Northern Land Council & Anor v Quall & Anor

[2020] HCATrans 109

Replacement Transcript  

[2020] HCATrans 109

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 WEDNESDAY, 12 AUGUST 2020, AT 2.15 PM

Copyright in the High Court of Australia

___________________

MR S.A. GLACKEN, QC:   If the Court pleases, I appear with MR R.W. KRUSE for the appellants.  (instructed by Northern Land Council)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR A.K. FLECKNOE‑BROWN, for the first respondent.  (instructed by Robert Welfare & Associates)  

MR P.F. McINTYRE:   May it please the Court, I appear for the second respondent.  (instructed by McQueens Solicitors)

MS R.J. WEBB, QC:  May it please the Court, I appear with MS C.I. TAGGART, for the Attorney‑General of the Commonwealth of Australia, intervening.  (instructed by Australian Government Solicitor)

MS N. KIDSON, QC:  May it please the Court, I appear with my learned friend, MR L.S. PEATTIE, for the Northern Territory of Australia intervening.  (instructed by Solicitor for the Northern Territory)

KIEFEL CJ:   Yes, Mr Glacken.

MR GLACKEN: May it please the Court. Your Honours will appreciate that the appeal challenges the holding of the Full Federal Court reversing the decision of the trial judge by which the Full Court held that as a matter of necessary implication Part 11 of the Native Title Act evinces an intention that what is known as the “certification function” in section 203BE(1)(b) cannot be delegated by a representative body to an executive officer – in this case, the Chief Executive Officer of the Northern Land Council – the Northern Land Council being a body recognised under Part 11 of the Native Title Act as a representative body.

Now, although the declaration of the Full Court, at core appeal book page 110 and the corresponding ground of appeal at core appeal book page 132 is cast with more precision for focus in referring to the first appellant, the Northern Land Council, not having power to delegate its certification function, that, of course, is not referring to some constitutional limitation but, rather, it is attributable to the Full Court’s view that the certification function itself – reposed in the Native Title Act – is incapable of delegation as a matter of law. 

If your Honours were to look at the core appeal book page 96, paragraph 138, one sees that conclusion in rather pithy and stark terms in the second sentence and 138 where their Honours say “They” – “They” being the other issues in the appeal to which I will come to in a moment:

would only arise if, contrary to the above, the certification functions under s 203BE(1)(b) were capable, as a matter of law, of being delegated, including to the CEO.

Hence, your Honours, the efficacy of the act of delegation by the NLC was not decided by the Full Court and that issue would require remittal should the appeal be allowed. 

Might I turn to the act of delegation, your Honours, and ask your Honours to turn up the appellant’s book of further materials at page 39.  I do so for three reasons.  The first reason is to simply illustrate the breadth of the Full Court’s holding about non‑delegability, that is, the function cannot be performed by any internal organs of the relevant body, save for the ultimate governing body at the apex.  The second reason I go to this material is that it usefully illustrates the organisational structure of the Northern Land Council or what the Native Title Act refers to as organisational structures and administrative processes and the third reason I go to this material, your Honours, is that it is not our case that the Native Title Act contemplates delegation to a person outside of the organisation of the relevant representative body.

With that in mind, your Honours will see that it is a resolution of what is known as the Full Council.  I will not go to the material, but the minutes are at page 55, where your Honours will later see that potentially this is an assembly of 64 or so members of the total 83 members of the Full Council meeting together as an assembly.  Item 1 ratifies current delegations.  If your Honours then go to item 2 on the page, at about line 15, there is then the specific act of an authorisation or delegation, where it says that: 

the following functions and powers are delegated to the Executive Council, Chairperson and Chief Executive Officer –

and then, relevantly, at (ii) the certification function relating to indigenous land use agreements. 

Now, in terms of the organisational structures and administrative processes of this body, those receiving the delegation, if I could explain - the Executive Council was a committee of members established under section 29 of the Aboriginal Land Rights Act.  The next entity, the Chairperson, is the Chair of the Land Council, chosen under section 30 of the Land Rights Act and the next person, the Chief Executive Officer, is a member of staff employed under the specific power under section 27 of the Land Rights Act.

If your Honours were to note a passage in the Full Court’s reasons, to which I will come in a while, it is paragraph 135 of the Full Court, appeal book 95, line 14, where it is not entirely clear - and I will come to the passage in a moment – but it is not entirely clear whether their Honours are also saying that there could not be a delegation in this case to the Executive Council, which comprises members of the Northern Land Council. 

I will come to that passage in a moment.  It is appeal book 95, line 14 where, perhaps, there is a slight gateway open or at least some ambiguity in what their Honours were endeavouring to establish.

KIEFEL CJ:   Mr Glacken, could I ask you this?

MR GLACKEN:   Yes.

KIEFEL CJ:   You have referred to the terms of the order made by the Full Court.  I do not think we have the pleadings, but do I take it that the question which was posed for the primary judge was in terms of the declaration which his Honour made which appears at appeal book page 7?

MR GLACKEN:   Does your Honour have the originating application in the Federal Court in that same volume I went to?  It was a proceeding ‑ ‑ ‑

KIEFEL CJ:   In the core appeal book?

MR GLACKEN:   This is the appellant’s further materials.

KIEFEL CJ:   Further materials.  Where do we find it there?

MR GLACKEN:   There were two applications because there were two applicants, and at page 8 is one of the applications.  The ground of review – so it was a challenge to the certification by way of judicial review and the ground of review that engages the present proceeding appears on page 10 at paragraph 5 on about line 10, referring to:

an absence of jurisdiction of the decision‑maker to make the decision . . . more particularly:

(i)       absence of delegated authority –

The trial judge held the function was delegable but held that the act of delegation, an earlier act of delegation in 1996, lacked efficacy.  So on the appeal by my clients to the Full Court they sought to adduce fresh evidence of a delegation that had been discovered after the proceedings below at first instance, being the 2000 resolution that I just went to.  I hope that explains the background, your Honours.

KIEFEL CJ:   Yes.  So, do I take it that the judicial review was focused upon the question raised by the respondents to these proceedings as to whether there was a delegation but that that widened into questions about the certification process more generally?

MR GLACKEN:   It widened into a point that the certification process could not be delegated at all per se.

KIEFEL CJ:   Yes, thank you.

MR GLACKEN:   As I said, the trial judge said it was capable of delegation, but it had not in fact occurred.

EDELMAN J:   Mr Glacken, have the trial and the appeal all been run on the assumption that delegation and authorisation are the same thing?

MR GLACKEN:   No.  At first instance it was, but before the Full Court it was not; the distinction was made.

EDELMAN J:   Do you rely then on 203FH independently of delegation?

MR GLACKEN:   I rely on 203FH, your Honour, as contextual confirmation of what we submit to be our primary point to which I will come in a moment.  Our primary point is that what is known as the ancillary power in section 203BK is a source of a power to delegate, that it attaches to specific provisions of the Act – 203B(4) and 203BA – and then we are, if I might say, embarrassed by a richness of contextual confirmation and 203FH is one of those contextual indicators that confirm our central point.

If your Honours have our outline of argument, if it assists, I might put it this way.  What I conceive to be the central point is at paragraph 6 of the outline.  It is what I might call the crux of the matter.  The balance, using the headings at paragraph 8 and paragraph 11, are those which we say are contextual indicators that confirm our construction.

GAGELER J:   Mr Glacken, is that central submission premised on the representative body under its own constitutive documents, whether they be a memorandum of association or a statute, having its own power of delegation?

MR GLACKEN:   No.  Your Honour was a bit faint, but I think I follow what your Honour said.  Can I say that what might be the punchline of all this is really in the last sentence of paragraph 10 of the outline, which I think addresses your Honour’s point.  We say that whether or not the function is delegable must turn on construction of the Native Title Act. 

A particular body may or may not have constitutional power.  In the absence of an applicable constitutional power, section 203BK will provide that power.  Conversely, if a body has a constitution or prohibition against delegation then there would be, if you like, a clash between the Native Title Act and the limitations on the constating documents of the body.  We are not in that situation in this case or at that point.  I hope that answers your Honour’s question.

If I could put it a different way, whether or not it is delegable does not depend on whether the representative body has a constitutional power of delegation. If it is delegable it must turn on the terms of Part 11 of the Native Title Act.  To that extent, I will say something later, but we find the distinction made in the other Full Court decision, McGlade v South West Aboriginal Land & Sea Corporation, to be far from satisfactory insofar as the Full Court in that case said well, that particular body has a constitutional power of delegation from its board of directors, that suffices to distinguish the holding in this case.

