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

[2023] HCATrans 68

[2023] HCATrans 068

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin  No D7 of 2022

B e t w e e n -

CHIEF EXECUTIVE OFFICER,
ABORIGINAL AREAS PROTECTION AUTHORITY

Applicant

and

DIRECTOR OF NATIONAL PARKS (ABN 13 051 694 963)

First Respondent

ATTORNEY-GENERAL OF THE COMMONWEALTH

Second Respondent

Application for special leave to appeal

GORDON J
EDELMAN J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 19 MAY 2023, AT 12.29 PM

Copyright in the High Court of Australia

GORDON J:   In accordance with the protocol for remote hearings, I will announce the appearances for the parties.

MR J.T. GLEESON, SC appears with MR L.S. PEATTIE for the applicant.  (instructed by Hutton McCarthy)

MS J.E. DAVIDSON appears with MS E.C. DUNLOP for the first respondent.  (instructed by Australian Government Solicitor)

MR B.K. LIM appears with MS A.R. SAPIENZA for the second respondent.  (instructed by Australian Government Solicitor)

MR S.A. GLACKEN, KC appears with MR G.A. HILL, SC for the intervener.  (instructed by Northern Land Council)

GORDON J:   I should say that the Court would be helped if Mr Glacken followed the applicant.  Mr Gleeson.

MR GLEESON:   Thank you, your Honours.  We propound three broad propositions.  The first is that the presumption associated with Cain v Doyle should be revisited by this Court and narrowed.  The second proposition is that it was an error for the Full Court to expand the Cain v Doyle presumption into a territory where it has never been squarely applied by this Court:  statutory corporations.  The third proposition is that once Cain v Doyle is put to one side, on modern principles of statutory construction, it is tolerably clear the criminal norms of the Sacred Sites Act, which are virtually the only substantive provisions of the Act applied to the Director as a body corporate.

Your Honours, as to the first proposition, at page 49 of the book we have an extract from Justice Dixon’s statement of the presumption in Cain v Doyle some 76 years ago, which was heavily based upon conceptions, constitutional, legal and historical, which were considered to prevail at that time.  We have sought to identify in paragraphs 17 to 19 of our submissions that in the intervening years, much has changed in those conceptions, including the expansion of the Crown – to use that term – into almost all aspects of endeavour, which led to the civil presumption being reformulated in Bropho, the proliferation in the deployment of statutory corporations by the Parliament, the recognition in Mewett that Crown immunity is inconsistent with section 75 of the Constitution, the proliferation of public welfare offences, the development of a more sophisticated body of intergovernmental immunities and, finally, modern principles of statutory construction.

We also submit that, while this Court has never been asked squarely to grapple with the question we raise today, particularly in the context of statutory corporations, there are obiter indications which would point in favour of our argument, particularly the recognition in Bropho at page 21 that one would never expect a Parliament to need to expressly say that its criminal norms apply to servants of the Crown, we would say, equally with statutory corporations.  We have cited this in our document.

In Wurridjal, the statement at paragraphs 163 to 165 would confine the presumption to the Commonwealth as a body politic, but indicate no difficulty not applying it to officers of the Commonwealth or other parties.  Your Honour Justice Edelman in FCT v Tomaras 265 CLR 434 at 109 discussing the related Bropho presumption.

Finally, perhaps what your Honour Justice Gordon said recently in Davis [2023] HCA 10 at paragraphs 75 and following, identifying that the Executive Government of the Commonwealth under Chapter II is constituted by the Ministers, the Governor‑General and the Departments of State, and statutory corporations, we would say – adding to that proposition – are creatures of Chapter I and should not be assimilated to the Executive Government for this inquiry.

GORDON J:   Mr Gleeson, may I ask a question.  Are each of the matters that you have just put to us and set out in your special leave application arguments that were put to the Full Court?

MR GLEESON:   All of it was put to the Full Court, your Honour, I may say, because what was squarely raised on our side was – within the limits that, of course, Cain v Doyle could not be overturned or reformulated in the Full Court, but that one needed to consider the modern position.  What was put against us by the Attorney‑General, which was ultimately accepted by the Court, is that the body of authorities between paragraphs 40 and 50 of the judgment should be applied by the Full Court to, as we would put it, extend Cain v Doyle into statutory corporations.

That was the real battleground in the Full Court, because, as I have said, it has never squarely been applied to statutory corporations by this Court. What you see between 40 to 50 is an extrapolation from a series of cases in different areas of law. Most of them concern section 75(iii) or 75(iv) or 104 of the Constitution.  Some of them concern the civil presumption, not the criminal one.  Some of them are simply construction of taxation or stamp duty statutes.

