Page:ESafety Commissioner v X Corp.pdf/15

 (e) The Guidelines focus on what is termed an "impact test". Material is to be classified as RC if its "impact" exceeds that of R 18+ material (which is not to exceed "high"). The Guidelines then add that films "will be refused classification" if they contain, relevantly:

Gratuitous, exploitative or offensive depictions of:

(i) violence with a very high degree of impact or which are excessively frequent, prolonged or detailed; [or]

(ii) cruelty or real violence which are very detailed or which have a high impact; …

(f) The classification regime is thus concerned with how an act of violence is depicted and whether the depiction is likely to offend standards of morality, decency and propriety. The language of the Classification Act, the Code and the Guidelines applies both to fictional works and to footage of real events. Material that advocates or provides instruction for terrorist acts is dealt with separately by specific provisions. Hence, whether a violent act has characteristics that attracts the label of terrorism is not relevant to how a film showing that act (and only the act) would be classified. A fortiori, whether the act has been described by others as an act of terrorism is also irrelevant.

34 However, while this argument has considerable force, it does not lead to the conclusion that the delegate erred. Section 109(1) is expressed in discretionary terms and, by force of s 33(2A) of the Acts Interpretation Act 1901 (Cth) (the Acts Interpretation Act), is to be read as conferring a discretion as to whether or not to issue a removal notice once the conditions in paras (a) to (d) are satisfied. The fact that the incident shown in the stabbing video has been identified by persons in authority as a terrorist act may confer particular meaning on the video in the eyes of some viewers. It may make the video more likely to be used as a recruiting tool or a means of intimidation by terrorist groups. This is at least potentially relevant to the exercise of the discretion in s 109(1). The decision record does not identify the particular stage of the decision-making process at which the description of the act as one of terrorism was given weight. Mere reference to the description as something that was taken into account therefore does not point to that matter having been erroneously considered as an aspect of the classification question.

35 Finally, X Corp submitted that the decision to issue the notice was vitiated by jurisdictional error in that it was unreasonable. The stabbing video, it was submitted, was simply not capable of being seen by a reasonable person as class 1 material. It is difficult to say much about this eSafety Commissioner v X Corp [2024] FCA 499