Can I go back, your Honours, to the Full Court’s reasoning before I then go through the particular points in the outline.  The “upshot” – and that is the word used at paragraph 136 at appeal book 95 – of their Honours’ reasoning is that the Act requires certification by the members of the governing body in general meeting.  Whether that governing body be a council of members like the Northern Land Council or a board of directors, as is common with other eligible bodies – in other words, it must occur at the apex of the body – that is the effect noted by Justices Griffiths and White at paragraphs 136 and 137, appeal book 95; likewise Justice Mortimer at paragraph 147, appeal book 99, lines 13 to 22.

There are, we apprehend, three essential steps taken by their Honours to get to that point, that the Native Title Act evinces a legislative intention that performance of a certification is not delegable and can only occur and be done at the apex of the body.  One reason given for ‑ ‑ ‑

EDELMAN J:   Mr Glacken, why are those two alternatives binary?  Why is there not an intermediate possibility which would say that the functions are not delegable, but they can be performed by and for the Northern Land Council through its agent, an authorised agent, such as the CEO?

MR GLACKEN:   Your Honour, I accept that, and can I make this observation about the Full Court’s reasoning.  Bearing in mind that in this particular statutory setting the repository of the function must be a body corporate, it is not an individual such as a Minister or a departmental head.  In a number of places their Honours speak of the function having to be performed by the “body itself”.  We respectfully submit that if the function is performed by an executive officer, whether styled as a delegate or styled as an agent, it is so performed by the body itself.

To use or misuse a word that the Full Court uses, their Honours speak of not being able to outsource, that is why I say it is not our case that the Native Title Act contemplates outsourcing.  Now, Justice Edelman’s question, I must say, goes to an earlier point that I adverted to, was that before the trial judge, agency, call it Carltona, was in play but before the Full Court it was out of play.  To that extent, we say that it is a distinction of no practical substance for the workings of this particular piece of legislation.  So I would agree that it is not a binary position.  That just explains the background to the way the Full Court articulated things.

Now, dealing with the way the Full Court approached…..we apprehend there were three essential steps to their Honours’ reasoning.  One is that certification is conditioned by formation of an opinion that the native title holders concerned in a relevant action authorised the relevant action.  One sees that in the reasons for judgment of Justices Griffiths and White – appeal book 83, paragraphs 98 to 100; appeal book 95, paragraphs 126 to 137; likewise, Justice Mortimer – appeal book 100, paragraph 153.  We deal with that particular issue in our outline at paragraphs 4 and 5, and it is the first point that I will address substantively.

The second reason given by the Full Court was the non‑delegability of the certification function. It turns on the intersection of section 203B(3) and 203BK – the latter being the ancillary power. We see that in the appeal book page 86, Justices Griffiths and White, paragraph 104(c); appeal book 95, paragraph 135(b). To paraphrase things, their Honours considered that the sections were engaged with each other in a way to distinguish between permissible assistance in performing functions and impermissible delegation of performance. Justice Mortimer expressed a similar view, appeal book 98, paragraphs 145 to 146.

The third reason given for non‑delegability of the certification function concerns the representative role of a body recognised by the Minister as one that may perform the part in every function – that is, its role in representing Aboriginal people who hold, or may hold, native title that may be affected by the exercised power by the body – such as through the action of certifying an indigenous land use agreement as a step to its registration to permit future acts to occur.  One sees that in the reasons for judgment of Justices Griffiths and White, page 93, paragraphs 129 to 135 and Justice Mortimer, appeal book 100, paragraph 152.

We would submit that those three points are not made out upon closer examination of the statutory scheme.  Might I start with dealing with the text and immediate context of section 203BE, which confers a certification function.  If your Honours turn to the Native Title Act – it is in the materials in the joint book of authorities, volume 1, at tab 3. 

Before I go to the actual text of section 203BE, may I briefly explain the purpose of certification by a representative body?  As I have already said it is a step to registration of the relevant native title application or native title agreement?  It was introduced as part of the 1998 amendments where there are now, if you like, Torrens registers of native title applications and of agreements that facilitate dealings in land under claim by governments and proponents, pending a determination of whether or not native title exists in relation to an area covered by an application or an agreement.  There is a register of native title claims kept under Part 7 and a register of indigenous land use agreements kept under Part 8A.

The certificate given by a representative body provides prima facie evidence that the right people for country have been identified in relation to the transaction and that they authorised the relevant transaction as a condition to each registration.  But, not unsurprisingly, it is the act of registration by the Native Title Registrar, the keeper of the registers, that is determinative.

Now, for the registration of the indigenous land use agreement there are two pathways to establish that the agreement is authorised by the native title holders.  One is by direct examination of that subject matter by the registrar.  The other is indirect examination of that subject matter by the registrar should the agreement be certified.  Your Honour will see those two powers – I will not go to the provision, but they are neatly identified in section 24CG(3), which sets out the preconditions for registration of an agreement.

With that object in mind and bearing in mind that the point I am drawing from that purpose, your Honours, is that certification is but a step, it is not the end of the road to registration, can I then deal with the actual text of section 203BE.  Perhaps to make a very simple point, there is nothing in the text which would suggest that the power should be actioned by a governing body, a council of members or a board of directors at the apex of the relevant organisation. 

If your Honours have the section, if I make the first observation that subsection (1) your Honours will see that the functions – plural – relate to:

applications for determinations of native title –

that is, claims, and:

applications for registration of indigenous land use agreements –

So the Full Court’s reasoning, on certification of an agreement, has equal application to certification under native title claim.  The function itself is expressed by the words “to certify, in writing”.  That is, the action.  Now, in turn, that does not require a resolution of the members or directors of the body in general meeting.  It required, as is seen in the appellant’s further materials - page 3 is the certificate – it simply required someone putting pen to paper in writing to certify. 

One then sees in subsections (2) and (5) that before one can put pen to paper that action is preconditioned by formation of an opinion, that is, the certificate cannot be given unless the body is of the opinion that the relevant native title holders have authorised the matter, et cetera.  I will come to the detail of the subject matter of authorisation in a moment.

Staying with the text, one then sees in subsections (4) and (6) the requirement that there be a short statement of reasons for the opinion accompanying the certificate.  This perhaps goes back to the initial question from Justice Edelman.  The attribution provisions of section 203FH, which we will come to later, dovetail these requirements in section 203BE in this way. 

Section 203FH enables one to say or ascertain does the body corporate hold the opinion and, if so, what are the reasons for its opinion.  Section 203FH in that respect has a definition of what is meant by an opinion and it fits hand in glove with the writings of section 203BE(2), (5) and subsections (4) and (6).

Might we then say something more about the nature of the opinion that conditions certification, taking 203BE(5) as the example.  There are two aspects of the subject matter.  First in paragraph (a) is identification of the native title holders.  It asks, in effect, do you have the right people for country?  Then in paragraph (b) the next inquiry is whether those people authorised the making of the agreement.  It asks:  have those people spoken for their country? 

There is a note taking the reader to section 251A, if your Honours turn to that provision - and I would be grateful if your Honours were to make a marginal note that section 251A and 251B are modelled on a provision in the Aboriginal Land Rights Act, section 77A, and relevant to a concluding submission I will make about the position of land councils under the Native Title Act.

What is required by authorisation, your Honours, is apparent from section 251A(1)(a) and (b).  Essentially, is there an applicable traditional decision‑making process to authorise the action?  If not, has the action been authorised by what I might call consensus on the day?  Can I just pause there.  An opinion on those matters may require some evaluative judgment, but they are nevertheless matters of fact that can be ascertained. 

They are not matters of policy or choice such as what might be conferred in a minister for Crown lands in choosing whether or not a particular reservation will serve a particular land policy.  They are simply inquiries as to whether certain facts exist and, importantly, we say, the opinion is reviewable should there be an objection to registration of the agreement, in which case it is the registrar’s opinion - the keeper of the register – it is the opinion of the registrar that provides the basis for whether or not registration occurs.  The representative body is, if you like, just an intermediary in that respect. 

So in summary, dealing with this aspect of the case, may we make perhaps four subpoints.  The first I have touched on.  It is an opinion about whether certain facts exist.  May we contrast that with the example given in the Full Court reasons, page 66, paragraph 51, where their Honours refer to the New South Wales Court of Appeal decision, Nelson Bay Claim Case (2014) 88 NSWLR 25, referring to the judgment of Justice Basten in relation to the particular agreement required by the Minister for Crown Lands, in that case being a matter of high government policy, hence one would expect that the statute anticipates a decision on that high government policy by the Minister of the Crown.

