Twitter Australia Holdings Pty Ltd & Anor v Australian Muslim Advocacy... [2026] QCATA 27 | Case summary

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - GENERALLY - where preliminary issue of jurisdiction was decided by the Queensland Civil and Administrative Tribunal - where the Tribunal found a foreign entity and a related company was subject to jurisdiction of the Tribunal - where applicants raise issues of personal jurisdiction and subject matter jurisdiction in application for appeal to Appeal Tribunal - where applicants contend that service was not effected in accordance with the Queensland Civil and Administrative Tribunal Act 2009 and the Queensland Civil and Administrative Tribunal Rules 2009 - where the applicants contend the Anti-Discrimination Act 1991 does not have extraterritorial effect - whether the proceeding was commenced in accordance with the QCAT Act and QCAT Rules - whether the Tribunal has subject matter jurisdiction over foreign entities for impugned conduct under the AD Act

Australian Muslim Advocacy Network Ltd v Twitter Australia Holdings Pty Limited & Anor [2024] QCAT 201, cited

BHP Group Ltd v Impiombato [2022] HCA 33; (2022) 276 CLR 611, applied

Carter v Sercombe [1998] QADT 17, cited

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 276 CLR 216, considered

DJR v Commissioner of Victims Rights [No 2] [2020] NSWCA 242; (2020) 103 NSWLR 692, cited

Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, considered

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, cited

Gunter v Assistant Commissioner Wilkins & Anor [2021] QCA 274, cited

Laurie v Carroll [1958] HCA 4; (1957-1958) 98 CLR 310, considered

Owen v Menzies [2012] QCA 170; [2013] 2 Qd R 327, applied

Valve Corporation v Australian Competition and Consumer Commission [2017] FCAFC 224; (2017) 258 FCR 190, considered

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538, considered

Watkins v Queensland Building Services Authority [2013] QCAT 535, cited

S Hartford-Davis and S Hoare (instructed by Thomson Geer Lawyers) for the applicants

R Merkel SC and J Taylor (instructed by Birchgrove Legal) for the respondent

[1] The question is whether this Tribunal has jurisdiction to deal with complaints under the Anti-Discrimination Act 1991 (Qld) against Twitter Australia Holdings[1] and X Corp.

[2] Specifically: are the procedures and powers of the Queensland Civil and Administrative Tribunal, conferred on it by the AD Act, capable of applying to complaints of religious vilification against Twitter and X Corp?

[4] The Queensland Human Rights Commission referred the matter to the Tribunal. The Australian Muslim Advocacy Network Ltd[2] identified material it says was published by Twitter and/or X Corp that amounts to religious vilification under section 124A of the AD Act.

[5] The Tribunal determined it has jurisdiction to deal with the matter.[3]

[6] Twitter and X Corp appeal that decision. They raise 21 grounds of appeal.

The errors said to have been made by the Tribunal below

[7] Although Twitter and X Corp raise 21 grounds, they say that the Tribunal made two key errors:

(a) concluding that they had been validly served with the proceeding;

(b) concluding that the Tribunal has subject matter jurisdiction for a complaint of religious vilification under the AD Act.

[8] Twitter and X Corp also raise a new issue. They say that the Tribunal has no jurisdiction because the matter is one which falls within the jurisdiction of the Commonwealth. That arises because the Tribunal decided the matter had been properly served. To reach that conclusion, the Tribunal adopted a novel construction of the Queensland Civil and Administrative Tribunal Act 2009 and Queensland Civil and Administrative Tribunal Rules 2009.

[9] Twitter and X Corp say that construction was inconsistent with the Service and Execution of Process Act 1992 (Cth). They say that inconsistency gives the proceeding a federal character that can only be dealt with by a court of a State. They say this Tribunal is not a court of a State.

[10] There are also two applications to be dealt with as preliminary matters:

(a) an application by AMAN to remove Twitter as a party to the proceeding; and

(b) an application by Twitter and X Corp to amend their grounds of appeal.

[11] AMAN says it now only seeks relief from X Corp so there is no reason for Twitter to be a party to this appeal. It also says that a consequence of the removal would be the neutralisation of any Constitutional issues - if any exist.[4]

[12] Twitter initially appeared to agree to be removed. It filed evidence below suggesting it had very little to do with the subject matter of the proceeding:

10. As stated in the publicly available Twitter Terms of Service..., the entity that provides the Twitter Service to users living in Australia is X Corp, a company based in the United States of America ...

11. TAH is an entity separate and legally distinct from X Corp. TAH does not control or manage the Twitter Service or the terms, policies or rules associated with the Twitter Service. As a result, TAH has no capacity to respond to any of the matters raised in the Complaint, and cannot provide any of the relief sought by AMAN in its Complaint.

