HIGH COURT OF AUSTRALIA
GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJCHIEF EXECUTIVE OFFICER, ABORIGINAL AREAS
PROTECTION AUTHORITY APPELLANTAND
DIRECTOR OF NATIONAL PARKS & ANOR RESPONDENTS
Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks
[2024] HCA 16
Date of Hearing: 12 & 13 December 2023
Date of Judgment: 8 May 2024D3/2023
ORDER
1.Appeal allowed.
2.Set aside order 1 of the orders of the Full Court of the Supreme Court of the Northern Territory made on 30 September 2022 and, in its place, order that the question referred to the Full Court be answered as follows: "The offence and penalty prescribed by s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) apply to the Director of National Parks as a matter of statutory construction."
On appeal from the Supreme Court of the Northern Territory
Representation
J T Gleeson SC with S H Hartford Davis and L S Peattie for the appellant (instructed by Hutton McCarthy)
Submitting appearance for the first respondent
S P Donaghue KC, Solicitor-General of the Commonwealth, and B K Lim with A R Sapienza for the second respondent (instructed by Australian Government Solicitor)
S A Glacken KC with G A Hill SC for the Northern Land Council, the Gunlom Aboriginal Land Trust, and Joseph and Billy Markham, intervening (instructed by Northern Land Council)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks
Statutes – Construction – Presumptions – Imposition of criminal liability – Where Director of National Parks ("DNP") engaged contractor to perform construction works within "sacred site" under Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ("Sacred Sites Act") – Where works undertaken without permission of "Authority Certificate" or "Minister's Certificate" under Sacred Sites Act – Where s 34(1) of Sacred Sites Act prohibits "[a] person" from carrying out work on or using sacred site and specifies criminal penalties for breach – Where DNP a body corporate pursuant to Environment Protection and Biodiversity Conservation Act 1999 (Cth) – Where s 17 of Interpretation Act 1978 (NT) defines "person" to include body politic and body corporate – Where appellant charged DNP with offence against s 34(1) – Whether DNP can be criminally liable for breach of s 34(1) – Whether DNP entitled to benefit of presumption stated in Cain v Doyle (1946) 72 CLR 409 against imposition of criminal liability "upon the Crown" – Whether presumption stated in Cain v Doyle confined to presumption against construing statute to impose criminal liability on body politic.
Words and phrases – "bind the Crown", "body corporate", "body politic", "criminal liability", "Crown in right of", "person", "presumption", "privileges of the Crown", "sacred site", "statutory corporation".
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 3(1).
Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 514A, 514B, 514E.
National Parks and Wildlife Conservation Act 1975 (Cth), s 15.
Interpretation Act 1978 (NT), ss 17, 24AA.
Northern Territory Aboriginal Sacred Sites Act 1989 (NT), ss 3, 4, 34(1).1 GAGELER CJ AND BEECH-JONES J. This is an appeal from a decision of the Full Court of the Supreme Court of the Northern Territory.[1] The ultimate question in the appeal is whether the Director of National Parks ("the DNP"), established under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBC Act"), can be criminally liable for breach of the prohibition imposed by s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ("the Sacred Sites Act") against carrying out work on a "sacred site" within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).[2] No question is raised as to the validity of the Sacred Sites Act or as to the consistency of the Sacred Sites Act with the EPBC Act.
[1]Aboriginal Areas Protection Authority v Director of National Parks [2022] NTSCFC 1.
[2]See s 3 of the Sacred Sites Act (definition of "sacred site").
2 The answer to the ultimate question turns on the proper construction of s 34(1) of the Sacred Sites Act. The answer is that the DNP can be criminally liable for breach of the prohibition it imposes. The critical consideration informing that answer is that the DNP is established by s 514E(1)(a) of the EPBC Act as a body corporate.
3 Section 34(1) of the Sacred Sites Act is expressed to impose a prohibition on a "person": "[a] person shall not carry out work on ... a sacred site". The Interpretation Act 1978 (NT) ("the Interpretation Act") defines "person" to include a body politic and a body corporate[3] and provides that "a reference to a person generally includes a reference to a body politic and body corporate as well as an individual".[4]
[3]See s 17 of the Interpretation Act (definition of "person").
[4]See s 24AA(1) of the Interpretation Act.
4 Section 34(1) of the Sacred Sites Act then sets out what it refers to as the "Maximum penalty". The maximum penalty applicable "[i]n the case of a natural person" is expressed to be a specified number of "penalty units"[5] or imprisonment for two years. The maximum penalty applicable "[i]n the case of a body corporate" is expressed to be a higher specified number of penalty units. That setting out of a maximum penalty applicable in the case of a body corporate as well as in the case of a natural person leaves no room for doubt that contravention of the prohibition by a body corporate is a criminal offence punishable on a finding of guilt by a penalty not exceeding the applicable maximum.[6]
[5]See s 17 of the Interpretation Act (definition of "penalty unit") and s 4(1) of the Penalty Units Act 2009 (NT).
[6]See ss 38B and 38C(1)(b) of the Interpretation Act.
5 Section 34(1) of the Sacred Sites Act therefore applies in its terms to render the DNP criminally liable for breach of the prohibition it imposes on the simple basis that the DNP is a body corporate.
6 The Attorney-General of the Commonwealth, who intervened in the underlying proceeding and who is in consequence a respondent to the appeal, invokes overlapping common law presumptions to argue that s 34(1) of the Sacred Sites Act should nonetheless be read down to have no penal application in the case of a body corporate created by the legislature of a body politic other than the Northern Territory and intended by that legislature to be an instrumentality having the status of that other body politic.
7 For reasons to be explained, neither of the common law presumptions invoked supports the construction for which the Attorney-General contends. The more general presumption, that a statute does not bind the Crown, is addressed and displaced by s 4(1) of the Sacred Sites Act. The more specific presumption, that a statute does not impose a criminal remedy against the Crown, has no application to a body corporate.
8 Whether the EPBC Act can be construed to manifest an intention on the part of the Commonwealth Parliament that the DNP is to be an instrumentality having the status of the Commonwealth – rendering the DNP capable of being described (in old and "inapt"[7] metaphors) as within the "shield",[8] or as having the "privileges and immunities",[9] of "the Crown in right of the Commonwealth"[10] – therefore need not be explored. Either way, the DNP is within the scope of the criminal liability created by s 34(1) of the Sacred Sites Act.
[7]McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 654-655 [22].
[8]cf Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 230.
[9]cf Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282 at 291.
[10]See Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 347 [17]; Sue v Hill (1999) 199 CLR 462 at 501 [90], 502 [92].
The presumption that a statute does not "bind the Crown"
9 Each of the "Commonwealth of Australia"[11] and "each State of the Commonwealth"[12] is established by the Constitution as a body politic, being a distinct "juristic entity".[13] Each body politic is so established with its own "Executive Government"[14] to which is consigned the executive power of the body politic, including power to exercise such property rights as are vested in the body politic.[15] Though it might have been expected at federation that each body politic would be referred to in legislation simply as "the Commonwealth" or "a State", legislative practice has been to treat the Commonwealth and a State each as an emanation of "the Crown" and to refer instead to "the Crown in right of the Commonwealth" or "the Crown in right of a State".[16]
[11]Covering cl 6 of the Constitution.
[12]Section 106 of the Constitution.
[13]The Commonwealth v Rhind (1966) 119 CLR 584 at 599.
[14]Chapter II of the Constitution and s 119 of the Constitution.
[15]Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1 at 40-41 [75].
[16]See Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 347 [17]; Sue v Hill (1999) 199 CLR 462 at 501 [90], 502 [92].
10 The Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act") similarly establishes the "Northern Territory of Australia" as a distinct "body politic under the Crown"[17] having its own "Administration" to which is consigned the executive power of the Territory.[18] Legislative practice has similarly been to refer to the body politic so established as "the Crown in right of the Territory" or the "Territory Crown".
[17]Section 5 of the Self-Government Act.
[18]Part IV of the Self-Government Act.
11 There is a longstanding general presumption of the common law of Australia against construing a statute to "bind the Crown". The presumption endures notwithstanding that, in consequence of Bropho v Western Australia,[19] the presumption has only "weak operation",[20] amounting to no more than a presumption that "the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances".[21] To "bind the Crown" within the meaning of the presumption is to alter or impair "the existing legal situation" of a body politic,[22] including by imposing a liability on the body politic or by constraining an activity sought to be undertaken in the exercise of executive power by the executive government of the body politic.[23]
[19](1990) 171 CLR 1.
[20]Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 445.
[21]See Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1 at 28 [42], quoting Bropho v Western Australia (1990) 171 CLR 1 at 28.
[22]Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 at 393; NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 at 151-152 [168]-[170]; McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 651 [7], 654-655 [21]-[24], 669 [65]; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1 at 34-35 [59]-[61]; Federal Commissioner of Taxation v Tomaras (2018) 265 CLR 434 at 443-444 [18].
[23]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 347 [18].
12 The general common law presumption "extends beyond the Crown in right of the enacting legislature to the Crown in right of the other polities forming the federation".[24] Applied to a statute enacted by the Legislative Assembly of the Northern Territory, the presumption is against construing the statute to bind the Crown in right of the Commonwealth or the Crown in right of a State as well as against construing the statute to bind the Crown in right of the Territory.
[24]Jacobsenv Rogers (1995) 182 CLR 572 at 585.
13 Section 4(1) of the Sacred Sites Act is in form and effect an express and comprehensive rebuttal of that general common law presumption. In providing that the Sacred Sites Act "binds the Territory Crown and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities", s 4(1) puts beyond doubt that the Sacred Sites Act is intended by the Legislative Assembly to bind the Crown in right of the Commonwealth and the Crown in right of each State as well as the Crown in right of the Territory. In going on to provide that an emanation of the Territory Crown is liable to be prosecuted for an offence against the Sacred Sites Act "as if it were a body corporate", s 4(2) implicitly confirms that a body corporate is liable to be prosecuted for such an offence by virtue of being a body corporate. Section 4(2) is addressed solely to the criminal liability of the Territory Crown.
14 Section 4(1) and (2) of the Sacred Sites Act together leave open the potential for application to s 34(1) of the Sacred Sites Act, in respect of the Crown in right of the Commonwealth and the Crown in right of each State, of the further and more specific common law presumption against construing a statute to impose criminal liability on "the Crown" recognised by Dixon J in Cain v Doyle.[25] That further presumption needs now to be examined.
[25](1946) 72 CLR 409 at 424.
The presumption that a statute does not impose criminal liability on the Crown
15 Though at common law the sovereign could "do no wrong", the Ministers and servants of the sovereign remained subject to the ordinary law of the land even when doing the sovereign's bidding: it was and remains fundamental to the common law conception of the rule of law that "[i]f an act is unlawful – forbidden by law – a person who does it can claim no protection by saying that he acted under the authority of the Crown".[26] The incapacity of the executive government of a body politic to dispense with obedience to the law was and remains "the cornerstone of a parliamentary democracy".[27]
[26]Clough v Leahy (1904) 2 CLR 139 at 155-156.
[27]A v Hayden (1984) 156 CLR 532 at 580; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 427-428. See also Bropho v Western Australia (1990) 171 CLR 1 at 21, 26-27.
