Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks

Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks - [2024] HCA 16 - HCA 2023 case summary — Zoe

[14]

GAGELER CJ AND BEECH-JONES J. This is an appeal from a decision of the Full Court of the Supreme Court of the Northern Territory.[1] The ultimate question in the appeal is whether the Director of National Parks ("the DNP"), established under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBC Act"), can be criminally liable for breach of the prohibition imposed by s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ("the Sacred Sites Act") against carrying out work on a "sacred site" within the meaning of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).[2] No question is raised as to the validity of the Sacred Sites Act or as to the consistency of the Sacred Sites Act with the EPBC Act.
The answer to the ultimate question turns on the proper construction of s 34(1) of the Sacred Sites Act. The answer is that the DNP can be criminally liable for breach of the prohibition it imposes. The critical consideration informing that answer is that the DNP is established by s 514E(1)(a) of the EPBC Act as a body corporate.
Section 34(1) of the Sacred Sites Act is expressed to impose a prohibition on a "person": "[a] person shall not carry out work on ... a sacred site". The Interpretation Act 1978 (NT) ("the Interpretation Act") defines "person" to include a body politic and a body corporate[3] and provides that "a reference to a person generally includes a reference to a body politic and body corporate as well as an individual".[4]
Section 34(1) of the Sacred Sites Act then sets out what it refers to as the "Maximum penalty". The maximum penalty applicable "[i]n the case of a natural person" is expressed to be a specified number of "penalty units"[5] or imprisonment for two years. The maximum penalty applicable "[i]n the case of a body corporate" is expressed to be a higher specified number of penalty units. That setting out of a maximum penalty applicable in the case of a body corporate as well as in the case of a natural person leaves no room for doubt that contravention of the prohibition by a body corporate is a criminal offence punishable on a finding of guilt by a penalty not exceeding the applicable maximum.[6]
Section 34(1) of the Sacred Sites Act therefore applies in its terms to render the DNP criminally liable for breach of the prohibition it imposes on the simple basis that the DNP is a body corporate.
The Attorney-General of the Commonwealth, who intervened in the underlying proceeding and who is in consequence a respondent to the appeal, invokes overlapping common law presumptions to argue that s 34(1) of the Sacred Sites Act should nonetheless be read down to have no penal application in the case of a body corporate created by the legislature of a body politic other than the Northern Territory and intended by that legislature to be an instrumentality having the status of that other body politic.
For reasons to be explained, neither of the common law presumptions invoked supports the construction for which the Attorney-General contends. The more general presumption, that a statute does not bind the Crown, is addressed and displaced by s 4(1) of the Sacred Sites Act. The more specific presumption, that a statute does not impose a criminal remedy against the Crown, has no application to a body corporate.
Whether the EPBC Act can be construed to manifest an intention on the part of the Commonwealth Parliament that the DNP is to be an instrumentality having the status of the Commonwealth - rendering the DNP capable of being described (in old and "inapt"[7] metaphors) as within the "shield",[8] or as having the "privileges and immunities",[9] of "the Crown in right of the Commonwealth"[10] - therefore need not be explored. Either way, the DNP is within the scope of the criminal liability created by s 34(1) of the Sacred Sites Act.

[16]

