Northern Land Council & Anor v Quall & Anor - [2020] HCATrans 110

Replacement Transcript

[2020] HCATrans 110

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D21 of 2019

B e t w e e n -
NORTHERN LAND COUNCIL
First Appellant
JOE MORRISON AS CHIEF EXECUTIVE OFFICER OF THE NORTHERN LAND COUNCIL
Second Appellant
and
KEVIN LANCE QUALL
First Respondent
ERIC FEJO
Second Respondent

KIEFEL CJ
GAGELER J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS
FROM CANBERRA BY VIDEO CONNECTION TO BRISBANE, SYDNEY, MELBOURNE

ON THURSDAY, 13 AUGUST 2020, AT 10.34 AM

(Continued from 12/8/20)

___________________

KIEFEL CJ: The parties should be advised that the Court will be adjourning at 11.30 for a morning break and then sitting through until 1 o’clock. Yes, Ms Kidson.

MS KIDSON: Thank you, your Honour. Your Honours, I have a couple of points to make in relation to paragraph 6 of our outline but if I can invert the order and deal very quickly with paragraph 7 by saying that we adopt Mr Glacken’s submissions regarding the proper construction of section 203B(3) read with 203BK(2), which corresponds to the position set out in paragraph 7 of our outline.

If that construction is accepted by the Court, then it will be an important finding because, as we read the authorities, questions of both agency and delegation require an anterior finding that the repository of a statutory power is not ‑ ‑ ‑

KIEFEL CJ: Ms Kidson, we appear to have lost audio.

MS KIDSON: Can you hear me now, your Honour?

KIEFEL CJ: We can just hear you now. I think you might have to start that submission again.

MS KIDSON: Sorry, your Honour. We adopt Mr Glacken’s – your Honour, my video seems to be fading in and out.

KIEFEL CJ: Yes, we are having a problem with keeping Mr Glacken in the picture as well. We might stand down for a few moments while the connections are tested again.

AT 10.36 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.43 AM:

KIEFEL CJ: Yes, Ms Kidson.

MS KIDSON: Thank you, your Honour. I made the submission that if the Court accepts that the proper construction of section 203B(3) is not as found by the Full Court, which was that the functions of the representative body must be exercised personally by the body, that is an important finding because, as we read the authorities, questions of both agency and delegation require an anterior finding that the repository of a statutory power is not required to exercise it personally.

Just putting to one side for the moment conceptual difficulties with applying the concept of a personal exercise of power to a body corporate, but nevertheless just addressing the matter at the level of principle, can I take the Court to the decision of O’Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1, in the joint book of authorities volume 2, and if I can ask the Court to go to page 580.

In this case, under an express power of delegation which prohibited sub‑delegation, the Commissioner of Taxation had delegated his power to issue notices requiring a person to attend to give evidence before him. The delegation was to Deputy Commissioners, one of whom purported to authorise another officer of the ATO to authorise the issue of notices which then went out in the name of the Deputy Commissioner. So the question was whether that was within power in the prohibition on sub‑delegation.

On page 580 of the bundle at about point 2 his Honour Chief Justice Gibbs, with whom Justice Murphy agreed, identified the governing principle as:

The notice may be given by the authorized agent of the designated person, whose act will be the act of the principal, unless the statute on its proper construction requires the notice to be issued only by the person who is designated.

At about point 4 on the same page, his Honour says:

The answer to the question whether the statute requires the power to be exercised personally by the person designated depends on the nature of the power and all the other circumstances of the case.

His Honour went on to consider Carltona‑type practical necessity issues and on the next page, page 581 of the bundle, at about point 10, after expressing the view that the Commissioner’s express power to delegate was not determinative of the issue, his Honour said that – and this is reading from the second‑last line:

On the whole, I have reached the conclusion that the powers conferred by s. 264 were not intended to be exercised only by the Commissioner or his delegate personally but may be exercised through a properly authorized officer.

Without going to it, Justice Wilson reached a similar conclusion in the bundle at page 601 about point 4. So, in short compass, although the power was non-delegable due to the prohibition on sub‑delegation, because it was not required to be exercised personally it could then be exercised by agents in the name of the Deputy Commissioner. But the critical finding was that the power was not required to be exercised personally.

We have not been able to identify any authority that holds that a power that must be exercised personally can nonetheless be exercised by agents. As far as we can see, the authorities all go the other way, as opposed to the repository of the power being able to be assisted – assisted to exercise the power personally. So we say that on the Full Court’s construction of the certification function and the formation of the opinion, if it is accepted, then the only way that power can be exercised is by the representative body in full council every time it is to be exercised.

Unless a legislative intention can be discerned in the scheme of the Native Title Act in Part 11 that a representative body is only able to act through its governing body’s certification function, on our submission it should be able to operate in accordance with conventional corporate practice – that might be through delegation or it might be through agency.

For the purpose of this appeal, the only matter that the Court needs to decide is twofold which is, firstly, is the certification function required to be exercised by the representative body personally? If the answer is no, is there a power of delegation available? If the answer is yes, then the orders made by the Full Court cannot stand. It is unnecessary, for the purposes of this appeal, to determine what extent things could be done by way of agency or what the effect of that would be. The findings in this case are about delegation.

So, in our submission, the question is then to ascertain what is encompassed by the terms of the power conferred by section 203BK(1) within the context of the Native Title Act. As this Court held in Palmer v Australian Electoral Commission (2019) 93 ALJR 947 at paragraph [44] - I will not go to it, but it is in volume 2 of the bundle at page 923 - a power conferred in these terms, in this language, is broad and subject to any question of limits it is for the repository of the power in its discretion to determine how the power is exercised.

Moreover, the unusual circumstance that pertains to Part 11 of the Native Title Act is that there are multiple representative bodies with different constituting statutes, different ways of operating, all coming together under the umbrella of Part 11 of the Native Title Act. That circumstance is consistent with the use of a broad power like section 203BK(1) in circumstances that Parliament:

could not practically set down, although they lie within the contemplation of its enactment.

That is quoting from Hird v Chief Executive Officer of the Australian Sports Anti‑Doping Authority (2015) 227 FCR 95 at paragraph 210, which is actually reproduced in the reasons of…..at paragraph…..appeal book page 91.

GAGELER J: Does section 203BK(1) authorise a representative body to do something beyond that which it is permitted to do under its own constitution?

MS KIDSON: I am sorry, your Honour, I lost a bit of sound there.

GAGELER J: Does section 203BK(1) allow a representative body to do something beyond that which it is allowed to do under its own Constitution?

MS KIDSON: In my submission, no, because the power would be to allow that body to perform what is needed for it to perform the functions under the Native Title Act.

GAGELER J: So you need to find a power of delegation within the body’s Constitution. Is that your submission?

MS KIDSON: No. No, I do not say that, your Honour. If I could say this. What lay within the contemplation of Parliament when the Native Title Act and Part 11 were enacted, given that all of the representative bodies are bodies corporate, that most do have express powers of delegation in their constituting legislation, most perform their functions under legislation other than the Native Title Act by way of delegation, that if Parliament had intended that representative bodies were to operate under the Native Title Act in a radically different way from how they conduct their affairs elsewhere, then one would have expected that to find some expression, at least in the extrinsic materials, where there is absolutely nothing to that effect.

The reason why I quoted from Hird v Chief Executive Officer this idea that Parliament could not use as a broad power where it could not practically set out specific powers is, in my submission, that resonates with the passage that I took the Court to yesterday in the explanatory memorandum, in supplementary bundle – the Northern Territory supplementary bundle – page 33, paragraph 33.66, regarding the practical difficulties of the representative body regime being based on existing bodies with other functions – different structures, different administrative processes – so that it would be impractical for the Native Title Act to proscribe particular structures. So, they have used a broad power which is to really be understood in accordance with the way that body generally operates.

If I could ask the Court to go to the explanatory memorandum? It is in the Northern Territory supplementary bundle at page 38. About two‑thirds of the way down the page, there is a heading:

Powers of representative bodies

There are two paragraphs under that heading – paragraphs 34.89 and 34.90. These two paragraphs are the totality of the explanatory memoranda in relation to 203BK(1). Paragraph 34.89, simply, reproduces the text from the provision. Paragraph 34.90, effectively, reproduces the text from the provision but in relation to the reference in section 203BK(2) to entering into arrangements for the provision of services, it gives an example there of contracting:

anthropological and historical experts to research the evidence –

So, that is consistent with the proposition that that is about entering into agreements with external service providers as opposed to attaching to any internal procedures.

NETTLE J: Ms Kidson, sorry, before you go on, you answered Justice Gageler in terms that section 203BK did not confer a power of delegation, is that correct?

MS KIDSON: No, I am sorry, I certainly did not mean to say that.

NETTLE J: I think what you conveyed, at least to me, was that the power of delegation had to be found in the constitutive statute or memorandum of the relevant corporation and, if it were not there, it could not be found in 203BK(1). Is that what you meant to convey?

MS KIDSON: No, I did not. So, I withdraw that if that is what I said, your Honour. It is not what I meant to convey. It may well be that in a constituating Act, there is a power of delegation which is able to operate across the Native Title Act as well. If there is not, if there is a power of delegation which is part of the normal functioning of a body in the way it organises itself and performs its functions in other places under other statutes, if for any reason that was not available to it then, in our submission, the power would be able to be drawn from 203BK(1).

We say that really for two reasons. There is no indication anywhere in the Native Title Act of an intention for any representative body to have available to it at a general level differential powers, so to speak, but there is also a recognition that there may be overlapping powers. So it is not that everything must be sourced or derived from 203BK(1).

What we say Parliament’s intention was is that representative bodies, having gone through this process, where they are assessed as to how they are going to exercising their powers, what are their organisational structures, what are their decision‑making processes, that those things would be assessed on the basis of how they operate across the board and where they operate under more than one statute, if the powers do not transfer, then they can be drawn from 203BK(1), but those must be for the purposes of performing the functions under the Native Title Act.

We say that that construction…..lead to a binary result, that a representative body must either perform its functions through the governing body or through the delegate. There is no logical antinomy between the recognition of an express power of delegation and a concurrent capacity of the corporation to act through agents, but the only issue for the purposes of this appeal is whether one can draw a power of delegation from it if that is not otherwise available.

The reference I made yesterday by way of analogy was to the decision of Re Forster, where the broad power to manage the university, not exactly in the same terms as this, was held to make available to it a power of delegation and true delegation where a subcommittee can go off and act and make their own decision without any further reference.

GAGELER J: Ms Kidson, another way of looking at the statutory scheme is that the organisational structure of a particular eligible body, whether it has within it a power of delegation or, indeed, deliberately does not have a power of delegation or a prohibition against delegation is something that is taken into account by the Minister in determining whether or not to certify the body or to recognise the body as a representative body.

So in some cases perhaps, at least arguably, the absence of a power of delegation – that is, the need for the governing body of the eligible body to actually make the decisions – will be a positive factor in favour of determining whether the body would be able to perform satisfactorily the functions of a representative body. Do you have anything to say about that?

MS KIDSON: Two things, your Honour. One is to say that, as I said, if there was an expectation that representative bodies would be having to function in an entirely different way to how they function in any other arena, one might have thought to see some expression of that. But what I would say where that is not consistent with the Act is in section 203FEA – I have got a page reference. So in volume 1, it is at page 129. Now, perhaps I should just turn back one page earlier to 203FE. This is the provision which enables the Secretary of the Department to basically fund any person or body in order to perform either:

(a) all the functions of a representative body; or
(b) specified functions of a representative body –

In addition to any of the recognised representative bodies. Going back to section 203FEA, this is then the provision which deals with their obligations and powers and subparagraph (1) says:

A person or body to whom funding is made available under subsection 203FE(1) to perform a function in respect of a particular area has the same obligations and powers in relation to the performance of that function as a body recognised as the representative body for that area would have in relation to the performance of that function.

So it suggests a concept of, as I said, where 203, that must be a reference to 203BK, and that a power that is needed in order to perform the functions can be drawn from that and that there is a statutory assumption that the same powers are available to each representative body.