16 The incapacity of the executive government to dispense with obedience to the law entails for the Commonwealth, amongst other things, that:[28]
[28]Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 444, quoting A v Hayden (1984) 156 CLR 532 at 562.
"The executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth. The Governor-General, the federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land."
17 That is the constitutional context within which the specific common law presumption against construing a statute to impose criminal liability on the Crown recognised by Dixon J in Cain v Doyle must be understood. The question in Cain v Doyle was whether the Commonwealth could be a principal offender of the offence of terminating the employment of a protected person contrary to the Re-establishment and Employment Act 1945 (Cth). The holding was that it could not. Reasoning to the conclusion that the offence-creating provision did not extend to the Commonwealth, Dixon J said in Cain v Doyle that there was "the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature".[29] That was and remains the classic statement of the presumption.
[29](1946) 72 CLR 409 at 424.
18 Dixon J referred in Cain v Doyle to several quotidian considerations operating to support the presumption. They included the lack of any summary procedure to which the Crown was then amenable, the fact that any fine payable by the Commonwealth would be payable into the Treasury of the Commonwealth, and the fact that any fine payable by the Commonwealth could in any event be remitted by the Commonwealth.[30] But those considerations were peripheral. Dixon J expressed the principle underlying the presumption in terms that "the Crown is not liable to be sued criminally for a wrong ... and ... is not under the coercive power of the law" even though "in many cases the commands of the Crown are under the directive power of the law which makes an unlawful act invalid and leaves the persons executing the commands, if they need a justification, obnoxious to its provisions".[31] His Honour said that he was "not aware that under any statute there has ever been a criminal remedy against the Crown itself" and concluded that "[t]he principle that the Crown cannot be criminally liable for a supposed wrong, therefore, provides a rule of interpretation which must prevail over anything but the clearest expression of intention".[32]
[30](1946) 72 CLR 409 at 424-425.
[31](1946) 72 CLR 409 at 425.
[32](1946) 72 CLR 409 at 425.
19 To similar effect, Latham CJ said that "the fundamental idea of the criminal law is that breaches of the law are offences against the King's peace, and it is inconsistent with this principle to hold that the Crown can itself be guilty of a criminal offence".[33]
[33](1946) 72 CLR 409 at 418.
20 Since Cain v Doyle, express statutory imposition of criminal liability on a body politic or an emanation of a body politic has occurred with increasing frequency. Indeed, express imposition of criminal liability on a body politic has become a common feature of statutes providing for occupational health and safety.[34]
[34]eg, s 10(2) of the Work Health and Safety Act 2011 (Cth); s 10(2) of the Work Health and Safety Act 2011 (NSW); s 13(2) of the Work Health and Safety (Mines and Petroleum Sites) Act 2013 (NSW); s 10(2) of the Work Health and Safety Act 2011 (Qld); s 10(2) of the Work Health and Safety Act 2012 (SA); s 10(2) of the Work Health and Safety Act 2012 (Tas); s 10(2) of the Work Health and Safety Act 2011 (ACT). See also s 3(2) of the Electrical Safety Act 2002 (Qld); s 9(2) of the Safety in Recreational Water Activities Act 2011 (Qld); s 13(2) of the Child Safety (Prohibited Persons) Act 2016 (SA); s 3(2) of the Children and Young People (Safety) Act 2017 (SA); s 5(2) of the Disability Inclusion Act 2018 (SA).
21 To the extent the Cain v Doyle presumption can be said to have been "based upon the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty",[35] the foundation for the presumption must therefore be acknowledged to have weakened with the passage of time. With the increasing frequency of express imposition of criminal liability on bodies politic, the quotidian considerations to which Dixon J referred as supporting the presumption have all either disappeared or faded in significance.
[35]State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR 253 at 270. See also at 277.
22 That change in circumstances emboldened the Chief Executive Officer of the Aboriginal Areas Protection Authority to go so far as to argue that the Cain v Doyle presumption should now be abandoned. The argument was supported by the Northern Land Council, the Gunlom Aboriginal Land Trust and two Jawoyn traditional owners and custodians of the relevant sacred site, all of whom were granted leave to intervene in the appeal.
23 No differently from the common law presumption that a statute does not "bind the Crown" reconsidered in Bropho, the Cain v Doyle presumption that a statute does not impose criminal liability on "the Crown" cannot be treated as "immune from curial reassessment and revision".[36]
[36]Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1 at 22 [58], citing Bropho v Western Australia (1990) 171 CLR 1 at 17-18.
24 But in considering whether the Cain v Doyle presumption should now be abandoned or substantially revised, significant weight must be accorded to the fact that the existence of the presumption in the terms formulated by Dixon J has been repeatedly acknowledged in this Court in the years since Bropho: in Jacobsenv Rogers,[37] State Authorities Superannuation Board v Commissioner of State Taxation (WA),[38] Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority,[39] Telstra Corporation Ltd v Worthing,[40] X v Australian Prudential Regulation Authority,[41] and Wurridjal v The Commonwealth.[42] Now to depart from the presumption formulated in those terms would destabilise well‑entrenched legislative assumptions.
[37](1995) 182 CLR 572 at 587.
[38](1996) 189 CLR 253 at 270, 277, 294.
[39](1997) 190 CLR 410 at 427, 472.
[40](1999) 197 CLR 61 at 75 [22].
[41](2007) 226 CLR 630 at 636 [14].
[42](2009) 237 CLR 309 at 380-381 [164].
25 To maintain the Cain v Doyle presumption is one thing; now to extend the presumption would be quite another. The question whether the Cain v Doyle presumption should be understood to extend to a presumption against construing a statute to impose criminal liability on a governmental entity other than a body politic was noted in X v Australian Prudential Regulation Authority[43] without needing to be explored. The question, now being squarely raised, must be answered in the negative.
[43](2007) 226 CLR 630 at 636 [14].
26 The underlying principle identified by Dixon J in Cain v Doyle provides no justification for extending the common law presumption against construing a statute to impose criminal liability on the Crown beyond what his Honour there referred to as the imposition of "a criminal remedy against the Crown itself". That is to say the underlying principle provides no justification for treating the common law presumption as anything more than a presumption against construing a statute to impose criminal liability on a body politic. To extend the presumption to an executive officer of a body politic would be to invert the constitutional principle which prevents such an officer from claiming immunity from criminal liability by claiming to have acted under the authority of the Crown. To extend the presumption to a corporate instrumentality of a body politic would involve an equivalent inversion of principle.
27 Neither State Authorities Superannuation Board v Commissioner of State Taxation (WA)[44] nor Telstra Corporation Ltd v Worthing[45] should be understood as having endorsed extending the presumption in Cain v Doyle to a presumption against construing a statute to impose criminal liability on a governmental entity other than a body politic.
28 The question in State Authorities Superannuation Board v Commissioner of State Taxation (WA) was whether a body corporate created by the legislature of New South Wales was liable to pay stamp duty on an instrument under the Stamp Act 1921 (WA). A majority (Brennan CJ, Dawson, Toohey and Gaudron JJ) held that the Stamp Act evinced an intention to "bind the Crown", other than in respect of the imposition of criminal liability for failing to present an instrument for stamping, making it immaterial to consider whether the body corporate was to be treated as "the Crown" and, if so, whether the body corporate had the benefit of the Cain v Doyle presumption.[46] To the extent that McHugh and Gummow JJ might be interpreted as having contemplated an extension of the Cain v Doyle presumption to the imposition of criminal liability on a body corporate,[47] theirs was a minority view expressed in the course of an analysis primarily directed not to the question of the status of the body corporate as "the Crown" but to the different and broader question[48] of the status of the body corporate as "the State" for constitutional purposes.
29 The question in Telstra Corporation Ltd v Worthing was relevantly whether a body corporate created by the Commonwealth Parliament under the Telecommunications Act 1975 (Cth) ("the Commonwealth Act"), which contained an immunity provision stating that the body corporate was not subject to any obligation or liability under State law to which the Commonwealth itself (ie, the body politic) was not subject,[49] was an "employer" within the meaning of the Workers Compensation Act 1987 (NSW) ("the State Act"). The unanimous holding was that the body corporate was an "employer" within the meaning of the State Act[50] but that the effect of the immunity provision was to render the State Act inconsistent with the Commonwealth Act and therefore pro tanto inoperative by force of s 109 of the Constitution.[51] There is no analogous provision in the EPBC Act. Moreover, as was noted at the beginning of these reasons for judgment, no question is raised in this appeal as to the consistency of the Sacred Sites Act with the EPBC Act.
30 The outcome is that the Cain v Doyle presumption should be maintained in the terms stated by Dixon J in that case. The presumption is strong but narrow. It is against construing a statute to impose criminal liability on a body politic. It has nothing to say against construing a statute to impose criminal liability on a natural person or a body corporate.
31 Having regard to the Cain v Doyle presumption, s 34(1) of the Sacred Sites Act is properly construed to exclude the imposition of criminal liability on the Commonwealth but not to exclude the imposition of criminal liability on the DNP or on any officer of the Commonwealth.
Disposition of the appeal
32 The appeal should be allowed. The consequential orders proposed by Gordon and Gleeson JJ should be made.
[44](1996) 189 CLR 253.
[45](1999) 197 CLR 61.
[46](1996) 189 CLR 253 at 270.
[47](1996) 189 CLR 253 at 277, 294.
[48]See Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 229-231; SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51 at 67-68 [15]-[16].
[49]Section 21(3) of the Telecommunications Act 1975 (Cth).
[50](1999) 197 CLR 61 at 74 [17]-[18].
[51](1999) 197 CLR 61 at 75 [24].
GORDON AND GLEESON JJ. The issue in this appeal is whether the Director of National Parks ("the DNP"), a body corporate, is exposed to criminal prosecution and penalty for breach of s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ("the Sacred Sites Act"), which prohibits a person from carrying out work on or using a sacred site. The answer is "Yes".
The DNP was a corporation sole established under s 15 of the National Parks and Wildlife Conservation Act 1975 (Cth) and is continued in existence as a body corporate under ss 514A and 514E of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBC Act"). It has a number of statutory functions, including administering, managing and controlling Commonwealth reserves.[52]
[52]EPBC Act, s 514B(1)(a).
Kakadu National Park is a Commonwealth reserve. Gunlom Falls, within Kakadu National Park, is Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act") and is held in fee simple by the Gunlom Aboriginal Land Trust on behalf of the Jawoyn people. Gunlom Falls was leased to the DNP by the Land Trust on condition that it be a Commonwealth reserve, under the EPBC Act, jointly managed by the DNP and the Jawoyn people under a plan of management. The Kakadu National Park Management Plan 2016-2026 was the relevant plan of management.
In March 2019, the DNP engaged a contractor to perform construction works on the realignment of the walking track at Gunlom Falls. The area on which the track works were carried out is sacred to the Jawoyn people or is otherwise of significance according to Aboriginal tradition, and is a sacred site under the Sacred Sites Act. The DNP caused the works to be undertaken without permission, namely without an Authority Certificate or a Minister's Certificate under the Sacred Sites Act. The Chief Executive Officer of the Aboriginal Areas Protection Authority ("the Authority") charged the DNP with an offence against s 34(1) of the Sacred Sites Act.