Each of the "Commonwealth of Australia"[11] and "each State of the Commonwealth"[12] is established by the Constitution as a body politic, being a distinct "juristic entity".[13] Each body politic is so established with its own "Executive Government"[14] to which is consigned the executive power of the body politic, including power to exercise such property rights as are vested in the body politic.[15] Though it might have been expected at federation that each body politic would be referred to in legislation simply as "the Commonwealth" or "a State", legislative practice has been to treat the Commonwealth and a State each as an emanation of "the Crown" and to refer instead to "the Crown in right of the Commonwealth" or "the Crown in right of a State".[16]
The Northern Territory (Self-Government) Act 1978 (Cth) ("the Self-Government Act") similarly establishes the "Northern Territory of Australia" as a distinct "body politic under the Crown"[17] having its own "Administration" to which is consigned the executive power of the Territory.[18] Legislative practice has similarly been to refer to the body politic so established as "the Crown in right of the Territory" or the "Territory Crown".
There is a longstanding general presumption of the common law of Australia against construing a statute to "bind the Crown". The presumption endures notwithstanding that, in consequence of Bropho v Western Australia,[19] the presumption has only "weak operation",[20] amounting to no more than a presumption that "the Crown is not bound by statute unless a contrary intention can be discerned from all the relevant circumstances".[21] To "bind the Crown" within the meaning of the presumption is to alter or impair "the existing legal situation" of a body politic,[22] including by imposing a liability on the body politic or by constraining an activity sought to be undertaken in the exercise of executive power by the executive government of the body politic.[23]
The general common law presumption "extends beyond the Crown in right of the enacting legislature to the Crown in right of the other polities forming the federation".[24] Applied to a statute enacted by the Legislative Assembly of the Northern Territory, the presumption is against construing the statute to bind the Crown in right of the Commonwealth or the Crown in right of a State as well as against construing the statute to bind the Crown in right of the Territory.
Section 4(1) of the Sacred Sites Act is in form and effect an express and comprehensive rebuttal of that general common law presumption. In 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", s 4(1) puts beyond doubt that the Sacred Sites Act is intended by the Legislative Assembly to bind the Crown in right of the Commonwealth and the Crown in right of each State as well as the Crown in right of the Territory. In going on to provide that an emanation of the Territory Crown is liable to be prosecuted for an offence against the Sacred Sites Act "as if it were a body corporate", s 4(2) implicitly confirms that a body corporate is liable to be prosecuted for such an offence by virtue of being a body corporate. Section 4(2) is addressed solely to the criminal liability of the Territory Crown.
Section 4(1) and (2) of the Sacred Sites Act together leave open the potential for application to s 34(1) of the Sacred Sites Act, in respect of the Crown in right of the Commonwealth and the Crown in right of each State, of the further and more specific common law presumption against construing a statute to impose criminal liability on "the Crown" recognised by Dixon J in Cain v Doyle.[25] That further presumption needs now to be examined.

[20]

