eSafety Appeals Tribunal Ruling That Bars ‘Informal’ Takedown Alerts on Content

Australia’s eSafety Commissioner is attempting to overturn a decision by the Administrative Appeals Tribunal (AAT) effectively outlawing the use of “informal” complaints about content.

The Tribunal initially rejected this method three times over separate appeals with the judges finding eSafety could not avoid legal review by using these informal methods, rather than formal legal takedown notices under the Online Safety Act.

However, Inman-Grant has chosen to appeal one of those decisions, which centred on the use of a “complaint alert” sent to X over a post by activist Celine Baumgarten, which criticised the establishment of a “Queer Club” at a Melbourne primary school.

In an ongoing appeal before the chief justice and two other judges, eSafety’s barrister argued that the Tribunal should have considered the “intent of the decision maker” behind the complaint as part of its decision to rule out alerts.

“The decision maker is a human agent who made the communication and sent it, [so that] would be a decision,” said Tim Begbie KC.

But Justice Robert Beech-Jones said, very early on, that he was “not sure why you are going down this pathway.”

“Isn’t the … form they pasted it into part of the objective framework?” he asked—a point with which Chief Justice Stephen Gageler agreed.

“It was not just a draft complaint alert, it was pasted into a portal. We have to look at the composite, don’t we?” Beech-Jones asked.

“Why do you keep going on about the ‘intent’ of the decision-making?” he asked again, with Justice Christopher Horan interjecting to add, “If they are exercising a non-existent power?”

He went on to note that an “unusual feature” of the case is that “if the power was exercised, it was done on the basis they knew it didn’t exist and did it anyway,” which Begbie denied was the situation.

“Maybe the problem isn’t the Tribunal’s reasons, but eSafety’s practice?” the judge asked.

The commissioner is relying on past case law, which she claims arrived at a different conclusion from the Tribunal, but a key judgment dates back to 1979, predating the internet, so the court may decide it isn’t relevant.

Since eSafety lodged the appeal, they are presenting their case first, with counterarguments to come later. The court’s decision will be reported by The Epoch Times when it is given.