Aboriginal Areas Protection Authority v Director of National Parks

[2022] NTSCFC 1

CITATION:Aboriginal Areas Protection Authority v Director of National Parks [2022] NTSCFC 1

PARTIES:CHIEF EXECUTIVE OFFICER, ABORIGINAL AREAS PROTECTION AUTHORITY

v

DIRECTOR OF NATIONAL PARKS (ABN 13 051 694 963)

And

ATTORNEY-GENERAL OF THE COMMONWEALTH

TITLE OF COURT:  FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  ON REFERENCE from the Supreme Court exercising Territory jurisdiction

FILE NO:  No 2 of 2021 (22132661)

DELIVERED:  30 September 2022

HEARING DATES:  21 and 22 March 2022

JUDGMENT OF:  Grant CJ, Southwood and Barr JJ

CATCHWORDS:

CONSTITUTIONAL LAW – The Executive – Proceedings by and against – When bound by statute – Privileges and immunities

STATUTORY INTERPRETATION – Legal presumptions – The Crown – Binding the Crown – Penal sanctions on the Crown

Whether offence and penalty prescribed by s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) apply to Director of National Parks as a matter of statutory construction – Director an entity to which the presumption against the imposition of criminal liability on the executive government is capable of application – Director intended to have the same legal status as executive government in relation to the operation of the presumption – Northern Territory Aboriginal Sacred Sites Act 1989 does not expressly or by implication disclose a legislative intention to impose criminal liability on the Commonwealth executive government.

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) s 73
Environment Protection and Biodiversity Conservation Act 1999 (Cth) s 344, s 345A, s 351, s 352, s 354, s 354A, s 356A, s 362, s 363, s 364, s 366, s 367, s 368, s 370, s 371, s 514A, s 514B, s 514C, s 514D, s 514F, s 514H, s 514J, s 514K, 514M, s 514Q, s 514P, s 514R, s 514S, s 514U, s 514W, s 515
Northern Territory Aboriginal Sacred Sites Act 1989 (NT) s 4, s 34
Public Governance, Performance and Accountability Act 2013 (Cth) s 10, s 11

ACCC v Baxter Healthcare Pty Ltd (2007) 232 CLR 1, AGU vCommonwealth of Australia (No 2) (2013) 86 NSWLR 348, Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, Bradken Consolidated Limited v Broken Hill Proprietary Company Limited (1979) 145 CLR 107, Bropho v Western Australia (1990) 171 CLR 1, Cain v Doyle (1946) 72 CLR 409, Commissioner of Taxation v Tomaras (2018) 265 CLR 434, Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85, Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392, Council of the Municipality of Botany v Federal Airports Corporation (1992) 175 CLR 453, Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219, Federated Amalgamated Government Railways and Tramways Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488, Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334, Jacobsen v Rogers (1995) 182 CLR 572, Pirrie v McFarlane (1925) 36 CLR 170, SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51, Spence v Queensland (2019) 268 CLR 355, State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, Sue v Hill (1999) 199 CLR 462, Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330, Telstra Corp Ltd v Worthing (1999) 197 CLR 61, Townsville Hospital Board v Townsville City Council (1982) 149 CLR 282, Wurridjal v Commonwealth (2009) 237 CLR 309, referred to.

CONSTITUTIONAL LAW – Commonwealth and Territory relations – Implied constitutional immunity from Territory law – General principles

Whether offence and penalty prescribed by s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) beyond legislative power of the Legislative Assembly in application to Director – Legislative power of the Northern Territory of the same quality as that enjoyed by the States –Qualified Cigamatic doctrine operates to invalidate State laws which modify or restrict Commonwealth powers and capacities – Legislative authority of the Northern Territory subject to the same implication arising from s 61 of the Constitution – Constitutionally implied immunity of Commonwealth extends to statutory authorities and instrumentalities acting in the exercise of the executive capacity of the Commonwealth – Distinction to be drawn between capacities and functions of the Commonwealth and the exercise of those capacities and functions – Northern Territory Aboriginal Sacred Sites Act 1989 does not alter or deny the functions or capacities of the Director notwithstanding that it might regulate the Director’s activities.

Northern Territory Aboriginal Sacred Sites Act 1989 (NT) s 34
Northern Territory (Self-Government) Act 1978 (Cth) s 6

Austin v Commonwealth (2003) 215 CLR 185, Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136, Capital Duplicators v Australian Capital Territory (1992) 177 CLR 248, Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372, Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167, Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392, Melbourne Corporation v Commonwealth (1947) 74 CLR 31, Northern Territory v GPAO (1999) 196 CLR 553, Pirrie v McFarlane (1925) 36 CLR 170, Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410, SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51, Svikart v Stewart (1994) 181 CLR 548, Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, referred to.

REPRESENTATION:

Counsel:

Complainant:  R Webb QC with S Hartford-Davis and L Peattie

Defendant:  D Robinson SC
    Intervener:  B Lim
    Aboriginal parties (Amici curiae):  S Glacken SC with R Kruse

Solicitors:

Complainant:  Hutton McCarthy

Defendant:Clayton Utz

Intervener:Australian Government Solicitor

Aboriginal parties (Amici curiae):  Northern Land Council

Judgment category classification:      A
Number of pages:  59

IN THE FULL COURT OF THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Aboriginal Areas Protection Authority v Director of National Parks [2022] NTSCFC 1
         No.  2 of 2021 (22132661)

BETWEEN:

CHIEF EXECUTIVE OFFICER, ABORIGINAL AREAS PROTECTION AUTHORITY

Complainant

AND:

DIRECTOR OF NATIONAL PARKS (ABN 13 051 694 963)

Defendant

AND:

ATTORNEY-GENERAL OF THE COMMONWEALTH

Intervener

CORAM:   GRANT CJ, SOUTHWOOD & BARR JJ

REASONS FOR JUDGMENT

(Delivered 30 September 2022)

THE COURT:

1. By complaint taken on 11 September 2020, the Chief Executive Officer of the Aboriginal Areas Protection Authority (the Authority) charged that the Director of National Parks (the Director) conducted works at Gunlom Falls between 22 March and 30 April 2019 in breach of s 34 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (the Sacred Sites Act).

2. On 8 October 2021, the Local Court stated a special case under s 162 of the Local Court (Criminal Procedure) Act 1928 (NT) reserving the following question of law arising on the complaint for the opinion of the Supreme Court:

   Do the offence and penalty prescribed by s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) not apply to the Director of National Parks:

   (a)     as a matter of statutory construction; or

   (b) alternatively, because they are beyond the legislative power of the Legislative Assembly, conferred by s 6 of the Northern Territory (Self-Government) Act 1978 (Cth) and s 73(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth)?

3. On 16 November 2021, the Supreme Court referred the special case stated by the Local Court to the Full Court of the Supreme Court of the Northern Territory under s 21(1) of the Supreme Court Act 1979 (NT). For the reasons which follow, the question of law is answered:

   The offence and penalty prescribed by s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) do not apply to the Director of National Parks as a matter of statutory construction.

   The relevant provisions of the Sacred Sites Act

4. Section 34 of the Sacred Sites Act provides:

   (1)     A person shall not carry out work on or use a sacred site.

   Maximum penalty:     In the case of a natural person –

   400 penalty units or imprisonment for 2 years.

   In the case of a body corporate –

   2 000 penalty units.

   (2)     It is a defence to a prosecution for an offence against subsection (1) if it is proved that the defendant carried out the work on or used the sacred site with, and in accordance with the conditions of, an Authority Certificate or a Minister's Certificate permitting the defendant to do so.

5. Section 4 of the Sacred Sites Act provides:

   (1)     This Act binds the Territory Crown and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.

   (2)     If the Territory Crown in any of its capacities commits an offence against this Act, the Territory Crown is liable in that capacity to be prosecuted for the offence as if it were a body corporate.

   (3)     This section does not affect any liability of an officer, employee or agent of the Territory Crown to be prosecuted for an offence.

   (4)     In this section:

   Territory Crown means the Crown in right of the Territory and includes:

   (a)an Agency; and

   (b)an authority or instrumentality of the Territory Crown.

   Procedural history

6. On 3 June 2021, the Commonwealth Attorney-General intervened in the proceedings brought by complaint in the Local Court. That intervention was made under s 78A of the Judiciary Act 1903 (Cth) for the purpose of submitting on behalf of the federal executive government that s 34 of the Sacred Sites Act does not impose criminal liability on the Director.

7. On 8 October 2021, the Director entered a plea of not guilty on the basis that it cannot be convicted of the offence created by s 34 of the Sacred Sites Act.  At that time, the parties admitted and agreed various facts and matters for the purpose of the special case, including the authenticity of documents annexed to the special case.  Those facts, matters and documents are as described below.

   The works carried out at Gunlom Falls

8. On 22 March 2019, the Director arranged for a contractor to be engaged to perform construction works on the realignment of the walking track at Gunlom Falls, in the Kakadu National Park in the Northern Territory of Australia (the track realignment works).

9. Stage 1 of the track realignment works located at the lower portion of the Gunlom Falls walking track commenced on or about 4 April 2019.  Those works were completed during the course of April 2019 by excavating and clearing trees, rock, soil and vegetation along the existing walking track and inserting concrete steps at various points along the realigned walking track.

10. The area on which the track realignment works were carried out is sacred to the Jawoyn Aboriginal people or is otherwise of significance according to Aboriginal tradition, and is a ‘sacred site’ as defined in the Sacred Sites Act.

11. The Director carried out the track realignment works without an Authority Certificate or a Minister’s Certificate under the Sacred Sites Act.