That is the constitutional context within which the specific common law presumption against construing a statute to impose criminal liability on the Crown recognised by Dixon J in Cain v Doyle must be understood. The question in Cain v Doyle was whether the Commonwealth could be a principal offender of the offence of terminating the employment of a protected person contrary to the Re-establishment and Employment Act 1945 (Cth). The holding was that it could not. Reasoning to the conclusion that the offence-creating provision did not extend to the Commonwealth, Dixon J said in Cain v Doyle that there was "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".[29] That was and remains the classic statement of the presumption.
Dixon J referred in Cain v Doyle to several quotidian considerations operating to support the presumption. They included the lack of any summary procedure to which the Crown was then amenable, the fact that any fine payable by the Commonwealth would be payable into the Treasury of the Commonwealth, and the fact that any fine payable by the Commonwealth could in any event be remitted by the Commonwealth.[30] But those considerations were peripheral. Dixon J expressed the principle underlying the presumption in terms that "the Crown is not liable to be sued criminally for a wrong ... and ... is not under the coercive power of the law" even though "in many cases the commands of the Crown are under the directive power of the law which makes an unlawful act invalid and leaves the persons executing the commands, if they need a justification, obnoxious to its provisions".[31] His Honour said that he was "not aware that under any statute there has ever been a criminal remedy against the Crown itself" and concluded that "[t]he principle that the Crown cannot be criminally liable for a supposed wrong, therefore, provides a rule of interpretation which must prevail over anything but the clearest expression of intention".[32]
To similar effect, Latham CJ said that "the fundamental idea of the criminal law is that breaches of the law are offences against the King's peace, and it is inconsistent with this principle to hold that the Crown can itself be guilty of a criminal offence".[33]
Since Cain v Doyle, express statutory imposition of criminal liability on a body politic or an emanation of a body politic has occurred with increasing frequency. Indeed, express imposition of criminal liability on a body politic has become a common feature of statutes providing for occupational health and safety.[34]
To the extent the Cain v Doyle presumption can be said to have been "based upon the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty",[35] the foundation for the presumption must therefore be acknowledged to have weakened with the passage of time. With the increasing frequency of express imposition of criminal liability on bodies politic, the quotidian considerations to which Dixon J referred as supporting the presumption have all either disappeared or faded in significance.
That change in circumstances emboldened the Chief Executive Officer of the Aboriginal Areas Protection Authority to go so far as to argue that the Cain v Doyle presumption should now be abandoned. The argument was supported by the Northern Land Council, the Gunlom Aboriginal Land Trust and two Jawoyn traditional owners and custodians of the relevant sacred site, all of whom were granted leave to intervene in the appeal.
No differently from the common law presumption that a statute does not "bind the Crown" reconsidered in Bropho, the Cain v Doyle presumption that a statute does not impose criminal liability on "the Crown" cannot be treated as "immune from curial reassessment and revision".[36]
But in considering whether the Cain v Doyle presumption should now be abandoned or substantially revised, significant weight must be accorded to the fact that the existence of the presumption in the terms formulated by Dixon J has been repeatedly acknowledged in this Court in the years since Bropho: in Jacobsen v Rogers,[37] State Authorities Superannuation Board v Commissioner of State Taxation (WA),[38] Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority,[39] Telstra Corporation Ltd v Worthing,[40] X v Australian Prudential Regulation Authority,[41] and Wurridjal v The Commonwealth.[42] Now to depart from the presumption formulated in those terms would destabilise well‑entrenched legislative assumptions.
To maintain the Cain v Doyle presumption is one thing; now to extend the presumption would be quite another. The question whether the Cain v Doyle presumption should be understood to extend to a presumption against construing a statute to impose criminal liability on a governmental entity other than a body politic was noted in X v Australian Prudential Regulation Authority[43] without needing to be explored. The question, now being squarely raised, must be answered in the negative.
The underlying principle identified by Dixon J in Cain v Doyle provides no justification for extending the common law presumption against construing a statute to impose criminal liability on the Crown beyond what his Honour there referred to as the imposition of "a criminal remedy against the Crown itself". That is to say the underlying principle provides no justification for treating the common law presumption as anything more than a presumption against construing a statute to impose criminal liability on a body politic. To extend the presumption to an executive officer of a body politic would be to invert the constitutional principle which prevents such an officer from claiming immunity from criminal liability by claiming to have acted under the authority of the Crown. To extend the presumption to a corporate instrumentality of a body politic would involve an equivalent inversion of principle.
Neither State Authorities Superannuation Board v Commissioner of State Taxation (WA)[44] nor Telstra Corporation Ltd v Worthing[45] should be understood as having endorsed extending the presumption in Cain v Doyle to a presumption against construing a statute to impose criminal liability on a governmental entity other than a body politic.
The question in State Authorities Superannuation Board v Commissioner of State Taxation (WA) was whether a body corporate created by the legislature of New South Wales was liable to pay stamp duty on an instrument under the Stamp Act 1921 (WA). A majority (Brennan CJ, Dawson, Toohey and Gaudron JJ) held that the Stamp Act evinced an intention to "bind the Crown", other than in respect of the imposition of criminal liability for failing to present an instrument for stamping, making it immaterial to consider whether the body corporate was to be treated as "the Crown" and, if so, whether the body corporate had the benefit of the Cain v Doyle presumption.[46] To the extent that McHugh and Gummow JJ might be interpreted as having contemplated an extension of the Cain v Doyle presumption to the imposition of criminal liability on a body corporate,[47] theirs was a minority view expressed in the course of an analysis primarily directed not to the question of the status of the body corporate as "the Crown" but to the different and broader question[48] of the status of the body corporate as "the State" for constitutional purposes.
The question in Telstra Corporation Ltd v Worthing was relevantly whether a body corporate created by the Commonwealth Parliament under the Telecommunications Act 1975 (Cth) ("the Commonwealth Act"), which contained an immunity provision stating that the body corporate was not subject to any obligation or liability under State law to which the Commonwealth itself (ie, the body politic) was not subject,[49] was an "employer" within the meaning of the Workers Compensation Act 1987 (NSW) ("the State Act"). The unanimous holding was that the body corporate was an "employer" within the meaning of the State Act[50] but that the effect of the immunity provision was to render the State Act inconsistent with the Commonwealth Act and therefore pro tanto inoperative by force of s 109 of the Constitution.[51] There is no analogous provision in the EPBC Act. Moreover, as was noted at the beginning of these reasons for judgment, no question is raised in this appeal as to the consistency of the Sacred Sites Act with the EPBC Act.
The outcome is that the Cain v Doyle presumption should be maintained in the terms stated by Dixon J in that case. The presumption is strong but narrow. It is against construing a statute to impose criminal liability on a body politic. It has nothing to say against construing a statute to impose criminal liability on a natural person or a body corporate.
Having regard to the Cain v Doyle presumption, s 34(1) of the Sacred Sites Act is properly construed to exclude the imposition of criminal liability on the Commonwealth but not to exclude the imposition of criminal liability on the DNP or on any officer of the Commonwealth.

