The eSafety Commissioner’s Latest Fail

There are some stories that come along and you’ve no clear idea how and where to start explaining it all. It should be easy — just the facts, ma’am — but that’s not always the case, and certainly not in regard to the latest blow to the ambitions and methods of  Commissioner Julie Inman Grant’s eSafety operation, as spelled out by the Administrative Affairs Tribunal in a ruling just handed down.

The case is Baumgarten and eSafety Commissioner (Guidance and Appeals Panel) , and as dressings down go this one’s beaut. But for some reason, despite being posted three days ago, a search of Google News turns up no recent coverage in the legacy media. This is astonishing, as not only has Ms Inman Grant had her ears pinned back yet again, the evidence quoted by Justice Emilios Kyrou AO lays bare, often in an unintentionally comic manner, what happens when arrogance and entitlement are indulged with large sums of public money and taxpayer-funded conference rooms in which to hold lots and lots of meetings.

It is, as noted, one heck of a story, and the best way to start it would be watching the X clip below, which  started it all on May 29, 2024.

🚨WOW🚨
It was brought to my attention that there
was a certain kind of club being run in a Melbourne Primary School, so I
looked into it.

A “Queer Club” was started in May
2023 at Montmorency South Primary School for students in Years 3-6.

For those overseas, that means… pic.twitter.com/Ws0PjPPDU6

—
Celine against The Machine 🇭🇲 (@celinevmachine_) May
29, 2024

As might be gathered from her delivery, Celine Baumgartner is a feisty sort, and she didn’t take kindly to her X post being geoblocked — hidden from Australian eyes, although not the rest of the world — at the suggestion of the eSafety Commissioner’s officious gnomes, so with the backing of Free Speech Australia she went after Ms Inman Grant’s censorship operation. And do notice, as the AAT opinion makes quite clear, that it was not a lawful order duly issued and subject to enforcement, rather a back channel communication of utter gas from deep within eSafety’s bureaucratic bowels.

Here is where Ms Inman Grant has a lot of explaining to do. Basically, if the the post couldn’t be taken down through the front door then the same goal could be achieved by other means.

After receiving the complaint, eSafety’s s web-crawlers concluded, somewhat ruefully one imagines, that Ms Baumgarten had done nothing that was actionable in alerting the public that a primary school in Montmorency, a Melbourne suburb, has been enrolling kids as young as eight years old in — wait for it — its lunchtime Queer Club. The decision could hardly have been otherwise, given the school ran its rainbow credentials up the flagpole in a newsletter to parents which explained Queer Club was “just like we have Lego Club”. Readers may here gain an insight in modern teaching, which in this instance is a striking blindness to the  difference between playing with colourful building blocks, which require the mating of male and female parts, and same-sex action, which does not.

At eSafety, as Justice Kirou quotes the testimony of its public servants, “they were ‘talking about complaints all day long’. There ‘would be a lot of talking and forums … and a lot of team meetings about things’ “. The result of such chin-wagging about the Baumgarten matter being that while the purportedly offending post might fit eSafety’s definition of “menacing, harassing or offensive material” it did not meet the second required condition, “the intention to cause serious harm”. Ticking just one box was insufficient to silence and suppress a critic of the notion that boy-on-boy/girl-on-girl action is an appropriate topic for third-graders

So eSafety’s efforts were stymied, right? Well not quite. Had both the ‘menacing’ and ‘harm’ boxes been ticked, an official recommendation would have gone up the chain of command to Luke Hannath, a lawyer who at that time served as the acting manager of eSafety’s “adult cyber abuse team” and had sole authority to issue legally binding take-down orders under Section 88 of the Online Safety Act. These are issued to social media outfits through specific “portals” that pipe eSafety’s demands straight through to content moderators, in this case those at Elon Musk’s X. Bear that in mind when reading the following exchange (emphasis added):

Tribunal: Is it correct that eSafety’s policy is that taking informal or less intrusive action is preferred if it achieves the Commissioner’s desired regulatory results?

Hannath: Yes.

As the ruling reveals, eSafety had issued only “three or four removal notices” in the previous 12 months, one of those being the eSafety Commissioner’s infamous bid to ban not just Australians but the entire world from watching a young Muslim’s attempt to kill an Assyrian Orthodox bishop as he said Mass at the altar. It did, however, generate “hundreds” of those preferred “informal or less intrusive” requests for posts to be deep-sixed. Back to the transcript:

Tribunal: In the context of this case, the desired regulatory result was that the applicant’s post would be removed from Twitter and Instagram?

Hannath: Yes.

Tribunal: And that was the desired result, even though the investigator had concluded that the material in question was not cyber abuse material targeting an Australian adult?

Hannath: Yes.

Let us pause here to mull what the Baumgarten case says about free speech in Australia: One eSafety investigator, Samantha Caruana, received a complaint and discussed the matter with her superior, Luke Hannath, the result of that conversation being the realisation there was nothing they could do within the limits of the Online Safety Act to stop parents and other interested parties learning children, most not yet old enough to have entered puberty, were being invited to join a primary school’s Queer Club. Likewise, there was no legal reason to compel the teacher’s identity be suppressed. So Ms Caruana, acting of her volition, alerted X that she had discerned a violation not of the law but of the platform’s own rules. The way this message was couched and delivered via the ‘take down portal’ led X’s moderators to believe it was eSafety’s lawful demand, as Justice Kyrou observes in his ruling,

that X must take all reasonable steps to ensure the removal of the Post within 24 hours.

And that is exactly what X did — at least until its own lawyers took a closer look and restored the Baumgarten post several days later.

Is this, one might wonder, any way for Ms Inman Grant to run her censorship shop?

Indeed, if individual eSafety investigators can take it upon themselves to raise a freelance fuss over social media posts that may well be subjectively distasteful but are not in themselves illegal, what’s the point in having an eSafety Commissioner in the first place?