The second point we would make on this opinion about the existence of facts is both reviewable by merit review and is also a matter upon which the registrar will also address, either by merit review or directly if the agreement is not certified.  In that way, the Act does not say that the representative body has some special aptitude to form the opinion.  That is the phrase used by the Full Court at paragraphs 130 and 135, taken from the journal article by Professor Willis mentioned at paragraph 43 of the previous judgment.

The third point we would take is that if the opinion is formed by the representative body rather than the registrar, it is obviously to be formed by a body corporate through human agency.  The Act does not select the organ or agency of a body to hold and effectuate the opinion.  It does, however – and I will come to this in a moment – give a clear indication that sections 203FD and 203FH may be the members/directors of the body or it may be the executive officers who act in the performance of some things.

The fourth point we would make is that the opinion required by section 203BE is the same subject matter as the state of satisfaction required when the representative bodies performing the preceding and anterior facilitation and assistance function in section 203BB.  So it is not something that is peculiar to certification.  It is a constant in the…..statutory scheme of functions.

Pausing there, there is nothing in the text or immediate context of section 203BE to suggest that the certificate and opinion must be that of the governing body acting collectively rather than that of an authorised officer.  Might I crucially develop what I will call the integration point and that is the connection between 203BE and 203BB.  If your Honours turn up section 203BB.

It referred to what is known as facilitation and assistance of functions and might I say this is really the core of what a representative body does.  Importantly, when the Full Court speaks of the representative role of such a recognised body this is how it represents native title holders.  Your Honours will see that the function is described in, first of all, subsection (1)(a):

to research and prepare native title applications –

et cetera, and then in (b) “to assist” native title parties:

(including by representing them or facilitating their representation) –

in various things, including negotiations and so forth relating to:

(i)       native title applications;

(ii)      future acts;

and in this case:

(iii)     indigenous land use agreements or other agreements –

Now, that, as I said, is quite important.  When we speak of a representative body, that is how it is representing native title holders and what it does.  Now, 203BB is then accompanied by a provision, 203BC, which specifies how the body is to perform its facilitation and assistance functions.  If your Honours then turn to that provision – and might I again ask your Honours to make a marginal note – it is modelled on the Aboriginal Land Rights Act section 23(3) and, again, section 77A of the Aboriginal Land Rights Act.  So it required the body, first of all, in subsection (1)(a) to:

consult with, and have regard to the interests of . . . native title holders –

and in (b) “if the matter involves” representing native title parties to:

be satisfied they understand and consent to any general course of action that the representative body takes on their behalf in relation to the matter.

Then in subsection (2) there is a provision as to when native title holders are taken to have consented to such actions and that mirrors the authorisation provisions found in section 251A and 251B.

Now, what we take from that, your Honours, is that the core function of representation will be done most often in the field and is conditioned by the same state of opinion or state of satisfaction that conditions for certification.  Certification would be the product of that facilitation in the field.  So to suggest that one set of functions, facilitation assistance, can be performed by officers, but another set of function certification requires performance by the governing body in general meeting introduces, we would submit, incoherence in the interaction of functions and their conditioning by the same state of satisfaction.

That suggestion, your Honours, comes about from the Full Court’s focus only on the certification function, which is apparent from passages in the judgments of Justices Griffiths and White, paragraph 60, appeal book 69; paragraph 128, appeal book 92, the last sentence and Justice Mortimer, paragraph 149, appeal book 100.

As we would seek to develop in the next point, your Honours, there is no reason to suppose the performance, whether it be certification or facilitation, should be centralised at the apex of the governing body and there are good reasons for those functions to be decentralised and devolved to senior management for operational decision‑making and there is a plethora of indications in the Act that that is exactly what the Act anticipates.

Could I then – unless there is anything about that – turn to the points in the outline at paragraphs 6 and 7, which I apprehend to really be the crux of the matter. The trial judge sourced a power to delegate in the necessary and convenient power in section 203BK and further found that that sourcing was supported by the context provided by section 203BA, being the provision that specifies how functions are to be performed. We would add that there is support in section 203B(4), to which I will come in a moment.

But if your Honours turn up the rather succinct treatment of the point by the trial judge, appeal book page 18, paragraph 26 or line 30 on the page, prior to that, at paragraph 25 his Honour referred to the breadth of section 203BK, the ancillary power. Then at paragraph 26, line 30, his Honour draws support “as to the context”, his Honour says:

that a representative body is required by s 203BA(2) to perform its functions “in a manner that . . . maintains organisational structures and administrative processes” that promote the satisfactory and effective performance of its functions. Given the extent and complexity of those functions as outlined above, the administrative processes mentioned in these provisions support the conclusion that a representative body should be able to delegate some, or all, of those functions to, among others, a member of its staff.

As far as I can tell, your Honours, that proposition is not tackled by the Full Court. Their Honours’ reasoning, in rejecting reliance upon section 203BK, appears in the judgments of Justice Griffiths and White, appeal book 85, paragraphs 100 to 104 and then appeal book 94, paragraph 135(b) and Justice Mortimer, appeal book 98, paragraphs 145 to 146.

To paraphrase those passages their Honours took from the intersection of two provisions – and I will go to the text in a moment – section 203B(3) and section 203BK – their Honours took from that intersection that the provisions limit a body to obtain assistance in the performance of functions and indicate lack of a power or – I will perhaps put it differently – indicate an implication against delegation.

Perhaps I might take your Honours to one illustration - appeal book page 95 in the judgment of Justices Griffiths and White commencing at – first of all, your Honours might just note the bolding in this passage – the bolding of the words “performance”, “assist” and “delegate”. The bolding is used as a method of contradistinction. If I take your Honours to the punchline at line 13, in that sentence their Honours say “It” and “It” is section 203BK(2):

It does not permit the representative body to delegate the performance of its functions to its staff, any executive officer who is not a member of the Council of the representative body or to an external service provider.

Pausing there, might we say, with respect, that there is a crack in the reasoning when their Honours say – or have a proviso:

any executive officer who is not a member of the Council of the representative body –

That crack is illustrated by the materials I went to earlier that in this case the delegation is made not just to the Chief Executive Officer, it is made to the Chairperson of the Council and it is made to the Executive Council – a committee of its members.

Putting that crack to one side which I will return to later when I deal with the position of land councils in the scheme of the Act generally, may we say a few things about this reasoning on section 203B(3) and section 203BK. First, if your Honours go to section 203B(3), it provides, that subject to certain exceptions:

a representative body must not enter into an arrangement with another person under which the person is to perform the functions –

“Another person” is concerned with someone outside the body.  It is someone other than the representative body.  In terms of that passage at paragraph 135 of the Full Court’s judgment, we accept that 203B(3) is possibly an indication that delegation to an external service provider is not contemplated and that might be backed up by the terms of 203FD. 

However, what section 203B(3) does not simply deal with is the internal organisation of the body. The specific exceptions – I will not go to them – but those mentioned in section 203B(3), are examples of dealings with other outside persons. So, 203BB(5) is the section for briefing out representation; 203BD is an exception where there are two representative bodies to an overlapping area; and 203BK(3) is where the representative body seeks the assistance of the Native Title Tribunal. So…..section 203B(3) is not concerned with the internal organisation of the body. It does not cut down or limit the arrangements of the body for what section 203BA calls the organisational structures and administrative processes. I will come to that provision in a moment.

The second point we make about their Honours’ reasoning is their Honours are referring to section 203BK(2) – and perhaps if your Honours turn that up – which uses the word “assist”. Hence, their Honours say – or seek to draw some distinction between assisting the performance and doing the performance. Putting to one side what might be the thinness of that distinction, can we make this submission? Their Honours simply do not address the wider and more general power in section 203BK(1) of which subsection (2) is but a particular without limitation.

I do not need to say much about the language of subsection (1).  Commonwealth statutes are replete with provisions of that kind.  It is obviously an ancillary power to carry into effect what is enacted in the statute, that is, to enable the repository of the functions to have the necessary or convenient – and we emphasise “or convenient” – power to perform the functions that are prescribed by the Act.  Now, there are of course two provisos and one is that one cannot rely upon the section as a source of power to do something if that would depart from some positive provision of the Act or if that were to derogate from the essential scheme of the enactment. 

The cases are collected in the Full Court’s reasons by the venerable reasons by this Court in Palmer v Australian Electoral Commission 93 ALJR 947 in paragraphs [44] and [65], again more recently in Binsaris v Northern Territory [2020] HCA 22 at paragraph 100. Although I do not propose to go to any cases or read any case law, because this all depends on the statute, might we make the submission that the present matter, insofar as one looks for an analogy, is not unlike the situation in Ex parte Forster [1963] SR (NSW) 723 at 726 and 733, where the power of the university senate was expressed to be a power to:

act in such manner as appears to [the senate] to be best calculated to promote the purposes of the University”.