[21]

The appeal should be allowed. The consequential orders proposed by Gordon and Gleeson JJ should be made.
GORDON AND GLEESON JJ. The issue in this appeal is whether the Director of National Parks ("the DNP"), a body corporate, is exposed to criminal prosecution and penalty for breach of s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ("the Sacred Sites Act"), which prohibits a person from carrying out work on or using a sacred site. The answer is "Yes".
The DNP was a corporation sole established under s 15 of the National Parks and Wildlife Conservation Act 1975 (Cth) and is continued in existence as a body corporate under ss 514A and 514E of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBC Act"). It has a number of statutory functions, including administering, managing and controlling Commonwealth reserves.[52]
Kakadu National Park is a Commonwealth reserve. Gunlom Falls, within Kakadu National Park, is Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the Land Rights Act") and is held in fee simple by the Gunlom Aboriginal Land Trust on behalf of the Jawoyn people. Gunlom Falls was leased to the DNP by the Land Trust on condition that it be a Commonwealth reserve, under the EPBC Act, jointly managed by the DNP and the Jawoyn people under a plan of management. The Kakadu National Park Management Plan 2016-2026 was the relevant plan of management.
In March 2019, the DNP engaged a contractor to perform construction works on the realignment of the walking track at Gunlom Falls. The area on which the track works were carried out is sacred to the Jawoyn people or is otherwise of significance according to Aboriginal tradition, and is a sacred site under the Sacred Sites Act. The DNP caused the works to be undertaken without permission, namely without an Authority Certificate or a Minister's Certificate under the Sacred Sites Act. The Chief Executive Officer of the Aboriginal Areas Protection Authority ("the Authority") 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 under s 78A of the Judiciary Act 1903 (Cth) to submit on behalf of the Commonwealth that the DNP is 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. Subject to certain defences, the DNP admitted that the facts set out in the special case would constitute an offence under s 34(1) of the Sacred Sites Act. However, the DNP pleaded not guilty on the basis that it cannot be convicted of the offence created by s 34(1) of the Sacred Sites Act, relying on the interpretive principle enunciated in Cain v Doyle.[53]
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 Full Court answered the question of law in the special case as follows: "The offence and penalty prescribed by s 34(1) of the [Sacred Sites Act] do not apply to the [DNP] as a matter of statutory construction."
The Authority was granted special leave to appeal to this Court.[54] Although the Authority's primary argument in written submissions was that Cain v Doyle should be reopened and overruled, during the hearing the submissions focused on the narrower argument that the Full Court erred in applying Cain v Doyle for the benefit of the DNP as a Commonwealth statutory corporation. The Authority said that it was not asking the Court to reopen Cain v Doyle, but rather to identify the outer limits of it. For the reasons that follow, the appeal should be allowed. The Cain v Doyle presumption is limited to the body politic. The offence and penalty prescribed by s 34(1) of the Sacred Sites Act do apply to the DNP.
The question in this appeal is narrow; it is about the scope and application of the interpretive principle in Cain v Doyle. The answer given is not to be understood as directly or indirectly answering different questions which might arise about whether a person or body corporate may be considered "a State" or "the Commonwealth" under the Constitution[55] or may be able to claim other immunities or privileges of "the Crown" in other contexts.[56]

[22]

