Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks & Anor [2023] HCATrans 181 (12 December 2023)

Last Updated: 13 December 2023

[2023] HCATrans 181

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D3 of 2023

B e t w e e n -

CHIEF EXECUTIVE OFFICER, ABORIGINAL AREAS PROTECTION AUTHORITY

Appellant

and

DIRECTOR OF NATIONAL PARKS (ABN 13 051 694 963)

First Respondent

ATTORNEY‑GENERAL OF THE COMMONWEALTH

Second Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 DECEMBER 2023, AT 10.00 AM

Copyright in the High Court of Australia

____________________

MR J.T. GLEESON, SC: May it please the Court, I appear with MR S.H. HARTFORD DAVIS and MR L.S. PEATTIE, for the appellant. (instructed by Hutton McCarthy)

MR S.P. DONAGHUE, KC, Solicitor‑General of the Commonwealth of Australia: May it please your Honours, I appear with MR B.K. LIM and MS A.R. SAPIENZA, for the second respondent. (instructed by Australian Government Solicitor)

MR S.A. GLACKEN, KC: If the Court pleases, I appear with MR G.A. HILL, SC, for the Northern Land Council and the other Aboriginal parties, intervening by leave. (instructed by Northern Land Council)

GAGELER CJ: I note that there is a submitting appearance for the first respondent. Mr Gleeson.

MR GLEESON: Your Honours will see from our outline the order I propose to take, which is to say a few words about the facts but then come straight to our positive construction of the Northern Territory Sacred Sites Act. After that, I will deal in turn with the Attorney’s primary argument, which is that section 4 kills our case, and the Attorney’s alternative argument that the Full Court correctly applied Cain v Doyle.

Your Honours, the complaint is found in the core appeal book at page 5, and it is that the first respondent, which is a body corporate formed under a Commonwealth statute, carried out work contracting the Gunlom Falls walking track realignment on the Gunlom sacred site without the necessary certificate from either the Authority or the Minister, thereby constituting an offence under section 34 of the Northern Territory Aboriginal Sacred Sites Act 1989.

The statement of facts which emerges over the following pages tells, in paragraph 4, something of the nature of Gunlom as a sacred site and its long‑recognised cultural significance, including the presence of Aboriginal rock art on the escarpment which has been relevantly interfered with by this unlawful work. It is also a tourist destination – paragraph 5. You will see in paragraph 8 that from as early as 2018, the DNP – the first respondent – met traditional owners and was informed of the reasons why the realignment must respect the rock art.

There are two possible defences that are not before your Honours – your Honour Justice Gordon asked about this in special leave. One of them is a defence in the Local Court, not here – which, with respect, is hopeless – that the DNP did not know it was a sacred site. Paragraph 8 renders that defence hopeless. The second defence, not before you, is an alleged operational inconsistency, because the management plan, apparently, it is said, allowed destruction and desecration of sacred sites without going through the Northern Territory Act. That is also hopeless.

Returning to this document, you will see in the pages that follow, the detail I do not need to dwell on; the unhappy tale whereby, notwithstanding the DNP was informed and recognised that the work needed to respect the sacred site, it went ahead and did the work contrary to that recognition and never obtained the necessary approvals – that is at paragraph 25. In paragraph 27, part of the sacred nature of the site concerns its character as “sickness country”, which is explained in some of the materials.

In the Full Court’s judgment, page 39 of the book, paragraphs 8 to 12 accurately summarise that, subject to today’s point and the points supposedly reserved for the Local Court, the offence under section 34 is admitted. Could I take your Honours just to one other aspect of the facts, which is if you have the Northern Land Council’s book of further materials, filed on 26 July 2023, there is – using the numbering at the top, page 77.

GORDON J: That is volume 2, is it?

MR GLEESON: Volume 2. There are just some details about Kakadu which underpin the critical importance of this legislation being given its full reach in accordance with its ordinary language. At page 77, Kakadu covers some 19,810 square kilometres. It is a “cultural landscape” with evidence of practice dating back thousands of years, continuing to be observed by Bininj/Mungguy people, who are the custodians of the park today.

Page 78 gives us a little map of Kakadu. More specifically, at page 89, the blown‑up map will show you where Gunlom Falls are at the southern end of Kakadu. Page 91, paragraph 1.5, the park is under joint management between the Bininj/Mungguy people and the first respondent, pursuant to a lease. I dwell on that because one of the most obvious people who might come into contact with sacred sites and who needs to be bound by the Territory criminal law is, of course, the first respondent. If your Honours go to page 119, there is a statement of fact under the heading “Background”, that:

The stone country of Kakadu holds one of the world’s greatest concentrations of rock art sites: over 5,000 rock art sites have been recorded and –

potentially two or three times that number, ranging in age:

from 20,000 years to the recent present, constitute one of the longest historical records of any group of people in the world.

Perhaps finally in this document, at page 126, there is some important detail about the significance of “sickness country” to the Jawoyn people, underpinning the critical need for this legislation to be given its effect in accordance with its terms.

I said “finally”, but I probably should show your Honours, as it may come up in the argument, at pages 212, which is in part 3 – this is in the management plan – category 2, the third column, says that you have to get an “Authority Certificate” from the appellant under the Northern Territory Sacred Sites Act, where your action has a “potential impact upon a sacred site”, and there is the same in category 3. We submit that that is simply an indication in the management plan, which is a creature under the federal law, that the provisions of the Northern Territory Act are to be followed, including by the appellant. That apparently is the source of the first respondent’s – I said the appellant, I mean the first respondent – that apparently is the source of the first respondent’s operational inconsistency argument in the Local Court.

Can I come then to our positive construction argument and ask your Honours to have the Northern Territory Sacred Sites Act, section 34, which is page 662 of volume 2.

GORDON J: Before you come to that, do you at some point propose to take us to the Land Rights (Northern Territory) Act? It is fine if you propose to do that later.

MR GLEESON: No, I am happy to do that now, your Honour, because it is our next point, but it is a critical – I can do it now because it is an entry point of some very great significance in this case, and in fact, it probably answers the case. Your Honours have that in volume 1, and it is important for a number of reasons.

First of all, the Aboriginal Land Rights Act of 1976 was, as your Honours know, the statute whereby protection of inter alia sacred sites was first recognised in the law of Australia. It is an Act which has expanded over time, but in the form that it existed not only today but in 1989, when the Sacred Sites Act was passed. Could I draw attention to these features. Firstly, on page 40, in section 3B:

This Act binds the Crown in the right of the Commonwealth and of the Northern Territory.

Section 3B came into the Act in 1987, Act 40 of 1987. Then, over the page, at page 41, section 3D:

Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against this Act.

That was introduced by Act 112 of 2001, consistent with the Criminal Code coming in. The importance of that is that, as your Honours know, in Division 12.1 of the Criminal Code (Cth), any provision imposing an offence against a person includes a body corporate, and indicates how the body corporate will be penalised subject to contrary intention.

I can add to that that in 1987 – that is the year that section 3B came in – section 4B was introduced into the Crimes Act (Cth) by Act 20 of 1987. That had the same effect as section 3D of the ALRA Act. For that reason, from 1987, the Commonwealth Act protecting inter alia sacred sites bound the Crown under 3B, it extended its offences to all bodies corporate, as well as natural persons – that is under the predecessor division to 3D – and made a critical decision not to extend its offences to body politics.

Now, your Honours know under the Acts Interpretation Act (Cth), “person” since 1901 has been defined to include body politic, body corporate, and natural persons. The decision that was taken at Commonwealth level was not to extend criminal offences to body politics, but to extend them to all body corporates and natural persons. The reason that is important is, if your Honours go to section 69 of the ALRA Act, which is page 227, these are the two key provisions: 69 first and then 73 second. What section 69 does is create an offence:

A person shall not enter or remain on land in the Northern Territory that is a sacred site.

Penalty for the individual, X; for the body corporate, Y. Pausing there, as a matter of Commonwealth law, a criminal offence has been imposed on all natural persons and all bodies corporate that they shall not enter sacred sites, subject to the defences. Under section 69(2A), there is a defence if you are performing functions under this Act, but critically, there is a defence if you are performing a function under law of the Northern Territory.

What this starts to show are several things. Firstly, the reason that Cain v Doyle is so irrelevant to this appeal is that both the Commonwealth legislation I am now showing you and the Sacred Sites Act – which is in the same form, subject to section 4(2) – as part of the purposes of the Act, which were to protect these sacred sites, made a decision to impose the criminal law on all individuals and all body corporates. There is not the slightest suggestion in the Commonwealth Act that you then have to do some further disaggregation exercise and say, some body corporates are criminalised and others are not. The intention of the Commonwealth Act is to be comprehensive.

The second key feature I mentioned – the defence, where you are acting under a law of the Northern Territory – immediately shows the integrated nature of the ALRA with the Sacred Sites Act. In particular, if one asks the question when the first respondent, the DNP, enters the Gunlom sacred site, as he did through his contractor, how did he not commit an offence under section 69 of the federal law, the only way he avoids committing an offence is if he can show he has complied with the law of the Northern Territory. That is, obtained a lawful certificate under the Act, which, of course, he did not do.

That is one key feature, your Honours. The second is section 73, page 246. The reason this is so important – and this was in the original 1976 Act, albeit it referred to the “power of the Legislative Assembly” to make ordinances because it was prior to self‑government – 73(1)(a), relevantly, is in the same terms as enacted in 1989 and today. It gave power to the Legislative Assembly to make:

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

Always allowing for Aboriginal people to enter them. You see, there, the use of the term “persons” in 73(1)(a), and you will see the term in 73(1)(b):

authorizing the entry of persons on Aboriginal land –

Now, given the Commonwealth Interpretation Act definition of “persons”, that extends, at least, to bodies corporate and natural persons, and indeed would authorise laws extending to bodies politic if the Northern Territory chose to go that far. “Persons” in section 73 has the meaning – it is now section 2C of the Acts Interpretation Act, previously section 22.

To come to your Honour Justice Gordon’s question, a critical part of the Commonwealth decision was the power given to the Territory was to regulate and authorise the entry of all persons – natural persons, bodies corporate, bodies politic – onto the sacred sites in order that the scheme be effective. The only constraint is, at the end of subsection (1), that there is a concurrency constraint. When we come, as I now will, to the Sacred Sites Act, it is to be understood as being made in the context of this ample grant of power from the Commonwealth to protect these sites by a comprehensive scheme.

Can I then come back to section 34 of the Sacred Sites Act, which is on page 662, volume 2. I will deal first with the text of the provision, then I will move backwards and look at the context and the purpose, and then section 4. It says:

A person shall not carry out work on or use a sacred site.

So, that is a norm of conduct which immediately is backed by a criminal penalty for natural persons and bodies corporate. So, the penalty that has been specified is for natural persons and bodies corporate. No penalty is specified for bodies politic. Now, if your Honours understand that provision, perhaps keeping it open, in light of the Interpretation Act (NT), at page 595:

person includes a body politic and a body corporate.

And then section 24AA, at page 602:

In an Act, a reference to a person generally includes a reference to a body politic and a body corporate as well as an individual.

But then section 38B:

A provision of an Act relating to offences shall be read as referring to bodies corporate as well as to individuals.

So, the decision that has been made in the Territory, which is the identical decision to the Commonwealth’s decision under the 1976 Act, is that while in general, “person” includes the three categories of legal persons – body politic, body corporate, natural person – when it comes to the criminal law, the offences are committed by two of those categories of persons – bodies corporate, natural persons – but offences are not committed by bodies politic. So, that is the general provision across the whole of Territory criminal law. And then section 34 on page 662, perfectly consistently with that, imposes the criminal norm on all natural persons, all bodies corporate, and does not impose the criminal norm on bodies politic.

So, one of the many reasons Cain v Doyle is irrelevant to this appeal is that, to the extent Cain v Doyle was about the imposition of the criminal law upon the body politic, and in such circumstance required a high level of clarity of intention to impair the body politic in such fashion, the Northern Territory has not sought to bind the body politic in section 34, just the same as the Commonwealth has not sought to bind itself or the Northern Territory in section 69 in the ALRA Act.

GAGELER CJ: Mr Gleeson, is another way of reading section 34 that a person has the fully defined meaning, which would include a body politic, but that a body politic is not subject to criminal penalty?

MR GLEESON: Yes, I accept that. Yes.

GAGELER CJ: So, an injunction, for example, could be obtained?

MR GLEESON: An injunction probably could be obtained against any of the three categories of persons.

GORDON J: That is right. There is a distinction, though, between prohibition and exposure to criminal penalty; that is what we are asking.

MR GLEESON: Yes. So, if you got in in advance before the first respondent destroyed the sacred site, you could have got, most probably, an injunction against the contractor, against the employees, against the DNP as the person authorising the work, and probably an injunction against the Commonwealth, which was the very idea being contemplated in Bropho. I will come to that in a fraction more detail.

So, a way of reading the Act, I accept, your Honour – and perhaps a preferable way is to say, take the Territory at face value, “person” means all three categories of persons, but when it comes to exposure of the criminal law, two categories of persons are exposed, end of case. No further inquiry into the degree of connection the two categories of persons might have with a Crown.

GAGELER CJ: Whether you start with a common law presumption or not, you say you have a statutory definition?

MR GLEESON: Yes, yes. You have a statutory definition and you, in fact, have clarity and simplicity of language, using a drafting model which came from the Commonwealth. That is why I have said this Act is passed in 1989. It has followed exactly what happened in 1987 through the amendment of the ALRA Act. That is the reason why, your Honours, not only do you have clarity of language but of the many cases that have been cited to you, most of which, with respect, are wholly irrelevant to this issue.

The one case which is the closest to the construction of this statute – and if I could go to it immediately – is the obiter statement of two judges of this Court in Wurridjal 237 CLR 309, volume 6, tab 40. Wurridjal, of course, was about a lot of other things, but if your Honours have paragraphs 163 to 165 on page 380 to 381 of the CLR, 163 sets out the terms of section 69 of the Land Rights Act that I took you to earlier. This is the form that it took from – the form that you see in paragraph 163 follows the 2006 amendments, Act 93 of 2006.

What did that do? That overtook the old section 3D that I took you to, and gives a specific penalty for individuals and bodies corporate. It does not change the effect of the Act, because bodies corporate were already bound, as were individuals, but it puts the specific penalties in there. Your Honours could be forgiven for thinking section 69(1) in this form is functionally the same as section 34 of the Sacred Sites Act. In the context of that provision, Justices Gummow and Hayne at 164 refer to Cain v Doyle, and say it would require:

the clearest indication of legislative purpose to demonstrate that such a penal provision –

Their Honours there referring to the operation of 69(1) to impose the penalties:

attached to the Commonwealth as a body politic. There is no such indication.

We agree, because it was a penal provision, it was applied to individuals and bodies corporate, it is not applied to the body politic even though the Commonwealth, as a body politic, is a person. The next sentence in 165 is important:

However, with respect to officers of the Commonwealth and other parties the prohibition imposed by s 69 would apply.

Officers of the Commonwealth and other parties, we submit their Honours were simply saying: if you are an individual or a body corporate, it does not matter if you have any connection with the Crown, you are caught by 69(1).

BEECH‑JONES J: Mr Gleeson, so you restrict Cain v Doyle to the body politic in a narrow sense. Is that how you ‑ ‑ ‑

MR GLEESON: Yes. The way we do that – I will come to it on page 3 – is to say there is but one presumption, which is Bropho. Bropho is correctly explained by this Court in Tomaras, your Honour the Chief Justice, your Honour Justice Gordon, your Honour Justice Edelman. It is a single presumption. It applies where a law imposes a legal impairment upon the body politic or the Executive Government.

Beyond that, the force of the Bropho presumption depends on all the circumstances, one of which will be: is it a civil or a criminal norm; another will be: are you imposing a burden on the body politic, or on the Executive Government, or on a more remote creature? Another will be, then, at the stage of rebuttal, to look at the text, purpose and context of the law to see whether it attaches the necessary intention.

The short answer to your Honour Justice Beech‑Jones’ question is we would submit Cain v Doyle is now but an example of Bropho at one end. To get Cain v Doyle, you need criminal sanctions attached to the body politic. If you have criminal sanctions attached to a natural person or a body corporate, at most you will be in a flexible Bropho territory where the presumption may have a little to do or more to do, but does not have the Cain v Doyle elevated standard. We submit that while it is obiter, and while it is expressed in admirably compressed form, paragraphs 164 to 165 of Wurridjal on a statute in pari materia is the end of the Full Court’s judgment and the end of the Attorney’s defence of it.

EDELMAN J: What does the first sentence of paragraph 165 mean? If “officers of the Commonwealth” are acting in their capacity as officers of the Commonwealth, are they not acting as agents of the body politic?

MR GLEESON: They may well be. What the first sentence means is, if you are an individual – if you are a natural person – if you do the thing which is penalised by this law, you commit the crime irrespective of what connection you may have with any polity. One thing in this case – apparently, at least so far, the Attorney has not submitted that Ministers of the Crown fall outside section 34 of the Sacred Sites Act, or section 69 of the ALRA. In paragraph 51 of their submissions, they seem to say natural persons, whether they be officers of not, are amenable to criminal prosecution.

EDELMAN J: Would that then mean, on your approach, that whether one calls it the strong version of the Bropho presumption, or a Cain v Doyle presumption, that an officer of the Commonwealth acting as an agent of the body politic is not covered by that presumption?

MR GLEESON: Yes.

EDELMAN J: Why would the presumption extend to the body politic and not to the agents that execute the actions of the body politic?

MR GLEESON: Because you as a person, as a natural person, are bound by a general criminal norm of the land – you shall not drive over the speed limit, you shall not destroy sacred sites, and so on – and that is it. That is the end of the equation. However, your Honour, if your Honour says, but body politic – let us, for logical reasons, say, therefore the Minister must also enjoy some Cain v Doyle – what this passage is saying is, it is immediately rebutted by language of this type of general application.

That when the statute says, if you are an individual you can go to jail for 12 months for destroying a sacred site, it is saying exactly what it says. What that then means is that the Crown may be bound, the body politic may be bound as the person, but the criminal law is enforced only against the legal person of the individual or the body corporate.

GLEESON J: Does your case involve two steps or only one? Is it the status of the Director as a body corporate is sufficient without more, on your interpretation of the Sacred Sites Act, but then there is a fallback, bootstraps argument, if you like, that it is also the nature of the functions of this particular body corporate and its relationship with the Commonwealth that affirms the application of the Sacred Sites Act to the Director?

MR GLEESON: Yes, I think that is a fair characterisation, your Honour, of what we are saying, that on the fallback case, the moment you start opening the Land Rights Act, which shows you how it was always intended, this creature, this Director, would be the subject of these norms, and then when you open the EPBC Act and you find the intensive degree of the regulation of the Director, including the Director being exposed to Commonwealth criminal norms to which the Commonwealth itself is not exposed, all of that is telling you that at least this creature, the Director, was always the subject to the Sacred Sites Act.

I will be dealing with that aspect as our last point, your Honours. Further, to answer your Honour Justice Edelman, if I could ask the Court to go to Residential Tenancies 190 CLR 410, volume 5, tab 33, at page 428 of the CLR, in the judgment of Chief Justice Brennan, his Honour said at point ‑ ‑ ‑

STEWARD J: Sorry, what page is that, Mr Gleeson?

