Extra-territoriality of Victorian statutes

In Gluyas v Google Inc [2010] VCAT 540, an Australian blogger took Google to VCAT to complain about the content of a blog published in America on Google’s blogger platform.  The blog criticised people with the blogger’s disability. The blogger sought relief under the Equal Opportunity Act, 1995 (Vic.), claiming that Google had authorised or assisted the American blogger to discriminate against the class of persons suffering his disability, and against him personally.  The Act does prohibit such assistance and authorisation, but  Google applied to strike out the suit on the basis that the alleged conduct occurred in America, and the Equal Opportunity Act did not regulate the conduct of Americans in America, or in legal language, the Act did not have extra-territorial operation.  Deputy President McNamara agreed.  There is nothing startling about this application of well-worn principles, but this blog sometimes just restates things which people like me need reminding of from time to time.Google’s counsel’s arguments were summarised as follows:

  1. He submitted that the Equal Opportunity Act 1995 has no extraterritorial operation. He said the ordinary presumption attaching to the general words of an enactment of a parliament such as Victoria’s was that it intended to govern only matters within Victoria’s territory. He referred to Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309, 363 per O’Connor J; Boath v Wyvill (1989) 85 ALR 621, 636. This principle was, he said, codified by Section 48 of the Victorian’s Interpretation of Legislation Act 1984, which he said provided that in construing a Victorian statute ‘a reference to a … matter or thing should be construed as a reference to such … matter or thing in and of Victoria’. He submitted that the general words of the Victorian Statute should not be construed as extending to matters governed by foreign law. He referred to Wanganui-Rangitikei Electric Power Board v Australian Mutual Provident Society [1934] HCA 3; (1934) 50 CLR 581, 601 per Dixon J.
  2. He said these principles were exemplified with respect to the anti-discrimination jurisdiction in this Tribunal by two decisions of Deputy President McKenzie which applied the same principle, mainly Cooper v State of Victoria [2003] VCAT 589 and Reid v Jet Aviation Management AG [2000] VCAT 1848. The latter case, he said, indicated that a matter could fall beyond the reach of the Victorian Act even where certain elements of the dispute occurred within or were connected with Victoria. He said according to Deputy President McKenzie it was the treatment of the complainant by the alleged discriminator which was the key issue in determining whether the Victorian Act applied or not.’

Deputy President McNamara observed that:

‘… whilst Section 2(1) of the Australia Act 1986 empowers Victoria’s Parliament to legislate extraterritorially, so long as the extraterritorial legislation can be seen as for the peace, order and good government of Victoria, nevertheless no party has contended that enacting the Equal Opportunity Act 1995 the Victorian Parliament was purporting to legislate extraterritorially in exercise of their power granted and conferred to it by Section 2(1) of the Australia Act.’

The Deputy President accepted that the gravamen of the Australian blogger’s complaint was a failure to take down the American blogger’s blog.  The conduct required to take down the blog would have occurred in America, and so the failure to take it down, if established, must also have occurred in America.  That made this case different from Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575, a defamation case in which it was decided that material published in America on the internet and downloaded in Australia was published in Australia for the purposes of Australian defamation law.

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