Now, exactly how they are manifested in each case may vary according to that body’s structure and so on, but those powers are available to be drawn upon. I was going to move now to paragraph 8 of our oral outline, which relates to the form of the certificate, and this is a matter that is only relevant if the Court accepts that there is a power of delegation. And the question becomes one ‑ I think Mr Glacken referred to it yesterday ‑ as to whether there any question of a utility of remittal.

Now, if the Court accepts that the first appellant had a power to delegate its certification functions to the second appellant, then the Territory submits that remittal is appropriate, notwithstanding that the form of the certificate identifies the relevant opinions as being those of the first appellant, rather than of the second appellant as delegate. That was something that concerned the Full Court.

Now, whilst that feature may have raised an issue regarding the validity of the certificate at common law, due to the principle in Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex Parte Director-General of Social Services (1979) 2 ALD 86, section 34AB(1)(c) of the Acts Interpretation Act1901 modifies the common law position and avoids that result, by deeming the performance of a function by a delegate to be the performance of the function by the delegating authority, for the purposes of the relevant statute. Not for every purpose; for the purposes of the statute.

Now, in our written submissions we have collected references to relevant authorities, including intermediate appellate court. They are in footnote 44 on page 14 of the Territory’s submissions. So, for example, there is Re Western Australian Planning Commission; Ex parte Leeuwin Conservation Group Inc [2002] WASCA 150. That is in the joint bundle at volume 2, page 955. But there the Western Australia Court of Appeal at paragraph 27 dismissed an argument that a delegate of the Planning Commission had erred because his decision was expressed to be that of the Commission. Their Honours distinguished the decision in Re Reference because an analogous provision in the Interpretation Act (WA) deemed a decision of the delegate to be that of the Commission.

But the cases have not only used section 34AB to address matters of form. So in Minister for Home Affairs v CSH18 (2019) 269 FCR 206 – and that is in the bundle of authorities volume 2 at page 504 ‑ at paragraph [79] the Full Federal Court gave section 34AB(1)(c) substantive work. In that case, section 415 of the Migration Act restricted the AAT’s jurisdiction to the powers that were exercisable by the decision‑maker below, and the original decision‑maker was a delegate with fewer powers than the delegating Minister. The Full Court found that the effect of section 34AB(1)(c) was to deem the decision of a delegate to be that of the delegator Minister, such as the broader suite of ministerial powers were then available to the Administrative Appeals Tribunal.

We do not actually apprehend from the respondent’s submissions that the effect of section 34AB is in dispute. That is what we take from the respondent’s submissions at paragraph 63, but that may be a misunderstanding. Rather, as we read the submissions, it is the operation of section 34A of the Acts Interpretation Act which appears to be contentious. It is a short point, but if I could ask your Honours to go to that section, it is in the joint bundle, volume 1 at page 215. So relevantly for present purposes, section 34A essentially provides that if the performance of a statutory function is dependent upon the formation of an opinion and the function has been delegated, then the delegate may perform the function on the basis of the delegate’s own opinion.

Now, the section puts beyond doubt that the delegation of the function carries with it authority to form the anterior opinion. But that is not the only effect of the section, and on the earlier page your Honours will see section 34AB which starts on page 213 of the bundle, and 31AB(1)(e) contains an express reference to section 34A and, in our submission, that indicates that the two provisions are intended to have a combined effect with the purpose of section 34AB(1)(e) being to ensure that section 34A operates for the purposes of 34AB(1)(c) when the delegating authority mentioned in the chapeau to 34AB(1) is a body, not a person. So in 34AB(1), it says:

Where an Act confers power on a person or body (in this section called the authority) –

and so on. The cross reference there ensures that one reads 34A by reference to a body.

Now, it is on this basis the Territory submits that the deeming effect of section 34AB(1) extends to formation of the anterior opinion, so that the delegating authority is deemed to have performed the function and to have formed the opinion upon which performance of the function depends. And we say two more things. One is that there is nothing strained or anomalous about that result: section 34A treats formation of the opinion as part and parcel of the delegated function, and given that the purpose of 34AB(1)(c) is attribution to the delegating authority, it would be a strained outcome if the delegating authority was to be attributed with having performed the function but not the prerequisite for its lawful performance.

In our submission, that construction is consistent, as a matter of principle, with the decision of this Court in Rohde v Director of Public Prosecutions (1986) 161 CLR 119. Now, we have provided a copy to the Court this morning. So the Court held that effectively an analogous deeming provision to what is in 34AB interacted with 34A in exactly the way contended for by the Territory.

If your Honours can go to page 124 of the decision, point 5, there is the reproduction of section 567A of the Crimes Act which confers a right of appeal against sentence following a conviction under a Commonwealth law. And it is a right of appeal which is given to the Commonwealth Director of Public Prosecutions, where the Director “considers” – so forms a view:

that a different sentence should have passed and is satisfied that an appeal should be brought ‑

And then in subsection (2), the Director must give a:

notice in writing signed by the Director of Public Prosecutions personally of his intention to appeal ‑

Now, if the Court could go to the following page, 125, at about point 4. What is reproduced is section 31 of the Director of Public Prosecutions constituting Act, which is the Director of the Public Prosecutions Act 1983 (Cth), which gives an express power of delegation to the Director in subsection (1), and then in subsection (2), says:

A power so delegated, when exercised by the delegate, shall, for the purposes of this Act, be deemed to have been exercised by the Director.

So that is the equivalence with section 34AB(1). And then in subsection (3), similar to 34AB, confirms that a delegation does not denude the Director of the power of delegation.

Now, in short compass, what happened in this case was the Director did delegate the power and delegated the power to institute an appeal under section 567A and served the notice. The delegate instituted the appeal and served the notice. And what was challenged was that because the power of appeal requires the Director to perform the view and be satisfied as to certain matters and sign the notice personally, is that they could not validly – the appeal could not be validly instituted because it was the delegate who had formed the opinion, not the Director.

And at pages 125 to 126 the majority judges rejected that argument and they actually relied on paragraph – sorry at page 126, they found the position at common law was that any statutory powers that carry with it conditions that are imposed upon its exercise – even as a matter of common law, their power could not “be separated from those conditions” and a delegation would carry with it those conditions. But they said, in any event, that was specifically provided for in section 34A of the Acts Interpretation Act. And, then, because the Director of Public Prosecutions was deemed to have effectively performed the function performed by the delegate, including formation of the opinion, the appeal was valid, validly instituted.

And so we say that that supports the relationship and combined operation of 34AB(1) and 34A, such that if the Court finds that the exercising of the certification function is not having to be exercised personally by a representative body and that a power of delegation is available, there is no barrier to the matter being…..Unless I can be of any further assistance, those are my submissions.

KIEFEL CJ: Yes, thank you, Ms Kidson. Yes, Ms Webb.

MS WEBB: Thank you. Your Honours, were you able to hear me on that submission?

KIEFEL CJ: Yes.

MS WEBB: It is not, as the respondents contend in their outline at paragraph 2, a question about whether the certification function may be performed by someone other than the representative body. Putting the question of statutory construction as the respondents do is to proceed, with respect, on the same error as the Full Court did in failing to consider section 203FH of the Native Title Act and what it provides.

The Full Court found that in the Northern Land Council performing the certification function in section 203BE(1) of the Native Title Act it was not permissible to delegate that function to a member of staff, the second appellant in this case. So that the Full Court held in the circumstances of this case and by force of the Native Title Act the only way the function could be performed was through the full council. The references for that, your Honour, are at core appeal book pages 95 to 96; Full Court paragraphs 136 and 137.

Now, such a construction is not established over the words of section 203BE(1) or supported by the terms of the Native Title Act as a whole. The Full Court’s analysis placed an unwarranted emphasis upon section 203B(3). The reference there is core appeal book 85 to 86, paragraphs 102 to 104. And it also placed an emphasis on the particular…..land council representative of Aboriginal people in the area. But what…..

KIEFEL CJ: Ms Webb, we are losing you a little. We have lost ‑ Ms Webb, could you start that submission again, please.

MS WEBB: From…..or in respect of the…..

KIEFEL CJ: No, it is breaking up and we are losing you. It is breaking up. We will adjourn until we establish the connection again.

AT 11.20 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.42 AM:

KIEFEL CJ: Yes, Ms Webb.

MS WEBB: If it is convenient, your Honour, I will recommence our submission.

KIEFEL CJ: Yes.

MS WEBB: The particular focus of this case is what is required in order for the Northern Land Council or any other representative body to perform the certification functions under the Native Title Act. It is not, as the respondents contend in their outline in paragraph 2, a question about whether the certification function may be performed by someone other than the representative body.

Putting the question of statutory construction as the respondents do is to proceed, with respect, on the same error as the Full Court did in failing to consider section 203FH of the Native Title Act and what it provides. The Full Court found that in the Northern Land Council performing the certification function in section 203BE(1) of the Native Title Act, it was not permissible to delegate that function to a member of staff, in this case the second appellant.

So that the Full Court held in the circumstances of this case and by force of the Native Title Act the only way the function could be performed was through the full council and the reference to note there, your Honours, is at core appeal book pages 95 to 96, paragraphs 136 and 137 of the Full Court’s reasoning.

Such a construction is not established by the words of section 203BE(1) or supported by the terms of the Native Title Act as a whole. The Full Court’s analysis placed an unwarranted emphasis upon section 203B(3) and the particular composition of the Northern Land Council as being representative of Aboriginal people in the area. But while the Native Title Act says in section 203B(3) that it must be the representative body that performs the certification function, it does not prescribe or preclude the natural persons through whom the body corporate acts or who form the opinions required for the body corporate to perform the certification function.

Reading section 203B(3) together with section 203FH, the Native Title Act draws a distinction between a third party being engaged to perform a function and the representative body itself performing the function through an authorised person within that body. The effect of section 203FH is that the relevant question is, for the purposes of section 203BE: was the director or employee acting within the authority conferred upon them? The Native Title Act does not require that authority to be in a particular form, whether delegated authority or something else.

Section 203FH expressly contemplates that a body corporate may perform its certification function through its employees as well as its directors subject to the person having requisite authority. And contrary to the written submissions of the respondents at paragraph 42, we do not say that section 203FH prescribes which natural persons may perform the certification function or itself provides a source of authority to do so.

Because the Full Court found that the CEO could not be delegated the certification function, it did not decide whether the CEO had been authorised by the Northern Land Council to perform that function as a delegate. The question remains an unresolved fact. But if the CEO had relevant authority when forming the opinions required to perform the certification function, those opinions – and the certification itself – would be the Northern Land Council’s opinions and certifications, when you read sections 203FH(1) and (3) together.

In addition to its reliance on section 203B(3) – without reference to section 203FH – the Full Court reasoned that the exercise of the certification function was of such particular significance that, absent an express provision, it was not to be concluded that Parliament intended that the function be delegable. In its analysis, the Full Court viewed the certification functions of representative bodies through a prism where the Land Council was seen as having a particular aptitude to perform the certification functions which strongly supported its conclusion that the functions were to be performed by the representative body only through its full council. If your Honours could note, core appeal book, pages 91 to 95, and paragraphs 130 to 135 of their reasoning.

The state of satisfaction to be formed by the Native Title Registrar under section 24CL(3) as to the requirements of section 24CG(3)(b) being met, mirror the task required for section 203BE(5)(a) and (b). And the registrar will not have the characteristics the Full Court identified as creating the special aptitude. And further, the registrar may delegate those functions to a deputy registrar or member of staff assisting the tribunal, necessarily requiring those persons to reach the requisite state of satisfaction.

In having regard to the special aptitude for the performance of the function, the Full Court did not consider the registrar’s performance of the identical function, and the power of that delegation through the same prism. Further, in identifying the special aptitude, sections 203AI and 203BA(2) identify the features or characteristics relevant to the aptitude that a representative body ought to possess before and during its recognition as a representative body.

The Native Title Act does not impose or establish the organisational structures and administrative processes of the body corporate performing representative body functions. That does not mean that such structures or processes remain static for the period the body is recognised as a representative body. Rather, the Native Title Act does not mandate or require bespoke arrangements and processes to be established in the performance of representative body functions.

