President then made it clear that even if he had entirely accepted the factual case as presented by the Commissioner (that is, Ms Caruana gave no information to X other than what was in the document headed “draft complaint alert”), his conclusion on jurisdiction would have been the same.

120    In other words, the facts as found by the President on the so-called “contested issues” were not critical to his conclusion on jurisdiction.

The fact finding of Deputy President O’Donovan

121    The Deputy President begins with a short summary of his findings. At [177]-[179] the Deputy President found, consistently with the Commissioner’s case, that Ms Caruana was not satisfied that the Respondent’s post was cyber-abuse material targeted at an Australian adult. Relevantly to the appeal, at [180] he makes a finding about Ms Caruana’s state of mind when engaging with X, and finds:

She was not intending to use any compulsory powers available to the Commissioner but she communicated with X about the material.

122    At [182] the Deputy President identified two questions that needed to be answered, and on the second question he stated he was satisfied that sending a notice of the kind sent by Ms Caruana amounted to a “decision to give a removal notice” within the terms of s 220(2).

123    In other words, the Deputy President asked himself the correct question. We turn now to the facts he found to support that answer.

124    From [184] the Deputy President sets out his factual findings in detail. Most are consistent with those of the President (for example, the existence and use by Ms Caruana of X’s Legal Requests Portal), and in this section we refer only to those which differ from the President’s reasons in a way relevant to the appeal.

125    At [193], the Deputy President expresses a finding about the use of the portal which is clear about the weight he gave to Ms Caruana’s use of that portal, in circumstances where it was common ground she was familiar with X’s two portals and had used them before. The Deputy President found (emphasis added):

X’s Platform Use Guidelines make clear that requests for X to consider whether a post conforms with its terms of service, even when that request is made by a government official, should be made through the General Portal. The forms in the Legal Requests Portal are reserved for a ‘law enforcement agent, government official, or other third-party intending to submit a valid legal request’. No other uses of the form are permitted.

126    The Deputy President followed this with a finding (at [195]) that when Ms Caruana used the Legal Requests Portal “she confirmed that she had the required legal authority to submit the request and that the submission was a permitted use of the Legal Request Portal.”

127    The Deputy President found – and in our view placed some emphasis on – Ms Caruana having filled out compulsory fields, and relied on Annexure B in this way (at [196]):

The Tribunal has hearsay evidence communicated from X that the notice it received included in the Legal basis field the words ‘Section 7, Online Safety Act 2021’. In the absence of any other evidence as to what was included in the field, and in light of the compulsory nature of the field, I am satisfied that those words were included.

128    It is common ground the Tribunal is not bound by the rules of evidence, and may inform itself as it sees fit: see s 52 of the ART Act.

129    The Respondent submitted:

The Composite Alert contained information which was common to Annexure B and the ‘Removal request form’. In reaching this conclusion, the Tribunal adopted an orthodox approach of treating Annexure B as capable of being relied upon to the extent that it was consistent with other corroborating evidence.

130    We accept that submission. The authorities cited by the Respondent may not quite stand for the proposition advanced, but it is not contentious that in finding facts for the purpose of exercising a power, a repository is entitled to look for consistencies between different aspects of the evidence, and to rely on those consistencies if that reliance is reasonable and rational. In the present circumstances, there was nothing irrational or legally unreasonable about the reasoning process adopted. The Tribunal is the finder of fact, not the Court.

131    Relying on the evidence about X’s response to the Commissioner’s request through the Legal Requests Portal (see [200] of the Deputy President’s reasons, which is the same extract we have referred to above in the President’s reasons), the Deputy President found (at [201]):

I am satisfied that X took down the post because it believed that it was legally obliged to do so, following the contact from Ms Caruana.

132    That finding was plainly open on the express words of the communication from X. It is also consistent with Mr Quill’s response, extracted above. While the Commissioner pressed in oral argument other evidence about X failing to take action on similar requests, again these were merits issues for the Tribunal as the fact finder.

133    While the Deputy President expressed himself separately and in different terms, there is nothing incompatible or inconsistent in his reasoning on fact finding from that of the President.

The fact finding of Senior Member Manetta

134    As we explained, the Senior Member agreed with the President’s findings of fact.

135    For the purposes of the appeal that means the Court can take it that the President’s findings are findings in which the Senior Member joined. That includes expressly the President’s approach to Annexure B: see the Senior Member’s reasons at [247], read with fn 104.

136    The Senior Member approached fact finding by distinguishing the task of an objective assessment of the communication from the Commissioner: see [258]. It was common ground on the appeal that the assessment of the communication required an objective approach. In oral argument, Mr Begbie KC, appearing for the Commissioner, said (emphasis added):

MORTIMER CJ: And just to be clear, it’s – the – does the Commissioner accept that, because of the way the statute is framed – or what’s not in section 88 – it’s all – a communication could be a removal notice if it has a certain universe of objective features? It doesn’t – there’s not only one way to give a notice.

MR BEGBIE: Yes.

MORTIMER CJ: It’s a communication.

MR BEGBIE: We – yes.

MORTIMER CJ: Yes.

MR BEGBIE: We agree with that. I – and I will take your Honour to those features. There’s a certain necessary minimum, but beyond that, we’re not slavishly insisting upon a particular form or something like that.

137    Further, in response to a question from Beach J, Mr Begbie also said:

BEACH J: As soon as you, though, shift to what was done and looking at the communication or the notice – whether this particular stark type or the situation that we have – you are focusing on that, aren’t you? The form of the communication, objectively looked at in its context.

MR BEGBIE: I - - -

BEACH J: That’s really the driving analysis, isn’t it?

MR BEGBIE: It is, your Honour. I agree.

138    The Senior Member correctly identified that the Tribunal needed to undertake an objective characterisation of the communication (see [258]), and correctly identified the choice for the Tribunal between the contentions of the parties:

if the alert, construed objectively, required nothing of X, but merely requested X to evaluate the Post against its own [policies], 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.

(emphasis in original)

139    The Commissioner did not submit this statement was incorrect. It is correct.

140    From [260], the Senior Member identifies the aspects of the communication which in his opinion conveyed to X that the Commissioner was requiring the removal of the post. At [261] the Senior Member placed emphasis on the following objective features of the alert and the way it picks up aspects of s 7 of the OS Act (footnotes omitted):

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, the material in the Post sought to intimidate and harass, 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).

141    At [265] the Senior Member finds that on the evidence X’s staff interpreted the communication as imposing a requirement on X to remove the post. As we have explained above, the communication from X is probative evidence rendering that finding available.

142    It is true that the Senior Member perhaps placed more emphasis than the other two members of the Tribunal on the objective evidence about how X understood the communication from the Commissioner. At [267]:

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 [OS Act]. 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 [OS Act]. 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.

143    This reasoning was not directly challenged by the Commissioner on the appeal. There is nothing irrational or legally unreasonable in this reasoning and the Senior Member is, with respect, correct to identify as a salient feature the fact that a removal notice is a direct communication from a regulator to a particular person.

Conclusion on the fact finding of the Tribunal

144    While each member of the Tribunal expressed themselves differently, the fact finding of each of them properly examined all of the evidence before the Tribunal, and then attributed weight to different parts of it, explaining why each member of the Tribunal did so. This was an orthodox approach to the Tribunal’s fact finding task. Since Senior Member Manetta agreed with the fact finding of the President, the President’s reasoning constitutes the majority fact finding of the Tribunal. There is nothing incompatible between the President’s fact finding and the facts as found by the Deputy President, or the additional factual findings by the Senior Member.

145    Read as a whole the Tribunal’s fact finding proceeded on a basis of rejecting the narrow factual case put on behalf of the Commissioner, which was in substance: look only at the “draft complaint alert”, do not look at Annexure B and give determinative weight to the evidence of Ms Caruana about her view that this communication was not intended to be and should not be taken as a notice under s 88. The rejection of that factual case was within the proper function of the Tribunal.

Did the Tribunal’s facts as found permit it to conclude the Commissioner had given a s 88 notice?

