Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks & Anor

[2023] HCATrans 182

[2023] HCATrans 182

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D3 of 2023

B e t w e e n -

CHIEF EXECUTIVE OFFICER, ABORIGINAL AREAS PROTECTION AUTHORITY

Appellant

and

DIRECTOR OF NATIONAL PARKS (ABN 13 051 694 963)

First Respondent

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Second Respondent

GAGELER CJ
GORDON J
EDELMAN J
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 13 DECEMBER 2023, AT 10.01 AM

(Continued from 12/12/23)

Copyright in the High Court of Australia

____________________

GAGELER CJ:   Yes, Mr Solicitor.

MR DONAGHUE:   Your Honours, I was addressing the proposition that Cain v Doyle can apply to the benefit of statutory corporations that are intended by the Parliament that creates them to have the same legal status as the body politic itself.  I had finished with SASB and would invite your Honours now to turn to Telstra v Worthing (1999) 197 CLR 61, the other case I identified in answering Justice Beech‑Jones. Telstra is in volume 6, tab 38.

Your Honours will recall that this is a case in which a worker made a claim for compensation with respect to an injury that occurred while working for the Australian Telecommunications Commission, which subsequently became Telecom and then became Telstra, a Commonwealth statutory corporation.  The claim was made under the New South Wales workers compensation legislation.

As your Honours heard yesterday, there was an express provision in the Telecommunications Act that created the Commission in section 21(3) that said it was not subject to any liability to which the Commonwealth was not subject – and I will come to the significance of that in a moment.  If your Honours could turn to paragraph 15 of the report, you will see in the first few lines that the State act, the Workers Compensation Act, in question – there were several versions but, relevantly, the 1987 Act:

contains an express statement (s 6(1)) that it “binds the Crown, not only in the right of New South Wale but also, so far as the legislative power of Parliament permits, in all its other capacities”.

That is, it contains a direct analogue to section 4(1) of the Sacred Sites Act.The first question in the case was whether the term “employer” in the Workers Compensation Act included the Commission.  The answer to that question appears in paragraph 18 and the answer is that it was.  I do not need to rehearse the reasons that take one to that conclusion, but the Court rejected the argument that, effectively, at the level of the Bropho presumption and whether the civil obligations were held to extend to the Commission as an employer.

That then meant that the Court reached the question whether or not the Cain v Doyle presumption was reached, and that was enlivened on the facts of this case because of the provision in 21(3) that I have mentioned, which you see referred to in paragraph 19.  So, having rejected the statutory construction argument at 18, the Court says:

Therefore, it is necessary to consider . . . section 21(3) . . . The effect of that provision is that the Commission was not subject to any liability under either State statute to which the Commonwealth was not subjected.

Your Honours will recall that section 6(1) means that the Commonwealth was expressly bound by this Act.  Section 21(3) simply put the Commission in the same position as the Commonwealth was in by reason of section 6(1) – that is, if it was in the same position as the Commonwealth, and the Commonwealth is bound, then the Commission is bound.

That did not mean that the Commission was subject to criminal liability under the Act, for the reasons explained in paragraphs 21 and 22.  In 21, the Court refers to the express statement in 6(1) – the Crown being bound in all of its capacities – but it then explains in the balance of paragraph 21 that it was central to the legislative scheme that it was backed by the sanction of criminal penalty.  Then in 22, the critical sentences:

It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth.

Notwithstanding the fact that the Commonwealth was bound under 6(1).  The footnote to that sentence is instructive.  It is a direct application of Justice Dixon in Cain v Doyle.  But following Cain v Doyle, one sees the citation of State Authorities Superannuation Board and note the pinpoints.  They include 277 and 294; 294 is the passage that I emphasised yesterday, in which Justices McHugh and Gummow expressly held that Cain v Doyle operates to the benefit of a statutory corporation – the SASB. 

Their Honours unanimously appear to be endorsing that passage, and they also appear to be treating the reasoning on 277 – upon which I also relied yesterday afternoon – as materially to the same effect, which was the submission, you will recall, that I made.  Their Honours also cite Re Residential Tenancies Tribunal, including, at 472, the reasons of Justice Gummow, which is the next case I am going to come to, but if your Honours would note that that reasoning also appears to receive the endorsement of the Court in that passage. 

Because of the Cain v Doyle principle relied upon in the first sentence of paragraph 21, the clearest indication of a legislative purpose is needed to demonstrate that penal provisions attach, notwithstanding an express provision of the kind you see in section 6(1) of that Act, 4(1) of the Sacred Sites Act.  The holding at paragraph 23:

We conclude that the liabilities . . . which are at stake . . . are not liabilities to which the Commonwealth is subjected.

therefore, the Commission is also not subject to them, in my submission, is a holding that a general provision of the kind that you see in section 4(1) of the Sacred Sites Act is not sufficient to rebut Cain v Doyle.

GAGELER CJ: Mr Solicitor, if that were right, the Court would not have decided this point, under section 109 of the Constitution, is a conflict between the Commonwealth Act and the State Act.  That was the holding at paragraph 24.  I accept that there may be a difficulty with one of the citations in footnote 56, but leaving that aside, one way of reading this is that the Court is saying that Cain v Doyle applies to the Commonwealth and through – the Commonwealth, as the Commonwealth, and it is through the operation of section 21(3) that, effectively, a Commonwealth immunity is conferred on the Commission, and it is then through the operation of section 109 of the Constitution that the State Act is rendered inapplicable.

MR DONAGHUE:   Your Honour, in my submission, the citations in footnote (56) do not suggest that mode of reasoning.  I was going to come to this, but perhaps I will deal with it now.  In my submission, in this area, when one is looking at this particular fact pattern of a State law purporting to apply liability to a Commonwealth body, one tends to gravitate in the direction of a 109 argument because the statutory corporation will have been created by the Commonwealth statute and it will therefore appear as a situation of inconsistency.

But, in my submission, the Cain v Doyle analysis is helpfully explicated by reversing the situation and imagining a Commonwealth criminal offence and a State body.  If the Commonwealth criminal offence is properly construed, consistently with Cain v Doyle, as not purporting to impose criminal liability on the body politic unless it displays a sufficiently clear intention to do so, one then goes to the State law and says what is the character of that State body?  Was it intended to be created as a body that has the character of the body politic, and, if so, it is not bound by the Commonwealth law because the Commonwealth law is not properly construed as purporting to bind it, so one never gets a situation of tension or inconsistency between the Commonwealth law and the State law.  One is just giving effect to the combined legislative intentions of the two parties when one intersects them.

If that is right in that scenario, then it is equally true in the reverse scenario.  Here, I accept that one reached the conclusion that the Commission had the same immunities as the Commonwealth because of an express provision in section 21(3), which again points one in an inconsistency direction.  But, in my submission, there is no principle of law that would say that what Parliament can achieve by an express provision it cannot achieve by a sufficiently clear implication.

GORDON J:   Well, I do not know about that.  Can we just take 22 at the moment.  The opening statement is, arguably, just Cain v Doyle general proposition.  Here we have no – in Telstra we have an express statement to the contrary in section 6(2), and then what it says in the third sentence is that the penal provisions are so central to the operation that one cannot do what we discussed yesterday and bifurcate the preventative from the prosecutorial.

That gives rise, as the Chief Justice said, to the 109 inconsistency down below. But as a matter of – whether you look at it as separation of powers, Chapters in the Constitution – if you have got a body corporate or a statutory corporation, if there is no express statement made, and it is open to the Parliament to provide it, and there is no implied statement, then, as the Court said in Townsville, we should be very reluctant to go on and impose or provide for an immunity unless it is clear on the statute that it is both either express and/or implied by reference to the body itself.

MR DONAGHUE:   But, your Honour, that was my point, that it can be implied.  So, in Telstra it was express, but it can be implied.  If a statutory corporation can get the benefit of Cain v Doyle by an express provision then a statutory corporation can get the benefit of Cain v Doyle by an implied provision, it is just a matter of interpreting ‑ ‑ ‑ 

GORDON J:   Well, I do not know about that, subject to the qualification in Townsville.  The Court should be very hesitant to do it.

MR DONAGHUE:   Your Honour, the Court said that in Townsville, but then there are pages of analysis as to whether, as a matter of implication on the face of that statutory scheme, it was or was not intended to have the benefit of the presumption and the conclusion on that statutory scheme was no, but there was an analysis of the very kind that we urge upon the Court of the scheme.

My friend relied on Kirkland, which I will come to if I have time, which is a case from 1923 where you see the same thing, a statutory corporation created to administer functions formerly performed by a Department, subject to ministerial control, and the analysis is whether, as a matter of the statute that created that statutory incorporation, it does or does not get the benefit of the presumptions of the body politic.

This is not a new analysis that we are urging upon the Court.  You read the Act that created the statutory corporation and determine whether, on its proper construction, it was intended to have the same status as the Crown.  When you have a provision like 21(3) it makes the task easy, but you often do not, historically, and the Court has identified factors that assist in the interpretative task, and they are the factors that I will come to at the end of my address this morning.

But the reason I say to your Honour Justice Beech‑Jones in answer to a question yesterday that Telstra is authority is that Telstra did, in my submission, get the benefit of Cain v Doyle, and the first two sentences of paragraph 22 states Cain v Doyle and then says:

No such indication is to be seen in the 1987 State Act.

It states Cain v Doyle and it applies it.

BEECH‑JONES J:   Mr Solicitor, on your analysis of the form of implication, is the implication – is it sufficient that it was intended to fall within what used to be described as the shield of the Crown?

MR DONAGHUE:   Yes.

BEECH‑JONES J:   Or has it got to be something a bit higher?

MR DONAGHUE:   No, it is sufficient that it falls within the shield of the Crown, and then what is required – what is higher is the clarity of the intention on the offence‑enacting Parliament to state its intention clearly; that is the difference, not at the level of status.

BEECH‑JONES J:   I understand.

GLEESON J:   Does your analysis involve treating Cain v Doyle as a separate presumption from the Bropho presumption, or can it equally work as an aspect of that presumption?

MR DONAGHUE:   In my submission, it is preferable to keep it separate.  I appreciate that it has sometimes been treated as a dimension, but ordinarily it has been treated as separate.  The reason for that is that Bropho is now understood as a multifactorial assessment that might lead to a stronger or weaker presumption depending on a range of different circumstances.

Cain v Doyle has not been understood in that way.  This Court has said at least half a dozen times in the last 25 years the imposition of criminal liability on the Crown is, quote, extraordinary.  It is not something that can be moved up and down such that – on this case, as our friends would have it – completely general words impose criminal liability on the body politic.

EDELMAN J:   There may actually not be much of a difference on this point between you and the appellant, because if one sees Cain v Doyle – I think, to paraphrase what Mr Gleeson said – it is sitting at one extreme of the Bropho presumption, the very strong form of the Bropho presumption, we end up with exactly what you say.

MR DONAGHUE:   Your Honour, I accept that there is force in that.  If, in the multifactorial assessment, one of the factors is the imposition of criminal liability on the body politic or a body with the same factor, and that multifactorial factor, where present, will put you at the very strong end, then you probably do end up with the same result.  But what you cannot do, which, as I apprehend it, the appellant seeks to do, is say criminal liability on the body politic is one thing to put into the mix, but it might still end up at the other end of the spectrum. 

Your Honours, I wanted to take you also to Justice Gummow in Residential Tenancies (1997) 190 CLR 410, which is volume 5, tab 33. This is the pinpoint that was picked up in paragraph 22 of Telstra, and his Honour here makes two relevant points for our present purposes ‑ ‑ ‑

GORDON J:   What page are we at, Mr Solicitor?

MR DONAGHUE:   Sorry, 472, your Honour.  About halfway down.  It is true that this occurs under the heading of Cigamatic, the content of Cigamatic, but his Honour at this point of the analysis is making – in my submission – a more general, introductory point.  His Honour says, about halfway down:

Secondly, when one speaks of a State law which purports to “bind” the Commonwealth . . . the law in question . . . may establish a regulatory regime enforced by criminal sanctions as well as civil remedies.

Then his Honour makes the bifurcation point that was discussed yesterday, including in SASB:

It may be one thing to expose one element in the federation to civil action by another and, indeed, s 75(iii) and (iv) provides for federal jurisdiction in such matters, but it is another thing altogether to expose an element in the federation to criminal sanction.

So, he is contemplating bifurcation.  He explains Pirrie v McFarlane as a case imposing criminal sanction on the individual – as again, was discussed yesterday:

On that footing, the case was correctly decided.

And then his Honour says:

It would be to enter into another dimension to conclude that a State might create a criminal offence committed by the Commonwealth in respect of the conduct by the Commonwealth itself –

The report says “of” but it appears that it should be “or”:

its Executive Government.

Footnoting Cain v Doyle, Bropho, SASB, including the same set of passages.  His Honour appears to have regarded it as absurd to contemplate that a State might create a criminal offence to be committed by the Commonwealth Executive Government, and that passage is cited in Telstra.

GAGELER CJ:   This, of course, is after his Honour had drawn a distinction between the authority and the Executive Government in the previous analysis.