The Attorney-General of the Commonwealth intervened in the Local Court of the Northern Territory under s 78A of the Judiciary Act 1903 (Cth) to submit on behalf of the Commonwealth that the DNP is not liable to prosecution for breach of s 34(1) of the Sacred Sites Act. The Local Court stated a special case for the opinion of the Supreme Court of the Northern Territory, which was referred to the Full Court. Subject to certain defences, the DNP admitted that the facts set out in the special case would constitute an offence under s 34(1) of the Sacred Sites Act. However, the DNP pleaded not guilty on the basis that it cannot be convicted of the offence created by s 34(1) of the Sacred Sites Act, relying on the interpretive principle enunciated in Cain v Doyle.[53]
[53](1946) 72 CLR 409.
The Full Court held that the DNP, as a government instrumentality, enjoyed the privileges and immunities of "the Crown", or the Executive Government of the Commonwealth, including the presumption against the imposition of criminal liability in Cain v Doyle. The Full Court answered the question of law in the special case as follows: "The offence and penalty prescribed by s 34(1) of the [Sacred Sites Act] do not apply to the [DNP] as a matter of statutory construction."
The Authority was granted special leave to appeal to this Court.[54] Although the Authority's primary argument in written submissions was that Cain v Doyle should be reopened and overruled, during the hearing the submissions focused on the narrower argument that the Full Court erred in applying Cain v Doyle for the benefit of the DNP as a Commonwealth statutory corporation. The Authority said that it was not asking the Court to reopen Cain v Doyle, but rather to identify the outer limits of it. For the reasons that follow, the appeal should be allowed. The Cain v Doyle presumption is limited to the body politic. The offence and penalty prescribed by s 34(1) of the Sacred Sites Act do apply to the DNP.
[54]In this Court, the DNP filed a submitting appearance. The Attorney-General of the Commonwealth, the second respondent, made submissions opposing the appeal. Leave to intervene was granted to the Northern Land Council, the Gunlom Aboriginal Land Trust and Joseph and Billy Markham.
The question in this appeal is narrow; it is about the scope and application of the interpretive principle in Cain v Doyle. The answer given is not to be understood as directly or indirectly answering different questions which might arise about whether a person or body corporate may be considered "a State" or "the Commonwealth" under the Constitution[55] or may be able to claim other immunities or privileges of "the Crown" in other contexts.[56]
[55]See Deputy Commissioner of Taxation v State Bank (NSW) (1992) 174 CLR 219 at 229-230; State Authorities Superannuation Board v Commissioner of State Taxation (WA) ("SASB") (1996) 189 CLR 253 at 282-284; SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR 51 at 67-68 [15]-[16], 75-76 [45].
[56]See Wynyard Investments Pty Ltd v Commissioner for Railways (NSW) (1955) 93 CLR 376 at 394-395; Townsville Hospitals Board v Townsville City Council (1982) 149 CLR 282 at 288-289, 291-292; McNamara v Consumer Trader and Tenancy Tribunal (2005) 221 CLR 646 at 662 [44], 669 [65].
Presumptions
It is presumed that legislation does not bind the Crown ("the Bropho presumption").[57] A rationale for the Bropho presumption is that, "in general, acts of the legislature are meant to regulate and direct the acts and rights of citizens and, in most cases, the reasoning applicable to them applies with very different, and often contrary, force to the government itself".[58] It is also presumed that legislation does not make the Crown liable to be prosecuted for or convicted of an offence ("the Cain v Doyle presumption").[59] This presumption has been described as based upon "the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty".[60]
[57]Bropho v Western Australia (1990) 171 CLR 1 at 14-24. See also Jacobsen v Rogers (1995) 182 CLR 572 at 585-586; Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 346‑347 [16]-[17]; Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd (2007) 232 CLR 1 at 27-28 [41]-[42]; Federal Commissioner of Taxation v Tomaras (2018) 265 CLR 434 at 439-440 [2], 443-444 [18], 451-453 [52]‑[54], 468-470 [104]-[109].
[58]Tomaras (2018) 265 CLR 434 at 452 [53], referring to The Commonwealth v Western Australia (Mining Act Case) (1999) 196 CLR 392 at 410 [35], in turn quoting United States v Hoar (1821) 26 Fed Cas 329 at 330. See also Roberts v Ahern (1904) 1 CLR 406 at 418; Tomaras (2018) 265 CLR 434 at 443-444 [18].
[59](1946) 72 CLR 409 at 424; see also 419.
[60]SASB (1996) 189 CLR 253 at 270.
Both presumptions apply to the construction of the laws of one Australian jurisdiction and their application to the Crown in the right of that jurisdiction and other Australian jurisdictions.[61] Both are now properly described as principles of statutory construction, not as part of the prerogative.[62] Both are rebuttable presumptions, not strict rules of construction. As these reasons will show, while both presumptions refer to "the Crown", there are circumstances, of which this appeal is one, where the content being given to the expression "the Crown" needs close examination.
[61]Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107 at 121-123, 127-129, 134-136; Jacobsen (1995) 182 CLR 572 at 585, 601-603; SASB (1996) 189 CLR 253 at 264, 270; Mining Act Case (1999) 196 CLR 392 at 409-410 [32], 411 [36]; Telstra Corporation Ltd v Worthing (1999) 197 CLR 61 at 75 [22].
[62]Bropho (1990) 171 CLR 1 at 15; Baxter (2007) 232 CLR 1 at 27 [40]; Tomaras (2018) 265 CLR 434 at 451 [52]. See also Seddon, "The Crown" (2000) 28 Federal Law Review 245 at 254; Herzfeld and Prince, Interpretation, 2nd ed (2020) at 229 [9.380].
Bropho and Cain v Doyle are sometimes described as part of one presumption existing on a continuum (or as having general and specific applications).[63] On that understanding, the presumption applies with extraordinary force, or has extraordinary strength, against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature. In State Authorities Superannuation Board v Commissioner of State Taxation (WA) ("SASB"), four Justices of this Court described the presumptions as being distinct.[64] In this case, it is useful to treat the presumptions as separate and to draw out three differences between them because, as will be explained, the Sacred Sites Act does evince an intention to bind the Crown.[65]
[63]See, eg, Bropho (1990) 171 CLR 1 at 23; Tomaras (2018) 265 CLR 434 at 470 [108]-[109], cf 472-473 [116]. See also Herzfeld and Prince, Interpretation, 2nd ed (2020) at 270 [10.120].
[64](1996) 189 CLR 253 at 270.
[65]See Barrett, "Prosecuting the Crown" (2002) 4 University of Notre Dame Australia Law Review 39 at 59-60.
First, the Bropho presumption goes to whether the statute binds the Crown; the Cain v Doyle presumption goes to whether the statute exposes the Crown to criminal liability. In other words, the Bropho presumption is directed to whether a statute makes an act or omission by or on behalf of the Crown unlawful, whereas the Cain v Doyle presumption is directed to whether the Crown is criminally responsible for an unlawful act or omission proscribed by statute. Even if a statute binds the Crown, it is presumed not to expose the Crown to criminal prosecution, conviction or penalty. The Crown may be bound to comply with the provisions in an Act but at the same time may not be exposed to criminal liability for breach of those provisions.[66]
[66]Cain v Doyle (1946) 72 CLR 409 at 423, 425; The Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254 at 265; SASB (1996) 189 CLR 253 at 270-271. cf Telstra (1999) 197 CLR 61 at 75 [22]-[23].
This is a distinction that was made in Cain v Doyle. Under the legislation in that case, s 18(1) created an offence for an "employer" to terminate the employment of an employee in certain circumstances and s 10(1) specified that "employer" included the Crown (whether in right of the Commonwealth or a State) and any authority constituted by or under the law of the Commonwealth or of a State or Territory of the Commonwealth. The defendant submitted that "upon its proper construction s 18 does not impose penalties upon the Crown but binds the Crown by a legislative direction depending upon the constitutional and legal remedies appropriate to the Crown and stops short of including the Crown in the liability to the punishment appointed for a violation of its provisions".[67] Dixon J agreed with that distinction, observing that in that case "no one doubts that the prohibition contained in s 18(1) against terminating the employment of a reinstated employee applies to the Crown ... The whole question is whether the words at the foot of the sub-section – 'Penalty: One hundred pounds,' apply to the Crown."[68] His Honour went on to conclude that that penalty in s 18(1) did not apply to the Crown.[69]
[67]Cain v Doyle (1946) 72 CLR 409 at 423.
[68]Cain v Doyle (1946) 72 CLR 409 at 425.
[69]Cain v Doyle (1946) 72 CLR 409 at 426.
In other words, a single provision may have both directive aspects and penal aspects.[70] It may prohibit conduct as well as create criminal liability for engaging in the prohibited conduct. It may impose obligations as well as create criminal liability for failure to comply with those obligations. The directive aspects of the provision may bind the Crown, even if the penal aspects do not. Depending on the terms of the statute, and the circumstances, civil remedies for breach or anticipated breach of the statute might be available, such as a declaration or an injunction.[71]
[70]See Barrett, "Prosecuting the Crown" (2002) 4 University of Notre Dame Australia Law Review 39 at 66-67. See also Cain v Doyle (1946) 72 CLR 409 at 425.
[71]See Bropho (1990) 171 CLR 1 at 10, 25.
Second, the scope of protection or application is different. The Bropho presumption applies to the benefit of the Crown or body politic itself, and also to those who act on its behalf – government instrumentalities, employees and agents acting in the course of their functions or duties.[72] Or, more precisely, the Bropho presumption presumes that legislation does not impair or affect the legal position of the Crown and, because the Crown can act only through its servants or agents,[73] the presumption extends to those servants or agents.[74]
[72]Bropho (1990) 171 CLR 1 at 15-16, 24-25; Mining Act Case (1999) 196 CLR 392 at 410 [33], 429 [105]; Baxter (2007) 232 CLR 1 at 26-27 [39]; Tomaras (2018) 265 CLR 434 at 452-453 [52]-[54]. See also British Broadcasting Corporation v Johns [1965] Ch 32 at 81.
[73]See Bropho (1990) 171 CLR 1 at 16, quoting British Broadcasting Corporation [1965] Ch 32 at 78-79. See also Cain v Doyle (1946) 72 CLR 409 at 425.
[74]Tomaras (2018) 265 CLR 434 at 443-444 [18], 451-453 [52]‑[54]. See also Wynyard (1955) 93 CLR 376 at 393-394; McNamara (2005) 221 CLR 646 at 655 [23]-[24].
By contrast, the Cain v Doyle presumption has been held not to benefit natural persons who act with the authority or purported authority of the Crown – be they servants or agents.[75] One question in this appeal, which is addressed below, is whether the Cain v Doyle presumption is limited to the body politic.
[75]Jacobsen (1995) 182 CLR 572 at 587. See also Cain v Doyle (1946) 72 CLR 409 at 424-425; Bropho (1990) 171 CLR 1 at 21, 25, 26-27; Wurridjalv The Commonwealth (2009) 237 CLR 309 at 380-381 [164]-[165]. See also A v Hayden (1984) 156 CLR 532 at 580-582; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410 at 427-428, 472.
