Boundaries of the State of Queensland

Unless specified otherwise, any Queensland legislation that refers to a location or thing is deemed to refer to a location or thing in Queensland.[1] Legislation can be express in its extraterritorial application, as is the case with provisions related to the design, manufacture and installation of building products where Part 6AA of the Queensland Building and Construction Commission Act expressly applies outside of Queensland to the full extent of the power of Queensland Parliament.[2] That wording can be compared to the licensing rules excluding individuals who were directors of insolvent companies undertaking work in “this or another State” in section 56AC(7) of the same Act to regulate the granting of licenses in Queensland. The latter was upheld as a lawful application of Queensland law to conduct in another State, due to the direct and substantial relationship to licensing in Queensland.[3]

Contracts or other instrument may also refer to the Queensland as a logical boundary of obligations. Common clauses with geographic boundaries include restraints of trade, appointments of distributors, and intellectual property licences.

Example:

The Manufacturer appoints the Distributor as its sole distributor within Queensland to resell the Products to Customers in Queensland.

The original boundaries of the Colony of Queensland were set out in letters patent made on 6 June 1859, and were subsequently extended by letters patent dated 13 March 1862. These boundaries take precedence over subsequent maps or documents.[4] Islands were further incorporated under a Proclamation and Deed of Transfer dated 22 August 1872, Proclamation of 10 October 1878, and the Queensland Coast Islands Act of 1879 (Qld). Thus in R v Jimmy it was held that the defendant could not be guilty of piracy on a vessel lying on a line drawn from one headland to another, and between the mainland and Palm Island.[5] As Palm Island had been at that time annexed by Government Gazette, it was held that the location formed part of the Colony of Queensland and it was held the felony of piracy did not apply to waters within the common law jurisdiction.

Moreton Bay is an important recreational and commercial coastal resource bounded by the Brisbane region to the East and Moreton Island and North Stradbroke Island to the West. Many points within the Bay are more than three nautical miles from land (the usual territorial limit of coastal water), and the laws of the State generally apply to the coastal waters of the State, the seabed and subsoil beneath, and airspace above.[6] However, all of the land and waters within Moreton Bay are unequivocally part of Queensland, as coastal waters are further defined to include any sea on the landward side of any part of the territorial sea.[7] The consequence of those references is that Queensland legislation applies to the whole of Moreton Bay.

Whether electronic activities take place within Queensland can be a more difficult question. A licence to use intellectual property solely within the State is unlikely to allow publication via the internet which is accessible anywhere, as creating a website that is published worldwide exceeds the scope of the rights granted.

Example:

The Company hereby grants to the Franchisee an exclusive, irrevocable, perpetual royalty-free licence to fully exploit the Intellectual Property within the State of Queensland.

Publication on a Queensland-based website may require geo-fencing technology to ensure unintentional access by external parties does not arise. Additionally, hosting of a website in cloud storage or servers located interstate or overseas may not be permitted. An extreme example of these issues arose when an Australian company selling boots via on-line orders to customers based in the United States was found to be in violation of the relevant trademarks registered in that jurisdiction despite not having any presence there.[8]

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[1] Acts Interpretation Act 1954 (Qld), s  35.

[2] Queensland Building and Construction Commission Act 1991 (Qld), s  74ABA.

[3] Vickers v Queensland Building and Construction Commission & Ors [2019] QCA 66.

[4] Queensland Boundaries Declaratory Act 1982 (Qld).

[5] R v Jimmy (1875) 4 QSCR 130.

[6] Acts Interpretation Act 1954 (Qld), s 47A;  Coastal Waters (State Powers) Act 1980 (Cth), s 5.

[7] Coastal Waters (State Powers) Act 1980 (Cth), sch 1; Petroleum (Submerged Lands) Act 1967 (Cth), sch 2 (repealed).

[8] Deckers Outdoor Corp. v. Australian Leather Pty. Ltd., 340 F. Supp. 3d 706 (N.D. Ill. 2018).