That was read as carrying with it power to delegate to committees and officers various tasks in the management of the university.

Now, contrary to the observation of the Full Court at paragraph 120, appeal book 90, we do not submit that 203BK is some freestanding source of a power to delegate.  We submit that 203BK attaches to the Act’s specification of how functions are to be performed as expressed by 203B(4) and 203BA.  Might I indicate that the word “attached” is the language of Justice Lockhart in Mercantile Mutual v ASIC 40 FCR 409 at 422 as quoted by the Full Court, appeal book 90, paragraph 119.

So that is our third point that we will come to now, is that the Full Court did not bring to bear in their analysis of section 203BK the effect of 203B(4) and 203BA in specifying the manner in which functions are to be performed.

That specification indicates that delegation provides a means to carry into effect what is enacted in the statute, incidental to its specific provisions, and certainly not any widening of statutory purpose and certainly not any breach of statutory limitation.

Could I ask your Honours to turn up section 203B(4) and again by way of marginal note, the structures of 203B and 203BA is slightly odd in that one might equally expect subsection (4) of 203B to be located within 203BA. I say that because I would ask your Honours to make another marginal note that 203B(4) and 203BA are modelled on the Aboriginal Land Rights Act, section 23AA.

GAGELER J:  Mr Glacken, while we are making marginal notes, I have made a marginal note that section 203BK(1) is modelled in part on section 27 of the Aboriginal Land Rights Act, which is followed ‑ ‑ ‑

MR GLACKEN:   That is so.

GAGELER J:   It is followed by section 28 of that Act.  Now, when we are comparing Acts and drawing analogies, what do we draw from that absence of an equivalent to section 28?

MR GLACKEN:   I think your Honour is going to hear from the Commonwealth about this.  I do not want to say too much, but the marginal note in the Aboriginal Land Rights Act, section 27 uses the expression “its functions”.  Sorry, your Honours, the Land Rights Act is in the authorities at tab 4.

Section 203B of the Native Title Act adds functions to a body when it is recognised. One can read section 27 of the Land Rights Act when it says “its functions” as including the functions now found in Part 11 of the Native Title Act. Section 28, in contrast, has a delegation provision that speaks of the function of the Land Council under this Act, being the Land Rights Act.

This gets back to your Honour’s original question:  that is, we submit that the presence of a constitutional power of delegation, saying in this case section 28 of the Land Rights Act, has no bearing on whether or not a function under the Native Title Act is delegable with respect to it, and we may have to withdraw something we put in writing – we will come to that later.

The situation might be different if there was a positive prohibition or limitation in a constitutional provision which spoke to limiting Part 11 Native Title Act functions.  That is the point we seek to make in paragraph 10 of the outline.  As I said at the outset, this case is not about the constitutional power of the representative body; it is about whether, as a matter of necessary implication that the Full Court held, this certification function is simply non‑delegable irrespective of the constitutional structural make‑up of the body concerned.

GAGELER J:   Is section 27 of the Aboriginal Land Rights Act a power of delegation?

MR GLACKEN: Yes, other than for what may be covered by section 28. Now, can I return, having made those marginal notes, to the importance of section 203B(4) and 203BA of the Native Title Act and their relationship to the ancillary power found in 203BK, which again is the same answer I gave to Justice Gageler – section…..of the Land Rights Act would provide a power of delegation absent any other contrary indication or provision.

We submit, your Honours, that if you look at the text of section 203B(4), which requires a body to determine its priority to performing functions to allocate resources in order to perform its functions efficiently. But the provision bespeaks of internal distribution of powers and responsibilities and if delegation is a means by which those priorities and resources may be determined and allocated, then ‑ ‑ ‑

EDELMAN J:   Mr Glacken, not necessarily.  It is one thing to say that internal members, a CEO, staff members can perform various functions as the representative body and act as the representative body; it is another thing, a separate thing, to say that the individuals can perform the functions as a delegate on their own behalf.  The internal organisation point that (4) goes to is quite consistent, is it not, with the power being non‑delegable, but may be performed by an agent?

MR GLACKEN:   Your Honour, there is a minor – or not so minor premise, in the second part of your Honour’s question, that a delegate performs a function on his or her own behalf and not on behalf of the body.  That consequence of a distinction between a delegate and agent has been modified by the Acts Interpretation Act, section 34AB(1)(c).  It is a point I was going to get to when it comes to the remitttal of the matter because the Full Court was critical of the way in which our certificate was expressed.

It also picks up the point that I made earlier, your Honours, that we are critical, with respect, of the Full Court’s…..of the body itself in a context where their Honours seem to be suggesting that certification by a chief executive officer, akin to the managing director, is somehow certification by someone alien to the body, an outside body.

Now, that aside, the point we make would be the words such as determine priorities, allocate resources and perform efficiently and bespeak of the need for a body to look at its internal arrangements and to see what is the most efficient way of performance.  Delegation may or may not be the most efficient way, and this intersects – and I will come to it in a moment – with what is known as the recognition criteria by the Minister, so it is the Minister who looks at how the body has performed and what the structures are.

The next provision, 203BA, has two components.  Subsection (1) requires performance in a timely manner.  We give an example in our written submissions of a time limit where a body needs to certify a native title claim within three or four months of a certain event occurring.  It has to comply with those time limits.  Again, we say, that that implies a devolution of operational decision‑making so as to assist with timely performance.

In subsection (2), there are evaluative output measures – if I can put it that way – of how a body performs and the key words are:

organisational structures and administrative processes –

Again, we say that bespeaks of internal distribution of powers and responsibilities among the organisation – the words “structures” and “processes”.  Then, the outputs are to promote representation.  I went to 203BC at the core of how you represent the native title holder.  In small (b), there is an output of promoting:

effective consultation –

Again, 203BC is a core example of that.  If we drill down a little further, paragraph (c) is then a requirement:

that the structures and processes operate in a fair manner –

having regard to particular things.  Some of those particular things are indicated, in our respectful submissions, that the body will perform its function by devolving operational decision‑making to senior management.  So, for example, roman (iii), that it has:

procedures for making decisions and for reviewing its decisions –

In other words, review up the line internally and there is a function for that in 203AI.  In roman (iv):

rules or requirements relating to the conduct of its executive officers –

Then, roman (v):

the nature of its management structures and management processes –

The points we make are these, your Honour, when it comes to 203BK attaching to 203B(4) and 203BA is the agreement…..indicates that functions are to be performed at the level of the governing body at the apex of the representative body as the council of members or board of directors.  From 203BA, particularly small (c), had positive indications to the contrary.

The points that I am seeking to make might be summarised in this practical way.  There will be cases where the governing body – the council of members or board of directors – may consider that it is appropriate for them to collectively perform a function – for example, a certification.  One might imagine a controversial or large project – a nuclear waste facility or a bauxite mine.  The government or proponent may want the transaction considered at that level.  But there may be other occasions where it is appropriate – bear in mind the words “efficient and timely”, the certification to be devolved and done at a lower level.

Of course, the existence and exercise of a power of devolution or delegation does not stop the apex from performing the function itself.  It retains that ability – see Acts Interpretation Act, section 34AB(1)(d).  Rather, the Act contemplates a matter of some flexibility when determining priorities and allocating resources for the efficient and timely performance of functions.

And we would submit these purposes of representation and consultation are not necessarily promoted if decision‑making is centralised at the apex if constituents who may be in remote areas removed from that central power and we deal with this in detail at paragraph 11 of the outline.

But the ultimate check, your Honours, to the workability of the scheme and a body’s particular structures and processes is expressed in the enactment by the ministerial power to assess the adequacy of a body’s performance in effectuating these purposes upon the performance, representation and consultation with the Minister’s power to decide upon recognition by reference to that very performance criteria – see section 203AI, section 203AD and 203AH.

In other words, the Minister from time to time comes to examine the organisational structures and administrative processes of the representative body and makes an assessment as to whether those structures and processes are regionally effectuating the desired purposes in 203BA.  And we submit in that scheme 203BK readily attaches and implicit in 203BK is an ability to devolve operation decision‑making should that be considered necessary or convenient to the effectuation of those purposes, being the performance recognition criteria.

Your Honours, that is what I see is the crux or the nub of the matter. I then come to dealing with the contextual confirmatory matters. That is in our outline paragraphs 8 and 10. Now, these points that we make are really contextual or confirmatory of our central point. The power to delegate, as recognised by the trial judge, can be sourced from 203BK as necessary or convenient as ancillary to the manner in which functions are to be performed as required by section 203B(4) and 203BA.