MR DONAGHUE:   Yes, his Honour seemed to be – sometimes his Honour refers to the “Executive Government” in a stricter body politic‑type sense.  It is not – the possible typo that I have drawn attention to is interesting in that respect, because it suggests that the Commonwealth itself and the Executive Government might be being used there as different concepts rather than as the same concept, and if that is right, the Executive Government must be wider than the body politic proper.

GAGELER CJ:   It is capital‑E capital‑G after an analysis of section 61, so I think his Honour is being quite specific there about the sense in which he is using “Executive Government”.

MR DONAGHUE:   Yes.

GLEESON J:   In any event, declaiming something as – or deriding it is “absurd” is not very helpful.

MR DONAGHUE:   Ultimately, your Honour, where I go with all of this, and that really takes me to the next part of my submissions, is that we emphasise again that Cain v Doyle is not an immunity rule, it is a presumption.  One is asking how likely is it, when you interpret a statute that just uses general words – here, it refers in general terms to body corporates – in circumstances where it is perfectly possible that lots of body corporates that have nothing to do with the Commonwealth might commit offences of the kind in question.  You can see why Parliament purported to criminalise behaviour of body corporates.  How likely is it that Parliament intended to embrace the body politic within that criminal offence, including here the body politic of another polity?  Justice Gummow seems to think it is absurd, the Court has said multiple times it is an extraordinary thing to do.

Cain v Doyle just recognises that by saying this is an unusual thing to do.  It should only be held to have been done when you can see clearly that Parliament has turned its mind to the question and decided deliberately to do it.  General words like “person”, “employer”, “body corporate” do not do it, because Parliament might have used those words intending to capture the governed generally and not to impose criminal liability on others.  All that Cain v Doyle requires is that Parliament directly grapple with that proposition.  It is relevant that his Honour thought it absurd because it underpins why the Court should, in our respectful submission, be very careful before it takes a general – or upholds a proposition of law that a very general statement might impose criminal liability in circumstances where that has always been described by this Court as an extraordinary thing to do.

BEECH‑JONES J:   Mr Solicitor, I should have asked you this earlier – beyond this idea of the King can do no wrong, or the absurdity of the body politic being dragged before a court, what is the underlying rationale for this rule?

MR DONAGHUE:   It is really, your Honour, as I have just attempted to state it, to recognise that, as a matter of history, the imposition of Crown upon the body politic is an unusual step and to make sure it does not happen by accident, by the very loose or general expressions that Parliament could use without ever having averted to the fact that in doing so, it might be doing something that is historically an unusual thing to do.  That is the main, we submit, modern rationale for the principle.

EDELMAN J:   That is because the history feeds into the reasonable expectations of those who read the legislation, which is why Bropho had that tortured approach of trying to make the presumption – the amendment to the presumption operate prospectively.

MR DONAGHUE:   It is part of, we have used the words from Zheng v Cai – the working hypothesis by which, when Parliament enacts the words, it expects the reader to look at them bearing that historical practice in mind.  And it is an historical practice that since Cain v Doyle, so, since 1946, every Parliament in Australia has been entitled to proceed upon the basis that if it uses general words, those words will not result in criminal liability being imposed upon the Crown.  I am about to take you to some direct material that shows that the Commonwealth has relied upon that in framing its provisions as a reason not to depart from that holding.

So, it is a historical position that feeds into the reasonable expectations of the reader or how Parliament should expect its enacted words to be understood.  And, in our submission, the application on the first limb of our friends’ argument to have your honours overrule Cain v Doyle is a particularly weak one when it is recognised that it is no more than a presumption.  Parliament can always and has always been able to override the presumption.  This is not a doctrine that constrains the capacity of Parliament to achieve its intended results.  It just says you have to be clear about it and, having said you have to be clear about it, and people having relied upon it for a long time since, your Honours could reasonably infer that all Australian Parliaments will have done so. 

The argument for creating the uncertainty that will follow if you depart from that is, in my submission, difficult to countenance.  I should say in that respect, that our submission is that what appears to be our friends’ case now, which is that you roll Cain v Doyle into Bropho and treat it as one factor in a multifactorial assessment that might be able to be outweighed by other factors such that the presumption might be quite weak, if your Honours so held, in my submission, you would be overruling Cain v Doyle and the cases that have followed it.

Not, perhaps, if you are doing it the way your Honour Justice Edelman put to me a few moments ago, so that if there is one presumption that the existence of criminal liability puts you always at the strong end, that might not be a material change.  But what our friends are urging in reliance on Tomaras – which is a Bropho case, not a Cain v Doyle case – is that in some cases, including in this very appeal, general language should be held to impose criminal liability and, if your Honours so hold, you will have overruled Cain v Doyle, which says general language does not achieve that objective.

In our respectful submissions, your Honour should not wipe away Cain v Doyle and all of the cases, including unanimous prior decisions of the Court endorsing that principle, without squarely confronting the criteria for reopening and overruling the case.  The fact that our friends have not chosen to take your Honours there and have sort of sought to sidestep the overruling question does not mean it does not squarely arise.  The Court said in Jacobsen, five Justices; SASB, four Justices, that the imposition of criminal liability on the Crown is extraordinary.  It said in Telstra, seven judges; and X v APRA, seven Judges, it requires the clearest indication to impose criminal liability on the Crown.  That is not the language of a multifactorial assessment that might result in criminal liability by the use of general language.

It is for that reason, although I will try to do it as quickly as I can, that we do submit that if your Honours are considering that course, the appropriate analysis needs to go through the John‑type evaluation.  I do not propose to detain your Honours – we have addressed it in writing on John factors one and two, particularly because to focus just on the reasoning in Cain v Doyle is not to pay sufficient attention to its application in cases like SASB and Telstra.  So, there is a lot more at stake than just the reasoning in Cain v Doyle itself.  But I do want to roll factors three and four together and to say something to your Honours about whether it has produced a useful result and whether it has been relied upon.

EDELMAN J:   I am not sure that John is really the right analysis when you are talking about presumptions.  It might be that the better analysis would be the Bropho‑type approach, that if you are right in your construction and explanation of Cain v Doyle, that it is not a question of whether Cain v Doyle’s analysis of the presumption is overruled but a question of whether, if this Court were to depart from it, it should do so prospectively in the way that Bropho did.

MR DONAGHUE:   Well, I am going to urge that course upon your Honours if you do depart from it, in my submission, that it should, as it was in Bropho, be prospective in that way.

EDELMAN J:   I mean, the reason I ask that is because presumptions are things that can be fluid.  It does not seem to me that they are necessarily – particularly in this context – something that is a matter of authority.  If the facts and the practices change, then one would not necessarily turn to John to decide whether or not to reopen that aspect of it, one just reflects what practices have changed.  Now, I appreciate your submission is that all the cases show that no practices have changed, but that would tend to suggest we are in the field of, if we are to alter it, it would be altered prospectively in that way.

MR DONAGHUE:   Your Honour, I accept there is some force in that.  If what your Honours were to say is henceforth in the statutes enacted after the Court gives judgment in this case, there does not need to be the clearest indication anymore for criminal liability.  Of course, that would mean that the Cain v Doyle rule applies to the Sacred Sites Act, and so the win, if our friends have one, would not help them on the facts of this case because Parliament enacted that Act in reliance on the old rule.

As I am proposing to show your Honours briefly, Parliament has relied on the Cain v Doyle rule for a long time.  But if your Honours were to do that, then – sorry, I withdraw that.  My submission is that your Honours should not make that change, that the Cain v Doyle presumption remains an appropriate and useful and clear statement of the law guiding parliamentary drafters and that the changes in governmental practice that led to Bropho, which, of course, was a 1990 decision, have not caused the Court in all of the cases since to say that Cain v Doyle is inappropriate.

EDELMAN J:   The analogue would be, if legislation started regularly imposing criminal liability upon other polities, or their own polities, then one might say, forget about John, it is a new world of presumptions ‑ ‑ ‑

MR DONAGHUE:   It is no longer an accurate working hypothesis.  I accept there is force in that, but our researches suggest, save in the context of occupational health and safety, criminal liability on the Crown is extremely rare.  It remains extremely rare at Commonwealth and – we have not discerned any change that would falsify the factual proposition, to the extent that there is one, that it is an extraordinary thing to impose criminal liability on the Crown, it just does not happen, save in the OH&S context with any regularity.  If it is to be done, it can be done expressly, as happened with respect to the Territory Crown itself in this case in section 4(1), but it is an unusual thing.

Can I show your Honours – and given timing constraints, I will not delay your Honours very long – but we have given your Honours some material that reflects the Commonwealth Office of Parliamentary Counsel’s drafting instructions, both for its own drafters and for other departments that create criminal offences, that shows that they rely directly upon the ruling in Cain.  Your Honours, I see, are being handed a document.  That is the last document I want to come to.  The first two are in the materials already.  I will not take you to – there is a drafting direction we have referred to in writing, which is behind volume 9, tab 50 – but you do not need to go to it – which is just a direction to have regard to a document called Guide to Framing Commonwealth Offences.  That document, the guide itself, is behind tab 52 in volume 9.

If your Honours could turn briefly to that.  I am relying on this to show reliance on the Cain v Doyle rule, and to therefore urge your Honours not to depart from it because of reliance.  In 1.1 on 2648 of the joint book, you can see the purpose of this guide, and it recounts what I have just said to your Honours.  If you then go over the page – we have only given you extracts – there is a heading:

2.4Who can be made responsible for committing a criminal offence?

If you then go on to 2650 near the bottom, there is a heading:

2.4.3   Crown responsibility

In a yellow box:

The Crown should not be made criminally responsible

Principle

The Crown cannot be held criminally responsible unless legislation provides to the contrary.  It is generally not appropriate to make a contrary provision.

There is a footnote that refers to OH&S as an exception.  That is the principle.  Then the discussion, over the page, takes one directly to Cain v Doyle:

There is a strong common law presumption that the Crown is not criminally liable:  see Cain v Doyle . . . there must be clear words or a necessary implication that the Crown is so bound.

As a matter of policy, the view has consistently been taken that Commonwealth law should not impose criminal responsibility on the Crown.  Legislation expressed to bind the Crown does not usually impose criminal liability –

That is reflected in the point that I have been making about 4(1); 4(1) is not enough.  It does not extend to Crown servants, in the next paragraph – that is consistent with 4(3) of the Sacred Sites Act, and the discussion yesterday:

Government business enterprises that are outside the shield of the Crown are subject to criminal responsibility –

Businesses that conduct trading and business activities will not benefit from the presumption, but that implicitly recognises – in my submission, quite correctly – that government enterprises, while some are outside the shield of the Crown, some are inside the shield of the Crown ‑ ‑ ‑

GORDON J:   But it does make the point I was raising with you earlier this morning that if it is intended that the business enterprise or the corporation be immune in the way in which the Crown is immune, consistent with Cain v Doyle, the legislation should say so.

MR DONAGHUE:   It says that – that is the paragraph that our friends rely upon, but ‑ ‑ ‑

GLEESON J:   That then refers to Townsville Hospital Board.

MR DONAGHUE:   Yes.  Your Honours, there is no question that the Court said in Townsville what it said, but Townsville is not the only thing that – one, as I have said, in Townsville,  if it was enough that the Hospital Board was not expressly given the shield of the Crown, then the judgment in Townsville Hospital contains pages of totally irrelevant analysis, because it was obvious that there was express provision to that effect.  Even in that judgment, where Justice Gibbs said usually you would have an express statement, his Honour spends pages analysing the statute to see whether the legislative intention is apparent and concludes that it is not.

He does so by reference to the same kinds of factors that we submit you see in SFIT that I am going to come to, you see endorsed in ACTEW.  There are lots of cases that show – that deal with the question:  is a statutory authority within the shield of the Crown where it is not expressly addressed?  So, Townsville just does not mean – notwithstanding our friends’ enthusiastic reliance on it – that, absent an express provision, you are outside the shield of the Crown.  That is not, and has never been, the law.

BEECH‑JONES J:   Mr Solicitor, I do not know what parses like a statute, but that first sentence of that last paragraph seems to read – it seems to suggest that if it falls within the shield of the Crown; that is not determinative.

MR DONAGHUE:   Quite, because if it falls within the shield of the Crown – these are my two questions, your Honour.  If it falls within the shield of the Crown as a matter of Commonwealth law, you then look at the offence‑creating legislation and decide:  did it intend to bind the Crown anyway?  That is, did it intend to rebut Cain v Doyle?  If it did intend to rebut Cain v Doyle then criminal liability will be imposed anyway.  That is why we rely on 4(2), 4(3) and 4(4).  The Territory body politic is obviously within the shield of the Crown, but it is criminally liable under 4(2) because Parliament made its intention very clear and so rebutted Cain v Doyle.

GLEESON J:   The relevant paragraph is really paragraph 287 of this document, is it not?

MR DONAGHUE:   That is the next document, your Honour, but I think ‑ ‑ ‑

GLEESON J:   I am going back a few pages; I cannot see pagination.

