Baumgarten v eSafety Commissioner uncovers how the Commissioner gets social media posts removed without fulfilling statutory steps
In a Federal Tribunal case, Baumgarten v eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59, Celine Baumgarten complained about the eSafety Commissioner’s notice to X to remove her post. The Commissioner argued that their notice was not a real notice under the Act, and not reviewable. This would allow them to avoid legal requirements under the Act itself and via other Acts. The Administrative Review Tribunal decided to consider this preliminary issue:
Whether, on the facts to be found by the Tribunal, an agency such as the respondent may avoid the jurisdiction of the Tribunal by achieving an outcome by taking steps which may not amount to a formal exercise of a statutory power instead of achieving that outcome by formally exercising a statutory power whose exercise is subject to review by the Tribunal.
The Administrative Review Tribunal disagreed with the Commissioner: the non-notice was, in fact, a statutory notice. The President, Justice Kyrou, gave the most detailed reasons for the Tribunal’s decision.
The Tribunal decided that the eSafety Commissioner made a reviewable decision. The Commissioner had argued that their communication to X about removal of a person’s X post was not a reviewable decision under their Act. In other words, they could avoid the legal requirements of the Act by taking action ‘outside’ it.
Online Safety Act
The Online Safety Act commenced in January 2022. It gives the eSafety Commissioner powers to do certain things. The Commissioner can issue removal notices to social media services under a section of the Act. These notices require the service to remove material (eg from a post), or else… Such notices can be reviewed by the Tribunal.
The Commissioner gave evidence that only 3 or 4 removal notices were issued in the previous 12 months. In contrast, a few hundred ‘complaint alerts’, (non-formal, non-statutory notices) were issued every year.
Kyrou J pointed out that where the Act refers to ‘cyber-abuse material targeted at an Australian adult’, there are two requirements of the Act. Put simply, one is: ‘intention to cause serious harm’. The other is that the material could be ‘menacing, harassing or offensive’.
As is the case in many other legislative frameworks in Australia, there are essential statutory preconditions to the issue of statutory notices.
For example, the Commissioner must be ‘satisfied’ that the material is or was ‘cyber-abuse material targeted at an Australian adult’.
These removal notices are very significant. Failure to comply with them can attract a civil penalty of 500 penalty units.
Commissioner’s non-notice argument
The Commissioner in this case argued that they did not make a decision under the Act. This meant that the Tribunal could not, therefore, review ‘it’. By arguing this, they were asserting that they could avoid the legal steps in the Act. They could avoid the rules around the notices. They could avoid scrutiny by the Tribunal.
But Kyrou J said that a decision of the Commissioner under the Act to give a removal notice actually existed if:
- ‘the Commissioner has in fact made a decision to give a notice to X’; and
- ‘the notice amounts, as a matter of fact, to a removal notice under (the Act) regardless of what was subjectively intended by the Commissioner… or whether the notice was legally effective under (the Act)’.
And that’s what happened in this case. The Commissioner’s ‘complaint alert’ was a removal notice, whether or not they intended it to be, and whether or not it was lawful.
Perhaps surprisingly, the Commissioner had no copy of the communication it made to X. That was because X had a ‘portal’ for receiving such communications. The Commissioner’s staff member Ms Caruana did not copy the information she placed on the portal (‘Legal Requests Portal’) in June 2024.
Kyrou J requested the Commissioner to go into X’s Legal Requests portal and take screenshots of usual fields.
This shows how inadequate the evidence was about the notice itself.
Group think
Kyrou J describes how the team in the Australian Communications Authority (the ACA, apparently on behalf of the Commissioner) made decisions in relation to removal notices. Key points were:
- only one person in the ACA team had ‘delegated authority to give… a removal notice to a service provider’;
- the members of the… team sat is a very close environment, communicating by word of mouth;
- they did not operate in silos;
- they were ‘talking about complaints all day long’;
- there ‘would be a lot of talking and forums… and a lot of team meetings about things’; and
- ‘The team issued complaint alerts to service providers when the Act’s requirements were not satisfied. They issued alerts when they considered that the material constituted a serious breach of the service provider’s terms of service.’
Interestingly, the Act gave power to the Commissioner to issue removal notices, not to a team of staff members. Generally speaking, you need a delegate of a decision-maker under an Act to make a decision under the Act. So it is not legally right to set up a group of non-delegate employees to make statutory decisions, no matter how many team meetings they might have. The Commissioner’s system of informal notices sidestepped the need for delegation. It avoided this important statutory step.
Another issue with ‘group think’ decision making is the risk of unlawful influence by others. I have written separately about this.
White knight hero
Kyrou J noted that:
- 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’. (para [83]-85).
No documents
As stated above, the Commissioner’s staff member Ms Caruana did not retain a copy of what she posted on X’s ‘Legal Requests Portal’. In the end, the parties disagreed about what information was on X’s portal, or who put it there. This meant that Kyrou J had to make a decision about ‘contested facts’.
What power did the Commissioner have or not have?
Kyrou J did not decide whether the Commissioner has power to issue ‘complaint alerts’ to service providers under the Act. But the Commissioner definitely ‘did not have power under (the Act) in the present case to give X any form of communication which compelled X to remove the Post or withhold it within Australia.’
The Commissioner’s arguments sought to avoid statutory requirements
Justice Kyrou made several ‘observations’ regarding some of the Commissioner’s submissions.
His Honour observed:
- The Commissioner inappropriately focussed on form rather than substance. Labels, forms and even legal authority are not necessarily requirements in this case for a ‘reviewable decision’. (Put another way, the Commissioner cannot avoid review by the Tribunal by pointing to the ‘form’ of the decision.)
- The Commissioner argued that the request did not give rise to any obligation to remove the Post. Kyrou J stated: ‘if the Commissioner, as the regulator responsible for online safety in Australia, makes a request to a social media service provider to remove a post and the provider responds by removing the post, that request could constitute a removal notice for jurisdictional purposes … In such a case, the end user’s rights are affected by the actions of the Commissioner even if those actions are undertaken without power and therefore could not give rise to a legally binding obligation to remove the post or any consequences for non-compliance.’
Kyrou J also pointed out that the Tribunal’s objective under its Act was ‘improvement of the transparency and quality of government decision-making’.
The Commissioner’s main method of achieving results in the community was the ‘complaint alert mechanism’, even though that mechanism had no express statutory basis. Complaint alerts will be based on ‘subjective and potentially undocumented views of individual investigators’, in contrast with the statutory formal notice procedure which includes a statement of reasons.
Further, Kyrou J stated that the Act had nothing to say about the Commissioner’s self-declared ‘advocacy role’ or the ‘providers’ terms enforcement role’. He concluded that ‘it is undesirable that there is no express statutory basis in the OSA for such alerts and roles’.
Kyrou J took the unusual step of recommending new or amended legislation ‘that takes into account:
(a) the rights and interests of persons who are the subject of online material;
(b) the rights and interests of end users; and
(c) the public interest in the powers of the Commissioner being clearly and unambiguously set out in the OSA,
and the actions of the Commissioner being transparent and accountable.’
Surely these issues are very important, particularly given that general rights to free speech in Australia are not enshrined in our Constitution.
(Deputy President O’Donovan and Senior Member Manetta essentially agreed with Kyrou J’s decision.)
Separate commentary on administrative law training
I will separately post on some key lessons arising out of this decision. I routinely raise these issues in my administrative law training courses. They are fundamental principles of lawful decision making.