Third, the Cain v Doyle presumption is of stronger force than the Bropho presumption. Depending on the circumstances, the Bropho presumption may represent little more than a starting point for ascertaining legislative intent.[76] All the circumstances must be considered in determining whether the presumption has been rebutted, including but not limited to "the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the activities of the Executive Government which would be affected if the Crown is bound".[77] The strength of the Bropho presumption has varied over time. If the Act in issue was enacted before Bropho was decided, that is just one circumstance to be taken into account.[78]
[76]Bropho (1990) 171 CLR 1 at 23; Tomaras (2018) 265 CLR 434 at 451-452 [52], 470 [109].
[77]Bropho (1990) 171 CLR 1 at 28. See also Baxter (2007) 232 CLR 1 at 28 [42]; Tomaras (2018) 265 CLR 434 at 452 [52].
[78]Bropho (1990) 171 CLR 1 at 23.
By contrast, the Cain v Doyle presumption may only be displaced with "the clearest expression of intention".[79] As stated by Dixon J in Cain v Doyle, "[t]here is ... the strongest presumption against attaching to a statutory provision a meaning which would amount to an attempt to impose upon the Crown a liability of a criminal nature".[80] His Honour went on to explain that "[i]t is opposed to all our conceptions, constitutional, legal and historical. Conceptions of this nature are, of course, not immutable and we should beware of giving effect to the strong presumption in their favour in the face of some clear expression of a valid intention to infringe upon them."[81]
[79]Cain v Doyle (1946) 72 CLR 409 at 425. See also Telstra (1999) 197 CLR 61 at 75 [22]; X v Australian Prudential Regulation Authority (2007) 226 CLR 630 at 636 [14].
[80]Cain v Doyle (1946) 72 CLR 409 at 424 (emphasis added).
[81]Cain v Doyle (1946) 72 CLR 409 at 424.
Relatively few cases in this Court apply or even refer to the Cain v Doyle presumption. However, none of those cases have doubted the presumption, instead describing it variously as "extraordinarily strong",[82] only rebutted in "exceptional circumstances",[83] and requiring for its rebuttal "the clearest indication of a legislative purpose".[84]
[82]Bropho (1990) 171 CLR 1 at 23; Tomaras (2018) 265 CLR 434 at 470 [108].
[83]SASB (1996) 189 CLR 253 at 270.
[84]Telstra (1999) 197 CLR 61 at 75 [22]; Wurridjal (2009) 237 CLR 309 at 380-381 [164].
In Bropho, the "extraordinarily strong" presumption against a legislative intent that the general words of a statute should be construed in a way that would make "the Sovereign herself or himself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence" was stated without referring to Cain v Doyle.[85] In these reasons, the reference to the Cain v Doyle presumption is retained. It is that presumption – or more precisely, its scope and application – that is the primary focus of this appeal.
[85]Bropho (1990) 171 CLR 1 at 23.
Is the DNP exposed to criminal liability for breach of s 34(1) of the Sacred Sites Act? It is necessary to turn to the Act.
Sacred Sites Act
The Sacred Sites Act seeks "to effect a practical balance between the recognized need to preserve and enhance Aboriginal cultural tradition in relation to certain land in the Territory and the aspirations of the Aboriginal and all other peoples of the Territory for their economic, cultural and social advancement, by establishing a procedure for the protection and registration of sacred sites, providing for entry onto sacred sites and the conditions to which such entry is subject, establishing a procedure for the avoidance of sacred sites in the development and use of land and establishing an Authority for the purposes of the Act and a procedure for the review of decisions of the Authority by the Minister".[86] It was enacted by the Legislative Assembly of the Northern Territory in 1989, pursuant to the grant of legislative power in s 6 of the Northern Territory (Self‑Government) Act 1978 (Cth) and s 73(1)(a) of the Land Rights Act to make laws providing for the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory.
[86]Sacred Sites Act, Long Title.
The Act applies to all sacred sites throughout the Territory. A "sacred site" is defined by reference to the definition in the Land Rights Act, namely a site that is "sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition".[87] Sacred sites may be registered under Pt III, Div 2 of the Sacred Sites Act. A sacred site, however, will be a sacred site regardless of whether it is registered.
[87]Sacred Sites Act, s 3 (definition of "sacred site"); Land Rights Act, s 3(1) (definition of "sacred site").
Divisions 1A, 1 and 3 of Pt III provide for certificates to authorise "persons" to do such things as would otherwise be criminal offences under the Act. Section 19B provides that a person who proposes to use or carry out work on land may apply to the Authority for an Authority Certificate. Section 22 provides that the Authority shall issue an Authority Certificate in relation to an application under s 19B where it is satisfied of one or other of two conditions. First, the work or use of the land could proceed or be made without there being a substantive risk of damage to or interference with a sacred site on or in the vicinity of the land.[88] Second, an agreement has been reached between the custodians and the applicant.[89] The Minister also has a power to issue a Minister's Certificate under s 32(1)(b) at the conclusion of a review procedure provided for in the Act.[90] The effect of an Authority Certificate or Minister's Certificate is that, subject to any conditions of the certificate, a person may enter and remain on the land in the application, and do such things on the land as are reasonably necessary for carrying out the work or use of the land.[91] As has been explained, the DNP did not have an Authority Certificate or Minister's Certificate.
[88]Sacred Sites Act, s 22(1)(a).
[89]Sacred Sites Act, s 22(1)(b).
[90]Sacred Sites Act, ss 3 (definition of "Minister's certificate") and 32(1)(b).
[91]Sacred Sites Act, ss 25 and 32(2).
Part IV of the Sacred Sites Act sets out offences and penalties in relation to sacred sites.[92] Section 34, the offence provision at issue in this appeal, provides:
"(1) A person shall not carry out work on or use a sacred site.
Maximum penalty: In the case of a natural person – 400 penalty units or imprisonment for 2 years.
In the case of a body corporate – 2 000 penalty units.
(2)It is a defence to a prosecution for an offence against subsection (1) if it is proved that the defendant carried out the work on or used the sacred site with, and in accordance with the conditions of, an Authority Certificate or a Minister's Certificate permitting the defendant to do so." (emphasis added)
[92]A prosecution for an offence against the Act or Regulations may only be brought by the Authority: Sacred Sites Act, s 39.
Other offences include entry onto sacred sites;[93] desecration of sacred sites;[94] and contravention of the conditions of a certificate.[95] There are statutory defences to the offences under ss 33, 34(1) and 35, which are not in issue in this appeal.[96] Each of the offences applies to "persons". Under s 17 of the Interpretation Act 1978 (NT), "person" in an Act includes a body politic and a body corporate.[97]
[93]Sacred Sites Act, s 33.
[94]Sacred Sites Act, s 35.
[95]Sacred Sites Act, s 37.
[96]Sacred Sites Act, s 36.
[97]See also Interpretation Act 1978 (NT), s 24AA.
Does s 34(1) of the Sacred Sites Act bind the Crown as a "person"? That question is addressed directly in s 4, headed "Act binds Crown". It states:
"(1) This Act binds the Territory Crown and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
(2)If the Territory Crown in any of its capacities commits an offence against this Act, the Territory Crown is liable in that capacity to be prosecuted for the offence as if it were a body corporate.
(3)This section does not affect any liability of an officer, employee or agent of the Territory Crown to be prosecuted for an offence.
(4) In this section:
Territory Crown means the Crown in right of the Territory and includes:
(a) an Agency[[98]]; and
(b)an authority or instrumentality of the Territory Crown." (emphasis added)
[98]See definition of "Agency" in Interpretation Act 1978 (NT), s 18A(1).
Section 4(1) evinces an express intention to bind the Crown, including "the Crown in all its ... capacities". Section 4(1) is a statement of the Legislative Assembly's intention that the provisions of the Sacred Sites Act, including s 34(1), should apply to the Executive Governments of the Commonwealth, States and Territories, and their instrumentalities, employees or agents acting in the course of their functions or duties.[99] That is, the Sacred Sites Act evinces an intention to bind all "persons" indifferently to its provisions, consistently with the purpose of the Act to protect sacred sites wherever those sites are located in the Territory.
[99]See Bropho (1990) 171 CLR 1 at 15-16, 24-25.
In this appeal, and in the Full Court below, it was accepted that the Commonwealth is bound to comply with the provisions of the Sacred Sites Act, including its legal obligations and prohibitions. It was also common ground in this appeal that the word "person" in s 34(1) includes a body politic. That is, all persons – natural persons, body corporates and body politics – are prohibited under s 34(1) of the Sacred Sites Act from carrying out work on or using a sacred site.
Put in different terms, the Bropho presumption was rebutted.
There is then the separate question of whether s 34(1) of the Sacred Sites Act exposes a body politic to criminal liability. The answer is yes, in part. The body politic of the Northern Territory of Australia is exposed to criminal liability. The bodies politic of the other States, the Australian Capital Territory and the Commonwealth are not.
First, it is relevant to observe that the maximum penalty that follows s 34(1) specifies a penalty for a natural person and a penalty for a body corporate. There is no penalty specified for a body politic.[100]
[100]See also Interpretation Act 1978 (NT), ss 38B and 38C.
As explained, the presumption that a statute does not expose the Crown to criminal prosecution, conviction or penalty may only be displaced with "the clearest expression of intention".[101] Section 4(2) of the Sacred Sites Act provides such a clear expression of legislative intention in respect of the "Territory Crown", defined as meaning the Crown in right of the Territory and as including Agencies, authorities and instrumentalities. It provides that, if the Territory Crown in any of its capacities commits an offence against the Sacred Sites Act, the Territory Crown is liable in that capacity to be prosecuted for the offence as if it were a body corporate. That means that the penalty specified in s 34(1) for a body corporate could be imposed on the Territory Crown.
[101]Cain v Doyle (1946) 72 CLR 409 at 425. See also Telstra (1999) 197 CLR 61 at 75 [22]; X (2007) 226 CLR 630 at 636 [14].
The Sacred Sites Act, however, does not contain a clear expression of intention to make the Crown in right of the Commonwealth liable to be prosecuted (or the Crown in right of the other States or the Australian Capital Territory). It was not in dispute that the Sacred Sites Act does not seek to expose the Commonwealth (as a body politic) to criminal liability for breach of s 34(1). Indeed, both parties accepted that a negative implication could be drawn from s 4(2) to (4) that the Act did not seek to make the Commonwealth criminally liable.
That construction is supported by the legislative history of s 4. Prior to 2006, s 4 stated that "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, it was similar in terms to the current s 4(1).
In 2006, the Northern Territory Aboriginal Sacred Sites Amendment Act 2005 (NT) repealed s 4 and substituted it with the current section. However, when the Bill which eventually became that Act was introduced into the Legislative Assembly, s 4 was proposed to be substituted with:
"(1) This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
(2)If the Crown in any of its capacities commits an offence against this Act, the Crown is liable in that capacity to be prosecuted for the offence as if it were a body corporate.