MR GLEESON: Page 428, his Honour said at point 3, following Clough v Leahy:

absent Commonwealth statutory authority, the Crown in the right of the Commonwealth cannot authorise its servants or agents to perform their functions in contravention of the criminal laws of a State –

we would say Territory:

and cannot confer immunity upon them if, in performing those functions, they contravene those laws.

Your Honours, can I then return to the Sacred Sites Act. I have taken you to section 34, and the defence provision under subsection (2) is made out if the work is carried out:

in accordance with . . . an Authority Certificate or a Minister’s Certificate permitting the defendant to do so.

Immediately, to understand the complete criminal norm, one goes to the provisions for Authority Certificates and Minister Certificates, and can I dwell on those for one moment. In section 19B:

A person who proposes to use or carry out work on land may apply to the Authority, in a form approved by the Authority, for an Authority Certificate.

Your Honours, “person” there is used in the full Interpretation Act sense. The Commonwealth, as a body politic, could apply for a certificate, the DNP certainly can apply for a certificate, individuals can apply for a certificate. Section 19F indicates that a critical step of the process is for the Authority to:

consult with the custodians of sacred sites –

who:

are likely to be affected by the proposed use or work.

So, we start to see the comprehensive and uniform nature of the scheme in order to protect the sacred sites. You may apply for the certificate, the custodians then will be consulted, and section 22 allows the Authority to grant the certificate in either of two circumstances. One is no:

substantive risk of damage to or interference with a sacred site –

And, alternatively, if the custodians have agreed with the applicant. So, in this part of the scheme, although there is no positive duty to apply for a certificate, there is a scheme whereby any legal person can apply for them, the custodians are consulted, the certificate may be granted, and then, critically, under section 25:

Subject to the conditions, if any, of the Certificate, a person may:

(a) enter and remain –

and do the work authorised in the certificate. Now, it is section 25 which is the bridge back to the defence in the Commonwealth statute section 69(2A). Here is the authority under Territory law which, if that is granted, then removes the risk of criminal prosecution under that Commonwealth law. There is then a process for ministerial review and so on. So, returning to section 34, one can see a central part of the scheme is the deployment of the criminal law against natural persons and bodies corporate but also the mechanism for the certificate to lift the criminal norm, at least in respect to a section 34 case. Section 35:

A person shall not desecrate a sacred site.

Well, there is no ability to get a certificate to relieve you from that norm. Section 36 is the defence in the Local Court. Then, your Honours, importantly, section 37, if one:

contravenes or fails to comply with a condition of . . . Certificate –

that of itself is a separate offence, natural persons and bodies corporate are punished. So, one of the mischiefs, as we would put it, with the Attorney’s argument – the Attorney’s argument appears to be the DNP could apply for a certificate if it wants to because the DNP could regard itself as a person under section 19B. If the DNP chose to apply for a certificate and if, in a happy world, they got a certificate, then one should regard the Act as having achieved its beneficial purposes. The problem with that argument is it is wholly at the election of the DNP whether to apply for a certificate. If they do not apply for a certificate, according to the Attorney, they can do the work without a criminal offence under section 34.

BEECH-JONES J: Mr Gleeson, could I just ask that – it has never been disputed that the contractor who did the work, or their employee, would otherwise be exposed under section 34. Is that right?

MR GLEESON: We think that is right.

BEECH-JONES J: So, would not a certificate applied for by the Director at least excuse the contractor from criminal liability?

MR GLEESON: As to the premise of your Honour’s question, I understand what happens in practice – I am not sure that matters – but what happens in practice is the certificate would be applied for by someone like the Director. Indeed, the Director has applied for it in other cases, according to the special case. You do not apply for multiple certificates, you apply for one to cover work by A, B, C, D and E. Your Honour is probably correct that under section 25, the contractor and its employees could say, it depends whether we have got a certificate granted or not granted.

If the certificate is granted, then the contractor and the employees under section 25 can do the work in accordance with the certificate. The DNP can do the work in accordance with the certificate but, under section 37, if they contravene the conditions of the certificate, we would say the offence is committed by the DNP and potentially by the contractor and the natural person. In the other world, where the certificate is not granted, then no one has the benefit of the protection.

So, there are then some further provisions of some importance down the back of the Act between about sections 43 to 47. We would submit that “person”, for instance, in section 43, has its full meaning including the three legal persons in the Interpretation Act. It has the full meaning where it is used in 47, and equally in 48. And as part of the overall scheme, that works neatly. If your Honours look at 47 - - -

GORDON J: Can I just ask one question? The definition of “sacred site” is common between both Acts, is it not?

MR GLEESON: Yes. It is the exact same definition. If your Honours look at section 47 and contemplate, what if the Prime Minister wishes to visit the sacred site with some appropriate dignitaries, or what if Queensland Parks wished to visit the sacred site to work up a joint heritage application, who applies for the certificate in that case?

We would submit that “person”, because it has its full meaning, means the Commonwealth body politic could apply for the certificate, which would cover the Prime Minister plus the visiting dignitaries, or, in my second example, Queensland could apply for the certificate to cover its people who visit. That shows how “person” in general can have its full meaning, it is just in a criminal breach it is only the bodies natural and corporate that can be penalised.

Your Honour, could I then go to section 4. For this purpose, we put our submission into two stages. Firstly, the operation of the Act between 1989 and 2005 – when amendment occurred – and secondly, its operation after 2005. Those stages need to be distinguished. Your Honours have the original section 4 – I hope – in some additional documents that were sought to be filed with the Court behind the last tab. It is page 112. Do your Honours have that document? The original section 4 in 1989 said:

This Act binds the Crown not only in right of the Territory but, to the extent that the legislative power of the Legislative Assembly so permits, in all its other capacities.

That is the equivalent provision that I took you to in the ALRA, which is section 3B. So, if you were reading the statute between 1989 and 2005, and you read that together with the substantive provisions I have taken your Honours to, this is saying the norms in this Act bind the Crown in all its capacities across the federation, and therefore “person” includes its full meaning of body politic, body corporate, natural person, no matter what connection with the Crown, save only that the criminal norms are imposed on natural persons and bodies corporate, irrespective of the connection with the Crown.

GORDON J: Criminal norms or criminal penalties?

MR GLEESON: Criminal penalty. So, between 1989 and 2005, either as just a matter of statutory construction or Bropho or Cain v Doyle, section 4, taken together with the substantive provisions, achieved that work, and did so identically to the ALRA.

BEECH-JONES J: Is that partly because the actual penalty section says only a penalty for a natural person and a body corporate?

MR GLEESON: Partly that. It is putting together the fact that the Parliament has directed itself to the question, how far do we wish to impair the legal position, criminally, of the Crown across the federation? The answer is, not in its person as a body politic but in its person so far as reflected in the actions of natural persons and bodies corporate. So, that first limb of the submission is, that at any time between 1989 and 2005, the DNP was bound to the criminal penalties in section 34.

GLEESON J: But section 4 did not apply to the DNP? Or did it?

MR GLEESON: What section 4 did, your Honour, was it used that language which is sometimes helpful, sometimes unhelpful: binding the Crown “in all its other capacities”. As we understand that expression, what it is saying is, we are imposing the criminal penalties on natural persons and bodies corporate – we have said that in terms – but to the extent it might be suggested that I am a natural person or a body corporate who has some connection with any of the Crowns of Australia, section 4 says you are bound notwithstanding that fact.

So, when your Honour asked me about the two tiers of our argument, on the first tier of the argument, it is saying it would not matter what your degree of connection with the Crown if you are bound, because the Crown is bound. But, on the second tier, when one looks closer at the connection, you still have yourself bound under section 4.

STEWARD J: Can I ask you a clarification, Mr Gleeson? Your case really is that section 4 is irrelevant because, on your view, the DNP is not the Crown, and it is not a body politic. Is that right?

MR GLEESON: At its purest level, yes.

STEWARD J: So, really, you are looking now at section 4, because you have to address Mr Solicitor’s negative implication argument, and that is how it is relevant to what you ‑ ‑ ‑

MR GLEESON: That is – yes. The answer is yes, your Honour.

STEWARD J: Yes, I understand.

MR GLEESON: We are at multiple cascades, to avoid a bad pun. What that ‑ ‑ ‑

STEWARD J: But if you are right on your primary case, we should not have to worry about it.

MR GLEESON: Should not have to worry about it in either its old form or its new form. To the extent we are looking at it, that very familiar language of section 4, we submit the purpose of it is to say that if the body might otherwise be able somehow to claim protections of the Crown, there is nevertheless the intent to bind it. It is the expression of intention.

I might just ask your Honours, at that point, if you could go to Tomaras [2018] HCA 62; 265 CLR 434, volume 4, tab 27, to passages in three judgments that are hopefully directed to this point. Firstly, at paragraph 18 – and noting your Honour the Chief Justice’s qualification in the first phrase – your Honour says:

the presumption of the common law of Australia that a statute does not “bind the Crown” is a presumption that a statute enacted by an Australian legislature does not operate to impair the legal position of the body politic or executive government of the Commonwealth, a State or a self‑governing Territory.

And then your Honour goes on to state what the rationale for the presumption is, and then says that at least for statues after 1990, or before 1947, the question is whether:

the presumption is displaced simply where an affirmative intention to alter the legal position of the Commonwealth State or self‑governing Territory appears from the text, structure, subject matter or context –

Now, the language of the original section 4 is designed to displace the presumption in any case where the legislation would impair the legal position of the body politic or the Executive Government.

EDELMAN J: Why are you now adding in the Executive Government? Because the Executive Government is effectively the agent; it is the arms, it is the execution of the body politic. As I understood your answer to me earlier, the agents, whether they be natural persons or members of the Executive Government, are independent of the body politic in terms of any presumption of immunity.

MR GLEESON: I put my answer to your Honour on two levels. That was the first level. The second level was: even if they attract some form of presumption, the sort of language we see in section 34 and in section 69 is the very sort of language you would expect to rebut that presumption. What that is showing is that Parliament is saying, I have thought about it, I do wish to punish the Crown, but I only propose to do it through the bodies of natural persons and bodies corporate.

I am referring here to “Executive Government” because that is the language your Honour the Chief Justice used in the passage I am reading out. What I am indicating is that the language of section 4 – its original language – is the simplest and clearest language designed to achieve the purpose of paragraph 18 of Tomaras, which is to say, I do have an affirmative intention to alter the legal position of the Commonwealth, State, or self‑governing Territory, and my intention is if and to the extent that my law might be thought to impair the legal position of the body politic or even its Executive Government, that is exactly what I intend to do.

I come back to your Honour Justice Steward’s question. Section 4 is there to say that if you are a body who might otherwise put your hand up and in the old language say, I am within the shield of the Crown – language now disfavoured – section 4 is designed to say, no, we have thought about you, and you are bound.

In your Honour Justice Gordon’s judgment, the presumption is expressed at paragraph 52. Your Honour indicates that one must look to all the circumstances to ascertain the extent to which it was the legislative intent that the provision binds the Crown – citing Baxter and Bropho – but those circumstances include the terms of the statute, subject matter, nature of the mischief, general purpose and effect of the statute, and – I emphasise this last one – the nature of the activities of the Executive Government – capital E, capital G – which would be affected if the Crown is bound, footnote Bropho and Baxter.

We submit that what your Honour is indicating there as to the nature of the inquiry is one would look at each of these features of the Sacred Sites Act: the terms of the Act – section 34 – pellucidly clear, the subject matter, calls for uniformity of regulation, the nature of the mischief. We have to have a scheme to stop sacred sites being interfered with. Purpose and effect, same point. But the final one, the nature of the activities of the Executive Government, which would be affected if the Crown is bound.

One of the critical features about the DNP – and this comes back to your Honour Justice Gleeson’s question about our alternative case – is it is not part of the Executive Government of the Commonwealth. It is not a Department of State under section 61. It is a creature of the Parliament under Chapter I, and it is given rights and duties by statute, and they can prevail over the laws of the Territory under repugnancy or section 122. But what has never really been identified in the Full Court or by the Attorney‑General is: what is the impairment of the Executive Government of the Commonwealth under section 61 that is manifest in section 34 being given its ordinary work to do on its face? It has just never been addressed.

Your Honour Justice Edelman, in the discussion about the presumption and Bropho, between paragraphs 104 to 109 – at 106, discusses again some of the circumstances that will lead to rebuttal, and at 107, discusses the variable force of the presumption as to whether it applies and what would be needed to rebut it. At 108 – and coming back to your Honour Justice Beech‑Jones’ question, this is how we submit Cain v Doyle operates today: it is an aspect of Bropho at the extreme end where you seek to impose criminal liability on the sovereign herself or himself in the right of the Commonwealth or a State. In that circumstance, extraordinarily strong presumption.

And then, 109 takes a case very much at the other end: criminal norms imposed on employees of a government corporation; little more than a starting point – that is Bropho – where it would be weak or non-existent. Our case, somewhere on the spectrum, a long way from the Cain v Doyle elevated presumption. Your Honours, could I complete our submissions on section 4, to the extent it arises, and now turn to what happened in 2005. If your Honours go to page 646 of volume 2 ‑ ‑ ‑

GORDON J: What is that, Mr Gleeson?

MR GLEESON: The Sacred Sites Act, section 4. What happened was that the old section 4 is re-expressed in a new section 4(1) with no difference in meaning. What is new are subsections (2) and (4), which go beyond the previous Act and create a mechanism to punish the Territory Crown, even if it is not acting through a body corporate or a natural person. So, what this has done is, under subsection (2), created a mechanism – a legal fiction, perhaps – that the Territory Crown can be prosecuted for offences as if it were a body corporate. So, if the Territory Crown, via the Department of Lands, which is simply a Department of State, carries out work on a sacred site without the certificate, the prosecution will be brought against the Northern Territory of Australia as represented by the Department of Lands.

BEECH‑JONES J: What if the relevant authority or instrumentality is itself a corporate body? Who is then the defendant?

MR GLEESON: The defendant is the body corporate. This is creating an extra mechanism, because it would make a nonsense to say, you may prosecute a body corporate as if it were a body corporate. If it is already a body corporate, you prosecute it as body corporate under section 34 in its own name. If it is not already a legal person by way of body corporate or natural person, you use subsection (2).

BEECH‑JONES J: So, if you are – the authorities or instrumentalities referred to in 4(4)(b) are not bodies corporates?

MR GLEESON: They are not body corporates in the operation of subsection (2). So, even if something was an authority or instrumentality which happened already to be incorporated, (2) is otiose and you do not use it; you prosecute them as Company XYZ. That is clearest in the definition of “agency”. So, you see “Agency”, capital A – that is defined on page 598 ‑ ‑ ‑

GLEESON J: That is in the Interpretation Act?

MR GLEESON: It is the Interpretation Act, section 18A:

department or unit of a department, or other authority or body:

(a) nominated as an Agency –

And so on. So, what they are trying to do is to create a mechanism where, if the real wrongdoer is an unincorporated part of the Crown, you then prosecute the Crown in that guise as if it were a body corporate. So, you then see in subsection (3):

This section does not affect any liability of an officer, employee or agent of the Territory Crown to be prosecuted for an offence.

So, this is part of the answer to your Honour Justice Beech‑Jones’ question. If you are a body corporate and you are an agent of the Crown, you continue to be prosecuted exactly as you were. To take your Honour Justice Edelman’s question, if you are a Minister of the Crown, you continue to be prosecuted as a Minister, as a natural person, because of the clarity of language in section 34.

Now, there was a written submission made by the Attorney, which may not be pressed as strongly in their oral outline, which is that you should read all of the persons in subsection (3) as natural persons only, and the force of that is to try and get body corporates out of subsection (3) and somehow force them into subsection (4), and thereby prosecute them through a fiction of subsection (2).

Now, the syllogism does not work because of what I have explained subsection (2) does, but to the extent it matters, your Honours will well appreciate that the term “agent” has been a classic term used to capture bodies corporate acting on behalf of the polity as much as individuals acting on behalf of the polity, was the way your Honour Justice Edelman put it to me in the question. Can I just give your Honours a couple of the many examples where “agent” has been used to capture body corporates.

EDELMAN J: Well, so could “employee”.

MR GLEESON: I am sorry?

EDELMAN J: “Employee” could as well.

MR GLEESON: “Employee” could as well, it could be a corporate employee. So, I will give your Honours firstly an example in Bropho [1990] HCA 24; 171 CLR 1, volume 4, tab 23 on page 11 at point 3, the Western Australian Development Corporation was described by statute as:

an agent of the Crown in right of the State –

and was expressly conferred with immunities and privileges. A second example of many is Wynyard Investments [1955] HCA 72; 93 CLR 376, volume 6, at tab 41, at page 382 of the CLR, at point 6 in the majority judgment, there was a reference to governments creating:

statutory corporations which are not slow to claim that they are agents or servants of the Crown (these being the proper words of description –

picking up your Honour Justice Edelman’s observation. To similar effect, in the judgment of Justice Kitto, which is now the preferred judgment from this case, at page 394, point 2:

There is first the class of cases where a provision, if applied to a particular individual or corporation, would adversely affect the exercise of an authority which he or it possesses as a servant or agent of the Crown to perform some function so that in law it is performed by the Crown itself –

So, with the amendment to section 4, your Honours really do not need to worry about answering every question of how it works. I think the way we have put it is the better reading of it, I submit it is, but overall, it is tolerably clear what it is doing. It is saying, we the Territory, in respect to ourselves, are prepared to go further than we have already gone under section 34, and we are prepared to create a mechanism where we, in all of our capacities, including unincorporated capacities, can feel the force of the criminal law.

GORDON J: Is it able to be put in two propositions? I know that you seek to collapse the presumption into one, but if you take the Bropho as the general presumption, it is rebutted for all the Crown, in all its capacities. If you take the Cain v Doyle presumption, it is rebutted in relation to the Territory Crown in all its capacities but no other.

MR GLEESON: If you take the Cain v Doyle, it is rebutted for the Territory in all of its capacities ‑ ‑ ‑

GORDON J: I think that is what I said.

MR GLEESON: Yes, and just defining your Honour’s question, but not others in the sense that the extension into the very heart of the polity, which has happened at Territory level, has not happened at Commonwealth or State level.

GORDON J: Yes. Thank you.

MR GLEESON: So, natural person, body corporate, exactly as it was before and after. But the mechanism of reaching into the very heart of other polities – the very thing Cain v Doyle had some concerns about – is what the Territory has said we will do to ourselves, but we will not do to anyone else. The only negative implication from it is that we will not reach into the very heart of other polities.

BEECH‑JONES J: In that answer, you mean the heart – you are excluding statutory corporations that have government functions.

MR GLEESON: Yes. They always were caught, and they are still caught. What we are not doing is going further.

STEWARD J: Can I just ask you to clarify that again? Is it your argument that no statutory body corporate could ever have the shield of the Crown – to use the old language?

MR GLEESON: Under this statute? Our primary argument is yes, under this statute, none. Identical argument under the Commonwealth ALRA.

GORDON J: The reason why that may be important – in Western Power, this Court said that when you look at statutory corporations, bodies corporate, they are not all the same. One has to look at them. It is a big statement to make. Do you need to go that far in this case?