Our outline at paragraph 8 lists several indicators that functions will be performed by management under the direction of the governing body, and the interveners make similar points so what I would like to do is perhaps just focus on two particular provisions ‑ section 203FD and 203FH.  But before going to those could I draw your Honours’ attention to the key definitions in section 201A.  Could I start with the definition of “governing body” which means:

the group of persons (by whatever name called) who are responsible for the executive decisions of the representative body.

May we emphasise two points.  One is that the key word is “responsible” ‑ they are at the apex ‑ and we submit delegation is not a parting of responsibility in any way.  The second key aspect that they are responsible for the executive decisions.  It does not say they make the executive decisions.  Rather, what we then find is a definition of an “executive officer” who is someone that is either “a director of the representative body”, and “director” is defined as “a member of the governing body”, or importantly:

any other person who is concerned in, or takes part in, the management of the representative body at a senior level –

The reference escapes memory, but the Full Court mentioned that there is no doubt that the Chief Executive Officer of the Northern Land Council meets the description of an executive officer.  Now, these definitions will sound familiar.  They are common to corporations and public governance legislation, reflecting generic corporate structures of members and directors at the apex of an organisation with operational decision‑making being devolved to executive officers. 

The Commonwealth will take you or refer you to the Public Governance Act (Cth) which deals with these sorts of duties that are imposed borrowed from corporations legislation.  These sorts of definitions were examined by the Court recently in ASIC v King (2020) 94 ALJR 293 and in particular some discussion of the background at paragraphs 93 to 94, but a proposition that operational decision‑making is devolved to executive officers who, like directors, are subject to statutory duties in their performance.

May we then take the two key examples.  The first is section 203FD and it confers an immunity on suit upon both – and the key expression is:

An executive officer or a member of a representative body is not personally liable –

reading on, the thing done – reading on towards the last two lines:

in connection with the performance of the representative body’s functions or the exercise of its powers.

That provision uses the expression “a member of the body”, something wider than a director of a body.  It might be a non‑executive member, if you like, or here it is appropriate to capture the members of – or council of the Northern Land Council  What we take from that, your Honours, is that the section contemplates that in connection with the performance of a body’s functions there will be two groups of persons engaged:  one, an executive officer, being a director or senior manager; and two, a member of the representative body. 

So, in other words, functions might be performed by either suite of persons.  There is no reason to suppose that functions are not being performed by the suite of persons with the description “executive officers”.  That, read with 203B(3) is the reason why we say we do not extend our case to delegation to outsiders, if I can put it that way. 

The second key provision, 203FH, which is slightly broader with a suite of persons because it refers to directors, employees and agents - if your Honours turn up that section.  One starts with a very large statement in subsection (1) that:

If, for the purposes of this Part, it is necessary to establish the state of mind of a body corporate –

and the provision reads on with attribution. So, crafted in wide terms, it is not confined to criminal liability although it does that as well and it is literally for the purposes of Part 11. Your Honours might note the only offence provision in Part 11 is 203DG(4) and (7) and 203FG. Section 8A(2) applies the attribution provisions of this Act rather than those found in the Criminal Code.  Then, again, in subsection (2) there is a deeming provision that:

Any conduct engaged in on behalf of a body corporate by a director, employee or agent . . . is taken, for the purposes of this Part, to have been engaged in also by the body corporate –

So it is much wider than some of the attribution provisions we find in other Commonwealth statutes and this, I think, answers the original question by Justice Edelman, the significance of which provision it is, at least, in our case, plain that the Act contemplates that the action and opinion of the workers in this body will be the action and opinion of an authorised director, employee or agent. 

When it comes to dovetailing the certification function, could I take your Honour to subsection (6).  There is a definition of “state of mind” to include an “opinion” in paragraph (a).  So, that neatly picks up section 203BE(2) and (5).  There is then in paragraph (b) an extension of the definition of “state of mind” to person’s reasons for the opinion.  That neatly picks up section 203BE(4) and (6).  As I said earlier, this provision fits hand in glove with the opinion aspect of 203BE. 

The last observation I want to make about 203FH comes from subsection (7) that there is an extended definition of “director” to include a constituent member of the body.  So, what aligns with 203FD is that the suite of persons taking action on behalf of a body will be the members/directors and the executive officer.  So, there is some alignment between 203FD and FH by reason of subsection (7) of FH.

So the effect of 203FH is that the mind and conduct of a body corporate will be that of its authorised directors, employees, or agents.  That may, Justice Edelman, provide another reason for not taking a binary approach in these matters when it comes to the construction of the statute.

May I then, finally on this aspect, say something briefly about the other Full Court decision in McGlade v South West Aboriginal Land Corporation (2019) 251 FCR 172. I will not go to it, but your Honours will see in due course at paragraph 334 that other Full Court placed emphasis on the circumstance that the representative body in that case had a constitutional power of delegation under section 274 of the Corporations (Aboriginal and Torres Strait Islander) Act and distinguished this decision in Quall and the decision of the Northern Land Council on the footing that section 28 of the original Land Rights Act had no application - at least that was the way it was put in the Full Court.

May we say that that approach and that distinction is unsatisfactory for a few reasons.  Most of it is…..  The first is that the matter of delegability, if there be such a word, turns upon construction of the Native Title Act conferring the function, see, for example, Dainford (1985) 155 CLR 342 at 356, not whether the particularly repository of a function had a constitutional power of delegation, that can only become relevant to the question of whether there has been an effective act of delegation, not whether the function is delegable.

The second point we make is an eligible body of that kind in McGlade, found within 201B(1)(a) and (ba), an ordinary corporation might or might not have a constitutional power to delegate. It all depends on its particular constitution so it is unsatisfactory to ground the workings of a Native Title Act on a possibly gratuitous circumstance of the constitutional composition of the particular body concerned.

The third point we make is that those other delegation provisions, particularly found in corporations laws, enable delegation not to just a director or employee of the corporation, but rather to “any other person”, that is, someone outside the corporation, and we submit there are several indications in the Native Title Act, like 203B(3), 203BA, and 203FD that are consistent with delegation to a director or executive officer, but perhaps not consistent with delegation to “any other person” as permitted by those corporation law provisions. 

The fourth point we would make is that the Native Title Act takes an eligible body as it finds it with its existing governance structures.  A body might even have a restriction on powers to delegate, but that will only be relevant, and this gets back to Justice Gageler’s question, if it is a restriction on delegation of the Native Title Act Part 11 functions.

But what presently matters is that the Native Title Act does not cut down the way in which a body may act and the way in which it may be structured and, really, perhaps this is our fifth point, it is somewhat peculiar to take a land council out of the equation…..the Native Title Act, to which I have already referred, are modelled on the corresponding provisions of the Land Rights Act.

The extrinsic material to which the Northern Territory refers clearly identified land councils as representative bodies exemplar and Parliament can rightly be taken to have known of the organisational structures and administrative processes of the land councils expressed by the Land Rights Act enacted by the same Parliament. 

To give that point some factual colour the subject matter of this proceeding involves the 2016 Kenbi Indigenous Land Use Agreement, certified for registration under the hand of the CEO.  That followed the outcome of what is known as the Kenbi traditional land claim, made under the Aboriginal Land Rights Act, a matter which received the attention of this Court over the years, for example, R v Toohey; Ex parte Northern Land Council 151 CLR 170 and Attorney‑General (NT) v Kearney 158 CLR 500.

The point we make is that it is the culmination of the work of the Land Council under both sets of legislation, and it would be somewhat incongruous that the position of the Land Council could be carved out and treated differently to the position of other representative bodies within Part 11 of the Native Title Act given, as I say, the history of the provisions with the Land Council being a representative body exemplar. 

That then leads to our final…..in our outline at paragraph 11.  The Full Court reasoned that somehow certification occurring at the apex of the body better addressed the accountability and transparency of a representative body.  Justices Griffiths and White used the expression the “prism of accountability and transparency” at appeal book 94, line 19, paragraph 134.

Now, again we say the Act has several measures of accountability that made plain that certification by a representative body or by a delegate of the representative body is not the end of the road, so to speak. There are layers upon layers of accountability and these statutory checks weigh against a conclusion that functions, including certification function, cannot be performed by an executive officer and these…..also reveal, with respect, that the Full Court view of what makes a recognised Part 11 body “representative” is somewhat mistaken. It does not turn on a body’s composition but rather it turns on what the body does or, as 203BA puts it, “how” it performs its functions.