MR DONAGHUE:   Sorry, that is the next document I was going to come to, your Honour, and that one gets quite some play in our friends’ written submissions.  That is drafting, for the other members of the Court ‑ ‑ ‑

STEWARD J:   Just before you go there, can I ask you a question about the last paragraph under “Discussion”?

MR DONAGHUE:   Yes, your Honour.

STEWARD J:   Do you accept the correctness of the second sentence in the last paragraph?  What the “central issue” should be.

MR DONAGHUE:   Your Honour, in my submission, that sentence is a condensation of the full analysis which identifies control.  So, when it says solely “at the behest of”, that is language that is, in my submission, perhaps not a completely accurate capturing of the paramount role of control in the analysis.

STEWARD J:   Do you say a sole test is too hard?

MR DONAGHUE:   I do.

STEWARD J:   Yes, I see.

MR DONAGHUE:   But otherwise, I accept that the control of the Executive is the most important factor.

GAGELER CJ:   Mr Solicitor, while we are just parsing this document, is not the sentence that follows the heading of 2.4.3 expressing a normative requirement to be considered in imposing criminal responsibility?  I mean, the whole thing is about policy.  It is a policy checklist to be gone through, is it not?

MR DONAGHUE:   The principle has a normative dimension to it, I accept that, but it is a normative dimension reflective of the history I was discussing earlier with Justice Edelman.  The discussion then makes it ‑  so that – it is helping drafters to understand, consistent with that general normative proposition, why and how to give effect to it, and it does so expressly by reference to Cain v Doyle.

Now, I understand why your Honours have been doing it – you have been challenging me on the last paragraph concerning statutory authorities, but that really illustrates the way that our friends have sought to move the levels of their argument to avoid the reopening problem because, I say again to your Honours, their primary argument seeks to have your Honours overrule Cain v Doyle, not just in relation to statutory authorities ‑ ‑ ‑ 

GORDON J:   Put that to one side for the moment and take the middle ground, just for the moment.  The propositions here are that Cain v Doyle applies to the Crown, limited to the body politic, if one takes the policy in the way in which this is worded, because it distinguishes – I will put it neutrally –it distinguishes in the last two paragraphs before the heading at 2.4.4 a different treatment of business enterprises of the government as well as corporations, and then in the third‑last paragraph, recognises – as you accept – that the Cain v Doyle presumption does not extend to officers and agents.

MR DONAGHUE:   Your Honour, I accept most of what your Honour just said, but I do not accept “limited to the body politic” itself.  The last two paragraphs are dealing with the situation where it might extend beyond the body politic, so it is a different analysis; it is a more complicated analysis beyond the body politic.  But what those paragraphs are about are the circumstances in which Cain v Doyle might extend further.

EDELMAN J:   Does the Cain v Doyle presumption apply to OH&S statutes today?

MR DONAGHUE:   Yes, is the answer, but they only apply to the Crown because they do so expressly – they do so very clearly.

Your Honour Justice Gordon asked me to put aside the widest argument.  What I am meeting primarily with the submission that I am making now is the widest argument.  So, I am addressing your Honours on reopening Cain v Doyle.  Your Honours have been asked to reopen Cain v Doyle and I am submitting your Honours should not reopen Cain v Doyle.  That is not just statutory corporations – that is everyone.  That is the body politic proper.  That is the widest case I need to meet.

And I can meet it, if your Honours accept that Cain v Doyle should not be reopened and overruled.  And then I need to meet the discussion, does Cain v Doyle benefit statutory authorities.  I know I need to meet that too, but I would not want your Honours to be under any misapprehension about how we are meeting the widest case.  Your Honours, the second drafting direction that Justice Gleeson directed my attention to is behind tab 51.  Our friends place quite some reliance on this.  If you look in the joint book at page - - -

GORDON J:   Could you just explain to me the distinction between the drafting guide at 51 and 52, please?

MR DONAGHUE:   So, the one at 51 is about the framing of offences, the one at 52 is about the creation of Commonwealth bodies.  So, it is the other end of the inquiry, how do you create the offence versus what is the status of the body in question.  This guide at tab 52, Direction No. 3.6 you will see was reissued in January 2023.  You will see that just under the heading.

Our friends then rely upon 287 and 288 and I accept that that suggests that the current practice is in relation to the corporate bodies as created that, because it can be unclear, there needs to be, it says – and this picks up the Chief Justice’s point in 288 – policy decision about whether or not the bodies should be included.  But it does say, and our friends rely on:

generally speaking, a corporate Commonwealth entity should not be entitled to the same privileges and immunities as the Crown.

So, that again records a policy position.  Our friends’ reliance on this caused us to ask ourselves, was that the policy instruction given to drafters at the time that the EPBC Act was drafted so as to create the DNP?  Having asked ourselves that question, we sought help from the Office of Parliamentary Counsel who delved into their records and identified the drafting instruction that existed at the time the EPBC Act provisions in issue in this appeal were drafted.  That is the document that I handed up, and it is not at all the same as the guidance that is given in the document that you were just looking at.  Indeed, it is quite to the contrary.

GLEESON J:   But Mr Donaghue, was there not a big process about 10 or 15 years ago of reviewing corporate agencies and companies, and the CAC Act was repealed, and there were a whole lot of agencies that were brought into government?  In other words, why should we just rely on the status as at the time that the DNP was created?

MR DONAGHUE:   Well, your Honour, what I am dealing with here is responsive to reliance that the appellant placed on that document to say, look, their own documents show that they are not relying on Cain v Doyle, and that they – when you are interpreting whether the DNP does have or does not have the status of the Commonwealth, their own documents say they would have used an express provision if they wanted to achieve that.  In fact, when those provisions that you are interpreting were drafted, were enacted, and you see this in the document that we have handed up in paragraph 29 and following, it was the reverse.

GLEESON J:   But I am just – what I am asking is, why is that the relevant time for considering this question?

MR DONAGHUE:   Because ‑ ‑ ‑ 

GLEESON J:   Given what has happened in terms of reintegrating Commonwealth authorities back into the Commonwealth.

MR DONAGHUE:   Well, your Honour, in my submission, the short answer is that the DNP did not need to be reintegrated.  It was right there already.  It was a provision that – a statutory corporation – some statutory corporations, as your Honours know, are created to go out into the world, to conduct business‑type activities, sometimes on an equal footing with private corporations and largely independent of the government.  The DNP could not be further from that model.

It is completely staffed by a Commonwealth public servant, completely served by Commonwealth public servants, subject to ministerial directions, substantially funded by the Commonwealth, subject to auditing requirements under the PGP Act like other Commonwealth corporate entities.  All of those indicia point to the government discharging governmental functions through a corporation, but – and what we know – to the extent that our friends say, ignore all of that, there is no express provision, we know that what the drafters were being told when they drafted this was, if you intend the body not to be – this is paragraph 29 I am reading from – if you intend the body not to be under the shield of the Crown, a specific provision to this effect is desirable.

So, had it been intended to be excluded, you would have expected to see an express provision, but not the other way, because the drafting direction recognises that the question whether the body is within the shield of the Crown depends on a proper interpretation of the legislation as a whole, and in 31 it records, as I have been submitting, that one of the critical factors is control.

GAGELER CJ:   Mr Solicitor, we would be particularly assisted, I think, by hearing from you on the narrow view of Cain v Doyle – that is, that it is confined to the body politic, which is relevantly to be equated with the Executive Government – whether that can be sustained, and whether taking that view of Cain v Doyle can be reconciled with the existing authorities.  I think it is a point you said that you were coming to.

MR DONAGHUE:   Your Honour, whether it is Bropho or Cain v Doyle, and whether they are separate or a single doctrine with different extremes, the question whether the shield of the Crown – if I can use that language loosely, as an umbrella concept – exists or applies is a question that normally arises only with respect to statutory corporations or instrumentalities.  Cain v Doyle can arise more directly, as it did in Cain itself, but the shield of the Crown concept, the Bropho concept, normally – and this was the reason I took your Honours to DCT v State Bank yesterday – is about statutory instrumentalities.

The reason it is about statutory instrumentalities is because when one is talking about the body politic itself in its narrower sense, it is obvious that the body politic gets the privileges and immunities of the body politic, so you do not have to ask a further question.  The reason I am saying all of that, your Honours, is that it is hard to carve out the question of whether these principles apply to statutory corporations or not because, in my submission, what the authorities in this Court have always recognised is that if Government chooses to conduct its governmental functions through a corporation, it can.

Australian governments have done that since pre‑Federation, particularly with railways, but also in other contexts – repatriation.  If it does that, you cannot know whether the statutory corporation has the privileges and immunities of the Crown – including the Cain v Doyle protection – by any means other than construing the Act that does it.

There cannot be an a priori rule that the body politic itself has something and statutory corporations do not have that, because the statutory corporation might be doing exactly what the government was doing before, and have been created just as a convenient mechanism of doing the same thing.  In my submission, it makes no sense to create a completely different substantive outcome based just on the choice of a corporate vehicle or not.

So, in my submission, it is not possible to confine the issue in this appeal to saying, is Cain v Doyle right for the body politic, because if that involves saying nobody outside the body politic can ever be given the Cain v Doyle protection even if Parliament expressly says they are to be given it, as happened in Telstra, there is no principle basis for that limit.

GORDON J:   I do not think anyone has suggested that a body corporate that is a creature of statute which has an express provision of the kind of Telstra is inapplicable.  That was the point put against you, was that is open to Parliament, it is a creature of statute, and you can have it.  That is the point made in Townsville.

MR DONAGHUE:   Your Honour, I may have misunderstood the Chief Justice’s question.  I thought your Honour was asking me to focus on the correctness of Cain v Doyle for the body politic itself ‑ ‑ ‑ 

GAGELER CJ:   Correct.

MR DONAGHUE:   ‑ ‑ ‑ and what I was seeking to say is that that does not account for Telstra.  If what your Honour Justice Gordon puts to me is that Telstra must be right, Parliament can expressly extend the privilege, then the question for the Court becomes, well, is there a rule that says Parliament can do something expressly but cannot do it by implication?  So that, even if reading the statute as a whole, your Honours were persuaded that it was intended to have the same privileges and immunity, it does not because it did not use an express provision.

EDELMAN J:   There is an intermediate step, though, and I think this was what I was struggling to ask you about yesterday, which is that you need to look at the statutory corporation, whether it is a matter of construction or a matter of context, and ask whether or not the statutory corporation is simply standing in the position of the polity or whether the statutory corporation is, in effect, as in many, many cases, acting as an agent of the polity.  It is acting as though it were the servant, as though it were the contractor, but it is set up to be the body that will fulfil the goals of the polity rather than be the polity.

Now, it seems to me that many statutory corporations, maybe most, are in that latter category, they are in the category of acting as agents, as servants, as contractors, fulfilling the aims of the polity rather than being the polity itself, and that is, I think, what I am struggling with as an intermediate question.

MR DONAGHUE:   Thank you, your Honour, I understand that better and I will try to deal with it more directly.  In my submission, the distinction that your Honour is drawing is a distinction that does not necessarily turn upon what Parliament intended to be the status of the body in question.  As we understand the legal principles that are in play, they are about nothing more than an understanding of the intentions of the two Parliaments – or sometimes the same Parliament, the Parliament that creates the offence and the Parliament that creates the body.

In the DCT v State Bank Case, the Court hypothesised a situation where a purely private company conducting private activities is given the protection of the shield of the Crown, just because Parliament chooses to.  Parliament’s intention is to confer those functions, and it is not clear why Parliament cannot – it is hard to see why Parliament would make the choice, but their Honours were illustrating, in my submission, the extent to which it is parliamentary intention that is determinative.

My answer to your Honour is that it is not necessary to show standing in the shoes versus agency, because even in an agency situation, the determinative question – and Townsville actually says this in terms.  Indeed, perhaps given the play that Townsville (1982) 149 CLR 282 has received in our argument, could I ask your Honours to turn to that case, which is in volume 6, tab 39, and when your Honours have it, turn to page 289. Near the top of page 289 – this is Chief Justice Gibbs for the Court – the first full paragraph:

The answer to the question must in the end depend upon the intention to be derived from the statute under which the body in question is constituted.

BEECH‑JONES J:   Sorry, what page was that?

MR DONAGHUE:   Sorry, it was 289, point 2.  This case is not putting an approach that is different to what – one cannot just read the sentence at the end of 291, emphasising the absence of an expressed provision.  That is true, but his Honour frames the analysis as depending on the intention to be derived from the statute that creates the body in question.  So, here, depends on the intention to be derived from the EPBC Act.  His Honour then notes a whole range of indicia including, just a few lines down, appointment by the Governor:

but that does not mean that they are subject to the direction or control of the Governor in Council –

Indeed, they were not subject to the direction or control with respect of building activities.  That was ultimately, in our submission, the most important provision.  There was financial control, but not control over the actual activities in which the Board engaged.  It would not have been necessary for his Honour to engage in any of the discussion that follows to derive the intention to be derived from the statute under which the body is constituted if the rule was, unless it says so expressly a statutory corporation does not get the benefit of the Crown.  That is not the rule.

BEECH‑JONES J:   But is there at least a more limited rule – 291 – that it requires fairly strong implication to that effect?