The sources of the structures and processes is in the enabling legislation, the rules, the constitution or similar governance documents of the relevant entity. The Full Court did not make findings about the organisational structures and administrative processes of the Northern Land Council and what we are left with here is a consideration of the legislative framework for the Northern Land Council.

Under that framework, the enabling legislation for the Northern Land Council is the Aboriginal Land Rights (Northern Territory) Act and then the Native Title Act creates a legislative scheme for the recognition of representative bodies which are body corporates established under other legislation. It provides for the functions of those representative bodies under the Native Title Act and the Northern Land Council is recognised as a representative body.

The Public Governance, Performance and Accountability Act sets out the governance, performance and accountability requirements of the Northern Land Council as a corporate Commonwealth entity. Neither the Aboriginal Land Rights (Northern Territory) Act nor the Public Governance, Performance and Accountability Act exhaustively prescribe the organisational structures or administrative processes of bodies established or recognised by those Acts. Those enactments nonetheless prescribe some requirements and limitations upon the organisational structures and governance arrangements of those bodies.

For example, under the Public Governance, Performance andAccountability Act, the CEO and the Chair of the Land Council are the accountable authority under that Act with a range of duties, responsibilities and obligations. This includes a duty to govern the NLC as a corporate Commonwealth entity and to achieve its purposes defined to include functions. Those functions are not limited to functions under the AboriginalLand Rights (Northern Territory) Act.

To be clear, we are not contending that the Public Governance, Performance and Accountability Act provides the source of power for the CEO to perform the certification function. The point is that the Aboriginal Land Rights (Northern Territory) Act and the Public Governance, Performance and Accountability Act may, and do, impose some requirements or limitations on who are the natural persons through whom the Northern Land Council may perform its functions. The Native Title Act does not.

Legislatively, the Aboriginal Land Rights (Northern Territory) Act repeats the same structure as the Native Title Act as to how the Land Council is to perform its functions – whether under the Aboriginal LandRights (Northern Territory) Act or another law. If your Honours could go to joint appeal book, volume 1, page 168, to section 23AA(4) of the Aboriginal Land Rights (Northern Territory) Act and, perhaps, at the same time, go to the joint book of authorities, page 92, for section 203BA(1) of the Native Title Act.

And your Honours will see that they are in the same terms as to – you will see that in 23AA(4), a Land Council is required:

to perform its functions in a timely manner –

with respect to:

matters affected by:
. . .
(b) time limits under another law of the Commonwealth or a law of the Northern Territory –

And if your Honours then go on to 23AA(5), you will see that it picks up 203BA(2) in the Native Title Act about the maintenance of organisational structures and processes in 23AA(5) which is reflected in 203BA(2).

So what we have is the Land Council considering functions to be performed in a timely manner, including taking into account time limits under the Commonwealth law or another Act, and there are Territory Acts under which the Land Council performs functions, and then we reflect the same maintenance of organisational structures and processes as in the Native Title Act.

And, then, if your Honours go to joint book of authorities, volume 1, at pages 175 to 176, we will see sections 27 and 28 of the Land Rights Act. Unlike the Native Title Act the Aboriginal Land Rights (Northern Territory) Act does provide an express power of delegation. That is in section 28, but that does not lead to a conclusion that that is the limit of the body’s power to delegate.

Section 28 of the Aboriginal Land Rights (Northern Territory) Act expressly imposes limits on which functions under that Act may be delegated to someone other than the full council within the body. The Native Title Act does not expressly impose any limitations on who within a representative body may perform the functions prescribed by that Act.

And, second, section 28 is expressly confined to land rights’ functions and that stands in contrast to section 27, which is the necessary and convenient power which is not confined to functions under ALRA and is reflective of section 203BK(1). Section 27 empowers the Land Council to:

do all things necessary or convenient to be done for or in connexion with the performance of its functions –

And when it is read with section 28 and its application of that section limited to functions under this Act, section 27 is wider than operating only with respect to those functions. And this does not support the construction of the Aboriginal Land Rights (Northern Territory) Act that Parliament intended the Land Council to have an ability to delegate to staff only for those functions prescribed by the Land Rights Act but no others. Section 203BK(1) of the Native Title Act empowers:

A representative body . . . to do all things necessary or convenient to be done for or in connection with the performance of its functions.

And we have said there are no limits of whom within the representative body may perform the certification function, but we know that section 203B(3) says that the representative body cannot outsource that function.

Section 27 of the Land Rights Act is followed by section 28, which does provide limits. If an establishing Act says all functions of the body, whether under the Native Title Act or not, must be performed by a particular person or persons within the body, then so much would be required for the purposes of section 203BE. The Native Title Act would not speak against that requirement and that is because Parliament made the deliberate choice to take the body as it finds it.

If the Minister does not consider that the organisational structures or administrative arrangements of the body would be appropriate or suitable for performing the functions of a representative body, then the Minister does not recognise that body, and may also cease to recognise that body, and that provision is section 203AH(2).

The control is exercised through recognition, not by prescribing who within a representative body must perform the relevant function and, in that way, the Native Title Act avoids legislative inconsistency. By way of example, if the Native Title Act said a function may be delegable to an employee, what would happen if the rules or constitution of the body says that delegation to employees is not permitted? Or the Native Title Act says that a representative body may make a rule as to delegation for the purposes of the Native Title Act, but the enabling legislation says delegation to employees is not permissible?

That is not to say that the Native Title Act is silent as to who may perform the function. It says it is the representative body who must do so, and not a third party, and that is consistent with the legislative scheme above. But once it is accepted that the Native Title Act does not require the full council to itself perform the certification function, then the proper construction of the Native Title Act and the Aboriginal Land Rights (Northern Territory) Act is that the performance of the certification function through the CEO, where authorised by delegation or otherwise of the full council, is not precluded. If your Honours please, if there is nothing else, they are our submissions.

GAGELER J: Yes, Ms Webb.

KIEFEL CJ: Thank you, Ms Webb. I am sorry, Justice Gageler.

GAGELER J: Ms Webb, it is not apparent to me what role section 203BK(1) plays in your submissions. It seems to be slipped in to the last paragraph of your amended outline, but really does not play any substantive role in the source of power to…..

MS WEBB: Of course, your Honour, we note in this case…..

KIEFEL CJ: Sorry, Ms Webb, we are losing you again. Could you start that answer again?

MS WEBB: Yes. That is because, your Honour, we do not need to bring it into play in this case, because there is section 27 of the Land Rights Act, which is the “all things necessary or convenient” power.

GAGELER J: I follow that, Ms Webb.

MS WEBB: Yes.

GAGELER J: But can it be a source of power to do something that is not permitted…..constituting Act of the representative body?

MS WEBB: If the constituting Act was completely silent, for example, which is not the case here, but did not have a provision like section 27, and did not have the limitations, then you could rely on section 203BK(1) to enable the representative body to perform those functions by authority and delegation. But, of course, that will depend on the organisational structures and administrative processes will have to be recognised first, in any event.

GAGELER J: So it is not – I am just trying to understand your submission. Section 203BK(1) is or is not a source of authority to supplement what can be done under the constitution of the representative body?

MS WEBB: If there is a limitation in the constitutional body, it cannot. If there is no limitation, it may supplement what is in the…..

GAGELER J: Thank you.

KIEFEL CJ: Yes, thank you, Ms Webb.

MS WEBB: Thank you, your Honour.

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: May it please the Court. Your Honours, we do not shrink from the way in which we state the central question in paragraph 2 of our outline. In our submission, in particular, contrary to some remarks of our learned friend for the Commonwealth by way of intervention, that law accurately reflects the way in which the issues were presented. May I deal with that last matter first as it has just arisen.

Your Honours may have noticed in paragraph 43 of our written submissions in this Court and in subparagraph 3a to which it refers, a position taken by us with respect to authorisation other than by the means of what is called delegation. Now, to that we may add what Justice Reeves at first instance found, having entertained an argument somewhat similar to a question of authorisation other than by way of delegation, and in his Honour’s paragraph 38 at the core appeal book paragraph 23, that is disposed of and is not live in this Court, bearing in mind the grant of special leave.

It is not a matter that the appellants have raised. It should not be entertained through the medium of an intervention. In any event, it would appear to be a dead end, bearing in mind that the PGPA Act, though referred to during our friend’s address just recently, is not relied upon as itself bestowing such authorisation, that is, otherwise by so‑called delegation. If that is not a source of the Chief Executive Officer’s authority to have certified, then we are left with nothing other than the supposed power to delegate, leaving of course the particular factual question as to whether that power to delegate, if it existed, had been exercised. We are concentrating our remarks in address on that anterior and dominating question, that of a power to delegate.

It is, in our submission, common ground and common experience in public administration, particularly for what might be called segments of the public and for the public good overall, that artificial persons are involved in critical steps. It is equally commonplace that such artificial persons – be they corporations or otherwise – are, nonetheless, treated as capable of having states of mind such as states of satisfaction or opinions. This case is but one example of innumerable forms of government expressed in that fashion.

Whether or not one is talking about purely administrative matters – what might be called the realm of administrative law – or whether one is talking in other areas where states of mind become relevant for doctrinal purposes, such as many crimes, but not only crime, of course – many matters affected by conscience in the equitable jurisdiction are paradigms of the matter – there arises the necessary step in reasoning that is sometimes called attribution. How, in what manner, and by reference to what proved facts does one attribute to the artificial person – for convenience I will probably just call that the corporation – the relevant state of mind, the existence of which plays some role in a legal controversy.

We would observe that there are different prisms through which that very general topic arise in the law and, as your Honours know from the, with respect, compact but learned discussion in the reasons of the plurality in the Full Court, one way is to approach it through an orthodox understanding of the maxim delegatus non potest delegare. In the particular and important, one is tempted to say constitutionally significant context where the delegatus refers to a person named in a statute by Parliament. In this case, a representative body.

In our submission, the starting of any of the inquiry that is before this Court cannot sweep to one side as having no weight or significance, the fact that Parliament has named the artificial person, that is, the representative body. Or to put it another way, Parliament’s choice of the person whose opinion is in question, is clear to demonstration. It is the opinion of the representative body.

Then, of course, the learning which we are told finally concludes with the proposition that it all depends upon the interpretation of the particular statute and that all depends upon the familiar factors that I need not rehearse, is in order to understand whether – as has been put traditionally – that designation of the person delegatus by Parliament to have a state of mind in order to exercise a power lawfully, is an exercise which calls to be performed in the jargon “personally” – an adverb which is not particularly useful in the realm of artificial persons for the reasons to which I will come. It might be, if I can put it diffidently, that instead of the adverb “personally”, the phrase by itself would more accurately capture the question that is raised when seeing these matters through the prism of the maxim.

Your Honours, there are other prisms that are not before this Court. Agency simpliciter, in the sense of a grant of authority express or implied – I leave aside at the moment any apparent or ostensible authority, I am limiting myself to actual authority – which, of course, subject to statutory prohibition, if available, could be made in favour of anyone at all – that is anyone, sui juris at all. The point about the general principles of agency in the civil law being obviously that what I do by my agent I do myself, making irrelevant distinguishing features of the agent so long as he, she, or it, is sui juris.

Now, in our submission, for the reasons that I put in seeking to sideline the Commonwealth’s reference to authorisation other than by way of delegation, those questions can be put to one side. That is, they do not arise on the issues joined and determined as they have been distilled for this Court. That does not mean ‑ ‑ ‑

EDELMAN J: Is that right Mr Walker? I mean is it not part of the question of whether powers or functions here can be delegated to ask, well, if they could not be delegated how could they be exercised? And that is a question which falls squarely within what you are describing as agency simpliciter.

MR WALKER: Your Honour, I say this with great respect. Your Honour has supplied the second half of the sentence I just started. It is not to say that when you are talking about artificial persons you are not immediately confronted with the question – how does an artificial person form an opinion? But we are not talking about AI and robots. So that always involves what might be called, in a more general sense – in a more general sense – what I am going to call agency, using that in a broader conceptual sense that is referring to how something is accomplished.

