The Government is not the same as us: eSafety Commissioner v Baumgarten [2026] FCAFC 12
2.3.2026
When a government official tells you to do something, the instruction carries significantly more weight than when another person, without the cloak of government authority, issues the same instruction. If I tell a stranger not to smoke in a public place, they are very unlikely to stop smoking. For although I may be right about the harmful effects of their habit, I have no authority (at least in that context). But if the government puts up a ‘no smoking’ sign, or if a uniformed police officer, or, frankly, anyone in an official government uniform with perceived authority in the situation—such as a lifeguard on a beach or firefighter in the vicinity of a fire—tells a person to stop smoking, a fair number of people will obey. Certainly not all. But many, many more than if an ordinary member of the public issues the same command. This is so irrespective of whether the government official issuing the direction has actual legal authority to do so. Whether or not there is a law prohibiting smoking at that place, if the person issuing the order is perceived to have legal authority, then they are, in practice, exercising their special powers as a government official. And they ought to be treated as such and subject to public law accountability for the way they do so.
This was the issue on which the Full Federal Court case of eSafety Commissioner v Baumgarten ultimately turned. It was not a question, as the media has reported, of whether Celine Baumgarten ought to be free to name and criticise a teacher for organising a ‘Queer Club’ for primary school students, or the merits of her social media post doing-so. While the culture-war issues which began the case might be more sensationalist, the actual issue in the case is at least as important for society. Can government agencies circumvent public law accountability by claiming that they are not acting in an official capacity? Fortunately the answer, in this case and context, was ‘no’.
The e-Safety Commissioner’s powers and actions in this case
Australia’s eSafety Commissioner has a range of novel and extraordinary powers under the Online Safety Act 2021 (Cth) which are directed at protecting Australians from serious harm as a result of material published online. Chief among these are powers to issue ‘removal orders’ and ‘blocking notices’ for certain, very harmful, online material. In essence, the Commissioner can order social media platforms and other online platforms to take down material that the Commissioner considers to be bullying towards children, abusive, or depicting abhorrent violence, as well as intimate images published without consent.
The thresholds for the Commissioner to exercise these powers are high. For instance, the Commissioner can only issue a removal order for material relating to Australian adults if it amounts to ‘cyber-abuse’ (s 88). This is defined in s 7 as material that ‘an ordinary person would conclude…is likely to have an effect of causing serious harm’, and that ‘an ordinary, reasonable [Australian adult] … would regard as being, in all the circumstances, menacing, harassing or offensive’. The high thresholds for the exercise of these administrative powers reflects the impost their exercise places on freedom of speech. The Act clearly attempts to balance the right to free speech against the risks of seriously harmful online material. This balancing, and whether the Bill got it right, was debated at length during its passage through parliament.
The Baumgarten case reveals that the Commission has gone beyond its statutory mandate by working to limit online speech that it considers harmful or otherwise problematic, but that falls below the thresholds set in the statute. Ms Baumgarten posted a video on X which was critical of a Melbourne primary school teacher for organising a ‘Queer Club’ for students. The post named the teacher, but did not identify any children. The eSafety Commission received a complaint about the post. The complaint was considered by Samantha Caruana, an official within the eSafety Commission, who had no delegated authority to compel social media services to remove posts. Ms Caruana concluded that the post probably did not amount to ‘cyber-abuse material’ for the purposes of s 7 of the Online Safety Act. Despite her conclusion, Ms Caruana filled in a form on X’s ‘Legal Requests Portal’ asking that the post be taken down. The eSafety Commission’s request referred to s 7 of the Online Safety Act as authority for the request. Within one hour and 13 minutes of receiving the ‘request’, X took down Ms Baumgarten’s post. X informed Ms Baumgarten that her post had been geo-blocked.
Ms Baumgarten sought review of the eSafety Commission’s ‘decision’ to order the removal of her post in the Administrative Appeals Tribunal (which was replaced by the Administrative Review Tribunal (ART) during the course of her case). Section 220 of the Online Safety Act provides for a right to seek merits review of the Commissioner’s decisions to issue removal notices. But the Commission argued that Ms Baumgarten had no right to challenge the decision in the Tribunal, because it had not made a removal decision under s 88. Rather, the Commission argued, it had simply made a request of X that it remove the post. Thus, the Commission argued, that there was no ‘decision’ for the Tribunal to review and it had no jurisdiction.
Governments’ ‘common law capacities’ and ‘soft law’
It is fundamental to any version of the rule of law that governments are able to point to the source of their power to do anything they have done. Most of the powers of modern governments are sourced in statute. But there are also non-statutory sources of executive power, including the Constitution and, of particular concern here, the common law. Along with certain special governmental common law powers (often called ‘prerogative’ powers), governments are also said to have the same common law ‘capacities’ as any legal person. These capacities include entering into contracts and other agreements, deal with property, and undertake inquiries. The Commission argued that it was these common law capacities—which it shares with other legal persons—which it exercised in Ms Baumgarten’s case. It told the Tribunal that it had an ‘informal’ process which it used for the vast majority of complaints about online material, preferring to use ‘voluntary and cooperative mechanisms to fulfil their statutory functions rather than resorting first to their coercive powers’ (at [172]).