MR DONAGHUE:   His Honour does say it must clearly appear that the legislature intended to confer them.  That is true.  But, in my submission, here it does clearly appear, and I do not need to get away from that, but this judgment has not been understood in the period since it was given as saying, express statement or nothing.  The express statement in Telstra made the answer to that question easy, but where the question is harder, one still needs to engage in the interpretative task.

GORDON J:   Can I just bring you back – and I apologise for jumping around to the question raised by the Chief Justice.  I think there are five or six reasons given as to why Cain v Doyle is limited to the body politic, which, in a sense – you may have addressed some of them but maybe not all of them.  The ones given are that the body politic is in a different part of the Constitution and that a statutory corporation is outside it, and so therefore the statutory corporation is an act of the legislature, and therefore is, in a sense, to be treated different with a separate legal personality.  That is one consideration.

The second is practical considerations about the contracting between statutory corporations and the Commonwealth itself.  The third is a matter of history, I think – and I know that Professor Finn expressed this in the book that he wrote, and that is that the historical reason for the creation of these statutory corporations was to enable people dealing with them to have different rights against them, as distinct from the rights they would have had against the Crown.

The fourth, I think, is the point that I have raised a couple of times, and that is Parliament, of course it being a creature of statute, can itself deal with it expressly.  The fifth is the financial structure.  Then the sixth is the acceptance in Cain v Doyle – which I think you do accept – that it does not, in its purest form, extend to servants, agents, and individuals, themselves having the separate legal personality.  So, why then would you extend it to a body corporate, which was at least arguably in a similar position?  If that is right, why would we extend it beyond what might be called the purest form of Cain v Doyle?

MR DONAGHUE:   Your Honour, I am not asking you to extend it, I am asking your Honours to uphold, consistently with Telstra, that where the intention that Parliament has conveyed, properly construing the Act that creates the statutory corporation, is that it have the same protection as the body politic itself that your Honours give effect to that statutory intention.  That is all that I am asking.  If the Crown – the body politic itself gets the protection of Cain v Doyle, and if Parliament has the power to say that somebody else has the same rights of the body politic, it must follow that the somebody else gets the protection of Cain v Doyle.  The only way to avoid that conclusion is to say that the law that purports to give it the same status is ineffective.

EDELMAN J:   Except I think the six points that Justice Gordon has surmised from Townsville illustrate that it may be a big leap in many, many cases to find that as a matter of implication.

MR DONAGHUE:   Sometimes that might be so, but sometimes it will not be.  Sometimes, historically, the purpose of creating a statutory corporation may be to give individuals, with whom the statutory corporation deals in commerce, different – to ensure that they have the same rights dealing with that corporation in commerce as they would have with another corporation in commerce.  So, you create a corporation for that purpose.  But where the government is just discharging governmental functions through a statutory corporation, in my submission, that factor does not bite.

EDELMAN J:   Why?  I mean, governmental functions can be on a range:  at one end, what you might describe as pure governmental functions, and at the other end, they might be functions that the government has in common with every other ordinary person.

MR DONAGHUE:  Your Honour, when one speaks of governmental functions, in my submission, one is usually talking about uniquely or distinctly governmental functions.  So, in my submission – again, the cases have long recognised this – the range of reasons why governments – not just the Commonwealth government, but State governments – might choose to create statutory corporations are many and multivarious, and you cannot identify any one of them and say, that is the decisive factor as to whether privileges or immunities should arise with respect to that corporation, which is why the Court says, do it as a question of statutory interpretation.

Your Honours are putting to me, it is a high bar, given that Parliament could do it expressly.  I accept that your Honours will need to be persuaded that Parliament did intend that that was what was happening, but that intention should be discerned having regard to the criteria that the Court has identified as relevant to the answer to that question.  And if your Honours do that, in my submission, you will be satisfied.

If your Honours are not so satisfied, then the DNP will not get the protection of the Cain v Doyle principle.  But Cain v Doyle is the right framework, and its applicability cannot be answered, in my submission, by saying it does not apply to statutory corporations, because the question of whether it applies to statutory corporations is not a general rule of law for the Court to state.  It is a product of the legislative intention of the Parliament that creates the body in question, so it will vary from case to case. 

Your Honours, I am conscious of the time.  Can I ask your Honours just to note one more matter of historical background before I come directly to the applicable factors.  It is the passage that our friends relied upon in writing directed to the history of the EPBC Act.  You were given, I think, the supplementary explanatory memorandum to the EPC Bill, which I think is in our friends’ supplementary volume, tab 2.  Can I ask you to turn to that, really to make two points.

If your Honours have it, could you go to the second page, which is – the first page is a title page, and the second page has a discussion of clause 6.  You can see that in the history of the EPBC Act, it had been proposed that a clause would be added to that Act that would have expressly provided:

that the Crown is not liable to prosecution.

So an express provision of the very kind that has been the subject of some debate:

Such a provision appears in many Acts simply for the sake of clarity.

Then it said:

There is a long tradition of Crown immunity from criminal liability and a relevant case law supports that immunity and would require clear displacement of a strong presumption against any intention to render the Crown criminally liable.

That could not be a more clear reference to Cain v Doyle:

The subclause is removed to avoid any appearance that this immunity is extended to Commonwealth employees, servants and agents who breach –

the Bill.  It was proposed that the EPBC Act would deal expressly in terms with the lack of criminal liability.  It was then recognised that it was not really needed because Cain v Doyle did the work, and it was worried that the inclusion of the clause would be interpreted too broadly to extend to individuals who were intended to be liable, so the clause was removed from the Bill.

Our friends rely upon paragraph 5, and they quote it in their written submissions.  But, with respect, in our submission, they misread it.  Your Honours will see – and it is really a question as to whether the comma after “itself” on the second line, and the comma after “agents” on the third line are parenthetical, which, in my submission, they are.  So:

it is not the intention to reverse the long-held policy that the Crown itself . . . and corporate entities, should not be subject to criminal prosecution.

The reason that you read it in that way – our friend is amused – but the reason that you read it in that way is that you can see the reference to “employees, servants and agents” in the bottom of paragraph 4 – they are the people who were intended to be carved out.  They are the people within the parenthesis.

Also, our friends’ reading makes no sense having regard to the “and” that appears before the word “agents”.  So, if it was intended to read as he reads it, it would say:  emanations in the form of officials, servants, agents, or agents and corporate entities.  It is – the distinction that is being drawn is between employees, servants, and agents on the one hand – as you see at the end of 4, and the Crown and corporate entities on the other.

BEECH-JONES J:   Mr Solicitor, is the Director liable for criminal offences under the EPBC Act?

MR DONAGHUE:   Only when that is made clear from the text.  So, in my submission, in circumstances that are clear enough to rebut Cain v Doyle, yes.  And there are a couple of offences – 354A, I think you were taken to yesterday – but for the Commonwealth Parliament to impose on its own corporate entity specific offenses using language apt for the task is to rebut Cain v Doyle rather than to deny its applicability.

Your Honours, we have said something in writing about the intergovernmental dimension of this presumption.  Obviously, Cain v Doyle is not an intergovernmental case, but the principle is applied in the intergovernmental context.  Telstra is an example of that.  SASB is another example of that.  In the intergovernmental context, the Court has also recognised that the Bropho presumption applies – Bradken so held, so that the Bropho presumption applies not just to the enacting legislature but to others, and in that context, in Bradken, Acting Chief Justice Gibbs said that that was appropriate to make it clear that the statutes of one polity will only bind another where it is clear that the legislature turned its attention to the matter and deliberately sought to achieve that result.

Now, his Honour said that in relation to legislation generally.  It can only be more true where one polity is criminalising the behaviour of another.  And so it serves the same underlying objectives as the Cain v Doyle principle, and, indeed, the Bropho principle, as recognised and extended in Bradken.  In Jacobsen v Rogers 182 CLR 572 – which I will not take your Honours to, I think, in the interest of time, but is volume 4, tab 29 – Justice McHugh, at page 602, collected some United States and Canadian authority that supports that same idea: in an intergovernmental context one does not expect to see one polity legislating with respect to the other, and if it is going to do so it should do so clearly, exposing its decision to debate and scrutiny.

In particular interest is the Alberta Government Telephones Case that Justice McHugh discusses on that page.  Our friends rely on Jacobson to say there is no reason to distinguish between bodies politic, and it is true that in that case the Court did hold that the Commonwealth search warrant law in question was binding on both the Commonwealth and the States.  I will not take your Honours to it, but the reason for that was, basically, that the Court said, well, it would then frustrate the purpose of the Commonwealth statute if there are some premises that are islands immune from the exercise of Commonwealth investigative powers.

In the Bropho context, their Honours, on the facts of that case, found a statute that could bind – found an intention to bind the other polity.  We accept that that can be done where the intention is sufficiently clear.  Our point is that before one polity criminalises actions of another, one would expect, in a federation, with the entities of the federation not subjects of one another, but mutual entities that together comprise the federation, to do so clearly.

As to, then, the factors that are relevant to the analysis, these are all factors that go no higher than serving to assist the Court in the interpretive task that Chief Justice Gibbs identified in Townsville.  So, what was the intention to be derived from the statute under which the body in question was constituted?  There was some discussion yesterday about impairment and whether there was an impairment criteria that needed to be shown before a statutory authority would derive the protection of the shield of the Crown.  In our submission, that gloss is not warranted.  The question is just, as I have been putting to your Honours, one of legislative intention of the body that creates the agency.

To require, in addition to that legislative intention, an impairment, tends to blur the question with the kinds of issues that would arise under section 109 or under Melbourne Corporation, because those cases are concerned with substance, particularly Melbourne Corporation.  But “shield of the Crown” is not concerned with substance, it is just concerned with statutory interpretation; it is concerned with the intention revealed by the enacting Parliament.  To say there has to be impairment rather denies, for example, the unanimous statement of the Court in State Bank, that the shield of the Crown could be extended to a purely private corporation conducting private activities if the legislative intention was sufficiently clear.

GAGELER CJ:   Mr Solicitor, can I ask a question about that.  It seems when you are talking about the Crown and then when you move on to talk about the shield of the Crown, you are not necessarily talking about the same thing.

MR DONAGHUE:   No.

GAGELER CJ:   If you are asking for a legislative intention as to whether this body is the Executive Government under another guise, that is one thing you might be asking – is it the Crown, or is it intended to be the Crown.  If you are asking, is this entirely private corporation to be given an immunity equivalent to that which it would have if it were the Crown, you are asking something different and the analysis leads to a different kind of non‑application of State law in the case of a Commonwealth body.

MR DONAGHUE:   Purely private.  In the case of a Commonwealth law one might go to 109, indeed.

GAGELER CJ:   Yes.

MR DONAGHUE:   I accept they are different questions.  “The Crown” is obviously a troubling concept that can mean a number of different things.  When your Honour puts to me are you asking whether it is the Crown, my answer to that would depend on whether one means the legal entity brought into existence by the Constitution, and so the narrowest concept of the body politic in Hocking at 75.

I do not need to say, and I do not say, that a statutory corporation given separate legal personality is part of that body politic that has its legal entity from that source, but there might be an intermediate position of something that is not part of the entity created by the Constitution but that is sufficiently adjacent to it so that one can see from the legislation that creates the statutory corporation that it was intended to be on the same legal footing as the body politic itself, and that is the question to which my submissions are directed.

I have taken a little longer than I intended.  I think the time permitted to us on the original estimates is another half an hour.  With the Court’s permission – we might, with the Court’s permission, need 45 minutes to conclude.  Is that acceptable?

GAGELER CJ:   Mr Gleeson, what about your reply?

MR GLEESON:   Forty-five minutes, your Honour.

GAGELER CJ:   Very well.  The Court will take the morning adjournment.

AT 11.16 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

MR DONAGHUE:   Your Honours, I propose to – hopefully, in about the next 15 minutes – take your Honours through one case which we submit is of particular assistance in identifying the factors that guide the task of determining whether a body was intended to have the same privileges and immunities of the Crown, the case being Superannuation Fund Investment Trust v Commissioner of Stamps (1979) 145 CLR 330, which is in volume 6, tab 37.

This is a case in which there was no express statement as to the character of the statutory corporation.  It precedes, by a couple of years, Townsville, but I note for your Honours’ consideration that post‑Townsville, one case in which there was a close analysis of whether or not a statutory body was entitled to the benefit of Cain v Doyle without such an express statement was the SASB Case that we discussed yesterday, well post‑Townsville.

It is clear that the Court has not proceeded on the footing that there needs to be an express statement, and the factors that I am about to identify have, in our submission, continued to be regarded as the decisive ones.  If your Honours turn in the report to page 352, just to see the context, you will see there that at about point 2 on the page, it is recorded that the case:

Part III of the Act deals with the Superannuation Fund Investment Trust (“the Trust”) –

Which is set up:

as a body corporate with perpetual succession and a common seal (s. 29).  The Trust consists of three members, all appointed by the Governor‑General –

Who held office:

on such terms and conditions in respect of matters not provided for by the Act as are determined by the Governor‑General –

no paid employment outside the office without the employment of the Treasurer, the Treasurer granted leave of absence, members resigned by writing to the Governor‑General.  So, we had a Commonwealth statutory corporation.  There were two arguments in play in this case.  One was an argument – it was about whether or not the Trust was required to pay stamp duty under the Stamp Duties Act1923 (SA), so, again, there is an intergovernmental dimension.

