Native Title Year in Review 2023-2024

What you need to know

• The scope of a presumption that legislation does not make the Crown liable to be prosecuted or convicted of an offence has been clarified in a recent High Court decision (Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks & Anor [2024] HCA 16).
• The High Court confirmed that the Federal Director of National Parks, responsible for the management of Kakadu National Park, can be held criminally liable for breaches of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).
• The High Court also held that the presumption only applies to the "body politic", that is, the Commonwealth, States or Territories as distinct legal persons. The presumption does not apply to natural persons, or statutory bodies/corporations.

What you need to do

• Ensure authority certificates under the Northern Territory Aboriginal Sacred Sites Act are obtained and complied with in relation to works in the Territory.
• If you represent a statutory body or corporation, do not assume that any presumption of statutory interpretation will apply to protect the body or corporation from prosecution. This will need to be assessed on a case-by-case basis, having regard to the terms of the statute.

Work done at Gunlom Falls without authority certificate impacted a sacred site

In 2019, the Federal Director of National Parks (DNP) engaged a contractor to perform construction works on the realignment of a walking track at the iconic Gunlom Falls in Kakadu National Park.

The works were conducted without obtaining an authority certificate under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) (Sacred Sites Act). Generally, an authority certificate will identify areas where works can be conducted or conducted subject to conditions. Authority certificates will also identify sacred sites where works cannot be done. Unfortunately, in this case, the works were done on a Jawoyn sacred site.

AAPA prosecutes the Federal Director of National Parks

The Chief Executive Officer of the Aboriginal Areas Protection Authority prosecuted the DNP under section 34(1) of the Sacred Sites Act, which makes it an offence for a "person" to "carry out work on or use a sacred site". The Interpretation Act 1978 (NT) defines "person" to include a body politic and a body corporate.

The DNP is a body corporate under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act). Its statutory functions include administering, managing and controlling Commonwealth reserves, including Kakadu National Park.

The prosecution began in the Local Court of the Northern Territory, which stated a special case for the Supreme Court on the question of whether the DNP could be liable under section 34 of the Sacred Sites Act. The matter was then referred to the Full Court.

In the Full Court, the DNP essentially admitted the facts of the offence, but pleaded not guilty on the basis that it couldn't be convicted based on the principle in Cain v Doyle (1946) 72 CLR 409. This is a presumption of statutory interpretation that legislation does not make the Crown liable to be prosecuted for or convicted of an offence.

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 Aboriginal Areas Protection Authority was granted special leave to appeal to the High Court.

Clarifying the scope of the Bropho and Cain v Doyle presumptions

The High Court considered two linked presumptions that are principles of statutory construction:

• the Bropho Presumption, which is that legislation does not bind the Crown (arising from the decision of Bropho v Western Australia (1990) 171 CLR 1); and
• the Cain v Doyle Presumption, which is that legislation does not make the Crown liable to be prosecuted or convicted of an offence.

In this case, the High Court was clear that the Bropho Presumption had been displaced by the words of section 4 of the Sacred Sites Act. Section 4 made it very clear that the Sacred Sites Act was intended to bind the Crown, both in right of the Territory and also the Commonwealth.

The next issue was whether the Cain v Doyle Presumption applied. The Court found that it did not. The Cain v Doyle presumption is a very "strong but narrow" presumption that applies only to a body politic (ie the Commonwealth, States or Territories as distinct legal persons); it does not apply to natural persons or bodies corporate, including statutory corporations such as the DNP.

The Court observed that statutory corporations "are not and never do become the Crown itself". Thus, they are not entitled to the protection of the Cain v Doyle Presumption.

Consequently, the appeal was allowed, with the High Court finding that the offence and penalty prescribed by section 34(1) of the Sacred Sites Act could apply to the DNP.

Key Insights

Statutory corporations are not entitled to the benefit of the Cain v Doyle Presumption, nor should they assume that legislation does not apply to them by application of the Bropho Presumption.

Instead, they will need to carefully consider their liability on a case-by-case basis about the terms of the relevant statute and the clarification offered by this decision regarding the scope of important principles of statutory construction.

In addition, this decision is also a timely reminder of the following, more practical, considerations:

• sacred sites protection in the Northern Territory is very different to other States and Territories;
• the Sacred Sites Act is a powerful tool for the protection of Aboriginal culture and heritage in the Northern Territory;
• the Aboriginal Areas Protection Authority will investigate and prosecute breaches of the Sacred Sites Act; and
• where works are being undertaken in the Territory, it is an important protective measure for all proponents to obtain and abide by an authority certificate under the Sacred Sites Act, including statutory entities.

Author: Rebecca Hughes, Senior Associate.