MR GLEESON: We do not need to go that far, because I am going to tell you a bit about the DNP. But as a starting point, it will be the same answer under the Commonwealth Act as the Northern Territory Act. When they say bodies corporate, individuals, punishment X, they mean what they say. They do not open up a further inquiry. Your Honours, where I was going to next, just to complete section 4, is I need to take you to the extrinsic material, which will take about 10 minutes.

GAGELER CJ: We might do that after the morning adjournment.

AT 11.13 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.27 AM:

MR GLEESON: If your Honours have volume 2, the Bill as introduced in 2005 is at page 675.

JAGOT J: Sorry, what tab is it?

MR GLEESON: It is 679, and that is tab ‑ ‑ ‑

BEECH-JONES J: Tab 10.

MR GLEESON: Tab 10. Thank you. The then‑proposed section 4 – subsection (1) is no different in substance to the original section 4 or the ultimate section 4(1), but subsections (2) to (4), because they were not limited to the Territory Crown, would have seen the Territory take the sort of step that Cain v Doyle is really about. Namely, it would have created a mechanism whereby every aspect of the Commonwealth Crown, including unincorporated parts of the Crown, departments and the like, could now be prosecuted through the fiction that they were bodies corporate.

What happened in the final Act was the Northern Territory pulled back from that provision so that it imposed – to take your Honour Justice Gordon’s question – it imposed the extra step upon itself but not upon the Commonwealth or other Crowns. Now, as to what the Court knows as to why that happened, your Honours need volume 9, at tab 56. This is the Bill as originally introduced. It is the second column from point 5 to the end and over the top of the first column of the next page, commencing:

In the Territory, government agencies and authorities –

et cetera. What the Parliament was being told was that there was a “lack of clarity” as to whether the Crown was liable where government agencies and authorities were the ones breaching the law, and then the Bill was summarised at the foot of that page in three bullet‑points, and then it was said to be a clarifying amendment. It is important that that statement to the Parliament was made in respect to the Bill that in the end was not proceeded with. What happened, if your Honours go to the next tab, when the debate came back in December – page 2691, second column, at about point 6:

The second issue –

JAGOT J: Which tab?

GORDON J: Tab 57.

MR GLEESON: Tab 57, thank you. It commences with, third paragraph:

The second issue is the liability of the Crown.

And there is, again, a statement that the case law is not clear:

Case law would indicate that individual employees and agents of the Crown are liable to prosecution already. This is made clear by the amendment.

We read that as meaning agents, whether they be natural persons or bodies corporate:

However, this amendment also intends to make it clear that agencies and authorities are liable for prosecution as well.

That is, extending into the unincorporated bodies. Then the next paragraph is the cryptic clue as to why the Bill had been pulled back. There was some discussion between the two governments. The contents of that discussion were never put onto the parliamentary record. In that context, then, over the page to 2693, the first column, the first two full paragraphs discuss the same issue.

Then one sees on page 2694, first column, at point 6, the government invited defeat of the previous clause 4, which was negatived, and then the new clause 4 was passed. All that adds up to is a simple position that the original Bill would have extended criminal liability both in the Territory and in the Commonwealth beyond bodies corporate and natural persons into the very heart of the body politic through the deeming mechanism. After discussion with the Commonwealth, the Territory pulled back to impose that extra punishment on itself but not on the Commonwealth. Your Honours do not need to speculate as to what that discussion was – a Territory is a subordinate polity to the Commonwealth, had it passed such a law, one might have provoked override.

The important point is that what has happened is an expansion of criminal liability limited to the Territory. What you do not get from that, from any of that, is what the Commonwealth contends for, which you will see from paragraph 6 of their submissions – from 6, and perhaps 9 and 13 – somehow a negative intention that the Northern Territory statute is not reaching that category of Commonwealth corporations that meet whatever is the test that the Commonwealth is propounding about legal status. You do not get a negative implication – you certainly do not get that one.

Your Honours, with respect, the Full Court went rather wrong on this issue. You will see this in the judgment commencing from paragraph [73]. It is in a section of the judgment which commences at [70] and runs to [81]. The whole of this section of the judgment is through a Cain v Doyle lens, which you see from the end of [69]. It is not doing what we would call conventional statutory construction. It is not doing Bropho, it is looking for intent at the highest level. But in that context, at [73] it refers to two possible readings of the new section 4(2). The second reading is the one we commend, that it is:

facilitative in allowing the Territory and any Territory authority or instrumentality which commits an offence to be prosecuted as if it was a body corporate.

Your Honours will see, over on page 82, the next sentence, which is the first reason why the Full Court rejects our argument is – with respect – wholly misconceived. The Full Court says if that were right, it would be otiose, because section 34 has proscribed conduct by a “person”, which includes body corporate. What the Full Court has overlooked is that section 34 only imposes the criminal offences on bodies corporate and natural persons, so it is hardly otiose for section 4(2) to do the work we say it does – which is extend criminal liability into the body politic of the Territory.

BEECH-JONES J: But is not the Full Court treating the references to Territory, authority or instrumentality as including body corporates undertaking, effectively, government functions? Is that the point of departure between you and them? So, in that sense, they are saying it is otiose?

MR GLEESON: Well, even read that way, it is not otiose in the sense I am indicating, which is, it is creating a means to prosecute the Territory in its unincorporated capacities – which was never there. So, it has that limitation. Then, when you come to – your Honours might just observe [74] starts on the legislative history, and then [75] cites from the second reading speech of the amending legislation.

The problem with [75] is it has the wrong second reading speech. That is the original second reading speech for the Bill that did not pass. So, to the extent that is a strand in the court’s reasoning, it is a false strand. Then there is [76], which is the explanatory memorandum. That is not in the books. We have handed it to your Honours’ associates. It says nothing except what is set out in [76], but, again, it is inapt because that is the explanatory memorandum for the Bill as introduced, not a revised explanatory memorandum for the Bill as passed.

Paragraph [77] might reflect what your Honour Justice Beech‑Jones put to me about what concept is being understood by the Full Court of authorities and agencies, and so on. But if you come to the end of [77], the court says:

This is reflective of the distinction between the legal status of Crown instrumentalities, on the one hand, and the legal status of employees, agents, contractors and other natural persons, on the other hand, in the application of the presumption against the imposition of criminal liability.

So, here we see Cain v Doyle in its extreme form, that the elevated Cain v Doyle standard is said to be a privilege enjoyed by Crown instrumentalities as well as the Crown itself, and that is somehow being used to read section 4 to create the negative implication that the Attorney‑General seeks. That has the Cain v Doyle error all through it. Paragraph 78 again is Cain v Doyle‑type language, where it speaks of – you need:

a sufficiently clear objective intention to impose criminal liability on the Crown, which in turn recognises the strength of the presumption.

You need “irresistible clearness”, and then it says:

At the same time, there was no attempt to clarify matters by imposing criminal liability on the executive governments of other polities in the federation in similar terms.

In one sense, that is true, because a liability in respect of bodies corporate and natural persons was already there. What was not done was to take the extra step into the body politic, save for the Territory itself. So, your Honours, the whole of that reasoning on section 4 – it ends at [78]. You will see at the end of [78]:

to adopt the formulation from the explanatory memorandum –

and then a statement is made. That is the explanatory memorandum which does not relate to the Bill that was passed. So, if one gets rid of Cain v Doyle, if one applies ordinary statutory construction, one can see that the work that section 4, as amended, does, the work it does not do, and that should not be fatal to this appeal.

BEECH-JONES J: So, Mr Gleeson, do we get to this point – leaving aside the incorrect references to explanatory memorandum, you say this approach to the construction of section 4 starts from a premise that over‑reads Cain v Doyle as extending to incorporated statutory corporations.

MR GLEESON: Yes. That is one vice, and then the other vice is – they are linked. It has not really grappled with how the statute immediately prior to 2005 captured all body corporates and all natural persons through the criminal law. In that event, you can then clearly see what the extension is and what its limitations are.

Your Honours, in terms of our outline, I am down to paragraphs 5 and 6. What I now propose to do is to just more squarely put our submissions on why the Full Court was wrong in its deployment of Cain v Doyle and then, at paragraph 7, I want to come back to the question your Honour Justice Gleeson raised, which is a closer look at the Commonwealth statute to show that this creature, the DNP, whatever test you apply does not get the privilege or the immunity that is claimed for it.

If your Honours have the Full Court’s judgment, I just want to show that some things have gone quite wrong in the court’s understanding of the authorities that it cites. If your Honours could start in the judgment at paragraph [24], there is a reference there to the Bropho presumption. Then, in paragraph [25], it is said there is:

A related presumption, sometimes treated as distinct and sometimes not, is that a statute will not impose criminal liability on the executive, including government instrumentalities with the same legal status, without the clear indication of a legislative intention and purpose to do so.

There we have, in the first statement of principle, that government instrumentalities with the same legal status, whatever that means, enjoy the Cain v Doyle elevated presumption. It is worth looking at the three cases which are said to support that proposition because none of them do. It is footnote 18. I have already dealt with Wurridjal at 164, which says the exact opposite, drawing the distinction in the context of the Commonwealth Act between the body politic and other parties who do not enjoy the Cain v Doyle.

Then could I ask your Honours to go to Telstra 197 CLR 61, which is in tab 38, volume 6. Telstra says the exact opposite of what the Full Court thought. In Telstra, there were two stages to the case. You will see at paragraph 8 that in respect to the two earlier injuries:

Mr Worthing’s employer was the Australian Telecommunications Commission (the Commission) –

Which:

was a body corporate –

And which had the express protection of section 21(3) of the Telecommunications Act. So, the Commonwealth expressly said it was:

not subject to any . . . penalty . . . under a law of a State to which the Commonwealth itself was not subject –

The first stage in the argument, as seen from paragraph 12, was a question of construction of the New South Wales Act, whether the Commission was an “employer” within that Act. That argument, if it were correct, would have meant that the Commission was free of the State Act just as a matter of construction of the State Act. But the second strand of the argument, as seen in paragraph 12, was to embrace section 21(3) and then rely upon section 109 of the Constitution to create an inconsistency between Commonwealth and State law.

The second strand is a true alternative. It only arose if the Commission was an “employer” within the meaning of the New South Wales Act. Mr Bennett’s argument, which at that stage of construction is set out at page 65, over to the top of 66 of the report – you will see the nature of it, and is similar to much of what the Attorney‑General put to the Full Court below. The Court deals with that argument between paragraphs 14 and 18.

They refer in 14, near the end, to an earlier decision, Bolwell, which had the sorts of arguments the Attorney‑General has put to the Full Court about “high degree of governmental control”. They were trying to use the Commonwealth state and the high degree of control to drive a construction of the State statute that “employer” should be read down. At 15, the Court comes to the State statute, which, in section 6(1), has an identical provision to our section 4(1), and the Court identifies a question, notwithstanding that provision, as to how far:

the term “employer” –

in the State Act:

is to be construed by reason of s 6(1) –

particularly in respect to bodies:

more than those exercising the executive power of the Commonwealth provided for in s 61 of the Constitution. The Commission, whose powers and duties were founded in statute, did not exercise the executive power of the Commonwealth.

Footnote: Residential Tenancies, Justices McHugh and Gummow. So, we are perilously close to the present case, that we have the Commission, it is a creature of the Parliament under Chapter I, it does not exercise executive power under Chapter II, and we are trying to work out, is it an “employer” under State law on the proper construction of State law.

Paragraph 16, which is one of Mr Bennett’s arguments, is very much like the negative implication from section 4(2) in the present case. He said, there are parts of the State Act where they go on to make specific provision for government employers; that may create a negative implication. They intend that:

emanations of other bodies politic . . . are not to be classed as employers –

However, the whole of that argument is rejected. Paragraph 17:

the fundamental difficulty –

is:

the Commission fell within the meaning of the definition of “employer” –

in the State Acts:

Both definitions were expressed to include “any body of persons, corporate or unincorporate” and, whether the Commission be so regarded, there was nothing in the definitions which . . . derogated “from simply applying the normal understanding of . . . ‘employer’ as referring to a person or body which employs people”.

The Court rejects the construction submission. So, what has happened at that stage in the construction of the New South Wales law is there is not a hint of Cain v Doyle. There is not a hint that the Commission had the benefit of an elevated Cain v Doyle presumption. The Court has simply construed the New South Wales statute and found that the Commission falls within “employer”, the very exercise we are commending here.

Therefore, it was necessary to reach section 21(3), paragraph 19, and it then becomes tolerably easy, because at paragraph 22 there is a reference to Cain v Doyle – Justice Dixon at page 425 – and a reference to SASB and Residential Tenancies:

It will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth. No such indication is to be seen in the 1987 State Act. To the contrary, s 6(2) states that nothing in that statute renders “the Crown” liable to be prosecuted for any offence. These penal provisions are central to the –

scheme. So, what has happened there is that the Court is now looking not at the Commission as a body corporate and asking if it enjoys Cain v Doyle, it is asking whether the Commonwealth, the body polity, enjoys Cain v Doyle, and then asking whether the State statute has expressed the necessary intention to rebut the presumption. And it has not, which is a pretty easy conclusion when it expressly says it does not render:

“the Crown” liable to be prosecuted for any offence.

Then the final part of it is 22 to 23, that because the penal provisions were “central to the structure” of the regulatory scheme, if they could not operate by reason of section 109, nor could the civil liabilities operate, reading the scheme as a whole, very similar to the way we would construe the scheme here.

If your Honours would turn to paragraph 25 of the judgment, we would submit that Telstra is to the exact opposite effect of that statement of principle. The next footnote, 18, is to Cain v Doyle at page 425. Your Honours know Cain v Doyle was about the Commonwealth acting through a department. It said nothing about what would be the enjoyment of Cain v Doyle by other government instrumentalities. Wurridjal I have made my submission on. Really, we would submit that at paragraph [25], the whole judgment has gone astray ‑ ‑ ‑

GAGELER CJ: In Cain v Doyle, it was not the Commonwealth that was prosecuted, it was a person, an individual.

BEECH‑JONES J: He was prosecuted for aiding and abetting the Commonwealth.

MR GLEESON: For aiding and abetting the Commonwealth. So, it turned upon whether the Commonwealth could be liable for the offence. The individual could have been otherwise. Your Honours, that is the first error. The second error is in the last sentence of paragraph [25]. We now, supposedly, have a Cain v Doyle presumption which extends to government instrumentalities of the same status. Next, it:

applies a fortiori to the imposition of criminal liability on the executive of a polity other than the enacting polity.

The authorities cited in footnote 19 do not support that proposition. You have not been wearied with all of them in the bundle, but I can just give you the bullet‑point reasons. The first authority is Austin, at paragraph 114. That case concerned, as your Honours know, the Melbourne Corporation principle. Three justices cited Justice Dixon in Uther to say that in a federation:

one did not “expect to find either government legislating for the other”.

That is in the Melbourne Corporation context. Those three justices go on to say:

Nevertheless, the Constitution contemplates federal laws directed in terms to the States.

and go on to list many provisions. O’Donoghue v Ireland, at paragraph 51, quotes a treatise by Willoughby that Federal and State Governments may not impose on each other the obligation and burden of executing each other’s laws; a rather different principle. I will ask your Honours to go to Residential Tenancies 190 CLR 410, at volume 5, tab 33. The citation is page 472 from Justice Gummow. His Honour is speaking in the context of the Cigamatic doctrine, not in the context of the present presumption. The language his Honour uses is:

It may be one thing to expose one element in the federation to civil action by another . . . but it is another thing altogether to expose an element in the federation to criminal sanction.

In the next paragraph, he speaks of the creation of:

a criminal offence committed by the Commonwealth in respect of the conduct by the Commonwealth of its Executive Government.

Footnote: Cain v Doyle. It seems tolerably clear his Honour is speaking of the presumption being enjoyed by the body politic. The distinction between the body politic and the body corporate can be seen at page 469, the last paragraph, where his Honour has discussed that the Authority is a creature of Chapter I and not part of the Executive Government. The last footnote is Bass, which, at paragraph 17 says simply that:

expressions such as “shield of the Crown”, “binding the Crown” –

are:

inappropriate and potentially misleading when the issue is whether the legislation of one polity . . . applies to another.

That is the second matter, your Honour. If your Honours go to paragraph [28], at about point 6, it said:

Chief Justice Latham . . . generally agreed with –

Justice Dixon’s conclusion in Cain v Doyle. That is wrong. As the court separately notes at paragraph [40], Chief Justice Latham took a different view that the Crown could not be criminally liable. The result is, in Cain v Doyle there were only two judges out of five for the proposition for which the case has become known. There is no majority holding in Cain v Doyle. The case does not need strictly to be reopened for that reason. In any event, it is an expression of a presumption which has been overtaken by Bropho, Tomaras and later cases.

It is open to your Honours to correctly state the presumption as an aid to construction in the light of how the entire law is developed. Your Honours, in McNamara [2005] HCA 55; 221 CLR 646, which is in volume 4, tab 30, at paragraph 40, the plurality explained why it was not necessary to overrule Wynyard Investments, even though it was disfavoured in its reasoning and Justice Kitto’s minority reasoning is now the preferrable reasoning. We are very much in that territory.

BEECH-JONES J: Mr Gleeson, I am sorry to go back, is there any case in this Court that has applied Cain v Doyle to a statutory body undertaking Crown functions?

MR GLEESON: We have not found one. I am going to come to SASB, which is the closest, but does not get there. So, that was the third error, which is paragraph [28]. The fourth error, paragraph [29], is – the court says:

The same bifurcation of civil and criminal liability is evident in State Authorities Superannuation Board v Commissioner of State Taxation (WA).

The bifurcation we understand the court to be meaning – the bifurcation back in paragraph [25], where body corporates get the elevated Cain v Doyle presumption – that is not supported by SASB [1996] HCA 32; 189 CLR 253, at volume 6, tab 36. In this case, the question was whether the SASB, incorporated under New South Wales law, was liable to stamp duty under the Western Australian law. The judgment of four justices at page 270 – perhaps commencing at the foot of 269 – was carrying out a conventional construction exercise under Bropho. The Stamp Act manifested a clear intention that the Crown would be bound by the civil provisions. Then the exception was:

save to the extent that it creates a criminal offence in relation to the non‑payment of duty –

That is a Bropho analysis, and the civil liability to pay duty is established. The Court then moves at 270 to the criminal offence, and says:

An intention that the Crown should not be bound by that provision is manifested, not by –

Bropho, but by the Cain v Doyle presumption, based on “inherent unlikelihood”, et cetera. The Court then says:

There is no clear indication in the Stamp Act that the legislature intended . . . to create an offence of which the Crown could be guilty.

And:

There is no difficulty in reaching that conclusion and at the same time concluding that the Act otherwise does bind the Crown.

for the civil provisions. Then, the Court says:

That is sufficient to dispose of both of the matters before the Court. Whether or not the SASB is the Crown . . . is immaterial because even if it is, the provisions of the Stamp Act bind it –

civilly. So, the judgment of four justices did not need to decide whether the SASB was the Crown, or what would be the mode of reasoning by which it might be the Crown.

GORDON J: I think it is put against you that that aspect of the four Justices appears to assume that it could be the Crown.

MR GLEESON: It assumes it is a question that may arise, yes ‑ ‑ ‑

STEWARD J: Or that it is equivalent to the Crown.

