Express Law No. 321

Implications

The High Court held in Cain v Doyle, in terms which have been ‘repeatedly acknowledged’ in later judgments, that there 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’.

In this appeal, the High Court held that the ‘Crown’ is only to be understood in the narrow sense of the body politic itself. There is no common law presumption that a criminal penalty does not apply to a servant, agent or instrumentality of the executive government where a law is in terms directed to a ‘person’. Servants, agents or instrumentalities of the Crown will be subject to that penal sanction in common with any other private citizen.

However, a majority of the Court has acknowledged that the Commonwealth Parliament could legislate to provide that a particular statutory instrumentality enjoys the same immunity as the body politic itself. To the extent that a state or territory law is inconsistent with that provision, it would be invalid by operation of s 109 of the Constitution.

Background

The Gunlom Falls are a waterfall in the Kakadu National Park. The Falls, and land in their vicinity, are of significant spiritual significance to the Traditional Owners. Since at least 1964, a walking track has existed at the Falls. In early 2019, the DNP engaged a contractor to realign that walking track. The area on which the realignment works were carried out is a ‘sacred site’ under the Sacred Sites Act.

Section 34(1) of that Act makes it an offence to carry out work on or use a sacred site. Section 34(2) provides a defence to a prosecution of an offence under s 34(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’. The DNP did not obtain a certificate of the kind specified in s 34(2) in relation to the realignment works. For that reason, in 2020 the CEO of the Aboriginal Areas Protection Authority (CEO) charged the DNP with an offence against s 34(1) of the Sacred Sites Act and commenced a prosecution in the Northern Territory Local Court.

The Commonwealth Attorney-General intervened in the Local Court to argue that the offence in s 34(1) of the Sacred Sites Act did not apply to the DNP. To facilitate adjudication of this argument, the DNP entered a plea of not guilty in the Local Court. The Local Court stated a special case reserving for the opinion of the Northern Territory Supreme Court (NTSC) the question of whether the offence and penalty prescribed by s 34(1) of the Sacred Sites Act did not apply to the DNP.

The special case was referred to the Full Court of the NTSC. The Full Court held unanimously that s 34(1) did not apply to the DNP as a matter of statutory construction. Although it was unnecessary to do so, the Full Court also went on to decide the Attorney-General’s alternative argument that the Sacred Sites Act was beyond the legislative power of the Legislative Assembly because it altered the Commonwealth’s unique executive capacities. The Full Court rejected that latter argument and it was not pressed by the Attorney-General before the High Court.

The CEO was granted special leave to appeal to the High Court. The DNP filed a submitting appearance before the High Court. The Northern Land Council, the Gunlom Aboriginal Land Trust and 2 of the traditional Aboriginal titleholders and custodians of the sacred site were granted leave to intervene in support of the CEO.

High Court’s reasoning

The High Court delivered 5 sets of reasons: Gageler CJ and Beech-Jones J, and Gordon and Gleeson JJ each wrote together; and Edelman J, Steward J and Jagot J wrote separately. The dispositive reasoning of each judgment is similar.

The offence and penalty in s 34(1) bind the DNP as a matter of construction

Each member of the Court concluded that the offence and penalty in s 34(1) of the Sacred Sites Act is capable of applying on its terms to the DNP for the following reasons:

• Section 34(1) of the Sacred Sites Act imposes a prohibition on a ‘person’ ([3]; [57]; [210]; [246]; [251]–[252]).
• A ‘person’ is defined in ss 17 and 24AA(1) of the Interpretation Act 1978 (NT) as ‘a body politic and a body corporate as well as an individual’ ([3]; [58]; [210]; [246]; [252]).
• Section 34(1) of the Sacred Sites Act expressly imposes a bespoke penalty on a body corporate, which is higher than that for a natural person ([4]; [60]; [209]; [246]; [252]–[253]).

Cain v Doyle presumption does not prevent the DNP being liable

The Attorney-General argued, despite the terms of s 34(1), that 2 common law interpretative presumptions operated such that the provision did not apply to the DNP:

• The presumption in Bropho v Western Australia (1990) 171 CLR 1 that, as a ‘starting point’, legislation is presumed not to bind the Crown. That presumption is ‘weak’ (see e.g. ([11])) and was rebutted by the terms of s 4(1) of the Sacred Sites Act, which provides that the Act binds the Crown ‘in all … its capacities’ ([13]; [60]; [218]; [311]).
• The strong presumption in Cain v Doyle against construing a statute to impose criminal liability on the Crown.

The Court unanimously concluded that s 4(1) of the Sacred Sites Act operated to rebut the presumption in Bropho ([13]; [60]; [218]; [311]) and further held that the application of the Cain v Doyle presumption does not produce the result that s 34(1) does not apply to the DNP.

Gageler CJ and Beech-Jones J held that there is no principled basis upon which to ‘extend’ the presumption in Cain v Doyle from the body politic itselfto servants, agents and instrumentalities of the Crown. Their Honours considered that such an extension would ‘invert the constitutional principle which prevents … an officer from claiming immunity from criminal liability by claiming to have acted under the authority of the Crown’ ([26]). Gordon and Gleeson JJ ([102]ff), together with Edelman J ([237]), Steward J ([244]) and Jagot J ([303]), reached a similar conclusion.

Gordon and Gleeson JJ also held that the Court could not draw a negative implication from the text, context and legislative history of s 4 that the Northern Territory Legislative Assembly made the Northern Territory Crown and body corporates liable to a criminal penalty and therefore chose not to do the same for the Commonwealth and its instrumentalities ([73]–[76]).

In summary, the presumption in Cain v Doyle applies narrowly to the body politic itself, but not to the servants, agents and instrumentalities of the Crown, who can all be criminally liable if they breach a law that, properly construed, binds the Crown.

AGS team

AGS (Simon Thornton and Nick Pokarier from the Constitutional Litigation Unit) acted for the second respondent, the Commonwealth Attorney-General. The Commonwealth Solicitor-General, Dr Stephen Donaghue KC, Dr Brendan Lim and Dr Amanda Sapienza appeared as counsel for the Commonwealth Attorney-General. AGS (Brooke Griffin and Adrian Downie, AGS Dispute Resolution) also acted for the DNP.