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 Classification of Films 2012 (also determined under the Classification Act) is expressly referred to, and no reasoning process is set out. However, given the nature of the document, it is difficult to infer from this that there was no such reasoning process or that considerations necessary to the analysis were ignored. To the extent that things are not said in the decision record, therefore, this does not advance X Corp's case that the notice is invalid. Further, if my conclusion above as to where the onus of proof lies on this issue is wrong, omissions from the decision record do not prevent the Commissioner from proving the delegate's reasoning process in more detail (even though that might require the courageous step of calling evidence from the decision maker).

33 As to positive indications of error, X Corp relies on [7(f)] of the decision record, which notes that the incident shown in the stabbing video was "described as an act of terrorism" by the Premier of New South Wales and the NSW Police Commissioner. There is a strong argument that the characterisation of the attack depicted in the stabbing video as an act of terrorism, and the opinions of other persons as to this characterisation, are irrelevant to whether the video would be classified as RC. Briefly, the argument is as follows:

(a) RC is the highest classification for films: Classification Act, s 7(2).

(b) The matters to be taken into account in a classification decision, under s 11 of the Classification Act, "include":

(a) the standards of morality, decency and propriety generally accepted by reasonable adults; and

(b) the literary, artistic or educational merit (if any) of the publication, film or computer game; and

(c) the general character of the publication, film or computer game, including whether it is of a medical, legal or scientific character; and

(d) the persons or class of persons to or amongst whom it is published or is intended or likely to be published

(c) Films must be classified in accordance with the Code: Classification Act, s 9. Section 9A, which gives an automatic RC classification to a film that "advocates" a terrorist act, is not engaged by the mere depiction of such an act.

(d) Relevantly to a depiction of an act of violence, cl 3 the Code calls for an RC classification for films that:

depict, express or otherwise deal with matters of … violence … in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified …

eSafety Commissioner v X Corp [2024] FCA 499