REASONS FOR JUDGMENT
WHEELAHAN J:
1 The respondent is the eSafety Commissioner, which is an office established by s 26 of the Online Safety Act 2021 (Cth). In the digital era where access to online content, including by children, is ubiquitous, the Online Safety Act is an important piece of Commonwealth legislation. As the long title to the Act suggests, its objects are to improve and promote online safety for Australians. In furtherance of those objects, the Act confers extensive functions and powers upon the Commissioner that include the collection of information by coercive means and the civil enforcement of the Act. Under s 24 of the Act, the Commissioner must, as appropriate, have regard to the Convention on the Rights of the Child in the performance of functions conferred by or under the Act, and in relation to Australian children.
2 The applicant, X Corp, is a private company incorporated in the State of Nevada in the United States. X Corp is currently the provider of a social media service known as "X" through the domain "www.x.com". X was formerly known as "Twitter", and used the domain "www.twitter.com". The Twitter service was provided by Twitter Inc, which was a publicly traded company incorporated under the laws of the State of Delaware in the United States.
3 A central feature of this proceeding is that, on 15 March 2023, Twitter Inc merged into X Corp. Upon that occurring, Twitter Inc ceased to exist. These facts were not in dispute, as they were the subject of a statement of agreed facts that was received into evidence.
4 On 22 February 2023, and therefore before Twitter Inc ceased to exist, the Commissioner gave a notice (the reporting notice) to Twitter Inc under s 56(2) of the Online Safety Act. The reporting notice required Twitter Inc to prepare a report, in the manner and form specified in the notice, about the extent to which it had complied with specified applicable basic online safety expectations during the period 24 January 2022 to 31 January 2023. The notice required that the report be given by 29 March 2023.
5 Under s 57 of the Online Safety Act, a person must comply with a notice under s 56(2) to the extent that the person is capable of doing so. Under s 163 of the Act, a failure to comply with s 57 may be subject to an infringement notice under Part 5 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act).