Now, we list these checks in our outline at paragraph 11, if I might just indicate, with some reform.  First of all, we will find that native title parties can seek internal review of decisions of a representative body at section 203BI.  So hence it contemplates decisions being made at a lower level and then raising to the apex upon review.

Secondly, I have already mentioned there is merits review of certification where it is the registrar’s opinion that found the registration.  Thirdly, there is external review of the performance of the integrated facilitation functions – see section 203FB.  Finally – and this is the point I want to dwell upon – there is ministerial recognition of the body that takes into account its timely performance, satisfactory representation and effective consultation. 

If your Honours turn to section 203AI – this is a provision which sets out the matters to which the Commonwealth Minister should have regard when deciding whether or not to recognise a body.  The power of recognition is 203AD or, the power to withdraw recognition, found in 203AH(2).  The Minister is to have regard to whether:

the body will comply with, or is complying with, section 203BA (which deals with how functions of representative bodies are to be performed).

The point we take from this, your Honours, is that these purposes of the body’s performance – that is, timely performance, satisfactory representation and effective consultation – it is its purposes and the effectuation of those purposes rather than the constitutional composition of a body that gives the defining representative character.  One can simply illustrate that by the circumstance that a body that has no indigeneity, such as a normal Corporations Act body can be recognised.

The ultimate check lies in the Minister’s power of recognition.  The Minister may address the performance recognition criteria in section 203AB by looking at the body’s “organisational structures and administrative processes” - had to include consideration of internal arrangements and the Minister may form a view as to whether or not those internal arrangements promote satisfactory performance. 

Now, it is in that manner that…..one looks at the representative character of the body and how one measures its representative character.  That all comes back, I think, to the centrality of 203B(4) and 203BA, as to how a body should perform its function – which, in our submission bespeaks of a need for examining its internal arrangements which contemplate a devolution of operational decision‑making in order to be efficient and to be timely and to act fairly. 

They are our submissions, your Honour.  The only final point I wish to make is about the performance certificate and the remittal.  The Full Court was critical of the performance certificate because it is expressed to be in the name of the Land Council rather than in the name of the CEO. 

I see from the outlines that the Northern Territory will address the point.  I just wish to make the observation that the consequence of that distinction between delegate and agent has been done away with by the Acts Interpretation Act 34AB.  Their Honours did not consider the significance of that when their Honours at paragraph 138 were critical of the form of certificate and what we take from that is that remittal would in no way be inutile.  If your Honours please, I see the time.  They are my submissions.

GAGELER J:   Mr Glacken, what has happened to paragraphs 56 to 58 of your written submissions?

MR GLACKEN:   This is dealing with section 28 of the Land Rights Act?

GAGELER J:   Yes.

MR GLACKEN:   That, your Honour, is ultimately a fallback.  On reflection, we find that the proper sourcing of power lies in 203BK of the Native Title Act or, if necessary, section 27 of the Aboriginal Land Rights Act which speaks of its functions simpliciter, not its functions under this Act.  I do not want to elaborate that fallback position that one can read, if necessary, section 28’s expression to this Act, the Land Rights Act, to mean that Act as amended from time to time, including implied amendment.  I am using the line of cases of Kartinyeri and, from memory, Wurridjal.  It came up in Wurridjal as well.  We give the citation in the written submissions.  In my respectful submission, your Honour, we do not get to that final fallback.

GAGELER J:   Just a follow‑up question, would it be your submission that McGlade was wrongly decided?

MR GLACKEN:   Only to the extent it makes that distinction at paragraphs 334 and 335.  There are parts of McGlade that we submit are to be commended – paragraphs 330 to 333, from memory, where their Honours appreciate the significance of section 203FH.  We simply say that one perhaps should not read the exercise of whether or not the function is delegable to depend upon the constitutional composition of the body. 

The constitutional composition in respect of that will be relevant to whether that particular body can or cannot delegate having regard to its own restrictions.  But what we are presently concerned with, which was the point made squarely by the Full Court in Quall is whether or not the Native Title Act evinces an intention of that anterior point that it cannot be delegated.  Might I say, with respect, McGlade somewhat, if you like, sidesteps what Quall confronted. 

KIEFEL CJ:   Yes, thank you, Mr Glacken.  Ms Kidson.

MS KIDSON:   Thank you, your Honour.  The Court should have the Territory’s oral outline.

KIEFEL CJ:   Yes.

MS KIDSON: We agree with the submissions of my friend, Mr Glacken, in relation to…..the fact that the declaration made in this case by the Full Court was in terms of the first appellant not having power to delegate, the finding of the Full Court which underpinned that declaration was that as a matter of statutory construction the certification function in section 203BE(1)(b) of the Native Title Act is a non‑delegable function. 

The legal principles that the Full Court considered to be relevant to that construction question are set out in the judgment starting from paragraph 41.  Mr Glacken drew the Court’s attention to paragraph 3 of the Full Court’s judgment of Justice Griffith and Justice White where their Honours drew on the writings of Professor John Willis for the principle that there is a presumption that the person named…..is the repository of a power because that person has some aptitude peculiar to himself or herself, and that requires – or there is presumed intention that the exercise of the powers would be done with the use of that peculiar aptitude and would not be entrusted to someone who was less apt to exercise the power. 

Now, one can see that language of peculiar aptitude reflected in the Full Court’s construction of the certification function, which is, in my submission, grounded in the proposition that, at least in the case of representative bodies that are land councils under the ALRA, the members of the Council have a particular aptitude to perform the bodies, roles and functions because they are Aboriginal people who have been elected by Aboriginal people living in the Land Council’s area.

One can see that in the Full Court’s reasons at paragraph 130, appeal book page 93, whereas the Full Court distinguished the position of staff employed by Land Council about whom the ALRA is silent and therefore there is no statutory requirement that any staff employed by ALRA, including the Chief Executive Officer, must be Aboriginal persons, such that the possibility remained or was alive that a chief executive officer of a land council may not be an Aboriginal person.  That is found in the Full Court’s judgment at paragraph 68, appeal book page 72.

As we read them, the respondent’s written submissions embrace that proposition and take it somewhat further.  We understand that they are really taking it to two different places:  one, they say that the value of the representative body’s opinion and why the certification function should be construed as having to be exercised by the body as a body, lies in the representative character of the body in terms of its composition, and because of that, that its decisions will be representative of the views of all interested Aboriginal persons.

They say that the benefit of that representativeness is diminished, either as a power to delegate to staff who may or may not have a traditional connection with the community who the body represents.  You will find that in the respondent’s submissions at paragraphs 32, 35 and 45 to 47.

In another respect and to the same tenor, they say that even where the aspect of the certification function is evaluating what they call procedural information, which we understand to be information about how a particular authorisation process, for example, was actually undertaken, even that evaluation should be undertaken by persons who themselves engage in processes of ascertaining identity and authorising and who share the laws and customs of the relevant native title holding community.  That is in the respondent’s submissions at paragraphs 30 to31 and 47.

So, in a way, taking what we understand to be the underlying proposition from the Full Court’s judgment and seeking to strengthen it as to very much that the – Act is construed in a way that the certification functions at least must be performed by people who are members of the community, or the native title holding group, about whom these decisions are being made.

So, we say that in each case that the construction found by the Full Court and the basis upon which the respondents seek to uphold it depend at least in part upon an ability to discern a legislative intention that the opinions which condition performance of the certification functions are only to be formed by a collective body whose composition is representative of the native title holders or other Aboriginal people in the area in question.

Now, the appellant’s submissions in reply at paragraphs 3 to 13 set out numerous reasons why legislative intention to that effect cannot be found in the Native Title Act and the Territory agrees with and adopts those submissions.  What we seek to add is that, in our submission, the Court should not impute an intention of that kind because historically the criteria for recognition of a representative body in the Native Title Act did contain a requirement for representativeness and Parliament deliberately chose to remove that requirement. 

Now, we have provided a supplementary bundle to the Court yesterday.  I am hoping your Honours have it.  It is a bundle which really just contains previous versions of the relevant eligibility criteria for representative bodies at the time of the enactment of the Native Title Act after the 1990 amendments and after the 2007 amendments. 

Could I ask your Honours to go to page 5 of the supplementary bundle?  This is the Native Title Act as originally enacted in 1993. Part 11 at that time consisted of just two sections, section 202 and section 203. Section 202 provided for what was then called “determination representative bodies” - it is now called “recognition” - and it also prescribed the functions that could be performed by such bodies and those functions are set out in subsection (4) over the page.

