Justice: “So they thought it was appropriate regulatory practice […] to issue an informal notice to X and then claim it is a non-reviewable decision?”
eSafety: “I’m not going to embrace that characterisation your honour…”
Justice: “Yes I can understand why you wouldn’t want to, but that’s nevertheless factually the case isn’t it?”
The full text is even more amazing:
And in a spectacular cameo arising from a very awkward attempt to explain the recent case of FSU Director Reuben Kirkham in Kirkham v eSafety Commissioner, the Court clarified that a complaint under s36(3) did in fact require a binary decision, to either issue a s88 notice (reviewable and subject to a statement of reasons) or to not issue a s88 (reviewable and subject to a statement of reasons).
Accordingly, wasn’t it objective evidence of the fact that the sending of the composite complaint alert to X via the legal request portal constituted a s88 (one of the two outcomes compelled by a complaint under the OSA)?
Justice Beach: “So they thought it was appropriate regulatory practice, not to make a decision to issue a notice, not to make a decision to refuse to issue a notice, but to issue an informal notice to X and then claim it is a non-reviewable decision?”
eSafety barrister: “I’m not going to embrace that characterisation your honour…”
Justice Beach: “Yes I can understand why you wouldn’t want to, but that’s nevertheless factually the case isn’t it?”
More at: Australia Court Questions eSafety’s Power in X Free Speech Appeal
https://reclaimthenet.org/australia-court-questions-esafetys-power-in-x-free-speech-appeal
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