Governments do many things informally, relying on their common law capacities (or some other non-express source of authority, perhaps). They endorse non-binding industry codes of conduct; issue guidelines and policy statements; and provide information to the public about their rights, duties and obligations. They also do many things informally which they could otherwise do under statute, in the interests of efficiency. For example, government agencies may provide information to members of the public, on request, outside of statutory access-to-information schemes. When these actions are designed to regulate how way the public behaves or acts, they are often labelled as ‘soft law’.
Soft law can be just as effective a regulatory tool as legislation in many contexts. This is because, although it is not enforceable by government, there is a ‘general belief that soft law represents an officially-sanctioned norm’. In other words, it is precisely because of the perception of government authority that its exercise of informal powers is effective. Governments exercising these powers are not in the same position as you and me. When a government ‘inquires’ into something, or looks to enter into contracts, it has the authority and resources of the State at its disposal. This gives it far more power to compel people to act in the ways it would like, than a normal person would have. For instance, governments can influence the behaviour of companies by setting a policy of only contracting with companies who meet ethical or environmental standards. If a company wants the potential (significant) benefit of government contracts, then it must comply with these standards.
Importantly, the resources and authority that governments have when they act informally are because of the fact that they exercise functions on behalf of the public. There are a range of laws and policies which recognise that governments exercising informal and common law powers are in a different position from ordinary people. For example every Australian government has procurement guidelines which attempt to ensure that government contracting is conducted fairly and represents the best use of public money. But these rules are, for the most part, themselves ‘soft law’. That is, unenforceable.
It is almost certainly necessary that governments have these informal and common law capacities in order to function effectively. But they present challenges for government accountability. As Weeks has explained:
because soft law instruments have no formal consequences, their effect is asymmetrical. An aggrieved individual who has suffered loss by relying on the continued operation of soft law has far fewer remedial options with which to address its breach, alteration or withdrawal by its issuing authority.
The removal of remedial options is precisely what the eSafety Commissioner was advocating for in Baumgarten by arguing that they had merely acted ‘informally’, making the same type of request to X to take down the post as any ordinary member of the public could do. But quite clearly, on the facts, X had interpreted the Commission’s ‘request’ as a removal order. X’s interpretation is understandable. There was no record kept of Ms Caruana’s ‘request’, leading to factual disputes about its precise content. Ultimately it was accepted that Ms Caruana had used X’s dedicated Legal Requests Portal, recorded the Australian eSafety Commissioner as the relevant organisation making the request, and recorded ‘section 7, Online Safety Act 2021’ as the relevant ‘legal basis’.
A person on the receiving end of such a request might well view it as one made under the colour of government authority. X certainly appears to have formed that view, taking prompt steps to remove the post. And the views that Elon Musk has expressed about the eSafety Commission suggest his social media site would not have done so if X thought it had a choice. Any ordinary person who has ever tried to have anything removed from the internet knows full well how unlikely it is that the provider will even bother to acknowledge your request, let alone act on it. The fact that X removed the post in a little over an hour proves that it was read as an exercise of government power.
The ART’s jurisdiction
The ART has jurisdiction to review a ‘decision’ made in exercise of statutory powers, provided that the relevant statute says the ART can review that decision (ART Act s 12). The Online Safety Act gives the ART power to review a decision to give a removal notice (s 220). The difficulty in this case was that the Commissioner had not set out to issue such a notice, but instead had intended to make an informal request. Accordingly, there was an important preliminary question to be answered as to whether there was a ‘decision’ the ART could review.
The Baumgarten case was one of the first heard by the ART’s new ‘Guidance and Appeals Panel’ (or ‘GAP’). As its name indicates, the GAP was introduced in order to decide cases that might have a broader impact on administrative decision-making. The President referred the Baumgarten case to the GAP, because it raised the important question of whether an agency
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. (at [1])
The GAP, led by the ART’s President, Justice Emilios Kyrou, found that the Tribunal did have jurisdiction to review the eSafety Commissioner’s ‘decision’. The President explained that ‘having regard to its objective features, the notice amounts, as a matter of fact, to a removal notice under s 88’ (at [37]). The other members of the GAP broadly agreed. The GAP drew from the early case of Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, which found that a ‘decision’ need not be a legally valid decision in order to enliven the Tribunal’s review jurisdiction. All that was necessary was that a decision had ‘in fact’ been made. If the Tribunal was only allowed to review valid decisions, the purpose of establishing the Tribunal would be substantially undermined.
