Northern Land Council v Quall

In the case of Northern Land Council v Quall, the Northern Land Council (NLC) challenged the decision of the Federal Court to dismiss their appeal and allow the cross-appeal by the Northern Territory and the Attorney-General for the Northern Territory. The NLC argued that the Federal Court had erred in concluding that the NLC could not delegate its statutory function to certify an application for registration of an Indigenous Land Use Agreement (ILUA) under section 201BE(1)(b) of the Native Title Act 1993 (Cth). The primary issue before the court was whether the NLC could delegate the function of certifying an application for registration of an ILUA to its CEO. The court needed to determine the principles for determining whether a power or function is delegable and whether the certification function under section 201BE(1)(b) of the Native Title Act 1993 (Cth) was delegable.

The court held that the certification function under section 201BE(1)(b) of the Native Title Act 1993 (Cth) was not delegable. The court noted that the duty of the representative body is to promote and protect the broad community interests of Aboriginal people who hold or may hold native title, and not merely sectional interests. The court further held that the statutory powers conferred using the language of "necessary or convenient" are generally construed as conferring ancillary powers on a repository, in circumstances where there is a principal function or power (but often a function) whose performance and exercise might need to be supplemented or assisted. The court held that if that is the correct construction of section 203BK(1), then there is no basis to imply a power of delegation, because the nature of an implied power of delegation goes well beyond the ancillary. The court also held that the effect of delegation is to transfer the function to the delegate, and the representative body would no longer be responsible for performing the function.

The court dismissed the appeal and allowed the cross-appeal. The court further held that even if the fresh evidence were admitted as sought in the interlocutory application, an alternative instrument of delegation would be immaterial in providing a basis for the CEO’s action in performing the certification functions where there is no power to delegate in the first place. The court made declaratory orders along the lines of those sought in the notice of cross-appeal. The court noted that although the cross-appellants did not seek costs in the notice of cross-appeal, the respondents sought their costs in the appeal as well as below. The court ordered that there be no costs order in the proceedings in favour of or against the Northern Territory. The court directed the parties to seek to agree the terms of final orders which give effect to these reasons for judgment, as well as costs. If the parties were unable to agree, each should, within four weeks, file and serve an outline of written submissions not to exceed five pages in length in support of their individual position. The terms of the final orders would then be determined on the papers and without a further oral hearing.