It is again a commonplace that we think does not divide the parties or the interveners in the way they have presented arguments to this Court in these proceedings, but of course a corporation such as the first appellant, must act by the agency by human beings, natural persons. That does not always usefully, however, produce an analysis that an identified human being acting for – sometimes it says acting as the corporation or acting in such a way as to constitute the corporation’s own conduct ‑ should always be called the agent of the corporation, and that is because the word agent has an ambiguity.

We submit that in such cases, which are really at the heart of attribution questions with respect to artificial persons, corporations, in such cases we are not talking about agent in the sense of principal agent; we are talking about agent in the sense of the actor whose conduct is in law the conduct of the artificial person, the entity, the corporation.

That is why in what I will call a humble example of a trading corporation, with a familiar memorandum and articles of association, many things binding the corporation – for example, in the law of contract and perhaps in tort – will be accomplished by the actions of somebody who is, with familiar description of his or her role, described as the managing director, or nowadays the chief executive officer, even without, I stress, needing to prove in every case that intervention by way of prior authorisation or subsequent ratification on the part of the governing body – a phrase to which I will come back – being the board of directors. One does not ordinarily say the managing director binds the corporation as agent, the corporation being principal, although I do not mean that that analysis would necessarily be false.

Now, in this case, in our submission, the first question is to examine what it is in relation to the power in question, which indicates that any person other than the artificial person in question, namely, the representative body required by section 203BE to have an opinion, should be able to supply that opinion by his or her or query its own opinion.

In our submission, we are entitled to say that there is nothing in the words of the particular provision and, for the reasons we are going to develop and have sought to explain in writing, there is absolutely nothing in the overall context of the Native Title Act, including with this concept of a representative body, which would suggest that there should be any ability to go outside.

We think the argument of the appellants accepts that, given the comments made by my learned friend distinguishing between delegation within and delegation without some concept of the inside and the outside of the corporation, but it should be immediately obvious, in our submission, that there is nothing in any of the provisions of either of the two statutes that matter which give cause to believe that with respect to the formation of the 203BE opinion, this is a matter which can or should be considered as capable of being performed – that is, achieved – by somebody who is (a) not the body and (b) is a person outside the body in every relevant sense that that preposition might convey, brought in by means that have come to be nicknamed, as your Honours appreciate, “outsourcing”.

As a matter of administrative law, which is what this concerns, that is entirely satisfying with respect to the basic proposition that one needs to identify the repository of the power as well as the limits of the power thus reposed. Where there are express powers of delegation, as one can see in Rohde, there is no difficulty. Or if there were difficulties of a kind that do not affect this case, section 34A of the Acts Interpretation Act have dealt with one that the scholars and sometimes the courts had raised. We can put all that to one side. There is no express power of delegation, subject to the argument concerning the necessary and convenient powers, to which I will come a little later.

Now, your Honours, the contest between the parties does include a question of the characterisation at a very high level of the nature of the questions involved in certification. And simply to pick a couple of contrasting phrases we, for the reasons I am going to develop and which we have explained, I hope, in writing, submit that a representative body being a land council – indeed, for reasons I am going to put, any kind of representative body – has truly representative duties and functions or attributes which must, according to the orthodox law concerning delegatus non potest, must be taken into account in carrying out the ultimately interpretative question as to whether 203BE is a function that can be formed by someone other than the body itself.

By way of contrast, it has been said that these are not matters of high policy. It is true that we are not talking about a cabinet, in the real sense, or in the so‑called national cabinet sense. And we are certainly not talking about military councils, we are not talking about international conferences. But we are talking about matters which are of the utmost gravity or elevation, if one uses that figure of speech, in terms of their importance for the interests, including the people, including people unborn, with which the two statutes in question are obviously and explicitly concerned in respects that I will go to in a bit more detail.

This cannot be regarded as being something in the nature of an answer to a conveyancing requisition. This is not simply an authentication or sponsorship function, although it has, of course, elements of both of those. For the reasons that we seek to develop, the provisions in question are provisions that show that this is a function where a representative body’s role in forming and certifying the existence of the requisite opinion, has at least two significant features.

The first comes from the nature of the subject matter that the statute requires the opinion to address and, to borrow a phrase from my friend, Mr Glacken, but for opposite purpose, those are matters which involve profoundly evaluative assessment about matters which are not incidental or unimportant, but are profoundly significant for the way these two statutes seek to ameliorate the position by which land was taken without consent.

The second feature that casts light on the nature of the opinion and its significance in the scheme comes from a matter upon which the parties and the intervener of the Northern Territory are squarely at odds, and that concerns what might be called the procedural or systemic role or step constituted by certification by a representative body of the requisite opinion, and I will come to that in a bit more detail fairly soon. It suffices to say that there is a safeguard or backstop in case of what I am going to call error, and the registrar does have a role which can overturn on an objection an opinion so long as the registrar is satisfied by the objector that the opinion was wrong.

In other words, the representative body’s function in the system of safeguards concerning the profoundly important matter of what I am going to call consent or approval or authorisation by traditional owners has…..fatally disappeared, become unimportant as soon as there is an objection that is not withdrawn, any more than a jury verdict does in a criminal appeal. There has to be a satisfaction in what I will call the reviewing level that there has been error below.

So, in our submission, it is a wrong approach to the broader contextual understanding of the Native Title Act read, as it must be, in tandem with the Land Rights Act with respect to representative bodies such as the first appellant, to dismiss or downgrade the significance of what is being done in any way at all. The significance, in our submission, is very considerable.

Now, your Honours appreciate why I have laboured this point, because we accept that under the conventional banner taken from the learning of aptitude, this is very similar, what I have just said, to matters that informed an important part of the ratio in the Full Court. We accept that is true and we urge that it was right.

Aptitude should not be understood too narrowly. We are not talking about it only in the sense of, for example, a statutory decision‑maker who was selected because he or she is a medical practitioner making a quarantine decision – a matter which one would have thought on account of aptitude would readily reveal the conclusion that that quarantine decision may not be delegated to a customs officer without medical qualifications, to take an example.

We are not talking about aptitude in that narrow sense but there is a cognate relation between that relatively pedestrian example and the larger – if I may put it this way – more political position which obtains with respect to land councils, indigenous land use agreements and the far‑reaching consequences under the Native Title Act for future acts.

That is, that in place of what might be called formal or tactical expertise of a kind that clearly produces a finding of aptitude, where necessary, there is here – contrary to the arguments put by the appellants and, we think, intervening, very much so, by the Territory – there is, in several senses of the word, a representative function, mandate and requirement on the part of all representative bodies, particularly spelled out in the case of land councils under the Land Rights Act.

Your Honours, may I, at that point, come back to the question of eligible bodies in section 201B which, particularly with its legislative history, was the object of a deal of argument against us not only by the appellants but, particularly, by the Territory. At the risk of over‑simplification, we submit that the burden of the argument against us on this point was of the appearance of a run‑of‑the‑mill artificial person in paragraph (ba) of subsection (1) of section 201B, namely:

a company incorporated under the Corporations Act 2001 –

was such as to indicate a lack of what your Honours may take to be the numinous quality that we have urged in our written submissions – and I intend to convey in my address – should be seen as expected and understood by Parliament, particularly in the combination of the two Acts, to be available for the public good with respect to the segment of the public which is traditional owners and, thus, for the public good generally, in relation to the formation of these opinions concerning the very important subject matter to which I will be coming.

It would be odd, in our submission, if against the background of the explicit text to which I will be coming and about which we have written – talking about the significance of this form of decision‑making and opinion formation, in relation to a gateway step to the registration of an ILUA, it would be odd if these statutes were to be read – this statute I should say – were to be read by reason of the addition of paragraph 201B(1)(ba), as having declined to such a neutral sense that nothing is to be gained for an understanding of what may or may or may not be delegated in relation to opinion, by reason of the inclusion as an eligible body of a simple Corporations Act corporation.

Now, in our submission, the reasons why the matter cannot be so regarded, in particular the reasons why the addition of that provision could not be contemplated as to having had the effect of reversing what surely would otherwise have been a previous understanding of the significance of the nature of a representative body, can be seen in provisions where I will start with section 203AD ‑ your Honours are familiar with these, given the addresses to date I will try to do them quickly ‑ page 82 of the book, and your Honours are familiar with the fact that nowadays the nomenclature is that a representative body is recognised by the Minister. That recognition requires the Minister to be satisfied, paragraph (d), that:

the body would be able to perform satisfactorily the functions of a representative body.

Now, that refers one off to provisions I am coming to quickly, which is of course to lean heavily on descriptors as well as the substantive content of those functions in other provisions. That all feeds back into the way in which an ordinary Corporations Act corporation, eligible to be considered by the Minister, may in fact become recognised as a representative body. And it is only if, unlike presumably practically every other ordinary Corporations Act corporation, there is something about it, either constitutionally or otherwise, capable of satisfying the Minister that the body is one that would be able to “perform satisfactorily the functions of a representative body”.

One of the important notions, in our submission – this is an understatement – of the Native Title Act, and of the Land Rights Act, is, if you will forgive the shorthand, the connection between people and land. And that is reflected in the provision of section 203AE where, with respect to the possibility of varying the area for which a body is the representative body, that too as a ministerial power can be exercised only upon the Minister being satisfied:

that, after the variation, the body will satisfactorily perform its functions in relation to the varied area.

And the make up of the body – the body’s rules, the body’s processes, formal or informal, are presumably all grist to the mill of the ministerial consideration whether, say, after tripling the surface area of the land or halving it, the body, as it was before that step was taken, would still be able satisfactorily to perform its functions. The functions are, of course, representative in the ways which I am about to come to and as such, in our submission, they show one of the dimensions by which representation is a familiar notion in modern nations.

Not all countries have electorates which are subdivisions of the whole, but we certainly do, and the idea that there is, even for perhaps non-indigenous, some connection between land and the collectivity is reflected in the notion of local members and local members having constituents and there being a House of Representatives, et cetera.

So, 203AE(1) is another way in which an ordinary Corporations Act corporation is held up to a mark which is, in our submission, sufficiently distant from being simply any old corporation as to render that an excessively dismissive approach to the reasoning of the Full Court concerning the nature of the decisions and the bodies to which it is committed in relation to 203BE.

NETTLE J: Mr Walker, it is plain, is it not, from section 201B that a table A company could be selected by the Minister as a representative body?

MR WALKER: Your Honour, I am so sorry, I did not catch – it is plain from 201B that ‑ ‑ ‑

NETTLE J: A table A company, an ordinary company incorporated under the Corporations Act ‑ ‑ ‑

MR WALKER: Yes, an ordinary company, so long as ‑ ‑ ‑

NETTLE J: ‑ ‑ ‑ and you would assume naturally that such a company would have the capacity to delegate to its managing director or chief executive officer large swathes of the power of the board.

MR WALKER: Your Honour, without using the word “delegate”, I think this is probably an affirmative to your Honour’s question. As I think I may have pointed out earlier in relation to attribution and so‑called agency for artificial persons, another way of perhaps putting the same proposition that your Honour has put to me is that I would certainly assume that an ordinary corporation could act in many, if not all, very important respects by its managing director.

NETTLE J: It is already imaginable that a representative body of that kind could perform the certification function through its managing director.

MR WALKER: Your Honour, I think that is correct. That is one of the reasons why I am submitting that this is nonetheless not a corporation that is ordinary. This is a corporation that has to be ‑ that cannot be lifted from the ruck of eligible to being recognised unless it, unlike most ordinary corporations, is such as to permit the Minister to be satisfied that it would be able satisfactorily to perform the functions of a representative body, to which I am coming.

It may well be that a body that says ‑ and just as if we were a trading corporation making decisions of the utmost financial import, minute by minute on the stock exchange, everyone can proceed on the basis that, as you would expect, the managing director will be making those corporate decisions and binding the corporation, the notion that that would be capable of satisfying the Minister of an ability to perform satisfactorily functions to which I am going to come is one which is, at the very least, questionable and it may well be is ultimately unthinkable unless one says there is nothing special at all, nothing nuanced at all, and nothing with what I am going to call necessary indigenous concern involved in the functions of a representative body, which are, after all, the subject matter of the ministerial satisfaction about the capacity of a body to perform them satisfactorily. That is a longwinded answer, your Honour. I should have started with the simple word “yes”.