The Tribunal’s jurisdiction would also be substantially undermined if government agencies could avoid review by acting informally via ‘soft law’, rather than using their statutory powers. In the Appendix to Kyrou J’s reasons, his Honour made additional comments in ‘furtherance’ of the fact that one of the Tribunal’s statutory objectives is ‘improvement of the transparency and quality of administrative decisions’. His Honour commented that:
there is a difference between informal action by a regulator in relation to a person who is regulated where the action can only affect the rights or interests of the regulated person, and informal action that may directly affect the rights and interests of not only the regulated person but also third parties. That is particularly so where, as in the present case, the relevant legislation confers statutory rights of review on affected third parties where formal action is taken by the regulator and where the third parties might be deprived of those rights of review if the regulator acts informally rather than formally (at [172]).
Drawing on Brian Lawlor, the Tribunal held that the notice issued to X in this case broadly satisfied the objective features of a statutory removal notice under the Online Safety Act, even if there is no way that you could say that the notice was a valid and lawful exercise of that power. For starters, the Commissioner did not actually seem to have reached the required state of satisfaction that the post met the threshold of cyber-abuse material at the time of making the request. Notwithstanding its obvious defects, the notice ticked enough of the boxes of what a removal notice ought to look like that the Tribunal could regard it as a ‘decision’ that could be subject to review.
The Commissioner appealed to the Full Federal Court. The Commissioner argued that the GAP had erred in finding that the Tribunal had jurisdiction. The Commissioner’s arguments drew on two previous cases which had considered the meaning of ‘decision’ for review purposes: Semunigus v Minister for Immigration and Multicultural Affairs and Pintarich v Deputy Commissioner of Taxation. These cases found that a ‘decision’ required that there have been a ‘mental process of reaching a conclusion on the part of the decision-maker’. The Commissioner argued that Ms Carauna had not reached that state of mind (at [70]-[71]). The Federal Court held that the Tribunal had not made any error by not treating Ms Caruana’s statement of her subjective state of mind as determinative as to whether there was, in fact, a ‘decision’ (at [178]). This aspect of the Full Federal Court’s decision is important. It means that the ‘mental process’ element of ‘decision’ is not restricted to the subjective intentions of the decision-maker. This was controversial in Pintarich because it led the majority to conclude that an automatically-generated letter informing a taxpayer of his obligations, which did not reflect the officer’s decision-making intentions, was not a ‘decision’. Now, it seems that the reasonable, objective interpretation of an official’s communication will also be relevant in determining whether a ‘decision’ has been made.
The Commission’s other arguments on appeal, which involved the reasonableness and sufficiency of evidence to support its conclusions, also failed.
The broader importance of this case
While the central issue in the Baumgarten case—of the ART’s jurisdiction and the meaning of ‘decision’ in the context of merits and judicial review rights statutes—is perhaps quite technical, the case has some potentially important broader ramifications.
First, the case is an early illustration of the GAP’s new role in making decisions that will stand as a source of guidance for future decision-making. Section 110 of the ART Act requires members to ‘have regard to’ GAP decisions in future cases dealing with similar facts and issues, and the Baumgarten GAP decision has been relied on in later Tribunal decisions.
The Full Court’s reasoning has the potential to mitigate some of the particularly adverse interpretations of Pintarich. The case suggests that the question of whether there was a reviewable ‘decision’ can be approached in an objective way, considering not only the subjective intentions of the ‘decision’-maker, but also how their communication was, and would objectively be, understood by the recipient. On the facts of Pintarich, the result may well have been the same—on the evidence in that case it may not have been reasonable for the tax-(non)payer to believe that the letter he received was communicating a decision about the waiver of interest charges. But Baumgarten may mean that governments cannot circumvent statutory merits and judicial review rights by arguing that the output of an automated system is not a ‘decision’ because it did not involve a human’s ‘mental process’. If the ‘decision’ generated by an automated or AI system would reasonably be interpreted as an administrative ‘decision’, it may not matter that no human decision-maker turned their mind to it.
The Baumgarten case also, more clearly, limits the ability of government agencies to circumvent review by acting informally. The case neatly highlights the importance of this point from a democratic perspective. The eSafety Commissioner’s powers have been carefully calibrated in the Online Safety Act to balance the protection of individuals from online harm against free expression. The Commission should not be able to reach a different balance from that struck by Parliament, based on the personal views of its staff as to where that balance lies, by exercising common law or other informal powers or capacities.
Janina Boughey is a Professor in the UNSW Faculty of Law and Justice and the Director of the Gilbert + Tobin Centre of Public Law.
Suggested citation: Janina Boughey, ‘The Government is not the same as us: eSafety Commissioner v Baumgarten [2026] FCAFC 12’ (2 March 2026) <https://www.auspublaw.org/blog/2026/3/the-government-is-not-the-same-as-us-esafety-commissioner-v-baumgarten-2026-fcafc-12>