13 October 2025
Justin Counsell eSafety ref: FOI 25177
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Applicant
Decision on your freedom of information request
I refer to your request to the eSafety Commissioner (eSafety) for access to documents under
the
Freedom of Information Act 1982 (Cth)
(FOI Act).
On 1 September 2025, you requested:
1. Legal Expenditures [
Part 1]
A breakdown of total legal costs incurred by the eSafety Commissioner from 1 January 2023 to [1
September 2025]
, including:
-
External legal fees (law firms, counsel)
-
Internal legal costs
-
Court filing or hearing fees
-
Settlement costs (if any)
-
Any reimbursements or cost orders (either awarded or paid)
2. Case Information [
Part 2]
A list of all legal actions or proceedings the eSafety Commissioner has been involved in (either
as applicant or respondent) during the same period, including:
-
Name of case and court/tribunal
-
General nature of the case (e.g. takedown dispute, regulatory enforcement, free speech
challenge)
-
Outcome of the case (win/loss/settled/withdrawn)
-
Whether a cost order was issued (and against whom)
3. Internal Assessments or Briefings [
Part 3]
Any internal documents, ministerial briefings, or legal memos assessing:
-
The anticipated cost or risk of initiating these legal proceedings.
-
Concerns raised about reputational, constitutional, or financial risk of these actions.
(request).
Decision
I am authorised under section 23(1) of the FOI Act to make decisions under that Act.
Email: xxx@xxxxxxx.xxx.xx
eSafety.gov.au
Parts 1 and 2
eSafety has created one document under section 17 of the FOI Act that responds to Parts 1
and 2 of your request. I have decided to release this document in full.
In relation to Part 1 of your request:
• I confirm that the figure with respect to ‘external legal fees’ includes costs incurred
with respect to both litigation and non-litigation matters, noting that your request for
Part 1 is not limited in its terms to litigated matters.
• You will see that we have not included a figure with respect to eSafety’s ‘internal
legal costs’. I am advised that these costs are not able to be accurately calculated
due to the nature and structure of the Legal Services Division and its predecessors
during this period.
• With respect to reimbursements and costs orders, as at the date of your request,
eSafety had been awarded costs in its favour in two proceedings where those costs
were (and still are) yet to be quantified and finalised. Accordingly, the figure for
reimbursements and costs orders reflects only
finalised orders, and will be offset by
final orders in eSafety’s favour from other proceedings in the near future.
• I also note that, since the date of your request, the Federal Court of Australia has
ordered the respondent in another proceeding to pay a $343,500 civil penalty, in
addition to eSafety’s costs. Similarly to the two proceedings referred to above,
eSafety’s costs in this matter are yet to be quantified and finalised.
Part 3
I have understood Part 3 of your request to be limited to documents about the risks of
actions ‘initiated’ by eSafety. I have identified 15 documents that fall within the scope of Part
3 of your request, which are listed in the attached schedule. I have decided to exempt all 15
documents from release in full under sections 42 and/or 47C of the FOI Act.
Pursuant to section 22 of the FOI Act, I have redacted information that is irrelevant to the
scope of your request. Consistent with our acknowledgement of 11 September 2025, I have
treated the names and other personal information of public servants as irrelevant to your
request.
Searches for documents The FOI Act requires that all reasonable steps must be taken to find documents relevant to
an FOI request. Searches for documents were undertaken by members of eSafety’s Legal
Services Division across internal eSafety systems including Microsoft SharePoint, Outlook and
Teams.
I am satisfied all reasonable steps were taken to find documents relevant to your request.
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Material taken into account
I have taken the following material into account in making my decision:
• the scope of your request
• the information contained in documents relevant to your request
• the relevant provisions of the FOI Act including sections 22, 42 and 47F
• guidelines issued by the Australian Information Commissioner under section 93A of the
FOI Act.
Reasons for decision
The attached schedule of documents provides a description of each document and my
decision on access for each one. The reasons for my decisions are outlined below.
Section 42 of the FOI Act – legal professional privilege
Section 42 of the FOI Act provides that a document is exempt if it would be exempt from
production in legal proceedings on the ground of legal professional privilege.
Documents 2 and 4 are memos and briefing notes prepared by eSafety’s in-house lawyers for
the dominant purpose of providing legal advice to members of eSafety’s senior executive
regarding various regulatory, enforcement and litigation matters under the
Online Safety Act
2021 (Cth). These documents were, and remain, confidential, and privilege has not been
waived. As such, I am satisfied these documents are subject to legal professional privilege
and exempt from disclosure in full under section 42 of the FOI Act.
Documents 3, 6, 7, 10, 13, 14, 15 and 16 include or comprise advice received by eSafety from
the Australian Government Solicitor (AGS) and barristers retained in relation to various
regulatory and enforcement matters under the
Online Safety Act 2021 (Cth), as well as
instructions provided by eSafety regarding the same. As privilege in these materials has not
been waived and they remain confidential, I am satisfied these documents are exempt from
disclosure in full under section 42 of the FOI Act.