(3) This section does not affect any liability of an officer, employee or agent of the Crown to be prosecuted for an offence.
(4) In this section –
'Crown' includes –
(a) an Agency; and
(b)an authority or instrumentality of the Crown." (emphasis added)
When that Bill was read for a second time in October 2005, the Minister for Local Government relevantly explained:[102]
"In the Territory, government agencies and authorities undertake a significant proportion of works for roads, infrastructure and development. It is disappointing to note that, despite encouraging reforms in the monitoring systems of agencies, a percentage of reported sacred sites damage has been caused as a result of actions or approvals by government agencies and authorities. In recent cases of alleged site damage by the government agencies or authorities, it has become apparent that there is a lack of clarity in the liability of the Crown to be prosecuted for breaches of the Northern Territory Aboriginal Sacred Sites Act, or accordingly, some prosecutions have not been pursued despite sufficient evidence.
The inability to prosecute the Crown for sacred site damage and thus seek a form of reparation is a source of dissatisfaction amongst both authority members and the Aboriginal custodians.
The bill provides an appropriate capacity to prosecute the Crown by clarifying that:
•if the Crown in any of its capacities commits an offence against the Northern Territory Aboriginal Sacred Sites Act, then it is liable in that capacity;
•the 'Crown' includes agencies, authorities and instrumentalities of the Crown; and
•the existing liability of an officer, employee or agent of the Crown to be prosecuted for an offence is not affected." (emphasis added)
[102]Northern Territory of Australia, Legislative Assembly, Parliamentary Debates (Hansard), 20 October 2005 at 1062-1063.
In December 2005, the Government invited the defeat of cl 4 of the Bill in order to substitute a narrowed version of s 4(2) to (4), which replaced the reference to "the Crown" with the "Territory Crown" as it presently appears.[103] The Attorney‑General of the Northern Territory said:[104]
"The Northern Territory Aboriginal Sacred Sites Act currently binds the Crown but, in case law, this is not always clear. Case law would indicate that individual employees and agents of the Crown are liable to prosecution already. This is made clear in the amendment. However, this amendment also intends to make it clear that agencies and authorities are liable for prosecution as well.
On the question of whether the amendment is able to bind the Crown or the Northern Territory government, there has been further information sought on this from the Solicitor-General. I will not share that with the House; I will leave that to the minister carrying the next stage of the debate. Certainly, the Solicitor-General has clarified the situation between the two governments." (emphasis added)
[103]Northern Territory of Australia, Legislative Assembly, Parliamentary Debates (Hansard), 1 December 2005 at 1352.
[104]Northern Territory of Australia, Legislative Assembly, Parliamentary Debates (Hansard), 1 December 2005 at 1349.
The Minister assisting the Chief Minister on Indigenous Affairs then said:[105]
"I also want to talk about the liability of the Crown. The Northern Territory Aboriginal Sacred Sites Act already binds the Crown but, in this case, the law is not always clear. I am aware that we are going to invite the defeat of section 4, that part that applies to the Commonwealth, and we will give an explanation about that later.[[106]] Case law indicates that individual employees and agents of the Crown are liable to prosecution already. This is made very clear in the amendment.
This amendment also intends to make it clear that agencies and authorities are liable to prosecution as well, and that is what did not occur in the previous act." (emphasis added)
[105]Northern Territory of Australia, Legislative Assembly, Parliamentary Debates (Hansard), 1 December 2005 at 1351.
[106]No explanation is subsequently recorded in the Debates.
It is therefore apparent that, consistently with what appears from the text of s 4(2) to (4) as enacted, there was a deliberate choice by the Legislative Assembly to apply those sub-sections only to the Territory Crown, not the Crown in all its capacities. Put in different terms, as the Authority submitted, "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."
The Commonwealth Attorney-General argued that a further "negative implication" could be drawn from s 4(2) to (4) that Commonwealth statutory corporations were also not liable to prosecution and penalty under s 34(1) of the Sacred Sites Act. That is, the Attorney argued that, on the proper construction of s 4(2) to (4), the intention of the Legislative Assembly not to impose criminal liability on the DNP as a body corporate was clear, even without regard to the Cain v Doyle presumption. That contention is rejected.
The Commonwealth Attorney-General relied on the breadth of the definition of "Territory Crown" in s 4(4), arguing that the Act takes a broad view of the "Crown" beyond merely the body politic. The Attorney submitted that there is nothing in s 4(2) to (4) that draws a distinction between corporate or non‑corporate manifestations of the Territory Crown. On the Attorney's submission, the "authority or instrumentality" referred to in s 4(4)(b) may have independent corporate personality (for example, the appellant itself is established as an authority under s 5 of the Sacred Sites Act as a body corporate) and the reference to "agent" in s 4(3) is only to natural persons. In sum, the Attorney argued that the Legislative Assembly sought to bring the Territory body politic proper as well as all its extended corporate and non-corporate authorities or instrumentalities within the reach of the criminal law. Critically, however, s 4(2) to (4) do that work only for the Territory Crown. According to the Attorney, the negative implication to be drawn from that section, demonstrated by the legislative history of s 4, was that the Legislative Assembly decided not to impose criminal liability on Commonwealth authorities or instrumentalities, even those with independent legal personality.
The problem with the Commonwealth Attorney-General's submission is that s 4(2) to (4) only address the position of the Territory Crown. One can draw a negative implication from those provisions that the Legislative Assembly was willing to make the Territory body politic subject to prosecution as if it were a body corporate and that it was not willing to do so in relation to other bodies politic. The purpose of s 4(2) to (4) was to ensure that the Crown in right of the Territory, in all its capacities including unincorporated capacities, is able to be prosecuted. To the extent that the definition of "Territory Crown" includes incorporated bodies that would in any event be exposed to criminal prosecution, that may reflect a cautious approach to the scope of the Cain v Doyle presumption. It draws too long a bow to make a more expansive negative inference that the Legislative Assembly was intending to exclude the incorporated bodies of other States and the Commonwealth from criminal liability that would otherwise be imposed by the general provisions of the Act.
Therefore, contrary to the Commonwealth Attorney-General's submission, the question in this appeal is not answered by the drawing of a negative implication from the text, context and legislative history of s 4(2) to (4) of the Sacred Sites Act to the effect that the DNP is not exposed to criminal liability as a Commonwealth statutory corporation.
The question then is whether the DNP, a body corporate constituted under the EPBC Act, is entitled to the benefit of the Cain v Doyle presumption that legislation does not make the Crown liable to be prosecuted for or convicted of an offence under s 34(1) of the Sacred Sites Act. As will be explained, the answer is "No". The Cain v Doyle presumption is limited to the body politic, the DNP is not the body politic, and the EPBC Act did not confer on the DNP any immunity or presumptive immunity from criminal liability imposed by statute.
Cain v Doyle presumption limited to the body politic
It is first useful to clarify what is meant by "body politic", "the Commonwealth", "the Executive Government of the Commonwealth", "the Crown" and "the Crown in right of the Commonwealth" in this context.
In 1901, the colonies federated as the Commonwealth of Australia "under the Crown of the United Kingdom of Great Britain and Ireland".[107] The Constitution, in identifying the new body politic which it established, does not use the term "the Crown"; instead, it uses the terminology of "the Commonwealth".[108]
[107]Constitution, preamble. See Saunders, "The Concept of the Crown" (2015) 38 Melbourne University Law Review 873 at 885. See also Hocking v Director-General of the National Archives of Australia (2020) 271 CLR 1 at 40 [75].
[108]See, eg, Constitution, covering clauses 3 and 6 (definition of "the Commonwealth") and ss 1, 61, 71. See also Sue v Hill (1999) 199 CLR 462 at 498 [84]; Saunders, "The Concept of the Crown" (2015) 38 Melbourne University Law Review 873 at 887.
The Commonwealth and States are distinct persons under the Constitution.[109] The Commonwealth as a legal person is comprised of three branches separated under the Constitution: the Parliament (Ch I), the Executive Government (Ch II) and the Judicature (Ch III).[110] The branches of government do not have separate legal personality.[111] The Commonwealth and the States are capable of the ownership of property, of enjoying rights and incurring obligations, and of suing and being sued, and this is not merely as between the government and private persons, but by each government as distinguished from and as against each other government.[112] The same can be said of the Northern Territory.[113]
[109]See Sue v Hill (1999) 199 CLR 462 at 501 [90]-[91]; Hocking (2020) 271 CLR 1 at 40 [75], 87-88 [213].
[110]Williams v The Commonwealth (2012) 248 CLR 156 at 184 [21], 185 [23], 237 [154]; Hocking (2020) 271 CLR 1 at 40 [75]; Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 214 at 231 [68]; 408 ALR 381 at 399-400.
[111]Williams (2012) 248 CLR 156 at 184 [21], 237 [154]; Davis (2023) 97 ALJR 214 at 231 [68]; 408 ALR 381 at 399-400.
[112]Sue v Hill (1999) 199 CLR 462 at 501 [90], quoting Moore, "The Crown as Corporation" (1904) 20 Law Quarterly Review 351 at 359.
[113]The Northern Territory of Australia is established as a body politic under the Crown by s 5 of the Northern Territory (Self-Government) Act 1978 (Cth), by exercise of the legislative power under s 122 of the Constitution. See Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 265-266, 271-273.
The expression "the Crown" "normally means the Sovereign considered as the central government of the Commonwealth or a State"[114] – that is, the Commonwealth, the State or the Territory as it acts through the executive branch. When referring to the exercise of the executive power of the Commonwealth through the Executive Government of the Commonwealth, and when referring to its control, the distinct legal personality of the Commonwealth as a body politic has traditionally been expressed as "the Crown in right of the Commonwealth".[115]
[114]Wynyard (1955) 93 CLR 376 at 393.
[115]Hocking (2020) 271 CLR 1 at 40-41 [75]; see also 88 [213].
The Authority submitted that there are no decisions in this Court that apply Cain v Doyle beyond the body politic to a statutory body or corporation with independent legal personality. The Commonwealth Attorney-General submitted that there are two such decisions – Telstra Corporation Ltd v Worthing[116] and SASB[117]. It is necessary to examine this Court's primary authorities that refer to the Cain v Doyle presumption in chronological order – Cain v Doyle, Bropho v Western Australia[118], Jacobsen v Rogers[119], SASB, Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority[120], Telstra and Wurridjal v The Commonwealth[121] – to identify how the Court in those cases described who gets the benefit of the presumptive immunity.
[116](1999) 197 CLR 61.
[117](1996) 189 CLR 253.
[118](1990) 171 CLR 1.
[119](1995) 182 CLR 572.
[120](1997) 190 CLR 410.
[121](2009) 237 CLR 309.
What that analysis will reveal is that no decision of this Court has held that the presumption in Cain v Doyle extends beyond the body politic.[122] And, as will be explained, there is no basis to extend the presumption. That is not to deny the fact that the legislature may expressly or impliedly confer on a body an immunity or presumptive immunity from criminal laws. But it did not do so in this case.
[122]See also X (2007) 226 CLR 630 at 636 [14].