It is presumed that legislation does not bind the Crown ("the Bropho presumption").[57] A rationale for the Bropho presumption is that, "in general, acts of the legislature are meant to regulate and direct the acts and rights of citizens and, in most cases, the reasoning applicable to them applies with very different, and often contrary, force to the government itself".[58] It is also presumed that legislation does not make the Crown liable to be prosecuted for or convicted of an offence ("the Cain v Doyle presumption").[59] This presumption has been described as based upon "the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty".[60]
Both presumptions apply to the construction of the laws of one Australian jurisdiction and their application to the Crown in the right of that jurisdiction and other Australian jurisdictions.[61] Both are now properly described as principles of statutory construction, not as part of the prerogative.[62] Both are rebuttable presumptions, not strict rules of construction. As these reasons will show, while both presumptions refer to "the Crown", there are circumstances, of which this appeal is one, where the content being given to the expression "the Crown" needs close examination.
Bropho and Cain v Doyle are sometimes described as part of one presumption existing on a continuum (or as having general and specific applications).[63] On that understanding, the presumption applies with extraordinary force, or has extraordinary strength, 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 State Authorities Superannuation Board v Commissioner of State Taxation (WA) ("SASB"), four Justices of this Court described the presumptions as being distinct.[64] In this case, it is useful to treat the presumptions as separate and to draw out three differences between them because, as will be explained, the Sacred Sites Act does evince an intention to bind the Crown.[65]
First, the Bropho presumption goes to whether the statute binds the Crown; the Cain v Doyle presumption goes to whether the statute exposes the Crown to criminal liability. In other words, the Bropho presumption is directed to whether a statute makes an act or omission by or on behalf of the Crown unlawful, whereas the Cain v Doyle presumption is directed to whether the Crown is criminally responsible for an unlawful act or omission proscribed by statute. Even if a statute binds the Crown, it is presumed not to expose the Crown to criminal prosecution, conviction or penalty. The Crown may be bound to comply with the provisions in an Act but at the same time may not be exposed to criminal liability for breach of those provisions.[66]
This is a distinction that was made in Cain v Doyle. Under the legislation in that case, s 18(1) created an offence for an "employer" to terminate the employment of an employee in certain circumstances and s 10(1) specified that "employer" included the Crown (whether in right of the Commonwealth or a State) and any authority constituted by or under the law of the Commonwealth or of a State or Territory of the Commonwealth. The defendant submitted that "upon its proper construction s 18 does not impose penalties upon the Crown but binds the Crown by a legislative direction depending upon the constitutional and legal remedies appropriate to the Crown and stops short of including the Crown in the liability to the punishment appointed for a violation of its provisions".[67] Dixon J agreed with that distinction, observing that in that case "no one doubts that the prohibition contained in s 18(1) against terminating the employment of a reinstated employee applies to the Crown ... The whole question is whether the words at the foot of the sub-section - 'Penalty: One hundred pounds,' apply to the Crown."[68] His Honour went on to conclude that that penalty in s 18(1) did not apply to the Crown.[69]
In other words, a single provision may have both directive aspects and penal aspects.[70] It may prohibit conduct as well as create criminal liability for engaging in the prohibited conduct. It may impose obligations as well as create criminal liability for failure to comply with those obligations. The directive aspects of the provision may bind the Crown, even if the penal aspects do not. Depending on the terms of the statute, and the circumstances, civil remedies for breach or anticipated breach of the statute might be available, such as a declaration or an injunction.[71]
Second, the scope of protection or application is different. The Bropho presumption applies to the benefit of the Crown or body politic itself, and also to those who act on its behalf - government instrumentalities, employees and agents acting in the course of their functions or duties.[72] Or, more precisely, the Bropho presumption presumes that legislation does not impair or affect the legal position of the Crown and, because the Crown can act only through its servants or agents,[73] the presumption extends to those servants or agents.[74]
By contrast, the Cain v Doyle presumption has been held not to benefit natural persons who act with the authority or purported authority of the Crown - be they servants or agents.[75] One question in this appeal, which is addressed below, is whether the Cain v Doyle presumption is limited to the body politic.
Third, the Cain v Doyle presumption is of stronger force than the Bropho presumption. Depending on the circumstances, the Bropho presumption may represent little more than a starting point for ascertaining legislative intent.[76] All the circumstances must be considered in determining whether the presumption has been rebutted, including but not limited to "the terms of the statute, its subject matter, the nature of the mischief to be redressed, the general purpose and effect of the statute, and the nature of the activities of the Executive Government which would be affected if the Crown is bound".[77] The strength of the Bropho presumption has varied over time. If the Act in issue was enacted before Bropho was decided, that is just one circumstance to be taken into account.[78]
By contrast, the Cain v Doyle presumption may only be displaced with "the clearest expression of intention".[79] As stated by Dixon J in Cain v Doyle, "[t]here 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".[80] His Honour went on to explain that "[i]t is opposed to all our conceptions, constitutional, legal and historical. Conceptions of this nature are, of course, not immutable and we should beware of giving effect to the strong presumption in their favour in the face of some clear expression of a valid intention to infringe upon them."[81]
Relatively few cases in this Court apply or even refer to the Cain v Doyle presumption. However, none of those cases have doubted the presumption, instead describing it variously as "extraordinarily strong",[82] only rebutted in "exceptional circumstances",[83] and requiring for its rebuttal "the clearest indication of a legislative purpose".[84]
In Bropho, the "extraordinarily strong" presumption against a legislative intent that the general words of a statute should be construed in a way that would make "the Sovereign herself or himself in the right of the Commonwealth or of a State liable to prosecution and conviction for a criminal offence" was stated without referring to Cain v Doyle.[85] In these reasons, the reference to the Cain v Doyle presumption is retained. It is that presumption - or more precisely, its scope and application - that is the primary focus of this appeal.
Is the DNP exposed to criminal liability for breach of s 34(1) of the Sacred Sites Act? It is necessary to turn to the Act.