In an ordinary case, until you see the hoops that have to be jumped through and, if I may say so, to mix a figure of speech, the elevation that has to be preserved during a period when a corporation is recognised as a representative function, unless one takes that into account then it would follow that in the ordinary fashion, the unremarkable fashion, thrown up by innumerable examples in civil law, not necessarily involving any abstruse company law at all, a managing director will have either express or very often actual implied power to do all manner of things, including those with grave consequences. I accept that and that is not part of our argument to dodge what happens in an ordinary table A corporation with respect to the powers of a managing director.

That does not lead to the consequence that one sees what is being done under 203BE as something that therefore lends itself to be delegated. In the case of such a corporation that was not only recognised but was continued to be recognised, that is, because there was a state of satisfaction of capacity satisfactorily to perform those functions, the opinion of the corporation could be formed not by way of any delegation and not by another person, but by the corporation acting through its managing director, because all corporations’ conduct has to be ‑ ‑ ‑

EDELMAN J: Mr Walker, if that is the case, are we not just in this appeal arguing about a word? In other words, if it were accepted that the Northern Land Council can certify through the agency in the strict sense of its managing director then, whether one calls that agency or authority or whether one calls that delegation, all we are arguing then about is the particular label to be put onto the consequence.

MR WALKER: No, your Honour. My assent to propositions raised with me by Justice Nettle is all about an ordinary table A corporation ‑ ‑ ‑

EDELMAN J: I see.

MR WALKER: ‑ ‑ ‑ which the first appellant is emphatically not. There are different ways in which one may satisfy…..that a representative body should be recognised on account of its likelihood or capacity satisfactorily to perform the functions, and with the Northern Land Council there are attributes and aspects found in the other statute, the Land Rights Act, which no doubt informed that approach, or would inform that approach if the issue came up again.

They include modes of decision‑making. They do not include anywhere the notion that everything that the Land Council – and the word “council” has real meaning – and the notion of “group” or “collectivity” has real meaning – there is nothing to suggest that the Land Council is intended to or can act in all its functions and exercise all its power simply by its Chief Executive Officer being its Chief Executive Officer. That is simply to say, this is not an analogy between a table A company with a managing director.

If there were a table A company with a managing director that had managed to be recognised, properly speaking, then no doubt the decision‑making of that form of representative body could include the formation of requisite opinions under 203BE by the managing director. That is not this case. The managing director of a table A corporation should not be understood in how I have tried to answer Justice Nettle, or develop this point, as being, in any way, corresponding to, equivalent of, or no different from, the Chief Executive Officer of the Northern Land Council. Partly, at least, that is going to come from the provisions with which your Honours are already well familiar with respect to the necessary and convenient powers and limitations on express powers of delegation. So I flag that, to which I will be coming.

Your Honours, as I say, this question of it is not just any ordinary Corporations Act corporation that can be a representative body and remain one, is bookended then by section 203AH(2)(a) where, again, one will be driven off to an understanding of functions.

Perhaps…..to add the emphasis to this, with respect to those selections at those various stages pre‑recognition, then during recognition, or at a point of variation of the capacity of a company satisfactorily to perform, your Honours will see in section 203AI the importance of the provisions with which your Honours are familiar, to which I am now going to turn, that start in Division 3. You see there a reference in particular to the important section 203BA.

Your Honours, if I may adopt, with respect, the way my learned friend, Mr Glacken, has addressed you with respect to the structure of this part of the Act by being briefer, 203B sets out the functions, including the certification function, and section 203B(3) uses the rather striking phrase “must not enter into an arrangement with another person” as the way in which the prohibition is framed against another person performing functions of the representative body.

Now, that certainly sets off, as your Honours have seen in the exchange of written submissions, a number of considerations - it is not a self‑contained provision – not least of which is section 203BK to which I will be coming very soon. We would draw to attention at the outset that there may be difficulty and it may not be necessary to have read or read section 203B(3) as concerned only with what might be called outsourcing. It certainly is concerned with outsourcing and that might be seen as its principal concern.

We would rather draw to attention that the expressions are “a representative body” and “another person” and that, for the reasons in the context of an ordinary Corporations Act corporation of a familiar kind, informed the way I tried to answer Justice Nettle’s questions. It would not be correct to say that the managing director is another person within the meaning of section 203B(3), but rather is a person by dint of designation and duties whose conduct – acts of omissions relevantly – are the conduct of the corporation. That, in our submission, is important in understanding how one proceeds here in relation to what we urge is the only issue before the Court on this point, which is, is there a power to delegate?

Now, it follows, I hope, from the way we have put in writing and so far in address, that a power to delegate does not raise the same questions as, whose conduct is the conduct of the artificial person, here the Land Council. It is not necessary, it would be laborious and wrong in principle, in our submission, to require the identification of a natural person whose conduct is the conduct of the representative body being the Land Council by requiring a delegation in every case, either in advance and in general terms so as to be ambulatory or ad hoc.

That is to mistake the nature of the attribution of natural persons’ conduct as the conduct of an artificial person, and it is to mistake entirely the notion that the point about a delegation, as 34A of the Acts Interpretation Act recognises and cures, is that a person other than that designated in the statutory provision is doing the thing which the statute says is to be done by the person designated in the statute.

EDELMAN J: The short point is a delegate acts for themselves and an agent proper acts for the principal.

MR WALKER: Yes, I repeat notionally, without I think going over it again, what I have tried to point out - that principal and agent is not the only way in which one gets a natural person’s conduct being the agency by which a corporation conducts itself. But otherwise yes, your Honour.

Your Honours, oddly, section 203B(4) might have been, one would have thought, included in section 203BA as its corresponding antecedent in the Land Rights Act, section 23AA, indeed illustrates. But that is of no moment, I think, to any of the arguments between the parties here.

We would accept that a determination of priorities and an allocation of resources, particularly so as to permit efficiency, will include and may require close and continuing attention that within a representative body itself to what my learned friend called the internal distribution of powers. With respect, this is not a case about internal distribution of powers and neither is it really a question of distribution of powers at all.

There is nothing internal about the question that our clients raised and upon which they succeeded in the Full Court, namely, that as a matter of law – administrative law – the opinion in question does not exist because it cannot be seen in the record to have been an opinion permitting a certificate by the Council, that is, on the basis of the Council’s opinion. It is, plainly enough, never for the internal regulation or organisation, changeable as that must be – flexible, one hopes, within a representative body – to alter the meaning in law of 203BE when it refers to the representative body forming an opinion.

But we agree that section 203B(4) is one of the quite numerous indications that it is not expected – plainly, why should it be expected – that there would be some crabbed or obstructive or crippled manner of proceeding on the part of any representative body, including a land council.

We only raise it in that somewhat exaggerated way for this purpose. Whether one is talking about the particular reference to time limits – to which I am about to come in section 203BA(1) – or whether one is talking about efficiency, more generally, your Honours should not take from the way in which this case has been presented to this Court that there is any substance at all in the notion that the process and requirements for which we contend – and which the Full Court has upheld as following from a proper understanding of the statute – caducous to inefficiency, dilatoriness or anything that would be contradictory of the way in which the described functions of a representative body are to be carried out.

Your Honours are familiar with the inadmissible cynicism by which consultation is seen as a mere obstacle on the way to making the decision we wanted to make in any event before the consultation. Consultation, when that is required, cannot be seen as a detriment to efficiency without, in our submission, the statute contradicting itself.

So one then turns to the way in which, under section 203BA, the provisions specifically incorporated into the monitoring of representative bodies’ appropriateness to be recognised in 203AI, and one sees that it starts with the notion of using:

best efforts to perform its functions in a timely manner –

It would be nice to be able to say that it was a doctrine of the common law or of statutory interpretation that that was true of every entity with public duties – but it is spelled out there. What it does not do is to say that it follows that there is more merit in a decision made rapidly than in a decision which takes the necessary time to perform the necessary steps.

There is a circularity in saying that if we do not have to consult the members of the Council, and they do not have to vote, the CEO can do something much more quickly and lo and behold we are revealed as serving the admonition, say, in 203BA(1) better than the argument of the respondents in this case. That, in our submission, is entirely circular, and assumes that there is some absolute quality of rapidity, which is the same as timeliness, and which means that the involvement of more than one mentality ought to be seen as prima facie, even a priori, contrary to the obligation to use best efforts to perform in a timely manner.

That, in our submission, for bodies which are after all called representative bodies with the qualities to which I am going to come next, would be perverse. The Full Court proceeded, with respect, oppositely and did so correctly. Your Honours, is that a convenient time?

KIEFEL CJ: Yes, it is, thank you, Mr Walker. The Court will adjourn until 2.15 pm.

AT 12.59 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

KIEFEL CJ: Yes, Mr Walker.

MR WALKER: Your Honours, may I pick up at subsection 203BA(2). Your Honours have already read the way in which we seek to turn these provisions to account, along the lines the Full Court regarded it. The promotion of the satisfactory representation by the representative body of native title holders and people who may hold native title in the area for which it is the representative body, immediately it bespeaks something which is different from might be called the usual mission of a Corporations Act corporation.

This is, in our submission, redolent of the fact that ordinary Corporations Act corporations rather need to conform their aptitude, if I may put it that way, to what one would regard historically to be true of the bodies corporate referred to in paragraph 201B(1)(b), of which the first appellant is a prime example, so when these provisions came into effect were already a representative body.

I am about to go to the Land Rights Act for some important provisions in that regard, but of all of the eligible bodies who may become representative bodies and remain so, it is worth remembering that even just in the definition provisions of section 201A, there are indications of what I am going to call collegiality in executive decision‑making. May I draw to attention, starting with the definition of “governing body”, it is said to be a group – not an individual, a:

group of persons . . . responsible for the executive decisions of the representative body.

A director is a “member of the governing body”, and an executive officer includes a director as well as others involved in management at a senior level. In our submission, those provisions, which are intended to apply to all the kinds of eligible bodies obviously permit, as you would expect from there being more than one species of eligible body, appropriate reference to the constating statute or other provision by delegation or otherwise, that is, by a corporate constitution under the Corporations Act or by the provisions of the Land Rights Act for a land council.

They are, as it were, taken along with all the provisions that can be turned to account in the Native Title Act. So that in a sense - we may not be completely common ground but in a sense we urge, as Mr Glacken did, that there is a form of the Native Title Act taking representative bodies as it finds them. Nonetheless, when it comes to the function in question in this case, it is the nature of that function as well as the capacity of the body which will answer the question concerning true delegation, which was the only issue.

Your Honours will have noted in paragraph 203BA(2)(b) the reference to “structures” and “processes” to promote effective consultation of the local Aboriginal people and the notion of structures and processes operate in a full and fair manner…..203BA…..in overlapping, maybe even repetitive fashion, involvement by participation and consultation. There is a reference there to rules and requirements relating to the conduct of its executive officers. That is a defined term, as I showed you in section 201A, and includes members of the governing body.

There is no indication there of any preference for, let alone specific provision for, the processes to include a single person, the Chief Executive Officer, perhaps simply because he or she is called that, to be the person who acts for the representative body, which is the Land Council in this case, so as to perform its functions. That, in our submission, would be at odds with the indications of mandated process involving deliberative and collegiate, as well as representative functions or aspects to which I have referred in 203BA(2).

The theme is continued in relation to the other functions that I do not want to dwell on – Mr Glacken has taken you to them. Can I draw to attention, though, the parallel or at least close similarity of the 203BE(5) matters, which are at the heart of this case, and what one sees in section 203BC(1) and in particular paragraph (b) of that subsection, again, a notion of the representative body being satisfied of an aggregate of persons understanding and consenting to courses of action to be taken by a representative body.

That, in our submission, is redolent of the kind of evaluative assessment concerning traditional or adapted processes which is ideally committed to the collegiate form of decision‑making to which I am going to come, as being the form of executive decision‑making by a land council. The reference to those aspects of what is required to be shown to the satisfaction of a representative body can be seen, as I say, in section 203BC(2), which bears close relation, obviously, to the ones critical to this case in section 203BE(5).