146    In this section we consider the parties’ submissions on question of law 1, in the context of the Tribunal’s reasons as expressed, taking into account what we have outlined about the facts as found by the Tribunal.

147    As we have explained above, there was no dispute on the appeal that the Tribunal’s task involved the objective characterisation of the communication from the Commissioner to X, in the circumstances in which it was made.

148    The Commissioner did not submit that the circumstances surrounding the communication by Ms Caruana could not be taken into account in any objective assessment of whether, in fact, what happened was that Ms Caruana gave X a notice within the terms of s 88 of the OS Act. Indeed, the Commissioner could not rationally contend the surrounding circumstances could be excluded, because she relies heavily on some of them herself – namely, the fact that Ms Caruana did not have the relevant delegation under s 88; the “positive determination” of Ms Caruana that the s 7 definition was not met by the post; and the (contrasting) conduct of X in response to other communications from the Commissioner.

149    One reading of the Commissioner’s submissions might initially be seen as a difference on what should objectively be included in the description of the “communication”. It should be apparent from the summary of the Tribunal’s fact finding above that the only matter on which the Commissioner truly submits there is an objective difference is any reliance, in whole or in part, on the information recorded in Annexure B. By question of law 2, the Commissioner contends this document was no evidence at all. We reject this ground: see [205]-[207] below.

150    Rather, in our view, the Commissioner sought to place less weight on some aspects of the communication and its circumstances and more weight on others. She sought to elevate the weight to be given to Ms Caruana’s intention. She sought to downplay the weight to be given to the use of the Legal Requests Portal. She sought to elevate other evidence, not positively relied on by the Tribunal, about X’s reactions in other cases to a similar request from the Commissioner. She sought to downplay X’s response in this particular case. These assessments were for the Tribunal and are not for the Court. They were all fully agitated by the Commissioner before the Tribunal. The Commissioner did not dispute the Tribunal understood its task as involving an objective assessment of the entire communication to X by the Commissioner, and aside from Annexure B, did not submit that in that objective assessment the Tribunal could not take into account – for example – that the Commissioner used the Legal Requests Portal and that Ms Caruana identified herself as an officer of the Commissioner with a law enforcement function.

151    The Tribunal was in our opinion well within the proper performance of its function to approach its fact finding in the way it did. The Commissioner’s submissions to the contrary should be rejected.

The Lawlor argument

152    The Commissioner’s contentions are succinctly stated in her reply submissions at [4]:

The Commissioner says (AS [11] and [14]) that the Tribunal misunderstood Lawlor and erroneously treated as irrelevant the objective facts going to the question of the Investigator’s intention and conclusion.

153    The Commissioner then also makes the point, correctly, that on the appeal the Respondent did not contend such factual matters could be treated as irrelevant, but instead put forward a different understanding of the Tribunal’s reasons.

154    For the reasons we now explain, we accept the Respondent’s submissions. The Tribunal did not treat the evidence about Ms Caruana’s intention, and her state of mind, as irrelevant. Certainly not in the Peko-Wallsend sense of being something that was prohibited from being considered: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J). Further, not even in the sense of being evidence incapable of having any bearing on the Tribunal’s fact finding about whether what had occurred, objectively, was the giving of a notice for the purposes of s 88 of the OS Act.

155    The Lawlor cases concerned the revocation of a warehouse licence held by the applicant. The licensing of warehouses of the kind owned by the applicant was regulated under Div 1 of Pt V of the Customs Act 1901 (Cth). In Brian Lawlor Pty Ltd v Collector of Customs (NSW) (1978) AATA 49; 1 ALD 167, the applicant sought merits review of the revocation in the AAT, on the basis that Mr Lawlor’s company was not a fit and proper person to hold a customs warehouse licence. It can be seen immediately how this basis for the revocation of a licence was the typical kind of basis that might generally be suitable for merits review, if the AAT’s jurisdiction was properly invoked. However, the applicant contended there was a lacuna in the Customs Act and there was no general power to revoke a warehouse licence. The AAT, constituted by its then President, Brennan J, listed the applicant’s argument on power ahead of any hearing of the merits of the revocation, noting (at 170) that not only might the question of power need to be determined but:

A further question is whether, assuming that neither of those officers was so empowered, this Tribunal has jurisdiction to review the decision to revoke, and to make an order effective to secure to the applicant the continued benefit of the licence.

156    Brennan J concluded (at 175) there was no general power to revoke a warehouse licence and this:

means, of course, that the purported decision of the Collector to cancel the applicant's licence has neither legal foundation nor the legal consequence intended. But this Tribunal cannot declare judicially the nullity of the purported decision and it cannot quash judicially the purported decision. This Tribunal does not exercise judicial power; it exercises the non-judicial power conferred upon it by its constituting statute.

157    His Honour then identified two questions which the AAT needed to grapple with:

first, is a decision made without statutory power amenable to review by the Tribunal? and second, what order may the Tribunal make to give effect to the view that the decision to revoke was made without statutory power?

158    In a detailed consideration of the correct answers to those questions, Brennan J concluded (at 179-80) that the AAT’s jurisdiction under s 25(1) of the then AAT Act included jurisdiction to review on the merits an exercise of power which might not be legally valid:

A decision is a fact, to be distinguished from its legal consequences. A decision made beyond power but in its intended exercise does not carry the same legal consequences as it would have carried if there had been power to make it. Axiomatically, the legal consequences which it does carry depend upon the effect attributed by the law to the fact of the decision.

159    This observation assumes some significance in the context of the present appeal. The distinction between a decision “in fact” and a decision “in law” (to use a different term to his Honour) is one which applies to the Tribunal’s task, and in our opinion, its jurisdiction, in the current proceeding.

160    At 181-2, Brennan J expressed his conclusion in the following way, which we understand the Commissioner sees as somewhat supportive of her position on the appeal because of the reference to the intention of the repository of the power:

For these reasons, I hold that the Collector in deciding to revoke the applicant’s licence acted beyond the powers conferred by s 78 of the Customs Act but in the intended exercise of powers which he wrongly conceived to be vested in him by that section; that he none the less made a decision which is a reviewable decision; that this Tribunal should review the decision and set it aside because it was made beyond power: and that the Tribunal should substitute its own decision that no action be taken purporting to revoke the applicant's licence.

161    The Collector of Customs appealed pursuant to s 44 of the AAT Act, on a question of law. By majority, the Full Court dismissed the appeal. However, the phrase in bold in the extract above is where there was a different approach taken by the majority on the appeal. Deane J dissented and held that the Tribunal had no jurisdiction to set aside a purported revocation of a licence on the ground that no relevant power of revocation existed: see 378-9.

162    The majority approached the matter as turning on the construction of s 25 of the AAT Act and the meaning to be given to the word “decision” in that section. Bowen CJ found (at 342) the word meant a decision in fact made, regardless of whether it was legally effective. The Chief Judge said (at 343):

It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the Act is designed to give a simple remedy in all such cases.

163    His Honour also found (at 343) that it would be inappropriate to interpret s 25 (and the Tribunal’s jurisdiction) as “dependent upon the state of mind of the official” who exercised the power concerned. Rather the phrase in s 25 “made in the exercise of powers conferred by the enactment” should be understood to mean in purported exercise of such powers: at 344. The Chief Judge cautioned (at 344) against an “undesirable emphasis” on the intention, or state of mind, of the decision maker, this being the emphasis of Brennan J in the extract above. The Chief Judge said:

Nevertheless, it appears to me to be undesirable to make proof of intention the test. Indeed, there may be cases in which the objective facts might satisfy the test as I have formulated it in (c), where the same facts might make a conclusion as to intention difficult to reach.

164    Smithers J reached a similar conclusion (at 367):

If 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.

165    His Honour adopted Brennan J’s distinction between a decision in fact and its legal consequences: see 370. He rejected the need for any honest belief of being within power to be held by the decision maker: at 372.