[23]

The Sacred Sites Act seeks "to effect a practical balance between the recognized need to preserve and enhance Aboriginal cultural tradition in relation to certain land in the Territory and the aspirations of the Aboriginal and all other peoples of the Territory for their economic, cultural and social advancement, by establishing a procedure for the protection and registration of sacred sites, providing for entry onto sacred sites and the conditions to which such entry is subject, establishing a procedure for the avoidance of sacred sites in the development and use of land and establishing an Authority for the purposes of the Act and a procedure for the review of decisions of the Authority by the Minister".[86] It was enacted by the Legislative Assembly of the Northern Territory in 1989, pursuant to the grant of legislative power in s 6 of the Northern Territory (Self‑Government) Act 1978 (Cth) and s 73(1)(a) of the Land Rights Act to make laws providing for the protection of, and the prevention of the desecration of, sacred sites in the Northern Territory.
The Act applies to all sacred sites throughout the Territory. A "sacred site" is defined by reference to the definition in the Land Rights Act, namely a site that is "sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition".[87] Sacred sites may be registered under Pt III, Div 2 of the Sacred Sites Act. A sacred site, however, will be a sacred site regardless of whether it is registered.
Divisions 1A, 1 and 3 of Pt III provide for certificates to authorise "persons" to do such things as would otherwise be criminal offences under the Act. Section 19B provides that a person who proposes to use or carry out work on land may apply to the Authority for an Authority Certificate. Section 22 provides that the Authority shall issue an Authority Certificate in relation to an application under s 19B where it is satisfied of one or other of two conditions. First, the work or use of the land could proceed or be made without there being a substantive risk of damage to or interference with a sacred site on or in the vicinity of the land.[88] Second, an agreement has been reached between the custodians and the applicant.[89] The Minister also has a power to issue a Minister's Certificate under s 32(1)(b) at the conclusion of a review procedure provided for in the Act.[90] The effect of an Authority Certificate or Minister's Certificate is that, subject to any conditions of the certificate, a person may enter and remain on the land in the application, and do such things on the land as are reasonably necessary for carrying out the work or use of the land.[91] As has been explained, the DNP did not have an Authority Certificate or Minister's Certificate.
Part IV of the Sacred Sites Act sets out offences and penalties in relation to sacred sites.[92] Section 34, the offence provision at issue in this appeal, provides:

[34]

Section 4(1) evinces an express intention to bind the Crown, including "the Crown in all its ... capacities". Section 4(1) is a statement of the Legislative Assembly's intention that the provisions of the Sacred Sites Act, including s 34(1), should apply to the Executive Governments of the Commonwealth, States and Territories, and their instrumentalities, employees or agents acting in the course of their functions or duties.[99] That is, the Sacred Sites Act evinces an intention to bind all "persons" indifferently to its provisions, consistently with the purpose of the Act to protect sacred sites wherever those sites are located in the Territory.
In this appeal, and in the Full Court below, it was accepted that the Commonwealth is bound to comply with the provisions of the Sacred Sites Act, including its legal obligations and prohibitions. It was also common ground in this appeal that the word "person" in s 34(1) includes a body politic. That is, all persons - natural persons, body corporates and body politics - are prohibited under s 34(1) of the Sacred Sites Act from carrying out work on or using a sacred site.
Put in different terms, the Bropho presumption was rebutted.
There is then the separate question of whether s 34(1) of the Sacred Sites Act exposes a body politic to criminal liability. The answer is yes, in part. The body politic of the Northern Territory of Australia is exposed to criminal liability. The bodies politic of the other States, the Australian Capital Territory and the Commonwealth are not.
First, it is relevant to observe that the maximum penalty that follows s 34(1) specifies a penalty for a natural person and a penalty for a body corporate. There is no penalty specified for a body politic.[100]
As explained, the presumption that a statute does not expose the Crown to criminal prosecution, conviction or penalty may only be displaced with "the clearest expression of intention".[101] Section 4(2) of the Sacred Sites Act provides such a clear expression of legislative intention in respect of the "Territory Crown", defined as meaning the Crown in right of the Territory and as including Agencies, authorities and instrumentalities. It provides that, if the Territory Crown in any of its capacities commits an offence against the Sacred Sites Act, the Territory Crown is liable in that capacity to be prosecuted for the offence as if it were a body corporate. That means that the penalty specified in s 34(1) for a body corporate could be imposed on the Territory Crown.
The Sacred Sites Act, however, does not contain a clear expression of intention to make the Crown in right of the Commonwealth liable to be prosecuted (or the Crown in right of the other States or the Australian Capital Territory). It was not in dispute that the Sacred Sites Act does not seek to expose the Commonwealth (as a body politic) to criminal liability for breach of s 34(1). Indeed, both parties accepted that a negative implication could be drawn from s 4(2) to (4) that the Act did not seek to make the Commonwealth criminally liable.
That construction is supported by the legislative history of s 4. Prior to 2006, s 4 stated that "This Act binds the Crown not only in right of the Territory but, to the extent that the legislative power of the Legislative Assembly so permits, in all its other capacities." That is, it was similar in terms to the current s 4(1).
In 2006, the Northern Territory Aboriginal Sacred Sites Amendment Act 2005 (NT) repealed s 4 and substituted it with the current section. However, when the Bill which eventually became that Act was introduced into the Legislative Assembly, s 4 was proposed to be substituted with:

