eSafety Commissioner v Baumgarten [2026] FCAFC 12

44eSafety Commissioner v Baumgarten [2026] FCAFC 12 | Case summary | Zoe

[42]

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.
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.
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.
As a result of the communication from the Commissioner, X removed the Respondent's post.
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:
  1. 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.
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.
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.
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.
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.

[76]

The President then concluded at [146]-[148] (footnotes omitted):
1. 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.
2. 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).
3. 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.
The other Tribunal members reached a similar conclusion.
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:

[147]

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.
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).
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).
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".
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.
The President then finds the following key facts (with the President's underlining for emphasis, footnote omitted):
1. On 3 June 2024 at 7:18pm, the Commissioner received another email from X which stated that the Post 'has been withheld in Australia'.
2. On 3 June 2024 at 7:28pm, X sent an email to the applicant which relevantly stated:

[153]

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

[183]

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.
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.
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.
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.
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.
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.

[202]

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.
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.
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."
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.
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.
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.
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:

[211]

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.
The three important concepts identified by the Commissioner are (footnotes omitted):
1. 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.
2. 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.
3. 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.
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.
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.
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.
The Full Court in Amir (at [59]) endorsed the following passage from the reasons of the trial judge:

[219]

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.
It is clear from the Tribunal's reasons that on its own analysis of the evidence, it rejected both these arguments.
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.
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.
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.
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".
Instead before the Tribunal the Commissioner sought to rely on common law principles, derived from Clough v Leahy [1904] HCA 38; (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.
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.
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.
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:

[221]

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.
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.
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.
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.
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.
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] HCA 16; (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.
The Commissioner's contentions under question of law 1 should be rejected.

[234]

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.
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.
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.
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.
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.
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] FCA 240; (2000) 96 FCR 533 at [11] (Spender J), [55] (Higgins J), [101] (Madgwick J); Amir v Director of Professional Services Review [2022] FCAFC 44; (2022) 290 FCR 355 at [66] (Lee, Stewart and Cheeseman JJ); Pintarich v Deputy Commissioner of Taxation [2018] FCAFC 79; (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.
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].
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.
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].
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] FCA 21; (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.
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] AATA 49; (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):

[237]

(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].

[238]

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).
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] HCA 16; (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] FCAFC 91; (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.
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).
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.
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.
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.
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.
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 -

[241]

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.
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.
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.
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.):

[245]

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.
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.
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.
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.
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.
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.
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.
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.

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