11 There are two alternative claims made by X Corp on the supposition that it was required to comply with the reporting notice–
- (1) X Corp claims that the Commissioner allowed it an extension of time until 5 May 2023 within which to comply with the notice. That claim turns on what the Commissioner did, upon a correct understanding of the correspondence that took place, and upon the terms of s 56(2)(c)(ii) of the Online Safety Act. X Corp claims that if an extension of time was given, then it cannot be liable for any failure to respond prior to 5 May 2023, and that the infringement officer who issued the infringement notice could not have had a reasonable belief to that effect.
- (2) In addition, X Corp claims that the infringement notice was invalid on the discrete ground that its terms failed to comply with the requirements as to content in s 104 of the Regulatory Powers Act because the infringement notice did not specify the place of the contraventions.
12 Amongst other relief, X Corp seeks a declaration that it was not required to respond to the reporting notice, and a declaration that the infringement notice that was issued to it is void, inoperative, or invalid. The relief is sought on grounds under the Administrative Decisions (Judicial Review) Act 1977 (Cth), and in the Court's jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth) on the basis of claimed jurisdictional error.
The legislation in more detail
The Online Safety Act
13 Section 45 of the Online Safety Act authorises the Minister, by legislative instrument, to specify basic online safety expectations for a social media service. Pursuant to s 45, on 20 January 2022, the Minister made the Online Safety (Basic Online Safety Expectations) Determination 2022 (Cth).
14 Section 56 of the Online Safety Act provides that the Commissioner may give a written notice under that section to the provider of a social media service if there are basic online safety expectations for the service.
15 Under s 5 of the Act, a "provider" of a social media service has a meaning affected by s 238. Nothing turns on s 238 in this case because it is an agreed fact that Twitter Inc was the provider of the social media service until 15 March 2023, and that X Corp was the provider thereafter.
