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 47 The qualifier "reasonable" should therefore be understood as limiting what must be done in response to a notice to the steps that it is reasonable to expect or require the provider to undertake. That understanding is consistent with how duties arising under the general law to take "reasonable" steps commonly work. Identification of the steps that are "reasonable" in this sense may involve consideration of expense, technical difficulty, the time permitted for compliance (which may be short: see s 109(2)) and the other interests that are affected. It is the last of these factors that is the focus of the parties' disagreement.

48 The argument that making the 65 URLs inaccessible to all users of X Corp's platform everywhere in the world is not a step that it is "reasonable" to require X Corp to perform in order to ensure that the URLs are inaccessible to Australian users (and therefore is not a step required by the removal notice) is powerful.

49 If s 109 of the OS Act provided for a notice imposing such a requirement, it would clash with what is sometimes described as the "comity of nations" in a fundamental manner. That concept, and the principle of statutory construction that arises from it, were recently discussed by reference to earlier cases in BHP Group Ltd v Impiombato [2022] HCA 33; 96 ALJR 956 at [23]-[32] (Kiefel CJ and Gageler J). It is not limited to the familiar presumption against the extraterritorial operation of statutes and is therefore not excluded here by the express provision for extraterritorial operation in s 23 of the OS Act. It is useful to set out their Honours' recitation of the authorities at [27]–[31].

Exposition of the common law presumption in play in Morgan v White and in Meyer Heine can be traced in Australia to Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association. There O'Connor J said:

"Most Statutes, if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being prima facie restricted in their operation within territorial limits. Under the same general presumption every Statute is to be so interpretated and applied as far as its language admits as not to be inconsistent with the comity of nations or with the established rules of international law: Maxwell on Statutes, 3rd ed, p 200."

Plainly, O'Connor J did not see the implied restriction on the territorial operation of a statute to which he referred in the first sentence as freestanding but rather as a reflection of the "general presumption" which he expressed in the second sentence with reference to Maxwell on Statutes. There, the presumption appeared in the precise terms adopted by O'Connor J under the heading "Presumption against a Violation of International Law".

In Barcelo v Electrolytic Zinc Co of Australasia Ltd, Dixon J expressed the presumption in the same language drawn from Maxwell on Statutes as had been adopted by O'Connor J in Jumbunna. His Honour did so interchangeably with language drawn from 19th century English authority to the effect that "[i]t is always to be

eSafety Commissioner v X Corp [2024] FCA 499