High Court clarifies criminal liability of the Crown

In Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16, the High Court unanimously held that a Commonwealth statutory corporation, the Director of National Parks, could be subject to criminal liability under a Northern Territory statute, the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).

The decision clarifies the scope of the common law interpretive presumption associated with the decision of the High Court in Cain v Doyle (1946) 72 CLR 409, and emphasises the importance of paying close attention to the particular terms of statutes which potentially impose criminal liability on persons and bodies in the public sector. 

Key points

• The presumption against imposition of criminal liability upon the Crown associated with Cain v Doyle is limited in scope, applying only to the bodies politic of the Commonwealth, the States and the Territories.
• That presumption has no direct application to servants, agents or instrumentalities of the Crown.
• Where a statute binds the Crown and imposes criminal liability on bodies corporate, there is a real risk that a statutory corporation – even one which represents the Crown – may be subject to liability for conduct criminalised under that statute. Whether any particular statutory corporation may be liable for any particular offence will be a question of construction.

Background

The Director of National Parks (DNP), a statutory corporation constituted under Commonwealth legislation, engaged a contractor to perform construction works to realign a walking track in Kakadu National Park. This work was performed at Gunlom Falls, a 'sacred site' under the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).

Section 34(1) of the Sacred Sites Act made it an offence for a 'person' to carry out work on or using a sacred site without a certificate issued under the Act, and set a maximum penalty of 2000 penalty units for a body corporate which committed that offence. Sections 17 and 24AA of the Interpretation Act 1978 (NT) provided that, in Northern Territory Acts, references to a 'person' include a body politic and a body corporate (subject to contrary intention).

The DNP not having obtained a certificate in respect of the work carried out at Gunlom Falls, the CEO of the Aboriginal Areas Protection Authority (AAPA) 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 in order to submit that the DNP was 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 of that Court. The key question of law in that special case was whether, as a matter of statutory construction, the offence prescribed by s 34(1) of the Sacred Sites Act applies to the DNP.

The Full Court of the Supreme Court of the Northern Territory answered that question in the negative. Central to the Full Court’s reasoning was the presumption against the imposition of criminal liability on the Crown associated with Cain v Doyle. The Full Court considered that the DNP came within the scope of the 'Crown' for the purposes of that presumption, and that the Sacred Sites Act did not evince a clear intention displacing that presumption.

The CEO of the AAPA was granted special leave to appeal to the High Court.

Decision

Across five judgments, the High Court unanimously allowed the appeal, holding that, as a matter of statutory construction, the offence and penalty in s 34(1) of the Sacred Sites Act applied to the DNP.

The essential dispositive reasoning common to all five judgments was as follows:

• s 34(1) of the Sacred Sites Act applied, in terms, to bodies corporate
• the DNP was a body corporate
• there was no reason – whether by operation of a common law interpretive presumption or otherwise – to conclude that the DNP did not come within the apparently clear terms of s 34(1) of the Sacred Sites Act.

In contending for the view that, properly construed, s 34(1) did not apply to the DNP, the Attorney-General for the Commonwealth had raised two related common law interpretive presumptions. The first was the presumption that Acts do not bind the Crown, the strength of which had been recalibrated in Bropho v Western Australia (1990) 171 CLR 1. The second was the presumption against the imposition of criminal liability upon the Crown associated with Cain v Doyle.

Section 4(1) of the Sacred Sites Act expressly rebutted the first of these presumptions, 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'. Section 4(1) evinced a clear intention on the part of the Northern Territory Legislative Assembly that the Sacred Sites Act was to bind the Crown in right of the Commonwealth (as well as the Crown in right of the Northern Territory and in right of the other bodies politic). There was, therefore, no room for an argument to the effect that s 34(1) did not extend to the DNP on the basis of this first presumption. See at [11]-[13] (Gageler CJ and Beech-Jones J); [60]-[62] (Gordon and Gleeson JJ); [217]-[218] (Edelman J); [309]-[311] (Jagot J).

As to the second presumption, the Court clarified that the presumption associated with Cain v Doyle applies only to a body politic; it has no application in relation to servants, agents or instrumentalities of the Crown, including statutory corporations. See at [25]-[30] (Gageler CJ and Beech-Jones J); [102]-[109] (Gordon and Gleeson JJ); [244] (Steward J); [303] (Jagot J); and, to similar effect though expressed differently, the reasons of Edelman J at [176]-[177] and [237]. It followed that the presumption associated with Cain v Doyle could not apply to take a statutory corporation like the DNP – which has distinct legal personality from the Crown in right of the Commonwealth – outside the scope of s 34(1) of the Sacred Sites Act.

Presumptions aside, the Court also rejected an argument that aspects of s 4 of the Sacred Sites Act which expressly provided for the imposition of criminal liability on the Crown in right of the Northern Territory (including its Agencies, authorities and instrumentalities) as if it were a body corporate gave rise to a negative implication that all other manifestations of the Crown – including Commonwealth statutory corporations – were excluded from criminal liability under the Sacred Sites Act. See at [75] (Gordon and Gleeson JJ); [228]-[230] (Edelman J); [320]-[322] (Jagot J).

Practical implications

• When determining whether a provision imposing criminal liability and penalties applies to a person or body in the public sector which is not the body politic itself, the presumption associated with Cain v Doyle will not have any direct application.
• The Court’s decision emphasises that questions as to whether persons and bodies in the public sector are subject to criminal liability and penalties in relation to the discharge of their public functions are questions of statutory construction. Careful attention must be given to the terms and purposes of statutes purporting to impose criminal liability, as well as to the terms and purposes of statutes establishing or affecting the status of persons or bodies in the public sector.
• Particular care must be taken where statutes of different legislatures are involved. Where one of the relevant statutes is a Commonwealth Act, consideration should be given to whether any question of inconsistency under s 109 of the Constitution (Cth) arises.

Contacts

Karen Smith, Crown Solicitor
karen.smith@cso.nsw.gov.au

James Monaghan, Senior Solicitor
james.monaghan@cso.nsw.gov.au

Alexandra Touw, Solicitor
alexandra.touw@cso.nsw.gov.au