In subsection (5)(b) the word “authorised” is used and, as your Honours know – and was handily noted in the print – that requires one to go to the explanation of that matter which is not, as it were, a straightforward matter of looking to a common seal being affixed by resolution. Instead, under section 251A, there is a nested, or staged, set of considerations. It may well commence with investigating whether there is a process of decision‑making under traditional laws and customs and then looking to what are the compulsory elements of that, that is, what must be complied with and then to see whether a particular instance demonstrates accordance or not with that process – all in section 251A(1)(a).

If there are or are no longer such a process according to traditional laws and customs there is, as it were, committed to the group in question whose attitude is to be assessed by the representative body, there is to be a consideration of what they have – again, using a word being explained – they have authorised the making of the agreement in accordance with a process agreed to and adopted by. So at least two questions will be involved in the lead‑up to that conclusion, including characterising the kind of decision with respect to the adopted or ad hoc process.

Now, in our submission, those are matters – the cultural sensitivities of which, given the gravity of the steps that may follow upon the certification, lend themselves to the conclusion found, appropriately by the Full Court, even if the excessively terse expression “aptitude” may, until explained, as the Full Court did explain it, mislead. It is not a question of specialist qualifications; it is a matter of the fitness of the process within the representative body for the subject matter of that which is to be certified.

One notes, perhaps as a curiosity - I cannot put matters definitively about it - section 203BI. These are describing another of the functions of a representative body. One sees that it is regarded as a function of the body, not just a means of its proceedings, to provide a process for internal review. I say “internal” because it is said to be review by the representative body of its decisions and actions and that, in our submission – bearing in mind that it is a process that is to be made available for:

native title bodies corporate, native title holders and persons who may hold native title –

it rather suggests either an expectation of initial, or certainly an expectation of eventual, collegiate decision‑making.

Before going off to the Land Rights Act, of course as a, as it were, textual link between the two statutes, one sees one of the verbal similarities. That is in section 203BK, which in subsection (1) obviously conjures up its corresponding provision and antecedent in section 27 of the Land Rights Act. It has to be said about section 203BK(1) that we do not apprehend any of the arguments against us as suggesting that those are words which foreclose any question, that is, any dispute about delegability, that is, that simply because there are those words, apparently ample, the administrative act or disposition of delegation is and is always taken to be within power.

As we understand it, it is accepted and we submit correctly, that in order to understand whether somebody other than the designated person may exercise a power or carry out a function created by statutory enactment, there is always the contextual, including purposive, inquiry that we have tried to write about, and I am touching upon in my address. None of that would be apt - that would all be otiose - if it was true that an all things necessary and convenient powers provision always, and by definition, carried with it, naturally, delegation if the body thought that that was necessary or convenient.

It is for those reasons, in our submission, that we respectfully doubt whether it can be said that 203BK(1) throws any light on question of delegation. It is important to appreciate that as a matter of syntax, 203BK(1) talks about the body having power:

for or in connection with the performance of its functions –

and it would be, in our submission, not a central and perhaps not even an incidental understanding of that that the power extends to giving the power by delegation to someone else, and I do mean someone else. I am not talking about an organisation of a Corporations Act corporation’s decision‑making by appropriate allocation of authority to officers such as a managing director. By contrast we do not have in the record anything that translates to a table A Corporations Act managing director for the Chief Executive Officer of the Land Council.

NETTLE J: Mr Walker, may I ask you, how does that submission fit with the Full Court’s decision in McGlade.

MR WALKER: McGlade does have to be distinguished. We have done so in our written submission, I think paragraph 44 and following – 49 and following. We, in particular, draw to attention that the – if I can call it the CATSI Act provided important textual foundation for a different approach in that case. That is a very shorthand way of seeking to capture what we have written in that page and a bit in our written submissions, your Honour.

NETTLE J: So it is really a different legislative context that in McGlade…..to the conclusion that the power was delegable, and to the contrary in this case.

MR WALKER: Yes, your Honour, quite so. That is the way we put it.

NETTLE J: Before you go on, could I ask one other question pertinent to this area of your submission, and that concerns Justice White’s decision in Bright v Northern Land Council that the function of making best efforts under 203BE(5) does not have to be undertaken by the body itself, but can be undertaken by others for it.

MR WALKER: That must follow, with great respect, from the use of the passive voice because he is of opinion that all reasonable efforts have been made.

NETTLE J: Yes. Does that not suggest perhaps a contrary indication of the necessity for the Council at the highest level itself to form the opinion?

MR WALKER: No, with great respect. We perceive why your Honour raises that as a question to me but, no, we would urge to the very contrary. It is the survey of everything that has been done in order to ascertain whether all reasonable efforts have been made, we insert parenthetically by whomever, which rather suggests it is at the highest and what I will call judgmentally most nuanced level that the formation of the opinion should be carried out that makes it a better and more reliable approach, that is, having more than one mind turned to the question, particularly involving evaluative assessments, particularly with respect to phrases like “all reasonable efforts”.

The consensus by a majority vote on the Council as to whether that has been carried out is, in our submission, manifestly a more robust and adapted fashion of achieving the standards of conduct to which I have already referred in carrying out functions generally and, in particular, in addressing the section 203BE(5) matters. So, no, we put it oppositely from what your Honour asks me to consider.

The fact, for example, that a middle management staff member conducts consultation programs – a single person or even just two such persons – casts no light, with respect, on the appropriateness of a person at that level determining the opinion required to be formed under 203BE. In other words, it cannot be the identity or activities of the individual or individuals, teams or otherwise, consultants or otherwise, who perform the activities canvassed as to whether they show all reasonable efforts have been made, that cannot indicate that those are also the kind of people or the levels of authority or responsibility at which the overall survey opinion is to be formed and expressed.

GAGELER J: Mr Walker, can I ask a question while you are interrupted? Does your argument focus solely on the certification function under section 203BE, that is to say, is your argument as to non‑delegability applicable only to section 203BE, or do you say it flows through to the other functions referred to in section 20B?

MR WALKER: Our argument is advanced, specifically focused on 203BE in such a way as not to require, for its correctness, the same arguments indifferently to be applicable to all other functions. That must follow from the basic principle that we call in aid that it is by reference to the context and purpose, including here the content and opinion to be formed and the place that opinion plays in the making of…..with the effect they have on very important matters that all is true and through only the lens of 203BE.

Of course, it may be that aspects of our argument – if and when an issue ever arises – may be called in aid by those who argue for or against delegability of any of the other functions. But, as you might expect by functions which are separately stipulated, it does not follow that they all have the same qualities for the purposes of answering a delegability question. So, the answer is all my argument is focused on 203BE and no part of my argument says, and it must be true of 203BE because it is also true of other functions.

GAGELER J: Thank you.

MR WALKER: Your Honours, section 203BK(2), we draw to attention simply to point out that this is after all a statute which, with respect to what probably is only outsourcing, as that colloquialism is understood, there is put paid to the notion of delegation on such a broad front. Why I say it puts paid to that is because the power – an item included in the general description “all things necessary and convenient” for such outsourcing is limited to obtaining services to assist in the performance by the body, not by a delegate, by the body of its functions.

Your Honours, at that point, can I go please to the Land Rights Act and for convenience, slightly – not ultimately – out of sequence from our outline so as to abbreviate with the benefit of what my friends have said about some of these provisions. One can pick it up in early provisions, the theme that I wish to sound – even as early as section 21A – which goes back to what I will call the origins or founding of a land council. One sees the way in which it may be sought and, more to the point, by whom. I do not need to labour that point.

One sees that consultation and representation is at the heart of that originating step – see section 21A(2)(e). The formalities of legal personality are of course dealt with in section 22. In our submission that give rise, perhaps particularly in light of considerations that Justice Nettle asked me before the adjournment to consider, to whether being in a body corporate, that is, being an artificial person, which one interpolates must and can only act by human agency, whether that also forecloses questions of delegability, that is, there will always be the capacity to delegate.

For the reasons I have tried to put in address before the adjournment, the answer to that is no, that is not what we are here to talk about, to argue about in relation to delegation. We are not talking about the unremarkable human agency by which an artificial person, being a body corporate, acts and must act as delegation. We are talking about somebody other than a person designated in an enactment doing the thing which the enactment says may be done or must be done by the designated person.

In section 23, upon which we need not dwell, but all of which presents what might be called a panoply of characteristics of a land council, using again the word “functions”, but of course in the other Act, use of the constating statute, one sees how it starts with what can only be called a…..discourse of a kind which, as a paradigm, we would urge is best and perhaps only to be carried out by forms of collective or collegiate consideration.

That does not mean there cannot be many prior steps by way of assistance, just as Peko‑Wallsend proposes for ministers who may not delegate. But rather that when it comes to ascertaining the wishes of opinions of Aboriginals living in the area as to management, et cetera, and as to the real high policy of appropriate legislation then, in our submission, one starts to see that this is not the kind of body which, in relation to Native Title Act representative body functions, could be assumed by default, as it were, to be free to delegate its evaluative assessments of such an important kind. One sees that theme continued – I do not mean that the others are not important – in that provision, section 23. One sees it as well in section 23(3) to which I refer without reading.

Now, your Honours have already been shown the parallel, that is, the replication in the Native Title Act from the Land Rights Act of manner of performance of functions which you will see – I do not need to dwell on it – in section 23AA of the Land Rights Act. For the reasons I have already given, one cannot, reading that either severally or together, that is, section 23AA, spell out from it, in our submission, anything like a familiar authorisation of a delegation, either generally or specifically.

It could only rest in the proposition that we have tried to explode, namely that the interests of efficiency authorise, as a matter of law, the concentration in one person – not themselves constituting the representative body – of the evaluative assessment involved in these important opinions. We would respectfully suggest to the Court that that is a proposition that should be rejected upon its statement.

I draw to attention, again, not the only such provision, the gravity of the matter and the representativeness of the matter in a seriously political sense in section 43AA(3), political in the sense that there is that geographical locality, the connection of people to land.

So one comes to section 27, of which your Honours must be weary by now. I call in aid, obviously, what I have already put about the inadequacy of “all things necessary and convenient” to collapse or eliminate or foreclose disputes about delegability. One does not see – indeed, as we understand it, and I do apologise if I have misunderstood – Mr Glacken’s position is that you do not find in those words in section 27 “power to delegate”. Rather, that is part of a context by which, as it were, delegation is not precluded by the provisions of the Native Title Act.

It may be that there is a difference here between the Commonwealth and the appellants because - again, I apologise if I have misunderstood - we heard the Commonwealth to say that is a power to delegate. Now, that calls up, by way of response from us, the following general proposition that we urge must always be true when, in context, reading and interpreting the “all things necessary and convenient” familiar power provision, depending of course upon particular context, and that is that, in the eyes of the law, it is not self‑evidently or inexorably necessary and convenient to reduce to one the number of persons who did mental consideration for something in order to produce an opinion.

Now, the matter of ordinary life, not as a lawyer, it could be both convenient and depending upon your self‑confidence, necessary that nobody else’s views intrude on your own formation of an opinion – handy not to have to think about what other’s think about the matter. But that is, in our submission, a derisory way for these very serious words that have never attracted, on our research, any such approach in the authorities, to achieve in relation to delegability.

Or, to put it another way, the first question is: is the power in question here certifying, on the basis of a particular opinion, one which suggests that it may be exercised otherwise than by the designated person. If so, one does not need recourse to be made to all things necessary and convenient. If not, in the eyes of the law it is neither necessary nor could it properly be called convenient that that prohibition – that is, delegatus non potest delegare – be in some way detracted from.

In a sense, as your Honours may have gathered from our written submissions and my address, we respectfully suggest that one way to view subsection 27(1) of this Act, like subsection 203BK(1) of the Native Title Act, is that it really comes after one has ascertained delegability and does not convey delegability.

One notes, for what it is worth – may be slightly undermining the intended force of what I have just said – that among the list of things that do not limit the generality of the “all things necessary or convenient”, one does not see anything that answers the description of an orthodox power to delegate. In particular, may we say the employment of staff, bearing in mind the hierarchy of staff and the duties and the nature of…..is operating in a completely different area from the question of whether specific statutory powers, functions or duties can be delegated.