[13] However, Twitter now opposes being removed as a party. It says it is not appropriate for AMAN to seek to avoid a mischief by removing the party purportedly causing it.

[14] It seems unusual that a respondent to an appeal would apply to have the appellant removed as a party. It is not AMAN's appeal. It is also odd that Twitter opposes the application for removal in circumstances where it objects to jurisdiction in the first place.

[15] There must be good grounds to order the removal of a party in an appeal where it is their interests at issue and where they are the one who has appealed. AMAN has not established that good grounds exist.

[16] How any relief ultimately ordered, if any, ought to be apportioned, if at all, between Twitter and X Corp is an issue of fact to be decided on the evidence. That evidence is not before this Tribunal.

[17] Twitter was a party to the proceeding below and an Order was made against it. If Twitter now wishes to appeal that Order, it should not be denied that opportunity.

[18] AMAN's application of 12 December 2024 for Twitter to be removed as a party to the proceeding is dismissed.

The application for Twitter and X Corp to amend their grounds of appeal

[19] Twitter and X Corp also apply to amend their grounds of appeal.

[20] AMAN does not oppose the amendments which are matters of law - that is, amendments to grounds 1, 2(a), 2(bb) and 4(a).

[21] AMAN does however oppose the amendments which it says should have been, but were not, raised at first instance and for which evidence could have been tendered at that point - specifically, grounds 2(ba) and 3.[5] Those are:

2. Further to Ground 1 above, the Tribunal:

...

(ba) The Tribunal should have concluded that there had been no compliance with s 37 of the QCAT Act in circumstances where neither the "applicant" nor the Principal Registrar gave a copy of the referral to the X Corp. or Twitter Australia Holdings, either at all or in compliance with the requirements of r 39 of the QCAT Rules (with respect to Twitter Australia Holdings, insofar as consistent with the overriding requirements of SEPA); ...

...

Further or alternatively to Ground 2(c), the Tribunal erred in failing to apply the requirements of ss 8(4), 9, 10, 15, 16, 50 and/or 51 of the SEPA Act on the basis that the SEPA Act prevailed under s 109 of the Commonwealth Constitution such that Ch 7 of the AD Act, the QCAT Act and QCAT Rules (insofar as it they would otherwise be construed as authorising service of the referral outside of the Queensland law area displacing the SEPA Act requirements for service of initiating processes) is are pro tanto invalid.

[22] AMAN had notice of Twitter and X Corp's intention to seek leave to amend their grounds of appeal from 13 December 2024. Neither party sought leave to adduce fresh evidence.

(a) must observe the rules of natural justice; and

(b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and

(c) may inform itself in any way it considers appropriate; and

(d) must act with as little formality and technicality and with as much speed as the requirements of the QCAT Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and

(e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts.[6]

[24] The hearing was conducted based on the amended grounds. Any attempt to now disentangle the submissions would add a layer of complexity and technicality which would stifle the efficient resolution of the matter.

[25] Twitter and X Corp ought to have leave to amend their grounds of appeal. It is in the Tribunal's interest to have, as far as possible, the most relevant submissions which reflect, fully, the position of the parties.

[26] Leave for Twitter and X Corp to amend their grounds of appeal to reflect the Amended Grounds of Appeal in the Applicants' Submissions on Application for Leave and Appeal filed 13 December 2024, is granted.

[27] Leave must be granted for an appeal on a question of fact or a question of mixed law and fact.[7] Leave to appeal will not be granted unless there are reasonable prospects of proving there has been an error of law which, if left to stand, would result in a substantial miscarriage of justice, and that an appeal has reasonable prospects of success.[8]

[28] There is a reasonable case to be tested here. Failing to correct a decision about the jurisdiction of the Tribunal to deal with complaints of anti-discrimination against foreign entities would amount to a substantial miscarriage of justice. The appeal grounds raise substantive issues and are arguable.

Ground 1: Were the proceedings commenced in accordance with the legislation?

[30] The Tribunal concluded that Twitter and X Corp had been effectively served because the QCAT Act and QCAT Rules require notice, not service.

[31] Twitter and X Corp say that finding was wrong. They say the Tribunal should have found:

(a) the proceeding was not commenced in accordance with section 37 of the QCAT Act or rule 39 of the QCAT Rules;

(b) even if it was, it does not matter because rule 39 does not permit service overseas;

(c) compliance with SEPA was required (and not fulfilled); and,

(d) the State and Commonwealth statutory rules of personal service cannot be dispensed with by an order for substituted service because common law principles do not allow it.

