High Court finds that Commonwealth Body Corporates do not have immunity from criminal liability.
9 May 2024
The High Court of Australia has found that criminal liability for contravention of a Northern Territory statute can be imposed on a Commonwealth Body Corporate (in this case the Director of National Parks in respect of damaging an Aboriginal cultural site).
The case, Aboriginal Areas Protection Authority v Director of National Parks & Anor [2024] HCA 16, arises from the construction of a tourist walkway at Gunlom Falls, Kakadu. The site and area surrounding the construction works is held under a lease by the Traditional Owners to the Director of National Parks.
The area where works were carried out is sacred to the Jawoyn Aboriginal people and is a ‘sacred site’ as defined in the Northern Territory Aboriginal Sacred Sites Act. The Director carried out the works without an Authority Certificate or a Minister’s Certificate under the Sacred Sites Act. The Aboriginal Areas Protection Authority (AAPA) charged the Director of National Parks with offences under the Sacred Sites Act.
The Director contended that the Act does not bind the Crown, including by application of the rule of statutory construction in Cain v Doyle (1946) 72 CLR 409 which provides a presumption against the imposition of criminal liability "upon the Crown."
The Court unanimously held that the "Cain v Doyle presumption does not apply beyond "the Crown" as a body politic. That is, the Cain v Doyle presumption does not apply beyond the Commonwealth, States or Territories as bodies politic." Accordingly, the statute binds the Director of National Parks.
Justin Gleeson SC and Sebastian Hartford Davis of Banco Chambers, together with Lachlan Spargo-Peattie of the NT Solicitor General's Chambers appeared for the AAPA. They were instructed by Michael McCarthy of Hutton McCarthy. They are pictured with members of the Traditional Owners Group at the High Court of Australia at the hearing in 2023.