That is why it is significant, with great respect, that under the Land Rights Act there is specific and detailed provision for delegation and it is a limited power of delegation in section 28 – first, by reference to the nature or character of the delegates, and one sees a particular reference to a member of the staff, as well as to the chair or another member of the Council. Then one sees that there is, in the first of those subsections – subsection (1) - the structure adopted of a comprehensive description:

any of the Council’s functions or powers under this Act –

and of course it is that phrase that means section 28 does not apply to this case:

other than –

and then there is a carve‑out which includes some very important matters, some of which your Honours may regard as bearing in the numinous or elliptical sense that I tried to explain before the adjournment, some resemblance to the significance of the certificate and what comes in the train of a certificate, namely eventual registration of an ILUA and what comes in the train of the registration of an ILUA.

So that schematically, bearing in mind that the Native Title Act picking up of a land council under the Land Rights Act obviously has, in that regard, the relation of cognate provisions, one does not see any contextual indication or purposive indication here that the opinion that must found a representative body’s certificate in relation to an ILUA is, as it were, obviously or from its character something which can be delegated.

Then when one sees the other provisions of section 28 there is, in our submission, not only by the specific authorisation of delegations not material to this case, but there are also provisions generally which stress what we would call the consultative, deliberative, collegiate or group decision‑making expected of the Land Council. One sees that in subsection (4), for example, of section 28 where, when there is a delegate, the delegate has to make the same evaluative assessment that the representative body is required to make.

Could I then take your Honours to section 29. Here, any sensible equivalence between the Corporations Act corporations, for example, and a land council, in this case the body corporate that was a representative body when the provisions for eligibility came into effect, there is no real sensible resemblance, at least at the level of function with which we are concerned.

One sees the truly representative nature of this kind of representative body ‑ it cannot be an accident that Parliament chooses to have such a body as a representative body – in provisions starting with subsection (1). So there is a geographical nexus, a connection, Aboriginals living in the area, and then there is a register which, as your Honours know…..upon such substantive matters as residence or connection, and then they are chosen by the larger number.

So there is a selection by election of the members of the Council. The word “council” is of significance here ‑ it is deliberative and collegiate – in such a way as to obviously meet the approval of the Minister with respect to its propriety of permitting choice.

One sees that there may be co‑option, but again with a restriction as to connection, and then one sees, perhaps familiarly from parliamentary elections, a number of disqualifications – subsection (5). So, that this is a body where the qualities of people, including the absence of disqualifications, is what makes them eligible to be chosen in order to produce a council.

This is sounding like a body, with respect, whose governing body responsible for its executive decisions is a group of people that Parliament regards as bringing to bear their understanding of the relevant part of the world, including, obviously, the kind of evaluative assessments involved in the 203BE(5) matters.

When it comes to what I will call internal allocation of responsibilities – I am avoiding the word “powers” at the moment – your Honours will see the way in which that is carefully calibrated in section…..the council may appoint committees to assist the council in relation to the performance of any of its functions. That is not a delegation…..subsection 203BK(2) of the Native Title Act to which I have already referred.

Even with respect to a committee, one sees that there is what might be called participatory, certainly collective if not entirely collegiate aspects of its proceedings – see subsection (7). The committees cannot be, as it were, cabinet‑in‑confidence. Any individual being an Aboriginal living in the area can inspect the committee records.

Then we come to section 31 which concerns meetings which, in our submission, are the defining mode of proceeding of a council and certainly of the Land Council. It is not obviously thought antithetical to the efficient conduct of the Land Council’s affairs that there should be the convening of meetings, otherwise one can make no sense of the words of subsection (1), empowering the chair to:

convene such meetings . . . as are, in his or her opinion, necessary for the efficient conduct of its affairs –

The familiar safeguard against either a rump or…..operating can be seen in subsection (4), a requirement to quorum, and one sees that that is a hefty quorum. Subsection (5) despairs presumably of the impossible unanimity and goes for majority of votes - “a majority of votes of members present” - an indication that this is a decision‑making process likely to be enhanced and certain to be accompanied by something in the nature of debate or expression of different views. Then one sees again the participation by full access under section 31(7D) and the admission conditionally of persons other than Council under subsection (9), and then we draw to attention as well subsection (11).

So, in our submission, your Honours, unless one were to treat as of no moment in the understanding of the 203BE question, the character, including limits on powers – the character of the body, here the NLC, which is a representative body of a kind contemplated by the Parliament in the Native Title Act – unless one puts that to one side, as it were, a mere accident, then there is, in our submission, a real collision between the notion of streamlined administration - one person to form an opinion – and collegiate and evaluative assessment processes involving consultation and a real connection with land, the same kind of attribute of the decision‑maker as we look for in criminal juries, bringing something other than a single view. That, in our submission, adds up to a powerful justification and in accordance with the reasons of the Full Court.

Your Honours, one of the arguments against us – I think I may already have dealt with but, lest I fail to cite the proper provision – I have referred repeatedly to the significance of the certification, with its necessary opinion, in relation to ILUAs, which themselves obviously have very, very important consequences.

One could be forgiven from some of the argument from our learned friend for the Territory – perhaps not quite so much from Mr Glacken – that registration was, as it were, a process in which a representative body’s role ceases to be, as it were, of any great importance, depending upon the course of events.

It is, of course, the provisions of paragraph 24CK(2)(c) that, I repeat, make that a wrong argument concerning the significance of a representative body’s participation. Certainly, that does not add up, in our submission, to any reason to depart from what Parliament understood to be the way in which a representative body which was a land council would be making decisions to which I have already referred.

Your Honours, could I come to a provision which has been deployed against us, we think, particularly by the Commonwealth and that is 203FH. For what it is worth, which is probably not much, its subsection (7) defines, or refers to, a director as including:

a reference to a constituent member of a body corporate incorporated for a public purpose –

et cetera. That will include, obviously, under the Land Rights Act, a land council and it harks back to the provisions to which we drew attention concerning the governing body in section 201A and the definition of “director” in 201A.

Then, in our submission, there is really no tailoring or connection of 203FH to the question of delegability which arises in this case. Can I draw to attention a curiosity given that we are concerned with the question of administrative law – what does the law require as to the repository that is the identity of the person who purports to do something given legal effect by a statute?

The curiosity is that this is a provision that, to use and adapt its language, renders sufficient a state of affairs where there is no actual authority, there is only apparent authority. It is unusual – leave aside the inapplicable doctrine of de facto officers – it is unusual to find as a matter of administrative law, lack of power being treated as effectively having power.

Even under Blue Sky, when one talks about the consequences of a failure to comply with conditions, for example, if got to in time there is no question that such an Act is simply treated as the nullity it is at law. So, in our submission, one is, when reading section 203FH, surely first struck by the fact that, as your Honours will have appreciated, this is off the Parliamentary draftsmen’s shelf. This is standard from the repertoire of what I am going to call ancillary provisions and it is adapted, of course, not only to civil, but also to criminal attribution.

It is, in our submission, a statutory attempt to answer the question where do I find the state of mind, when I have to find the state of mind, of a body corporate and it is of no application in this case because, with respect, and as Justice Reeves pointed out at first instance, there is no proof here of any one person – let alone the Chief Executive having been authorised to form this opinion – or give this certificate. In our submission, it therefore cannot be regarded as a provision which says anything concerning delegation. It assumes authority, it does not speak to delegation properly so called at all.

When one turns to the familiar, and I say off‑the‑shelf standard provisions of section 203FH(2), one sees how even more remote the concerns of this provision is from the question of delegability because there we have the notion of taking reasonable precautions and exercising due diligence as a condition of the corporation being stuck with the conduct of such a person acting within the scope of actual or apparent authority. So, in our submission, there was no error, as the Commonwealth asserts, in the failing to regard section 203FH as concluding or foreclosing the issue of delegability.

Your Honours, a matter really of detail – there is a way in which a kind of delegation, though not by an act on the part of the representative body, can be achieved so that a function can be carried out by a person other than the representative body itself and this is the highly specialised procedure that you see in section 203FE, with its consequential provisions importantly in section 203FEA, and in particular subsection (1).

We draw to attention, not as a principal or central matter, but as adding perhaps only slightly to the textual context by which one should not read the whole of this statute as, as it were, subject to a general, let alone easy, availability of delegation of functions enacted to be carried out by the representative body as such – that is, itself.

Your Honour Justice Gageler has asked my friends concerning the relation, if you will forgive my attempt to paraphrase, between the state of affairs concerning powers in particular for a representative body. They are to be gathered from either a constating statute, as in this case, or a…..statute as in the case of an ordinary Corporations Act corporation on the one hand and, on the other hand, the position illustrated, I suppose, by section 203BK compared with section 27 in the Native Title Act itself.

As a matter of principle, we submit that what is first of all necessary is to find whether there is a power to delegate, and you look to both statutes for that. Why do you look to both statutes - because they obviously are concerning the subject matter cognate, and one is, in its relevant provisions, enacted under the other and one is more specific than the other?

If there were, hypothetically, a provision in the Native Title Act saying that there could be delegation of the 203BE opinion forming and certification. Even if there were not such a provision in the Land Rights Act, obviously Parliament can choose in which enactment it bestows a power. Now, that is in principle; there is no such thing in this case.

Even if the constating statute, the Land Rights Act in this case, did have a delegation power apt, without more, to appear to authorise the opinion for me and certifying under the Native Title Act, we would still need to give a further examination of whether, properly understood, the Native Title Act prevented that. In other words, even if there had been – and there is not – a provision in the constating statute authorising across‑the‑board delegation of all and any functions to anyone, or perhaps to a designated class of persons, then still the question would arise as to whether that extended to the particular function that is in question in this case.

It may well be that that would be an excellent start to an argument, given that it is a cognate set of enactments, by our opponents had that been so. But as a matter of logic, it will be not enough that the constating statute says that you may delegate anything if a separate statute says that the representative body must be doing the thing in question and we submit, for what it is worth, that the necessary and convenient familiar form of power is not one that can ever ignore the two propositions that I have put, namely, that it depends upon the existence of a power and it depends upon the delegability as perceived after the full interpretative exercise that we have attempted to assist your Honours with. May it please the Court.

KIEFEL CJ: Yes, thank you, Mr Walker. Mr Glacken, do you have anything in reply? Mr Glacken.

MR GLACKEN: My apologies, that was a fault at my end. I can be heard now?

KIEFEL CJ: Yes, you can.

MR GLACKEN: I apologise. Your Honours, might I commence by taking issue with the framing of the question in the proceeding at paragraph 2 of the respondent’s outline, albeit I consider that my learned friend ends his address in terms harmonious with the way in which we would frame the question. The question that arises is whether Part 11 of the Native Title Act prohibits delegation by representative body to an executive officer of the performance of the certification function, that is, to certify in writing an application.

One should not slide into what is a secondary question, and that concerns the location of a power to delegate, whether that is found in section 203BK of the Native Title Act or section 27 of the Aboriginal Land Rights Act or some other constating provision and once one focuses and stays with the correct frame of the question in terms of what was decided below, that is, that there was a prohibition by necessary implication, we submit that one immediately appreciates that the answer to that question cannot depend upon the constating document of the representative body concerned, or how it is made up and what its particular structures are, whether it is considered broadly representative or in some other characterisation as a table A corporations company.

Another way of putting it is that what is prohibited by the Native Title Act certainly could not be permitted by the constating provisions of the relevant representative body. So, once that question is framed that then leads to another proposition, whether ‑ ‑ ‑

GAGELER J: Mr Glacken ‑ ‑ ‑

MR GLACKEN: I am sorry.

GAGELER J: Before you move from the question of the question, these things are always quite unedifying, but if you look at the terms of the declaration that you are seeking to get set aside, it says that the Northern Land Council did not have power to delegate. Now, to get that set aside, you have to show that it did have power to delegate, do you not?

MR GLACKEN: No. That question will arise in the remittal. I think I commenced my opening address in‑chief by pointing that although that form of declaration focuses with precision, if you like, on the particular representative body, their Honours in their second judgment made clear that the words of a declaration were narrower than their holding – if I can turn that up.