12. Subject to the answer to the question of law concerning the application of s 34(1) the Sacred Sites Act, the facts set out in the four preceding paragraphs would constitute an offence by the Director under s 34(1), subject to any defences available under s 36 and any operational inconsistency in the circumstances of this case between s 34(1) of the Sacred Sites Act and Div 4 of Pt 15 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act).[1]

    The Director and its operational arrangements

13. The Director is a corporation sole with perpetual succession established by s 15 of the National Parks and Wildlife Conservation Act 1975 (Cth) and continued in existence as a body corporate by s 514A of the EPBC Act.  The Director ‘may sue and be sued in its corporate name’.[2]  The Director is a corporate Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth). The functions and powers of the Director include those specified in Division 5 of Part 19 of the EPBC Act.  The Director has the function to administer, manage and control Commonwealth reserves.[3] 

14. The incumbent Director at the material times was appointed by the Governor-General, on the advice of the responsible Commonwealth Minister, with effect from 26 November 2018.[4]  At all material times, the incumbent Director was also the head of the Parks Australia division of the Commonwealth Department of Agriculture, Water and the Environment which was as at that time called the Department of Environment and Energy (the Department).[5]  The Parks Australia division of the Department provides policy advice to the Minister in relation to the management of Commonwealth reserves, and supports the Director in the exercise of its powers and functions.[6] 

15. The staff of the Director consists entirely of personnel of the Parks Australia division of the Department, engaged by the Department under the Public Service Act 1999 (Cth) or, where there is an operational need for a specific task, provided under labour-hire style arrangements. The Secretary of the Department is the Agency Head for the staff of the Director. All of the functions and powers of an employer as conferred by s 20 of the Public Service Act 1999 rest with the Secretary. Those powers, in so far as they relate to the engagement and management of Department staff associated with the Director’s functions, have been delegated to the Director. Salary and salary-related funds for the majority of those staff are debited from the Australian National Parks Fund continued in existence under s 514R of the EPBC Act, with the remainder being paid out of Departmental funds. 

16. The Director relies on the staffing and resources provided by the Department to carry out the functions specified in s 514B of the EPBC Act, and to properly manage the resources of the corporation in accordance with the Commonwealth Resource Management Framework underpinned by the Public Governance, Performance and Accountability Act 2013 (Cth). The Parks Australia division of the Department relies on the same human resources, finance and legal services personnel and systems as does the rest of the Department.

17. The arrangements under which the Parks Australia division of the Department supports the Director stem from a Memorandum of Understanding agreed between the Director and the Secretary of the Department of the Environment and Heritage (as the Department was then styled) on 1 June 2001 (the MOU).[7]  The MOU stated that its purpose was to:

    … record[s] the agreement between the Secretary and the Director in relation to the contribution by the Director to Outcome 1 of the Department of the Environment and Heritage Portfolio Budget Statement and the provision of resources by the Secretary to the Director to enable the Director to perform the Director's functions and discharge the Director's obligations under the EPBC Act, other Acts, contracts and agreements.

18. A series of Service Delivery Agreements have been entered into between the Secretary of the Department and the Director to deal with the provision of resources to the Director by the Department that is contemplated in the MOU.  The most recent of these was made on 1 June 2013.

19. Section 514D(5) of the EPBC Act provides that the responsible Commonwealth Minister must approve any contract that the Director enters into over the value of $1 million.  Over the past seven years there have been at least 17 contracts or memoranda of understanding which the Minister has approved, including in relation to capital infrastructure, operational costs, information and communication technologies and construction costs.[8]

20. The arrangement with the contractor to perform the track realignment works did not require Ministerial approval pursuant to s 514D(5) of the EPBC Act.[9]  The Director took decisions itself and through its servants and agents to perform the track realignment works.

    Kakadu National Park and its Management Plan

21. The area where the track realignment works were carried out is within the Kakadu National Park, which is a Commonwealth reserve under Division 4 of Part 15 of the EPBC Act. The Proclamation of the Park is continued by Schedule 4 item 3 of the Environmental Reform (Consequential Provisions) Act 1999 (Cth) as if made under s 344 of the EPBC Act.[10] 

22. That part of the Park where the track realignment works were carried out is held under a lease by the Director from the Gunlom Aboriginal Land Trust granted in accordance with the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (the Land Rights Act).[11]  The lease provides for the making of protocols for conduct in relation to sacred sites.  The current protocol is the ‘Buladjang (Sickness Country) Access Protocols’ dated September 2010.[12] 

23. At all material times, including when the Director arranged for the track realignment works and when those works were carried out, a management plan was in operation for Kakadu National Park, namely, the Kakadu National Park Management Plan 2016-2026 (the Management Plan).[13] 

    Presumption that statutes do not bind the executive government

24. Against that background, the general presumption is that legislation regulating the conduct or rights of individuals does not apply to the members of the executive government of the polity enacting the legislation, or the members of the executive governments of other polities in the federation.[14]  The presumption can be displaced by a contrary legislative intention either by express words or implied from the statutory context, including the text, subject matter, purpose and policy of the statute, and the activities of government to which it has application.[15]  Where the question is whether legislation binds the executive government of a polity other than the polity of the enacting legislature, it is necessary to identify an intention to bind the executive of that other polity.[16] 

25. A related presumption, sometimes treated as distinct and sometimes not,[17] is that a statute will not impose criminal liability on the executive, including government instrumentalities with the same legal status, without the clear indication of a legislative intention and purpose to do so.[18]  That presumption applies a fortiori to the imposition of criminal liability on the executive of a polity other than the enacting polity.[19]

26. The decision of the High Court in Cain v Doyle[20] is an earlier application of the presumption that a statute is not properly construed to impose criminal liability on the Crown without the clearest of indications.  The Re-establishment and Employment Act 1945 (Cth) made it a criminal offence for an employer to terminate the employment of a reinstated former employee without reasonable cause. The legislation also provided that, ‘unless the contrary intention appears – “employer” includes the Crown (whether in right of the Commonwealth or of a State) and any authority constituted by or under the law of the Commonwealth or of a State or Territory of the Commonwealth’.

27. A criminal prosecution was commenced against the manager of a munitions factory owned and operated by the Commonwealth for aiding and abetting the termination of a reinstated employee in breach of the prohibition.  A majority of the High Court held that the provision did not create an offence of which the Commonwealth may be guilty, and the manager therefore could not be convicted of aiding and abetting the Commonwealth in the commission of a criminal offence.  In coming to that conclusion, Dixon J (as his Honour then was) stated:

    There is, I think, the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature.  It is opposed to all our conceptions, constitutional, legal and historical.  Conceptions of this nature are, of course, not immutable and we should beware of giving effect to the strong presumption in their favour in the face of some clear expression of a valid intention to infringe upon them.  But we should at least look for quite certain indications that the legislature had adverted to the matter and had advisedly resolved upon so important and serious a course. [21]

1. While Dixon J accepted that the prohibition against terminating the employment of a reinstated employee applied to the Crown in right of the Commonwealth (in recognition of the statutory stipulation that ‘employer’ included the Crown in right of the Commonwealth), his Honour concluded that the penalty provision attending that prohibition was meant to apply only to the subject and not to the Crown.  Accordingly, while a prohibition of that nature might be enforced by injunction, mandamus or ordinary civil remedies, it did not impose a criminal liability on the Crown.  Chief Justice Latham[22] and Rich J[23] generally agreed with that conclusion, with the Chief Justice opining that the statutory stipulation of the Crown as an ‘employer’ for the purposes of the legislation operated on other provisions governing the conduct of employers which did not create criminal offences[24].

2. The same bifurcation of civil and criminal liability is evident in State Authorities Superannuation Board v Commissioner of State Taxation (WA).[25]  The Western Australian stamp duty legislation under consideration in that case exempted from duty instruments to which the Crown or any Crown instrumentality, agent or authority designated by the Minister was a party otherwise liable to pay duty.  The ‘Crown’ was defined to mean the Crown in right of the State of Western Australia.  The question arising was whether the State Authorities Superannuation Board, a statutory body representing the Crown in right of the State of New South Wales, was liable to duty under the Western Australian legislation as the purchaser of real estate in Perth. 

3. Chief Justice Brennan and Dawson, Toohey and Gaudron JJ found that the provision for exemption manifested a clear intention that the Crown (in whatever capacities) should be otherwise bound by the provisions of the legislation.[26]  Justices McHugh and Gummow framed the question as whether the Western Australian legislature intended to tax agreements for the purchase of property in Western Australia by another State authority, and concluded that the legislation applied according to its terms.[27]  Those findings were sufficient to dispose of the contention that the State Authorities Superannuation Board was not bound to pay duty.  However, all members of the Court applied Cain v Doyle to find that the presumption of statutory interpretation that the Crown cannot be criminally liable ‘must prevail over anything but the clearest expression of intention’.  No such intention was manifest in the stamp duty legislation notwithstanding that the provisions imposing duty otherwise applied.[28]  In context, that discussion concerning the application of the presumption was not limited to the Crown in right of the State of New South Wales as a legal person. 

4. Those statements of principle from Cain v Doyle and State Authorities Superannuation Board v Commissioner of State Taxation (WA) were again endorsed in Telstra Corporation Ltd v Worthing.[29]  So far as is relevant for these purposes, the New South Wales workers compensation legislation under consideration in that matter was expressed to bind ‘the Crown, not only in right of New South Wales but also, so far as the legislative power of Parliament permits, in all its other capacities’.  A central provision of that legislative scheme was the requirement, under the sanction of a penalty, that an employer maintain a compliant policy of insurance.  In considering whether the Commonwealth as an employer was subjected to that liability, the High Court unanimously stated:

   It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth [Cain v Doyle (1946) 72 CLR 409 at 425; State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 270, 277, 294; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 427,472]. No such indication is to be seen in the 1987 State Act. To the contrary, s 6(2) states that nothing in that statute renders "the Crown" liable to be prosecuted for any offence. These penal provisions are central to the structure upon which the regulatory scheme established by the State legislation rests. [30]

5. At a more general level, the decision of the High Court in Bropho v Western Australia (Bropho)[31] was the starting point of what might be considered as the modern approach to the operation of the presumption that legislation regulating the conduct or rights of individuals does not apply to the members of the executive government.  The question presenting in Bropho was whether a development corporation created by statute was immune from prosecution for a contravention of heritage legislation, including the individuals acting on its behalf in the impugned conduct.  The statute which created the corporation provided expressly that it was an agent of the Crown in right of the State of Western Australia which enjoyed the status, immunities and privileges of the Crown.  The purpose of the heritage legislation was to preserve places and objects customarily used by or traditional to Aboriginal people, irrespective of where those things were found or situated in the State.