Cain v Doyle
In Cain v Doyle, Latham CJ's view was in the nature of a rule that "the Crown in right of the Commonwealth" was incapable of being prosecuted by the Commonwealth.[123] However, Ministers and officers of the Crown could be guilty of breaches of Commonwealth law.[124] Dixon J (with Rich J agreeing) described it as a presumption for the benefit of "the Executive Government" or "the Crown itself".[125] In doing so, Dixon J distinguished "the Crown" from "its Ministers and servants".[126]
[123]Cain v Doyle (1946) 72 CLR 409 at 417-418.
[124]Cain v Doyle (1946) 72 CLR 409 at 418.
[125]Cain v Doyle (1946) 72 CLR 409 at 424, 425.
[126]Cain v Doyle (1946) 72 CLR 409 at 425.
Bropho
In Bropho, the Act that established the Western Australian Development Corporation ("the WADC") expressly provided that it was an agent of the Crown in right of the State and enjoyed the status, immunities and privileges of the Crown.[127] The appellant had commenced proceedings in the Supreme Court of Western Australia against the State of Western Australia and the WADC seeking a declaration and injunction under the Aboriginal Heritage Act 1972 (WA), which was struck out on the ground that the Act did not bind the Crown. The issue on appeal was whether s 17 of the Act (which created an offence for damaging an Aboriginal site) applied to the Crown or to instrumentalities or individuals acting on its behalf.[128]
[127]Bropho (1990) 171 CLR 1 at 11.
[128]Bropho (1990) 171 CLR 1 at 13-14.
The Court held that the Act evinced an intention that all natural persons, including government employees, should be bound.[129] The joint judgment observed that government employees acting in the course of their duties could be found guilty of an offence under s 17.[130] It followed that the WADC had no power to authorise its employees or others to carry out activities of the type proscribed by the section.[131] That being so, declaratory and injunctive relief would be available on the facts alleged in the statement of claim.[132] It was, therefore, unnecessary for the purposes of the appeal to consider whether the WADC itself was liable to prosecution or conviction for an offence against s 17.[133]
[129]Bropho (1990) 171 CLR 1 at 24-25; see also 28.
[130]Bropho (1990) 171 CLR 1 at 25.
[131]Bropho (1990) 171 CLR 1 at 25.
[132]Bropho (1990) 171 CLR 1 at 25.
[133]Bropho (1990) 171 CLR 1 at 25.
In the course of setting out the relevant principles, the joint judgment observed that, if the question in issue is whether the general words of a statute should be construed in a way which would make "the Sovereign herself or himself in the right of the Commonwealth or of a State" liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong.[134] Brennan J, who wrote separately, described the principle in Cain v Doyle as applying to the imposition of criminal liability on "the Crown".[135] This was contrasted with the imposition of criminal liability on servants and agents even when acting within the scope of authority given by the Crown.[136]
[134]Bropho (1990) 171 CLR 1 at 23 (emphasis added), citing cf Canadian Broadcasting Corporation v Attorney-General for Ontario [1959] SCR 188 at 204-205.
[135]Bropho (1990) 171 CLR 1 at 26, referring to Cain v Doyle (1946) 72 CLR 409 at 424.
[136]Bropho (1990) 171 CLR 1 at 27.
Jacobsen
Jacobsen raised the question of whether s 10 of the Crimes Act 1914 (Cth) bound the Crown in right of the State of Western Australia so as to subject it to the execution of two search warrants issued pursuant to that section authorising the Australian Federal Police to enter and search the Fisheries Department of Western Australia. In the course of their analysis, the majority observed that:[137]
"It is ... important to recognize that the Crown, being relevantly the executive branch of government, carries out in modern times multifarious functions involving the use and occupation of many premises and the possession of many things. It carries out those functions through servants and agents who, notwithstanding that they act with the authority of the Crown, have no immunity from the ordinary criminal law.[138] The Crown itself may not be subjected to criminal liability, save in the most exceptional circumstances,[139] but those who actually occupy Crown premises or hold Crown property are in a different position." (emphasis added)
[137]Jacobsen (1995) 182 CLR 572 at 587.
[138]See Bropho (1990) 171 CLR 1 at 21, 26; Hayden (1984) 156 CLR 532 at 580-582.
[139]See Cain v Doyle (1946) 72 CLR 409 at 424.
The majority reasoned that, accordingly, there may exist on Crown premises things which will afford evidence of the commission of an offence, whether the offence is committed by a servant or agent of the Crown or by someone else.[140] The majority held that the Bropho presumption was rebutted, having regard to the main purpose of s 10, which was to facilitate the investigation and prosecution of criminal offences.[141]
[140]Jacobsen (1995) 182 CLR 572 at 587.
[141]Jacobsen (1995) 182 CLR 572 at 588.
SASB
SASB was the first decision that the Commonwealth Attorney‑General argued was authority that Cain v Doyle may apply for the benefit of a statutory corporation. In SASB, Brennan CJ, Dawson, Toohey and Gaudron JJ appeared to assume in obiter that the State Authorities Superannuation Board ("the SASB") could be "the Crown" for the purpose of the Cain v Doyle presumption, but determined that it was not necessary to decide that question for the purposes of the appeal because the SASB was bound to pay stamp duty under the Stamp Act 1921 (WA) irrespective of whether it was exposed to criminal liability for failure to pay.[142]
[142]SASB (1996) 189 CLR 253 at 270.
McHugh and Gummow JJ observed that the Cain v Doyle presumption has been said to apply where a statute has conferred the immunity of the Crown upon a body or corporation,[143] and stated that the SASB would be "the State" for the purposes of the Cain v Doyle presumption.[144] Three aspects of that reasoning should be noted. First, the statements were obiter; second, the first statement is qualified by the words "has been said to apply"; and third, the authorities cited do not directly support or are contrary to the proposition.
[143]SASB (1996) 189 CLR 253 at 277, citing Bolwell v Australian Telecommunications Commission (1982) 42 ALR 235 at 241 and R v Eldorado Nuclear Ltd [1983] 2 SCR 551 at 565-567.
[144]SASB (1996) 189 CLR 253 at 294.
The first authority cited by McHugh and Gummow JJ was Bolwell v Australian Telecommunications Commission[145], a decision of the Federal Court of Australia (Smithers J) where it was held that the relevant provision did not bind the Crown – the Crown was not "within [the provision's] statutory command"[146] – and therefore did not bind the defendant statutory corporation "as an emanation of the Crown".[147] In coming to that conclusion, Smithers J treated Cain v Doyle as the strongest end of the general presumption that legislation does not bind the Crown, requiring an "unequivocal indication" where the statutory provision is a penal provision.[148]
[145](1982) 42 ALR 235.
[146]Bolwell (1982) 42 ALR 235 at 238.
[147]Bolwell (1982) 42 ALR 235 at 237-238, 241-244.
[148]Bolwell (1982) 42 ALR 235 at 241.
The second authority cited by McHugh and Gummow JJ, R v Eldorado Nuclear Ltd,[149] does distinguish between a statute binding the Crown and a statute exposing the Crown to criminal liability, and is contrary to the proposition that the presumption against the latter applies for the benefit of statutory corporations acting on behalf of the Crown. In that case a majority of the Supreme Court of Canada held that the relevant legislation did not bind the Crown, and that the statutory corporations were immune because they were agents of the Crown.[150] Dickson J, writing for the majority, expressly rejected the notion that Crown agents are immune from criminal liability for unlawful acts, observing that "[t]he maxim that the Queen can do no wrong is a legal fiction which, at common law, serves the purpose of preventing the Queen from being impleaded in her own courts. There is, however, no comparable maxim that an agent of the Queen can do no wrong."[151] The statutory corporations were not criminally liable because the acts were not unlawful, as the Act did not bind the Crown and the corporations were acting on the Crown's behalf,[152] not because the Cain v Doyle presumption applied for the benefit of the corporations as agents of the Crown.
[149][1983] 2 SCR 551.
[150]Eldorado Nuclear [1983] 2 SCR 551 at 562-565.
[151]Eldorado Nuclear [1983] 2 SCR 551 at 564 (emphasis added).
[152]Eldorado Nuclear [1983] 2 SCR 551 at 564-566, 577-578.
To the extent that McHugh and Gummow JJ's obiter statements suggest that the Cain v Doyle presumption extends beyond the body politic, they are to be disregarded.
Residential Tenancies
Residential Tenancies was not a case dealing with the Cain v Doyle presumption; however, two members of the Court made observations that are relevant to this case. The analysis of Brennan CJ made clear that servants and agents of the Crown do not have any presumptive immunity from criminal law. His Honour stated that:[153]
"If a servant or agent of the Crown fails to perform [a] duty [to be performed under penalty] or engages in ... prohibited conduct, a question arises as to whether the servant or agent is immune from criminal liability by reason of his or her employment or agency. If the act is done or the omission is made in exercise of a statutory power conferred by a valid law of the Commonwealth, the servant or agent is immune from criminal liability by reason of the inconsistency between the State law and the Commonwealth law that confers the power. The question is simply one of inconsistency under s 109 of the Constitution. But if the proscribed act is done or the proscribed omission is made by the servant or agent without statutory authority, there is no prerogative power in the Crown in right of the Commonwealth to dispense the servant or agent from liability under the State criminal law."
[153]Residential Tenancies (1997) 190 CLR 410 at 427.
The analysis of Gummow J directly referred to Cain v Doyle. His Honour stated that:[154]
"[W]hen one speaks of a State law which purports to 'bind' the Commonwealth ... the law in question ... may establish a regulatory regime enforced by criminal sanctions as well as civil remedies. It may be one thing to expose one element in the federation to civil action by another and, indeed, s 75(iii) and (iv) provides for federal jurisdiction in such matters, but it is another thing altogether to expose an element in the federation to criminal sanction.
... It would be to enter into another dimension to conclude that a State might create a criminal offence committed by the Commonwealth in respect of the conduct by the Commonwealth itself of its Executive Government." (emphasis added, footnote omitted)
[154]Residential Tenancies (1997) 190 CLR 410 at 472.
Telstra
Telstra was the other decision that the Commonwealth Attorney-General argued was authority that Cain v Doyle may apply for the benefit of a statutory corporation. This case is instructive because, on a close analysis, one can see that the opposite is true.
The Court had to determine whether the Workers Compensation Act 1987 (NSW) applied to the Australian Telecommunications Commission ("the ATC"). The ATC was a body corporate established by the Telecommunications Act 1975 (Cth) and, by s 21(3) of that Act, was not subject to any requirement, obligation, liability, penalty or disability under a law of a State to which the Commonwealth was not subject.
The ATC was held to be an "employer" within the terms of the State legislation.[155] The question was whether it took the benefit of s 21(3) and the extent of the benefit. The Court distinguished between the ATC and "the Commonwealth", on the basis that the ATC derived its powers and duties from statute and did not exercise the executive power of the Commonwealth.[156] The Court held that the ATC was exempt from liability under the Workers Compensation Act because: first, "the Commonwealth" had the benefit of the Cain v Doyle presumption;[157] second, the penal provisions were central to the structure of the regulatory scheme and did not bind the Commonwealth; and third, there was an express provision (s 21(3)) which provided that the ATC was not subject to any liability or penalty to which the Commonwealth was not subject.[158] That is, the ATC was only exempt from liability because of that express provision, not because it had the benefit of the Cain v Doyle presumption. By operation of s 109 of the Constitution, the Workers Compensation Act was inoperative to the extent that it purported to impose liability on the ATC. The EPBC Act does not contain any such provision in relation to the DNP.