[32] Twitter and X Corp say that because of these errors, the Tribunal was wrong to find that QCAT has personal jurisdiction over them.

[33] The various aspects of the service issue are a distraction from the essential points about jurisdiction. Or at least seem to be matters of technicality at the expense of substance.

[34] Twitter and X Corp have been aware of the proceeding from the outset, have suffered no disadvantage from a lack of knowledge of the proceeding and have been represented before the Tribunal at first instance and before the Tribunal here. Service is capable of rectification at this point.

Whether the proceeding was commenced in accordance with the QCAT Act and QCAT Rules (and whether that turns on rule 39)

[35] Twitter and X Corp say they did not receive a copy of the referral from AMAN (in accordance with section 37(2)) or from the principal registrar (in accordance with section 37(3)). They also say, even though it was sent to their lawyers, it was not "given" to them (in accordance with rule 39).

[36] Their arguments are of technical non-compliance: First, they did not receive it, but their lawyers did. Second, the principal registrar did not send it, but an acting case manager did. Third, the referral came to their attention, but it was not given to them.

[37] A proceeding of this kind starts when the principal registrar accepts a referral.[9] An applicant must "give" notice of the referral to the other parties, unless the principal registrar has given a copy to the other parties.[10]

[38] A party to the proceeding must file a statement of address for service and give a copy to the applicant,[11] unless the referral already contains the respondent's correct contact details.[12]

[39] If the respondent does not file a statement of address for service, the contact details in the referral is taken to be the respondent's statement of address for service.[13]

[40] Rule 39 provides a list of means by which a document in a proceeding may be given to an entity. It includes by delivering it personally, by emailing it if the entity has an address for service that includes an email electronic address, in another way provided for in the service practice direction, or in any other way directed by the Tribunal. Rule 39(2) describes what a "relevant address" is for the purpose of sending it by post or leaving it with someone.

[41] The Service Practice Direction[14] applies when a document is required to or may be given to or served on an entity personally. For other forms of service (i.e., other than personal service), it refers to rule 39.

[42] The Tribunal below accepted that notice was given to the Twitter and X Corp pursuant to rule 39 because:

(a) AMAN's complaint to the QHRC included contact details for the Twitter and X Corp's lawyers - being Mr Hawk, a solicitor in the Sydney office of White & Case;

(b) on 18 April 2023, an Acting Case Manager from the QCAT Registry sent an email to Mr Hawk attaching a copy of the Referral of the matter and stating, "... [f]or more information about progressing your case, please visit this link on the QCAT website".[15]

(c) when Twitter and X Corp responded to the referral (through their lawyers) before the Tribunal, they declined to provide a service address;

[43] There is no evidence to disturb those facts.

[44] Two matters were referred by the QHRC to the Tribunal - one relating to the complaints against Twitter Inc (now X Corp), the other relating to complaints against Twitter.

[45] Each referral contained the postal and email address for the lawyers engaged to represent Twitter and X Corp in the proceedings before the QHRC - the same lawyers who then appeared before the Tribunal at first instance to challenge subject matter jurisdiction.

[46] Twitter and X Corp say they did not file a statement of address for service in response to being given a copy of the referral by the Tribunal (as was required by rule 36(1)) because they did not accede to its jurisdiction. Nevertheless, after receiving the referral, their lawyers:

(a) registered their attendance with QCAT on instructions from the Twitter and X Corp on 5 May 2023;[16] and

(b) filed an application for directions and affidavit material in response to the referral noting their objection to subject matter jurisdiction only on 8 May 2023.

[47] One of the objects of the QCAT Act is to have the Tribunal deal with matters in a way that is accessible, fair, just, economical, informal and quick.[17]

[48] Considering those objects, the Tribunal was not wrong to find the proceedings were commenced, or that Twitter and X Corp were given copies of the referrals, in accordance with the QCAT Act and Rules.

[49] Twitter and X Corp by their legal representatives appeared before the Tribunal in response to the referral and commencement of proceedings. Those same lawyers represented Twitter and X Corp before the QHRC, and were the lawyers named in the referral from the QHRC to the Tribunal. Rule 36(3) is relevant.

[50] Their argument about a technical non-compliance ought not succeed because it is contrary to the context within which these matters are to be conducted by the Tribunal and the objects of the QCAT Act.

[51] Their argument that section 37 was not complied with because the principal registrar did not give (send) the referral to Twitter and X Corp is equally unpersuasive.

[52] Section 210 of the QCAT Act permits the principal registrar to delegate any functions they are vested with by the QCAT Act or an enabling Act to a registry staff member if they are satisfied the staff member is suitably qualified.