166    The reasoning in Lawlor is neither complicated nor, in 2025, controversial. In order to perform the function conferred upon it, the AAT, and now the Tribunal must be able to review decisions and exercises of power on their merits, without any constraint or confinement around whether the exercise of power under review was lawful, or valid. The intention or state of mind of the repository of the power is not determinative in these circumstances, because a “purported” exercise of power may be sufficient for there to be a decision in fact, and for that decision to be capable of affecting rights and interests, in a way that the federal merits review legislative scheme intended could be re-assessed by the Tribunal. Lawlor itself is a paradigm example of this.

167    The Commissioner contends that the Tribunal misunderstood Lawlor and “took the conclusion that proof of intention (in the sense of an honest belief as to the power exercised) was not necessary to mean that intention was not relevant.”

168    As the Respondent submits, the Commissioner’s contention misunderstands the reasoning of the Tribunal and takes too literally some of the expressions used by the Tribunal.

169    Each member of the Tribunal well understood Lawlor. Each Tribunal member approached their task on the basis of the need to determine, objectively as a matter of fact, whether what Ms Caruana had done was to give a notice to X under s 88 of the OS Act.

170    Nor did any member of the Tribunal misapply Lawlor to the evidence before the Tribunal. No member of the Tribunal disregarded or treated as irrelevant the evidence of Ms Caruana about her intention and her state of mind.

171    At [131] the President found “the Composite Alert amounts, as a matter of fact, to a removal notice in respect of the Post”, and then said:

That is so notwithstanding the fact that the Commissioner did not intend for the Composite Alert to be a removal notice under s 88.

172    Read in context that statement is doing no more than indicating that Ms Caruana’s evidence that she did not intend to exercise the power under s 88 and did not believe the preconditions for the exercise of power were met was not determinative of the correct characterisation of the communication to X. That is the effect of the President using the term “notwithstanding”.

173    Further, it is clear that the President did not accept all of the submissions of the Commissioner, about why Ms Caruana sent the communication to X through its Legal Requests Portal. Mr Hannath had conceded that a purpose of the complaint alert was having the post taken down. At [140] the President found that:

it is not objectively plausible that the Composite Alert was provided to X merely to alert X that the Post may violate X’s terms of service.

….

If the Commissioner merely wished to convey information … she was required … to use X’s General Portal ...

174    That language is suggestive of a rejection of the way the Commissioner sought to rely on the evidence of Ms Caruana about her intention, and her state of mind about the preconditions to the s 88 power not being satisfied.

175    At [147], the President found:

Nor does it matter that the Commissioner subjectively did not intend to give a removal notice under s 88(1).

176    In our opinion, the use of the phrase “nor does it matter” by the President is nothing more than a shorthand version of expressing the view that this evidence (and the argument based on it) did not persuade the President to reach a different conclusion. It is not language suggesting the President read Lawlor as rendering this evidence irrelevant. We take the same view about the language used in the next paragraph – “it does not assist the Commissioner”. That is language of explanation for rejecting an argument put, and not language suggesting the President read Lawlor as rendering this evidence irrelevant. The reference in [150] to Lawlor is a correct statement of the effect of Lawlor.

177    Finally, the President’s observations in [164] should be read in their proper context:

There is no need for me to make a finding on whether the Commissioner sought to achieve a result (removal of the Post) indirectly in circumstances where she could not achieve that result directly. That is because the Commissioner’s motives or subjective intentions do not form part of the principles in Lawlor.

178    In this passage the President is responding to what was an obvious inference in the overall circumstances of the Commissioner’s actions here and then the conduct of the Commissioner’s case before the Tribunal; namely that the Commissioner was through this ‘informal’ process seeking to regulate and control content published by organisations such as X without having to meet the criteria for the giving of notices under s 88. Indeed, that was a matter squarely addressed by the Commissioner in her written submissions to the Tribunal, where she contended the Tribunal should not draw any such inference. By the last sentence in this extract, all the President is saying in this passage is that the approach in Lawlor means the motives or intention of the repository of the power are not determinative of the Tribunal’s jurisdiction. That is a correct statement. For completeness, we note that the Deputy President (at [239]) expressed himself in terms that subjective intention was “for the most part irrelevant”. But this was not an unqualified rejection of relevance.

The “three important concepts” argument

179    This argument is set out in the Commissioner’s written submissions from [16] onwards, and was developed orally. The Commissioner submits that the three important concepts to which her submission refers must be present for an objective characterisation that there has been a decision “in fact”. She submits the Tribunal did not take this approach and instead searched for a “constructive decision” to issue a s 88 notice, rather than an actual one.

180    The three important concepts identified by the Commissioner are (footnotes omitted):

a.     There must be, as a matter of fact, a “decision by the Commissioner”: “Decision” is used in its ordinary and natural sense to mean “the action of deciding”, and requires a mental process of reaching a conclusion on the part of the decision-maker. Regardless of whether the decision which is the product of that conclusion is legally effective or not, it must at least be a “decision in fact made” by the person.

b.     The relevant decision “is to give a removal notice”. Unless the conclusion of the Commissioner is in fact to give that kind of notice (whether it is legally effective or not) it will not be a decision that comes within the statutory text. In contrast to the broad review jurisdiction conferred in Lawlor, s 220(2) does not cover decisions “relating to” removal notices, nor decisions about non-compulsory requests.

c.     A “removal notice”: In both s 220 and s 88 this is used with the definite or indefinite article – “the removal notice” or “a removal notice”. At a minimum, a statutory notice requires a “clear statement” that the relevant decision has been made, and must include such content as required by the statute.

181    We do not accept that these matters provide the appropriate or exclusive framework within which to assess the Tribunal’s decision on jurisdiction. The Commissioner’s arguments tend to parse the statutory language of s 88 more than is appropriate for the purposes of s 220 of the OS Act, recalling it is s 220 which gives the Tribunal its merits review jurisdiction. Section 220(2) requires “a decision of the Commissioner under section 65, 77 or 88 to give a removal notice to” one of the three service providers set out in s 220(2). As we have explained, the parties both put to the Tribunal that Lawlor required the Tribunal to determine whether, having regard to the objective facts, a decision was made in the purported exercise of a particular power. That is what the task the Tribunal performed did; it weighed the objective facts differently from the manner in which the Commissioner submitted they should be weighed, but that was a matter for the Tribunal in the performance of its function.

182    The Commissioner referred the Court to the decisions in Amir v Director of Professional Services Review [2021] FCA 745; 175 ALD 26 and Amir v Director of Professional Services Review [2022] FCAFC 44; 290 FCR 355, at both first instance and on appeal. We consider those decisions are consistent with the approach taken by the Tribunal, and consistent with the focus on Lawlor by the Tribunal and by the parties in their submissions to the Tribunal. The cases concerned a challenge by Dr Amir relating to a request by the Chief Executive Medicare to the Director of Professional Services for a review of certain professional health services provided by Dr Amir. Dr Amir challenged in particular part of the investigation and review scheme, and his legal challenge depended on an argument about when the Director had made a decision under the Health Insurance Act 1973 (Cth) to review the provision of services by Dr Amir. The timing of the “decision” would either mean the review was conducted in accordance with the time frames set out in the legislative scheme, or it was not.

183    The competing arguments centred on whether the Director made a decision when she sent an internal email to some of her employees informing them she had decided to conduct a review of the health services provided by Dr Amir, or whether the decision should be construed as made only when the Director notified Dr Amir of her decision to undertake a review of the health services he provided. Both the trial judge and the Full Court held it was the latter. The submissions involved an argument whether a “decision” in this legislative scheme could occur only at the stage of a complete, subjective mental process by the repository of the power or whether there needed to be some external manifestation or consequence of that mental process. In this context both the trial judge and the Full Court considered authorities such as Semunigus (as well as the first instance decision in that matter, Semunigus v Minister for Immigration and Multicultural Affairs [1999] FCA 422 (Semunigus First Instance)), to which the Commissioner also referred on the appeal.