[155]Telstra (1999) 197 CLR 61 at 74 [18].
[156]Telstra (1999) 197 CLR 61 at 73 [15], 74 [17]-[18].
[157]Indeed, there was an express provision in the Act that nothing in the statute rendered "the Crown" liable to prosecution.
[158]Telstra (1999) 197 CLR 61 at 75 [22]-[25].
Wurridjal
In Wurridjal, there were four sacred sites located on land in respect of which a lease was granted to the Commonwealth under the Northern Territory National Emergency Response Act 2007 (Cth). Gummow and Hayne JJ observed that the interests of the first and second plaintiffs in relation to those sacred sites were protected by s 69 of the Land Rights Act.[159] Section 69 made it an offence for a person to enter or remain on land in the Territory that is a sacred site. Their Honours explained that, in accordance with accepted principles of statutory construction explained by Dixon J in Cain v Doyle, it would require the "clearest indication of legislative purpose" to demonstrate that such a penal provision attached to the Commonwealth "as a body politic".[160] There was no such indication.[161]
[159]Wurridjal (2009) 237 CLR 309 at 380 [163].
[160]Wurridjal (2009) 237 CLR 309 at 380-381 [164] (emphasis added), citing Cain v Doyle (1946) 72 CLR 409 at 425 and see also Telstra (1999) 197 CLR 61 at 75 [22].
[161]Wurridjal (2009) 237 CLR 309 at 381 [164].
In Bropho, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ did not refer to Cain v Doyle. In referring to the potential criminal liability of the Crown, their Honours confined themselves to the orthodox proposition that no person can claim immunity from the general criminal law by reason of acting under the authority of the Crown.[463]
[463](1990) 171 CLR 1 at 21.
Post-Bropho
Subsequent decisions confirm that Bropho did not, and was not understood to, implicitly overrule the reasoning of Latham CJ, Rich and Dixon JJ in Cain v Doyle. Rather it recast the formerly rigid interpretative presumption against the Crown being bound by a statute only by express words or necessary implication into a more flexible presumption – the strength or weakness of which depends on the full context of the provision in question. While the presumption was accepted to extend to the servants, agents, manifestations, alter egos, and emanations of the bodies politic of the Commonwealth, States and Territories, the tension between Wynyard Investments and Townsville Hospitals Board – concerning the status of a body as representing the Crown and the significance of that status for any immunities of the Crown to which the body may be entitled – remained unresolved.
In Jacobsen v Rogers,[464] Mason CJ, Deane, Dawson, Toohey and Gaudron JJ repeated the (by then) orthodoxy that: (a) the Crown is now understood to be the executive branch of government; (b) as such, the Crown carries out its functions through servants and agents; (c) those servants and agents have never been immune from criminal sanction; and (d) the Crown itself, however, "may not be subjected to criminal liability, save in the most exceptional circumstances".[465] In respect of the fourth proposition, the authority cited in support was Cain v Doyle.[466]
[464](1995) 182 CLR 572.
[465](1995) 182 CLR 572 at 587.
[466](1995) 182 CLR 572 at 587 fn 58.
In State Authorities Superannuation Board v Commissioner of State Taxation(WA),[467] Brennan CJ, Dawson, Toohey and Gaudron JJ considered the question whether the Board, a statutory corporation created under legislation of New South Wales, was bound by Western Australian stamp duties legislation. Their Honours held that the Western Australian stamp duties legislation was not drafted on the basis of the rigid presumption as it applied before Bropho, so that there was "no difficulty in approaching the construction of the Act in the more flexible manner laid down in that case".[468] They then explained that different considerations applied to the criminal provisions of the Western Australian stamp duties legislation by reference to the different presumption discussed in Cain v Doyle "based upon the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty".[469] The generality of the criminal provision (referring to "persons") was insufficient to create an offence of which the Crown could be guilty. They did not need to answer the question whether the Board was the Crown for the purpose of determining liability for the payment of stamp duty under the Western Australian stamp duties legislation because, but for the criminal provision, it was clear that the legislation applied to the Crown.[470]
[467](1996) 189 CLR 253.
[468](1996) 189 CLR 253 at 270.
[469](1996) 189 CLR 253 at 270.
[470](1996) 189 CLR 253 at 270.
A possible outlier in the stream of authority concerning Cain v Doyle is the passing reference to that case by McHugh and Gummow JJ in State Authorities Superannuation Board. Their Honours said that "[t]he same [Cain v Doyle] presumption has been said to apply where a statute has conferred the immunity of the Crown upon a body or corporation",[471] citing in support Bolwell v Australian Telecommunications Commission[472] and R v Eldorado Nuclear Ltd.[473] In Bolwell, Smithers J did refer to "the Crown and an emanation of the Crown" being within the scope of the presumption in Cain v Doyle,[474] citing in support F Sharkey & Co Pty Ltd v Fisher.[475] To the extent relevant, however, that case concerned only the status of a State body, not the presumption in Cain v Doyle. The other case cited in support, R v Eldorado Nuclear Ltd, also concerned the interpretative principle that statutes are presumed not to bind the Crown and the maxim that the monarch (personally) (and therefore the body politic itself) can do no wrong, an immunity which had never been understood to extend to servants or agents of the monarch (or of the body politic).
[471](1996) 189 CLR 253 at 277.
[472](1982) 42 ALR 235 at 241.
[473][1983] 2 SCR 551 at 565‑566.
[474](1982) 42 ALR 235 at 241. See also 240.
[475](1980) 33 ALR 173.
In Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority,[476] Gummow J returned to Cain v Doyle to make two salient points: first, that 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";[477] and, second, that "[i]t would be to enter into another dimension to conclude that a State might create a criminal offence committed by the Commonwealth in respect of the conduct by the Commonwealth itself of its Executive Government".[478] These observations involve a focus on the unlikelihood of one body politic in the Australian federation imposing criminal liability on another body politic in the federation in its conduct as a government (the Cain v Doyle presumption).
[476](1997) 190 CLR 410.
[477](1997) 190 CLR 410 at 472.
[478](1997) 190 CLR 410 at 472.
Telstra Corporation Ltd v Worthing[479] concerned the application of New South Wales legislation to a Commonwealth body which, under its enabling statute, was not subject to any requirement, obligation, liability, penalty, or disability under a law of a State to which the Commonwealth was not subject. The New South Wales legislation was expressed to bind the Crown not only in right of New South Wales but in all its other capacities, but also so as not to make the Crown liable to be prosecuted for any offence. Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, citing Cain v Doyle, observed that "[i]t will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth", and no such indication was apparent given that the New South Wales legislation provided "that nothing in that statute renders 'the Crown' liable to be prosecuted for any offence".[480] Further, because its own enabling statute provided that the Commonwealth body was not subject to any liability to which the Commonwealth was not subject, the Commonwealth body also was not subject to the penal provisions, the Commonwealth provision to that effect being "a declaration of legislative purpose that the law of the Commonwealth shall operate exclusively of State law on the topic", by s 109 of the Constitution.[481]
[479](1999) 197 CLR 61.
[480](1999) 197 CLR 61 at 75 [22].
[481](1999) 197 CLR 61 at 75 [23]‑[24].
In McNamara v Consumer Trader and Tenancy Tribunal,[482] Gleeson CJ, McHugh, Gummow and Heydon JJ, and Hayne J, in separate reasons, disapproved the majority reasoning in Wynyard Investments, including on the basis that it was inconsistent with the reasoning of Gibbs CJ in Townsville Hospitals Board.[483] Accordingly, a body did not enjoy the immunities of the Crown merely because its enabling statute provided that the body was a statutory body representing the Crown.
[482](2005) 221 CLR 646.
[483](2005) 221 CLR 646 at 651-652 [8], 655‑667 [23]‑[59], 668‑669 [61]‑[67].
Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ referred to Cain v Doyle in passing in X v Australian Prudential Regulation Authority,[484] saying only that "[i]t would require the clearest of intentions that the penalties provided ... would apply to the Commonwealth ... and there may be a question whether a 'Commonwealth authority' such as [the Australian Prudential Regulation Authority] has the character of the Commonwealth for this purpose".[485] That is, their Honours recognised that the presumption in Cain v Doyle had not been understood previously to extend beyond the Crown in the sense of the body politic. That understanding is also made clear from the footnote, where, after citing Cain v Doyle, their Honours said that "[t]here is, however, no power in the Crown to dispense its servants or agents from criminal liability for acts forbidden by law".[486]
[484](2007) 226 CLR 630.
[485](2007) 226 CLR 630 at 636 [14].
[486](2007) 226 CLR 630 at 636 [14] fn 13, citing A v Hayden (1984) 156 CLR 532 at 548, 562, 580‑581, 593.
In Wurridjal v The Commonwealth,[487] Gummow and Hayne JJ referred to Cain v Doyle in orthodox terms, saying:[488]
"In accordance with accepted principles of statutory construction, explained by Dixon J in Cain v Doyle, it would require the clearest indication of legislative purpose to demonstrate that such a penal provision attached to the Commonwealth as a body politic."
[487](2009) 237 CLR 309.
[488](2009) 237 CLR 309 at 380‑381 [164] (footnote omitted).
Post-Bropho legislation – overview
While the Sacred Sites Act was enacted in 1989, the key provision, s 4 ("Act binds Crown"), was amended in 2005.[489] Accordingly, for present purposes, the Sacred Sites Act may be treated as post‑Bropho legislation. As such, the prevailing orthodoxy at the time s 4 was amended included those principles of interpretation as explained in Bropho.
[489]Northern Territory Aboriginal Sacred Sites Amendment Act 2005 (NT), s 4.
First, there is no "sacred maxim" that the Crown is not bound by a statute other than by express words or necessary intention. Rather, where a statute uses general words only, the strength of the presumption that the Crown is not bound depends upon all relevant circumstances and may be "little more than the starting point of the ascertainment of the relevant legislative intent".[490] Where general words are used, the presumption, whatever its strengths or weaknesses in the circumstances, applies to all statutes (Commonwealth, State, or Territory) and the Crown (Commonwealth, State, or Territory) irrespective of the legislative source (Commonwealth, State, or Territory).
[490]Bropho v Western Australia (1990) 171 CLR 1 at 23.
Second, to determine if a body is a servant, agent, manifestation, alter ego, or emanation of the Crown and has the benefit of any immunities of the Crown, the necessary focus is the statute establishing and conferring functions on that body. It is not to be assumed that a body that is a servant, agent, manifestation, alter ego, or emanation of the Crown has the immunities of the Crown. It must clearly appear from the body's enabling statute (or otherwise) that the legislature intended that the body have any such immunities.
Third, because a body that is a servant, agent, manifestation, alter ego, or emanation of the Crown may have some or other immunities of the Crown conferred on it for one purpose and not other purposes, there will always be a question whether any such conferral is relevant to the application of any other legislation to the body, be that legislation enacted by the same legislature that established the body or another legislature. If the conferral is in a Commonwealth statute, s 109 of the Constitution may be engaged.