[53] Twitter and X Corp do not point to any evidence which suggests that the acting case manager that sent their lawyers the referral on 18 April 2023 did not have delegated authority.

[54] Twitter and X Corp's lawyers were given a copy of the referral by email from the Tribunal on 18 April 2023 in accordance with section 37. By emailing it to the lawyers engaged to represent them in the QHRC proceedings, the referral was given to Twitter and X Corp in accordance with rules 36(3) and 39.

[55] Twitter and X Corp say, even if it is found that they were given the referral, it does not amount to service because there are no provisions in the QCAT Act or QCAT Rules which permit "long-arm" service.

[56] They refer to the High Court decision in Laurie v Carroll.[18] That case concerned the suitability of an order for substituted service of an ordinary writ of summons where the defendant had left the jurisdiction to avoid personal service.

[57] AMAN says that Laurie v Carroll provides a common law protection to an overseas party against service unless there is a rule which displaces it, or the serving party has complied with the relevant common law or statutory requirements. It says that the statutory scheme here overrides the common law and displaces that protection.

[58] Twitter and X Corp say that the informality created by the QCAT Act and QCAT Rules is no reason to assume that Parliament intended for the Tribunal to have powers of service greater than the Supreme Court of Queensland or the District Court of Queensland. They say that the Tribunal should have regard to the processes for service in those courts - set out in the UCPR - as well as the SEPA to determine that service was not validly effected.

[59] They point to a decision of a single Member of the Tribunal which they say supports the proposition that the informality does not mean the Tribunal can dispense with well-established common law principles.[19] The principle appears to be correct, but that decision does not resolve the issue here.

[60] SEPA is concerned with service. Where the laws of the State for service contradict SEPA, SEPA prevails.[20] The QCAT Act does not contradict SEPA. The QCAT Act and QCAT Rules stand separately in these circumstances.

[61] That said, it is doubtful that Tribunal below was correct to conclude that the QCAT Act and QCAT Rules are a "scheme of their own peculiar species intended to ensure that certain unlawful conduct in Queensland is dealt with no matter where in the world the conduct began".[21] It is not necessary to go that far to resolve the contentious points here.

[62] The proceedings were commenced in accordance with the powers and procedures created by the QCAT Act and QCAT Rules and conferred on the Tribunal.

Whether compliance should be waived in any case

[63] AMAN submits, in the alternative, this is a "classic instance" to waive strict service requirements.

[64] Rule 41 of the QCAT Rules permits an order that Twitter and X Corp were taken to have been given the referral on the day it came into their possession or a later day.[22]

(a) for any reason, the referral was not given in a way provided in the AD Act or QCAT Rules but the referral or a copy of it came into the possession of Twitter and X Corp; and

(b) the Tribunal is satisfied that the referral came into the person's possession on or before a particular day.[23]

[66] Under section 61 of the QCAT Act, the Tribunal can also waive compliance with a procedural requirement under the QCAT Act or an enabling Act even if the time for complying with that requirement has passed.

[67] AMAN points to Twitter and X Corp being so capably represented at first instance and in this proceeding - and to them having participated in various steps before the QHRC prior to the matter being referred to the Tribunal.

[68] Pre-litigation conduct is not relevant. Twitter and X Corp were clear that their participation in the QHRC process was not a submission to jurisdiction or a waiver of rights to object to jurisdiction.[24]

[69] This is an appropriate circumstance to make an Order pursuant to rule 41 that Twitter and X Corp were taken to have been given the referral on the day it came into possession of their solicitors. Twitter and X Corp have been fully aware of the proceeding and have been at no disadvantage in appearing to defend their interests.

[70] Section 61 and rule 41 lend support to the proposition that the Tribunal ought not be concerned with technicalities in applying the Act and Rules for the commencement of proceedings.

[71] Pursuant to section 61 of the QCAT Act, compliance with respect to service on each of Twitter and X Corp, is waived. Pursuant to rule 41 of the QCAT Rules, Twitter and X Corp are taken to have been given the referral on the day it came into their lawyer's possession, being 18 April 2023.

Ground 2: Does QCAT have subject matter jurisdiction?

[72] The Tribunal determined that it has subject matter jurisdiction because the cause of the complaint arose in Queensland.[25]

[73] The Tribunal then stated conclusions "if it is necessary" that:[26]

(a) X Corp has a sufficient presence in Queensland by virtue of its conduct in Queensland whereby it contracts with subscribers and provides a service to them; and

(b) X Corp carries on business in Queensland.