6. The plurality in Bropho identified the presumption to be that, in the absence of a contrary intention, the general words of a statutory provision do not extend to bind the executive government and its servants or agents in relation to acts which they do or property which they own or occupy in that capacity.  That contrary intention may be manifested expressly or by ‘necessary implication’, but the latter phrase does not import a formalised test of exacting stringency.[32]  That is particularly so given that many of the considerations underlying the presumption have diminished in their relevance with the evolution of ‘the Crown’ to include a myriad of governmental commercial and industrial instrumentalities and their employees.[33]

7. While the plurality acknowledged the weight of past authority favouring the preservation of an inflexible and stringent approach to the shield of the Crown, in the contemporary context a legislative intention to bind the Crown does not require that the intention be ‘manifest from the very terms’ of the statute or that the purpose of the statute would otherwise be ‘wholly frustrated’.  Rather, the intention must ‘be found in the provisions of the statute – including its subject matter and disclosed purpose and policy – when construed in a context which includes permissible extrinsic aids’.[34]  In that analysis it is possible that the legislation may evince a legislative intent not to apply directly to the Crown or an instrumentality, but to bind employees and agents.[35]

8. The plurality qualified that conclusion by noting that in construing a legislative provision enacted before the publication of the decision in that case, it may be necessary to take account of the fact that the more stringent tests were seen as of general application at the time the provision was enacted.  On the other hand, in the case of legislative provisions enacted subsequent to the publication of the decision in Bropho, the strength of the presumption will depend upon the content and purpose of the particular provision and the identity of the entity concerned.  That is particularly so in relation to ‘the employees of a governmental corporation engaged in commercial and developmental activities’.[36]  It may be noted in that respect that the Sacred Sites Act was enacted prior to the publication of the decision in Bropho; and, for reasons discussed further below, the Director is not properly characterised as a governmental corporation engaged in commercial and developmental activities in the same manner as the development corporation there under consideration.

9. The plurality in Bropho concluded that the heritage legislation evinced a clear legislative intent that the offence provision (which proscribed the alteration of, damage to, et cetera an Aboriginal site without the necessary authorisation or consent), had application to employees and agents of government instrumentalities in the course of their duties.  That intention was discerned on the basis that the heritage legislation applied expressly to all objects irrespective of where found or situated in the State; applied by implication to Crown land (which comprised 93 percent of Western Australian land); and, having regard to its subject matter and disclosed policy and purpose, applied by implication indifferently to natural persons, including government employees.[37]  The plurality considered that it was unnecessary to decide whether the development corporation was also liable to prosecution and conviction for offences committed by its employees or agents, because once it had been concluded that the offence provision applied to those employees or agents neither the corporation nor the Crown had power to authorise the performance of proscribed activities.

10. In separate reasons for decision, Justice Brennan (as his Honour then was) concurred with the conclusion and orders proposed by the plurality, but expressly disavowed the notion that different interpretive considerations would apply to statutes enacted prior to the publication of the decision.[38]  On that approach, the question will always be whether the legislature intended that the statute should affect the activities of the executive government having regard to the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the governmental activities which would be affected.[39]  Justice Brennan also distinguished the finding of immunity in Cain v Doyle[40] from the subject case on the basis that the Crown could conceivably have been a principal offender as employer under the Re-establishment and Employment Act 1945, whereas the Crown’s only potential criminal liability under the heritage legislation was as a secondary party under provisions which could not properly be construed as imposing a vicarious criminal liability on the Crown (or, by extension, the development corporation).[41]

11. A number of matters should be recognised about the decision in Bropho in its application to the present case.  First, the decision in Bropho is not authority for the proposition that the statutory corporation in that case was subject to the general offence provision in the heritage legislation notwithstanding its agency of the Crown.  The finding in Bropho was only that by implication the criminal offence provision in the heritage legislation applied indifferently to natural persons, including government employees, having regard to the subject matter, disclosed policy and purpose of that particular legislation.  Secondly, Bropho predated the decisions in State Authorities Superannuation Board v Commissioner of State Taxation (WA)[42] and Telstra Corporation Ltd v Worthing[43], both of which reaffirmed the strength of the presumption against the imposition of criminal liability on the Crown.  Thirdly, the decision in Bropho was concerned with the imposition of criminal liability on the agents of the executive of the enacting polity rather than the executive of another polity. 

12. As the submissions made by the parties at the hearing of the special case were developed, the questions which present for determination in the first limb of the special case are:

    (a)whether the Director is an entity to which the presumption against the imposition of criminal liability on the executive government is capable of application;

    (b)if so, whether the Director is intended to have the same legal status as executive government in relation to the operation of the presumption  having regard to the subject matter, policy and purpose of the legislation under which it is established; and

    (c)if so, whether the Sacred Sites Act, either expressly or by implication, discloses a legislative intention to impose criminal liability on the Commonwealth executive government having regard to the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the governmental activities which would be affected.

    Entities to which the presumption applies

13. In Cain v Doyle, Latham CJ suggested that while Ministers and officers of the Crown can be guilty of breaches of Commonwealth law attracting criminal penalties, it was inconsistent with the fundamental idea of the criminal law that breaches are offences against the ‘King’s peace’ to hold that the Crown can itself be guilty of a criminal offence.[44]  However, that dictum is inconsistent with the orthodox view, even at that time, that the legislature may with clearly expressed intention impose a criminal liability upon the Crown.  In addition, and to the extent that dictum might be taken to suggest otherwise, the presumption in relation to criminal liability also extends beyond the Crown in its narrowest conception. 

14. It is not possible in the determining the entities to which the presumption applies to draw rigid taxonomical distinctions based on the different manifestations and emanations of the Crown.  As Gleeson CJ, Gummow and Hayne JJ observed in Sue v Hill[45], the term ‘the Crown’ identifies the executive branch of government represented by the Ministry and the administrative bureaucracy which tends to its business.  In the ordinary conception, that administrative bureaucracy includes authorities and instrumentalities of the Crown, including statutory corporations. 

15. There are authorities and considered dicta effectively binding on this Court which establish that the presumption has application to government instrumentalities, including those with separate legal personality, if on proper characterisation they are intended to have the same legal status as executive government in the relevant aspects.  Speaking specifically of the presumption against the imposition of criminal liability, the plurality in Bropho stated that it was not ‘confined to the Sovereign herself but extends to confer prima facie immunity in relation to the activities of governmental instrumentalities or agents acting in the course of their functions or duties as such’.[46]  Similarly, in Commonwealth v Western Australia (Mining Act Case), Gleeson CJ and Gaudron J expressed the presumption with reference to ‘members of the executive government of any of the polities in the federation, government instrumentalities and authorities intended to have the same legal status as the executive government, their servants or agents’.[47] 

16. That the presumption is capable of application to statutory corporations with separate legal personality is also implicit, if not express, in the finding in State Authorities Superannuation Board v Commissioner of State Taxation (WA) that if the Board did form part of the Crown in the relevant sense it could not be criminally liable for offences created by the stamp duty legislation.[48]  The operative question is whether on proper characterisation the body in question is intended to have the same legal status as executive government in the relevant aspect, and the conferral of that status may be either express or implied[49] from the subject matter, policy and purpose of the legislation creating the body.

    Analytical framework for determining legal status

17. The approach taken to the status of executive government bodies in the context of governmental immunities generally is not rigid, inflexible or constrained.  In State Authorities Superannuation Board v Commissioner of State Taxation (WA)[50], the High Court was not required in the final result to determine whether the statutory superannuation corporation enjoyed the same legal status as the executive government.  However, McHugh and Gummow JJ did determine the question of whether the corporation formed part of the ‘State’ of New South Wales for constitutional purposes.  Their Honours stated, with reference to Deputy Commissioner of Taxation v State Bank (NSW)[51], that a government-owned and controlled authority or instrumentality carrying on the activities of government falls within the constitutional conception of a ‘State’, even where that body has an independent corporate personality.  Their Honours concluded that the State Authorities Superannuation Board fell within that conception having regard to its constituent statute, its powers and functions, the relevant auditing provisions, the method of appointment and removal of board members, and the history of the public administration of civil service superannuation in New South Wales.[52]  Although the question whether a body is a ‘State’ for constitutional purposes is not to be determined by asking whether the body is entitled to the shield of the Crown,[53] similar considerations are relevant, by analogy at least, in determining whether a statutory corporation has the same legal status as executive government for the purpose of the presumption against the imposition of criminal liability.  

18. The subsequent decision in SGH Ltd v Commissioner of Taxation[54] considered whether a building society established under Queensland legislation was the ‘State’ for the purposes of the prohibition under s 114 of the Constitution against the imposition by the Commonwealth of any tax on property belonging to a State.  It was found not to be, on the basis that there was nothing in the rules of the society or the governing statute which required the society to pursue the State or public interest, or to follow policies determined by the executive government.  However, the plurality observed that the concept of government in that context was not to be understood narrowly, and was to be determined having regard to ‘the conceptions of ordinary life’.[55]  Similarly, albeit at a more general level, the plurality in Spence v Queensland[56] observed that in the field of inter-governmental immunities it is necessary to ‘avoid pedantic and narrow constructions’.