184    The Full Court in Amir (at [59]) endorsed the following passage from the reasons of the trial judge:

The principle in [Semunigus First Instance] concerns the meaning of a “decision” generally. It gives that term a meaning which is consistent with its ordinary meaning and which is clear and capable of application. The focus is not on a decision-maker’s mental state. It is on the external manifestation of that state of mind in some irrevocable and final manner. While this meaning will always yield to the particular statutory context, the context in the present case supports giving the words “decide” and “decision” in s 88A(1) and s 94(1)(a) and (b) this meaning.

185    Earlier in their reasons (at [58]), the members of the Full Court also extracted the following passage from the trial judge’s reasons:

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.

186    The Full Court endorsed this approach, finding (at [66]) that:

what is required, having regard to the statutory scheme, is a decision that constitutes, or at least purports to constitute, a performance of the decision-making function conferred by s 88A(1). The primary judge was correct to find that the words “decide” and “decision” in s 88A(1) and s 94(1) do not focus on the Director’s mental state but rather on the external manifestation of that mental state in an irrevocable, or firm, way.

187    The same kind of debate was at work in the present circumstances before the Tribunal. In her post-hearing submissions to the Tribunal, the Commissioner submitted it was clear that the Commissioner (through her officer Ms Caruana) had not made a “decision”:

First, the sending of the complaint alert was not a ‘decision’, in the sense of being ‘final or operative and determinative’ or manifesting a conclusion that precluded the matter being revisited by the Commissioner. It was simply a measure taken by the Commissioner in response to a complaint. It did not preclude the Commissioner from, for example, making further inquiries, of X or the complainant; considering further information from them or others; or (including in light of further inquiries or information) reconsidering the Post against the definition of ‘cyber-abuse material targeted at an Australian adult’ in s 7 of the Act.

188    The Commissioner’s submissions then went on to contend there was no purported exercise of power by Ms Caruana under s 88 of the OS Act, when all the objective facts were weighed and considered.

189    It is clear from the Tribunal’s reasons that on its own analysis of the evidence, it rejected both these arguments.

190    The extracts above from Amir demonstrate, in our opinion, that on the facts as found by the Tribunal, it was open to the Tribunal to find there was a decision by Ms Caruana, purporting to act on behalf of the Commissioner and that the objective facts, taken as a whole, supported the proposition that this decision purported to be in exercise of the power under s 88 of the OS Act.

191    The use of the word “purported”, in the context of Lawlor, is material. Read with the substance of the analysis in cases such as Amir and Semunigus (with their emphasis on the external manifestation of, or “translation” of, a mental process into action or conduct), the perspective of the recipient or object of the exercise of power is a legitimate consideration. Does the evidence establish that the recipient understood or believed that the power in issue was being exercised in respect of them? That perspective may, depending on the evidence and the circumstances of the conduct by a repository, be important in determining if there has been a “purported” exercise of power. On the evidence before the Tribunal, and the facts as found by it, it is readily understandable why the Tribunal examined, and placed weight on, the particular portal chosen by Ms Caruana, the language used in the communication, and X’s response and reaction. Cumulatively, these matters were probative of the existence of a “purported” decision to give a notice under s 88 of the OS Act, even if Ms Caruana genuinely believed she was making a different kind of decision.

192    How this different kind of decision might be described or characterised was not an irrelevant issue, although both before the Tribunal and before the Court the Commissioner sought to say as much. In our opinion there is no doubt at all, consistently with Amir and Semunigus, that the Tribunal was correct to find that Ms Caruana made a decision. She went through a mental process and translated that into action and conduct by her communications with X, as the Tribunal found those communications to be comprised. If it was not a decision to issue a notice under s 88 of the OS Act, what kind of decision was it? This raised a reasonable and not rhetorical question, bearing in mind that the source of power to make a decision by an officer in the position of Ms Caruana must either be located in the statute (here, the OS Act), or the common law, or in the executive power of the Commonwealth.

193    The Commissioner consistently contended before the Tribunal and before this Court that it was not material whether there was or was not a particular statutory provision conferring power, or a function, on the Commissioner to send “complaint alerts” and to engage in the conduct on behalf of the Commissioner which the Commissioner accepted occurred in this case, including on Mr Hannath’s evidence, achieving the result of removing the post. The fact is that the Commissioner could not point to any express power or function in the legislative scheme of the OS Act, aside from the very general functions in s 27 of the OS Act, such as to “promote online safety for Australians” and “to support and encourage the implementation of measures to improve online safety for Australians”.

194    Instead before the Tribunal the Commissioner sought to rely on common law principles, derived from Clough v Leahy (1904) 2 CLR 139, concerning the ability of the Crown to make the same kind of inquiries as an ordinary citizen might make. The question of the Commissioner’s power, and the power of her delegates and officers, to engage in the conduct the Commissioner accepts occurred, was not a ground of appeal or ground of contention before this Court, and therefore we express no concluded view about these arguments.

195    Nevertheless, the question of the source of power for Ms Caruana’s actions on behalf of the Commissioner cannot be entirely disentangled from the Lawlor inquiry required of the Tribunal.

196    It should be recalled that the conduct found by the Tribunal to have occurred as part of “giving a notice” included representations made on behalf of the Commissioner (see the President’s reasons at [155](b)) that the “Legal Basis” for the communication was “Section 7 Online Safety Act 2021”; the description of the “Organization” as “eSafety Commissioner”; the description of the “Authorizing Jurisdiction” as Australia; and Ms Caruana’s affirmation to X that she had any required legal authority to submit the removal request.

197    In that sense the question, put in a non-technical way is – what precisely was Ms Caruana doing in her communications with X? In acting on behalf of the Commissioner, a statutory office holder, Ms Caruana was plainly exercising some kind of administrative power or performing some kind of administrative function. The Commissioner submitted to the Tribunal that:

the jurisdictional issue before this Tribunal does not turn on – or raise the issue of whether – the sending of the complaint alert was beyond the power conferred by the Act. Rather, the question for the Tribunal is whether the Commissioner purported to exercise the power conferred by s 88 of the Act by sending the complaint alert.

198    Framing the issue that way advanced the contentions of the Commissioner, particularly her emphasis on the weight to be given to subjective intention, but this was not the only way the issue could be framed. The Tribunal, legitimately in our opinion, took a wider view, based on Lawlor and based on evidence before it which it accepted contrary to the contentions of the Commissioner, as it was entitled to do.

199    Plainly there was an active decision by Ms Caruana to engage in the communication with X, and the Tribunal’s findings about what constituted that engagement stand as the factual findings. Plainly there was a written communication, and s 88 does not require or prescribe any particular form. Granted, as we have explained, a “notice” given this way may not be enforceable for a range of legal reasons if a statutory precondition is not met. But that is a different question to whether merits review was available, as Lawlor establishes.

200    The Tribunal and the parties were correct to focus on Lawlor, and on whether there had, in fact, been an exercise of power that gave rise to a reviewable decision, rather than to a legally valid decision.

201    We accept, as the Commissioner submits, that under the legislative scheme a consequence of the giving of a s 88 notice is potential exposure to sanctions for non-compliance with that notice. It may well be the case that, as with other statutory powers to which coercive consequences attach, the validity of the exercise of power would be central to whether the sanctions can be enforced. Absence of a statutory precondition may well lead to the consequence that non-compliance with a notice cannot carry the consequences the statute provides for, namely that the repository of the power cannot enforce the notice. The issue in such a circumstance is not so much whether there has been a decision to give what can objectively be characterised as a “notice” but whether the power has been validly exercised so that non-compliance can attract legal consequences. That is quite a different question from the characterisation exercise itself. The Tribunal was concerned with a characterisation exercise for the purposes of considering its merits review jurisdiction. While the Commissioner had administratively designed a form, and may have done so to avoid any potential arguments about validity and enforcement, it is not necessary for that form to be used for there to be a communication which may be correctly characterised as a s 88 notice.

