Key Takeaways

• Government decision-makers must be extra vigilant in any external correspondence, especially where such correspondence has the ability to influence an individual’s rights, interests or obligations. It is likely that such communication may amount to an exercise of statutory power, thus attracting merits and judicial review
• The subjective intention of a decision-maker, while relevant, is not determinative in the characterisation of whether a conduct or action amounts to a ‘decision’ made under an enactment
• The question of whether certain action amounts to a ‘decision’ made under an enactment is an objective one. If a conduct or action meets the statutory criteria or character of a decision under a statute, then the courts and tribunals may treat it as a ‘decision’ for the purpose of the legislation.

Facts

In 2024, Celine Baumgarten (Applicant) published a post on the social media platform X (formerly Twitter) relating to her concerns about a club established at a primary school. The post was authorised and finalised by an American organisation. The eSafety Commissioner (Commissioner) issued, what she described as, a ‘complaint notification’ to X. While the ‘complaint notification’ was not ostensibly issued pursuant to any provisions of the Online Safety Act 2021 (Act), and was framed as a ‘informal’ notice, X acted on the notification which led to the post being ‘geo-blocked’ in Australia, meaning the post would not appear to a user in Australia.

The Applicant sought review in the Administrative Review Tribunal (ART), arguing that the Commissioner’s ‘complaint notification’ amounted to a ‘removal notice’ issued under s88 of the Act, over which the Tribunal has jurisdiction to review pursuant to s220(2) of that Act. The Commissioner contended before the ART that the ‘complaint notification’ has no statutory basis and did not amount to an exercise of power under s88 of the Act.

The ART, after having regards to the nature and content of the notification, X’s reaction to the notification and the evidence of the Commissioner’s delegate who sent the notification, agreed with the Applicant finding that the ‘complaint notification’ was reviewable, because it had a substantive content of a removal notice under s88 of the Act and had practical effect on the Applicant’s interests.

The Commissioner lodged a statutory appeal against the ART’s decision. While there are three grounds of appeal, the ground that would be of most interest to government decision-makers was whether it was open to the ART to find that the Commissioner’s ‘complaint notification’ to X amounted to a decision made under s88 of the Act, thus providing jurisdiction for the ART to conduct a review.

Decision

The Full Federal Court dismissed the appeal (with Mortimer CJ and Beach J issuing a joint judgment and Horan J writing separately), relevantly finding that it was open to the ART to find that the ‘complaint notification’ meets the statutory criteria for a removal notice under s88 of the Act.

Central to the Full Court’s holding is the judgment in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; 41 FLR 338. There, the Full Court had to grapple with the question of whether the (then) Administrative Appeals Tribunal had jurisdiction to review a decision to revoke a warehouse licence issued to the respondent in circumstances where the relevant legislation did not provide for such power. It was argued for the Collector in that case that if there was no power to revoke, no ‘decision’ had been made such that the Tribunal had no jurisdiction to conduct a review. That was the context in which Smithers J famously remarked:

“If administrative decisions are to be subjected to review in the course of good government, exclusion from review of decisions made without power would remove from review those decisions most in need of review.”

In a similar vein, Bowen CJ in that judgment found that the Tribunal’s jurisdiction rested upon decisions in fact made, regardless of whether it was legally effective. Importantly, his Honour cautioned against placing too much emphasis on the state of mind of the decision-maker in determining whether there was an exercise of power under the relevant statute, and instead, preferred an objective test.

The plurality in Baumgarten referred to these remarks and held at [166]:

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.

Thus, the question of whether there was a ‘decision’ turned on what the ‘complaint alert’ objectively conveyed as opposed to the officer’s subjective belief which, while not irrelevant, was not determinative. The Full Court held by reference to the ART’s decision that it correctly understood the relevance of the officer’s subjective belief to its assessment, and that the ART’s finding that objectively the ‘complaint alert’ amounted to a decision under s88 of the Act was open to it. 

Observations

Two interesting observations arise from the judgment.

First, Baumgarten arguably represents an extension of the Brian Lawlor principle. It is uncontroversial that the Tribunal’s jurisdiction extends to decisions in fact made under an enactment, irrespective of its legality. The effect of Full Court’s judgment however is that any exercise of non-statutory executive power can theoretically become an exercise of statutory executive power, especially if it results in the alteration of a person’s rights or interests. On one hand, if a person’s rights and interests were affected by the action of a governmental entity, there is certain attraction in the view that such action should be subject to judicial or executive oversight.

On the other hand, there is an inherent danger in focusing on the impact of a governmental act in determining whether there was in fact a decision made under an Act, because it creates uncertainty in administrative decision-making and enforcement actions. The proposition can be tested this way: since the ‘complaint notification’ in this Baumgarten is in fact a removal notice under s88, does that mean X contravene the civil penalty provision in s91 of the Act when it reinstated the post? Further, since Instagram did not remove the post, has it contravened s91? Does it matter for the civil penalty provision that the Commissioner did not intend the ‘complaint alert’ to be a ‘removal notice’ under s88 of the Act? If there is contravention, at which point can it be said that the social media platforms have contravened the provision? These illustrate that the application of the principle emerging from Baumgarten can have complex and serious consequences for individuals and corporations alike.

Second, in the course of rejecting the Commissioner’s argument, the Full Court considered the judgment in Pintarich v Federal Commissioner of Taxation [2018] FCAFC 79; 262 FCR 41. In that case, an officer of the Australian Taxation Office sent a letter to Mr Pintarich communicating an outcome that “did not reflect [the officer’s] intentions”. The plurality in that case held that a ‘decision’ requires an actual mental process of reaching a conclusion. As such, an automated communication lacking such an actual mental process cannot constitute a ‘decision’. Only Horan J in Baumgarten engaged substantively with Pintarich, effectively finding that it can be distinguished because Mr Pintarich did not exercise any review rights in the Tribunal, and that the matter arose in a different  statutory context. Pintarich does not sit comfortably with Baumgarten. Indeed, the requirement of there to be an actual mental process for there to be a decision comes very close to placing emphasis on the subjective intention of the relevant decision-maker. Indeed, Kerr J, who dissented in Pintarich colourfully put at [64]:

"It would turn on its head fundamental principles of administrative law if a decision maker was entitled unilaterally to renounce as ‘not a decision’ (and not even a purported decision) something he or she had manifested in the form of a decision, by reason of a distinction between their mental process and the expression of their mental processes."

While Baumgarten has not overturned Pintarich, that judgment should now be treated with caution. In an age where government decision-making processes are increasingly being automated, it remains to be seen how the courts will reconcile Baumgarten and Pintarich.

Conclusion

Baumgarten confirms that anything that looks like an exercise of power under an enactment could attract ART’s jurisdiction of review, irrespective of the decision-maker’s subjective intent.

For government clients, the message is clear: assume that substance, not form or intent, will determine whether a conduct or action is reviewable. Ultimately, if a communication bears the hallmarks of an exercise of statutory power in substance, the Tribunal will place little weight on the label or intent of the decision-maker: if it functions like a decision, it is a decision.

For tailored advice on how Baumgarten may affect your agency’s practices, Moray & Agnew’s Government Team have the expertise to assist you. Further information is available from the authors, Max Gao, Partner, and Sarah Masluk, Lawyer.