MR GLEESON: It is saying those possibilities, we do not need to reach. So, in terms of is it an authority that Cain v Doyle has been extended to a statutory corporation, we would say no. Is it a case saying that could be a question to be considered in another case, yes, we accept that.

GORDON J: Can I ask you whether you propose to deal with Justices McHugh and Gummow who, I think at 277, describe a statutory corporation as a State and then cite Bolwell and Eldorado as support for that proposition. Do you propose to take us ‑ ‑ ‑

MR GLEESON: Yes. Yes, I am going to those, they are next. So, there is a couple of points about Justice McHugh and Gummow’s judgment. They do hold that the SASB can be treated as part of the State for the purpose of claiming a presumption against criminal liability. But the route by which they do it is one that is not adopted by the majority and has not been adopted by this Court in any case. What their Honours, with respect, were concerned with was what was the nature of the matter that was before the Court, and the matter came to the Court via two means. One of them, they felt the Court did not have jurisdiction in. The other means was it was a suit between States, thereby attracting jurisdiction under section 75 of the Constitution.

What they were then concerned with was applying the jurisprudence in that area, could you treat the SASB as the State? One of the submissions we have made in writing is that the nature of what is a State for the purpose of section 75 where one is looking at a grant of jurisdiction between polities in the federation is a rather different question to presumptions against the imposition of criminal liability. What is also apparent is that their Honours in adopting the constitutional approach in fact distinguished that approach from a question of privileges and immunities.

So, can I explain that and then deal with your Honour Justice Gordon’s question? At page 282, at about point 6, their Honours said:

the question whether the SASB is “a State” within the meaning of section 75(iv) of the Constitution is not answered by showing that it is the Crown “in right of” the State of New South Wales; nor is it determined by asking whether the SASB is entitled to “the privileges and immunities of the Crown” or to the “shield of the Crown”, as discussed in such authorities as Townsville Hospitals Board v Townsville City Council.

So, the very type of question we are in fact grappling with, to use the old language of the “shield of the Crown”, or an entitlement to privileges or immunities, is something that their Honours are setting aside as a wholly different question to the one they are discussing. You will then see on page 284, in the middle paragraph, the dispositive reasoning is that analysis of the statute of the SASB, having regard to certain matters, classifies it as:

an instrumentality which, for the purposes of constitutional provisions such as s 75(iv), is a State.

And, in the ultimate conclusion at page 289, in the first two full paragraphs, in the context of a taxing statute, the conclusion is you would not presume a legislative intention to extend your taxes in a way which departs from constitutional conceptions of what is a State. And their Honours refer to the:

analysis of the mutual legal and constitutional relationships involved is not decisively assisted by asking whether –

the SASB, under the New South Wales legislation, is:

entitled to the privileges and immunities of the Crown –

So, the very type of question which our case, on one view, raises, is the very question their Honours said was to be put to one side. So, it is extremely difficult, especially given this judgment has not been otherwise adopted, to say that it provides the support for paragraphs [29] and [30] of the Full Court’s judgment. And you might see that again at page 292. In the last full paragraph, the Court distinguishes the Bropho question – which, we would submit, is our question – from their conclusions, which are then stated again at 293 to 294. Now, your Honour Justice Gordon’s question ‑ ‑ ‑

GORDON J: The line I had in mind is what appears on page 277.

MR GLEESON: Yes. There are two problems with that footnote on 277. The first is that ‑ ‑ ‑

GORDON J: Sorry, just to be clear; it is the third sentence of the second full paragraph.

MR GLEESON:

The same presumption has been said to apply where a statute has conferred the immunity of the Crown upon a body or corporation.

So, it is “said to apply”. Firstly, we see a question mark – said to apply. If one goes to the references, Eldorado Nuclear (1983) 4 DLR (4th) 193 at 206, is upon a Canadian statute expressing a particular presumption. It is not upon the common law presumption. It is not on Bropho or on Cain v Doyle.

If one goes to Bolwell – two comments. First of all, when Bolwell was then bowled up in Telstra, it did not receive any support in the Court’s approach to the first question, the construction question. I took you to that this morning. But, secondly, recall that Bolwell, which is a first instance decision, was given prior to Bropho and placed heavy reliance upon the old cases that Bropho overturned. Thirdly, it was in the context of the ATC statute, which had section 21(3). So, we would submit that what is in that sentence travels very little distance.

STEWARD J: But does Bropho say anything about whether a statutory corporation can be part of the Crown, or equivalent to the Crown?

MR GLEESON: Nothing in terms, your Honour.

STEWARD J: No.

MR GLEESON: Because it said the Crown – you get the high presumption; the employees and statutory corporation, you get very little. We do not answer any question about the statutory corporation. And note, as I took your Honour to the terms of that statutory corporation this morning, it is expressly rendered an agent of the State, and it is expressly given the privileges and immunities, and still the Court does not say you get any Cain v Doyle presumption. I will try and speed up a fraction, your Honours.

BEECH‑JONES J: Mr Gleeson, sorry, are you going to deal with page 294 of State Superannuation Board? It is about point 2, the sentence beginning “However”.

MR GLEESON: Yes. In case we had forgotten it, their Honours are saying, if it be classified as a State, using the constitutional analysis, then they would apply Cain v Doyle.

BEECH‑JONES J: In this case, would the Director not be the Commonwealth, if we have a section 75 problem, as it were?

MR GLEESON: Our primary submission is using section 75 concepts of State and Commonwealth to then engage a Cain v Doyle presumption is wrong.

BEECH‑JONES J: Okay.

MR GLEESON: But, your Honour, their Honours are, in fact, doing it in the context of a particular case, which is one State imposing taxation upon another. Their Honours are saying that, when they describe the mutual interrelations within the federation, they are saying Cain v Doyle might have this elevated work to do if you are looking at one State taxing another State, and that being the nature of the question, you embrace 75(iv) reasoning.

In the light of your Honours’ questions, it is directly contrary to Telstra, because the ATC – the Commission – was the Commonwealth for the purpose of section 75, but did not get the slightest hint of its own Cain v Doyle presumption.

Next, in the Full Court at paragraph [31], there is an extract from Telstra, which is from the second part of the judgment, where the court is dealing with whether the Commonwealth had the benefit of Cain v Doyle. The relevant part of Telstra is referred to, somewhat elliptically, down in footnote 30:

The case did not decide whether Telecom was an instrumentality which otherwise had the same legal status as the Commonwealth for the purpose of the presumption.

Paragraphs [33] to [37] deal with Bropho, and the problem with that is the question your Honour Justice Steward raised with me, that the plurality in Bropho does not address whether or when the WADC might have the benefit of Cain v Doyle. In paragraph [37], where it deals with Justice Brennan’s separate reasons, I would ask your Honours to note in the last sentence that the words in parentheses:

(or, by extension, the development corporation).

Which are footnoted in Justice Brennan at page 26, are not his words. He said nothing about whether the development corporation would have the benefit of Cain v Doyle.

Now, when one gets to [38], the summary propositions, as to the first, the court did not rule on the question one way or the other. As to the second, to suggest Bropho has somehow been overtaken by SASB and Telstra misses the point. Bropho has not been overtaken by those cases, it has been explained in Tomaras, but to say that SASB and Telstra reaffirmed the strength of the presumption against the imposition of criminal liability on the Crown but not to note that the cases did not deal with, in any definitive way, statutory corporations, is a very incomplete statement. Thirdly, nothing in that aspect of Bropho goes anywhere.

Now, your Honours, where that takes us is that paragraph [39], which is the entire way the judgment is then set up, we submit, is misconceived. The problems with [39] are that the relevant question, which is Territory legislative intention, gets relegated to stage 3. Stage (a) has an assumption, which has not been made good on the authorities, and stage (b) in fact does not capture the position under the Commonwealth statute. Could I also observe with stage (c), your Honours, the presumption – or rather, the rebuttal of the presumption that has been contemplated as the only way to rebut it, is to disclose:

a legislative intention to impose criminal liability on the Commonwealth executive government –

That is too high a level of abstraction. There may be many ways in which the presumption is rebutted, and it is important to have regard to the particular entity in question and its particular functions, and not to search only for that sort of rebuttal. Your Honours, paragraph [42], we would submit, is simply wrong in the light of the analysis I have been through. And you note the ambiguous words “in the relevant aspects”.

In terms of the authorities that follow, in Bropho the plurality were not speaking about the Cain v Doyle presumption when they made the statement which is footnoted at 46. The Mining Act Case was not talking about Cain v Doyle in the quoted passage. At [43], I have made the submission on SASB. Where that leads us to, your Honours, is that the test or the operative question which is posed at [43], we would submit, is not the correct question in law. Could your Honours note this: it has those same ambiguous words in it, “in the relevant aspect”. We still do not know quite what they mean. When you go to [47], last sentence, it appears the relevant aspect is:

whether the Director has the same legal status as the Commonwealth for the purposes of the presumption against the imposition of criminal liability.

It seems, in the Full Court’s approach, that is the question you ask under the Commonwealth statute, namely: did the Commonwealth intend this creature were to have the same legal status for the purpose of the Cain v Doyle presumption? I mention that because, if your Honours go to the Commonwealth’s submissions, that is not where the Commonwealth’s argument now leads.

It is said in various places, but if your Honours have the heading section C on page 13 of the submissions, before paragraph 35, what the Commonwealth is trying to get out of the Commonwealth statute is the expression of an intention that the DNP is not subject to criminal liabilities to which the Commonwealth itself is not subject, and that is the way it was expressed in paragraph 9.

GORDON J: But do they not, at the end of 35, in effect, take the language of that last sentence of [47] by reference to the Mining Act Case and ask the same question?

MR GLEESON: It is a different question, your Honour. The problem is there ‑ ‑ ‑

GORDON J: Sorry, I have lost the point, then. Why is it a different question? I understand why you say it is a different question, but is that not what they have done there?

MR GLEESON: These submissions, with respect, are sliding around. The main part of these submissions is trying to get your Honours to find, by implication, that the DNP statute contains a section 21(3) Telstra provision that the DNP will not be subject to any liability to which the Commonwealth is not subject. And they try and build on that to say, because the Sacred Sites Act does not criminalise bodies politic, they get this protection. But that is not Cain v Doyle. Cain v Doyle, which is paragraph [47] of the Full Court, is a different thing: do you enjoy the benefit of the presumption against the imposition of criminal liability which the Crown itself, or the body politic, would enjoy?

With respect, your Honour, part of the problem with these Commonwealth submissions, is that they are trying to funnel two different avenues into the same section C. They are different arguments. They say, we ran Cain v Doyle up the mast in Northern Territory, we won on Cain v Doyle, we now do not need it. But, in any event, Cain v Doyle is correct, and we get to the same end point. I think your Honours will see, when you look at it closely, they are different end points.

Now, I have pointed out the difficulty we have with [47] of the court. Then, coming to [49], we are now at Townsville Hospital Board, which Justices Gummow and McHugh had said is not relevant in the present case. The critical point about that case, which has not been sufficiently picked up, is that if you are trying to get an implication out of these provisions to protect a statutory corporation in any way, it needs to be to a very high standard. A very clear expression of an implication.

Your Honours, the section that goes from [50] through to [69] is on what is called “the legal status of the Director”. We submit that if you reach that question, you are not conducting a freestanding inquiry into whether the Director is the Commonwealth for the purpose of section 75; you are not looking at all the Director’s functions, such as the function to engage in external affairs. What you are looking at is the particular function that is said to be impaired by the Territory law, and that is a function of carrying out works on a sacred site. Once one focuses in on that function, you will not find by implication in the Commonwealth statute any version of the privilege or the immunity which the Commonwealth relies upon.

Could I then ask your Honours to open the EPBC Act. It is volume 2, tab 5. Your Honours, in doing this, will have in mind the Commonwealth’s ultimate submission at paragraph 7 that you should treat the DNP as a mere alter ego of the Commonwealth, and a mere vehicle through which it carries out governmental function of managing national parks. When it, to use euphemistic words, realigned the walking track – that is, interfered with the sacred site – it was performing:

regulatory functions for the management and stewardship of –

the park. Let us just see how that sits against this Act. Firstly, page 507, section 4. The EPBC Act:

binds the Crown in each of its capacities.

What that does is to ensure that all of the civil and criminal norms that follow apply to the Crown, including the DNP, to the extent it might be part of the Crown. Section 9, page 511. It preserves the ability for the Director to carry out functions and duty under Division 4 or 5 of Part 15 by entering Kakadu land without having to infringe section 70 of the ALRA Act, again part of the interrelationship of these Acts. Section 10, very important:

not intended to exclude or limit the concurrent operation of any law of a State or Territory, except so far as the contrary intention appears.

GAGELER CJ: That is important for section 109 purposes, but not otherwise, is it?

MR GLEESON: It is primarily 109. But we are trying to ask the question: does this Act make the DNP the alter ego of the Commonwealth? Is the DNP like the Repatriation Commission in Kirkland? Is it practically indistinguishable from a department under Chapter II of the Constitution?

GAGELER CJ: I understand all that, I am just not sure you get that much out of section 10.

MR GLEESON: Right. All right. Let me go to section 354, next page:

A person must not do one of the following acts in a Commonwealth reserve –

Penalty – civil this time – individual, body corporate. Is the DNP a person? Yes. Why? Because a body corporate is a person under the Commonwealth Interpretation Act, and you will see from subsection (2), he is specifically contemplated as a person bound by subsection (1). That is a civil norm being imposed on the DNP if, for example, he carries out works other than in accordance with the management plan.

That is one of the ways in which the DNP can suffer a civil penalty whether or not the Commonwealth can. You see subsection (4). Then it goes further under 354A, because we now have criminal offences: damaging heritage; provisions which, by reason of 4B of the Crimes Act, apply to individuals and bodies corporate. The DNP is subject under 354A to a criminal punishment, even if the Commonwealth cannot be criminally punished – the very thing we see happening in the SSA. Subsection (3), another criminal offence, binds the DNP, and you see the effect of section 4B of the Crimes Act in note 2.

We are already seeing a statutory creature, not looking much like the alter ego of the Commonwealth, can commit offences, can be punished civilly and criminally even if the Commonwealth body politic cannot be punished. Subsection (10) provides a carve‑out for the Director in certain limited circumstances. We get those indications. Then you go to section 362, page 522. There is a positive duty on the Director to exercise:

powers and . . . functions to give effect to a management plan that is in operation –

We have one here. Your Honours then see the clear distinction with subsection (2):

The Commonwealth or a Commonwealth agency –

have a different duty to “not perform” functions or powers:

inconsistently with a management plan –

So, positive duty on the Director to give effect to it, lesser duty upon the Commonwealth or a Commonwealth agency not to act inconsistently with a plan. Already we are seeing a distinction between the Commonwealth, the Commonwealth agency and the DNP. Now, your Honours, “Commonwealth agency” is defined on page 554. It is a long definition, anyone in (a) to (g), but not (h) and (i). I ask your Honours to pause on that definition because it really starts to test ‑ ‑ ‑

STEWARD J: In which section is that definition found?

MR GLEESON: I am sorry, 528.

STEWARD J: Thank you.

MR GLEESON: It really starts to test the limits of the Attorney’s argument, whichever way it has been put, because the first Commonwealth agency is a Minister. A Minister is section 61 of the Constitution. Is the Minister bound by the civil and criminal norms of this statute? Can the Minister commit an offence under section 354A? We say yes; no further inquiry. Look at the next Commonwealth agency:

a body corporate established for a public purpose by a law of the Commonwealth –

Can it commit an offence? Yes. Do you engage in any further inquiry? No. The same sort of submission can be made as you work your way through all the various types of Commonwealth agencies. So, part of the vice in the Commonwealth’s argument is to suggest you go beyond the ordinary meanings of these terms and you somehow are looking for some intention to immunise some parts of the Commonwealth but not others.

Next, your Honours, in terms of the management plan itself, the management plan is a creature primarily of the local board in consultation with the Director and then ultimately with the Minister having a power to approve or not. So, the Board is created under section 374 on page 535, but returning to 363, the Minister may have a role in resolving disagreements between the Land Council and the Director over the implementation of the plan. A similar role in 364. So, very much the idea of this Act is the Director is there doing the work with the local communities to formulate a suitable management plan, doing that independently of the Commonwealth but subject to the Minister having the role to resolve disputes.

Now, 366(3) is the reason that the Board prepares the management plan in conjunction with the Director. And 368 shows the many steps the Director must engage in, quite separately from the Minister and the government, in order to get the plan to its ultimate stage. Now, at 369, the Minister has a role in resolving disputes, at 370, the Minister’s ultimate approval role, and 371 – this is important – the approved plan:

is a legislative instrument.

So, it gets laid before Parliament and the Parliament can exercise its usual powers in respect to a legislative instrument. Now, 498A, we pause on that. If the Parliament wants to grant an immunity in this Act, it knows exactly how to do it. That is an immunity which is given to “officers and assistants” in respect of actions “in good faith”. Critically, you will note, no such immunity is given to the DNP.

So, if the Commonwealth’s case is an implied intention that the DNP will not be criminally liable where the Commonwealth itself is not criminally liable, it seems rather odd that the Commonwealth directed its attention to immunities in 498A and chose not to confer one. Your Honours, the only other immunity that leaps out from the Act is section 546. That is a specific immunity.

GORDON J: Did you say 546?

MR GLEESON: Section 514W, I am sorry, your Honour. It is immunity from taxation. So, there are two parts of this Act where the Parliament has decided what immunities it wishes to confer, or exemptions. They do not cover the present case. It is pretty telling.

Now, just before the adjournment, all of that has covered the Act fairly generally, but if one takes the focus which we urge, of let us look at the particular functions said to be impacted, your Honours would go to section 514B and the function being exercised here is paragraph (1)(a), managing and controlling reserves and perhaps (1)(b), even if exercised very badly. And you will see, under subsection (2), the Director is given the power to perform:

functions in co-operation with a State, a self-governing Territory –

or “agency” thereof. So, again we have this body corporate continued under 514A being given these particular functions which it goes and exercises in cooperation with other parts of the federation. The relevant powers in the present case are 514, particularly (2)(a) and (b), that is what it is doing. The Commonwealth asks you to find that this is somehow an inherently governmental function carried on by an alter ego of a Department. It looks rather like carrying on an ordinary function in commerce under the law of the land.

Section 514D is the Minister’s ability to give ultimate directions. Section 514D(2), the Director has particular obligations of consultation. Subparagraph (5) – this contract, in the present case, was less than $1,000,000, and there was no barrier to the Director entering it without the Minister’s approval. Then you have the terms of appointment ‑ ‑ ‑

GORDON J: Sorry, just before you leave 514D – I know you wish to complete it – but are the Minister’s directions in 514D(1) subject to constraints, including 362?

MR GLEESON: Yes, it is subject to 362. And it is subject to the Bropho constraint that if the Act is unlawful under the Sacred Sites Act, the Minister has no power to direct the DNP, or its contractor, to act unlawfully. That is Bropho, page 25. The Minister could be restrained if it purported to issue a direction requiring the DNP to breach either this Act or a State Act.

Your Honours have the positions on appointment and removal. Money is somewhat important. If you go to 514R, the DNP is not simply funded out of Consolidated Revenue. There is a separate fund, and the inputs into the fund include the product of commercial activity as well as moneys coming from appropriation. And you see the application of the fund under 514T for costs and expenses of the functions.