202    The material point from Lawlor is merits review is not about validity; it is about a person affected by an administrative decision having an opportunity, where the Parliament has decided there should be such an opportunity, to seek a different tangible outcome on an exercise of administrative power. It should be emphasised here that the person affected, relevantly, was the respondent as the person who made the post and sought to communicate her views through this medium. It was the respondent who was – on her merits review application – prevented from engaging in that communication because of the decision of the Commissioner to approach X and ask X to remove the post. If objectively, what Ms Caruana did was purport to give a notice, then the whole point of Lawlor is that a person like the respondent who is affected by that decision should be able to seek to have it reversed on its merits.

203    For completeness it is convenient to make reference here to two other authorities. Lawlor was considered and applied in Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [39]-[41] and [52] by Gageler, Keane and Nettle JJ but in a different context. Nevertheless, nothing that was said there is inconsistent with our own analysis of Lawlor. Finally our attention was drawn to Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79; 262 FCR 41. In that case Kerr J (albeit in dissent) discussed (at [45]-[49]) interesting future scenarios where a decision might be made without any requirement for human mental processes. We do not need to discuss such possibilities for present purposes. We have also considered the analysis of Moshinsky and Derrington JJ, but nothing that they said at [140]-[153] is directly inconsistent with what we have said.

204    The Commissioner’s contentions under question of law 1 should be rejected.

Question of law 2 (grounds 2 and 3): Fact finding on the “Composite Alert”

205    In our opinion this question of law need not be determined, because it is clear that both the President (at [155]) and the Senior Member (at [269]) engaged in an alternative analysis by reference to the draft complaint alert contentions made by the Commissioner. In other words, the orders and decision of at least a majority of the Tribunal did not depend on the factual findings about the “Composite Alert”.

206    If we are wrong in reaching this conclusion, in our opinion this question of law should be answered adversely to the Commissioner. As the Respondent correctly submits, and the framing of the Commissioner’s grounds recognises, a challenge to the fact finding of the Tribunal must be either on the basis that identified factual findings are unsupported by any probative material, or that factual inferences drawn could not reasonably have been drawn from factual findings made by the Tribunal (grounds 3 and 5).

207    The Commissioner has not contended that Annexure B was a fabrication, and did not seek to cross examine Dr Kirkham to that effect, or any related effect. The Commissioner was entitled to submit the Tribunal should place little or no weight on the document, however weight was a matter for the Tribunal. As we have explained above, the Tribunal carefully weighed the probative effect of Annexure B, in particular by considering it in conjunction with other evidence to determine if there was corroboration or consistency, and reached findings that were open to it. Indeed, on the evidence before the Tribunal it was readily open for it to conclude that some form of composite alert was sent given that the draft complaint alert was cut and pasted into an electronic form with other fields to be completed; the factual debate before the Tribunal concerned which and how the other fields were populated.

Questions of law 3 (grounds 4 and 5): Fact finding on X’s understanding of the Commissioner’s communication

208    The same observation as relates to question of law 2 can be made in respect of this question of law. The Tribunal’s findings about X’s understanding of the Commissioner’s communication were not critical to the Tribunal’s decision on jurisdiction: see the reasons of the President at [143], the Deputy President at [245] and the Senior Member at [267]. As the Respondent submits, X’s subjective understanding of the Composite Alert was not a “determinative” consideration in the Tribunal’s conclusion that what Ms Caruana had done was properly characterised as the giving of a notice under s 88 of the OS Act: see generally Luu v Renevier (1989) 91 ALR 39 at 47.

209    Further, we accept the Respondent’s submission that (footnote omitted):

The structure of the Tribunal’s reasons demonstrates that, after first having concluded that the Composite Alert (objectively construed), communicated to X the substantive content of a removal notice, evidence of X’s state of mind served only to fortify its conclusions about that objective construction.

210    At [66] of the Tribunal’s reasons, the President sets out the substantive parts of the communication from X to Ms Baumgarten (with the President’s underlining for emphasis):

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 …

211    A communication of the kind sent by X to Ms Baumgarten is amply sufficient in the circumstances of cases such as the present to form part of the “rationally probative evidence” upon which the Tribunal was able to rely. The Commissioner referred to Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62 (Deane J); Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; 296 ALR 307 at [62] (Jessup J), [83]-[87] (Jagot J). Pochi was of course a deportation case, and a case where the applicant’s liberty was at stake. As Deane J explained in more detail on the pages to which the Commissioner refers, and describing what happened to Mr Pochi as “banishment”, the Tribunal needed to approach with care the factual allegations put by the Minister about Mr Pochi’s conduct. That was the context in which Deane J said:

any conduct alleged against Mr. Pochi which was relied upon as a basis for sustaining the deportation order should be established, on the balance of probability, to its satisfaction by some rationally probative evidence not merely raised before it as a matter of suspicion or speculation or left, on the material before it, in the situation where the Tribunal considered that, while the conduct may have occurred, it was unable to conclude that it was more likely than not that it had.

212    That is a long way from this case. In this case, X expressly communicated to Ms Baumgarten in writing. There is no basis to infer that X’s communication was undertaken other than accordance with its usual practices, as reflected in its terms of use, its guidelines and its portals, all of which together with this express communication provided an ample basis for the Tribunal that what X said in this communication was plain and direct evidence of its understanding of the character of the communication from the Commissioner and that X saw this as a legal direction to remove content.

213    As we explained earlier, the language of a “purported” exercise of power is not necessarily limited to the intention of the repository of the power. Hence the focus in Lawlor on objective circumstances. Depending on the circumstances, evidence concerning the reaction or understanding of the recipient or object of an exercise of power may well be capable of contributing to proof of a purported exercise of power; especially in circumstances where the subject matter of the exercise of power involves a level of coercion or expected compliance. In the current circumstances, as no more than part of the factual assessment made by the Tribunal, we see nothing legally erroneous in the approach taken by the Tribunal.

Conclusion

214    The appeal must be dismissed.

215    The parties agreed there should be no orders as to costs, and we accept that is an appropriate outcome in the circumstances. On behalf of all members of the Court, we express our gratitude to senior and junior counsel for the respondent, who appeared pursuant to a pro bono referral made under r 4.12 of the Federal Court Rules 2011 (Cth).

Associate:

Dated: 18 February 2026    

REASONS FOR JUDGMENT

HORAN J:

216    I have read in draft the reasons for judgment of Mortimer CJ and Beach J, and I agree that the appeal should be dismissed for the reasons given by their Honours. I add the following observations regarding the first question of law raised by the notice of appeal, in so far as it concerns whether and how the subjective intention of the decision-maker is relevant to the question of whether the eSafety Commissioner made a decision under s 88 of the Online Safety Act 2021 (Cth) (OS Act) to give a removal notice to the provider of the social media service known as X (formerly Twitter). If such a decision was made, it attracted the review jurisdiction of the Administrative Appeals Tribunal (AAT), and subsequently the Administrative Review Tribunal, under s 220(2) of the OS Act.

217    The first question of law asks whether the Tribunal had jurisdiction to hear and determine the respondent’s application for review. When read together with the accompanying grounds, and in the light of the Commissioner’s written and oral submissions, the first question is directed to whether the Tribunal’s finding that the Commissioner had in fact made a decision under s 88 of the OS Act was affected by legal error, either because the Tribunal misunderstood the provisions conferring jurisdiction on it or because such a finding was not open on the facts. In respect of the latter, save for her separate challenges to the Tribunal’s findings about the content of the communication made to X on 3 June 2024 (referred to as the “composite alert finding”) and X’s understanding of that communication and the reason for its subsequent actions in withholding the social media post from Australian users (referred to as the “state of mind finding”), the Commissioner’s arguments on the first question of law proceeded on the basis of the facts as found by the Tribunal.

218    In the grounds set out in the notice of appeal, the Commissioner relied in particular on the fact that the officer who sent the communication to X on 3 June 2024, Ms Caruana, had positively decided that the pre-conditions to the exercise of power under s 88(1) of the OS Act were not met, and accordingly she did not subjectively intend to exercise that power, nor did she believe that she was doing so.