19. In SGH Ltd v Commissioner of Taxation,[57] the considerations said to be relevant to determining whether an entity falls within the description of the ‘State’ will include the activities undertaken by that entity; the legal relationship between the entity and the executive government of the body politic; what rights or powers the executive government of the body politic has over the use and disposal of the entity’s property; and whether the entity is discharging governmental functions for the body politic in the sense that the body politic is carrying on its business through a statutory corporation. The same general approach is taken to the question of whether an entity is properly characterised as the ‘Commonwealth’ for the purposes of s 75(iii) of the Constitution.  In that context, the relevant question has been framed as whether the intention appearing from the provisions of the relevant statute is ‘an intention that the Commonwealth shall operate in a particular field through a corporation created for that purpose; or … on the other hand, an intention to put into the field a corporation to perform its functions independently of the Commonwealth’.[58]  Again, a similar overarching consideration will govern whether an entity has the same status as the executive government for the purpose of the presumption in relation to criminal liability.

20. In Superannuation Fund Investment Trust v Commissioner of Stamps (SA),[59] a question arose as to whether the Superannuation Fund Investment Trust could claim an exemption under South Australian stamp duty law for conveyances or transfers ‘to the Crown, or to any person on behalf of the Crown’.  The Trust was a body corporate established by Commonwealth legislation.  Those members of the Court who considered it necessary to decide the issue were divided on the result, but not on the basic principles to be applied in making the characterisation.  Drawing on the reasons in that case, counsel for the Attorney-General of the Commonwealth in this matter posits a number of propositions informing that determination.  Those propositions should be accepted as governing the question whether the Director has the same legal status as the Commonwealth for the purposes of the presumption against the imposition of criminal liability. 

1. First, the fact that an entity is incorporated is not determinative of whether it forms part of the executive government for the purpose of privileges and immunities, or indicative of an intention to divorce the entity or its activities from the executive government.[60]  It has long been accepted that governmental functions may be carried out through statutory corporations ‘for the convenience as well of management as of the assertions and enforcement of contractual rights in respect of the commercial transactions’ entered into by those corporations.[61]  Secondly, the enquiry is essentially one of statutory interpretation to determine the relevant legislative intent, rather than the mechanical application of any particular test.[62]  Thirdly, the presence or absence of a statutory ability on the part of the executive government to control the membership and/or activities of the entity in question is of central importance to the discernment of the relevant legislative intention.  The higher the degree of direction or control the more likely the legislative intention that the entity be treated as the alter ego of the Crown.[63]  However, that assessment turns upon the existence of a statutory ability to control, rather than an examination of the extent to which a particular action is the result of the actual exercise of control by the executive.[64]  Fourthly, the interpretive process will also involve a consideration of whether the entity performs governmental functions, whether it is funded by the executive government, and whether it is accountable to the executive government in terms of finances and outcomes.[65]

2. The subsequent decision in Townsville Hospital Board v Townsville City Council[66] may be seen as an application of principles similar to those expressed in Superannuation Fund Investment Trust v Commissioner of Stamps (SA).  The question was whether the Hospital Board enjoyed the exemption from the building by-laws for buildings erected by or on behalf of the Crown, or by or on behalf of a body representing the Crown for the purpose of erecting the building.  The land on which the building was to be erected was Crown land, and the Hospital Board had been required under the provisions of the governing legislation to obtain the Minister’s approval to borrow money for the proposed works.  Those connections notwithstanding, Gibbs CJ (with whom the other members of the Court agreed) determined that the Hospital Board did not enjoy the privileges and immunities of the Crown in their relevant aspect.  That conclusion was reached largely on the basis that the legislation did not give rise to that implication in circumstances where the provision of hospital services is not a traditional function of government; the Hospital Board retained an independent discretion to decide whether to engage in building work; the Board rather than the Crown bore ultimate responsibility for the repayment of any moneys borrowed for that purpose; and the stringent controls imposed on the borrowing of moneys were not directed to achieving the objects of the building legislation.[67]

   The legal status of the Director

3. Turning then to the character and legal status of the Director, the facts agreed for the purpose of the special case disclose that it is a statutory corporation with separate legal personality, and the essential function conferred on it by statute is to administer, manage and control Commonwealth reserves.[68]  While that function involves, in part, commercial and developmental activity, the entry by the Commonwealth into the management of national parks was not an expansion by government into commercial and developmental activities in the general marketplace in the same way as, for example, the establishment of a government development corporation. 

4. Prior to federation, some colonies had already commenced proclaiming or otherwise creating reserves styled as ‘national parks’.  The States continued that practice after federation and were the owners and managers of those parks.  The Constitution did not confer legislative authority or executive power on the Commonwealth expressly or specifically with respect to environmental planning and management.  It was not until the mid-1970s that the Commonwealth took a more substantial role in the management of the national environment through the creation of the National Parks and Wildlife Service and the Australian Heritage Commission, and the enactment of uniform environmental protection legislation.  Those initiatives were directed to the objectives of environmental conservation and the protection of biodiversity, and invoked the implied nationhood power in support of a new field of Commonwealth governmental activity.

5. As part of those initiatives, the Director was established and incorporated by s 15 of the National Parks and Wildlife Conservation Act 1975 (the 1975 Act).  This was the first national legislation providing for the creation by the Australian Government of such national parks as were appropriate to its status as a national government; as were necessary to carry out its international legal obligations and exercise its international legal rights; and as were conducive to encouraging international tourism to Australia.[69]  That was achieved by empowering the Governor-General to declare by Proclamation an area to be a park or reserve and to assign a name to that park or reserve.[70]  Upon a declaration being made, ‘all right, title and interest’ in respect of the land comprising the park or reserve vested in the Director.[71]  Kakadu National Park was declared to be a park under that provision in 1979, and subsequently identified as an area of universal significance under the World Heritage Convention with sites synonymous with Australia’s natural environment. 

6. Under the 1975 Act, the Director was prohibited from selling, leasing or otherwise disposing of land within a park or reserve[72], except to grant leases or licences in accordance with a plan of management approved by both the Minister and the Parliament[73].  The Director was also obliged to comply with plans of management in force[74], and was required to perform its functions and exercise its powers ‘in accordance with any directions given by the Minister’[75].

7. The 1975 Act was repealed and replaced in July 2000 by the EPBC Act.  The original scheme for the declaration of parks and reserves (re-styled as ‘Commonwealth reserves’) was continued under the new legislation[76]; proclamations of national parks and reserves made under the 1975 Act, including Kakadu National Park, were continued as Commonwealth reserves as if made under the EPBC Act[77]; and the Director was continued in existence as a body corporate[78].  Under that regime, when a Commonwealth reserve is declared by Proclamation, usage rights held or later acquired by the Commonwealth relating to the land or seabed vest in the Director.[79] 

8. However, that provision does not effect a true or complete transfer of Commonwealth rights, in that usage rights prescribed by regulations and usage rights in respect of minerals do not vest in the Director.  That provision operates to deploy the Director as a vehicle of the Commonwealth in dealings with estates and other legal or equitable interests in Commonwealth reserves, subject to the Commonwealth’s unfettered right to exclude estates and interests of that type from the Director’s control and the responsible Minister’s power of direction (discussed further below).  The close relationship between the Director and the Commonwealth, and the Ministerial oversight characterising that relationship, is also reflected in the fact that before a Commonwealth reserve is either declared or revoked by Proclamation, the Director must prepare a report on the matter for consideration by the Minister.[80]  If a Commonwealth reserve is revoked, usage rights held by the Director vest in the Commonwealth.[81]

9. The Director’s functions under the EPBC Act are broader than under the 1975 Act, and include: (1) administering, managing and controlling Commonwealth reserves and conservation zones; (2) protecting, conserving and managing biodiversity and heritage in Commonwealth reserves and conservation zones; (3) cooperating with any country in matters relating to the establishment and management of national parks and nature reserves in that country; (4) carrying out research and investigations relevant to the establishment and management of Commonwealth reserve; and (5) making recommendations to the Minister in relation to the establishment and management of Commonwealth reserves.[82] 

10. These are intrinsically executive governmental functions directed to the stewardship and management of Commonwealth places, and, in relation to one of those functions, the maintenance of international relationships as a national polity. In discharging those functions the Director is clearly to pursue the national or public interest, and to follow policies determined by the executive government. While it is no doubt correct to say that the Director exercises statutory powers rather than an executive authority conferred directly by s 61 of the Constitution, that statutory authority is conferred in the exercise of the nationhood power and the Director’s function involves the execution and maintenance of the laws of the Commonwealth.  The incorporation of the Director is a convenient device by which the executive government can exercise powers for the performance of those functions, including the entry into property dealings and other contracts with non-governmental parties.[83]  As the facts agreed for the special case disclose, the Director is appointed by the executive government, the Director is generally subject to Ministerial control, the conduct of the Director’s functions is essentially funded by the executive government, and the Director is accountable to the executive government in terms of finances and other matters. 

11. A person is appointed as the Director by the Governor-General acting on the advice of the Federal Executive Council, and on condition that the Minister is satisfied of the suitability of the proposed appointee.[84]  The remuneration of the person appointed as the Director, and the other terms and incidents of appointment, are either fixed or subject to control by the executive government.[85]  The appointment may be terminated on certain grounds by the Governor-General acting on the advice of the Federal Executive Council.[86] The person appointed as the Director may also be an Australian Public Service employee,[87] and at the material times the person holding appointment as Director was also employed in that capacity as the head of the Parks Australia division of the Commonwealth Department of Environment and Energy. The Parks Australia division provides administrative and operational support to the Director in the exercise of its functions and powers and policy advice to the responsible Minister in relation to the management of Commonwealth reserves, and is staffed primarily by employees engaged under the Public Service Act 1999.

12. The Director must perform its functions and exercise its powers ‘in accordance with any directions given by the Minister’.[88] Although the Director is not itself an officer appointed directly under s 64 of the Constitution to administer a department of the Commonwealth, it is subject to the control of such an officer.  As noted above, it is the ability to control which is relevant in the analysis of the Director’s legal status, rather than the actual exercise of control in relation to any particular transaction.  The Director may not enter into certain classes of contracts and leases without the Minister’s approval.[89]  The Director may not determine and impose charges for entry into and use of a Commonwealth reserve except with the approval of the Minister.[90]  In addition, both the Minister and the Secretary may delegate any or all of their powers and functions under the EPBC Act to the Director, and on doing so the Director is subject to the directions of the Minister or the Secretary, as the case may be, in the exercise and performance of those powers and functions.[91]  That facility illustrates the close nature of the relationship between the Director and the federal executive government in both policy and operational terms.