So, this is rather critical. In a case like Repatriation Commission v Kirkland, the body which was said to be effectively a Department simply ran out of the Consolidated Revenue. That is not the case here, and if your Honours were to ask the question, if this charge is permitted proceed and a fine is levied, who will pay the fine? If the fine was incurred in performance by the DNP of functions under the Act, then, under 514T, it will be paid out of the Australian National Parks Fund.

That is correct, because a central part of this scheme is deterrence, and what the Director would have to do, if he is then short $350,000 in the fund, is he will have to go Parliament and say, I need an appropriation. Why do you need it? I need it because I breached the criminal law of the Northern Territory. So, all of that scheme works perfectly if the Director is understood in that way.

Now, your Honours, there are other provisions. The Attorney will refer you to 515 and say there can be circumstances in which the Minister might delegate functions to the Director. That could happen. Could delegate them to other people, and so on. But drawing back from that Act, I think your Honours have our basic submission that whatever form this negative implication is pushed by the Commonwealth – whether it is Cain v Doyle, whether it is the Telstra 21(3), you do not get it out of this Act. Your Honours, I have not quite concluded, I have exhausted my time. Could I just have about five minutes after lunch?

GAGELER CJ: Yes, you may. The Court will take the luncheon adjournment.

AT 12.43 PM LUNCHEON ADJOURNEMNT

UPON RESUMING AT 2.14 PM:

MR GLEESON: Your Honours, these were just the concluding points. The first, your Honour Justice Gordon asked this morning our position on statutory corporations and the shield of the Crown. Noting that the difficulty with that language, “the shield of the Crown”, what we are accepting is that if it is a single Bropho presumption that we are dealing with, then it has a flexible operation and is capable of extending beyond the body politic to employees, officers or statutory corporations, but in the flexible Bropho sense, and with the Tomaras focus on the nature and extent of the legal impairment of the body politic and the Executive Government, and once that is the focus, then the presumption may have little work to do and may be very easily rebutted.

Secondly, we are in dispute as to how far Cain v Doyle reaches. If we are correct, the elevated aspect of Cain v Doyle does not extend beyond the body politic itself to, for example, statutory corporations.

GAGELER CJ: Or employees of the Crown.

MR GLEESON: Or employees of the Crown or the Minister. If that be right, then we are not asking your Honours to reopen Cain v Doyle, your Honours are just identifying the outer limits of it.

GORDON J: Can I just ask one question about that second point? If that second point is right, am I to take from your submissions this morning that means you could start there? That is, you could take this body corporate with its statutory framework, and say Cain v Doyle has got nothing to do with it?

MR GLEESON: Yes. The third point is that if we are wrong on that, and – as the Attorney submitted in writing – you should read Cain v Doyle as extending beyond the body politic, we are asking you to then clarify the law, and say that that is wrong. So – too many negatives in that statement.

EDELMAN J: Are you necessarily saying something that is different from the Commonwealth? You talk about the elevated aspect of Cain v Doyle. Whether one talks about the elevated aspect or the weaker form of the presumption, I understand you to accept that some sort of presumption – whether it be stronger or weaker – can extend beyond the polity.

MR GLEESON: Some sort of presumption can, but what you do not do is lock in stone – as the Full Court has done – as to say body politic equals and extends to statutory corporations who meet a particular standard of legal status, and then you have got to find a rebutting intention. In doing so, you have inverted the whole of statutory construction.

The fourth point is that primacy should always be given to the relevant statute, which here is the Northern Territory statute, and wherever lands on the presumption, this statute evinces a sufficient intention to do two things. Firstly, to bind all natural persons and bodies corporate indifferently – whatever be their connection with any polity – and then secondly, to have the extended operation to the Northern Territory Crown under the fiction of section 4(2).

The final point, then, is if it is necessary to open the EPBC Act, we submit that you will not find in it, to the high standard required by Townsville Hospital Board, whatever is the implication upon which the Attorney hangs its case. On that, I mentioned before the adjournment – can
I just give the reference, Repatriation Commission v Kirkland [1923] HCA 18; (1923) 32 CLR 1 – it is not in the materials. If I could just give your Honours the page references: 8, 11, 13, 15, and 21. It stands for the proposition that the Crown privilege against the levying of distress on goods of the Crown may extend to a statutory corporation which is relevantly indistinguishable from a Department of State in its possession of property. That type of extension beyond the body politic to a Crown, relevantly indistinguishable, is far removed from the EPBC Act.

May it please the Court.

GAGELER CJ: Thank you. Mr Glacken.

MR GLACKEN: If the Court pleases, the Aboriginal parties seek to make two broad related points to support the narrower case on appeal, or the one that has been styled this morning as a fall‑back case, that the Full Court erred in holding that an interpretive presumption requires the reference to a body corporate in section 34 of the Sacred Sites Act to be construed so as not to include the body corporate, that is, the Director of National Parks.

The first point concerns the correct frame or reference or level at which the claimed immunity from the penalty is to be assessed, that is, the particular matter or function in which the impact of the provision is incurred. In our submission, the particular matter is the joint management of a Commonwealth reserve on Aboriginal land, held under lease, granted under the Land Rights Act, for the purposes of Part 15, Division 4 of the EPBC Act and is a reserve the subject of a management plan.

That level is slightly higher than the way the appellant put it before the luncheon adjournment which referred to a function to carry out works on sacred sites, but it is far more targeted than the level at which the Full Court approached things that the Commonwealth seeks to defend. That first point then informs the second point on the indicia as to whether the application of the sacred sites offence in the Territory law to the Director would be, in legal effect, an application to the Commonwealth body politic that might impair the legal situation of that body politic.

Could we make five short subpoints about the correct frame of reference, some of which are contextual. First, in terms, the Sacred Sites Act as a law of general application regulating the use of land in the Northern Territory that may comprise sites of significance to Aboriginal people applies to persons, natural and artificial, who may use land in the Territory, and we adopt the construction advanced by the appellant that your Honours have heard orally this morning.

Secondly, if the penalty in section 34 would not apply to the Commonwealth as a body politic, then the issue on the fallback case becomes whether, in respect of the particular matter in which the impact of the provision is incurred, its application to the Director would be, in legal effect, an application to the Commonwealth body politic by some impairment. That was the inquiry noted by six members of the Court in McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55; 221 CLR 646, drawing upon the reasoning of Justice Kitto in Wynyard Investments. Your Honours, we give the references in McNamara in our outline at paragraph 2, and I do not propose to go to them.

Here, however, the Full Court did not undertake that particular inquiry. Instead, the Full Court looked to the relationship between the Director and the Commonwealth in a more general way, which they described as “close”, without focusing upon the particular matter at hand. A convenient example of that approach by the Full Court is at reasons for judgment paragraphs [56] to [57], in the appeal book it is pages 68 and 69.

What their Honours did, first of all, at paragraph [56], was collect all of the functions of the Director, put them all together, and then at paragraph [57], make a number of generalisations about the relationship between the Director and the Commonwealth, and characterised the body – that is, the Director – in the light of that general collection of functions rather than focusing on the particular function in hand. We will come back to some aspects of the reasoning at paragraph [57] that lead to error, but the base error is approaching the matter at that more general level.

Now, as we have said, the particular matter that is relevant is the joint management of a Commonwealth reserve on Aboriginal land, held under a lease granted in accordance with the Land Rights Act for that purpose. That function is specified in section 514B(1)(a) of the EPBC Act, among the listing of the Director’s functions, that is, the function to “manage” a reserve. When read with section 376 that specifies the functions of the indigenous‑majority board established for the reserve, which are, as section 376(1) says, to be performed:

In conjunction with the Director –

Hence, the relevant function is a function of joint management. Thirdly, there is no Commonwealth provision that extends to direct the privileges and immunities of the Commonwealth body politic generally, or more particularly – and relevantly – when the Director is managing a reserve on Aboriginal land held under lease. There is no provision like section 21(3) of the Telecommunications Act considered in Telstra v Worthing that has been mentioned this morning.

Fourth, as a consequence, the question becomes whether the legislative scheme – and I will identify what I mean by the scheme in a moment – impliedly provides that the Director shall have the privileges and immunities of the Commonwealth body politic when the Director is managing a reserve on Aboriginal land held under lease. The starting point, in our submission, is that the answer should be no, for the reason given by Chief Justice Gibbs in Townsville Hospital Board.

If the Court could turn up volume 149 of the CLRs at 282, it is in the joint book volume 6, tab 39. If your Honours could turn up page 291 of the law reports, at about point 7 of the page, after reference to authority Launceston Corporation, the Chief Justice says:

All persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide in express terms that a corporation shall have the privileges and immunities of the Crown, and where it does not do so it should not readily be concluded that it had that intention.

We say that that is the correct starting point for a body corporate of this nature. Fifth, to ascertain whether the Director might have an implied immunity – in other words, to try and construct something equivalent to section 21(3) of the Telecommunications Act – when managing a reserve on Aboriginal land, when I referred to the relevant legislative scheme, in our submission, it is the EPBC Act and the Land Rights Act taken together, or, more particularly, these four parts of those two laws.

First – and not necessarily in this order of importance – EPBC Act, Part 15, Division 4, dealing with Commonwealth reserves. Secondly, EPBC Act, Part 19, Division 5, providing for the status, functions and powers of the Director. Third, Land Rights Act sections 12 and 19, providing for the leasing of certain Aboriginal land – that is, Kakadu and Uluru – to the Director for the purposes of Part 15, Division 4 of the EPBC Act. Fourthly, the Land Rights Act, sections 69, 73, and 74, dealing with the protection of sacred sites, the entry of persons onto sacred sites, under both section 69 of that Act and under a reciprocal Territory law made under the specific grant of legislative power under section 73, and section 74, providing for the application of Territory laws, including like Territory offences in relation to Aboriginal land.

Now, on an examination of that legislative scheme, one cannot construct by implication a provision equivalent to section 21(3) of the Telecommunications Act considered in Telstra v Worthing upon which the Full Court’s reasoning rests. Could we then say this, in terms of legislative scheme – and much of it has already been canvassed this morning, so I will try and deal with things briefly, and with a slightly different prism. There are three, or at least three, features of the legislative scheme that tell against a conclusion that an application of the penalty in section 34 of the Sacred Sites Act to the Director, when jointly managing a reserve on Aboriginal land, would be, in legal effect, an application to the Commonwealth body politic.

The first concerns the issue of control. There must, on the cases, be a high level of ministerial or governmental control over the relevant body corporate. And that power of control must be one that is not qualified or hedged about by interests other than that of the body politic concerned. In McNamara [2005] HCA 55; 221 CLR 646, at paragraph 27, Justices McHugh, Gummow, and Heydon, after referring to those remarks of Chief Justice Gibbs in Townsville Hospital Board that I have just read, stated that the reasoning of the Chief Justice – this is at paragraph 27:

sets at a high level the threshold degree of control exercisable by the Crown over the appellant Board at and above which it might be said that the operation of the –

provision in issue:

would impair the existing legal situation of the Crown in right –

of the Commonwealth. Justices McHugh, Gummow, and Heydon go on to note that the term “control” refers to the:

control and direction of activities.

Although in a slightly different setting, the cases were reviewed by the Court in Queanbeyan City Council v ACTEW Corporation [2011] HCA 40; 244 CLR 530 – our outline at paragraph 5 gives the references – but might I make two points. At paragraph 29, the Court gives as an example SGH Ltd v Commissioner of Taxation as a case where control was not absolute. While Suncorp controlled SGH, it could not require the Board to disregard the interests of other shareholders, so it was said that the power was:

hedged about by the obligation not to disregard the interests of persons other than the State.

That is important for the legislative scheme that I will develop in a moment, that there are interests other than the Commonwealth at stake in the management of a reserve on Aboriginal land. At paragraph 33, the Court noted in contrast in that case, the directors of ACTEW must comply with any direction by the Minister who held the shares on trust for the Territory even when the directors considered that that was not in the commercial interests of the corporation.

Here, the Full Court approached the issue of control, as it did with characterisation, in a much more general way, without reference to the particular function in issue. The way in which ministerial power is qualified or hedged, with respect to the directors’ performance for that function – your Honours will see that at paragraph [57] of the Full Court’s reasons, where at point 3 the Full Court says that:

In discharging those functions –

that is, all of the functions:

the Director is clearly to pursue the national or public interest, and to follow policies determined by the executive government.

Then at about point 8 of the page, there is an expression that:

the Director is generally subject to Ministerial control –

Now, our outline at paragraph 5 collects the provisions of the EPBC Act that hedge or qualify any power of the Minister to give directions to the Director in connection with the joint management of Kakadu as a reserve. This has partly been covered by the appellant and I will not go to the same provisions again, but before I do go to some, can I emphasise that we approach it slightly differently, that these provisions indicate that the Director must act other than at the behest of the Minister and other than only in the interests of the Commonwealth. Your Honours were taken to section 514D(1), which is the starting point, referring to the Director’s functions generally to act:

in accordance with any directions given by the Minister, unless this Act provides otherwise.

And it does otherwise provide. Firstly, and immediately, in subsection (2), if the function is:

in relation to a Commonwealth reserve –

in paragraph (b), that is:

wholly or partly in an area for which an Aboriginal Land Council has been established under the –

Land Rights Act, then:

The Director must consult and have regard to the views of –

. . .

the Chairperson of the Council –

hence, interests other than the Commonwealth must be considered in the performance of the functions. Then at section 357 – and it has been explained, there is a definition in section 363 that talks about indigenous people’s land and lease of indigenous people’s land – but under section 357, if:

a management plan is not in operation –

then subsection (1), paragraph (b), the Director must perform his functions in accordance with:

the Director’s obligations under the lease.

In subsection (2), there is a corresponding constraint against the Commonwealth and the Minister, and we adopt the distinction noted by the appellant that the sections themselves show a distinction between the Director on the one hand and the Commonwealth on the other, rather than subsuming the Director as part of the Commonwealth. But, importantly, it is another indication that the Director in performing its functions in managing a reserve that is under lease does not act solely at the behest of the Minister and does not act solely in the interests of the Commonwealth.

Your Honours were taken to section 362, dealing with the management plan which has the same scheme of constraining powers of direction. Your Honours may have picked it up, but section 367 deals with the content of a management plan and the mandatory content in subsection (1)(e), no – I withdraw that. I will come back to paragraph (e) in a moment. Paragraph (d) is the management plan must:

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

So, the Minister is not at liberty to direct the Director to perform its reserve function other than in accordance with the obligations of the lease, and in relation to the similar restriction created by section 362, once a management plan is operational, paragraph (e) states that the management plan should:

specify any limitation or prohibition on the exercise of a power –

et cetera. It is said against us that one somehow expects a management plan to specify, as in list, or expressly some cutting‑down of the Minister’s powers under 514D. We submit that is an unrealistic reading of the way things work. The limitation comes about by operation and force of section 362.

I should add, just for completeness, and we give the references in our written submissions, that both the lease and the management plan proscribe steps for the protection of sacred sites in accordance with the Sacred Sites Act. That includes the Buladjang Sickness Access Protocol, clause 21, which is made under the lease, and then Part 9.5 of the management plan itself. And there is a reciprocal operation between the provisions of the lease and the plan – they have to match each other, so to speak, given that statutory structure. So, ultimately, in our submission, it is somewhat odd to expect some immunity from the operation of the Sacred Sites Act, given that and that the management plan itself becomes a legislative instrument, but each of the lease and the management plan are given operative force by sections 357 and 362.

The other input of interest, other than the Commonwealth, concerns the functions of the Board itself at section 376. They were paraphrased, but your Honours were not taken to the provision, and the functions of the Board in (1)(a) are:

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

and then (b):

in conjunction with the Director, to –

prepare the plan:

(ii) monitor the management of the reserve; and

(iii) advise the Minister on all aspects of the future development of the reserve.

BEECH‑JONES J: Mr Glacken, just remind me who the members of the Board are.

MR GLACKEN: It is in the management plan itself, I ‑ ‑ ‑

BEECH‑JONES J: I mean, within the Act. Who does the Act contemplate that they will be?

MR GLACKEN: It comes through – it is an early provision ‑ ‑ ‑

BEECH‑JONES J: I will just take it on board.

MR GLACKEN: It requires an indigenous majority. The number escapes me.

GORDON J: Is it not 377?

MR GLACKEN: Steps need to be taken to establish a board, if requested by the Land Council. Yes, it is 377. Then, in subsection (4), if the reserve is on:

indigenous people’s land held by the Director under lease, a majority of the members of the Board must be indigenous persons nominated by the traditional owners –

BEECH‑JONES J: Is your point, clearly, not all members of the Board are there to further the interest of the Commonwealth?

MR GLACKEN: Clearly. Within 376 itself, there is a very limited respect in which the Board has to act in accordance with the wishes of the Minister. It is in subsection (2), and that is when the Minister might seek to break deadlocks – very confined deadlocks – between the Director and the Board.

Finally on this point, I will not go to the provisions, but in our outline at 5.4 we collect the provisions, which deal with a fairly detailed planning process, with special rules for Kakadu, taking into account the interests of traditional owners when management plans are prepared. I go to those provisions for that slightly different perspective, that – to adopt what was said in McNamara and in Townsville Hospital Board – this is not an instance where a body corporate is acting merely at the behest of a Minister, or only in the interests of the relevant body politic.

The second feature of the legislative scheme we wanted to mention is the notion adopted by the Full Court and supported by the Commonwealth Attorney that the Director is a device or vehicle for the Commonwealth to deal with interests in land, to manage reserves, and we say that is plainly not the case in relation to Aboriginal land that is leased under the Land Rights Act.

Your Honours will see that characterisation by the Full Court in a number of places. It commences at paragraph [55] on page 67, in the third line, when their Honours say, “that provision”, and that is a reference to section 345A, which vests Commonwealth interests in the Director on a proclamation of a park. Their Honours says that:

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

et cetera. And then they go on to describe that as evidencing a “close relationship”, and then their Honours, respectfully, err in the last sentence by saying:

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

We will come to that in a moment. That is not the case for Aboriginal land – there is no reversion, so to speak, to the Commonwealth. But from that platform at paragraph [57], their Honours, at point 5 of the page, refer to the incorporation – sorry, first of all, at the very top of the page ‑ ‑ ‑

GORDON J: Sorry, where are we now, Mr Glacken?

MR GLACKEN: Paragraph [57] on page 69. First of all, at the very top of the page, referred to the Director’s functions being directed towards:

stewardship and management of Commonwealth places.

Now, with respect, this is Aboriginal land. But at about point 5, their Honours then say:

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

And then at paragraph [65], the vehicle point – perhaps borrowing from cases in the constitutional context of what is a State or a Commonwealth, et cetera, but at paragraph [65], reach a conclusion that there is a scheme:

for the Commonwealth to administer, manage and control Commonwealth reserves through the Director, rather than for the incorporation of the Director to perform its functions –

And at the end of paragraph [65], it again refers to:

the nexus between those functions and Commonwealth places –

Can we, first of all, observe that when it comes to the Minister’s role in the EPBC Act section 514D(5)(b) – subsection (5) is a limit on the Director entering into contract and leases without ministerial approval. That requirement does not apply in relation to a lease of indigenous people’s land.

