(a) On 29 May 2024, the applicant posted a tweet on the social media service X (previously known as Twitter), the contents of which are not presently relevant (‘Post’).
(b) The eSafety Commissioner (‘Commissioner’)[1] did not make a decision which was expressed to be the giving of a removal notice under s 88(1) of the Online Safety Act 2021 (‘OSA’)[2] in respect of the Post. That is because the Commissioner determined that not all of the statutory preconditions for the giving of such a notice were satisfied. It is not in dispute that, had a decision been made to give such a notice, it would have been a reviewable decision under s 220(2) of the OSA.[3]
(c) However, the Commissioner made a decision to send to X a written communication (described by the Commissioner as a ‘complaint alert’[4]) which, having regard to its objective features, amounts as a matter of fact to a removal notice requiring X to remove the Post even though it was not a legally effective removal notice under s 88(1) of the OSA.
(d) X interpreted the Commissioner’s communication as a legal requirement to remove the Post, and withheld it within Australia.
(e) The applicant made an application to the predecessor of the Administrative Review Tribunal (‘ART’ or ‘Tribunal’), namely the Administrative Appeals Tribunal (‘AAT’), for review of the Commissioner’s action on the basis that it constitutes a reviewable decision under s 220(2) of the OSA, namely, ‘a decision of the Commissioner under section … 88 to give a removal notice’.
(f) The Commissioner has contended that the AAT did not have jurisdiction to review her action.
- The sole question currently before the Tribunal is whether the Commissioner made a reviewable decision in respect of which the Tribunal has jurisdiction.
- For the reasons set out below, I have concluded that that question should be answered in the affirmative.
Source: Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) [2025] ARTA 59 (5 February 2025)