13. The Australian National Parks and Wildlife Fund was established and vested in the Director under the 1975 Act, and continued by the EPBC Act[92].  The Fund is constituted by revenues raised through the Director’s activities, largely in respect of leases, licences, permits and other authorities granted in relation to Commonwealth reserves, and any moneys appropriated by the Parliament for the purposes of the Department and allocated for the management of Commonwealth reserves or conservation zones.[93]  It is also significant for these purposes that those revenues and the Director’s property and transactions are exempted from Commonwealth and State taxation liability.[94]  Departmental funds comprise the majority of the Director’s income, without which the Director would not be able to perform its functions and discharge its obligations.  The Director’s position in that respect may be contrasted with a self-sustaining commercial enterprise.

14. Although revenues raised through the Director’s activities are paid into the Australian National Parks and Wildlife Fund rather than into the Consolidated Revenue Fund, those revenues are co-mingled with moneys appropriated by the Parliament and applied for the discharge of the Director’s governmental functions.  In the application of those monies, the Director remains accountable to the federal executive government in terms of financial control and related matters.  The Director is a Commonwealth entity for the purposes of the Public Governance, Performance and Accountability Act 2013 (Cth).[95]  What this means in practice is that the Director is subject to budgetary reporting and government auditing requirements, and the potential application of Government Policy Orders.  The designation of the Director as a ‘corporate Commonwealth entity’[96] for the purpose of that legislation is only to recognise that the Director has separate legal personality.  So far as operational matters are concerned, activities in Commonwealth reserves involving dealings with native species, excavation, building activity, other works and commercial activities may only be undertaken in accordance with management plans prepared by the Director and ultimately approved by the Minister with any modifications the Minister considers appropriate.[97] 

15. The Director must exercise its powers and perform its functions to give effect to a management plan, and the Commonwealth and Commonwealth agencies must not perform functions or exercise powers inconsistently with a management plan.[98]  Contrary to the submission of the Aboriginal parties, that does not create ‘a relevant area of legal autonomy’.  While it is no doubt correct to say that the effect of that provision is that the Minister cannot give a direction to the Director inconsistent with a management plan which is in place, that is not an abrogation of the power of direction and the Minister may still give directions which do not give rise to inconsistency.  In any event, a management plan is a document which is ultimately approved by the Minister, rather than a mechanism which denies Ministerial control over the Director.

16. If a Commonwealth reserve includes indigenous land held under lease by the Director, and a board has been established for the joint management of the reserve (as is the case with Kakadu National Park), any disagreement between the Director and the relevant land council over the implementation of the management plan must be referred to the Minister for directions concerning the resolution of that dispute.[99]  Similarly, any disagreement between the Director and the board over the implementation of the management plan must be referred to the Minister for resolution.[100]  Where the Commonwealth reserve is on indigenous land, a board of management comprising a majority of indigenous persons may participate in the preparation of the management plan, and any disagreement between a board of management and the Director about the content of a management plan is ultimately resolved by the Minister.[101]

17. The Management Plan[102] is a legislative instrument made by the Minister,[103] and also recognises that the Director forms an integral part of the Australian Government. The Management Plan details the involvement of the Australian Government and the Commonwealth Parliament in the establishment of the park, and in particular the arrangement made for the traditional owners to lease land granted to them to the Australian Government for management as a national park.[104] That preamble draws no distinction between the Australian Government and the Director in those arrangements. By way of further example, Table 1 in the Management Plan comprises the ‘Kakadu National Park – Values Statement’.[105] The header to that Statement incorporates the Commonwealth Coat of Arms and signifies the ‘Director of National Parks’ as part of the Australian Government. The Management Plan makes explicit that the park is managed by the Director in conjunction with the traditional owners, and that the Director is assisted in that task ‘by Parks Australia, whose staff are employees of the Department of the Environment’.[106]  The objective of the joint management arrangement is expressed to be that, ‘[t]he park is managed through a strong and successful partnership between Bininj/Mungguy and the Australian Government (as represented by the Director of National Parks), and Bininj/Mungguy satisfy their aspirations for benefits from landownership’.[107]

18. Those statutory provisions and indicia lead necessarily to the conclusion that the intention of the statutory scheme is for the Commonwealth to administer, manage and control Commonwealth reserves through the Director, rather than for the incorporation of the Director to perform its functions independently of the Commonwealth.  It follows that the legislative intention is for the Director to enjoy the privileges and immunities of the federal executive government, including the presumption against the imposition of criminal liability, except to the extent that they are withdrawn or modified under the statutory scheme.  That conclusion is reinforced by the Director’s integration into the machinery of the federal executive government, the Director’s subjection to Ministerial direction, the Director’s financial dependence upon funding from the federal executive government for the performance of its functions, the nexus between those functions and Commonwealth places, and the Director’s immunity from taxation imposts.

19. The EPBC Act creates offences for causing death to native species or damage to heritage in a Commonwealth reserve, carrying out building, excavation or other works in a Commonwealth reserve, and taking an action for commercial purposes in a Commonwealth reserve.[108]  Those offences do not apply to an action undertaken in accordance with a management plan in operation for the Commonwealth reserve.[109]  There is a specific exception for certain actions taken by the Director in places other than Kakadu, Uluru or Jervis Bay.[110]  There is a further specific exception for actions taken by the Director in a Commonwealth reserve wholly or partly within Kakadu, Uluru or Jervis Bay when a management plan is not in operation for that Commonwealth reserve.[111]  Those specific exceptions make it clear that as a matter of statutory interpretation the intention and operation of the Parliament is otherwise to impose criminal liability on the Director under the narrowly defined offence provisions in the EPBC Act.  However, on proper characterisation that intention and operation is not to subject the Director to the criminal law generally, and particularly not to the criminal law of another polity, and has nothing to say about the legislative intention of the Sacred Sites Act concerning the imposition of criminal liability on government entities.

1. Similarly, the Management Plan requires that the potential impacts of all proposed actions under the plan will be considered and assessed in accordance with an impact assessment process.[112]  For actions considered likely to have more than a negligible impact, but not a significant impact, on the park’s environment and natural and cultural values, and on Bininj/Mungguy, there are stipulated impact assessment requirements.  They include an assessment by park staff, the proponent of the proposed action or an independent expert; assessment in accordance with the environmental impact assessment matters and considerations; and an Authority Certificate under the Sacred Sites Act where the action has a potential impact on a sacred site.[113]  For actions which are considered likely to have a significant impact on the park’s environment and natural and cultural values, and on Bininj/Mungguy, the Director must determine whether the action should be referred to the Minister to decide if it is a ‘controlled action’ under the EPBC Act; and an Authority Certificate under the Sacred Sites Act is required where the action has a potential impact on a sacred site.[114]  

2. Again, while those provisions identify the steps the Director must take in assessing the potential impacts of proposed actions in the management of the park behalf of the Commonwealth, they do not evince an intention that the Director is not subject to the usual presumption against the imposition of criminal liability on executive government, and they have nothing to say about whether the subject matter, purpose and policy of the Sacred Sites Act demonstrates an intention to impose criminal liability on the executive of the Commonwealth. So far as the provisions of the Management Plan requiring an Authority Certificate are concerned, they are capable of application to a wide range of private entities and do not resolve the question of whether the Sacred Sites Act imposes that requirement on the Director, including criminal sanction for breach of that requirement.

3. Having regard to that legislative and functional structure, the Director is an instrumentality or authority intended to have the same legal status as the executive government of the Commonwealth in relation to the imposition of criminal liability by a statute enacted by the legislature of another polity.[115] Accepting that to be so, that s 34(1) of the Sacred Sites Act attaches criminal liability to a ‘person’ and a ‘body corporate’, and is therefore capable in its terms of application to the Director, is not determinative of whether the Director may bear criminal liability under that provision.  The legal status of the Director requires an anterior determination of whether the Sacred Sites Act evinces an intention to impose criminal liability on the executive government of the Commonwealth.

   The legislative intent of the Sacred Sites Act

4. It may be accepted that s 4(1) of the Sacred Sites Act, in providing that ‘[t]his Act binds the Territory Crown and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities’, evinces an intention to rebut the full scope of the presumption that the statute does not apply to the executive government of the Northern Territory of Australia, or to instrumentalities and authorities having the same legal status.  However, that statement of legislative intention is not conclusive of the question whether there is a legislative intention to impose liability on the executive, including government instrumentalities and authorities, of the Commonwealth.  As the New South Wales Court of Appeal stated in AGU v Commonwealth of Australia (No 2) in relation to the operation of a provision in similar terms:

   The principle to be extracted from these authorities is that such a provision, while effective to rebut the general presumption that a statute does not bind the government which passed it, will be a factor, not necessarily determinative, in determining whether specific provisions apply in relation to other bodies politic.[116]

5. That statement reflects the presumption, already described, that legislation of the enacting jurisdiction does not bind the Crown in right of other polities in the federation;[117] and also reflects that the specific provisions of the legislation must be considered to determine whether on proper construction they do indicate a general displacement of the presumption.

6. Quite apart from the question of whether that general statement of intention is sufficient to displace the presumption that the legislation of the enacting policy is not intended to bind the executive governments of other polities, there is also the question of whether a general formulation of that type is sufficient to displace the presumption against the imposition of criminal liability on the Commonwealth executive.  As the preceding discussion of the authorities demonstrates, while a provision or scheme may evince the requisite intention to subject the executive of another polity to civil consequences, it may not be apt do so in relation to criminal liability.  So it was in Telstra Corporation Ltd v Worthing that New South Wales legislation expressed to bind the Crown ‘in all its other capacities’ was not sufficient to subject the Commonwealth to criminal liability.[118]  That was said to require the clearest indication of a legislative purpose that the penal provisions attached to the Commonwealth.