In looking at the legislative history of these provisions the Full Court noted the extremely limited scope of the functions that were originally conferred on a representative body.  In my submission, that reflects the scheme of the Act at the time which when enacted did not contain any requirements for native title applications to be authorised.  They did not even require them to be bought on behalf of the native title claim group.  Claims could be brought by individuals and there was no such creature as an indigenous land use agreement at that time. 

There was a more limited provision for agreements with governments under what was then section 21 but no requirement again for authorisation, notwithstanding that there was a provision for those to be regional agreements.  There was no provision made for how those regional agreements would actually have authority or bind anybody.  So, it was a considerably – in one way, an extremely complex scheme still but in this respect in terms of what a representative body did it was a much simpler scheme.  Now section 202.(1) provided for the Minister to:

determine that a body is a representative Aboriginal/Torres Strait Islander body for an area specified in the determination.

There was no prescription in the Act at that time regarding the kinds of bodies that were eligible to be made the subject of the determination.  The eligibility criteria, in their totality, appear at subsection (3), and there were three, the first one of which, in subparagraph (a) is one that I foreshadowed:

the body is broadly representative of the Aboriginal peoples or Torres Strait Islanders in the area –

We would accept that that statutory language is at least capable of being understood as being directed to the composition – the composition of the body itself – and requiring the composition of the body to have a representative character and to reflect, perhaps, a subset of the persons whom the representative body was to assist and represent.

The second and third criteria were directed to the body being able to demonstrate to the satisfaction of the Minister, satisfactory performance with their existing functions and that they will satisfactorily perform proposed functions being the functions in subsection (4).  So, extremely minimal criteria, in our submission, no doubt reflecting the limited functions of a representative body at that time. 

Nevertheless, had the criterion in subsection (3)(a) been retained, then it might have provided some foundation or some foothold for the approach taken by the Full Court and contended for by the respondents, although that in itself would not necessarily answer the question of delegation and agency.

However, it was not retained. The legislative developments from 1998 onwards are described in the Full Court’s reasons from paragraphs 85 to….appeal book 77….. Those passages rehearse a major overhaul of Part 11 which, of course, corresponded with a major overhaul of the NativeTitle Act and the introduction of requirements for authorisation, claim groups, claims being brought only by native title claim groups, the introduction of indigenous land use agreements and the provisions allowing for those land use agreements to bind anyone who held native title and a significantly expanded role for the Native Title Registrar in relation to all of these things. 

That included new eligibility criteria being imposed and being imposed upon all existing representative bodies.  They had to reapply and be recognised under the new criteria, albeit there was a transitional period which ended up being quite long to enable that to occur.

The supplementary bundle contains, as I have said, the eligibility criteria at each of those critical junctures as enacted in 1998, as enacted in 2007.  I do not propose to traverse them and Mr Glacken has already taken you to the current criteria.  I did, though, just want to make a couple of observations by reference to, as they were introduced in 1998. 

If I could ask the Court to turn to page 9 of the supplementary bundle.  So there was the introduction with the new section 201B of this notion of “Eligible bodies” which had never been there before.  All, even at that time, were body corporates, albeit constituted under other laws, and that has continued to be the case – the Native Title Act never constitutes a body.  It only ever takes existing bodies constituted under some other legislative framework and recognises them as a representative body.

So the first body corporate incorporated under the Aboriginal Councils and Associations Act, that is the precursor for what has now become the Corporations (Aboriginal and Torres Strait Islander) Act.  And it should be noted that you immediately, even though with corporations under that Act, and indeed under the CATSI Act today, although there are requirements for at least some members and some directors to be Aboriginal or Torres Strait Islander persons, there is not a requirement for all of them to be, depending upon the level of membership and number of directors, generally there has to be a majority, but not necessarily all.

And certainly, even where there are requirements for aboriginality, there is no geographical requirement, so unlike the Land Council, where they are people who are representing a particular area, with a corporation formed under the Aboriginal Councils and Associations Act, or a CATSI corporation, there is no geographical criteria.

Now, it may well be, as a matter of fact, for a particular area, if a corporation is formed under one of the legislations for the purpose of seeking recognition of the representative body, then they will be as a fact in that case, the directors will be Aboriginal persons from the area, and members may be from that area, but that is a question of fact in a particular circumstance of the case to bear on the construction of what the Native Title Act requires or assumes.

So there is also, then, existing representative bodies, but only if they are a body corporate, and then a body corporate established by or under a law of the Commonwealth or a State or a Territory.  So in 1998, there had not yet been an explicit inclusion of a company under the Corporations Act, although that subparagraph (c) would enable some flexibility for that to occur if it was appropriate.  It was the 2007 amendments that brought in specifically, then, a company under the Corporations Act, and again, with no requirements in the constituting legislation in relation to aboriginality or otherwise.

So, certainly in terms of the nature of the bodies that could be eligible bodies, no requirements were or had ever been since the amendments imposed by the Native Title Act itself in relation to membership or composition.  Now, at page 11 of the bundle is the new section 203AD, which provides the process for recognition and what the Minister has to be satisfied about.  And subsection (1) subparagraphs (a) and (b) became criteria about being able to satisfactorily represent the people who hold native title in the area, and to do that, particularly by way of consultation with the people of the area.

They are not criteria that are directed to the composition of the representative body, they are directed to the ability of the body to represent the interests of the native title holders in that area.  Now, those particular criteria in paragraphs (a) and (b) were subsequently moved so that they were no longer criteria that the Minister had to be satisfied about, they were shifted to become matters the Minister had to take into account, but they no longer formed part of the recognition criteria themselves, although they are still reflected in the scheme.

The third and last section that was introduced in relation to eligibility is on page 12 of the bundle, and that is 203AI.  And again in subsection (1), the matters that the Minister ‑ these are matters the Minister must have regard to, have to have regard to whether the representative body will satisfactorily represent native title holders, and that is done primarily by reference to whether the body’s organisational structures and administrative processes were operated in a fair manner, and the criteria for assessing fairness are in subsection (2).

Now again what we emphasise is that, in assessing whether the structures and processes are fair, it is in subparagraphs (a) and (b) that one finds a reference to people external to the organisation and it is in relation to an evolvement of the opportunities for the Aboriginal people, the Torres Strait Islanders, for whom the body might act.

It is the not dealing with them as people who are part of the composition of the body itself; it is people for whom the body might act and what opportunities for them to participate in the processes of the body and then similarly in paragraph (b) you have that level of consultation with those persons.  Then a distinction, we would say, is drawn with the matters dealt with in subparagraphs (c), (d) and (e), which are directed to the internal operation of the body itself, and that is where one finds procedures for decision‑making and for reviewing. 

So we say that when the Act talks about the evolvement of the native title holders who the representative body represents in the processes of the organisation, it is not talking about involvement in internal decision‑making processes.  One can see many processes where the body, for example, engages in wide consultation to determine priorities, to determine strategic planning to ascertain needs where certainly the wider people for whom it is performing the function are more intended to benefit and would necessarily wish to see them involved in those processes but not in the interior decision‑making process.

Accountability is found, not exclusively, but again in subparagraph (f) by having to have procedures…..to the people who are represented.  I just wanted to draw your Honours’ attention just to two aspects of the explanatory memorandum in this regard, if your Honours go to the supplementary bundle at page 32.  About a third of the way down the page the heading is “How do these criteria compare with those under the current regime?”, paragraph 33.57.  So the point is made that the new criteria are seen as being more stringent than the test under the old section 202(3) and they are directed to “representing native title clients”.  You find that terminology throughout the explanatory memoranda.  It is native title clients of the body and consulting with local indigenous communities.

On the next page, page 33 of the supplementary bundle down the bottom of the page under the heading “How is fairness to be assessed?” in paragraph 33.65 again you see the distinction in that first dot point between how the:

body relates to its actual and potential native title clients –

versus in the second dot point:

the way in which [the body] makes its decisions and conducts its operations.

Then at paragraph 33.66 immediately below, this is where one finds the acknowledgement or understanding in the explanatory memorandum that the way the regime for representative bodies is now being set up by virtue of amendments is based on the recognition of what are existing bodies, all of which will have different functions that are already constituted under other legislation and they give, for example, that they might Land Councils or they might be Aboriginal Legal Services and that:

it would be impractical for the Native Title Act to prescribe particular structures and administrative processes for representative bodies ‑

given that multiplicity of legislative backgrounds and functions.   And they say that there will be a variety of different membership requirements amongst the bodies, a variety of different organisational structures and processes and that will all have historical reasons or reasons of the affiliations of the particular body.  And so the emphasis rather in the regime has been on the Minister looking at the interplay between structure and process within the body to see if it will produce fair outcomes for the people that the body is going to represent.

