All entries on Feminist Legal Clinic’s News Digest Blog are extracts from news articles and other publications, with the source available at the link at the bottom. The content is not originally generated by Feminist Legal Clinic and does not necessarily reflect our views.
Women’s rights activist Celine Baumgarten had posted criticism on X of a “Queer Club” started at a Victorian primary school for eight to 12-year-old children who identified as LGBTQIA+.
Ms Baumgarten, who posts under the username Celine against The Machine and describes herself as bisexual, is a member of the group Gays Against Groomers, which aims to protect children from radical gender ideology.’
“Children should not be learning about sexualities at such a young, impressionable age,” Ms Baumgarten wrote in the post. “This is foul. Leave the kids alone.”
After receiving a complaint that the post had sought to “intimidate and harass” the teacher, the eSafety Commissioner sent a “complaint alert” to X, even though the commissioner’s own investigator had concluded the post did not meet the statutory definition of cyber-abuse material because it did not intend to cause serious harm.
X promptly geo-blocked Ms Baumgarten’s post in Australia, although it could still be seen elsewhere in the world, notifying her that it had been withheld because it “violates the law(s) of Australia”.
Ms Baumgarten challenged the notice in the Administrative Review Tribunal, claiming it was simply “censorship of the types of gay people the eSafety Commissioner personally disagrees with”.
The tribunal heard admissions from the commissioner’s staff about the regulator’s use of “informal” alerts when they lacked the statutory power to issue formal notices.
The commissioner attempted to have the case thrown out, arguing that because the request was “informal” and technically invalid due to a lack of power, it wasn’t a “decision” the tribunal had jurisdiction to review
On Wednesday the Full Court of the Federal Court unanimously upheld the tribunal’s findings against the commissioner.
The court rejected the commissioner’s argument that she could evade judicial scrutiny by acting outside her statutory powers.
The judges held that a government official cannot purport to exercise power, achieve a coercive result, and then claim immunity from review because they acted outside their power.