7. Section 4(2) of the Sacred Sites Act goes on to provide that if the Territory Crown ‘in any of its capacities’ commits an offence against the Act, the Territory Crown is liable in that capacity to be prosecuted as if it were a body corporate. On one reading, that provision tells against the suggestion of a legislative intention to impose prohibitions attracting criminal sanction on the executive of another polity. There is no mention in that provision of criminal liability on the part of any other executive government and its instrumentalities. On another possible reading, the provision is merely facilitative in allowing the Territory and any Territory authority or instrumentality which commits an offence against the Act to be prosecuted as if it was a body corporate. However, if that is the purpose sought to be attributed to the provision, it would seem otiose in circumstances where the offence created by s 34 of the Sacred Sites Act proscribes conduct by a ‘person’, and the Interpretation Act 1978 (NT) defines ‘person’ to include a body politic and a body corporate.

8. The proposition that s 4(2) of the Sacred Sites Act is intended to impose criminal liability on the Territory Crown, and not on the executives of other polities, receives support from the legislative history and the extrinsic material.  The provision was enacted as part of the Northern Territory Aboriginal Sacred Sites Amendment Act 2005 (NT). Prior to that enactment, s 4 of the Sacred Sites Act provided only:

   This Act binds the Crown not only in right of the Territory but, to the extent that the legislative power of the Legislative Assembly so permits, in all its other capacities.

9. The amending legislation operated to insert subs 4(2), (3) and (4) of the Sacred Sites Act as they now stand.  In the second reading speech for the amending legislation, the responsible Minister described the purpose of those amendments in the following terms:

   … the basis for deterrence against contravention of the Northern Territory Aboriginal Sacred Sites Act remains in the authority’s ability to bring successful prosecutions.

   In the Territory, government agencies and authorities undertake a significant proportion of works for roads, infrastructure and development. It is disappointing to note that, despite encouraging forms in the monitoring systems of agencies, a percentage of reported sacred sites damage has been caused as a result of actions or approvals by government agencies and authorities. In recent cases of alleged site damage by the government agencies or authorities, it has become apparent that there is a lack of clarity in the liability of the Crown to be prosecuted for breaches of the Northern Territory Aboriginal Sacred Sites Act, or accordingly, some prosecutions have not been pursued despite sufficient evidence. The inability to prosecute the Crown for sacred site damage and thus seek a form of reparation is a source of dissatisfaction amongst both authority members and the Aboriginal custodians. The bill provides an appropriate capacity to prosecute the Crown by clarifying that. If the Crown, in any of its capacities, commits an offence against the Northern Territory Aboriginal Sacred Sites Act, then it is liable in that capacity. The Crown includes agencies, authorities and instrumentalities of the Crown and, the existing liability of an officer, employee or agent of the Crown to be prosecuted for an offence is not affected.

10. The explanatory memorandum provided relevantly:

    This clause repeals section 4 of the Northern Territory Aboriginal Sacred Sites Act and substitutes it with a new section 4 which clarifies the extent to which that Act binds the Crown, and specifically the liability of the Crown to prosecution for offences under that Act.

11. That purpose and intention is achieved by the insertion of s 4(2) of the Sacred Sites Act, providing that if the Territory Crown ‘in any of its capacities’ commits an offence against the Act, the Territory Crown is liable to be prosecuted. Section 4(3) of the Sacred Sites Act goes on to provide that the section ‘does not affect any liability of an officer, employee or agent of the Territory Crown to be prosecuted for an offence’ under the Sacred Sites Act. By way of definition, s 4(4) of the Sacred Sites Act provides that the 'Territory Crown' means the Crown in right of the Territory and includes an Agency[119], authority or instrumentality of the Territory Crown.  Read together, those provisions treat Agencies, authorities and instrumentalities of the Territory Crown differently to officers, employees and agents of the Territory Crown in the subjection to criminal liability.  In particular, the extension of criminal liability has application only to the ‘Territory Crown’ as defined, leaving the position of an officer, employee or agent of the Territory in relation to criminal liability unaffected.  This is reflective of the distinction between the legal status of Crown instrumentalities, on the one hand, and the legal status of employees, agents, contractors and other natural persons, on the other hand, in the application of the presumption against the imposition of criminal liability. 

12. The express purpose and intention of the amending legislation, at least in the subjective sense, was to clarify the liability of the Crown to be prosecuted for offences against the legislation. The amendments acknowledged that s 4 of the Sacred Sites Act as it was originally expressed did not evince a sufficiently clear objective intention to impose criminal liability on the Crown, which in turn recognises the strength of the presumption in that respect.  However, the legislative response to that uncertainty was to impose criminal liability on the Territory Crown in terms of irresistible clearness.  At the same time, there was no attempt to clarify matters by imposing criminal liability on the executive governments of other polities in the federation in similar terms.  In other words, and to adopt the formulation from the explanatory memorandum, ‘the extent’ to which it was intended to render the Crown liable to prosecution for offences against the Act was ‘the Territory Crown in any of its capacities’.  The only available conclusion is that there was no intention to impose criminal liability on other polities in the federation.

13. The fact that the Northern Territory is conferred with authority under s 73 of the Land Rights Act to make laws for ‘the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory, including sites on Aboriginal land’ on the proviso that such laws are capable of operating concurrently with Commonwealth laws, including the EPBC Act, does not mean that s 34(1) of the Sacred Sites Act is intended to attach criminal liability to the Director. In its relevant operation, s 73 of the Land Rights Act is a conferral of legislative authority on the Northern Territory with an acknowledgement of the already subsisting constitutional restriction that laws made in the exercise of that authority cannot be inconsistent with or repugnant to Commonwealth laws.[120]  The submission that there is a ‘rational integration’ between the Sacred Sites Act and the EPBC Act unduly elevates that recognition of the constitutional restriction.  If anything, that recognition draws attention to the primacy of the Commonwealth management regime.  The grant of legislative authority in those terms does not obviate a consideration of whether a statute enacted in the exercise of that authority is intended to impose criminal liability on the Commonwealth executive. 

14. Nor does advertence to Bropho and the general intention of the heritage legislation under consideration in that case assist in the resolution of the present question.  As already observed, the decision in Bropho was concerned with the imposition of criminal liability on the agents of the executive of the enacting polity rather than the executive of another polity; and the finding in Bropho was only that by necessary implication the criminal offence provision in the heritage legislation applied indifferently to natural persons having regard to the subject matter, disclosed policy and purpose of that particular legislation.  Even accepting that the Sacred Sites Act applies to all sacred sites irrespective of where they are found or situated in the Northern Territory, and that it applies to Crown land, it is not possible to make the necessary implication that it is intended to impose criminal liability on the Commonwealth executive given the very deliberate legislative choice made to limit the imposition of criminal liability to the Territory Crown which has been described above. Had the legislature intended to expand the imposition of criminal liability to other polities, it would have been easy to include a reference to the Crown in all its capacities in s 4(2) of the Sacred Sites Act, as was done in s 4(1). The failure to take that step reveals a reasonably clear legislative intention that the executive authorities and instrumentalities of other polities were not intended to be covered.

15. The cumulative effect of these considerations outweighs the general statement in s 4(1) of the Sacred Sites Act, common to many modern statutes, that the Act seeks to bind the Crown in right of the enacting polity and, to the extent the legislative power of the legislature permits, the Crown in all its other capacities.  While that provision may be effective in subjecting Commonwealth authorities and instrumentalities to injunction, mandamus and ordinary civil remedies, as a matter of statutory construction it does not impose a criminal liability on the Director.  To the extent that this conclusion might be said to immunise Commonwealth authorities and instrumentalities from criminal liability under the Sacred Sites Act, that will depend in every case on whether on proper characterisation of the instrumentality’s legal status it is entitled to that immunity.  It is also an immunity which the Northern Territory Legislative Assembly may remove by the enactment of legislation in sufficiently clear terms (subject to any question of inconsistency or repugnancy).

    Constitutional intergovernmental immunity

16. That finding makes it strictly unnecessary to determine whether the offence and penalty prescribed by s 34(1) of the Sacred Sites Act do not apply to the Director of National Parks because that application would be beyond the authority of the Legislative Assembly of the Northern Territory.[121]  However, we will go on to consider that question lest we are wrong in our conclusion that the Cain v Doyle presumption is capable of applying to the Director as a statutory corporation.

17. The argument put by the Attorney-General of the Commonwealth in this respect is, in essence, that the legislative power of the Northern Territory of Australia does not exceed that of the States in terms of binding the Commonwealth; and that the constitutionally implied immunity of the Commonwealth from certain State laws[122] also extends to Territory laws which would in substance prohibit the exercise of the capacities of the Commonwealth.  The Sacred Sites Act is said to be such a law in its relevant operation.  This argument may be dealt with in relatively short order.