Fourth, there remains a strong presumption that no statute imposes criminal liability on the Crown – meaning the body politic in respect of its conduct as the government of the body politic. This strong presumption applies to all statutes (Commonwealth, State, or Territory) and the Crown (Commonwealth, State, or Territory) irrespective of the legislative source (Commonwealth, State, or Territory), but has never been held to extend to servant, agents, manifestations, alter egos, or emanations of the Crown. To the contrary, Crown immunity from penal sanction has always been tightly focused on the Crown as body politic, no servant, agent, manifestation, alter ego, or emanation of the Crown being entitled to claim that immunity.
The Sacred Sites Act
As enacted, the Sacred Sites Act recorded that it had been passed "with the assent as provided by the Northern Territory (Self‑Government) Act 1978 of the Commonwealth".
The Northern Territory (Self‑Government) Act 1978 (Cth) as made, by s 5, established the "Northern Territory of Australia ... as a body politic under the Crown". Sections 6 to 9 of that Act provided for the Administrator or the Governor‑General to assent or withhold assent to laws made by the Legislative Assembly.
The Territories Self‑Government Legislation Amendment (Disallowance and Amendment of Laws) Act 2011 (Cth) abolished the power of the Commonwealth executive government to disallow enactments or recommend amendments of any enactments of the Australian Capital Territory and to disallow laws or recommend amendments of any laws of the Northern Territory.
As enacted, s 4 of the Sacred Sites Act provided:
"CROWN TO BE BOUND
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."
As enacted, s 34 of the Sacred Sites Act, relevantly, provided:
"WORK ON SACRED SITE
(1) A person shall not carry out work on or use a sacred site.
Penalty:In the case of a natural person – $20,000 or imprisonment for 2 years.
In the case of a body corporate – $40,000."
As a pre‑Bropho enactment, considered in isolation, these provisions would have been construed on the basis that: (a) s 4 was an express statement that the Crown in right of the Territory and the Crown in right of all other bodies politic were intended to be bound by the Act; (b) the words of s 4 most likely would not have sufficed to displace the strong presumption that the penal provisions of the Act were not intended to apply to the Crown in right of any body politic in the exercise of its government functions as a body politic; (c) irrespective of the proper answer to (b), orthodoxy would have meant that the penal provisions of the Act applied to any servant, agent, manifestation, alter ego, or emanation of the Crown (Commonwealth, State, or Territory) in any of its capacities (provided they were a natural person or body corporate); and (d) for any immunities of the Crown to be conferred on any servant, agent, manifestation, alter ego, or emanation of the Crown (Commonwealth, State, or Territory) from the penal provisions of the Act, a clear legislative intention to that effect would need to be apparent in the legislation establishing, or vesting functions in, the body.
The Northern Territory Aboriginal Sacred Sites Amendment Bill 2005 (NT) proposed to amend s 4 in the following terms:
"Act binds Crown
(1)This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
(2)If the Crown in any of its capacities commits an offence against this Act, the Crown is liable in that capacity to be prosecuted for the offence as if it were a body corporate.
(3)This section does not affect any liability of an officer, employee or agent of the Crown to be prosecuted for an offence.
(4) In this section –
'Crown' includes –
(a) an Agency; and
(b)an authority or instrumentality of the Crown."
Understood in context, the objective legislative intent of the proposed amendments is clear. Section 4 remained (as s 4(1)). Section 4(2) would have subjected the Crown in right of a body politic (Commonwealth, State, or Territory) to the penal provisions of the Act, deeming them to be a body corporate to be penalised as such. Section 4(3) would have embodied the orthodox view that no officer, employee, or agent of the Crown could have claimed any Crown immunity for a criminal offence. Section 4(4) would have deemed authorities or instrumentalities of the Crown (Commonwealth, State, or Territory) to be the "Crown" for the purposes of both sub‑ss (1) and (2) of s 4 and enabled them to be prosecuted as bodies corporate.
The Debates on the Northern Territory Aboriginal Sacred Sites Amendment Bill 2005 (NT) in the Legislative Assembly on 20 October 2005 recorded that "[t]he inability to prosecute the Crown for sacred site damage and thus seek a form of reparation is a source of dissatisfaction amongst both authority members and the Aboriginal custodians".[491] The Bill was said to provide "an appropriate capacity to prosecute the Crown by clarifying that": (a) "if the Crown in any of its capacities commits an offence against [the Sacred Sites Act], then it is liable in that capacity"; (b) "the 'Crown' includes agencies, authorities and instrumentalities of the Crown"; and (c) "the existing liability of an officer, employee or agent of the Crown to be prosecuted for an offence is not affected".[492] In other words, the Debates accurately reflected the manifest objective intention of the proposed amendments as described above.
[491]Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 20 October 2005 at 1062.
[492]Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 20 October 2005 at 1062‑1063.
The subsequent Debates on 1 December 2005, however, expose questions that had arisen. The Attorney‑General said:[493]
"Case law would indicate that individual employees and agents of the Crown are liable to prosecution already. This is made clear in the amendment. However, this amendment also intends to make it clear that agencies and authorities are liable for prosecution as well.
On the question of whether the amendment is able to bind the Crown or the Northern Territory government, there has been further information sought on this from the Solicitor‑General. I will not share that with the House; I will leave that to the minister carrying the next stage of the debate. Certainly, the Solicitor‑General has clarified the situation between the two governments."
[493]Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 1 December 2005 at 1349.
The two governments in question are the Northern Territory government and the Commonwealth.
The Minister Assisting the Chief Minister on Indigenous Affairs subsequently said:[494]
"The Northern Territory Aboriginal Sacred Sites Act already binds the Crown but, in this case, the law is not always clear. I am aware that we are going to invite the defeat of section 4, that part that applies to the Commonwealth, and we will give an explanation about that later. Case law indicates that individual employees and agents of the Crown are liable to prosecution already. This is made very clear in the amendment.
This amendment also intends to make it clear that agencies and authorities are liable to prosecution as well, and that is what did not occur in the previous act ... Essentially, what this amendment is trying to do is to ensure that, for instance, if a government agency or a government department deliberately, knowingly damages a particular site, then they too will be responsible, just as are other citizens of the Northern Territory."
[494]Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 1 December 2005 at 1351.
The Minister then invited the defeat of cl 4 as proposed and that an amended version of cl 4 be passed. The Minister described the amendment as "the new clause 4 which clarifies the extent to which that act binds the Crown, and specifically the liability of the Crown to prosecution for offences under that act".[495] The amended cl 4 became s 4 of the Act as amended.[496] As noted, amongst other things, the amended cl 4 changed references to "the Crown" in certain sub‑sections of s 4 to the "Territory Crown" and defined "Territory Crown" to mean "the Crown in right of the Territory".
[495]Northern Territory, Legislative Assembly, Parliamentary Debates (Hansard), 1 December 2005 at 1352.
[496]See the terms of s 4 as amended – and as currently worded – at [254] above.
Again, understood in context, the objective intention of the provisions as amended is clear.
Section 4(1) rebuts any post‑Bropho presumption that the Sacred Sites Act does not bind the Crown – including servants, agents, manifestations, alter egos, or emanations of the Crown – be it the Crown in right of any State or Territory, or the Commonwealth. That provision did not substantively change.
Section 4(2) recognises that the flexible post‑Bropho presumption that a statute does not bind the Crown in right of any State or the Territory, or the Commonwealth, is different from the strong Cain v Doyle presumption against any statute imposing criminal liability on the Crown in right of any State or Territory, or the Commonwealth, understood as the body politic or government of that State or Territory, or the Commonwealth. Section 4(2) recognises that s 4(1) may well have been insufficient to impose such criminal liability on any such body politic. As enacted (in contrast to as proposed), s 4(2) imposed such criminal liability on, and confined it to, the Territory Crown and made the Territory Crown liable in that capacity to be prosecuted for an offence as if it were a body corporate. It did not impose criminal liability on the Crown in right of any State, another Territory, or the Commonwealth understood as the body politic or government of that State or Territory, or the Commonwealth.
Section 4(3), in saying that the "section does not affect any liability of an officer, employee or agent of the Territory Crown to be prosecuted for an offence", is to be understood as reflecting the confinement of s 4(2) to the Territory Crown. It is not to be understood as meaning that an officer, employee, or agent of another Crown (being a natural person or body corporate) was not able to be prosecuted for an offence against the Act. That was never the law and no intention to alter that orthodoxy is apparent once the full context of the amendments is understood. In that full context, the silence of s 4(3) about officers, employees, or agents of the Crown does not carry any implication that, contrary to orthodoxy, such officers, employees, and agents (being a natural person or body corporate) are immune from prosecution for an offence against the Act, even if those persons are acting on behalf of the Crown (Commonwealth, State, or Territory).
Section 4(4), in saying that an Agency (meaning a Northern Territory Agency) and an authority or instrumentality of the Territory Crown are included within the Territory Crown, is not to be understood as indicating that the authorities or instrumentalities of the Crown (Commonwealth, State, or Territory) are to be taken to be the Crown in right of the body politic for the purpose of s 4(2). This means that there also can be no negative implication from s 4(2) (its silence about the Crown in right of any State, another Territory, or the Commonwealth) to the effect that the authorities or instrumentalities of the Crown in right of any State, another Territory, or the Commonwealth are intended to be, in common with the Crown in right of their respective bodies politic, outside of the penal provisions of the Act.
In other words, s 4 of the Sacred Sites Act is to be construed on the basis that the Cain v Doyle presumption never applied to servants, agents, manifestations, alter egos, or emanations of the Crown to protect those persons or bodies from criminal liability. The Cain v Doyle presumption operates only in favour of the Crown in right of a body politic conducting itself for its governmental purposes. Section 4 rebuts the Cain v Doyle presumption for the Crown in right of the body politic of the Northern Territory but does not rebut the Cain v Doyle presumption for the Crown in right of the body politic of any State, another Territory, or the Commonwealth. Section 4 also does not, by express words or implication, change the law so that a servant, agent, manifestation, alter ego, or emanation of any other Crown may claim the Crown's immunity from prosecution for an offence. Such a servant, agent, manifestation, alter ego, or emanation may be prosecuted for an offence against s 34(1) if they are either a natural person or a body corporate, subject of course to the Commonwealth's power to make legislation which will prevail over any inconsistent State or Territory legislation under s 109 of the Constitution or any other constitutional constraint (none of which were suggested in the present case).
The DNP, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), is a body corporate. As there is no provision in the Environment Protection and Biodiversity Conservation Act said to engage s 109 of the Constitution, the Sacred Sites Act operates in accordance with its terms. The DNP is a body corporate able to be prosecuted for an offence against s 34(1) of the Sacred Sites Act. As noted, resolution of this single issue of statutory construction – does s 34(1) impose criminal liability on the DNP as a body corporate – is sufficient to resolve the second respondent's two arguments.
The appeal should be allowed. The orders proposed in the reasons for judgment of Gordon and Gleeson JJ should be made.