219    In her outline of submissions, the Commissioner argued that the Tribunal’s misconstruction of s 220(2) of the OS Act had led it “to exclude from its analysis relevant facts, which demonstrated that there was never any decision to give a removal notice”. The alleged error was that the Tribunal wrongly focused on certain features of the communication which were reasonably understood by X as requiring the removal of the social media post, and disregarded the fact that Ms Caruana did not intend to give a removal notice but rather intended to “escalate” the complaint by alerting X to a possible breach of its terms of service. In other words, the Commissioner submitted that the Tribunal erred because “it treated as irrelevant the objective facts which showed that [Ms Caruana] had not made a decision to issue a removal notice … and instead based its decision on how the complaint alert might have appeared to X” (emphasis in original). The Commissioner sought to characterise this as an attempt to find a “constructive decision of the statutory kind”, as opposed to “an actual decision in fact made” by Ms Caruana to give a removal notice under s 88 of the OS Act.

220    The Tribunal accepted that Ms Caruana had considered that the social media post was not cyber-abuse material targeted at an Australian adult, so that the statutory pre-conditions for giving a removal notice under s 88(1) of the OS Act were not met. It was also common ground that Ms Caruana did not have delegated authority to give a removal notice to a service provider or to refuse to give such a notice. In those circumstances, the Tribunal found that, in sending the complaint alert to X, Ms Caruana did not subjectively intend to give a removal notice under s 88 of the OS Act requiring X to take all reasonable steps to ensure the removal of the post from its social media service.

221    Nevertheless, as Mortimer CJ and Beach J conclude at [192], the actions of Ms Caruana in sending the complaint alert clearly amounted to a “decision”, involving a mental process of reaching a conclusion which was externally manifested by sending the communication to X: see Semunigus v Minister for Immigration and Multicultural Affairs (2000) 96 FCR 533 at [11] (Spender J), [55] (Higgins J), [101] (Madgwick J); Amir v Director of Professional Services Review (2022) 290 FCR 355 at [66] (Lee, Stewart and Cheeseman JJ); Pintarich v Deputy Commissioner of Taxation (2018) 262 FCR 41 at [140] (Moshinsky and Derrington JJ). The question for the Tribunal was whether that decision should be characterised as a decision (including a purported decision) in fact made under s 88 to give a removal notice. The question for this Court on the appeal is whether Ms Caruana’s subjective intention not to give such a notice precluded the decision from being characterised as such, or alternatively whether the Tribunal erred by treating that subjective intention as irrelevant to the characterisation of the decision.

222    The present case is not directly comparable to the facts addressed in Pintarich, in which an officer of the Australian Taxation Office sent a letter to the appellant communicating an outcome that “did not reflect [the officer’s] intentions” (at [152]). Contrary to what had been mistakenly conveyed to the appellant on a natural reading of the letter, the officer believed that he had not decided to remit any amount of general interest charge owing by the appellant. The officer had not turned his mind to the considerations relevant to an exercise of the statutory power to remit general interest charge, nor had he reached a conclusion on whether or not the general interest charge would be remitted. A majority of the Full Court (Moshinsky and Derrington JJ, Kerr J dissenting) held that, in the absence of any such mental processes on the part of the officer, the letter sent to the appellant did not constitute or manifest a decision to remit the general interest charge: see Pintarich at [144]–[145], [150]–[151].

223    The appellant in Pintarich was not seeking to review the asserted decision conveyed by the letter, but rather to prevent a subsequent exercise of the same power in a manner that was less favourable to him: see at [9]–[10] (Kerr J), [85], [120] (Moshinsky and Derrington JJ). While such a situation might have been susceptible to analysis by reference to principles of estoppel or contract, the appellant was refused leave to rely on such alternative grounds on his appeal: [86], [155]–[163] (Moshinsky and Derrington JJ, with whom Kerr J agreed at [78]). Nevertheless, the particular context in which the question arose in Pintarich as to whether the officer had made a decision to exercise the relevant statutory power was different from the context in which the issue arises in the present case. The majority in Pintarich was sensitive to the differing contexts in which such questions may be addressed, and specifically distinguished a line of authority in which “the issue concerned whether there was a ‘decision’ for the purposes of review legislation or whether a review body had jurisdiction”: at [148] (Moshinsky and Derrington JJ). An important distinction is that it would not have been sufficient for the appellant’s argument in Pintarich to establish that the officer had made a purported decision to remit general interest charge, and the majority therefore did not devote any attention to that issue.

224    Similarly, Moshinsky and Derrington JJ treated the formulation adopted by Finn J in Semunigus at [19] (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 “a general statement of what is involved in the making of a decision” which “may not be applicable in relation to all issues”: Pintarich at [148]. Their Honours described the circumstances in Pintarich as “unusual” and regarded the situation as “unlikely to arise very often”: at [152].

225    Similar observations might be made about the circumstances of the present case. As Bowen CJ noted in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338 at 345, “it would rarely be the respondent [in proceedings before the Tribunal] who was advancing an argument that there was an absence of power”. There may be a degree of artificiality in an application for merits review of a decision that the repository of the relevant power insists that it did not make, let alone a decision that it concedes it had no power to make. Ordinarily, it is unlikely that such a “decision” would be enforced, maintained or otherwise relied upon. The present circumstances nevertheless illustrate that, in so far as there was a purported decision to give a removal notice to X, that decision was capable of having practical consequences, by causing X to withhold the respondent’s social media post from Australian users, at least for a temporary period.

226    The purpose of the Tribunal’s review jurisdiction is to correct error in administrative decisions, including purported decisions. Although the Tribunal is not a court and does not exercise judicial power, it is equally concerned with ensuring that the decision was made within the limits of the power conferred on the decision-maker: see Brian Lawlor Automotive Pty Ltd v Collector of Customs (NSW) (1978) 1 ALD 167 (Lawlor AAT) at 177 (Brennan J). If the respondent to a review application were to concede that the decision was beyond power, or was otherwise not the correct or preferable decision, the Tribunal can set aside that decision, including by agreement between the parties to the review: see Administrative Review Tribunal Act 2024 (Cth), ss 103, 105. As Bowen CJ said in Brian Lawlor (at 343):

It is a feature of administrative decisions that once made, even if unlawful, they have consequences which may adversely affect citizens, until such time as they are withdrawn due to a change of mind on the part of the administrative official himself or are set aside by the determination of a court or tribunal. It appears to me that the [Administrative Appeals Tribunal Act 1975 (Cth)] is designed to give a simple remedy in all such cases.

227    The Tribunal found that, having regard to its objective features, the complaint alert reasonably conveyed to X that it was required to remove the respondent’s social media post: see Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59 (T) at [139]–[143] (Kyrou P), [240]–[244] (O’Donovan DP), [258]–[262], [267] (Manetta SM). The Commissioner does not directly challenge that finding. Further, to the extent that the Tribunal placed any reliance in this context on X’s understanding of the communication that it received and the causal relationship with the steps taken by X to “geo-block” the post in Australia, I agree that the Commissioner’s challenge to those findings should be rejected for the reasons given by Mortimer CJ and Beach J at [208]–[213].

228    The central argument advanced by the Commissioner is that Ms Caruana’s subjective intention not to give a removal notice under s 88 of the OS Act either prevents a conclusion that she made or purported to make a decision to give such a notice, or was wrongly excluded by the Tribunal as irrelevant to the determination of that question. Strictly speaking, it cannot be said that the Tribunal completely disregarded the evidence of Ms Caruana’s subjective intention. However, it is fair to say that her subjective intention was treated as having little if any bearing on whether a decision had in fact been made under s 88 to give a removal notice.

(a)    The President considered that it did not matter to his conclusion on jurisdiction that the Commissioner subjectively did not intend to give a removal notice (T [147]), and that it did not assist the Commissioner to establish that Ms Caruana subjectively considered that there was no power to give a removal notice and intended merely to alert X to a possible breach of its terms of service (T [148]). Accordingly, the conclusion that a decision was in fact made to give a removal notice under s 88 was reached “notwithstanding” the fact that the Commissioner did not intend the communication to X to be a removal notice: T [131].