That is where, we submit, the real error has come in, which is:  rather than consider whether Cain v Doyle needs to be reformulated and has no work to do with statutory corporations, it has, in fact, been extended into territory where it does not belong.

EDELMAN J:   There is another . . . . . dimension which, I think, is put against you, although it may deepen the importance of the point, which is the relationship between the presumption – or the so-called presumption – and different polities, or the statutory corporations of polities.

MR GLEESON:   Yes, your Honour, and that is part of why we say the question is of general importance, because the Full Court has, as it were, elevated the presumption against us because it is a different polity that is said to be impugned by the Act.

We would say that once one considers modern notions of intergovernmental relations under the Constitution, there is no such difficulty, and the short reason is this:  if the Commonwealth Parliament wishes to create a statutory corporation – such as the Director – and wishes that the Director, when he or she engages in functions within the law zone of the Northern Territory or a State in a way which would otherwise be subject to the general criminal norms, but to do so immune from those norms, what is required to be done is for the Commonwealth Parliament in the relevant statute to confer that immunity.

If the immunity is relevantly conferred – and that will involve parliamentary accountability – it will trump the Northern Territory law under section 122, or a State law under section 109.  What has happened here, by contrast – if your Honours would please focus just on one paragraph of the Full Court, which is paragraph [39].  It is that a wholly different enquiry is commended where one does not get to the Northern Territory statue which imposes the criminal norm until stage 3 of the enquiry.  Under stage 1, the court asks:

whether the Director is an entity to which the presumption against imposition of criminal liability on the executive government is capable of application –

Then, under paragraph (b), there is, with respect, an extremely odd inquiry into which one asks, whether as a matter of Commonwealth legislative intention:

the Director is intended to have the same legal status as the executive government in relation to the operation of the presumption –

Now, in Tomaras, for example, your Honour Justice Edelman discussed where presumptions come from, which are inferences from the behaviour of organs of government.  What is happening is here, apparently, that the Commonwealth Parliament, or a relevant Parliament, can control the scope of the presumption by expressing an intention, to which entities outside the strict Executive Government have the benefit of it, but without having, as I say, to legislate – in terms of rights and obligations – that the entity has an immunity.

GLEESON J:   Mr Gleeson, does all this not mean that section 4 of the Sacred Sites Act is squarely in play on the appeal?

MR GLEESON:   Section 4 will be in play, your Honours, and I am going to come to that.  Perhaps now is convenient.  So, our legal point; I have explained what it is about Cain v Doyle.  If we are right on that, and the court is then construing the Act, under ordinary principles unaffected by Cain v Doyle, could I observe this – if your Honours have page 219 and the following.  I will set the context of the Act, and then seek to answer your Honour’s question on section 4.

The preamble on page 221 speaks for itself.  Section 4 I will come back to, on page 223.  The authority, set up with the relevant functions in section 10, under section 19B, on page 230, is the recipient of proposals to carry out work on land, which is, we will see, land which may be in or near a sacred site.  Pausing there, the Director of National Parks is a person who may issue such a certificate, given the definition of “persons” under the Interpretation Act (NT).

The process, under 19F, page 231, is to consult the custodians of the sacred site.  And under section 22, page 234, a certificate may be given where the Authority is relevantly satisfied.  Under section 25, that certificate is the authority to enter and carry out the works.  So, that is the whole mechanism for certificates.  Then we come to the only norms in the Act by which this is put into effect, which is Part IV, on pages 239 and following, and we have four main criminal norms.  Section 33; it is an offence to enter, except if you have a certificate – that is:

enter or remain on a sacred site.

Section 34 – the relevant one:

shall not carry out work . . . on a sacred site.

Defence, under subsection (2), if you have a certificate.  So, the difference is, the certificate is made a matter of defence under 34(2).  Section 35:

shall not desecrate a sacred site.

“Defences”, under 36 – 37, shall not fail to comply with conditions.  In each case, the Parliament has said, specifically, the penalties are applied to natural persons and body corporates.  The Director is a body corporate.  So, on the logic of our case, the Director may apply for the certificate, may obtain it, may get the authority under 25 to enter and carry on the work.  If the Director does not obtain the certificate or comply with it, the Director, like any other body corporate, commits the criminal offence. 

The rival construction of this Act is that, while the Director may apply for a certificate and get it – and use the authority under section 25 – if the Director does not do so, chooses not to do so, or is refused a certificate or breaches the conditions, the Director is wholly immune from the Act, notwithstanding the Director is one of the very persons most likely, perhaps, to need regulation by the Act. 