Now, that has been the essential structure of the eligibility criteria for representative bodies since 2000 because the transition period came to an end on 1 July 2000 and the new regime entirely took over.  And that is why the Territory submits there is no requirement under the Native Title Act for a representative body to itself be representative in its composition.  And that that is, importantly, the result of a deliberate choice made by the Parliament.

And so we say, as a consequence, to really emphasise that there may well be, and undoubtedly are, as a matter of fact, representative bodies who are representative in their composition of the people who they represent.  But when that occurs it is not because of the Native Title Act. And as a consequence, in our submission, there is no warrant for construing the certification or other functions in Part 11 as subject to a legislative intention that they are to be performed and only performed by a collective representedly constituted body.

If I could move quickly through some further points in our outline.  One relates to that another aspect of the contextual considerations as to whether the scheme requires a decision to be made solely, the certification functions to be performed solely by the representative body itself, in some form, as a body, is the role of the Native Title Registrar in effectively undertaking, particularly, the opinion formation in almost identical terms.  That is really dealt with in the Territory’s written submissions at paragraphs 29 to 32.

I really only want to make two points orally.  One is that there seems to be a suggestion in the respondent’s submissions at paragraph 33 that the occasions upon which the registrar would be required to exercise that function and form that opinion would be infrequent.  In our submission, that is really irrelevant.  The question is one of construction and the focus of the inquiry is on the nature and character of the opinion that the statute confers upon the registrar and the representative body so as to try to divine whether there is an intention about whether an opinion on the same subject matter is required to be made by a representative body personally.

In any event, we would say that there is no reason to intuit or infer that the occasions would be rare where one of the occasions is when objections are lodged to the registration of an indigenous land use agreement.  That is where the registrar effectively supersedes the certification of the representative body and forms his or her own view.

In that regard, we embrace the reasoning of the decision of the Full Court in Kemppi v Adani Mining Pty Ltd (No 2) (2019) 271 FCR 423. Could I ask your Honours to go to that, it is in volume 2 of the bundle of authorities, and to go to page 788, particularly paragraph 94. This case involved a multi‑pronged challenge to a decision of a registrar to register an indigenous land use agreement, and objections were made. Now, what we embrace in paragraph 94 is the Full Court’s discernment of legislative intention and characterisation of the function actually being performed by the registrar when an objection is lodged. And what they say is that:

The intention of the Parliament must have been to allow persons dissatisfied with, or adversely affected by, a certificate –

issued:

to have a merits review by the Registrar as to whether the two requirements in s 203BE(5)(a) and (b) –

which are the requirements for identification of all persons holding native title, for reasonable efforts made, an authorisation, whether they are in fact satisfied that an objector could exercise a statutory right to do that, and that:

That gave the objector an effective remedy in respect of the subject matter of a certification under s 203BE(1)(b), the result of which did not depend on the representative body’s opinion in the certificate.

The registrar decision effectively supersedes, and this is then formed independently, whether those requirements are met.

Without taking the Court to them, we would say we also embrace the reasoning in subsequent paragraphs 95 to 99 of the Full Court’s judgment regarding the status of the registrar’s function and the determinative nature of the registrar’s decision‑making power in the scheme ‑ really the point is that the certification by the representative body is not at all necessarily the end of the process of registration.

Your Honour, we were going to make the point about section 203FH. Really, we have dealt with it quite comprehensively in the written submissions. The only point I wanted to make, because it really feeds into the power under 203BK, is this. It is a rule of attribution that is expressed to apply to the purposes of Part 11 and, as Mr Glacken has taken you to, it includes the…..What we pointed out in our submissions is that in Part 11 the only provision which speaks of a representative body having an opinion is the certification functions in section 203BE. There is no other opinion of a representative body within Part 11.

What we draw from 203FH is that it operates on a statutory premise that directors, employees or agents of a body may form and hold opinions under Part 11. We accept that that in itself does not answer the question about whether the Act envisages them holding opinion as an agent or as a delegate. What we do say is that it is utterly inconsistent with a proposition that the Act envisages that only the body itself can form the opinion. Now, that really – and so it is inconsistent with any idea that the certification function in 203BE is non‑delegable per se.

EDELMAN J:   How would the body itself form its opinion other than through its agents?

MS KIDSON:   A corporate body can only act through human agency and what we understand really to be in contention in this proceeding is at what level of human agency a representative body is required to act under the Native Title Act.  Is it by way of resolution at a general meeting?  Is it a board of directors?  Is it by way of individual directors and through what source of power are they then making those decisions.

Perhaps if I could foreshadow coming to the issue of the scope of the power in 203BK.  One of the difficulties is that I think the cases acknowledge is there is often a lack of clarity between what has been talked about when talking about concepts of agency, delegation, implied delegation, alter ego, et cetera, and if one is talking about agency is one talking about an agent of a body corporate who is actually empowered to make in substance the decision or exercise the discretion notwithstanding that the decision may well be then attributed to being a decision of the body but, nevertheless, the body itself by way of its governing – governing body does not have to maintain control over the actual decision or function.  It is really a question of attribution or delegation where there is no need to even do the – make the decision or perform the function in the name of the body, the delegate, and perform the function in their own name.

And what makes it complicated in the scenario of the Native Title Act is that those two concepts then play out not only in circumstances where all representative bodies are body corporates but where they are also then provisions such as 34AB(1), which was in force at the time the Native Title Act was enacted, which effectively deems a function exercised by a delegate, and a true delegate, who is entitled to exercise it in their own name, but nevertheless deems it or attributes it to the delegator ‑ ‑ ‑

EDELMAN J:   That was what Mr Glacken also referred to, but that does not deem the delegate to have been the agent or does not deem the delegate to have been acting as the corporate body.  It is a provision which is designed to avoid liability of the corporate body for not having performed the act that is delegated.  In other words, the very premise of a provision like 34AB is that there is something fundamentally different between agents acting as the corporate body and a delegate acting for themselves but performing the function of the corporate body.

MS KIDSON:   Yes, I can accept that, your Honour.  I guess the point I am making is that they both, as we understand it, involve an element where the agent or the delegate effectively has the control over making the decision or performing the function as opposed to the notion of assistance being provided to the repository of a discretion or a power who can be assisted, who can receive analysis, who can receive advice, who can receive recommendations but, ultimately, who must make the substantive decision or exercise the substantive discretion.

So it is not even a question of attribution.  The repository of the power is in truth the decision‑maker as opposed to a Carltona‑type scenario where in fact the repository of the power does not even necessarily know that a decision has been made and there is considered to be, whether it is put as implied delegation or agency ‑ but there is effectively a control in someone other than the repository of the power to be able to make that decision.

Perhaps if I could put that in the context of what we say about section 203BK. Now, this is really addressed in the Territory’s written submissions at paragraphs 34 to 40 and perhaps this is where it comes together. The Full Court emphasised the absence of an express power of delegation for representative bodies under the Native Title Act and that is

found particularly in paragraph 135, so paragraph (a) of the Full Court’s judgment, page 94 of the appeal book. 

We say that the absence of an express power of delegation should not have the same relevance or significance that it has when what, for example, has been undertaken is a Carltona analysis which one undertakes because of the absence of an express power of delegation because there is in the Native Title Act the conferral of a broad necessary or convenient power, and so the question is what is the scope of that power.  Certainly as far as we can see from a review of the authorities, questions of an absence of a direct power of delegation do not really arise in relation to – or have not arisen in relation to ascertaining the scope of a necessary or convenient power. 

Similarly, in a Carltona‑type situation where there is considerable focus on the lack of an express power of delegation, I have not been able to find a case where there is though a necessary or convenient broad alternative power.  So it is either implied delegation or nothing, whereas here we have this power and this broad power.

And certainly what I ‑ it is analogous, not exactly the same, but the decision that Mr Glacken referred to, of Ex Parte Forster; Re University of Sydney, is a case where, although not a necessary or convenient power, nevertheless it was a broadly framed power to do all that must be done to effectively manage the university, and a power was given to a committee, a sub‑committee of the senate, and that was considered to be a power which was capable of supporting what was classified as a true delegation, because the committee was given power to make a decision and to act upon it without coming back to the senate body.  So it was true delegation, in a strict sense, and the broad power was found to support that.

KIEFEL CJ:   That might be a convenient time, Ms Kidson.

MS KIDSON:   Thank you, your Honour.

KIEFEL CJ:   The Court will now adjourn until 10.30 am tomorrow.

AT 4.21 THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 13 AUGUST 2020