18. First, the Northern Territory (Self-Government) Act 1978 (Cth) (the Self-Government Act) established the Northern Territory of Australia as a body politic under the Crown (s 5), the Legislative Assembly (s 13), the office of the Administrator (s 32) and the Executive Council of the Northern Territory comprising the persons for the time being holding Ministerial office (s 33); and conferred duties, powers, functions and authorities upon the Legislative Assembly and these other institutions.[123] As part of the establishment of the self-governing body politic, s 6 of the Self-Government Act confers on the Legislative Assembly the power ‘to make laws for the peace, order and good government of the Territory’.  The exercise of legislative power by the Legislative Assembly is not an exercise of the Commonwealth Parliament’s legislative power;[124] the Legislative Assembly is not an agent or delegate of the Parliament;[125] and that legislative authority is of the same quality as that enjoyed by the legislatures of the States.[126]

19. Secondly, the doctrine expressed in Cigamatic[127] and qualified in Henderson[128] is founded on the principle that the legislative powers of the States do not extend to the destruction, modification or qualification of the capacities of the Crown in right of the Commonwealth.  That principle is not simply the obverse or counterpart of the principle upon which the decision in Melbourne Corporation[129] depended.  The Melbourne Corporation principle prohibits Commonwealth laws which discriminate by placing special burdens or disabilities on the States, or which operate to destroy or curtail the continued existence of the States or their capacity to function as governments.[130]  On the other hand, the qualified Cigamatic doctrine will operate to invalidate State laws which purport to modify or restrict a power granted to the Commonwealth by Commonwealth law or a prerogative power conferred by the Constitution[131] on the basis that such a law would be offensive to s 61 of the Constitution.[132] 

20. Thirdly, leaving aside questions of inconsistency and repugnancy, the Commonwealth and its instrumentalities may be bound by Northern Territory legislation[133] just as they may be bound by State legislation[134].  The position of the Northern Territory in this respect may be distinguished from that of the Australian Capital Territory, which is subject to an express provision that its statutes cannot bind the Commonwealth except where otherwise provided in the regulations.[135] However, the legislative authority of the Northern Territory is necessarily subject to the implication arising from s 61 of the Constitution that the exercise of that authority may not impinge on, or attempt to detract from, the Commonwealth’s capacities or prerogative powers. That implication is not displaced or obviated by the fact that s 122 of the Constitution confers plenary legislative authority on the Commonwealth in relation to the Northern Territory.  To say that the Commonwealth has legislative capacity to displace any Northern Territory law which restricts Commonwealth executive capacity does not answer the question of whether the Northern Territory has legislative authority to enact such a law.

1. Fourthly, the constitutionally implied immunity of the Commonwealth extends to its statutory authorities and instrumentalities to the extent that in carrying out their functions they are acting in the exercise of the executive capacity of the Commonwealth. On one analysis, that requires only that the authority or instrumentality is in its activities exercising the executive power of the Commonwealth vested mediately under s 61 of the Constitution; but on another analysis it requires that the authority or instrumentality is so practically identified with a Commonwealth department as to be indistinguishable from it.[136] 

2. Fifthly, a distinction is to be drawn between the immunity enjoyed by the capacities and functions of the Crown in right of the Commonwealth, and the application of State and Territory laws to transactions in which the Commonwealth may choose to engage in the exercise of those capacities and functions.  Although the States and Territories have no legislative authority to modify a grant of executive power conferred on an executive government instrumentality by a law of the Commonwealth, they do have legislative authority to regulate transactions and activities into which the Commonwealth instrumentality may choose to enter.  Once the Commonwealth has exercised a choice to enter into a transaction or activity, its executive power is not affected merely because the incidents of the transaction or activity are prescribed by a State or Territory law.  That recognises the distinction between legislation which purports to modify the executive capacities of the Commonwealth and legislation which merely seeks to regulate activities in which the Commonwealth may choose to engage in the exercise of those capacities.[137]  By authorising a department, authority or instrumentality to carry out an activity, in the absence of a contrary indication the Parliament recognises that the Executive is to be bound by the common law rules and statutes applying in the States and Territories.[138] 

3. Accordingly, the operation of the immunity is limited to State and Territory laws which purport to alter the Commonwealth’s unique executive capacities, or which otherwise operate differentially upon the Commonwealth compared to its subjects. Section 34 of the Sacred Sites Act proscribes carrying out work on or using a sacred site except as permitted by a Certificate.  On the assumption that the provision imposes a requirement on the Director, in making that provision the Sacred Sites Act does nothing to alter or deny the functions or capacities of the Director to the extent that it is acting in the exercise of the executive capacity of the Commonwealth, notwithstanding that the law might regulate the Director’s activities in relation to sacred sites as it regulates the same activities on the part of others.  It is a Northern Territory law of general application which might govern an activity into which the Director chooses to enter in the exercise of its functions and capacities. 

4. That characterisation is not changed by the fact that the requirement to obtain a Certificate arises in the Director’s management of the Park. That requirement does not subtract from the Commonwealth’s executive power, but rather regulates its exercise in a very narrow and specific aspect. That is so regardless of whether the executive power in question is characterised as the exercise of the nationhood power conferred directly by s 61 of the Constitution or the exercise of power conferred by Commonwealth law. Even leaving the scope of the regulation aside, there can be no subtraction in circumstances where the executive authority conferred on the Director is limited by the requirement in the Management Plan for an Authority Certificate in respect of any action with potential impact upon a sacred site.

5. For these reasons, the law is not beyond the legislative power of the Legislative Assembly; but that is a question different to whether the law binds the Director as a matter of statutory construction.

______________________

[1]The special case does not involve the availability of any defence under s 36 of the Sacred Sites Act, or any operational inconsistency between s 34 of the Sacred Sites Act and the EPBC Act, as they are questions which may depend on contested factual matters.

[2]EPBC Act, s 514E(1)(c).

[3]EPBC Act, s 514B(1)(a).

[4]EPBC Act, s 514F.

[5]The organisational charts published by the Department during the material time period are annexed to the Special Case as Documents 2 and 3 at pages 9 and 11, respectively.

[6]The Director's Annual Report 2018-19 and Corporate Plan 2019-23 are annexed to the Special Case as Documents 4 and 5 at pages 13 and 189, respectively.

[7]The MOU is annexed to the Special Case as Document 6 at page 222.

[8]Examples of contracts approved by the Minister are annexed to the Special Case as Documents 7A, 7B, 7C, 7D and 8 at pages 228, 295, 299, 301 and 304, respectively.

[9]The contract is annexed to the Special Case as Document 9 at page 323.

[10]The Proclamation is annexed to the Special Case as Document 10 at page 347.

[11]The lease is annexed to the Special Case as Document 11 at page 360.

[12]The current protocol is annexed to the Special Case as Document 12 at page 396.

[13]The Management Plan was proposed by the Director and approved by the Minister under s 370 of the EPBC Act on 25 November 2015. The Management Plan is annexed to the Special Case as Document 13 at page 405.

[14]Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392, [33]; ACCC v Baxter Healthcare Pty Ltd (2007) 232 CLR 1, [39]; Bropho v Western Australia (1990) 171 CLR 1, 21-22; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, [15], [18]; Bradken Consolidated Limited  v Broken Hill Proprietary Company Limited (1979) 145 CLR 107, 122-123, 129, 136.

[15]Bropho v Western Australia (1990) 171 CLR 1, 21-22, 23-24; Jacobsen v Rogers (1995) 182 CLR 572, 586; ACCC v Baxter Healthcare Pty Ltd (2007) 232 CLR 1, [41].

[16]Commonwealth v Anti-Discrimination Tribunal (Tasmania) (2008) 169 FCR 85, [188].

[17]In State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 270, a distinction was drawn between 'a presumption of the kind discussed in Bropho' and 'a presumption based upon the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty'; cf Commissioner of Taxation v Tomaras (2018) 265 CLR 434, [108], in which Edelman J approached the matter on the basis of a single presumption which will be 'extraordinarily strong' where the statute imposes criminal liability.

[18]Telstra Corp Ltd v Worthing (1999) 197 CLR 61, [21]-[22]; Cain v Doyle (1946) 72 CLR 409, 425; Wurridjal v Commonwealth (2009) 237 CLR 309, [164]; cf Pirrie v McFarlane (1925) 36 CLR 170, in which the State legislation imposed criminal sanction on individual members of the Defence Force rather than the executive government of the Commonwealth.

[19]Austin v Commonwealth (2003) 215 CLR 185, [114]; O'Donoghue v Ireland (2008) 234 CLR 599, [51]; Re Residential Tenancies Tribunal (NSW) and Henderson; Ex Parte Defence Housing Authority (1997) 190 CLR 410, 472; Cain v Doyle (1946) 72 CLR 409, 424; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, [17].

[20]Cain v Doyle (1946) 72 CLR 409.

[21]Cain v Doyle (1946) 72 CLR 409, 424.

[22]Cain v Doyle (1946) 72 CLR 409, 416-419.

[23]Cain v Doyle (1946) 72 CLR 409, 419.

[24]Cain v Doyle (1946) 72 CLR 409, 418-419.

[25]State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253.

[26]State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 269-270.

[27]State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 293-294.

[28]State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 270, 294.

[29]Telstra Corporation Ltd v Worthing (1999) 197 CLR 61.

[30]Telstra Corporation Ltd v Worthing (1999) 197 CLR 61, [22]. It should be noted that Telecom was found to have immunity on the basis of a statutory provision to the effect that it 'was not subject to the requirement, obligation, liability, penalty or disability under a law of a State to which the Commonwealth itself was not subject'. The case did not decide whether Telecom was an instrumentality which otherwise had the same legal status as the Commonwealth for the purpose of the presumption.

[31]Bropho v Western Australia (1990) 171 CLR 1.

[32]Bropho v Western Australia (1990) 171 CLR 1, 15-17.

[33]Bropho v Western Australia (1990) 171 CLR 1, 19.

[34]Bropho v Western Australia (1990) 171 CLR 1, 21-22.

[35]Bropho v Western Australia (1990) 171 CLR 1, 23-24.

[36]Bropho v Western Australia (1990) 171 CLR 1, 23.

[37]Bropho v Western Australia (1990) 171 CLR 1, 24-25.

[38]Bropho v Western Australia (1990) 171 CLR 1, 28-29.

[39]Bropho v Western Australia (1990) 171 CLR 1, 28.

[40]Cain v Doyle (1946) 72 CLR 409.

[41]Bropho v Western Australia (1990) 171 CLR 1, 26.

[42]State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253.

[43]Telstra Corporation Ltd v Worthing (1999) 197 CLR 61.

[44]Cain v Doyle (1946) 72 CLR 409, 418.

[45]Sue v Hill (1999) 199 CLR 462, [87].

