Page:ESafety Commissioner v X Corp.pdf/4



KENNETT J:

1 On 16 April 2024 the applicant (the Commissioner) issued a notice (the removal notice) to the respondent (X Corp) under s 109 of the Online Safety Act 2021 (Cth) (the OS Act). Under s 111 of the OS Act, a person must comply with a requirement under a removal notice "to the extent that the person is capable of doing so". Section 111 specifies a civil penalty of 500 penalty units and is thus a "civil penalty provision" within the meaning of s 79(2) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (the RP Act).

2 Section 162 of the OS Act provides that a civil penalty provision is enforceable under Part 4 of the RP Act (see also s 111 of that Act). Section 82 of the RP Act provides for an authorised person to apply to a relevant court for an order that a person who is alleged to have contravened a civil penalty provision is to pay a pecuniary penalty. Section 121 of the RP Act provides as follows.

3 The Commissioner, who alleges that X Corp has not complied with the notice, seeks a declaration to that effect together with a pecuniary penalty under s 82 and an injunction under s 121(2). The proposed injunction is designed, in substance, to require X Corp to do that which (on the Commissioner’s case) the removal notice requires. eSafety Commissioner v X Corp [2024] FCA 499