[74] Separate findings were made about Twitter. The Tribunal found that:

(a) Twitter is sufficiently a part of the factual background to the matter to justify its presence as a party to the proceeding;[27] and

(b) because of this background, there is sufficient connection with Queensland to reject the submission that the Tribunal does not have subject matter jurisdiction to decide the complaint against Twitter.[28]

[75] It is not clear from the Tribunal's reasons whether the points identified in paragraphs [74] and [75] above were regarded as being cumulative or were alternatives to one another.

[76] Twitter and X Corp say that the Tribunal erred by:[29]

(a) approaching the determination of subject matter jurisdiction on the basis that it need only look at what was alleged in the referral (X Corp point 1);

(b) finding that the impugned conduct of X Corp took place in Queensland (X Corp point 2);

(c) finding that X Corp was "present in Queensland", either:

(i) by contracts with subscribers and the service provided to them; or

(ii) because it carries on business in Queensland.

[77] Twitter and X Corp go on to identify numerous sub-errors within those three points, including that the Tribunal:

(a) misconstrued X Corp's role by attributing to it a more active role than it deserved;

(b) misunderstood and misapplied the decision of the Full Federal Court in Valve Corporation v Australian Competition and Consumer Commission;[30]

(c) denied X Corp procedural fairness by conducting research after the matter was reserved and relying on the product of that research without giving the parties an opportunity to make submissions about it.

(a) it is now settled in several areas of law that in respect of communications, transmissions or publications made via the internet, the communication or publication is only complete or crystallised upon its "receipt" or download of the information in a comprehensible form;

(b) the Tribunal was correct to cite principles from several authorities in which an impugned act "passes across space to be completed in a place different from the place where it was initiated";[32]

(c) the Tribunal was correct to find the act of disseminating vilifying material was only complete at the time and place of download. If there are materials disseminated to, downloaded in and accessed in Queensland, it is at that point that the impugned "act" is complete.

[79] The starting point in addressing the territorial reach of the subject matter of a statute is to identify the "central focus" of the statute. In BHP Group Ltd v Impiombato & Anor,[33] Gordon, Edelman and Steward JJ said that central focus was identified:

as a matter of construction, based on subject matter and scope, and with a regard to internal indications and to avoiding improbable and absurd outcomes. It will be relevant to have regard to the purpose of the statute, the likelihood that the statutory purpose will be evaded if made to depend upon something readily altered at the instance of the parties, and the need to avoid an unduly restrictive approach whereby more than one factum is required to bear a connection.[34]

[80] The subject matter of the AD Act is found in its objects and purpose and section 6.[35] The Act is silent on any extraterritorial application.[36]

[81] The central focus of the subject matter is the person's conduct which is said to contravene section 124A of the AD Act.[37] The terms of the AD Act[38] indicate that for the Tribunal to have subject matter jurisdiction it is necessary both that the inciting person is a person "in and of Queensland" and the conduct impugned in the discrimination complaint must be conduct taking place in Queensland.

[82] That is the only means by which the AD Act would have application in this matter.

[83] Whether there is a contravention of section 124A is a matter for the trial at some future point.

X Corp point 1 - did the Tribunal need to look at more than what was alleged?

(a) paid no regard to evidence filed by it and Twitter;[39]

(b) misapplied the test for determining subject matter jurisdiction;[40]

(c) disregarded the evidence which bore upon the location of the conduct and relied solely on the allegations.[41]

[85] As to the alleged misapplication of the test, Twitter and X Corp say that the correct test is stated by the High Court in Citta Hobart Pty Ltd v Cawthorn.[42] The joint judgment of Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ, discusses the limits on the jurisdiction of a tribunal with respect to any matter meeting a description in sections 75 or 76 of the Constitution. The judgment states that an "objective assessment" is to be carried out.

[86] X Corp submits that the nature of that "assessment" depends upon the criterion for jurisdiction and will vary from case to case. It says that that the objective assessment will not always be possible by regard simply to allegations pleaded. It says that in some cases, it will be necessary to look at evidence of the factual basis of the controversy to permit an answer to that question.

[87] Here, the allegations pleaded were sufficient. It is not necessary to wait for additional or better evidence.

[88] To the extent that an objective assessment of the kind referred to in Citta Hobart is required, the allegations were a sufficient basis for that.

[89] As to the alleged error of paying no regard or disregarding the evidence, Twitter and X Corp's complaint is that their evidence was not preferred. They identify findings they say ought to have been made.[43] Those are open, but so are the findings that the Tribunal made.

[90] A finding of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlying it.[44]

[91] There is no basis to reject the factual exercise the Tribunal carried out.

[92] There is no error demonstrated in X Corp point 1.