[46]Bropho v Western Australia (1990) 171 CLR 1, 15-16. See also Brennan J's observation (at 27) that the presumption of immunity extends to 'the executive government', which must stand in contradistinction to the Commonwealth as a single legal entity.

[47]Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392, [33].

[48]State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 270, 294. Although the New South Wales legislation creating the Board provided that it was a statutory body representing the Crown in right of New South Wales, that was not determinative of the question whether it enjoyed the same legal status as the Crown for the purpose of the immunity.

[49]That the privileges and immunities of the Crown may be conferred on a statutory corporation by implication arising from the legislation was acknowledged by Gibbs CJ in Townsville Hospital Board v Townsville City Council (1982) 149 CLR 282, 291.

[50]State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253.

[51]Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219, 230-231.

[52]State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253, 283-284.

[53]SCH Ltd v Commissioner of Taxation (2002) 210 CLR 51, [15], [45].

[54]SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51.

[55]SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51, [13]; citing Dixon J in Bank of NSW v The Commonwealth (1948) 76 CLR 1, 363.

[56]Spence v Queensland (2019) 268 CLR 355, [105]; citing Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29, 85.

[57]SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51, [16].

[58]Inglis v Commonwealth Trading Bank of Australia (1969) 119 CLR 334, 337-338.

[59]Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330.

[60]Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330, 342.

[61]Federated Amalgamated Government Railways and Tramways Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488, 535; quoted in Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530, 542-543.

[62]Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330, 347, 349.

[63]Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330, 347-349, 354, 365; Queanbeyan City Council v ACTEW Corporation Ltd (2011) 244 CLR 530, 543-544.

[64]Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330, 348.

[65]Superannuation Fund Investment Trust v Commissioner of Stamps (SA) (1979) 145 CLR 330, 349, 354-355, 365, 371.

[66]Townsville Hospital Board v Townsville City Council (1982) 149 CLR 282.

[67]Townsville Hospital Board v Townsville City Council (1982) 149 CLR 282, 289-291.

[68]EPBC Act, s 514B.

[69]National Parks and Wildlife Conservation Act 1975, s 6(1).

[70]National Parks and Wildlife Conservation Act 1975, s 7(2), (5).

[71]National Parks and Wildlife Conservation Act 1975, s 7(7).

[72]National Parks and Wildlife Conservation Act 1975, s 9.

[73]National Parks and Wildlife Conservation Act 1975, ss 11, 12.

[74]National Parks and Wildlife Conservation Act 1975, s 14.

[75]National Parks and Wildlife Conservation Act 1975, s 16 (1), (2).

[76]EPBC Act, s 344.

[77]EPBC Act, Sch 4, item 3.

[78]EPBC Act, s 514A.

[79]EPBC Act, s 345A.

[80]EPBC Act, s 351.

[81]EPBC Act, s 352.

[82]EPBC Act, s 514B(1).

[83]EPBC Act, s 514C(2).

[84]EPBC Act, s 514F.

[85]EPBC Act, ss 514H, 514J, 514K, 514M, 514Q.

[86]EPBC Act, s 514P.

[87]EPBC Act, s 514F(3).

[88]EPBC Act, s 514D(1).

[89]EPBC Act, s 514D(5).

[90]EPBC Act, s 356A.

[91]EPBC Act, s 515.

[92]EPBC Act, s 514R.

[93]EPBC Act, s 514S.

[94]EPBC Act, s 514W.

[95]EPBC Act, s 514U: Public Governance, Performance and Accountability Act 2013, ss 10, 11.

[96]Public Governance, Performance and Accountability Act 2013, s 11.

[97]EPBC Act, ss 354, 366-368, 370-371.

[98]EPBC Act, s 362.

[99]EPBC Act, s 363.

[100]EPBC Act, s 364.

[101]EPBC Act, s 371.

[102]Kakadu National Park Management Plan 2016-2026.

[103]EPBC Act, ss 366, 369, 374.

[104]Management Plan, Section 1.3.

[105]Management Plan, Section 1.4.

[106]Management Plan, Section 1.5.

[107]Management Plan, Section 4, p 28.

[108]EPBC Act, ss 354A(1), (3), (5).

[109]EPBC Act, s 354A(8).

[110]EPBC Act, s 354A(10).

[111]EPBC Act, ss 354A(11), 385.

[112]Management Plan, Section 9.5.

[113]Management Plan, Section 9.5, Table 4, Category 2.

[114]Management Plan, Section 9.5, Table 4, Category 3.

[115]That conclusion has nothing necessarily to say about the criminal liability of employees and contractors of the Director: cf Wurridjal v Commonwealth (2009) 237 CLR 309, [164]-[165]. The plurality in Bropho distinguish between Crown instrumentalities and employees or agents.  Although rule of law presumptions and considerations may weigh against immunity from criminal liability for employees and other natural persons, they do not weigh against immunity for statutory corporations which on proper characterisation enjoy the legal status of the Commonwealth for that purpose.

[116]AGU v Commonwealth of Australia (No 2) (2013) 86 NSWLR 348, [29]. That is a question which turns upon the construction of the legislation as a whole: see, for example, Council of the Municipality of Botany v Federal Airports Corporation (1992) 175 CLR 453, 466-467.

[117]Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107, 121-123, 127-129, 134-135; Jacobsen v Rogers (1995) 182 CLR 572, 585, 601-603; Commonwealth v Western Australia (1999) 196 CLR 392, [32].

[118]Telstra Corporation Ltd v Worthing (1999) 197 CLR 61, [115], [121]-[122].

[119]The Interpretation Act 1978 (NT), s 18A provides that a reference to an 'Agency' means a department, authority or body nominated as an Agency in an Administrative Arrangements Order or declared to be an Agency for the purposes of the public sector employment or financial legislation.

[120]Northern Territory v GPAO (1999) 196 CLR 553, 576, 579-580, 581-2, 630; R v Kearney; ex parte Japanangka (1984) 158 CLR 395, 418; Pritchard v Racecage (1996) 64 FCR 96, 121; University of Wollongong v Metwally (1984) 158 CLR 447, 464; Federal Capital Commission v Lariston Building and Investment Co Pty Ltd (1929) 42 CLR 582, 588.

[121]See Zhang v Commissioner of Police (2021) 95 ALJR 432, [21].

[122]Recognised in cases such as Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 and Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410.

[123]     The status of self-governing territories as separate bodies politic has been confirmed: see, for example, R v Toohey; ex parte Northern Land Council (1981) 151 CLR 170; Jennings Constructions v Burgundy Royale Investments (1987) 162 CLR 153; Svikart v Stewart (1994) 181 CLR 548; Traut v Rogers (1984) 70 FLR 17, 19-20; Northern Territory v Skywest Airlines (1987) 90 FLR 270; Attorney-General (NT) v Minister for Aboriginal Affairs (1989) 25 FCR 345; Waters v Acting Administrator for the Northern Territory (1993) 46 FCR 462; Wake and Gondarra v Northern Territory (1996) 124 FLR 298.

[124]Svikart v Stewart (1994) 181 CLR 548, 562, 574; Capital Duplicators v Australian Capital Territory (1992) 177 CLR 248, 265-266, 282, 284; Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 352-353; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [171], [179].

[125]The Queen v Burah (1878) 3 App Cas 889; Hodge v The Queen (1883) 9 App Cas 117; Powell v Apollo Candle Co (1885) 10 App Cas 282.

[126]R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170, 279; Capital Duplicators v Australian Capital Territory (1992) 177 CLR 248, 281-282; Svikart v Stewart (1994) 181 CLR 548, 574. The Legislative Assembly is vested with a plenary power to legislate on all subject matters relating to the Northern Territory, subject to certain qualifications which are not relevant for these purposes: Self-Government Act, ss 49, 50(1), 53(5).

[127]Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372.

[128]Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410.

[129]Melbourne Corporation v The Commonwealth (1947) 74 CLR 31.

[130]Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192, 217; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25, 93. These are now seen as different aspects of the one limitation on Commonwealth power: see Austin v Commonwealth (2003) 215 CLR 185, [124]-139], [281].

[131]The plurality in Henderson proceeded on the basis that the doctrine had application in relation to both prerogative powers and executive powers conferred by statute.  This remains the position presently binding on this Court notwithstanding the minority view that the Cigamatic doctrine is narrowly confined to the executive power of the Commonwealth conferred immediately by s 61 of the Constitution, rather than powers conferred mediately by statute. See also Austral Pacific Group Ltd (in liq) v Airservices Australia (2000) 203 CLR 136, [14].

[132]That is so notwithstanding the description of the operation of the doctrine of inter-governmental immunities as 'reciprocal' in Spence v Queensland (2019) 268 CLR 355, [108].

[133]In relation to the Northern Territory, see the discussion in Commonwealth v Newcrest Mining (WA) Ltd (1995) 58 FCR 167, 176-180. See also Northern Territory v GPAO (1999) 196 CLR 553, [32], [78]-[86], [93], [134]-[146], [249]-[253], in which it was held that Northern Territory laws dealing with procedure, evidence and competency of witnesses are binding on courts exercising federal jurisdiction unless otherwise provided by the Constitution or Commonwealth law.

[134]See Pirrie v McFarlane (1925) 36 CLR 170.

[135]Australian Capital Territory (Self-Government) Act 1988 (Cth), s 27.

[136]See Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410; 438, 446-447; cf 453, 459, 469-470.

[137]Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410, 427, 442-443. This remains the authority presently binding on this Court notwithstanding criticisms of the doctrine and what is said to be its unsettled state, and criticisms of the distinction between capacities and their exercise: see, for example, Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410, 454-455, 469-470, 509. Commonwealth v Western Australia (Mining Act Case ) (1999) 196 CLR 392, [78], [230]; SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51, [52].

[138]Re Residential Tenancies Tribunal (NSW) and Henderson; Ex parte Defence Housing Authority (1997) 190 CLR 410, 427, 442-443.