Will eKaren lose against Kiwi Farms?
The eSafety Commissioner recently sent a notice to Kiwi Farms banning a certain racist political manifesto. Some of it includes material that might encourage incitement to violence and potentially even a terrorist attack. Anyone reading it would take the view it is a horrible document.
Here's the thing - even if the underlying document is terrorist promotion material, that doesn't mean you can ban it entirely. The Classification Legislation at Section 9 makes this quite clear:

The notice came with a cover email, which said:
[The notice and Null's response are then quoted in full, check thread OP to see them]
One strange feature of the notice is eSafety have elected not to supply their reasons with it (despite having 9 months to write them, having first become aware of the content in June last year, according to their notice!). Rather, they have asked Kiwi Farms to request them. Given the justification for eSafety's so-called informal notice scheme is that it would be too much work to write reasons, this is odd to say the least. It was not an urgent matter. Rather, the Commissioner waited 9 months for some inexplicable reason.

That is permissible, but unusual. By contrast, the attempt to keep the notice hidden from the end users who posted the content is unlawful: a lesson which has not been learned in the Baumgarten case:

Such an exercise of eSafety risks being a contempt of the Administrative Review Tribunal, in that they seek to conceal notices to prevent them from being appealed. Now there is clear authority from the Federal Court, this is a very risky activity for eSafety staff members to engage in. Perhaps this explains why the decision maker in the eSafety Commissioner office chooses not to be named. eSafety recently abandoned an application to anonymise their staff in another matter, so this may get interesting, [sic]
Predictably, the relevant content is now a trending story on Kiwi Farms. So eSafety have succeeded in spreading the 'Class 1' material a lot more widely.

So onto the merits. How would Kiwi Farms (easily) win? The first thing to remember is that an application to the Administrative Review Tribunal 2024 (Cth) is de novo. It remakes the decision of the Commissioner afresh. So it is not an appeal against a decision of the Commissioner. We can see at least two grounds:
1. The decision is not the preferable one
Issuing such a notice is ineffective at promoting online safety. The likely result is to further spread the material, as well as in effect provide support to the cause in question. To put it another way, the exercise of discretion by the Commissioner to issue the notice was inappropriate, even if she had the power to do this.
All other cases have never got to the point of the Commissioner's discretion being re-exercised by the Tribunal. That is because the Commissioner has been found to have no power at all to issue the notice, and the notice was thus illegal. But this is a case where other powers could be exercised: for example, a notice could be issued to someone else (like a search engine), to minimise the risk in question.
2. The ban was of the content without considering its contextualisation
The problem is that Kiwi Farms is a forum. The posts in question publish the 'Manifesto' in question and then discuss it. The notice targets the entire manifesto. But that is not likely to be lawful. For example, I could post a video of Osama Bin Laden supporting the 9/11 attacks, with a post condemning it and contextualising it. The problem is that eSafety listed the PDF file, not the posts in question. This is a basic technical error.
In short, if Kiwi farms took the decision to the Tribunal (they should do this after applying for reasons - this is free and just a short email), then they would probably win. eSafety has messed up, yet again. Hopefully Kiwi Farms will get around to doing it. Based on our experience with the other eSafety cases, we can assure them it will create many 'LOLZ' to come.