Can I come to your Honour Justice Gleeson’s question.  With that background, returning to page 223, subsection (1) read in the context of this Act and, without reference to Cain v Doyle, does everything, we would submit, necessary to indicate:

The Act binds –

not only the Territory Crown, but:

the Crown in all of its other capacities.

That is the provision which makes clear, if need be, that body corporate in section 34 includes the Director.  That was the original provision in the Act in 1989 and it governed the position until 2005, during which period, we say, the Director was subject to the criminal norms of the Act.

Subsections (2) to (4), with respect, have been wholly misunderstood by the Full Court.  They concern solely an intramural question:  how is the Territory going to prosecute itself in respect to the criminal offences indicated in the Act?  It has no negative implication for how any other polity within the Federation is to be prosecuted; it simply deals with the Territory against itself.  You can see that from subsection (2) because the predicate is:

If the Territory Crown in any of its capacities commits an offence against the Act –

So, that assumes the Territory Crown can commit an offence against the Act – what it does is to create a facility to bring the prosecution as if were a body corporate.  Why is that useful?  If one looks down to subsection (4), the Territory Crown includes:

an Agency –

an “agency” is, for example, a Department of Government which will not be incorporated.  Even though it is not incorporated, the Crown, in that capacity, can be prosecuted as if it were a body corporate.

So, what has happened in an intramural sense is that, in an Act which primarily imposes penalties on body corporates and natural persons, the Territory has said, for our own purposes, we will extend an ability to prosecute the Territory in the whole of its capacities through the fiction that we are prosecuting a body corporate.  Under subsection (3), that:

does not affect any liability –

already imposed under the Act to an offence:

of an officer, employee or agent –

so, nothing in subsections (2) to (4) – this is the conclusion – diminishes the ability of this Act to impose offences and penalties upon Territory body corporates, and nothing in subsections (2) to (4) says anything about how the Act applies to Commonwealth body corporates.

GORDON J:   Mr Gleeson, can I ask one question which, I think, flows from that; that is, at application book 42, paragraph [12], the Full Court park an issue which seems to suggest that there is a 109 issue, or a potential 109 issue.  Is that raised in this matter? 

MR GLEESON:   It is not raised, your Honour, because no such defence has been raised to date.  But what that recognises, correctly, is, as we would submit, if there was a true operational inconsistency under ordinary principles between the Commonwealth statute and the Sacred Sites Act ‑ ‑ ‑

GORDON J:   I mean to say a 122 issue, but it is the same question.

MR GLEESON:   Yes.  If there was an operational inconsistency – no one has alleged one to date – section 122 would do its ordinary work.  It is not before the Court, and not a reason to delay hearing the appeal on a separate question, but it does illustrate, we would submit, that is the true way the interaction between the Commonwealth and the Territory laws works.  If the Commonwealth does, by way of a command – not by way of a supposed extension of a presumption – immunise the Director from the ordinary law of the Territory when the Director, in the extreme case, desecrates a sacred site, then section 122 would do its ordinary work.

So, the reason that was parked, your Honours, was the usual one, that it may involve disputed facts, and so that is for a later stage in the prosecution, if it is permitted to go forward.  So, for those reasons, we

would submit that once Cain v Doyle is appropriately confined, and ordinary statutory construction principles are applied, it is tolerably clear that this Act, in order to achieve its purpose, must impose its criminal norms upon one of the people most likely to be involved.

EDELMAN J:   When you state Cain v Doyle is confined, do you really mean, at least in your primary submission, abolished?

MR GLEESON:   Yes, your Honour.  In our primary submission, “abolished”, but, at a minimum, does not apply to statutory corporations, and, if Cain v Doyle – which is another possibility, of course – is treated as, but a version of a single unified presumption, including the presumption in the civil area, then we would be saying such work as Cain v Doyle has in the present type of case is close to nil.

GORDON J:   It is, really, a revisiting of what Cain and the presumption is, and how it applied.

MR GLEESON:   That is what it is about, your Honour, and it is saying that the conceptions on which it was based have self-evidently changed.  It is only this Court that can really do this exercise.  The Full Court has, as I say, drawn in analogies from other constitutional provisions, and this Court would consider them as part of the proposed appeal.  But the exercise of saying Cain v Doyle cannot sit with modern developments is, really, only one for this Court. 

