Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16

HIGH COURT OF AUSTRALIA

GAGELER CJ,

GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

CHIEF EXECUTIVE OFFICER, ABORIGINAL AREAS

PROTECTION AUTHORITY APPELLANT

AND

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 2024

D3/2023

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.