(b)    Deputy President O’Donovan stated (at T [239]) that “in considering whether the statutory formulation conferring jurisdiction is satisfied, the subjective intention of the decision-maker is for the most part irrelevant” (emphasis added), and that it did not matter whether the decision-maker intended to exercise the decision-making power which is subject to review. Accordingly, he regarded the evidence given by Ms Caruana about her state of mind as “largely irrelevant to the question of jurisdiction” (emphasis added), noting that “[t]he 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 [OS Act]”: T [240].

(c)    Apart from expressing his general agreement with the President’s findings and conclusions, Manetta SM concluded (at T [255]–[256]) that “the decision-maker’s subjective intention is not relevant”, and (at [269]) that the complaint alert amounted to a decision under s 88 of the OS Act to give a removal notice “irrespective of Ms Caruana’s actual intention”. This arguably reflects a more black-and-white approach on this question, turning on whether the complaint alert was “objectively referable to, or ‘purports’ to be, an exercise of the power under s 88 to give a removal notice”: T [257].

229    In determining whether there was a reviewable decision within the jurisdiction conferred by s 220(2) of the OS Act, each of the members of the Tribunal relied on the seminal decision of the Full Court in Brian Lawlor. In that case, it was held that the jurisdiction conferred on the AAT to review decisions “in the exercise of powers conferred by an enactment” was enlivened by a purported decision to revoke a warehouse licence that had been issued under the Customs Act 1901 (Cth), even though there was no power of revocation under the relevant provisions of that Act. It was sufficient that there was a “purported exercise” of powers conferred by the enactment, a concept that included “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”: Brian Lawlor at 342 (Bowen CJ).

230    The decision in Brian Lawlor has long been regarded as authority for the proposition that the jurisdiction of the AAT (and now the Tribunal) extends to the review of “a decision in fact made, regardless of whether or not the decision is legally effective”: see e.g. Plaintiff M174/2016 v Minister for Immigration and Border Protection (2018) 264 CLR 217 at [39]–[40] (Gageler, Keane and Nettle JJ), [82], [90] (Gordon J), [95] (Edelman J). Because the principle derived from Brian Lawlor is concerned with questions of statutory construction, its application can be displaced in particular statutory contexts: see e.g. XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 289 FCR 256 at [48]–[49], [51], [58]–[59], [63]–[64], [66] (Rares J), [91]–[95] (Yates J), cf. at [106]–[108] (Snaden J, dissenting); SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at [25]–[26], [30], [36] (Black CJ and Allsop J). However, there is no doubt that the principle is applicable to the review jurisdiction conferred on the Tribunal by s 220(2) of the OS Act.

231    In the present appeal, as before the Tribunal, it was not in dispute between the parties that a decision under s 88 to give a removal notice can be reviewed irrespective of its legal efficacy. For example, the absence of delegated authority to make such a decision would render a removal notice invalid, but would not preclude the Tribunal from exercising its jurisdiction to review the decision to give the notice. Similarly, if the decision-maker failed to consider any of the requirements in s 88(1) that condition the power to give a removal notice, or if those requirements were not met (including if the decision-maker’s satisfaction of the requirement in s 88(1)(b) was not lawfully reached), an application could still be made to the Tribunal for merits review of the decision to give the removal notice. If the Tribunal forms the view that the power under s 88(1) is not enlivened, it can make a decision accordingly – for example, setting aside the decision to give the refusal notice and, if necessary or appropriate, substituting a decision to refuse to give a removal notice or otherwise to take no action under the OS Act: see generally Lawlor AAT at 176, 180–182 (Brennan J).

232    However, the Commissioner raises an anterior point that is directed to the question whether any decision was in fact made under s 88 to give a removal notice, rather than whether a purported decision that was in fact made was legally effective, in circumstances where the Tribunal accepted that Ms Caruana did not subjectively intend to exercise that power. In that sense, she did not make her decision “on the basis that [she was] exercising powers conferred by” s 88 of the OS Act: cf. Brian Lawlor at 342 (Bowen CJ). Rather, her subjective intention was to take other action that was not itself referable to s 88 of the OS Act, in the guise of an “informal” notice requesting the service provider to consider whether identified material that was the subject of a complaint was in breach of the provider’s terms of service, but without requiring the provider to remove the material. In this regard, it should be kept in mind that the Tribunal found that this intention was not reflected in what was reasonably conveyed by the complaint alert, and nor was it understood as such by X.

233    This precise situation was not directly addressed in Brian Lawlor, as was recognised in the Tribunal’s reasons for decision: see T [122], [125] (Kyrou P), [220] (O’Donovan DP), [253] (Manetta SM). In Brian Lawlor, the decision-maker purported to exercise an implied power that was referable to the relevant statute (Div 1 of Pt V of the Customs Act), although the Court held that no such power had been conferred. The decision in fact made, which purported to be a decision under the statute, was held to be reviewable. In the present case, Ms Caruana considered that she was not exercising the power to give a removal notice under s 88, which would give rise to a reviewable decision under s 220(2), but was instead exercising a power or performing a function that is said to have arisen outside of s 88 of the OS Act. The Commissioner therefore submits that there was not even a purported decision under s 88 to give a removal notice to X.

234    While I accept that the circumstances of the present case are different to those in Brian Lawlor, the underlying principles applied in that case lead to a similar result. In rejecting an interpretation under which it would be necessary to show that the decision was made “in the honest belief that it was in the exercise of powers conferred by the enactment”, Bowen CJ considered that it was “inappropriate to interpret s 25 [of the AAT Act] so as to make this dependent on the state of mind of the official”, noting that this “would, if adopted, appear to introduce a false issue and to impose upon the person aggrieved the burden of proving it”: Brian Lawlor at 343. Accordingly, his Honour considered that it was sufficient that the decision was made in purported exercise of powers conferred by the enactment, stating that “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”: Brian Lawlor at 343–344. The AAT “could then proceed to determine whether the decision was properly made in fact and law”: ibid. at 344. In reaching this conclusion, Bowen CJ acknowledged the possibility of “a rare case where a decision appeared to have no relationship to one of the Acts committed to the administration of the Minister or Department concerned”: ibid. at 343.

235    The approach taken by Bowen CJ in Brian Lawlor departed from that taken by Brennan J (sitting as the President) in Lawlor AAT. While Brennan J concluded that the Tribunal had jurisdiction to review a decision made without statutory power, his Honour formulated the “criterion of jurisdiction” in terms of “whether the decision is made in the intended exercise of a power conferred by an enactment, not whether the decision is made in the valid exercise of such a power”: Lawlor AAT at 179 (emphasis in original). This formulation should be understood in the context in which it was adopted. Justice Brennan was discussing circumstances where an attempt to exercise a statutory power fell outside the limits of that power, notwithstanding that “in good faith, the repository intended to act and believed he was acting within power”: ibid. The mischief identified by Brennan J was the inconvenience that would arise if the jurisdiction of the AAT was “made to depend upon the legal analysis of a statutory power and of its relationship with a decision, rather than upon the administrator’s perception of the power which he is exercising”: ibid. To avoid that outcome, his Honour adopted a broad construction of the phrase “made in the exercise of powers conferred by an enactment” in s 25(1) of the AAT Act.

236    On appeal, the majority of the Full Court in Brian Lawlor was less sanguine about the utility of a criterion that turned on whether there was an attempt in good faith to exercise the statutory power. Accordingly, Bowen CJ (at 343) rejected an approach under which the jurisdiction of the AAT would depend on the decision having been made in the honest belief that it was in the exercise of powers conferred by the relevant enactment. Rather, Bowen CJ considered (at 346) that the AAT –

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.

