BHP Group Ltd v Impiombato (2022) 96 ALJR 956; [2022] HCA 33 stands as authority for the proposition that Part IVA of the Federal Court of Australia Act 1976 (Cth) permits representative proceedings to be brought in the Federal Court on behalf of group members who are not resident in Australia. There would have been serious implications for the class action scene in Australia had the result been different. That the High Court confirmed the answer reached by a single judge of the Federal Court and a Full Court of the Federal Court to a question about which, realistically, there could have been only one answer, could have meant it would be an authority relegated to the obscure corners of loose-leaf service and class action textbooks. What might see this case continue to be cited to an extent disproportionate to its immediate outcome – and what should tempt you to read further – is the following.

First, the judgments of the Court reveal a split within the High Court about the doctrinal foundation and thus the operation of the common law presumption against extraterritoriality. For Kiefel CJ and Gageler J this presumption is better understood as a presumption in favour of international comity: at [23]-[32] (Kiefel CJ and Gageler J). So understood, the common law presumption operates to confine legislation upon its proper construction if to do otherwise would be to operate on matters which are internationally considered to lie beyond Australia’s sovereign powers. Gordon, Edelman and Steward JJ did not decide the point but certainly hinted heavily at a different view, noting that the presumption had been applied to impose territorial limits on words of general operation without reference to the comity of nations or international law: at [71]. For them, the presumption applies to favour an interpretation of an enactment describing acts, events, matters or things in general words that confines their operation to acts, events, matters or things within the territory of the enacting polity: at [61].

Second, s 21(1)(b) of the Acts Interpretation Act 1901 (Cth) provides that, in any Commonwealth Act, ‘references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth’. In assessing whether this provision has any work to do (all members of the High Court) and (for Gordon, Edelman and Steward JJ) in assessing whether the common law presumption has any work to do, it is necessary to determine whether the statute in issue has a sufficient connection with the Commonwealth as geographically bounded polity: at [36]-[39] (Kiefel CJ and Gageler J), [59]-[63] (Gordon, Edelman and Steward JJ). That can be done at the level of the statute as a whole rather than at the level of individual statutory words or provisions: at [62] (Gordon, Edelman and Steward JJ).

Where such a connection can be discerned from, for example, the subject matter of the statute, no further territorial limits need be implied. Part IVA had a sufficient connection with Australia so as not to call for any additional territorial limit because it was concerned with the powers and procedures of the Federal Court, being an Australian court: at [39] (Kiefel CJ and Gageler J); [66]-[69] (Gordon, Edelman and Steward JJ).

Third, the judgments are useful to cite on a miscellany of subjects. Need a citation for the lack of utility in looking at international practice? See at [40] (Kiefel CJ and Gageler J). Need (yet another) primer on federal jurisdiction and the existence of a ‘matter’? See at [47]-[50], [55]-[56] (Gordon, Edelman and Steward JJ).

Jurisdiction got you down? See at [51], [57] (Gordon, Edelman and Steward JJ). Want words to be given a consistent meaning in a statute? See at [72] (Gordon, Edelman and Steward JJ). Want to justify considering practical difficulties? See at [75] (Gordon, Edelman and Steward JJ). One might say there is something in it for everyone. BN