Of the two arguments, one of them was that stamp duty was a tax prevented by section 114, because it was said the Trust was the Commonwealth for the purpose of that section. The other argument, a completely separate argument, was that the Trust could claim an exemption under the Stamp Duties Act (SA) for conveyances or transfers made to the Crown or any person on behalf of the Crown.

The Court did not differentiate between the question of whether or not the Trust was the Crown or the Commonwealth in its analysis of those questions.  Indeed, Justice Stephen and Justice Aickin expressly dealt with them as turning on the same first step.  So, I am going to start with Justice Stephen’s judgment, and on page 339 of his judgment, about halfway down the page, his Honour said:

Each of these submissions involves, as its first step, the proposition that the Trust be equated to the Crown in right of the Commonwealth.

His Honour said something similar on page ‑ ‑ ‑ 

GORDON J:   Sorry, where was that?

MR DONAGHUE:   Sorry, it is about halfway down 339 ‑ ‑ ‑ 

GORDON J:   I have it now, thank you.

MR DONAGHUE:   Yes.  I will not take you to it right now, but Justice Aickin said much the same thing at 359, point 5.  Before coming through the factors ‑ ‑ ‑ 

STEWARD J:   Just before you go on, is the word “equated” there – do you read that as being a case where it has the equivalent status? 

MR DONAGHUE:   Yes.  Before coming to the analysis, I should note that there is a complicated split in this case.  So, Justices Stephen and Aickin both said the first step is as I have just identified it, and both their Honours held that SFIT was not the Crown, and so both of the arguments failed.

Justice Mason, with whom Chief Justice Barwick agreed on this point, likewise did not distinguish between the constitutional question and the statutory question as to the character of the Trust – whether the Trust was or represented the Crown – but their Honours held that SFIT was entitled to that status.  But Justice Mason then went on – and Justice Murphy agreed with his Honour in this respect – to hold that even though SFIT was the Crown relevantly for – or to be equated with the Crown in the Commonwealth context, the reference to the Crown in the Stamp Duties Act (SA) was only to the Crown in right of South Australia, so that the Trust nevertheless still had to pay the tax.

So, where one ended up – with a four/one majority Chief Justice Barwick dissenting – for a variety of different reasons, SFIT was not exempt from paying stamp duty.  But even though their Honours split by divergent pathways to that answer, their analysis as to the factors that were relevant to the question were much the same.  So, it was application in the particular context of the Trust that led to the divergence.  The most detailed analysis of the factors is in Justice Stephen’s judgment.  Could your Honours start at 341 of the CLR at about point 7 or point 8 on the page, when his Honour emphasises:

In the exercise of its power of investment the Trust is neither subject to any control by government nor is it afforded any statutory guidelines.

And then, in the next paragraph down:

The Act is careful to ensure that, once appointed, appointment being by the Governor-General, the members of the Trust, in carrying out their function as managers of the Fund, will be entirely independent of government.

Then, over the page at 342, his Honour notes that subject to auditing by the Auditor‑General but then says, a few lines up from the bottom of that paragraph:

while these provisions do serve to keep government informed of the activities of the Trust, they impose no limitations upon its complete independence of action.

The members of the Trust are, then, subject to no ministerial or other control in the exercise of their function as expert investors . . . a most significant factor –

And then, the full paragraph that follows from the middle of the page:

I do not treat as conclusive the fact that the Trust is incorporated.  While numerous statutory corporations have been regarded as independent of the Crown, there are a number of cases in which the fact of incorporation has not been regarded as depriving the corporation of its right to invoke certain privileges or immunities of the Crown –

And he cites some:

In short, I regard the incorporation of the Trust as a neutral factor.

Far from it being decisive, it is neutral.  Then, over the page, on 343, the second main function we identify, again about point 7 or point 8 on the page:

The appellant relied upon this circumstance as demonstrating –

That is that the super Trust provided superannuation to Commonwealth public servants and employees of Commonwealth instrumentalities.  That was said to give the Trust “an intimate connexion” to government:

In a sense this is true:  but not in the sense in which it has been said in the past that there exist certain traditional functions of central government to which the shield of the Crown will most readily be applicable –

I note that because, as Mr Lim will shortly develop, national parks are a function undertaken by the government as a component of its nationhood function.  It seems readily to meet the description of a governmental characters.  Then, if your Honours will go on a few pages to 347, his Honour said, at about point 6:

It is in light of each of the foregoing considerations that I have concluded that the Trust is not here to be equated to the Crown in right of the Commonwealth.  I have not expressed these various considerations in terms of specific “tests” . . . I have, of course, had regard to those authorities, while recognizing that the primary task is that of statutory interpretation rather than any mechanical application of supposed tests.  I have placed most weight upon the entire independence of the members of the Trust in relation to their investment function.  This appears to me to be of considerable important and to have been so treated in many of the precedent cases –

Coming back to your Honour Justice Steward’s question, it is not just that it has – the emphasis there was on the complete independence of the Trust, rather than the other way around.  Then, over the page on 348, his Honour returns to questions of control and explains in more detail what he means:

The importance of the presence or absence of control by the executive government in ascertaining whether or not a statutory corporation possesses a particular immunity or privilege of the Crown is a consequence of the very nature of that inquiry, concerned as it is with the nexus between the corporation and the executive.  If a corporation is no more than the passive instrument of the Crown, subject in a high degree to control by the executive, it is appropriate enough that its acts be viewed as those of its master and that it be itself treated as the alter ego of the Crown, enjoying accordingly those immunities and privileges . . . If, on the contrary, a statutory corporation is essentially autonomous, its acts being in no sense the outcome of directions by the executive but truly its own, there will be little reason to clothe it with any of those immunities –

Then his Honour emphasises that he is not suggesting it is about actual control, it is about the existence of the statutory ability to control.  Obviously not, treating the fact that the corporation was a statutory authority as answering the question.  It was neutral, and the relevant inquiry, then, as an inquiry of statutory interpretation focussed on, particularly, control and governmental functions.

Justice Mason with Chief Justice Barwick relevantly in agreement at 351 of the report, conducts the analysis much more briefly, but interestingly, their Honours held that, notwithstanding the considerations that led Justice Stephen and Justice Aickin to find that SFIT was not the Commonwealth, their Honours found that there were sufficient indicia, even in the absence of the high level of control to which Justice Stephen referred, and particularly at – so, at 351, point 7, his Honour identifies the question as one of statutory interpretation of the Superannuation Act, just interpreting the Commonwealth Act that created the body – so whether the appellant is or represents the Crown depends upon the Superannuation Act.  Then, over on 354, at about point 3, his Honour says:

Although the Trust is a separate corporate entity the control which the Crown has over its membership and its activities shows that it is an alter ego of the Crown.  Thus its members are appointed and liable to removal by the Executive Government, it is bound to furnish information to the Treasurer at his request and it must submit its annual report and financial statements . . . The Trust, in determining the investment policy which it will pursue . . . is free of directions . . . but this in itself does not show that it has been established as a body independent of the Crown.

His Honour really emphasised the composition – control.  The control over appointment, termination, matters of that kind.  Even though there was not there present the control over activities that Justice Stephen and Justice Aickin required, Justice Mason and Chief Justice Barwick found there was enough.

As you will see, or indeed as you have seen in the EPBC Act, the Director is a far closer connection to the Executive with much greater degrees of control than were present there.  Justice Aickin at 365 identified various considerations.  About halfway down 365, his Honour said:

whichever of the various indicia which have been suggested in the many cases on this topic is used in the process of characterization, the Trust does not fall into the category of the Crown, or a servant or agent of the Crown.  There is first the absence of any power to control the activities of the Trust; there is also the nature of the function of the Trust which is a limited one, though no doubt of importance.

Then, at 371, his Honour says – again, halfway down the page:

Of all the kinds of provisions that may be relevant to the determination of whether a statutory body (whether corporate or not) is the Crown, the capacity of the executive government to control its operations (whether directly by instruction or direction or indirectly by power to remove otherwise than for misconduct or incapacity those in control of its operations), and the nature of its functions are the most important.

Everybody seems to have agreed that those are the relevant factors, with control being the most important ones.

GORDON J:   Can I ask you about that.  Justice Stephen at the bottom of 348, over to 349, up to the top of 350, in effect, provides a more general analysis of the way in which control might work and recognises that it, in effect, adjusts depending upon the time at which you are looking at it and other factors.  Do you take issue with what his Honour says in those pages?  So, for example, he says “the usual case”, that control can vary.  He then talks about “the extent of control”; that there is a task.  But then he says:

One observation may be made –

about functions as well.  And ultimately, in the end, he says it depends upon different considerations.  You do not take issue with what is said there at all?

MR DONAGHUE:   I do not.  I do not read what his Honour says there is inconsistent with the passages I have taken your Honours to.  He acknowledges at the top of 349 that sometimes “nice questions of degree” might be involved in “borderline cases” and that sometimes the intent might be complex.  But none of the members of the Court seems to regard it as in any way answering the question that we were talking about a separate body corporate, and none of them seem to regard it as problematic, that there was not an express statement.  They just needed to engage in an interpretative exercise to answer the question, and they did so by considering the factors that have been identified.

That, in our submission, remains the law post‑Townsville.  Townsville did not change it.  The same control factors and governmental functions, factors, were emphasised, for example, in Queanbeyan v ACTEW at paragraph 26, in McNamara at paragraph 53, in SGH v Commissioner of Taxation at paragraph 16.  Now, those cases all involve slightly different contexts, but they all end up coming at essentially the same question, which is:  when Parliament created a body, what did it intend the status of that body to be?  Did it intend it to share the privileges and immunities of the Crown in the relevant respect? 

GLEESON J:   Do you say that the power of ministerial direction is determinative in your favour?

MR DONAGHUE:   Extremely weighty factor in our favour.  I cannot pull out any one of the factors and say it is determinative, but it is consistently regarded – SFIT identifies it as the most important factor, and we rely upon it very strongly here.

EDELMAN J:   There is something of a looseness, though, in some of the judgments in the Superannuation Fund Investment Trust Case.  For example, the references to whether the Trust falls into a single category of the Crown, or the alter ego of the Crown, but also including a servant or an agent of the Crown, that is not, as I understand the way you put, the submission.

MR DONAGHUE:   No.  I think, your Honour, that is a product of the fact that the statutory exemption in the Stamps Act (SA) used that language.

EDELMAN J:   I see.

MR DONAGHUE:   I think that is why it is there.  So, before I conclude on that – finally, your Honours heard some references to Kirkland yesterday.  Repatriation Commissioner v Kirkland – you do not need to go it.  It is a 1923 case, so 100 years ago.  It concerns the Repatriation Commission, a Commonwealth Statutory Commission.  There is a passage in the reasons on page 8, where two members of the Court describe the corporation as being “indistinguishable” from a Department.  It had effectively been created to run a Department. 

Their Honours were not – evidently not – stating that as the legal test.  They were not saying, a statutory corporation gets the privileges of the Crown only if it is indistinguishable from a Department.  They were describing, factually, the position in that case.  And you see, particularly on pages 7 and 8, and pages 12 to 13, an analysis of the same kinds of factors you see in SFIT:  control and governmental functions. 

So, in our submission – it is possible our friends in reply might repeat a point that was made in writing, which is that they say, we are not entitled to rely on cases like SFIT because it is a constitutional case, and this is a statutory case about the shield of the Crown.  And they might take you to SGH or State Bank, which do draw a distinction between the statutory context and the constitutional context.  But the distinction that is being drawn is not a distinction as to the relevant factors in answering the question.

The distinction that is being drawn in those cases is between legislative intention being determinative in the shield of the Crown context, and it not being determinative in the constitutional context because the legislature cannot govern the meaning of 114 or 75(iii).  So, it is not that the factors that inform the discussion are different – and, indeed, SGH – which is a 114 case – at 16 lists the kinds of relevant factors, and they are the same.  So, if that submission is pressed by our friends, it should be rejected for the reasons I have given.

STEWARD J:   Mr Solicitor, just before you sit down.  The split in the Court in this case is about the need for operational control or control over activities.  Which is the better view?

MR DONAGHUE:  A fair question, your Honour.

STEWARD J:   Or do you say ‑ ‑ ‑ 

MR DONAGHUE:   In my submission, because I have operational control – I have both kinds, so that your Honours do not need to ‑ ‑ ‑ 

STEWARD J:   So, you do not need to resolve it.

MR DONAGHUE:   You do not need to get there.  That is my answer.

STEWARD J:   Okay.  Thank you.

MR DONAGHUE:   Can I – with the Court’s position, I will hand to Mr Lim to address the final part of our case.

GAGELER CJ:   Thank you, Mr Solicitor.  Yes, Mr Lim.