GORDON J:   Thank you, Mr Gleeson.  Mr Glacken, we will hear from you as I said, but, of course, only to the extent that you need to add additional matters, please.

MR GLACKEN:   If the Court pleases.  Your Honours will appreciate from the papers that the Aboriginal parties have sought to be heard on the application because the Full Court’s holding has adverse implications for the operation on the Aboriginal Land Rights (Northern Territory) Act.  The case is not just about the Northern Territory Aboriginal Sacred Sites Act, although that, in itself, is a matter of importance, so too the intended Cain v Doyle questions.  If we may make three supplementary points in support of the application.

First, if the Full Court is correct, by parity of reasoning, the Director of National Parks – which leases very large areas of Aboriginal land – may well be immune from the full reach of section 69 of the Land Rights Act as well as the Northern Territory Aboriginal Sacred Sites Act – the latter of which is enacted in accordance with section 73 of the Land Rights Act and that Act requires, in section 12, the lease of Kakadu, Uluru and other areas to the Director.  Kakadu, itself, is an area of 19,000 square kilometres.  The Buladjang “Sickness Country” at Gunlom – the subject of the charge against the Director – is an area of 2,000 square kilometres.  That tends to illustrate the practical importance of the case to the Aboriginal parties.

Could your Honours turn up section 69 of the Land Rights Act in volume 1, page 170?  It corresponds with the offence provision that you have been taken to in section 33 of the Sacred Sites Act.  In subsection (1), it is an offence if a person enters or remains:

on land in the Northern Territory that is a sacred site.

In (b), a penalty for a “body corporate”, which is apt to cover an entity such as the Director of National Parks; then, in subsection (2A):

it is a defence if the person enters or remains on the land in performing functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory.

That is, the Northern Territory Sacred Sites Act – which takes us to a second point.  But the first point is, the Full Court’s holding has a clear implication for the operation of that section, given the Full Court’s conclusion that the Director is equated with the Commonwealth polity and the dicta in Wurridjal at paragraphs 164 to 165.

The second point we seek to make, your Honours, is that the legislative grant of power in section 73 of the Land Rights Act contemplates the application of the Northern Territory Sacred Sites legislation to Commonwealth reserves under the EPBC Act.  If your Honours turn in the same volume to page 175, section 73 is the grant of legislative power upon the Northern Territory.  It is headed “Reciprocal legislation” because it reciprocates the provisions of the Land Rights Act, including section 69, and your Honours will see that that legislative power extends to the making in paragraph (a):

laws providing for the protection of, and the prevention of the desecration of, sacred sites . . . including sacred sites on Aboriginal land, and, in particular, laws regulating or authorizing the entry of persons on those sites –

Then your Honours will see at page 160, there is a proviso at the end of the grant of legislative power:

but any such law has effect to the extent only that it is capable of operating concurrently with the laws of the Commonwealth, and, in particular . . . Division 4 of Part 15 of the –

EPBC Act, that is the division dealing with Commonwealth reserves, and then, reading on:

and any . . . schemes or programs . . . or things done . . . under or for the purposes of that Division.

Then your Honours will see section 74, which has a more general provision for the:

Application of laws of Northern Territory to Aboriginal land

Again, expressed subject only to proviso of concurrency.  Sections 73 and 74, your Honours, clear the field for the Territory to enact laws protecting sacred sites within reserves from the actions of entities that may harm sacred sites.  The Director is the obvious candidate entity.  The point we draw from sections 73 and 74 supporting the importance of the special leave application is that these provisions demonstrate that there is no need to resort to any arcane Cain v Doyle‑type presumption about the reach of Territory laws and the question, which has been parked factually, is simply whether the Territory law made under section 73 has a concurrent or reciprocal operation with the Commonwealth scheme.

The third point we seek to make, your Honours, and this is a matter of very general importance for the workings of the Land Rights Act beyond the provisions that I have just been to ‑ ‑ ‑

EDELMAN J:   Mr Glacken, you do have section 3B as well in the Aboriginal Lands Act.

MR GLACKEN:   From memory, that is the one that which is expressed to apply to both the Crown and by the Commonwealth, and the Crown rights of entry ‑ ‑ ‑

EDELMAN J:   Yes.

MR GLACKEN:   That was added following self-government, and previously, of course, in 1976, when this Act was enacted, Crown land was Commonwealth land.  Now, on self-government, Crown land became Territory land save for what was held back under section 70, I think, it is, of the Self-Government Act, and Kakadu is an example of that “holding back” from the grant of self-government.