X Corp point 2 - did the conduct take place in Queensland?

[93] Twitter and X Corp say that the "impugned conduct" did not take place in Queensland. They identify three sub-errors, being:

(a) the "effect" of conduct in Queensland is insufficient;

(b) there was no relevant conduct in Queensland;

(c) there was no relevant conduct of Twitter at all.

Alleged sub-error 1 - the "effect" of conduct in Queensland is insufficient

[94] Twitter and X Corp say the Tribunal erred by concluding that an activity overseas which has a causative "effect" in Queensland is sufficient to constitute conduct "in" Queensland. It cites the High Court decision in Voth v Manildra Flour Mills.[45]

[95] The reasons of Mason CJ, Deane, Dawson and Gaudron JJ are helpful. The discussion at pages 566-568 encompasses a similar situation. Having canvassed some scenarios about an act which passes across space or time before it is completed, the judgment states:

If a statement is directed from one place to another place where it is known or even anticipated that it will be received by the plaintiff, there is no difficulty in saying that the statement was, in substance, made at the place to which it was directed, whether or not it is there acted upon. And the same would seem to be true if the statement is directed to a place from where it ought reasonably to be expected that it will be brought to the attention of the plaintiff, even if it is brought to attention in some third place. But in every case the place to be assigned to a statement initiated in one place and received in another is a matter to be determined by reference to the events and by asking, as laid down in Distillers, where, in substance, the act took place.

[96] Here, in substance, the act took place in Queensland.

Alleged sub-error 2 - there was no relevant conduct in Queensland

[97] X Corp says its conduct of making the impugned posts available anywhere in the world (including Queensland) was not conduct that could be regarded as having occurred "in" Queensland.[46] It says that there was only one person who is responsible for the conduct: the person or entity that wrote and posted the impugned material. That person is in the United States.

[98] It says that the Tribunal erred in concluding otherwise. It says that error stemmed from reliance on misplaced analogies (the law of defamation and the law governing representations).

[99] The Tribunal clearly enough was influenced by cases about defamation[47] or representations.[48]

[100] X Corp says that the analogy with defamation is inapt because:

(a) the principle for determining the location of the tort of defamation for the purpose of choice of law rules is not apt when applying the territorial nexus required by s 124A; and

(b) defamation is fundamentally different from vilification because defamation is about damage to reputation, not any quality of the defendant's conduct.

[101] In support of both submissions, X Corp refers to the High Court decision in Dow Jones & Co Inc v Gutnick.[49]

[102] The analogy presented in that case assists the reasoning process here. The judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ discusses the challenge of publication on the internet, by web server in one place and the audience in another. In the context of tort law, the conclusion was:[50]

[43] Reference to decisions such as Jackson v Spittall, Distillers Co (Biochemicals) Ltd v Thompson and Voth v Manildra Flour Mills Pty Ltd show that locating the place of commission of a tort is not always easy. Attempts to apply a single rule of location (such as a rule that intentional torts are committed where the tortfeasor acts, or that torts are committed in the place where the last event necessary to make the actor liable has taken place) have proved unsatisfactory if only because the rules pay insufficient regard to the different kinds of tortious claims that may be made. Especially is that so in cases of omission. In the end the question is "where in substance did this cause of action arise"? In cases, like trespass or negligence, where some quality of the defendant's conduct is critical, it will usually be very important to look to where the defendant acted, not to where the consequences of the conduct were felt.

[44] In defamation, the same considerations that require rejection of locating the tort by reference only to the publisher's conduct, lead to the conclusion that, ordinarily, defamation is to be located at the place where the damage to reputation occurs. Ordinarily that will be where the material which is alleged to be defamatory is available in comprehensible form assuming, of course, that the person defamed has in that place a reputation which is thereby damaged. It is only when the material is in comprehensible form that the damage to reputation is done and it is damage to reputation which is the principal focus of defamation, not any quality of the defendant's conduct. In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed.

(citations omitted)

[103] By analogy, that supports the conclusion reached by the Tribunal.

[104] X Corp says that the analogy with the law governing representations is inapt because the Tribunal misunderstood and misapplied the decision of the Full Court of the Federal Court in Valve Corporation v Australian Competition and Consumer Commission.[51]

[105] Much time at the hearing was devoted to examining the decision in Valve.

[106] The Tribunal clearly derived assistance from Valve, identifying that it "offers good guidance in this matter" at [32] and then discussing it and relying on it at [33]-[43], [46] and [75]-[78]. The decision was considered and applied in two ways:

(a) in considering whether the conduct which occurred in Queensland was a basis for finding there is subject matter jurisdiction; and

(b) in considering whether X Corp had a presence in Queensland which might enable extraterritorial reach by the AD Act.