Documents 5, 8, 9, 11 and 12 are documents prepared for the purposes of providing advice to
eSafety eSafety’s senior executive regarding various regulatory, enforcement and litigation
matters under the
Online Safety Act 2021 (Cth) which incorporate or summarise legal advice
provided by eSafety’s internal lawyers, AGS and/or counsel. These documents were, and
remain, confidential, and privilege has not been waived over the legal advice cited in these
documents. As such, I am satisfied that parts of these documents are subject to legal
professional privilege and exempt from disclosure under section 42 of the FOI Act. (For
completeness, I also consider that these documents are conditionally exempt in full under
section 47C of the FOI Act, discussed below.)
Documents 15 and 16 comprise internal communications between eSafety’s in-house lawyers
and eSafety senior management, and external communications with lawyers from AGS, made
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for the dominant purpose of providing and receiving legal advice and assistance concerning a
litigated matter. I am satisfied the communications were, and remain, confidential and that
privilege in these communications has not been waived. Accordingly, I consider that these
documents are subject to legal professional privilege and are exempt from disclosure in full
under section 42 of the FOI Act.
Section 47C of the FOI Act – deliberative material
Section 47C of the FOI Act provides that a document is conditionally exempt if its release
would disclose matter in the nature of, or relating to, opinion, advice or recommendation
obtained, prepared or recorded, or consultation or deliberation that has taken place, in the
course of, or for the purposes of, the deliberative processes involved in the functions of an
agency, a Minister or the Government of the Commonwealth.
Documents 5, 8, 9, 11 and 12 contain advice and recommendations, and matter relating to
advice and recommendations, relating to the management of regulatory matters under the
Online Safety Act, including litigation. This material formed part of the deliberative processes
of eSafety in determining appropriate regulatory, enforcement and litigation approaches to
deal with various matters directly relating to its statutory powers and functions.
I therefore consider that these documents are conditionally exempt from disclosure in full
under section 47C of the FOI Act.
Public interest considerations – section 47C
Under section 11A of the FOI Act, access to a document covered by a conditional exemption
must be given unless access to the document would, on balance, be contrary to the public
interest.
Section 11B(3) of the FOI Act sets out matters favouring access that must be taken into
account in considering whether release is in the public interest.
For the documents identified above as conditionally exempt, I consider that disclosure would
generally promote the objectives of the FOI Act and may enhance the scrutiny of government
decision making.
Against release, I consider that there is a strong public interest in allowing public servants to
express preliminary opinions and advice in a free, frank and candid manner, while
deliberating over eSafety’s management of potentially contentious matters. It is in the public
interest for these deliberations to take place in a secure and confidential environment.
On balance, I consider there are overriding public interest factors against the disclosure of
the material identified as conditionally exempt. I have therefore decided relevant material is
exempt under section 47C of the FOI Act.
I have not taken into account any of the ‘irrelevant factors’ set out in section 11B(4) of the
FOI Act.
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Please see enclosed information about your review rights.
Yours faithfully
Manager, Legal – Business Services
Attachments
1.
Schedule of documents
2.
Rights of review
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ATTACHMENT 1: SCHEDULE OF DOCUMENTS
Number
Date
Description
Decision on access
Exemptions or deletions
1
-
Document created under section 17 of the
Freedom of Information Act 1982 (Cth)
Release in full
-
Internal legal memo re potential enforcement
2
7 May 2023
for breach of Basic Online Safety Expectations
Exempt in full
s 42
(BOSE) provisions of
Online Safety Act 2021
3
27 June 2023
Legal advice from the Australian Government
Solicitor (AGS) re
Rotondo matter
Exempt in full
s 42
4
9 July 2023
Internal legal advice re enforcement options for
breach of BOSE provisions
Exempt in full
s 42
5
21 July 2023
Internal memo re BOSE enforcement
Exempt in full
s 42, s 47C
6
25 July 2023
Legal advice from AGS re BOSE enforcement
Exempt in full
s 42
7
20 August 2023
Joint counsel opinion re BOSE enforcement
Exempt in full
s 42
8
28 September 2023 Internal memo to Commissioner re BOSE
enforcement
Exempt in full
s 42, s 47C
9
18 October 2023
Internal briefing to General Manager, Regulatory
Operations re
Rotondo matter
Exempt in full
s 42, s 47C
10
20 November 2023
File note – telephone meeting with AGS re
BOSE enforcement
Exempt in full
s 42
eSafety.gov.au
Number
Date
Description
Decision on access
Exemptions or deletions
11
7 December 2023
Regulatory Advisory Committee meeting paper
re
Rotondo matter
Exempt in full
s 42, s 47C
12
1 February 2024
Regulatory Advisory Committee meeting paper
re
Rotondo matter
Exempt in full
s 42, s 47C
13
27 September 2024 Email from AGS re counsel advice in X Corp. s
109 proceedings
Exempt in full
s 42
14
11 March 2025
Joint counsel opinion re appeal in
Baumgarten
matter
Exempt in full
s 42
Internal eSafety correspondence and external
15
13 March 2025
correspondence with AGS re
Baumgarten
Exempt in full
s 42
appeal
Internal eSafety correspondence and external
16
13 March 2025
correspondence with AGS re
Baumgarten
Exempt in full
s 42
appeal
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Document Outline