This, your Honour, feeds into what we say is the third point, which has a general implication for the workings of what might be called the heart of the Act, dealing with what is crown land.  The point is this:  the Full Court concedes the Director as a vehicle or device for holding landed interest of the Commonwealth in reserves.  Indeed, the Full Court refers to “reserves” as “Commonwealth places”.  This was central to their conclusion that the Director had the same legal status as the Commonwealth polity with the benefit of the Cain v Doyle presumption, and this features in several passages.  Can I take your Honours to the Full Court’s reasons – page 69.  At paragraph [55], in the third line or second sentence, their Honours say:

That provision –

which is the reference to section 345A of EPBC Act, which vests Commonwealth interest in the Director:

That provision operates to deploy the Director as a vehicle of the Commonwealth in dealings with estates and other legal or equitable interests in Commonwealth reserves –

and then, over the page – in the same paragraph, on page 70, in the last sentence of the paragraph, at point 5 at the page, their Honours say:

If a Commonwealth reserve is revoked, usage rights held by the Director vest in the Commonwealth.

And cite of section 352, to which I will come in a moment.  Upon those premises, at paragraph [57], on page 71, the Full Court characterises the “functions” of the Director – this is the first sentence – as:

functions directed to the stewardship and management of Commonwealth places –

And then at about point 5 of the page there is a sentence commencing on the right with the words “The incorporation”, and their Honours say:

The incorporation of the Director is a convenient device by which the executive government can exercise powers for the performance of those functions, including the entry into property dealings and other contracts with non-governmental parties.

Now, the example of which would be the Kakadu leases granted by my clients to the Director.  The point – I am taking a while to get there, your Honours – but the short point is that the Commonwealth has no interest in Aboriginal land, present or expected, and this is a serious flaw in the Full Court’s characterisation of what the Director does.  But just to complete that picture, if your Honours turn to page 78 – it is paragraph [65] of the reasons, and it is the last sentence of that paragraph, at about point 5 – the last three lines of that paragraph.  Their Honours refer to a:

nexus between those functions and Commonwealth places –

That “nexus” is a crucial feature in the Full Court’s characterisation of the Director’s status as being equivalent to the Commonwealth polity and that characterisation is, with respect, flawed, and disregards the statutory scheme.

There are two points, your Honours.  The first is that the Commonwealth has no relevant estate of interest, present or expectant, in Aboriginal land leased to the Director, saved for reserved rights to minerals – which cannot pass to the Director in any event – and in Kakadu, mining is prohibited as well.

The second feature is that for the purpose of the Land Rights Act, which facilitates this leasing – indeed, it requires this leasing – the Director is not equated with the Commonwealth polity.  The provisions about when land can be granted as Aboriginal land and then leased to the Director are fairly intricate – only unalienated Crown land, in which no person other than the Crown, in right of the Commonwealth or the Northern Territory holds an interest can vest in Aboriginal land.  If someone other than the Crown holds an interest, the grant is held in escrow until that interest comes to an end.

Could your Honours turn up our submission in volume 2, page 333 – I think this is a shorthand way, rather than trying to burden your Honours with the intricate provisions of the Land Rights Act – but at page 333, at paragraph 19, we quote the explanatory memorandum to the most amendments dealing with the vesting of Aboriginal land – amendments in the context that certain parcels in Kakadu were not then granted and leased to the Director.

If your Honours read the third paragraph – it is explaining the mechanical provisions put into the Land Rights Act to facilitate a grant and then a leasing to the Director.  In that third paragraph, the memorandum observes accurately:

Because the Director is not the Crown for the purposes of the Land Rights Act, the four parcels of the Kakadu Land that the Director currently owns would be land in respect of which a person (other than the Crown) has an estate or interest for the purposes of section 10 of the Land Rights Act.  As such, without amendment to the Land Rights Act, those parcels would only be able to be granted in escrow, pending the Director’s interests coming to an end.

Therefore, a legal fiction is inserted into the Land Rights Act to treat the Director’s interests as if they were interests of the Crown and right of the

Commonwealth, which is plainly not the case.  To complete the picture, once a grant of Aboriginal land is made in relation to land within a Commonwealth reserve, any pre-existing interest of the Director comes to an end and in its place the Director acquires an ability to gain a lease of the land.  This is what is known as a lease back.

That is the effect of section 12, your Honours will see it on page 367.  Time does not permit me to go to the detail, but at 367 your Honours might pick up subsection (2A) is the one that extinguishes any pre-existing interest of the Director, and subsection (2) then requires a lease back to the Director in the case of Kakadu – subsection (2B), that is.  And a similar provision is made in subsection (2C) for Uluru.