[107] Valve was about representations made by a video game company to customers who had purchased a video game online. The company was in the United States. Australian customers had purchased a game and interacted with the company's support services. The case was decided at first instance by Edelman J, then a judge of the Federal Court. The Full Court dismissed the appeal.

... Contrary to [the Decision Below at [42]], Valve Corporation does not establish that, as the Tribunal put it, any "act initiated in the United States, which passes across space, and is completed by means of a download in Australia, can in the case of misrepresentations be taken to have been made in Australia where a customer accesses and reads the representations on their computer." The principle in Valve Corporation is that, where "an issue arises as to the place of the representations, it is necessary to ask where in substance the representations were made." ...

(citations omitted; emphasis in original)

[109] The question in Valve turned on the construction of the Competition and Consumer Act 2010 (Cth). The Full Court discussed the authorities and concluded:

[134] In light of the above statements of principle, we consider that where it is alleged that a respondent has, by making representations on the internet, engaged in conduct that is misleading or deceptive or likely to mislead or deceive in contravention of s 18 of the Australian Consumer Law, or made false or misleading representations in contravention of s 29 of the Australian Consumer Law, and an issue arises as to the place of the representations, it is necessary to ask where in substance the representations were made. If the respondent is based overseas and has a relationship with customers in Australia, it is likely that representations addressed to those customers will be taken to have been made in Australia, being the place where the customer accesses and reads the representations on his or her computer. This is likely to be the case even if the representations are available to be accessed by consumers in other countries around the world. A distinction is to be drawn between the conduct proscribed by ss 18 and 29 and the causation of loss or damage. It is not necessary, for the purposes of these provisions, to establish loss or damage. It follows that, for the purposes of determining the place where the representations were made, it is not necessary to determine whether any loss or damage was suffered and, if so, the place of that loss or damage. The approach we have outlined is both consistent with the general principles discussed in the cases and reflective of the consumer protection purpose of the statutory provisions.

[110] An important element of X Corp's position is that it disagrees with the factual findings made by the Tribunal. X Corp says the Tribunal "ignored the relevant evidence".[53] That is unfair. In truth, once again, X Corp's point is that its evidence ought to have been preferred.

[111] It was open to the Tribunal to reason by analogy with reference to Valve. The ACL provides a separate and distinct legislative context, but the overarching principles are helpful.

[112] It was open to the Tribunal to reason that the impugned conduct was taking place in Queensland. Just as the representations in Valve were taken to have been made in Australia (being the place where the customer accesses and reads the representations on his or her computer), a similar conclusion can be drawn about the posts here.

Alleged sub-error 3 - there was no relevant conduct of Twitter at all

[113] Twitter and X Corp submits that Twitter is a defunct marketing services company which had no involvement in the matters said to constitute the "public acts".[54]

[114] The Tribunal concluded that Twitter is sufficiently a part of the factual background to the matter to justify its presence as a party to the proceeding.

[115] As canvassed above, AMAN sought to remove Twitter as a party.

[117] Twitter and X Corp have not demonstrated that the Tribunal's conclusion was in error. It is wrong to say that there was no evidence before the Tribunal to support that conclusion.

[118] There is no error demonstrated in X Corp point 2.

X Corp point 3 - was X Corp "present in Queensland"?

[119] X Corp identifies two errors, being the Tribunal's reasoning about:

(a) contracts with subscribers and the service provided to them; and

(b) X Corp carrying on business in Queensland.

Alleged sub-error 1 - contracts with subscribers and the service provided to subscribers

[120] X Corp submits that the Tribunal's conclusion that it contracted with users in Queensland was wrong. It cites authority for the proposition that the contract is made at the place where the acceptance is received. Here, that was outside of Queensland.

[69]... I accept that X Corp is a foreign corporation. I do not accept that it is not present in Queensland for the purpose of establishing subject jurisdiction. In my view the conduct or effect of conduct by X Corp in terms of causing a download of material, which occurs in Queensland is sufficient to connect X Corp to Queensland, that is to connect the subject matter of the AD Act to the geographically bounded polity of Queensland.

[70] By way of further connection with Queensland, and evidence of a presence in Queensland, I accept AMAN's submissions that X Corp provides a service in Queensland by making its website available to subscribers, and it enters into contracts with subscribers in Queensland to provide that service...

[122] The inference was drawn from the Twitter User Agreement and Twitter Privacy Policy, which were before the Tribunal below.

[123] The question of where the contract with a user is formed, is not determinative. The service is being offered in Queensland, to users here.