[52]

It is therefore apparent that, consistently with what appears from the text of s 4(2) to (4) as enacted, there was a deliberate choice by the Legislative Assembly to apply those sub-sections only to the Territory Crown, not the Crown in all its capacities. Put in different terms, as the Authority submitted, "the original Bill would have extended criminal liability both in the Territory and in the Commonwealth beyond bodies corporate and natural persons into the very heart of the body politic through the deeming mechanism. After discussion with the Commonwealth, the Territory pulled back to impose that extra punishment on itself but not on the Commonwealth."
The Commonwealth Attorney-General argued that a further "negative implication" could be drawn from s 4(2) to (4) that Commonwealth statutory corporations were also not liable to prosecution and penalty under s 34(1) of the Sacred Sites Act. That is, the Attorney argued that, on the proper construction of s 4(2) to (4), the intention of the Legislative Assembly not to impose criminal liability on the DNP as a body corporate was clear, even without regard to the Cain v Doyle presumption. That contention is rejected.
The Commonwealth Attorney-General relied on the breadth of the definition of "Territory Crown" in s 4(4), arguing that the Act takes a broad view of the "Crown" beyond merely the body politic. The Attorney submitted that there is nothing in s 4(2) to (4) that draws a distinction between corporate or non‑corporate manifestations of the Territory Crown. On the Attorney's submission, the "authority or instrumentality" referred to in s 4(4)(b) may have independent corporate personality (for example, the appellant itself is established as an authority under s 5 of the Sacred Sites Act as a body corporate) and the reference to "agent" in s 4(3) is only to natural persons. In sum, the Attorney argued that the Legislative Assembly sought to bring the Territory body politic proper as well as all its extended corporate and non-corporate authorities or instrumentalities within the reach of the criminal law. Critically, however, s 4(2) to (4) do that work only for the Territory Crown. According to the Attorney, the negative implication to be drawn from that section, demonstrated by the legislative history of s 4, was that the Legislative Assembly decided not to impose criminal liability on Commonwealth authorities or instrumentalities, even those with independent legal personality.
The problem with the Commonwealth Attorney-General's submission is that s 4(2) to (4) only address the position of the Territory Crown. One can draw a negative implication from those provisions that the Legislative Assembly was willing to make the Territory body politic subject to prosecution as if it were a body corporate and that it was not willing to do so in relation to other bodies politic. The purpose of s 4(2) to (4) was to ensure that the Crown in right of the Territory, in all its capacities including unincorporated capacities, is able to be prosecuted. To the extent that the definition of "Territory Crown" includes incorporated bodies that would in any event be exposed to criminal prosecution, that may reflect a cautious approach to the scope of the Cain v Doyle presumption. It draws too long a bow to make a more expansive negative inference that the Legislative Assembly was intending to exclude the incorporated bodies of other States and the Commonwealth from criminal liability that would otherwise be imposed by the general provisions of the Act.
Therefore, contrary to the Commonwealth Attorney-General's submission, the question in this appeal is not answered by the drawing of a negative implication from the text, context and legislative history of s 4(2) to (4) of the Sacred Sites Act to the effect that the DNP is not exposed to criminal liability as a Commonwealth statutory corporation.
The question then is whether the DNP, a body corporate constituted under the EPBC Act, is entitled to the benefit of the Cain v Doyle presumption that legislation does not make the Crown liable to be prosecuted for or convicted of an offence under s 34(1) of the Sacred Sites Act. As will be explained, the answer is "No". The Cain v Doyle presumption is limited to the body politic, the DNP is not the body politic, and the EPBC Act did not confer on the DNP any immunity or presumptive immunity from criminal liability imposed by statute.

[54]