And then, finally, contrary to the Full Court’s reasons – 55 – if an area of Aboriginal land ceases to be a reserve, the lease to the Director comes to an end and there is no interest that can revert to the Commonwealth.  That is the effect of section 352(3) of the EPBC Act, which your Honours will see at page 452.

GORDON J:   Mr Glacken, I should say that we are not arguing this matter on appeal, we are trying to work whether or not leave should be granted.  Is it fair to say that what you are contending is that this question has a broader application than that which has been put so far?

MR GLACKEN:   Yes, your Honour.  If I can call the Land Rights Act the parent Act, it has implications for the operation of the parent Act, and this part of my submission is going to the error in the Full Court’s characterisation of the status of the Director.

GORDON J:   Thank you.  Is there anything else you wish to say in relation to the application?

MR GLACKEN:   No.  For these reasons and those we have put in writing, we support the application.

GORDON J:   Thank you, Mr Glacken.  Ms Davidson.

MS DAVIDSON:   Thank you, your Honours.  The first respondent has adopted the submissions of the second respondent and does not otherwise seek to be heard on the application.

GORDON J:   Thank you, Ms Davidson.  Mr Lim.

MR LIM:   Thank you, your Honours.  I will come to the Cain v Doyle presumption at the centre of the applicant’s argument, but at the threshold we submit that the proposed narrowing of the Cain v Doyle presumption would be an academic exercise in any appeal, in light of section 4 of the Sacred Sites Act.

In that regard, the ultimate answer to the proposed appeal is encapsulated in volume 1 of the book, at page 86, paragraph [78] of the judgment.  What is there summarised by the Full Court is that section 4 was amended by the Northern Territory Legislative Assembly in 2005.  Its original form was similar to what is now subsection (1), articulating that the Act bound to the Crown not only in right of the Territory, but in all its other capacities.

That previous form of the provision was recognised not to express clearly the extent to which criminal liability was to be imposed on government.  The Legislative Assembly responded directly and expressly to that perceived uncertainty in order to make it clear the extent to which criminal liability was intended to be imposed on government.  It did so by imposing criminal liability on the Territory Crown in all its capacities, and it did not impose criminal liability on any other government.  Standing back from some of the detail of this case, we submit ‑ ‑ ‑

EDELMAN J:   But, Mr Lim, that does not immunise the Act from Cain v Doyle.  All that means is that section 4 – if you are right on your construction of section 4 – provides, in a particular way, for the criminal liability of the Territory Crown.

MR LIM:   I will paint how this is reflected also in the offence provision.  If one looks at section 34, which is set out at page 39 of volume 1, what your Honours will see is that penalties for an offence against that section are prescribed for natural persons and for bodies corporate.  No penalty is prescribed for a body politic.

So, even if one takes a merely facultative construction of section 4 along the lines the applicant submitted, subsection (2) is doing some work to bridge that gap – to bridge the gap that there is no penalty prescribed for a body politic.

GORDON J:   You are not saying that the Director is not a body corporate, are you?

MR LIM:   I am not, but I am saying that it is a body corporate that, as a matter of Commonwealth law, is intended to have the same legal status as the body politic.

GORDON J:   But that is the very interesting question, and that is the question which is posed both in terms of the Director itself, given the interaction between the statutes, but also the presumption in Cain.

MR LIM:   Before I come to Cain, the Full Court’s conclusion that the Director was intended to have the same legal status as the Executive Government is a conclusion that is not challenged in a ground of appeal.  It is challenged in submissions – Mr Gleeson did not address it orally this morning – but we rely on that conclusion that the Full Court reached that the Director is intended to have the same legal status as the ‑ ‑ ‑

GORDON J:   I must say for my part, Mr Lim, I had thought that it was in ground 1:

does not, as a matter of statutory construction –

One has to identify it as a question of statutory construction, in a sense, who is the Director of National Parks.  Is it not pregnant in the first ground?

MR LIM:   I would take a pleading point, but I understood the first ground to be directed to the construction of the Northern Territory Act, and there is a question there:  is it intended to apply to the Commonwealth?

GORDON J:   I do not seek to debate it with you, but I had read:

should have held that the DNP is bound –

MR LIM:   Yes, and that will depend on whether the Northern Territory Act applies to the Commonwealth – applies its criminal norms to the Commonwealth, and whether the DNP is relevantly the Commonwealth for that purpose.  They are the two steps in the way I put the argument.

EDELMAN J:   The point is sounding more and more important, Mr Lim.