[124] The parties have not pointed to authorities that explain what it means for a person to be present in Queensland for the purpose of the AD Act.

[125] The evidence indicates that X Corp has no physical presence in Queensland - in the sense of having an office or any part of its technological infrastructure in the State. The description of how the service is provided to users in Queensland does not involve any servers or processors in Queensland.

[126] Separate from that, though, it can be inferred that X Corp is in Queensland because it is offering its service in the State, to users here.

Alleged sub-error 2 - carrying on a business in Queensland

[127] The Tribunal found that X Corp was in or of Queensland because it carried on a business in Queensland. That conclusion was based on research conducted after the matter was heard, and by considering the Australian Consumer Law.

[128] As to the first point, the reasons[55] reveal that the Tribunal obtained information from the internet. The parties were not offered an opportunity to make submissions about that material. X Corp submits that it was denied procedural fairness.

(a) the material sourced by the Tribunal was, in effect, in the evidence anyway; or

(b) if there was a denial of procedural fairness, it did not result in practical injustice.

[130] AMAN's submissions point to the evidence before the Tribunal that was to a similar effect. X Corp says that submission ignores the Tribunal's findings of a direct connection between monetizable users and X Corp itself - that is, a flow of revenue directly to X Corp. X Corp suggests[56] that there were other companies or entities operating as intermediaries between the two.

[131] It is not possible to be confident that there is a complete match between what the Tribunal relied on and what was in the evidence.

[132] The Tribunal is not bound by the rules of evidence and may inform itself in any way it considers appropriate.[57] That discretion is not without limit. The Tribunal must still observe the rules of natural justice and ensure that parties receive a fair hearing.

[133] As a matter of principle, it was wrong for the Tribunal to conduct its own research and then rely on what it has found. The parties ought to have been offered an opportunity to make submissions about the material.

[134] AMAN submits that the act of relying on the research did not cause a practical injustice - because the Tribunal had already found that X Corp was "in or of Queensland".[58]

[135] It is not possible to disentangle the Tribunal's reasoning to be sure that the product of the online research did not affect the outcome. Relying on the research caused a practical injustice. It was an erroneous approach.

[136] As to the second point - that the Tribunal relied on the provisions of the ACL to say that X Corp carries on a business in Queensland. The Tribunal referred to section 5(1) of the ACL and observations in Valve about that provision.

[137] I disagree that the Commonwealth statute has any application to deciding whether X Corp was "in or of Queensland", given that the AD Act does not have an analogous provision to section 5(1) of the ACL.

[138] The process of reasoning by which the Tribunal concluded that X Corp carries on business in Queensland was erroneous. That said, the conclusion itself can and should stand. An inference in support of that can be drawn on X Corp's own material, which accepts that there are users of the service in Queensland.[59]

[139] That inference is drawn with no reliance on the research done by the Tribunal below. It is not necessary to speculate about advertising revenue or the way in which the business operates. The service is operating in Queensland. That is enough.

[140] Twitter and X Corp have not shown an error of principle in the end result.

Ground 3: Has this become a federal matter that cannot be dealt with by QCAT?

[141] On 13 December 2024, the Twitter and X Corp issued a Notice of a Constitutional Matter under section 78B of the Judiciary Act 1903 (Cth). The nature of the constitutional matter was identified as being:

The justiciable controversy as between the Applicants and Respondents is one arising under the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act 1903 (Cth) and s 76(i) of the Constitution because the proceedings require determination of whether:

The construction given by the Tribunal of s 37 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and r 39 of the Queensland Civil and Administrative Tribunal Rules 2009 (Cth) results in inconsistency with ss 8, 9, 15(1), 48 and/or 50(1) of the Service and Execution of Process Act 1992 (Cth) within the meaning of, and for the purposes of, s 109 of the Constitution.

The Queensland Civil and Administrative Tribunal is or is not a "court of a State" within the meaning of:

a. s 77(iii) of the Constitution;

b. s 39 of the Judiciary Act 1903 (Cth); and

c. s 3 of the Service and Execution of Process Act 1992 (Cth).

[142] Twitter and X Corp submit that once the proceeding takes on a federal character, that cannot be undone - the issue cannot be severed.

[143] To succeed on the issue, Twitter and X Corp would have to be correct that:

(a) the Tribunal construed a State Act inconsistently with a Commonwealth Act; and

(b) QCAT is not a "Court of a State".

Twitter Australia Holdings Pty Ltd & Anor v Australian Muslim Advocacy Network Ltd [2026] QCATA 27

At a glance

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Judgment (262 paragraphs)

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Legislation Cited (5)

Cases Cited (8)