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 5 of the Act.


 * e. The Material can be accessed by end-users in Australia.

(f) The decision record also says:

In addition, I have considered the following circumstances:


 * a. On 15 April 2024, X Corp. were notified by email at kreen@x.com of the Material being accessible on X. A representative from X Corp replied advising their teams were across the situation and for eSafety to report the material using their Legal Requests form.

30 I pause here to note that, while the decision record would be admissible on a final hearing as evidence of the delegate's thought process, the same might not be true of a statement of reasons prepared, in the shadow of this litigation, under the ADJR Act or the AAT Act. If the Commissioner sees a need to prove further facts concerning the delegate's reasons, it may be necessary for that to be done by way of an affidavit.

31 The view which I take as to where the onus of proof lies in relation to the validity of the notice means that the decision record supports X Corp's case to the extent that it provides evidence of a misconception of a relevant legal test or an extraneous consideration being taken into account. To the extent that the decision record merely fails to disclose the taking into account of a mandatory consideration, it advances X Corp's position only if that failure leads to an inference that the consideration was not taken into account. Such an inference can be readily drawn in the case of a statement of reasons produced in purported compliance with a provision such as s 13 of the ADJR Act, because compliance requires an explanation of the reasons and reference to the evidence relied on: see eg Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] (Gleeson CJ), [35] (Gaudron J), [69] (McHugh, Gummow and Hayne JJ). More caution is needed when reasons are given voluntarily: Malek Fahd Islamic School Ltd v Minister for Education and Training (No 2) [2017] FCA 1377 at [42] (Griffiths J). In effect, silences in a statement of reasons are meaningful only if it appears that the statement was intended to be comprehensive. The decision record in the present case does not appear to be of that kind.

32 The decision record indicates that some attention was given to the test posed by s 106(1) as to whether material is "class 1 material". That test requires consideration of whether the material would be likely to receive an "RC" classification under the Classification (Publications, Films and Computer Games) Act 1995 (Cth) (the Classification Act); and [9(a)(iii)] of the decision record expresses itself in language taken from the relevant clause of the National Classification Code made under that Act (the Code). Neither the Code nor the Guidelines for the eSafety Commissioner v X Corp [2024] FCA 499