GORDON J: Which provision does not apply?

MR GLACKEN: Section 514D(5)(b), and the words in paratheses. One reason for that – and I have not gone to the detail of the provisions, but section 12(2B) of the Land Rights Act makes provision for the lease of indigenous people’s land to the Director. The second observation – and just dealing with this vehicle or device point for holding interests in land – the second point is that we collect the provisions at paragraph 6 of our outline on what happens in relation to any interests of the Commonwealth in relation to Aboriginal land that becomes a reserve. There are two elements, or steps.

First of all, in this case, the land became Aboriginal land upon being leased to the Director for use as a national park for the purposes of the former NPWC Act in accordance with section 12 of the Land Rights Act, upon which and by force of section 12, any previous interests of the Director, including any interests that had earlier vested from the Commonwealth, thereby ceased to exist. In its place, what the Director acquires is an interest in the form of the lease. Secondly, under section 350(4) of the EPBC Act:

If the Director ceases to hold land . . . under lease –

Then by force of that section:

the land . . . ceases to be part of the reserve –

and under section 352(3), if the land otherwise ceases to be a reserve, then by force of the section, the Director’s interest in the lease ceases to exist. And unlike other interests held by the Director, there is nothing that vests or reverts to the Commonwealth, it simply comes to an end. So, the Full Court’s premise at paragraph [55] to the vehicle of the vice view overlooks the combined effects of those provisions.

May we add that the legislative history to the EPBC Act confirms that the Director is not some vehicle through which the Commonwealth manages a reserve of Aboriginal land. We have set out the history of the passage of the Bill in our written submissions at paragraph 49.

GLEESON J: Mr Glacken, do you know where the language of “Commonwealth places” comes from in the Court of Appeal’s judgment?

MR GLACKEN: It is in those parts of the judgment. It is ‑ ‑ ‑

GLEESON J: Yes, but why has it chosen that language? Is that an expression that is used in one of the statutes?

MR GLACKEN: No. It may have been in response to a submission. It is not – the old NPWC Act referred to “National Parks”, this Act refers to “Commonwealth reserves”, maybe it is a slippage, thinking a Commonwealth reserve is a Commonwealth place. There is no discussion of a Commonwealth place in a constitutional sense or anything like that in the judgment. It is just the language that is used. But what is really of present importance is that there is no interest, present, expecting or remainder, if you like, on the part of the Commonwealth in relation to the land that supports this particular view.

The final point I wanted to make, and I am conscious of the time – and some of this has been addressed already by the appellant – concerns the relationship between the Land Rights Act and Part 15, Division 4 of the EPBC Act, and what we might call legislative coherence. If I might make these supplemental points. Section 73(1)(a), together with 74 of the Land Rights Act, clear the field for the Territory to enact laws protecting and authorising the entry of persons onto sacred sites and Aboriginal land, provided any such law is capable of operating concurrently with that Act and Part 15, Division 4 of the EPBC Act – that is, leased reserves, leased in accordance with section 12 of the Land Rights Act.

Now, that complements the sacred site offence in section 69, which corresponds with section 33, not 34, of the Sacred Sites Act, but could I ask your Honours to turn – if you have the Land Rights Act handy – and just mention a couple of other provisions that were not mentioned this morning.

It is important, we think, to note your Honours were taken to section 69 and the defence in subsection (2A) – if a person enters a sacred site in accordance with a law of the Northern Territory – and that is plainly a law enacted in accordance with section 73. It is a similar scheme to what was described in Risk v Northern Territory and Blue Mud Bay in relation to the relationship between section 70 and section 73(1)(b). But if your Honours contrast section 69 with section 70, section 70 deals with entry on Aboriginal Land more particularly, and it is a defence under subsection (2) – or, at least, the offence does not apply if a person holds an interest in the land.

Now, there are no equivalents for the scared site offences. This is then dovetailed – your Honours were taken to the Sacred Sites Act section 25, but also Sacred Sites Act section 44, which provides that an owner of a land may enjoy its interest in the land subject to an Authority Certificate or the conditions of the certificate. So, what the Territory law – the Territory law produces, if you like, a carve‑out that operates in similar terms to section 70(2). But it has to be a carve‑out that follows the issuing of a certificate, otherwise the offence will still apply.

Finally, the certificate provisions of the Territory law that avoid harming sacred sites are plainly applied in terms to the Director as a lessee of land. The Sacred Sites Act has a definition of “owner” of land that extends to a lessee. It has been mentioned that the Commonwealth accepts that it could certainly elect to utilise the certificate provisions through a body – a body corporate could, or the Director could – see the Commonwealth’s submissions, paragraph 21 – but it is important to appreciate that those provisions which avoid harm to sacred sites permit acts that would otherwise contravene sections 33 to 35 of the Sacred Sites Act, but also that would otherwise contravene section 69 of the Commonwealth Act.

We submit that sections 69, 73, and 74 are strong indications, taken together, that it is inconsistent with any implication that the Director is immune from the penalty in the Territory law when jointly managing reserve and Aboriginal land leased under that Act authorising the enactment of that law. Taken together – that is, the Land Rights Act and the EPBC Act – it makes little sense if the Director were, by implication, immune from the penalty in the Territory law in respect of its joint management of Kakadu.

GAGELER CJ: I do not quite understand the implication that you are talking about. The implication in what law?

MR GLACKEN: The implication is that which the Commonwealth’s case would rest, that is, of the kind identified by Chief Justice Gibbs: could the legislation impliedly ‑ ‑ ‑

GAGELER CJ: Which legislation, Mr Glacken?

MR GLACKEN: In their case, this is the fallback case on the appellant opening up the EPBC Act.

GAGELER CJ: We are not dealing with a section 109 case. I am just finding it hard to put these submissions into a legal framework.

MR GLACKEN: The framework, for present purposes, is not higher than Chief Justice Gibbs’ statement that one does not really conclude that there is an implication of a special privilege or immunity.

GAGELER CJ: In which statute? He was dealing in that case with statutes of Queensland.

MR GLACKEN: That was the Hospitals Act – the Board established under the Hospitals Act. And his Honour said, about that page, when erecting buildings in accordance with the Hospitals Act.

BEECH‑JONES J: But you are talking about an immunity in the EPBC Act. Your submission is directed to whether there is an implied immunity to that, taken out of Territory criminal law, dealing with sacred sites. Is that right?

MR GLACKEN: Yes, when performing the function of managing a reserve on Aboriginal land.

GAGELER CJ: That would be a – I know it is a Territory case, but if it were in a State, that would be a section 109 point. In a Territory setting, it is a paramountcy point, is it not?

MR GLACKEN: It is, and the appellant makes the submission, which we adopt, that it does illustrate that one does not have course to such an implied – any interpretative presumption, given that statutory scheme.

BEECH‑JONES J: Do you understand the Commonwealth to assert that that is the effect of the EPBC Act, to create positive immunity?

MR GLACKEN: No. But as I said, it commences with our submission that the particular matter in which the impact of the provision to be assessed is the performance of the function of managing a Commonwealth reserve on Aboriginal land, and that those provisions ‑ ‑ ‑

GORDON J: Mr Glacken, sorry to interrupt, is this nothing more than an expansion of that which was put in paragraph 7 of the appellant’s submissions? That is, that one looks at the EPBC Act and although Mr Gleeson said it is unnecessary to get to it, if it – you would fall short of conveying an implied intent.

MR GLACKEN: Correct.

GORDON J: So, this is an expansion of their paragraph 7?

MR GLACKEN: Correct – of what has been called the narrower case on the appeal.

If the Court pleases.

GAGELER CJ: Thank you, Mr Glacken. Mr Solicitor.

MR DONAGHUE: May it please the Court. May I ask your Honours to turn immediately to the Sacred Sites Act, in volume 2, tab 8, and to turn to section 34. It is a short section:

(1) A person shall not carry out work on or use a sacred site.

It is common ground between us that the word “person” in that section is used in the sense that includes a body politic. Mr Gleeson took your Honours to the provision in the Interpretation Act 1978 (NT), section 24AA(1) that makes that good. The criminal penalty that follows the statement of that norm identifies the penalty for a natural person and for a body corporate but not for a body politic, notwithstanding that a body politic falls within the word “person”. That difference is accepted by the appellant, in paragraph 16 of their submissions and paragraph 2 of their reply, as being sufficient to mean that offence does not apply to the body politic itself.

It seeks a different outcome for statutory corporations, including the Director, on the ground that a penalty is specified for a body corporate generally. It is said – and indeed, much of the argument that your Honours have heard this morning takes it as if it is a self‑evident proposition – that the general word “body corporate” displays a clear intention to apply to all body corporates in an undifferentiated fashion, whether or not they be body corporates through which government discharges functions under statutory corporations or private body corporates. It is just said, the word is general, it includes statutory corporations and therefore, self‑evidently, it is intended to apply criminal liability to all body corporates in an undifferentiated way.

That proposition is not just not self‑evident, it is wrong. It is inconsistent with a significant body of law, because the question that the case law recognises is that not all bodies corporate are the same. Some are intended to have the same legal status as a body politic, and if they are intended to have that legal status, then they share the privileges and immunities of the core body politic in a Hocking paragraph 75‑type sense.

In our submission, the primary debate in this case is about whether the general words in that penalty for a body corporate apply even to a body corporate that was intended to have the legal status of the Commonwealth body politic. If that question is answered that it was not so intended, then the subsidiary question is whether the DNP or Director is a body corporate that was intended to have that status. So, there are two questions of statutory interpretation; one a question of Territory law, one a question of Commonwealth law. I will come to those two questions in a moment.

I want to start by emphasising something that is not a matter of debate between us, and your Honour the Chief Justice raised this at an earlier point with our friends. But because, as I have said, the word “person” in the norm includes the body politic, and because section 4(1) of the Act makes it clear that the Act is intended to bind bodies politic, the Crown of the Northern Territory, and other manifestations of the Crown or the capacities of the Crown, we accept that the norm in section 10 applies to the Commonwealth.

Your Honour the Chief Justice mentioned injunctions, potentially other remedies may apply as well. We put that to the Full Court, and the Full Court accepted it, in a passage I do not think your Honours have seen. Could you go in the core appeal book to page 87, paragraph 81. You see there recorded – this is the conclusion of the statutory construction case:

The cumulative effect of these considerations outweighs the general statement in s 4(1) –

It is accepted that “the Act seeks to bind the Crown” – I will not to try to paraphrase. From five lines down:

While that provision may be effective in subjecting Commonwealth authorities and instrumentalities to injunction, mandamus and ordinary civil remedies, as a matter of statutory construction it does not impose a criminal liability on the Director.

So, we completely accept and embrace the proposition that, properly construed, section 34(1) creates a norm; the norm being that a person, including the Commonwealth – including within that expression statutory authorities and instrumentalities – cannot carry out work on or use a sacred site without an Authority Certificate. That is the proper construction of the Act.

The Commonwealth does not need an Authority Certificate to provide a defence, as per 34(2). The reason that the Commonwealth needs a certificate is because, without one, that norm prevents the Commonwealth from carrying out work on or using a site. The only way to get out of that norm, so as to be able to carry out work on or use the site, is to have a certificate, because – and my friend took your Honours to this provision, but if you go back to section 25 in the Sacred Site Act, the certificate confers the authority required to do the work, or make use of the land.

So, if the Commonwealth is to escape the civil norm and to carry out its function, it needs a certificate, and because it needs a certificate, all of the provisions in the Act that create a capacity to apply for a certificate, that require consultation with traditional owners in order to progress – all of those provisions, equally, need to be satisfied in order for the Commonwealth to progress to do the work. So, when our friends say, without criminal sanctions, this whole scheme is essentially aspirational, we submit, with respect, that they are quite wrong.

BEECH-JONES J: Mr Solicitor, did you accept that an employee of the Director or a contractor is exposed to criminal liability under 34(1)?

MR DONAGHUE: Yes, without a certificate. So, we embrace the point that your Honour put to my friend, that that is another reason why a certificate would need to be acquired. So, one has to go through the 19B application process – 19F requires consultation with “custodians of sacred sites”, et cetera, all in order to – and none of that depends on criminal liability. In our submission, the constructional question ultimately turns not on the applicability of the norm – and your Honour Justice Gordon drew this distinction a few times yesterday ‑ ‑ ‑

GORDON J: This morning.

MR DONAGHUE: Not yesterday. This morning.

GORDON J: It seems like a long time ago, but it is not.

MR DONAGHUE: It does seem like a long time ago, your Honour, it really does. But this morning, about the difference between the norm and the offence and the penalty.

GORDON J: Well, I think it is a prohibition versus penalty.

MR DONAGHUE: In our submission, the real question is, do the words:

In the case of a body corporate – 2000 penalty units.

apply to statutory corporations intended to have the same legal status as the Commonwealth. As it happens, you see that precise analysis conducted by Justice Dixon, as his Honour then was, in Cain v Doyle. I will not take your Honours right through Cain again, but can I ask you to turn it up just to make two short points. So, it is [1946] HCA 38; (1946) 72 CLR 409, volume 4, tab 24. The point that relates directly to what I have just been saying appears at the bottom of page 425, in the last paragraph, about five lines up from the bottom of the page. Justice Dixon says:

no one doubts that the prohibition contained in s. 18(1) against terminating the employment of a reinstated employee applies to the Crown in right of the Commonwealth. The whole question is whether words at the foot of the sub‑section – “Penalty: One hundred pounds,” apply to the Crown.

His Honour is focused on whether or not those words bite in their generality, and his Honour says, at the top of the next page:

In my opinion it is not necessary to interpret them as intending to affect the Crown and it would not be proper so to understand them.

I emphasise that in this case – and if your Honours turn back to 417 of the report you will see this – that was said in the context of a case where – I am reading “Section 10”, at about point 3 on page 417 – the Act expressly provided that:

“In this Division, unless the contrary intention appears – ‘employer’ includes the Crown (whether in right of the Commonwealth or of a State) and any authority constituted by or under the law of the Commonwealth –

And in the face of an argument – you see in the next paragraph – that that section:

showed that it was the intention of Parliament that the Commonwealth could, as an employer, be convicted of an offence –

Really, the argument is the same as the argument that Mr Gleeson has advanced this morning based on section 4(1). He said, the fact that 4(1) displays an intention to bind the Crown, and that that is enough to tell you, to show you, that the criminal offence is the words of general application in the Act apply, including to body politics and instrumentalities thereof.

GORDON J: Do you accept that Justice Dixon, there, was distinguishing the Crown in particular contexts? In particular ways?

MR DONAGHUE: I could not hear the last thing your Honour said.

GORDON J: In particular ways. In other words, his Honour accepts that it does not include certain aspects of the Crown.

MR DONAGHUE: His Honour, in my submission ‑ ‑ ‑

GORDON J: Especially at page 425.

MR DONAGHUE: If your Honour goes back to 424, at about point 4 on the page, his Honour, just before the very famous passage about the strongest presumption, identifies what he means by “the Crown”. He says, in this context it means:

the Executive Government of the country, for that is the practical meaning of the expression Crown in –

this context.

BEECH‑JONES J: But he says there that the reason for this – one of the reasons is the absurdity of dragging that concept before a magistrate. That does not apply to a body corporate, does it?

MR DONAGHUE: Not as a general proposition, it does not apply to all bodies corporate and this is a case – Cain v Doyle was not a case which was concerned with the body corporate issue, and I will say something about that in a minute. But, for the moment, all I was seeking to do really by way of framing, is to say that the debate in this case really should not be overstated, that the Act and all of its mechanisms applies to the Commonwealth, including the Director, and one can have that scheme operate and work in a perfectly sensible fashion, without needing to apply criminal liability to the Commonwealth. That is what the majority in Cain v Doyle held occurred. It is also what the majority in SASB held occurred in a case that I will take your Honours to later.

So, the division between enforcing a norm civilly in circumstances where criminal liability cannot apply, is something that this Court has been quite comfortable with for a very long time. And it is not the case, notwithstanding how our friends seek to frame it, that the Commonwealth would, if successful in this case, be entitled to walk all over sacred sites, free from any constraint under the legislation. That is not right at all.

GAGELER CJ: Mr Solicitor, as I am understanding the argument, it turns on a reading down of the words “body corporate” in section 34(1). Exactly how do you read it down?

MR DONAGHUE: You read it – I am not sure I would accept “reading down” but I will come back to that. You read it as not applying, as not expressing sufficiently clearly – because it uses only general language – an intention to bind the body politic or bodies intended to have the same legal status as the body politic.

GAGELER CJ: Intended by the legislature of the body politic, to have the same legal status as the ‑ ‑ ‑

MR DONAGHUE: Yes, that is my second statutory question. So, the first question is – and you could ask them in either order, it would produce the same answer – did the statutory body – was it intended by the legislature that created it to have the same legal status as the body politic?
If yes, then the body politic and the statutory authority are the same, and one then asks the question of the legislature that created the offence: did it sufficiently clearly intend to impose criminal liability on the body politic or on the statutory authority? And it could.

There is no question of constitutional power in play in this Court. It is just a question of whether it did, and the authorities in my submission say that in general language, a person body corporate employer is not enough to show that the Parliament that created the offence has turned its mind to the body politic question and bound it. So that you do not find, based on general language like “employer” in Cain v Doyle, enough to rebut the presumption.

STEWARD J: Is that the same as saying that for the purpose of construing body corporate, where the body corporate is in fact a body politic, it is not a body corporate for the purpose of section 34?

MR DONAGHUE: Where it was intended to have the same legal status as the body politic. So, I do not – one of the things that is put against us, particularly in the reply, is the false syllogism argument your Honours might have seen. I am not saying that a statutory authority is part of the body politic in that core sense, I am saying that it has the same – where it was created with the intention of having the same legal status, then that is how it works.

GORDON J: The question you ask about it having the same legal status, is that a general question or is that directed to the particular function of which you are concerned in relation to the charge that is proposed to be laid against by way of imposition of penalty?

MR DONAGHUE: There is plainly a choice that needs to be made as to the level of particularity. In my submission, the correct level is at a level where there can be discerned some difference in intention on the part of the legislature that created the body. So, where there are ‑ ‑ ‑

GORDON J: Sorry, I do not understand that.

MR DONAGHUE: Yes, I realise I need to expand that answer. But one cannot just say – because the question is ultimately a question of legislative intent, unless there is some reason to differentiate the legislative intent function by function by function, one would get the same answer for all of the functions, but it might be, on examination of the statutory scheme, that it is possible to say some of these functions are in a different category to others, and if that is possible as a matter of interpretation of the legislation creating the body then you might get a different answer. But you cannot just look at the facts of this case. You have to look at the legislative scheme and see what Parliament intended with respect to the body when engaged in activities of that kind.

STEWARD J: Can I ask, Mr Solicitor, is your interpretation of body corporate then also buttressed by your negative implication argument under section 4?

MR DONAGHUE: Yes, it is, but I will need to develop and explain exactly why. One of the things ‑ ‑ ‑

STEWARD J: Do not go out of order if you do not want to.