GAGELER J: But, Mr Glacken, what you are asking us to do is to set aside that declaration, send it back to the Full Court with possibility that the end result before the Full Court might be exactly the same declaration.

MR GLACKEN: Yes, but in a different part. Could I just, first of all, put the context in terms of what the Full Court said about the form of the declaration? It is the second judgment. If your Honours turn to core appeal book, page 107, their Honours are referring to the terms of a proposed declaratory order put up by the respondent. At paragraph 5, on page 107, their Honours note that:

The terms of the proposed declaratory order are narrower than what is expressed at [136] of the joint reasons . . . The Court confirms the views expressed at [136], but it is prepared to make a declaratory order in substantially similar terms –

Going back to Justice Gageler’s question about power, we will return to, in our reply, the question that was put about the relationship between the Land Rights Act and the Native Title Act has been addressed by the respondent and if one looks at the particular words of that declaration, that the power to delegate for this particular representative body is found in section 203BK – alternatively, section 27 of the Aboriginal Land Rights Act – alternatively, section 28 of the Aboriginal Land Rights Act, but as I said, the first anterior question is whether the Full Court is correct that there is an implied prohibition against delegation per se or simpliciter.

What I wanted to then simply mention perhaps as an aside is that once that particular question is properly framed in terms of what the Full Court held below, the distinction between delegation and agency becomes a bit of a dead rubber. If I can put it this way, if the statute prohibits the delegation of a particular function to an officer within the body, then it is highly unlikely that the statute would permit the same thing to be done by way of…..

Could I just indicate, your Honours, that that type of issue has…..in the context of provisions of the Migration Act. If I just give your Honours the citations - principally Re Patterson; Ex parte Taylor 207 CLR 391 at 449, paragraph 176, and then again it arose in Plaintiff M61 243 CLR 319 at paragraphs 68 and 69.

We find that sort of debate about the labels to lack utility for two reasons. One is – and we have circulated an extract from Gower on companies law, perhaps out of historical interest, where the author notes at page 118 that the notion of the initial constitution of a company providing for the appointment of a board of directors involves delegating the powers of management to the board of directors, and that is why I also commenced our address by going to the appellant’s further materials at page 4 which identifies, and this is the same issue that Justice Gageler has just asked, the authority given by the members of the full council to, amongst others, the Chief Executive Officer.

I made that observation also in reply to the point made by the respondents concerning section 203FH(7) about the absence of evidence of actual authority. It is that actual authority in the 2001 resolution that would be remitted back to the Full Court to decide, because their Honours refused to deal with whether there in fact had been authority and an exercise of a power of delegation, having held that any possible power of delegation is simply prohibited by the terms of the Native Title Act.

That then, if I might, leads into what I consider to be the core of the respondent’s submission and that is the interaction that the respondents put between the Native Title Act and the Land Rights Act, and the expression used in the outline that “in this case” or by reference to this particular body with its collegial features and so forth, that the proper conclusion is that reached by the Full Court of an implied prohibition against delegation and the Full Court’s conclusion that certification would occur only at the level of the full council.

I will come to the interaction between the two Acts in a moment, including some matters of history. But can I say that this approach mirrors the approach in McGlade that I mentioned yesterday, that the holding in McGlade, or part of the reasoning, that whether or not the function is delegable might depend somehow on the constating documents of the relevant recognised representative body, rather than the terms of the Native Title Act conferring the function. That cannot be so.

Perhaps if I could take your Honours to what was said in McGlade, which I think crystallises some of the exchanges today about the interaction between the Native Title Act and particular constitutions of representative bodies. It is in the joint bundle of authorities at tab 21. If your Honours turn to page 419 of the report, the Full Court in McGlade – and this, I should say, is the version at 374 ALR 329 – at paragraph [330] makes an observation consistent with our case, in the second sentence, fourth line:

Such a delegation does not amount to the delegation by the ATSI corporation of its function or a power to another person –

That resonates with section 203B(3) and the debate that we have had about that provision:

rather, it has the limited effect of altering how and through whom the ATSI corporation fulfils its function (or an aspect of the function).

Their Honours then go on to deal with a finding at [331] that it was the corporation itself which certified, based on the review of the factual material, and at [333] make an observation about the attribution provisions of section 203FH. What we take issue with is the balance of the reasoning at 334 and 335 which suggests that in that particular case it was open to that recognised body to delegate the certification function to each chief executive officer by virtue of the power of delegation found in the CATSI Act in section 274.

For reasons I have said more than once, that cannot be the answer to whether or not Part 11 evinces a legislative intention – that is, Part 11 of the Native Title Act ‑ prohibiting delegation. It would in effect enable section 274 of the ATSI Act to authorise what is prohibited by the Native Title Act.

What we particularly take issue with is the level of analysis. If your Honours look at paragraph [337], in response to a submission that there would be an anomalous result if one kind of representative body could not delegate but another could, in the last three lines their Honours use the expression that:

Uniformity of outcome for all representative bodies is not to be assumed.

What we take issue with there is there must, in our submission, be uniformity of outcome as to the construction of Part 11 of the Native Title Act by reference to the question that arises as to whether it impliedly prohibits delegation. We accept that there may not be uniformity of outcome as between particular representative bodies.

This, I think, provides a segue into the question Justice Gageler asked this morning of the Northern Territory as to whether a provision such as 203BK of the Native Title Act or section 27 of the Land Rights Act could permit or authorise something beyond that which is permitted to be done by the constituting documents of the relevant body. Our answer is no.

Section 203BK would not be read in a way that would cut across the constitutional arrangement of the recognised body that would, amongst other things, disturb or distort the…..remedies on members and directors and their responsibilities. But likewise and equally important, the constituting documents of the company could in no way empower what is prohibited by the Native Title Act, and that is the unfortunate clash and inconsistency between the holding in Quall under appeal, in this case, and the reasoning in McGlade, and I think I used the expression yesterday, McGlade tried to sidestep what had been confronted in Quall.

Another way, your Honours, of looking at a provision like section 203BK is that it supplies but does not deny. In other words, it can supply a power when a power is absent, but it cannot deny the operation of some limitation found somewhere else. That then leads to my friend’s analysis of the intersection of the Land Rights Act and the Native Title Act, and there are three features that would I think be taken on board.

One concerns the treatments of powers and delegations in the Land Rights Act sections 27 and 28. The second concerns actual positive indications of the Native Title Act that restrict positively powers of the Land Council relevant to the performance of functions, and the third involves how both Acts craft and jealously guard the central opinion to the performance of the functions about the authorisation or consent of native title holders or traditional owners that actions may affect their interest.

If I could just say something about the more general proposition – I will go back a step. Sections 27 and 28 of the Aboriginal Land Rights Act might be viewed in one of two ways. One is that section 27, like 203BK, is an ample ancillary power that could, if necessary, supply a power to delegate but for any provision that would cut that down. So, in this case, it is cut down by its section 28.

When one looks at section 28, as I said it can do two things – one, is it either cuts down section 27 for the purposes of this Act, being the Land Rights Act. So, in other words, the breadth of the power of section 27 could not cover the field of delegation for the purposes of the functions in the Land Rights Act. The second way of viewing it is that this Act extends to the Act as amended from time to time, including by implied amendment with the addition of functions. That is the sort of question about conflating the two statutory texts.

However, your Honours, the better view is that once the answer is given that there is no implied prohibition on a delegation in the terms of the Native Title Act, then section 203BK will provide that power and enter the field subject, of course, to any contrary provision in the constating provisions of the relevant body.

Might I then go to an example of a more specific interaction between the Land Rights Act and the Native Title Act that cuts down our respondent’s arguments in several respects, but also illustrates the point I am trying to make. One needs to read the two statutes in a way that - absent express provision, one does not necessarily cut down the other, but if your Honours go to section 203EA of the Native Title Act, subsection (3) provides that:

A director of the representative body –

So that will be a member of the governing body:

who has a material personal interest in the matter that is being considered by the body’s governing body:
(a) must not be present during any deliberation –

et cetera. It is rather strict. It is broader than a provision simply saying one should disclose the interest. It is actually a provision saying one should not participate in the matter. Then in subsection (5), it then provides that:

Subsection (3) applies instead of any rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act –

We detail this in our written submissions at paragraph 44, footnote 35, the relevant provisions. But under section 29 of the Public Governance Act and rule 12 of the relevant rules made thereunder, it is not a conflict of interest for a member of a land council, by reference to the traditional interest of the member to land.

This is an example where the Native Title Act positively prohibits what is otherwise permitted by the combined action of the Land Rights Act and the Public Governance Act. So it is in that same territory that I mentioned earlier in dealing with the interaction of the two sets of laws, or, indeed, any other law governing a representative body, that the constating provisions of the governing body cannot be determinative and cannot control the question of whether or not the function can be delegated, which is the question that arises on the proceeding.

That then leads to the third point by way of reply, which deals with the formation of the requisite opinion. We do not in any sense seek to undermine the centrality of that requirement. It is jealously guarded in both enactments. One finds this notion of authorisation and informed consent has its origins in the Land Rights Act, see section 23(3).

Both statutes carefully craft how this central condition to the taking of action is to be guarded, and relevantly in the case of the performance of Part 11 native title functions, there is that anterior point in section 203BC that I went to yesterday, that facilitation of an agreement is likewise conditioned by the same state of satisfaction that the native title holders give their informed consent.

That is an example of the function where – it is not clear to me what the respondent’s answer was as to whether that would be delegable – we do not see a submission saying that it is not delegable. But the overall point that we wish to make about the interaction of the two statutes on this subject matter is that the Land Rights Act, when it comes to its crafting of this central requirement to be satisfied that the traditional owners consent to the relevant action, it does not see any inconsistency regarding that condition with delegation to other officers in the performance of functions. The model that seems to have been presented by the respondent is one of officers consulting in the field and then coming forward to the assembly, in this case twice a year.

Now section 203EA to which I went provides a bit of a roadblock for that, in some instances where those members of the assembly might have a conflict of interest and would not be able to participate. But the contextual point we made is that the Land Rights Act sees no inconsistency or derogation from that central requirement of informed consent on the one hand and on the other hand, having officers do things in the performance of the functions that affect the interest of the relevant Aboriginal title holders.

A matter of detail, but when it comes to the formation of the opinion of the Native Title Act, I mentioned yesterday that apart from review by the registrar there are two pathways. There may be registration agreement without any prior certification by the representative body. On a matter of detail, when there are objections and review, section 24CK – which talks about the registrar being satisfied of the satisfaction of the representative body – it is actually on the authority of Federal Court cases – and objective ones, so it is merits review. If I can give a citation – Corunna vSouth West Aboriginal Land Council 235 FCR 40, at paragraph 61.

That then really leads back to, I think, what is the core of the respondent’s case about the collegial nature of a land council. We do not refute the proposition that its composition can be relevant to the Minister’s consideration of recognition. But the criteria for recognition in 203BA is that of, what I might call, performance output.

A body can have different compositions and structures and meet that performance output and be deserving of recognition by the Minister. We do not say that the performance criteria, timely performance, efficient performance, the allocation of resources and so forth necessarily mandates delegation. What we say is that, equally, the criteria…..mandate the decision…..so the apex of the representative body by its governing body. The very scheme, the essence of the scheme is that of some flexibility as to what are the organisational structures and administrative processes that will effectuate the purposes specified in section 203BA.

Now, if I can then summarise, your Honours, what we say is that, a bit like what the respondents have submitted, there is no particular provision such as 203BK that forecloses the argument on delegability. What we submit, for the reasons…..is that there is no legislative intention prohibiting delegation and if the relevant body does not have an applicable constitutional power, then it is supplied by section 203BK, subject to the qualification of whether there is some other contrary provision that would cut down.

So there might be a scenario where a body because of its particular constitution may not be able to delegate at all or may only be able to delegate in part, but that does not answer the question of whether there is an implied prohibition in the terms of Part 11 of the Native Title Act against delegation to start with. They are the points in reply, your Honours.

KIEFEL CJ: Yes, thank you, Mr Glacken. The Court reserves its decision in this matter and adjourns to 2 September.

AT 3.40 PM THE MATTER WAS ADJOURNED