MR LIM:   Thank you, your Honours.  In developing the submission that the Director has the same legal status as the Commonwealth body politic, I propose to take the Court first to the EPBC Act, then to the Kakadu Management Plan, and in the course of addressing those legal instruments, make some reference to factual material in the Attorney‑General’s book of further materials to illustrate the practical operation of the provisions of those laws.

In the interests of time, I will not go to the National Parks and Wildlife Conversation Act 1975.  Some extracts of that Act as it appeared in 1999 are in volume 3, tab 18 of the authorities.  That predecessor legislation established the Director as a corporation subject to ministerial control, and to manage parks and reserves which that Act described in section 6 as those:

appropriate to be established by the Commonwealth Government, having regard to its status as a national government –

That predecessor legislation was enacted in an exercise of the Commonwealth’s nationhood power and, as described by Justice Gaudron in Newcrest Mining (1997) 190 CLR 513 at 562:

picks up the notion of the that Government’s “capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation”.

We embrace that aspect of the legislative history and other matters of legislative history recorded in the Full Court’s reasons at paragraphs [50] to [53] for this point.  The establishment of the Director did not represent the entry by the Commonwealth into some field of commercial activity alongside the private sector.  The Director was no mere development corporation, it was the vehicle by which the Commonwealth body politic itself sought to carry out newly perceived functions of the national government.

If the Court could then go to the EPBC Act at the time of the alleged offence, commencing with section 514A.  We agree with our learned friends that section 514B(1)(a) was the particular function being performed by the Director in arranging for the realignment of the walking track.  The language in that paragraph of “administer, manage and control” is, in our submission, language of governmental and regulatory function.  We accept that we have to establish that the Director was intended to have the same legal status as the Executive Government in the performance of that function, but we do not accept that that issue can be resolved in isolation from a consideration of the Director’s other functions.

Our learned friends appear to accept that the function reflected in paragraph (c), for example, of co-operating with other countries, is a governmental function.  One might add, in a similar vein, the function reflected in subsection (2), which authorises the Director to co-operate with States and Territories in the performance of its functions.  Those clearly governmental functions are capable of informing the proper characterisation of the function in (1)(a).

Similarly, paragraph (f) confers the function of making recommendations to the Minister.  That function includes providing policy advice to the Minister, which in fact occurs.  Without asking the Court to go to it, may I give the reference to paragraph 12 of the special case, at page 25 of the core appeal book, and paragraph [14] of the Full Court’s reasons.

Our learned friends referred also to section 514C, concerning the Director’s powers.  They submitted that entering into contracts and carrying on works looked like an ordinary function in commerce.  That submission, did, with respect, proceed to an inappropriate level of specificity divorced from the statutory context.  The powers reflected in section 514C are powers to be exercised in connection with functions and cannot be isolated from those functions.

The suggestion that entering into contracts and carrying on works is ordinary commerce can only be made if one ignores the functions in performance of which those powers would fall to be exercised.  Indeed, the fact that the powers listed there are powers that natural and corporate persons would typically possess coheres with our submission that the establishment of the Director as a body corporate was a convenient mechanism for the Commonwealth to deploy a corporate entity to deal with others, albeit in the exercise of governmental functions.

The power of ministerial control in section 514D is a critical provision, and makes clear that the Director is subject to ministerial direction in the performance of all of its functions and in the exercise of its powers.  My learned friend Mr Glacken pointed to subsection (2), which requires the Director to take into account the views of others, including the chairperson of a land council, and it was submitted that this pointed against characterising the Director as the alter ego of the Commonwealth.  With respect, that does not follow.

The Commonwealth itself, through a departmental secretary, for example, might be required – whether by law or by policy – to take into account the views of persons affected by the exercise of governmental power.  It does not bear on the analysis that we are undertaking of characterising the status of the body itself.  I will come later to the provisions elsewhere in this Act which were also said to hedge the power of direction.  The degree of control reflected here exceeds that, for example, in Townsville Hospital Board, where there was no power to direct in relation to erecting buildings, or in SFIT, where there was no power to direct in relation to investment decisions.

One then comes to a suite of provisions dealing with the constitution of the Director.  This is 514F:  the Director is appointed by the Governor‑General, conditioned on the Minister’s satisfaction as to their qualifications and experience.  And subsection (3) makes clear that the person is permitted simultaneously to hold office or to be employed in the Australian Public Service.  And again, without going to the facts, paragraph 11 of the special case at page 25 of the appeal book records that, at the relevant time, the Director was in fact the head of a division of the Department.  Under 514G, acting appointments may be made, and they are made by the Minister. 

One then comes to terms and conditions of employment.  The term of appointment and remuneration are fixed – that is 514H and 514J.  Termination of appointment is on limited grounds – 514P.  I have noted that point that similar limitations on the grounds for removal of members of the Trust in SFIT did not dissuade Justice Mason, with whom the Chief Justice agreed, from determining that there was, nonetheless, sufficient control because of the power to appoint and to remove, although on limited grounds.  One sees that relevant limitation recorded in the judgment at page 341 to 342 and Justice Mason’s holding in that respect at 354.  Sections 514K, 514M, and 514Q, indicate that other conditions of employment are within the control of the Minister or the Governor‑General.

Our learned friends took your Honours to section 514S, concerning the Australian National Parks Fund.  It is significant that the first source of funds to be paid into that fund is money appropriated for the Department and then allocated to the Director by the Secretary.  In practice, those departmental funds comprise the majority of the Director’s income.  In the interests of time, without going to it, can I give the Court the references in the Attorney‑General’s book of further materials to where that income is recorded.  Tab 3 is the 2018-2019 Annual Report, and page 103 is a statement of comprehensive income, which shows some $47 million out of $79 million being derived from the departmental allocation.  Similar figures were budgeted for 2019 to 2020 in the 2019 Corporate Plan, which is behind tab 4, relevantly at page 195.

It is true that section 514S recognises other sources of income, but these are importantly limited.  For example, the ability to charge fees for entry to reserves and the like is subject the approval of the Minister, and that is section 356A of the Act.  What that means is that those fees are not simply set on a commercial basis by the Director in the exercise of some independent discretion.  They are ultimately approved and therefore controlled by the politically‑accountable Minister.  The self‑generated income of the Director at most defrays the financial commitment that is other required under paragraph (a).  The Director is not established as a self‑funded commercial enterprise.

We rely also on section 514U, recognising the high level of Commonwealth auditing and reporting oversight to which the Director is subject, and section 514W, enacting the exemption from taxation.  Our learned friends deployed that provision in a kind of expressio unius argument, as though it indicated that there are no other immunities to be implied.  That should not be accepted.

The provision instead confirms the legislative intention that the Director is intended to have the same legal status as the Commonwealth. Section 514W goes further than section 114 of the Constitution by referring to Territories. Insofar as it does not go further than section 114 of the Constitution, the provision is properly seen to be declaratory, or enacted for abundant caution.

I would note that in Repatriation Commission v Kirkland, to which some reference has been made, a very similar argument to that of our learned friends was rejected.  It was argued there that an express statutory provision giving the Repatriation Commission’s debts priority indicated that the Commission was not the Crown because such an express provision would have been unnecessary, and the Court rejected that argument.

GAGELER CJ:   I think this sort of provision might have its origin in Australian Coastal Shipping Commission v O’Reilly – the legislation there.  Have you looked at that at all?

MR LIM:   No, I have not, your Honour.  Before proceeding with these provisions, can I deal with this point in section 498A?  I do not need your Honours to go to it.  That was the immunity for officers and rangers and their assistants, and was also said to be an express immunity telling against any implied immunities.  That is an immunity in relation to very particular enforcement powers conferred by the relevant part of the Act on those officers and rangers.

It is also an immunity for natural persons, and thus is consistent with our position that the ordinary law would bind those natural persons, and says nothing about whether the corporate director might enjoy certain privileges and immunities when one construes the constative provisions in the Division that I am currently in.

Section 515 authorises both the Minister and also the Secretary to delegate all or any of their powers or functions to the Director.  In our submission, that indicates that the government can, if it wishes, discharge its responsibilities by delegating them to the Director and supports our characterisation of the Director as a vehicle for the performance of the government’s own functions.  To illustrate some aspects of that in practice, could I ask the Court to go to tab 5 of the Attorney‑General’s book of further materials.

GORDON J:   What is that document, and what page please, Mr Lim?

MR LIM:   It is page 219, and it is a Memorandum of Understanding between the Secretary and the Director.

GORDON J:   Thank you.

BEECH‑JONES J:   I am sorry, Mr Lim, what page was that again?

MR LIM:   Page 219.

BEECH‑JONES J:   Thank you.

MR LIM:   Paragraphs 1.1 and also 1.4 record that the Director is responsible for one of the Department’s portfolio budget sub‑outcomes, namely, conservation and appreciation of Commonwealth reserves.

GORDON J:   This Memorandum of Understanding is dated June 2001.

MR LIM:   That is the one.

GORDON J:   It is still applicable?

MR LIM:   Yes.  Paragraph 1.9 records that the Director participates “in senior management forums in the Department”.  Paragraph 2.1 records the particular delegation by the Secretary of a power to engage and manage “Departmental staff associated with the National Parks function”, once again, indicating that the Director is carrying on a function of the government itself and is ‑ ‑ ‑ 

BEECH‑JONES J:   Mr Lim, what is the status of this, though, has this got statutory force, this Memorandum of Understanding?

MR LIM:   No, it is a memorandum of understanding between the Secretary and the Director, but in referring to the delegation, the delegation would have statutory effect.

BEECH‑JONES J:   Of course.

MR LIM:   And, in fact, the Director relies on the staffing and resources so provided by the Department.  Without going to it, that is paragraphs 13 to 16 of the special case.

GORDON J:   Just so I understand this, paragraph 2.1, the DNP charges back – is that the way to read it – for staff?

MR LIM:   It is debited from the fund, bearing in mind that the fund has had committed to it funds allocated by the Secretary.

GAGELER CJ:   So, the staff remain public servants?

MR LIM:   Yes.  They are departmental staff supporting the Director.  Drawing together what emerges from these provisions, before I come to the hedging argument, having regard to the underlying nationhood power, the Director’s day‑to‑day stewardship and management of Commonwealth reserves is intrinsically governmental.  That characterisation of that function – the management of reserves – is fortified by the adjacent functions of the Director, such as co‑operating with other polities, both in the federation and overseas and in providing policy advice to the Minister.

The government controls the appointment, the removal, and the terms and conditions of employment of the Director.  The government controls the Director’s finances through approval of entry charges that the Director might impose, and then, through its ultimate funding, by departmental allocation of appropriated moneys.  Finally, and – according to the cases – most importantly, the Director is subject to immediate ministerial direction in the exercise of all of its functions.

On that point, can I now deal with the hedging submission.  To do that, I will need to go to Part 15, Division 4 of the Act.  It may be best to go to that, for the judges using the electronic authorities, in the supplementary bundle that was filed by our friends on Monday, because that contains the whole Division without any missing sections.

I am proposing to start at section 365, which is a simplified outline which sufficiently summarises, for present purposes, sections 366, 369 and 370, capturing this point: a management plan is prepared jointly by the Director and any Board, disagreements in the preparation of that plan are resolved by the Minister and, ultimately, a management plan is approved by the Minister.  Note also section 371, “Approved management plans are legislative instruments”.  Looking then at section 367, which sets out mandatory content for a management plan, paragraph (1)(e) requires the management plan to:

specify any limitational prohibition on the exercise of the power . . . under an Act –

or under any act.  We raised this provision in answer to a submission of the intervening parties that the Minister’s power of direction was displaced by the Kakadu Management Plan.  Now, that submission was not squarely put yesterday.  It may not be pressed.  The submission now seems to be a more confined submission that the Minister’s power of direction is hedged or constrained.

GORDON J:   I think the proposition put was that by reference to 367(1)(d), where:

if the Director holds land. . . under lease –

It must:

be consistent with the Director’s obligations under the lease –

MR LIM:   Yes, I do not shy away from that. 

GORDON J:   While I have interrupted you, I would also at some point – and you may be coming to this – ask that you provide your submissions on 514D(5) which is that:

The Director must not:

(a)      enter into a contract –

without the Minister’s consent and, in effect, the exceptions to that.

MR LIM:   Yes, I will address that.

GORDON J:   Not now, but when you get to it.

MR LIM:   I may address that now because I was not proposing to come back to that.  We say that that provision, at the level of statutory construction, assists us.  It is another indicator of ministerial control over the Director.  Of course, the contract in issue on the particular facts of this case was not one that required ministerial consent.  But that fact does not change the characterisation of the Director as a body corporate.

GORDON J:   And what does (5)(b) mean?

MR LIM:   Subsection (5)(b) is that the Director cannot enter into a lease of more than 10 years without the Minister’s approval, but there is an exception for Indigenous land, and that is because the scheme contemplates long‑term leases to the Director for that purpose.  Your Honours, the hedging of the Minister’s power of Direction appears in section 362.  Subsection (2) means that the Minister must not exercise the power of direction “inconsistently with a management plan”.