MR DONAGHUE: No. One thing I just want to flag, I suppose, in the context of that argument – because that label has been applied to it by our friends – is that while I say I can make good a negative implication, I also say I do not need to, because the question is not one of the Commonwealth excluding itself, it is one of whether or not – and this is on the Cain v Doyle part of the case. The question is not, has the Commonwealth immunised itself, it is, has the legislature that created the offence made it clear enough that it intended to capture the Commonwealth. So, the onus is not on me ‑ ‑ ‑

EDELMAN J: There are two questions though, are there not? That is the first question, essentially, the section 34 question.

MR DONAGHUE: Yes.

EDELMAN J: And that is a question about the scope of application of body corporate. The second question is then if you are wrong about that, then whether or not section 4 does – sorry, if you are right about that ‑ ‑ ‑

MR DONAGHUE: If I am right about it, yes.

EDELMAN J: ‑ ‑ ‑ whether or not section 4 does sufficiently create a body that falls outside that scope of application.

MR DONAGHUE: I think I follow that, your Honour. Certainly, I accept that there are two questions, and my section 4 argument – in its negative implication manifestation – would allow us to win independently of Cain v Doyle on the basis that, properly understood, the Northern Territory has, in enacting section 4 in the form that it did, displayed an intention to bind by criminal conduct the Territory Crown only.

EDELMAN J: If section 4 did not exist, and the policy of the politic was to be executed through individuals – employees, members of the executive – you would accept that section 34 would apply to those individuals as if natural persons.

MR DONAGHUE: I would.

EDELMAN J: Why, then, is it any different if the policy of the body corporate or an emanation of the body corporate or the agent of the body corporate is the Director, rather than a natural person?

MR DONAGHUE: Because, your Honour, for a long time – your Honour puts to me an agent. Can I understand your Honour’s question as being an agent with the same legal status as the body politic? That is all I am putting to your Honours. It would be possible for there to be corporate agents who did not have that status, and then no different answer would apply. But this question arises at the intersection of the legislative intent of the Territory Assembly and the Commonwealth Parliament.

Before – and this is a long run‑up, I realise, your Honours, but I am trying to set a framework – our friends put their case at a number of different levels, but with respect to our friends, they move back and forward between them in a way that perhaps obscures some of the issues that I think your Honours have to decide. I think your Honour Justice Gleeson sought some clarity about this from my friend at one point.

There are, we think, at least three levels of the argument. Level number one is that Cain v Doyle is completely wrong and should be overruled. You did not hear much about that orally today, but in their written submissions, that issue is presented as the first issue to be decided, and it does not appear to have been abandoned.

The next issue, one level down, is even if Cain v Doyle is not completely wrong, statutory authorities never get the benefit of it because it only applies to the benefit of the body politic proper, in its narrowest sense. So, even if government is conducting governmental functions through a statutory authority, there is an absolute rule that says Cain v Doyle does not apply to the benefit of the authority.

Then the third level down is the particular activities. One looks not just at the statutory authority, but what the statutory authority is doing. The reason I say that shifts between the arguments have the potential to obscure the issue is that on the attack in Cain v Doyle itself, a number of the cases that your Honours were taken to – and we count at least six in the last 25 years or so – the majority judgments or, in a number of cases, unanimous judgments, undoubtedly apply – state the legal principle in Cain v Doyle in unequivocal terms and apply it as part of the reasoning process. In those cases, our friends shifted to their second argument and said, but it is not talking about statutory corporations.

In some cases that is true. We have a debate in relation to Telstra and SASB, but at the level of the primary argument your Honours are being asked to discard an interpretive principle that not only has existed for 75 years or more, but that has never been doubted in a single case that we have been able to find, and that has been applied by unanimous decisions of this Court on multiple occasions. I do not want to spend too long on the point, given that it has not been really very squarely confronted, but you undoubtedly would need to reopen not only Cain v Doyle but also all of those other cases on the widest form of our friends’ argument, and you have heard nothing that would justify such a profound change in the working hypothesis by which this Court and Parliament understand one another when Parliament enacts provisions that create criminal offences.

At the level of the statutory – the second tier down, quite a bit of the argument seems to proceed upon the basis that statutory authorities are not, within the old language, within the shield of the Crown, and as if there is something startling in our assertion that statutory authorities or instrumentalities might benefit from the same privileges and immunities that the body corporate itself benefits from. Again, we submit that that, with respect, is just not right. Can I ask your Honours to look at a case I think you have not been taken to, which is Deputy Commissioner of Taxation v State Bank of New South Wales, which is at, pardon me ‑ ‑ ‑

GORDON J: Tab 26.

MR DONAGHUE: Thank you, your Honour. Yes. Volume 4, tab 26. Deputy Commissioner of Taxation v State Bank of New South Wales [1992] HCA 6; (1992) 174 CLR 219. When your Honours have it, could you go to 230? This is a unanimous judgment of the Court. It is not a Cain v Doyle case, I hasten to add, but it recognises – and I am looking at about point 4 of the way down the page, after a reference to Townsville, describing the shield of the Crown doctrine:

The “shield of the Crown” doctrine has evolved as a means of ascertaining whether an agency or instrumentality “represents” the Crown for the purpose of determining whether that agency or instrumentality is bound by a statute enacted by the legislature. The doctrine is in essence an aid to the process of statutory interpretation whereby the courts seek to ascertain the legislative intent of Parliament.

It is noted that, a couple of lines down:

the legislature could explicitly endow a private corporation carrying on business for private purposes with the privileges and immunities of the Crown –

Because it is just about legislative intention to confer those privileges or immunities. It is in that respect that the Court distinguishes between the shield of the Crown and constitutional questions such as arise under section 75(iii) or 114, because obviously there, legislative intent is not determinative, because the meaning of the Constitution is controlling. At the bottom of the page, it is recorded that the:

references are wide enough –

having referred to “the conceptions of ordinary life” notion of the Crown:

it must follow that these references are wide enough to denote a corporation which is an agency or instrumentality of the Commonwealth or a State as the case may be. The activities of government are carried on not only through the departments of government but also through corporations which are agencies or instrumentalities –

That is the Court unanimously recognising that shield of the Crown ideas are not just about government departments. They are, in fact, rarely about government departments, because it is usually obvious, where it is a department in question. They are usually about agents and instrumentalities and whether or not the Parliament that created the agent or instrumentality intended that it would share the privileges and immunities of the Crown.

One cannot ask and answer a question about statutory corporations as if you get the same answer for all of them, as if “body corporate” just necessarily catches you. It depends on what is to be gained or ascertained by an exercise in legislative interpretation. That, we submit, is essentially what this appeal is about.

I have already identified the two separate questions that we say are determinative. First: did the Northern Territory Assembly intend its offences in the Sacred Sites Act – or 34(1) particularly – to apply to an agency or instrumentality with the same legal status as the Commonwealth? I am lifting those words from Chief Justice Gleeson and Justice Gaudron in the Mining Act Case, which I will come to in due course, at paragraph 33.

Then the second question is: if it did not intend the offence to apply to agencies or instrumentalities with the same legal status, is the DNP such an agency or instrumentality? A question that depends upon Commonwealth legislative intent where the primary indicia, according to the authorities, are control and the nature of the governmental function.

GLEESON J: How do you say that this intention as to legal status is demonstrated, other than in, for example, the section 21(3) type of provision?

MR DONAGHUE: Your Honour, if it is in an express provision like 21(3) then, if I had one of those, my task would be easy, but there is, in my submission, no basis to differentiate between an express provision and implied provisions to the same effect. The question is one of legislative intent, whether stated expressly or revealed by implication from the Act.

For reasons we will develop, the cases support the contention that there are a number of relevant indicia – the status as body corporate is neutral, but that executive control over the body corporate is the most important, and the nature of the functions and whether they are of a governmental kind is also very important. We will submit – and this submission will fall to Mr Lim at the end of our case, to take your Honours to the provisions in the EPBC Act, which we say strongly compel, really, the conclusion that the Full Court reached in that respect.

EDELMAN J: What is the ultimate foundation for the extended basis of the presumption? Is it that it does not matter whether one is talking about the body corporate itself or emanations of the body corporate, because the foundation of the presumption is one of non‑interference by the imposition of criminal liability? Is that it?

MR DONAGHUE: Non‑interference by the imposition of criminal liability in the absence of a very clear statement of an intention to do so. Starting from there, one then looks at the other polity, and the other polity gets to arrange itself as it sees fit in the discharge of its governmental functions – the core body politic or statutory authorities performing equivalent functions and intended to have the same legal status. That is the intersection that, in our submission, one looks for, so that one could – and your Honours have no doubt seen in the facts that the Director of National Parks is a public servant in the Commonwealth Department of the Environment.

All of the staff who discharge the functions of Parks Australia under the direction of the Director of National Parks are Commonwealth public servants under the Public Service Act. The money comes from a fund, the majority of which comes from appropriation from the Commonwealth Parliament. We could have performed the exact same functions without the corporate entity, and they would have just been the same people within the same Department doing the same work.

EDELMAN J: Except this – this is the question I asked you earlier, though. If that were the case, you would accept the presumption would not apply to those people that are performing the acts. That is why, I think your concession earlier was that an employee or a contractor would be caught by the criminal prohibitions.

MR DONAGHUE: But that is the same either way, whether or not the DNP itself is caught. My answer to that question is the same here, for reasons best known to it. The prosecutor did not choose to proceed in that way. They wanted to get the Authority itself. And that is where they - - -

EDELMAN J: I see.

GORDON J: But for very good reason. I think, if one looks at the history of which Mr Gleeson took us through and one looks at the intersection between and the history of the Land Rights Act, the EPBC Act and then also the Sacred Sites Act, you see that there had to be a mechanism in place to enable the management of Commonwealth reserves in respect of indigenous land to be dealt with in a consistent way across the whole of Australia, at least from the Commonwealth level, and the choice was made to create it in this way. And the question is, is creating it this way with these functions, which both Mr Glacken and Mr Gleeson took us through, is it, on your case, an emanation of body politic or not?

MR DONAGHUE: But your Honour, with respect, our friends took you, and the Chief Justice’s question at the end highlighted this to some extent, our friends took you through some statutory provisions where it is very hard, analytically, to see how they could bear upon the question of the status, whether or not the Director was intended to have the same legal status as the Commonwealth body politic.

GORDON J: This is why I asked you, at what level of generality does one undertake this exercise? Does one look at particular functions referable to the criminal offence with which it is proposed to be charged and penalised? Does it look at it on a different level?

MR DONAGHUE: Certainly, in our submission, you look at the EPBC Act and you look particularly at the provisions in 514A and following which, as I say, Mr Lim is going to take you through. And even within those provisions, there are some choices to be made.

STEWARD J: Mr Solicitor, can I put a slightly different proposition to you. Having regard to the way the case has developed, is this really a presumption of Cain case? I say that because Mr Gleeson accepts that the intention of the Sacred Sites Act is that body politics are not to be criminally liable for breaches of section 34. So, there are really, then, three issues alive as I see it. One, does a body corporate – can it assume the status of an instrumentality of the Crown and have that feature about it? Secondly, if that is so, does the phrase “body corporate” in section 34 exclude those types of entities? And if so, thirdly, are you one of them?

MR DONAGHUE: Your Honour, as to the first – the passage in DCT v State Bank that I went to in my submission makes it unarguable that the answer is yes.

STEWARD J: So, the next thing ‑ ‑ ‑

MR DONAGHUE: As to the second, if – I can get there via section 4, which I am about to come to, but if I did not get there via section 4, Cain v Doyle ‑ ‑ ‑

STEWARD J: Might help you a little bit.

MR DONAGHUE: Well, Cain v Doyle would say a general reference to body corporate does not capture a statutory – does not capture the body politic, which, in my submission, must mean – must include – anyone who has the status of the body politic. So, Cain v Doyle, on that possible part of the argument, means that our friends’ resort to the general language “body corporate” in the penalty provision cannot win, cannot be enough for them, because you need a strong indication and general language does not provide it.

STEWARD J: But you need to win all three arguments?

MR DONAGHUE: No, I do not – well, on the three arguments your Honour puts to me, yes, but there are several paths in the second.

BEECH-JONES J: Mr Solicitor, I do not want to take you, again, off your argument, but I did ask Mr Gleeson this: is there a particular case that holds – in this Court – that extends Cain v Doyle, or applies it to a statutory corporation which is an agency or instrumentality of the Crown?

MR DONAGHUE: Your Honour, my answer to that – although I will need to develop it because there is some complexity to it – is that both Telstra and SASB are properly understood as such cases, but I will need to develop that.

BEECH-JONES J: Yes, I understand. Thank you.

GLEESON J: Mr Solicitor, you started to identify some indicia for identifying an intention about legal status. I may have misheard you, but I thought that one of the things that you said was that separate legal personality as a body corporate was neutral ‑ ‑ ‑

MR DONAGHUE: Neutral. I did say that.

GLEESON J: Is that not inconsistent with what Chief Justice Gibbs said in Townsville Hospital Board at 291?

MR DONAGHUE: Your Honour, in my submission, it is not. The analysis in all of these cases, and the expression of members of the Court in giving judgments, is affected by the factual context in which the questions have arisen each time. Townsville is, in some respects, perhaps the high point of the case against us, in that it does – but it is concerned with a building function, and the Chief Justice, even though he says you would expect the statement to be – often it would be expressly made where a statutory corporation is to house authority, nevertheless there are pages of his judgment that look at the question of whether it was impliedly to have that character notwithstanding the absence of an express statement. Can I – that whole issue, your Honour, is the last part of my oral submissions, and, if possible, I would prefer to deal with it comprehensively then, if I might.

GAGELER CJ: Mr Solicitor, while you have been interrupted, can I just interrupt one last time, perhaps to go over old ground. If the Director had not been sought to be prosecuted as the Director but as the individual who upholds the office of the Director, I understand you to accept that he would be a natural person capable of having a penalty imposed under section 34(1). Is that so?

EDELMAN J: That has to follow, from the answer you gave to me.

MR DONAGHUE: Yes. I paused because I am not sure it would be possible to prosecute the Director in that way, separated from the functions that were being performed, but the authorities do say – and there is some peculiarity to it. I accept what your Honour Justice Edelman has raised and put to our friends, but they do seem to say, I think really on the back of A v Hayden, that with respect to individuals it is not enough to say, well, the Executive instructed someone to do something in the performance of their governmental functions because that must be exercised in accordance with the existing criminal law and so an individual does not get the benefit of that.

GAGELER CJ: As I have always understood the basic structure here, it is that the Crown can do no wrong, but the Ministers of the Crown are criminally liable for a breach of the general law, and that is A v Hayden.

MR DONAGHUE: Yes, that is why I have given the answer that I gave, that the individual could be, if you were able to show that the individual had done something arguably contrary to the ‑ ‑ ‑

GAGELER CJ: As an agent of the Crown, the individual will be criminally liable. Is that not the case?

MR DONAGHUE: That is the case.

GORDON J: That is what Hayden says, does it not?

MR DONAGHUE: Inter alia I think, yes, and Mr Gleeson took your Honours to Justice Brennan saying something similar in one of the earlier cases.

GORDON J: Hayden makes it clear that the Crown cannot exempt its servants and agents from criminal liability.

MR DONAGHUE: And I am accepting that to be so, which is why I am drawing the distinction that I am drawing, but that has never been understood as meaning that one can just go from that step to the step of either the body politic itself or bodies corporate created by statute that have the same legal status, being themselves subject to criminal liability, and that is what the prosecution in this case attempted to do.

EDELMAN J: What ultimately you need to establish, I think at the third stage, is that the Director is not in any sense acting as an agent, the Director is only acting – even if it makes sense to talk about the Director acting – the Director is conferred the status of the polity, and there is no sense in which the Director is acting as an agent of the polity.

MR DONAGHUE: Your Honour, I would not accept that I need to establish that. There would be many occasions where statutory authorities – what statutory authorities do in the performance of their statutory functions could be characterised as acting as agents for the Commonwealth as a whole. Because we are here – we are not talking about constitutional immunities, we are just talking about statutory interpretation and presumptions. In my submission, all I need to establish is that the Northern Territory did not intend to criminalise conduct of the Commonwealth, or including agencies with the same legal status, and then that the DNP is a corporation with the same legal status, and that answers the two questions of interpretation that arise and that is all I need to do, in my submission.

GORDON J: You answered the last question in the negative, would you get to the other question? If you could establish – sorry, if it was found against you that the DNP is not the body politic or an entity with the same status as the body politic then you lose.

MR DONAGHUE: Yes.

GORDON J: That is the principal question, the only question for you. Well, I mean, in other words, if you get a positive answer to that then, of course, you go on the consider the second, but ‑ ‑ ‑

MR DONAGHUE: If I get a positive answer to that, in my submission, I clearly win because of Cain v Doyle or section 4, but I accept that I lose if I do not, but one very notable feature of the appellant’s case against us, particularly in writing, is that that is the issue they come close to conceding. There is basically nothing in their written submissions directed to that question. It is all about the first question rather than about the second question. Mr Gleeson did, at the end of his submissions, get to the other issue, but, in my submission, that reflected a quite appropriate recognition of the fact that when one looks at the kinds of indicia that the Court has identified before this is a very strong case for us on that last proposition.

GORDON J: I did not understand that, I must say, Mr Solicitor. I had understood from Mr Gleeson, taking the passages from Chief Justice Gleeson, Justice Edelman and my judgment in Tomaras, that one does look at the functions and one looks to see the context, one looks to see the legislative framework in deciding whether or not the answer to that question might be positive or negative.

MR DONAGHUE: Yes, all on the premise that the question is a Bropho question rather than a Cain v Doyle question. My point was really that even though I need to win on all of those issues, when one looks at where the weight of the argument was, at least in writing, it was very heavily directed to the former questions rather than the latter.

Your Honours, can I ask you to turn to section 4 of the Sacred Sites Act, about which you have heard quite a bit already, and make these points. First, as to subsection (1), that provision is a provision that your Honours would have seen in many, many Acts. It appears in, probably, the overwhelming majority of legislation. It is in a common form. When it refers to:

the Territory Crown and, to the extent the legislative power . . . permits, the Crown in all its other capacities.

The reference to “other capacities” there is clearly a reference to the other jurisdictions, and that is how it is always used and understood. It is talking about the Crown in right of all of the other States and the Commonwealth.

It is, we accept – that provision is relevant to the conclusion that I have accepted, that the norm itself, in section 34(1), is binding upon the Commonwealth. Not the offence but the norm. In my submission, it plainly is not by itself sufficient to establish an intention to apply criminal liability to the Crown in any of its capacities, and that, amongst other things, Cain v Doyle itself supports that and Telstra v Worthing supports that in a way I will try to make good when I come to that case shortly.

There was – in Telstra, for example – a provision of exactly that kind that made the relevant legislation binding upon the Commonwealth, and the Court did not regard it as answering the Cain v Doyle question. It is the uncertainty, or the problematic ambiguity, of a provision of that kind that was the impetus for the 2005 amendments that added subsections (2), (3), and (4), and you have seen that briefly in the legislative materials, and I will take you back to those again quite briefly, I hope, shortly. It was because of the, to say the least, doubt about whether 4(1) applied criminal liability to anyone, the Crown in any of its capacities that one saw (2), (3), and (4) enacted.