MR LIM:   Well, I can come to the – the point about the characterisation of the Director, in my submission, is not one of general importance, and it will involve this Court deciding disputed questions of factual characterisation.  On the question of Cain v Doyle ‑ ‑ ‑

GORDON J:   Before you leave that, that is important.  Why is that?  What are the disputed questions of factual characterisation?

EDELMAN J:   The status of the Director is a statutory status.

MR LIM:   That is the way I have put it, and that the way Mr Gleeson seeks to put it is that one has to characterise: 

the particular activities in suit –

They are his words in paragraph 25 of his application.  So, he would seek to have this Court look at the particular realignment of the walking track at Gunlom to ascertain whether that is an exercise by the Director of a governmental function.  There was a debate about that in the Full Court.  I have annexed to my application some of the relevant facts that would need to be examined to determine whether that is a governmental function or not – we say it is.  I can take your Honour to the detail of that, if it will assist ‑ ‑ ‑

EDELMAN J:   How is this not all caught up with Cain v Doyle presumption?

MR LIM:   Well, your Honour, Cain v Doyle, we say, first of all, is of longstanding.  Secondly, we would say it is not being productive of any inconvenience.  On the contrary, it supplies a settled foundation upon which Australian legislatures act.  Legislatures can – as the Legislative Assembly in this case did – speak clearly, as to the extent of criminal liability sought to be imposed on government bodies.  If there is a need for criminal liabilities to be refashioned or adapted to modern developments, that is eminently appropriate to be done by the legislatures who fashion those criminal liabilities.

EDELMAN J:   These are almost exactly the same sort of arguments that were made about 80 years ago in relation to tort liability of public authorities, and we had about 80 years of really difficult development in this area as to the extent to which tortious liability should be imposed upon State or Commonwealth public authorities, the extent to which it was an operational act or a policy act, but that is – none of that is really regarded as good law anymore.

MR LIM:   I do not seek to invoke those in support of my submissions.  Secondly, the federal dimension involved in this case – where the criminal law of one polity is sought to be applied to the government of another polity – means that this is an even weaker vehicle for the Court to reconsider Cain v Doyle.  That is because the rationale for the Cain v Doyle presumption is even stronger in an intergovernmental context.  If one asks, where should the burden of clear expression lie, we submit it must be with the polity imposing criminal liability.

GORDON J:   So, that means, does it, Mr Lim, that the questions are, as I understand the debate, whether the DMP, or Director, is part of the Executive Government of the Commonwealth?  That is the first question, on your analysis.  Is that right?

MR LIM:   Yes.

GORDON J:   Second, therefore, whether it is caught by section 4 in its application on its proper construction of section 4 of the relevant Act.

MR LIM:   Yes.

GORDON J:   Then, third, the extent to which the presumption in Cain applies or needs to be revisited.  They are the three, in effect, broad questions that are posed. 

MR LIM:   That are posed.  In my submission, the Court would not reach the third – or, if it started with what are the applicable principles of construction, Cain v Doyle, et cetera, any refashioning would not be dispositive because, on the assumption that I succeed in showing that the Director is the Commonwealth, or succeed in defending the Full Court’s conclusion that it is the Commonwealth, relevantly – section 4 is so clear that with or without a Cain v Doyle‑type presumption – however it may be refashioned, if at all – the conclusion will be the same.

The Northern Territory Legislative Assembly addressed itself directly to the question of the extent of the criminal liability sought to be imposed by that Act and it limited it to the Territory Crown.

EDELMAN J:   So that is a negative implication that you draw from section 4?

MR LIM:   It is a negative implication coupled with the lack of a penalty for a body politic.  Now, I am not seeking to deny that the Director is a body corporate, but if it is a body corporate intended under Commonwealth law to have the status of the Executive Government of the Commonwealth, then it is not a body corporate to which the Northern Territory Act has sought to impose its criminal liability.

In relation to the intergovernmental aspect of Cain v Doyle, Mr Gleeson submitted this morning that the Commonwealth could use section 109 or section 122 to preserve Commonwealth immunities.  We submit that that is the very thing that this Court recently in Spence v Queensland said in the context of intergovernmental immunities was not a valid analysis.  Mr Gleeson did not explain how a State would engage in that exercise to preserve its immunities from generally‑expressed criminal norms of other States, and that is just another reason why in an intergovernmental context the rationale for Cain v Doyle is even stronger and renders this particular case a weaker vehicle for the wholesale reconsideration that Mr Gleeson propounds.