That is simply to say that the power of direction does not extend to directing a breach of the law, the management plan being a legislative instrument.  In our submission, that is not really hedging, that is axiomatic, and could be said of most powers of ministerial direction.  While in section 362, can I correct a suggestion yesterday that there should be discerned from this section some sort distinction or juxtaposition between the reference to “the Director” in (1) and the reference to “the Commonwealth or a Commonwealth agency” in subsection (2).

The definition of “Commonwealth agency”, which my learned friend Mr Gleeson did go to, includes the Director as a body corporate established for a public purpose by a law of the Commonwealth.  There is no juxtaposition or contrast between the Director and the Commonwealth.  Subsection (1) is dealing with the specific affirmative duty of the Director “to give effect to a management plan”.  Subsection (2) is dealing with the negative obligation of the Director but also all other agencies not to act “inconsistently with a management plan”.

In section 363, where there is disagreement with the land council about the Director’s implementation of a plan, then the Minister has a specific power in paragraphs (d) and (e) to give directions to the Director.  I am conscious of the time, but may I come to section 376, to which my learned friend Mr Glacken, in particular, went yesterday.  The scheme for joint management – joint management by the Director in conjunction with the Board – has some bearing on the precise width of the of the Director’s function of management, but it does not detract from our proposition that in the performance of that function, however wide it might be, it is subject to ministerial control.  I note subsection (1)(a), that the Board is:

to make decisions relating to the management of the reserve that are consistent with the management plan –

The management plan is, of course, approved by the Minister, and could, from case to case, give more or less discretion to the Board.  It is ultimately a matter for the management plan as approved by the Minister.  Then, the Director, when implementing that management plan, would have to observe, naturally, whatever role is given to the Board by the management plan.

That is the way in which I say this scheme for joint management can affect the precise width of the Director’s managerial function, but it does not detract from the proposition that ministerial control over that function of the Director remains and supports our characterisation of the Director.

GLEESON J:   What do you say are the underlying rationales for the separate corporate entity of the Director in this scheme?

MR LIM:   When one looks at the powers that the Director is conferred in section 514C, and can be expected to exercise in fulfilling its functions – entering into contracts, holding land, et cetera – they are the sorts of powers that are conveniently discharged by a body corporate.  That is one rationale.  There is, of course, no particular need for a rationale.  It is the government’s choice to deploy a corporation in this field to perform the functions that I have been through.  Can I come, finally, to the Kakadu Management plan.

STEWARD J:   Just before you move there, can I ask you one question about the immunity in 498A.  Is it suggested that it would have some engagement with section 34 of the Sacred Sites Act in any way?

MR LIM:   It is very difficult to see how it would, in my submission.  Section 498A immunity is about:

the exercise or purported exercise of any power conferred on the officer or ranger by this Part –

that is Part 17 :

or Schedule 1 . . . or regulations –

Part 17 is about enforcement, so it is not about officers or rangers ‑ ‑ ‑

STEWARD J:   It is not about the powers of maintaining a track?

MR LIM:   No.

STEWARD J:   No.  I see.  Thank you.

MR LIM:   The Kakadu Management Plan is in the intervener’s book of further materials.  I am going, relevantly, to volume 3.  I go to this document to meet the factual argument that the particular activity of realigning the walking track is not an activity that would attract any presumption against criminal liability.  I will start at page 227, which is the commencement of section 10 of the Plan, setting out general policies for the uses of the park by all users.

GORDON J:   What page was that, Mr Lim?

MR LIM:   It is page 227.  There is reference in the last three paragraphs, just incidentally, to the Director’s regulatory function in managing the park.

GAGELER CJ:   You are using this to illustrate the operation of the Act, are you?  Or do you use it in another way?

MR LIM:   No, this is in another way.  The proposition that I am coming to is that realigning a walking track or providing a walking track is something that only the Director can do.  That is the really the sole point I am taking from this at this point.  And that appears on page 246.  On page 246, 10.7.3, records that:

Park visitors may only walk on . . . a track for walking provided by the Director –

In our submission, this denies any analogy between the function of providing a walking track, if that is the relevant level of specificity, and the general development of land by the private sector.  The Director is not providing walking tracks alongside private tourism operators who are also able to provide walking tracks.  It is the only entity that can do it, and that demonstrates that it is a governmental function, in our submission.

It also illustrates, on the flipside, why it is inappropriate to characterise the particular activity here as “carrying on works”, as our friends at some point did.   To complete the factual picture, can I go, finally, to the contract, which is in the Attorney‑General’s book of further materials, tab 6.

GORDON J:   What page, please?

MR LIM:   It is page 227.  I draw attention to the three paragraphs underneath the map, which record that the Board identified the upgrade as a “priority”.  The track surface was “uneven and eroding”, had extruding boulders and was “steep in sections”.  We submit the realignment was addressing safety issues identified by the Board on a track that only the Director could provide in the performance of its function of managing the reserve.  We say, clearly, a governmental function.

If your Honours please, they are my submissions.

GAGELER CJ:   Thank you, Mr Lim.  Mr Gleeson.

MR GLEESON:   Your Honours, the answer in respect to Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46 is that it does provide an example of the type of immunity that we see here from taxation, and the importance of the case is that the immunity was held under federal law to work through section 109 to deprive the State law of its operation. That is exactly the way it is discussed in Telstra at paragraph 24. What that illustrates is that section 109 is the way by which this type of problem is resolved if it is a problem.

The Commonwealth creates either the immunity or the privilege in respect to the creature and then it will prevail over State or Territory law under section 109 or its equivalent. Can I just go back to the Sacred Sites Act for a moment. One matter is now common ground, which is that the criminal norms of the Sacred Sites Act bind the Minister. That is, the Commonwealth Minister; they bind the Governor‑General, they bind the Prime Minister, they bind department heads, they bind public servants, they bind contractors.

GAGELER CJ:   You might be going a little far in including the Governor‑General.

MR GLEESON:   Let me downplay the rhetoric, but I at least have the Minister and the others that I have mentioned.  That is common ground, and they can be criminally prosecuted qua natural person.  The critical question of construction, which the Court has put to the Attorney‑General, and there has been no real answer, is by what sensible process of statutory construction do you read down the term “body corporate” so as to exempt some Commonwealth body corporates, but not others, from this general norm of conduct, which, in order to achieve the purposes of the Act, has to be uniform in that way.

There has never been a real answer to that question.  Each time it was put, the answer diverted into a version of Cain v Doyle.  Although the Attorney‑General said he can win without Cain v Doyle, every time they were pressed, they got back to Cain v Doyle and their version of Cain v Doyle, which is it somehow creates a presumptive immunity for certain body corporates which exist beyond the body politic.

STEWARD J:   I think the Solicitor‑General also sought to make something of your concession that section 4 did not apply to the Commonwealth as a body politic.  He said if that is so, and if the Director is a body politic, you therefore need to read the reference to “body corporate” down to exclude those particular types of entities.  I think that was his answer.

MR GLEESON:   I think one of the answers – if it was that – had in it the premise your Honour just identified, that the Director can be equated with the body politic.  The Director is a part of the Commonwealth body politic, seemed to be that version of the submission.

STEWARD J:   I thought – to use an expression others have used – that was really the killing field here?

MR GLEESON:   The answer to that is, when we are looking at the Northern Territory Act, we start in the Interpretation Act with a clear division between three types of legal entities:  bodies politic, body corporate, natural person.  Each of them is a right and duty‑bearing unit.  That concept has been carried through into section 34, and the Parliament has said, we do not criminalise the body politic, we do criminalise the body corporate and the natural person.

EDELMAN J:   That is a different answer, though, from the question which is asking about the scope of “body corporate” as a matter of interpretation by reference to Cain v Doyle, is it not?

MR GLEESON:   It may be, your Honour.  I was trying to answer your Honour Justice Steward.  That is one way ‑ ‑ ‑

EDELMAN J:   Do you disagree with the Attorney’s position to, the extent that it was put in this way, that there is some limit to the application of bodies corporate in the Sacred Sites Act that will not apply because some bodies corporate are intended to be, for all intents and purposes, the manifestation of the body politic?

MR GLEESON:   Our primary answer is, yes, we do disagree with that, as strongly as we can, because as a matter of Territory intention, for this legislation to work, someone has to open it and be able to look at it and say, I am liable to a breach of criminal norm, or I am not.  The way we read it, it is incredibly simple.  You open it and you say:  am I a body corporate?  I am exposed to a criminal norm.  Natural person?  Exposed to a criminal norm.  Body politic?  Not.

Once you go the step further and say, no, what the Territory really intended was some body corporates were criminalised but others were not, you then go down the rabbit hole, to use a different metaphor, that you have had for the last hour and a half this morning, of trying to work out what are the tests by which you decide whether the body corporate is sufficiently close to the body politic to be assimilated to the body politic.

If one thing has been demonstrated in spades by the learned Solicitor‑General and Mr Lim, that inquiry of itself is a monstrously difficult and complex inquiry.  In SFIT we have a split between Chief Justice Barwick and Justice Mason on the one hand, Justice Stephen and Justice Aickin on the other hand, on the question, does SFIT sufficiently equal the Crown for the purpose of a particular provision.  So, in terms of Territory legislative intent, can it seriously be intended that the Territory was saying, to work out who we are criminalising you have to go through an inquiry into the legislative intent of another polity, which has taken a good part of a day or more in this Court and thousands of pages of submissions, et cetera, just to work out who is caught by the law.

EDELMAN J:   That would be the case then, on your submission, even if you had an express provision that said for every purpose this statutory corporation is to be treated as the polity of the Commonwealth of Australia.

MR GLEESON:   The answer is yes, as a matter of Territory law, and then, because of 109, the Commonwealth law would prevail, and would simply be in Telstra territory.  That is why I started with 109.  That is the way the Commonwealth achieves it, not by trying to carve out from Territory legislative intent.

BEECH‑JONES J:   Mr Gleeson, does that include a corporation of the kind referred to in Kirkland?

MR GLEESON:   Even a Kirkland corporation, for this purpose under Territory law, you do not ask the question.  That is our primary answer to that, because otherwise you render this Territory law inherently uncertain, and you thereby defeat its purposes because what is to happen in the present case – the parties have spent this period of time, and through leave will ultimately have your Honours, depending if you reach it, tell us what the DNP is, what its relationship to the Commonwealth is, but without that exercise you simply do not know how the Territory law works.  On the other hand, our view:  very simple, very practical, very workable, and therefore much to be preferred as a sensible, purposive construction of the Act.

BEECH‑JONES J:   On that analysis, the sort of indication that Justice Gibbs gave in the Townsville Case, the next step would be, if there was that clear, express, or statutory indication, 109 would then get the Commonwealth ‑ ‑ ‑

MR GLEESON: Section 109 or repugnancy.

BEECH‑JONES J:   But if it was at a State level it would not matter.

MR GLEESON:   No.  That is where the answer lies to the whole problem.  It is in 109.

GORDON J:   What happened to the 109 argument in this case?  Because it was around.

MR GLEESON:   There is no 109 argument on this issue ‑ ‑ ‑

GORDON J:   It has been parked, has it?

MR GLEESON:   Supposedly parked the operational inconsistency that in the management plan the Director has been authorised to desecrate sacred sites.  That is why I say that argument is hopeless and will not detain the Local Court for very long.  Your Honours, body corporate means body corporate.  That is my primary answer to your Honour Justice Edelman’s question.  You do not do the SFIT inquiry.  The Territory statute has not invited it.

GAGELER CJ:   I think the only problem with that submission lies in some of the reasoning in the State Authorities Superannuation Board Case, does it not?

MR GLEESON:   You were told yesterday there is a major premise on page 270; we dispute that.  What is happening on page 270 is the Court is saying here is Cain v Doyle which applies to the Crown, and the Crown – that term “the Crown” is cited at least five times on page 270.  What the four Justices then say is it would not matter whether the Board was the Crown for this purpose because we have separately found that the civil liability to stamp duty is unaffected by any criminal considerations.  So, the main judgment simply said we do not opine on whether the Board is the Crown and, more relevantly, they did not opine on the legal method by which you would even answer the question.

So that the phrase you heard repeatedly, you look for Commonwealth legislative intention as to whether the creature has the same status, and then the phrase varies.  Sometimes it is the same status as the body politic, sometimes it is as the Executive Government, and so on.  Nothing in the four Justices said that is the question to be answered, so it is simply neutral on the point.  I accept that in‑chief that the two Justices through the use of the constitutional conception of what is a State thought that that was helpful in answering the particular question, which was whether one State was immune from taxation by another, and their Honours regarded that as raising rather acute constitutional questions within a federation between two equal polities where no one had a 109 override.

What their Honours said there, that the Solicitor‑General passed over this, was based on the constitutional conception of a State with Justices Gummow and McHugh four times saying they are not talking about the privileges and immunities of the Crown, so one cannot take from that judgment the proposition that is being put here.