The work that is done by (2) in our submission is to supply the clear indication of intention necessary to rebut Cain v Doyle. Cain v Doyle says you need to see that Parliament has turned its mind to the question and specific indications that it intended to apply criminal liability to the Crown, (2) does that for the Territory Crown only. It also does the work, having extended the offence as to the Territory Crown, of dealing with the absence of a penalty for the body politic by saying prosecute them as if a body corporate, so the body corporate penalty is picked up.

But one sees nothing in that provision that draws a distinction between corporate or non‑corporate manifestations of the Territory Crown, and that is particularly clear when you come to subsection (4), which I will reach in a moment. You see nothing in the extrinsic material to suggest that what the Assembly had in mind was some differentiation based upon corporate or non‑corporate capacities of the Crown.

There is similarly nothing to indicate that it has got anything to do with the name in which the prosecution may be brought, or rather the name of the defendant. So, it says the Territory Crown is liable in that capacity. We submit that rather than showing one should prosecute the Territory Crown in that name, it rather suggests that if you were prosecuting the Department of Works, you would name it as the Department of Works, or the statutory agency or authority that is so identified.

Our primary point is that the obvious work the section is doing is rebutting Cain v Doyle. Subsection (3) – using the expression, “this section does not affect” – so it is not itself operative, but it is an avoidance of doubt‑type provision. What it does not affect is the liability of an “officer, employee, or agent of the Territory Crown”. So, there is a debate your Honours have seen between us, whether agent in that expression refers only to natural persons or whether it can include bodies corporate.

We submit that the better view is that it refers only to natural persons, for reasons that include the colocation of bodies in the phrase, the other officers and employees being natural persons, but also that when one reads (3) and (4) together, if agent includes statutory authorities, then one has the rather strange proposition that in subsection (3), Parliament says that this legislation does not affect the liability of statutory authorities, and then in (4), it does affect them.

So, it would be doing in section 4 the very thing that section 3 says the provision is not doing, but the sensible way to read them together is to read (3) as not affecting the liability of individuals – which I have discussed with your Honour the Chief Justice and Justice Edelman in particular, and 4 as dealing with the position of authorities. Some of those authorities will be ‑ ‑ ‑

BEECH‑JONES J: Mr Solicitor, just stop there. Could the agent not be like an independent company, a company that is a contractor, could it not? That would not be an aim of it. If you direct a contractor to do something.

MR DONAGHUE: Your Honour, yes, that is possible. Whether one would actually need any of these provisions to capture such a person is a live query, but I suppose subsection (3) is saying it does not affect, so that does not necessarily matter. One of the points I think I passed over is that whatever it means, it is only talking about officers, employees or agents of the Territory Crown, so it cannot possibly be talking about Commonwealth statutory authorities, because on no view of it is the Commonwealth statutory authority an agent of the Territory Crown. So, subsection (3) really does not help our friends.

As to (4), the definition of agency – and I will not take your Honours through the Interpretation Act provisions; Mr Gleeson mentioned them, but 18A(1)(a) is the most relevant provision – puts departments or units of departments within the concept of an agency. So, it is true to that extent that parts of the Crown that do not have separate legal personality are expressly included via (4)(a), within the rebuttal of Cain v Doyle that one sees in subsection (2), but that argument – our friends’ whole argument about section 4 really does not sufficiently grapple with (4)(b) because, at least in the overwhelming majority of cases, the “authority or instrumentality” referred to in (4)(b) will already have independent corporate personality.

To give one example of that, which I can give very easily because your Honours need to look only at the next section, the appellant in this case itself is established as an authority and in 5(1) and 5(2)(a) is a body corporate. So, your Honours have a party before you that is an authority or instrumentality within the definitions in Territory Crown. So, the explanation that our friends have given, which is to say, this is about making it possible to prosecute people who do not have their separate personality, might work for (4)(a) but does not work at all for (4)(b) and it does not, therefore, explain the work that is being done by (4)(b).

Mr Gleeson says, it is probably a bit otiose where the agency is already a body corporate. We submit you would not lightly conclude that the provision is meaningless, particularly when there is an obvious alternative meaning which, in our submission, is this. Subsection (4)(b) recognises that some authorities or instrumentalities, being those that have the same legal status as the body politic, will benefit from Cain v Doyle. It deals with that possibility by bringing them within the exclusion of Cain v Doyle that you see in 4(2). So, 4(2) excludes Cain v Doyle both for the body politic itself and for statutory authorities or instrumentalities who would otherwise benefit from Cain v Doyle. That is what 4(2) is doing, but in both cases, only with respect to the Territory Crown.

BEECH‑JONES J: That submission would work if it recognised that they may benefit from Cain v Doyle, would it not?

MR DONAGHUE: Your Honour, that is enough for me, because my friend says they never benefit from Cain v Doyle. That is his second argument.

BEECH‑JONES J: Or “may” in the sense of it might be considered uncertain.

MR DONAGHUE: Perhaps, your Honour. In my submission, the better reading is that, because it is possible for authorities and instrumentalities to be within the shield of the Crown, the Territory wanted not only to bring the body politic proper, but all of its extended agencies or instrumentalities within the reach of the criminal law, and that if it had not enacted (4)(b) it could not have done that. That is how it works for the Territory Crown, but as to the legislative history – and I do not want to detain your Honours too long on this because you have seen it, but when (2), (3), and (4) were introduced in 2005 – and your Honours have it in volume 2, tab 10, but you do not need to go back to it – all of those references to “the Territory Crown” just said “the Crown”. Otherwise, the section was exactly the same.

In the form in which it was introduced, I could not be here running the argument that we are running now because the Northern Territory Parliament would expressly have said we intend to apply criminal liability to the Crown including authorities and instrumentalities in all of its capacities – that is, in every jurisdiction – and there would have been no room for argument. The provision in that form was defeated in the Legislative Assembly. They took a vote, it lost. The government accepted that defeat, I should say, apparently in response to advice from the Solicitor‑General, but, as Mr Gleeson says, we do not know the detail of that. The amendment that was introduced following the defeat of that form turned all of the references to “the Crown” into “the Territory Crown”.

None of that plausibly has anything to do with the intramural operations of the Territory. This was a provision where it was drafted to extend criminal liability to agencies and authorities of all governments in Australia. That could not get passed, and so it was confined to the Territory itself. There is no indication that it was completely reimagined to deal with a completely different problem concerning intramural operations of the Territory.

What happened was that the Territory Legislative Assembly, having turned its mind to the question, should the offences in the Sacred Sites Act be extended to the Crown in right of the Commonwealth and the other States, decided no, and substituted words that applied the criminal provisions only to the Territory Crown. And it did so, in my submission – I have paraphrased what you see from the legislative record, but what I have just said to your Honours is supported by what you see in the Legislative Assembly on 1 December in volume 9 behind tab 57. It was done expressly after it was said the Solicitor‑General had clarified the situations between the two governments, and it was said by the Minister Assisting the Chief Minister on Indigenous Affairs:

we are going to invite the defeat of section 4, that part that applies to the Commonwealth –

You see that on page 1351 in the left‑hand column about point 2. So, Parliament was told, we are going to defeat the part of this provision extending criminal liability to the Crown in all manifestations insofar as it applies to the Commonwealth. It was duly defeated, and then it was enacted in a form that confined it to the Territory Parliament, or the Territory Crown, rather.

In our submission, it is impossible to read that legislative history as anything other than the Parliament having turned its mind to whether the Commonwealth should be liable, including its agencies and instrumentalities, and having decided no, and that is what the Full Court said. But the Full Court ‑ ‑ ‑

GORDON J: I am sorry to take this long, but is not the distinction there being drawn between the Commonwealth and the Commonwealth employees and agents?

MR DONAGHUE: In my submission, no, your Honour, because the amendment includes subsection (4). Subsection (4) used to say “the Crown” and deemed agencies and authorities and instrumentalities within the Crown, then it was amended so that it was only the Territory Crown. So, Parliament decided not to include Commonwealth authorities and instrumentalities.

So, when the Full Court says in its reasons on page 85 of the book, near the end of paragraph [78], having referred to the amending legislation and the history I have just talked about, about halfway way down on what you see on page 84 in paragraph [78]:

the legislative response to that uncertainty was to impose criminal liability on the Territory Crown in terms of irresistible clearness.

That is 4(2):

At the same time, there was no attempt to clarify matters by imposing criminal liability on the executive governments of other polities . . . In other words, and to adopt the formulation from the explanatory memorandum, ‘the extent’ to which it was intended to render the Crown liable to prosecution . . . was ‘the Territory Crown in any of its capacities’. The only available conclusion is that there was no intention to impose criminal liability on other polities in the federation.

Then in paragraph [20], in the second half, the same point.

GORDON J: I think the point that was made against you was that in the bottom of page 84 it is talking about the Executive Governments of other polities and the federation.

MR DONAGHUE: Your Honour, as to that, I can only say one has to – when one looks at the form of section 4 that was defeated and then the form of section 4 that was enacted, it is not dealing with a narrow form of the Crown, the Territory Crown or any other Crown, it is dealing with the Crown, which means the Crown in right of now the Territory, but formerly in all of its capacities, including an agency and an authority. So, it cannot be dealing with a narrow concept of the Executive Government because it is expressly dealing with a wide one.

In our submission, without any need to have recourse to Cain v Doyle, just as a matter of statutory construction, when you read section 4 you see it dealing expressly with the Territory Crown and you understand that Parliament thought about making it wider and then did not. The conclusion as a matter of statutory construction is that this offence deliberately does not extend to other bodies politic. Now, that means we win in this case, subject to the DNP having that status, but that is a conclusion that the Northern Territory Assembly can change tomorrow prospectively if it wants to.

BEECH-JONES J: Sorry, Mr Solicitor, when you say, it does not apply to other body politics as defined in 44 – so including their agencies and instrumentalities.

MR DONAGHUE: That is what I am seeking.

BEECH-JONES J: So, that is the negative implication, as it were.

MR DONAGHUE: Well, yes. That is the negative implication, that Parliament considered whether it should include agencies or instrumentalities of the Commonwealth, and did not, expressly from the Parliamentary record.

GORDON J: Just so – I will have one more go. If one goes back to the tab 57 you took us to, is that not what the legislature was saying, recognising that the case law recognises already that those:

individual employees and agents of the Crown are liable to prosecution already.

That was the point I was trying to make, at the top of page 1351.

MR DONAGHUE: Sorry, your Honour. Your Honour is on the 1 December ‑ ‑ ‑

GORDON J: I am. You took us to tab 57, and you took us to page 1351. When it is talking about the Commonwealth, it is saying, one of the explanations for the amendment is that the:

Case law indicates that individual employees and agents of the Crown are liable to prosecution already.

So, I do not need to worry about it.

MR DONAGHUE: Individual employees or agents. So, that is consistent with my reading of 4(3) as dealing with individuals, employees or agents, but it is not – because it then goes on in the next paragraph to talk about agencies and authorities as distinct from individual employees or agents. So, it has just referred to the position. So, there is no difficulty with the conclusion that the individuals are bound, because that does not implicate questions of Crown immunity or Cain v Doyle, Bropho, at all. The next paragraph, when read in light of the provision as enacted, can only be speaking of agencies and authorities of the Territory.

EDELMAN J: So, section 4(4)(b), in that respect, that would not be confined to authorities or instrumentalities of the Territory Crown that have the same status as the Territory Crown itself. That would include all authorities and instrumentalities of the Territory Crown, would it not?

MR DONAGHUE: Yes, your Honour.

EDELMAN J: But the negative implication that you are seeking to draw is not to say that it excludes all authorities or instrumentalities of other polities, it is only to exclude all authorities or instrumentalities of other polities that have the same status as the polity itself.

MR DONAGHUE: Your Honours, (4) is definitional – for the purpose of the whole of section 4, but relevantly within (2), and the work that (2) is doing, in my submission, is rebutting Cain v Doyle. If Cain v Doyle has no possible operation, then the rebuttal of Cain v Doyle likewise has no possible operation, so it does not matter to the extent that there is any over‑inclusivity of that kind.

The work that has been done is to say that all of you agents, authorities, and instrumentalities are potentially within the criminal reach, and if you would have been already, then so be it. But there is no need to have the kind of debate that we reach in this case at the end of that point. That is the negative implication part of the case, if I can put it that way, which means that, in our submission, your Honours do not need to reach a Cain v Doyle question because the intention of the Parliament is sufficiently clear.

The alternative pathway to the same conclusion is to say if, for some reason, what I have put to your Honours so far is not correct, then, nevertheless – and this is not a negative implication submission – the Northern Territory Parliament has not made itself sufficiently clear in its intention to apply to Commonwealth agencies or instrumentalities; Cain v Doyle saying that general language is not sufficient, that there needs to be a clear expression of intention. While you have a clear expression of intention in 4(2) for the Territory Crown you do not have it for the Commonwealth Crown or body politic with the same status. And when you look elsewhere, you do not find anything sufficiently clear to produce that outcome.

There are two points that I seek to make arising from the case law that I am about to come to. The first point is that the conclusion that the Act binds the Crown, in the sense of 4(1), is not sufficient to display the clear intention that criminal liability applies, and that is a proposition supported by SASB, Telstra v Worthing, and Cain v Doyle. The second point is that general words in an Act that make an offence binding on bodies corporate do not mean that the offence applies to a body corporate even if it has the same legal status as the body corporate. SASB – and also Telstra, but SASB is possibly the clearest example of that.

I am conscious of the time, but can I try to deal with SASB [1996] HCA 32; (1996) 189 CLR 253 before the Court rises, which is volume 6, tab 36. This is a case involving the question of whether – and you can see it from the first line of the headnote – a New South Wales statutory corporation – so the SASB was a statutory corporation under New South Wales law.

The question was: was it liable to pay stamp duty under a Western Australian Act? One component of which backed up the obligation to pay stamp duty with a criminal offence that applied if you did not, amongst other things, pay the required amount of duty on time. The New South Wales Solicitor‑General argued that one had to read the legislation as a whole, and that if the criminal offence could not apply to the SASB, then the liability to pay the duty likewise should not be held to be engaged, so that the SASB should not have to pay.

There are two judgments, as your Honours know. A judgment of four members of the Court: Chief Justice Brennan, and Justices Dawson, Toohey, and Gaudron, then a separate judgment of Justices McHugh and Gummow. At 269, in the joint judgment of formulas of the Court, at about point 7, the Court concludes that:

the Stamp Act –

the Western Australian Act:

manifests a clear intention that the Crown should be otherwise bound by its provisions, save to the extent that it creates a criminal offence in relation to the non‑payment of duty, a matter to which we shall turn shortly.

The Act was held to reveal a sufficient intention to bind the New South Wales corporation, insofar as it concerned the payment of duty. Over the page, the Court turns to the question of the criminal offence engaged by the non‑payment of the duty.

The premise of the whole of the reasoning on page 270, which is the reasoning upon which we rely, is that if the SASB was a corporation intended to have the same legal status as the Crown, then it would not be subject to the criminal liability, because it would benefit from Cain v Doyle. That was the major premise: if the SASB was created to have that status it would not be criminally liable. Then the minor premise for the argument would have been the SASB was intended to have that status.

As it turned out, the Court did not need to answer the minor premise. That is what you see at the foot of page 270. It did not need to decide whether the SASB was the Crown. But the whole of the reasoning one sees on this page would be a nonsense if Cain v Doyle would have been irrelevant even if the SASB had been intended to be created with the status of the Crown. Why was the Court – given that this whole case was about the liability of the SASB, why was the Court talking about Cain v Doyle and the intention of whether or not agencies should be bound or not, and reasoning about the differential application of 39 on the one hand and the obligation to pay duty on the other, if not for the fact that it was possible for the SASB to get the benefit of that presumption, if it was intended to share the privileges and immunities of the Crown.

The reason the Court ultimately did not need to decide the minor premise is that it, having identified Cain v Doyle, quoted the famous passage in the middle of the page. Then the Court says:

There is no clear indication in the Stamp Act that the legislature intended by s 39(1a) to create an offence of which the Crown could be guilty. Indeed, the Act is silent upon the matter and those who would contend to the contrary must rely only upon the generality of s 39(1a).

I cannot remember what the general language was. I think it was “person”:

In those circumstances the only conclusion possible is that s 39(1a) of the Stamp Act does not bind the Crown. There is no difficulty in reaching that conclusion and at the same time concluding that the Act otherwise does bind the Crown.

And without reading the whole sentence, the conclusion that the offence does not apply:

is not inconsistent with the rest of the Act being given an operation so as to bind the Crown.

In other words, what was produced was the very outcome that I submit should arise here in relation to 34(1). You do not apply the offence part; you do apply the norms. The result was SASB did have to pay the stamp duty but could not have been liable to be convicted of the criminal offence had it not paid the duty if it did in fact share the same status as the Crown.

That bifurcation between the civil and the criminal was plainly part of the ratio of the case, but the analysis makes no sense if our friends’ second argument, the argument that statutory authorities cannot benefit from Cain v Doyle, was correct. Justices McHugh and Gummow were clearer in unequivocally concluding that the SASB was the Crown and could have taken the benefit of Cain v Doyle. There are really two relevant passages, first at 277 in their Honours’ reasons ‑ ‑ ‑

GLEESON J: Does this not depend on the language of the statute?

MR DONAGHUE: It depends, your Honour, on the fact that the general language of the statute, words like “person”, is not enough.

GLEESON J: The Board is, for the purposes of any Act, a statutory body representing the Crown.

MR DONAGHUE: Your Honour, our friends make that point but the Court said at 264, point 3, in the reasons of four members of the Court, and 280, point 6, in Justice McHugh and Gummow’s reasons that that statement applied only for the purposes of the legislation of New South Wales. The question that we are engaged with in assessing the operation of 39 is for the purposes of the law of Western Australia. So, that answer that our friends give is not right because New South Wales interpretation legislation cannot control the meaning of Western Australian legislation. Your Honours, can I have two minutes to complete this? At 277, Justice McHugh and Gummow, at about point 3 or point 4, say that:

the reasoning of the majority of this Court in Cain v Doyle here becomes important . . . the Crown cannot be criminally liable for a supposed wrong “provides a rule of interpretation which must prevail over anything but the clearest expression of intention”. The same presumption has been said to apply where a statue –

and your Honour Justice Gordon has emphasised this:

has conferred the immunity of the Crown upon a body or corporation.

Their Honours expressly accepted that to be the case. And I think your Honour Justice Beech‑Jones drew attention to this passage at the end of their Honour’s reasoning on page 294, about six or seven lines down:

As indicated earlier –

which is back at 277:

SASB is a corporation upon which liability otherwise would fall under this provision.

That is, under section 39:

However, if it also be classified –

I think our friends skipped over these words, but:

if it also be classified, as in our view it must for this purpose, as a State, there would apply the rule of interpretation which would require the clearest expression of intention, to use the words of Dixon J in Cain v Doyle. The use of the term “person” in s 39 and the meaning given thereto by s 5 of the Interpretation Act do not supply that clear expression of intention.

In our submission, unequivocally, their Honours applied the Cain v Doyle presumption to a statutory corporation, that being the same premise that necessarily underpinned the reasoning of the other members of the Court on 270, notwithstanding that they did not ultimately need to decide the status of SASB. That is the first of the two cases that I mentioned, the other is Telstra v Worthing.

Given the time, please the Court.

GAGELER CJ: Thank you, Mr Solicitor. The Court will adjourn until 10.00 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 13 DECEMBER 2023