Similarly, Smithers J (at 372) did not accept that there was any place for a jurisdictional requirement “that the administrator should have acted honestly in the belief that his action was within his statutory power”. His Honour concluded (at 373) that “those decisions are reviewable which are made by an administrator in purported or assumed pursuance of the relevant statutory provision”.

237    Nevertheless, to conclude that jurisdiction does not depend on the state of mind of the decision-maker, in that it is not necessary to establish the existence of an honest belief that the decision was made in the exercise of the statutory powers in question, does not mean that the state of mind or subjective intention of the decision-maker can never be taken into account, together with or forming part of the objective circumstances, in determining whether there was a purported decision made under the relevant statute.

238    Ultimately, the test adopted by the majority in Brian Lawlor encompasses a decision that was in fact made in the purported exercise of power conferred by the relevant statute or statutory provision. The relationship between the decision and the statute under which the decision was purportedly made must be ascertained from the objective facts. The fact that the decision-maker did not subjectively intend to exercise the relevant statutory power is not determinative of whether a purported decision was in fact made which is reviewable by the Tribunal.

239    The concept of a “purported” decision is commonly used to refer to a decision that is made without or in excess of the limits of the authority conferred on the decision-maker by the relevant statute: see generally Plaintiff/S157 2002 v Commonwealth (2003) 211 CLR 476; cf. Migration Act 1958 (Cth), s 5E. In this regard, both Bowen CJ and Smithers J in Brian Lawlor declined to draw any distinction between those cases in which a decision was beyond power as a result of some species of jurisdictional error, and those cases in which there was no relevant statutory power to make the decision: Brian Lawlor at 345 (Bowen CJ), 364–365 (Smithers J). A purported decision is a decision in fact made, notwithstanding that it is not effective to bring about legal consequences: Lawlor AAT at 179–180 (Brennan J). It may often be the case that a purported decision will involve a subjective intention to exercise power under the relevant statute, but Brian Lawlor rejected this as a touchstone or essential element in establishing that a decision was in fact made that purported to be a decision under the statute. Putting to one side cases in which there is no relationship between the administrative action taken and the relevant statute under which reviewable decisions may be made, it remains necessary to consider whether there was a decision that was purportedly made under the statute, having regard to the objective facts and circumstances.

240    In my view, the Tribunal adopted the correct approach to this question in the present case. The President recognised that the Tribunal’s jurisdiction did not depend on the state of mind of the decision-maker, and considered that “the word ‘purported’ does not confine the principles in [Brian] Lawlor to situations where the decision-maker’s subjective intention or purpose is to make a particular decision falling within the AAT’s jurisdiction”: T [36]. His Honour continued (ibid.):

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.

241    Deputy President O’Donovan observed that the reference by Bowen CJ in Brian Lawlor to a “purported decision” under a statutory power was “not only talking about [a decision] which is consciously represented by its maker to have been made under that power”, but also “a decision which, when viewed objectively, appears to have been made under that power”: T [234]. The Deputy President stated (at T [238]):

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 [Macquarie Dictionary (online at 3 February 2025) “purport” (def 2)].

(Emphasis in original.)

242    Senior Member Manetta appeared (at T [256]–[257]) to treat a “purported” exercise of power as one that was “objectively referable to an exercise of the power”, whether or not it was intended as such by the decision-maker.

243    I would respectfully agree that, for the purposes of determining whether a reviewable decision was in fact made in the purported exercise of power under the relevant statute so as to attract the Tribunal’s review jurisdiction, it is not necessary to establish that the decision-maker subjectively believed or intended that such a power was being exercised.

244    Once it is concluded that the subjective intention of the decision-maker is not determinative, it was open to the Tribunal to consider whether a purported decision was in fact made by the Commissioner under s 88 of the OS Act by reference to the objective circumstances, including the features of the communication that was sent to X, such as the manner in which it was sent and what it reasonably conveyed. On the findings that were made by the Tribunal, the complaint alert went beyond a mere informal request that X consider whether the respondent’s social media post was in breach of its terms of service, and amounted to the imposition of an official requirement to remove the social media post or to withhold it from users in Australia. Ms Caruana’s subjective intention not to give a removal notice – based in part on her view that the respondent’s post was not cyber-abuse material such that the statutory preconditions in s 88(1) were not met – did not preclude a finding that there was a purported decision in fact made under s 88 to give a removal notice. That subjective intention was internal to the office of the Commissioner and was, as the Tribunal found, largely irrelevant to the question whether there was a reviewable decision within s 220(2) of the OS Act.

245    There are serious doubts as to whether the form and content of the complaint alert was capable of satisfying the requirements for a valid removal notice under s 88 of the OS Act. While the alert sufficiently identified the material that was the subject of the complaint (cf. s 88(2) of the OS Act), it did not contain any reference to s 88, nor did it explicitly set out what X was required to do in order to comply with its obligations under that section – namely, to take all reasonable steps to ensure the removal of the material from the service within 24 hours after the notice was given, or such longer period as may have been allowed by the Commissioner.

246    However, these are ultimately matters which bear upon the question of whether the decision was legally effective. While they may also be capable of affecting the characterisation of the decision, the Tribunal found as a matter of fact that the complaint alert reasonably conveyed a mandatory requirement to take all reasonable steps to remove the material from X’s social media service “as rapidly as possible” and that, there being no other source of power to impose such a requirement, it amounted to a decision made in fact to give a removal notice under s 88: T [131], [139]–[140], [143], [145]–[146] (Kyrou P), [241]–[244] (O’Donovan DP), [259]–[262], [264]–[265] (Manetta SM). These findings were based on the particular circumstances, and the same conclusion would not necessarily be reached in every case: cf. e.g., if it were made clear by the terms of the communication that it was not a removal notice given under s 88 of the OS Act and that it did not impose a legal requirement to remove the material in question. But the questions of law raised by the Commissioner’s notice of appeal do not enable this Court to revisit the Tribunal’s findings of fact on these matters.

247    For present purposes, it is unnecessary to consider the source of any power of the Commissioner to escalate complaints by requesting a service provider to review material for possible breaches of its policies or terms of service. I am inclined to the view that the Commissioner’s statutory functions and powers can extend to engaging with users and providers of social media and internet services by making requests that do not have immediate legal consequences, in order to promote online safety and to support and encourage the implementation of measures to improve online safety for Australians: see e.g. ss 27(1)(b), (c), (l), (m), (s) and 28 of the OS Act. For such purposes, “online safety for Australians” is defined in s 5 to mean “the capacity of Australians to use social media services and electronic services in a safe manner”. Such a construction of the Commissioner’s functions is indirectly supported by s 183(2)(zg)–(zl), which require the Commissioner’s annual report to set out details of the number of “informal notices given, and informal requests made” by the Commissioner in relation to a range of topics. However, it was unnecessary for the Tribunal to determine whether the Commissioner has power to give “complaint alerts” to service providers: T [130] (Kyrou P), [189] (O’Donovan DP). It is similarly unnecessary for this Court to determine that issue on the appeal.

248    Nor does any issue arise as to whether the Commissioner was employing complaint alerts to bring about the removal of material from social media services by indirect means, or to do so in a manner that would not be amenable to merits review by the Tribunal: cf. T [164] (Kyrou P). Notwithstanding the wide terms in which the “issue of significance” was identified for the purposes of referring the application to the Guidance and Appeals Panel under s 122(1) of the ART Act (see T [1]), it is clear that the Tribunal determined only the question whether the Commissioner had in fact made a reviewable decision within s 220(2) of the OS Act: T [4] (Kyrou P). Further, the Tribunal’s subsequent decision in the exercise of its review jurisdiction (Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 153) demonstrates that the substantive issues arising on the review were quite narrow, in circumstances where the Commissioner had conceded that the decision to give the removal notice was beyond power and legally ineffective.

249    For these reasons, the first question of law should be resolved against the Commissioner. I agree with Mortimer CJ and Beach J that the Commissioner has not established any error by the Tribunal on the second and third questions of law and their accompanying grounds. The appeal must therefore be dismissed.

Associate:

Dated: 18 February 2026