To be clear on our alternative position, which your Honours should not need to reach, on your Honour Justice Edelman’s question, if the Territory Act has any scope for some further inquiry into whether things that look, smell, and feel like a body corporate in fact are not a relevant body corporate, if there was that – which we deny – it would only be in the sense that your Honour put in argument this morning and the Chief  Justice put before the adjournment as the first limb of the two‑stage question.  Namely, if there could be a case where, in criminalising the body corporate, you are criminalising the body politic, qua body politic, if there could be such a case, query whether that raises any different considering, and that is simply not this case.

BEECH‑JONES J:   Is that the same question as Townsville or something else?

MR GLEESON:   At that stage, one would be asking a Townsville‑type question.  As far as the books go, the closest creature that might look like that is the Repatriation Commission in Kirkland, which is why I refer to it, where the judgments say this creature either is a Department of State or is so indistinguishable form a department of State to have the relevant privilege.

EDELMAN J:   But it is a little bit different from the Townsville question, would it not be, because it is not just control, because control is just the same test for agency, or servants, or contractors, and so on.

MR GLEESON:   Your Honour is correct, it is probably – it is a tighter question, and one almost never to be answered yes.  Is this creature, although set up in the form of a body corporate, the Commonwealth body politic as described in paragraph 75 of Hocking?  Is it such a creature?  There has been no attempt to raise the argument to that level here, and, of course, it would fail if it was run.  So, in the alternative position, that completely answers the body corporate, body politic point, we would say. 

EDELMAN J:   And is the justification the same as the Bropho justification, then?

MR GLEESON:   In the body politic case?

EDELMAN J:   Yes.

MR GLEESON:   We say, it all comes under – it is fundamentally under Bropho, which is – whether it is in the last degree improbable, or a mild degree improbable, or not at all improbable, that you would expose this other legal person to your criminal norms.  In respect to the imposition of them on the Crown, then one might approach that in one fashion, as the Commonwealth drafting guidelines tells us, but, as their guidelines tell us, and the explanatory memorandum, rather different questions arise when one is talking about bodies corporate.  So, it can be seen in that way, your Honours.

Now, just briefly on section 4, although that was put as an independent argument, it collapsed into Cain v Doyle and into the body corporate argument, because the way it ran – the argument was really to say there was an essential infirmity in the Sacred Sites Act prior to 2005, that it did not capture certain bodies corporate who might be associated with a polity, Territory or Commonwealth.

The argument ran that the old section 4 bound the Crown civilly but not criminally, and therefore in 2005, with the basic hole in the Territory Act, where it could not prosecute body corporates which had a connection with a polity, it came up with section 4(2), only applied it to the Territory, therefore the Commonwealth is home free, with an ample dose of Cain v Doyle sprinkled in there every time your Honours are asked a question, that section 4(2) apparently is the anti‑Cain v Doyle provision, and so on.

The short answer to that is, it is based on the wrong premise of where the Territory Act sat immediately prior to 2005.  If the Territory Act had the ample reach we say it did, capturing bodies corporate even if they were connected with polities, then the additional work of the Act was to provide the means to criminalise the behaviour of the body politic, particularly through unincorporated entities.

We have given your Honours, I hope, just one example of the type of creature that was caught by the additional work of 2005, which is the Pastoral Land Act 1992 (NT). The relevant extract, which is an example of a Board created by section 11 to carry out functions in pastoral districts, with various powers of entry which could, in fact, engage with, potentially, sacred sites in various parts of the Territory. It is an unincorporated body. If it breached the Sacred Sites Act, it could not have been criminally prosecuted before 2005. After 2005, it can.

Conversely, to the extent that there are Commonwealth bodies like the Pastoral Board which are not incorporated, they remained outside the Act because it was not extended to them.  Your Honours, in terms of Cain v Doyle and the propositions which your Honour Justice Gordon put to the learned Solicitor‑General, it is our submission that it is both open to this Court and it should declare the proper limits to Cain v Doyle, which are that it protects the body politic via the strong presumption.

In saying that, if I could ask your Honours to go back to Cain v Doyle (1946) 72 CLR 409, tab 24. We dealt with this in writing, but when one looks at the whole of page 424, including the purple passage in the middle, but the material above it, below it, and over to the next page, the historical conceptions that Justice Dixon based his principle around have almost wholly been overtaken today, if not many years ago.

If one looks at the absurdity point at about point 3, it was absurd that the Executive could punish – could get the magistrates to punish the Executive “which the Executive . . . may enforce or remit”.  It simply does not apply, particularly in the present case, where you have an independent statutory prosecutor of one polity prosecuting a body corporate created by another polity.  There is hardly an absurdity in that.  As to just below the purple passage, the first consideration:

There is no Court of summary jurisdiction with jurisdiction over the Crown –

That has long been remedied.  In the present case, the proceedings are properly brought in the Local Court under the 2015 Act, section 18(1)(a)(i), so that has been overtaken.  The second consideration that the fine would go to the Treasury and yet it would be payable by the Treasury, that is now not the case, as you have seen, because the fine will be paid out of the DNP’s separate fund and it will be paid into Consolidated Revenue or the central holding authority of the Territory under section 24 of the Sentencing Act 1995.  Paragraph (c):

It is for the Crown to remit fines.

It has not been suggested that if the fine is imposed on the DNP that the Territory Crown, let alone the Commonwealth Crown, can simply remit the fine.  Then, in paragraph (d), we have the proposition of the Crown acting “by its Ministers and servants”, and your Honour the Chief Justice raised where all this appears to come from is the King can do no wrong, but his or her servants and Ministers certainly can, and can be prosecuted in their persons and bodies for the poor advice they gave to the King.

That principle remains today between us, and that is bolstered by the A v Hayden principle of Justice Brennan, which has been repeatedly picked up in the Court, about the inability of the Executive to dispense with the operation of the criminal law.  Where that leads you to is that almost every consideration which Justice Dixon uttered is inapplicable today, and in any event, none of them ever had any work to do beyond the body politic, and not a word of them have anything to say about bodies corporate.  I will be a little longer, your Honour.

GAGELER CJ:   Fifteen minutes, Mr Gleeson?

MR GLEESON:   If your Honours please.  What would ask you then to do with Cain v Doyle is to reach these conclusions:  historically, it derives from the maxim that the King can do no wrong at a time when, under United Kingdom and Australian constitutional theory, there was no concept of the State as legal person.  Those theories have been overtaken by our Constitution, which identifies Commonwealth and States as bodies politic, in the sense of Hocking paragraph 75, which are amenable to jurisdiction of this Court under section 75.

To the extent Cain v Doyle has Crown immunity notions, they have now been discarded by the Commonwealth v Mewett.  The only acceptable form of Cain v Doyle in the modern constitutional theory is a presumptive protection of the body corporate, being the constitutional body corporate ‑ ‑ ‑

GAGELER CJ:   Body politic.

MR GLEESON:   Body politic, yes, sorry.  Any extension beyond the body politic must accommodate and be in harmony with the rule of law and equality before the law considerations identified, inter alia, in A v Hayden.  It is not sufficient for a Cain v Doyle presumption that you are part of the Executive Government – for example, M v Home Office.  It could only be in circumstances where you are the body corporate.

STEWARD J:   Body politic.

MR GLEESON:   Body politic.  Perhaps I should rest.  Your Honours would say, please do.  Now Telstra, we are clearly apart on how your Honours read those paragraphs.  We would submit it is the clearest example that if the Attorney‑General was correct, Telstra should have had a Cain v Doyle immunity and the case would have been decided at the level of construction.  It only reached the second stage because the general words “employer” and “body corporate” adequately captured Telstra.

Your Honours, could I then put our concluding submissions on the EPBC Act, and its relevance is in two senses.  One is our alternative case that I identified to your Honour Justice Gleeson yesterday that what you positively get from the EPBC Act together with the ALRA Act is part of the overall scheme which only makes good sense if the DNP is bound to the criminal norms of the Sacred Sites Act.  That is positive relevance of it.  The negative relevance is the argument you have heard this morning that you should find by implication to a Townsville standard, if it arises, that the DNP has an implied immunity or privilege from that statute.

GORDON J:   Not from that statute?

MR GLEESON:   From the EPBC, yes.  One starts with, if that was intended why did not you say so, which is the very thing that Commonwealth drafting guidelines tell us.  One next adds the clear provisions imposing Commonwealth criminal norms on the DNP, norms which are not imposed on the Commonwealth body politic.  You have seen the explanatory memorandum, the supplementary memorandum for the EPBC Act, it made perfectly clear that the Parliament took out a provision which might have given immunities to bodies like the EPBC because it was contrary to Commonwealth drafting practice and policy.

So, the sorts of things that needed to be in the Act to achieve the Commonwealth’s purpose are either:  section 21(3) of Telstra, not there; or the provision which was going to be put in there but got taken out for good reason.  You have that.  What have you got left from Mr Lim’s argument?  Firstly, he says because it is enacted under the nationhood power, the function must be deemed intrinsically governmental and therefore every body corporate created under the nationhood power, in effect, is a long way towards getting an implied immunity.

That argument should be rejected on a number of levels.  First of all, section 6 of the National Parks and Wildlife Act of 1975 that created the DNP did not source it solely in the nationhood power.  It sourced it in the Territory’s power.  The act applies in the Territories because of section 122, it does not need the nationhood power.  The nationhood power, if your Honours think of the history around 1975, was vigorously embraced by the Commonwealth as a means to expand into areas where it did not have clear heads of legislative power.  Even if the Act can be supported by the nationhood power, that hardly tells you much about whether an implied immunity has been conferred upon the creature sourced in that power.

The second thing he relied upon was an assertion that the function was intrinsically governmental.  Your Honours have seen in SFIT the difficulty in identifying what is intrinsically governmental.  In SFIT, some of the Justices said funding government employees by superannuation is not intrinsically governmental.

In Kirkland, 100 years ago, properly looking after returned servicepersons was regarded as intrinsically governmental.  So, very easy to assert it is intrinsically governmental, hotly contested what is or is not in that category.  Very difficulty to see that conserving and developing national parks, including extensive building works and extensive engagements with the public and the private sector is an inherently governmental function which confers or assists in conferring an implied immunity.

Next, he said, as well as looking at the function in question – which is managing and conserving the park – look at the surrounding functions.  Apparently, because the Director could go and engage internationally to try and promote, perhaps, people to come to visit Australian parks, that function, which is said to be inherently governmental, helps to inform and create an immunity when he damages a sacred site in carrying out building works.

Your Honour Justice Gordon asked the question:  what is the level at which one looks at the functions?  You never got a satisfactory answer to that in either address.  The correct level, which Justice Gibbs identified in Townsville Hospital, and is also employed in SFIT, is to look at the particular function that is being said to be impaired by the law that is in question.  The frame has been opened far too widely, we would submit, in the Attorney‑General’s analysis.

As to finances, it is a very strong factor that this is a separate fund, separate from Consolidated Revenue, and part of the separation means that it will include moneys coming from a series of private activities by the DNP with the general community sector.  Your Honour Justice Gleeson asked, why have they got a corporation, and the answer was, it is just a vehicle, you do not need to worry; they do not have to have a reason.

The true reason is that they want a body which can engage in multiple transactions in the community with customers, with suppliers, with partners, running its own separately identified accounts quite outside Consolidated Revenue.  It is a very deliberate decision that it is not done in Consolidated Revenue.

This as the second‑last point.  You were taken in the Attorney’s supplementary materials, if you could go back to that, to some accounts.  It is page 103.  Even though these are exactly what you would expect, a separate set of accounts for a separate entity operating its own business, it was said under the revenue that $47‑odd million has come, in this year – 2019 – from the Department.  Then you see the balance, which was somehow marginalised, of $30 million that you did not need to really worry about, because that might have been the Minister setting some park fees.

So, as to what is known about the balance, item 2.2A is the big one, “Sale of goods and rendering of services”, $24 million.  What we know about that is on page 114.  It is the rendering of services and there is a

detailed accounting policy stating when the revenue can be treated as sufficiently earned to be brought into the accounts – that is note 2.2A.  Then you can go to note 2.2C, which tells us what we know about the other revenue.  Now, to suggest this can just be assimilated to something relatively indistinguishable from Consolidated Revenue is, we submit, erroneous when one looks at the document.

Now, if your Honours still have that bundle, the last reference, I think is page 193.  It is in another one of these non‑statutory documents.  It is a corporate plan, so it has what status it has.  But what you see on 193, which explains why they have a body corporate, is that it works with a diverse range of partners and stakeholders to assist to deliver and undertake projects, including “Traditional Owners”, “community engagement”, “multi‑sector advisory committees”, and then “strong partnerships and relationship with” – and then a whole series of bodies are listed:  CSIRO, Tourism Australia, operational agencies, councils, departments, Great Barrier Reef Marine Authority.

So, that is an unsurprising document, but it explains why the Commonwealth is treating this as a separate authority, as a separate body corporate, because it is carrying out this multitude of interrelationships with various people in the community.  Whatever test the Commonwealth has in the end, that this amounts to alter ego, or a vehicle, we would ask your Honours to reject.

May it please the Court.

GAGELER CJ:   Thank you, Mr Gleeson.  The Court will consider its decision in this matter and will adjourn until 10.00 am tomorrow.

AT 12.58 PM THE MATTER WAS ADJOURNED