EDELMAN J:   Is that the rationale for Cain v Doyle or is that a completely different rationale of kind of a reverse‑Melbourne Corporation rationale?

MR LIM:   It is a rational for Cain v Doyle to the extent that Cain v Doyle is a clear statement of principle.  It is not seeking to ‑ ‑ ‑

EDELMAN J:   Cain v Doyle was not about different polities – it was the one polity.

MR LIM:   Quite.  My submission is that, when it is examined in an inter‑governmental context, it is an even weaker vehicle to reconsider Cain v Doyle, because whatever might be the case within a polity ‑ ‑ ‑

EDELMAN J:   Because you say there is another presumption that has never been clearly articulated.

MR LIM:   No, no.  I say that the question will be, where does the burden of clear expression lie?  The applicant says it is for, in this case, the Commonwealth to clearly articulate its immunities from State and Territory laws.  On my case, it is for the legislature enacting criminal laws to be clear about the bodies to which those criminal laws apply.

GORDON J:   Anything else, Mr Lim, you wish to say in response to the application at this stage?

MR LIM:   I have sought to make this point – it is not correct to treat statutory corporations in this context as necessarily being on the same footing as servants of the Crown.  It is precisely because a statutory corporation has artificial personality – separate personality – that it presents the question from corporation to corporation, whether it is intended to be put into the field on an equal footing with subjects, including servants and officers, or whether it is actually intended to have the same legal status as the Executive Government.  Bropho v Western Australia illustrates that quite distinctly because, in that case, there was a conclusion that the law did apply to employees and servants but that was expressly recognised not to answer the question of whether it applied to the development corporation.

Your Honour asked a question earlier about the factual dispute on the question of whether the Director is intended to have the same status as the Commonwealth.  In the interests of time, perhaps I will not burden the Court with that now, but it is set out in some detail in the written response.

If your Honours please.

GORDON J:   Thank you, Mr Lim.  Anything in reply, Mr Gleeson?

MR GLEESON:   Your Honours, only this.  In the light of what Mr Lim has put, the proposed appeal involves at least the three important questions of law which your Honour Justice Gordon framed, and I do not repeat them, but in the light of Mr Lim’s concluding submissions, it involves two further aspects of the same question.  The first is he will be contending that the rationale, if it exists, is stronger or weaker depending upon whether it is one polity seeking to criminalise the conduct of another polity.

Neither party has identified any authority which, to date, has adopted that principle, and that is part of what needs to be considered.  Further, at the end of his submissions he asserted that corporations should not be treated as in the same category as servants or officers of the Crown.  That is actually what the appeal is about:  whether, given it is accepted that Cain v Doyle does not apply to ministers or officers or employees, does it nevertheless apply to statutory corporations?

Even Chief Justice Latham in Cain v Doyle itself at page 418 had no difficulty with ministers and officers of the Crown being amendable to the criminal law.  This case is about where statutory corporations sit and under what principles.

May it please the Court.

GORDON J:   The Court will adjourn to consider what course it will take.  Adjourn the Court, please.

AT 1.21 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.24 PM:

GORDON J:   There will be a grant of leave in this matter.  Mr Gleeson, could I ask you two questions.  The first is, is it capable of being done within one day or is it a day and a half case?

MR GLEESON:   Your Honour, I fear it is a day and a half case, particularly as there may be more interventions from the States.

GORDON J:   Does anyone else have a different view about that matter?

MR LIM:   Yes, your Honour, I think two days is safer, and possibly two plus.  I say that because the Attorney‑General may file a cross‑appeal in relation to the intergovernmental immunities point that was dealt with by the Full Court below.  That may, in turn, expand not only the scope of the hearing but the scope of the interest of any interveners.

GORDON J:   Thank you, Mr Lim.  Anyone else have a different view about it?  Thank you.  Can I ask you a second question, Mr Gleeson, and that is about the content of the ground.  At the moment, paragraph 1, which appears at application book 1, page 130, is the sole ground of appeal, and we wondered whether, to put it politely, it might be deconstructed a bit.

MR GLEESON:   Yes, I think it does need that, your Honour, and if your Honours were to give us that leave, we would do it, but within the parameters of what has been raised today.

GORDON J:   Thank you.  Does anyone have any objection to what I have just put to Mr Gleeson?

MR LIM:   No, your Honour.

GORDON J:   Thank you.  Of course, I would ask that your instructors speak to the Registrars in relation to the future conduct.  Leave will be granted.

Could you adjourn the Court, please, to 1.30 pm.

AT 1.26 PM THE MATTER WAS CONCLUDED