It is first useful to clarify what is meant by "body politic", "the Commonwealth", "the Executive Government of the Commonwealth", "the Crown" and "the Crown in right of the Commonwealth" in this context.
In 1901, the colonies federated as the Commonwealth of Australia "under the Crown of the United Kingdom of Great Britain and Ireland".[107] The Constitution, in identifying the new body politic which it established, does not use the term "the Crown"; instead, it uses the terminology of "the Commonwealth".[108]
The Commonwealth and States are distinct persons under the Constitution.[109] The Commonwealth as a legal person is comprised of three branches separated under the Constitution: the Parliament (Ch I), the Executive Government (Ch II) and the Judicature (Ch III).[110] The branches of government do not have separate legal personality.[111] The Commonwealth and the States are capable of the ownership of property, of enjoying rights and incurring obligations, and of suing and being sued, and this is not merely as between the government and private persons, but by each government as distinguished from and as against each other government.[112] The same can be said of the Northern Territory.[113]
The expression "the Crown" "normally means the Sovereign considered as the central government of the Commonwealth or a State"[114] - that is, the Commonwealth, the State or the Territory as it acts through the executive branch. When referring to the exercise of the executive power of the Commonwealth through the Executive Government of the Commonwealth, and when referring to its control, the distinct legal personality of the Commonwealth as a body politic has traditionally been expressed as "the Crown in right of the Commonwealth".[115]
The Authority submitted that there are no decisions in this Court that apply Cain v Doyle beyond the body politic to a statutory body or corporation with independent legal personality. The Commonwealth Attorney-General submitted that there are two such decisions - Telstra Corporation Ltd v Worthing[116] and SASB[117]. It is necessary to examine this Court's primary authorities that refer to the Cain v Doyle presumption in chronological order - Cain v Doyle, Bropho v Western Australia[118], Jacobsen v Rogers[119], SASB, Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority[120], Telstra and Wurridjal v The Commonwealth[121] - to identify how the Court in those cases described who gets the benefit of the presumptive immunity.
What that analysis will reveal is that no decision of this Court has held that the presumption in Cain v Doyle extends beyond the body politic.[122] And, as will be explained, there is no basis to extend the presumption. That is not to deny the fact that the legislature may expressly or impliedly confer on a body an immunity or presumptive immunity from criminal laws. But it did not do so in this case.

[56]

In Bropho, the Act that established the Western Australian Development Corporation ("the WADC") expressly provided that it was an agent of the Crown in right of the State and enjoyed the status, immunities and privileges of the Crown.[127] The appellant had commenced proceedings in the Supreme Court of Western Australia against the State of Western Australia and the WADC seeking a declaration and injunction under the Aboriginal Heritage Act 1972 (WA), which was struck out on the ground that the Act did not bind the Crown. The issue on appeal was whether s 17 of the Act (which created an offence for damaging an Aboriginal site) applied to the Crown or to instrumentalities or individuals acting on its behalf.[128]
The Court held that the Act evinced an intention that all natural persons, including government employees, should be bound.[129] The joint judgment observed that government employees acting in the course of their duties could be found guilty of an offence under s 17.[130] It followed that the WADC had no power to authorise its employees or others to carry out activities of the type proscribed by the section.[131] That being so, declaratory and injunctive relief would be available on the facts alleged in the statement of claim.[132] It was, therefore, unnecessary for the purposes of the appeal to consider whether the WADC itself was liable to prosecution or conviction for an offence against s 17.[133]
In the course of setting out the relevant principles, the joint judgment observed that, if the question in issue is whether the general words of a statute should be construed in a way which would make "the Sovereign herself or himself in the right of the Commonwealth or of a State" liable to prosecution and conviction for a criminal offence, the presumption against a legislative intent to that effect would be extraordinarily strong.[134] Brennan J, who wrote separately, described the principle in Cain v Doyle as applying to the imposition of criminal liability on "the Crown".[135] This was contrasted with the imposition of criminal liability on servants and agents even when acting within the scope of authority given by the Crown.[136]

[60]

SASB was the first decision that the Commonwealth Attorney‑General argued was authority that Cain v Doyle may apply for the benefit of a statutory corporation. In SASB, Brennan CJ, Dawson, Toohey and Gaudron JJ appeared to assume in obiter that the State Authorities Superannuation Board ("the SASB") could be "the Crown" for the purpose of the Cain v Doyle presumption, but determined that it was not necessary to decide that question for the purposes of the appeal because the SASB was bound to pay stamp duty under the Stamp Act 1921 (WA) irrespective of whether it was exposed to criminal liability for failure to pay.[142]
McHugh and Gummow JJ observed that the Cain v Doyle presumption has been said to apply where a statute has conferred the immunity of the Crown upon a body or corporation,[143] and stated that the SASB would be "the State" for the purposes of the Cain v Doyle presumption.[144] Three aspects of that reasoning should be noted. First, the statements were obiter; second, the first statement is qualified by the words "has been said to apply"; and third, the authorities cited do not directly support or are contrary to the proposition.
The first authority cited by McHugh and Gummow JJ was Bolwell v Australian Telecommunications Commission[145], a decision of the Federal Court of Australia (Smithers J) where it was held that the relevant provision did not bind the Crown - the Crown was not "within [the provision's] statutory command"[146] - and therefore did not bind the defendant statutory corporation "as an emanation of the Crown".[147] In coming to that conclusion, Smithers J treated Cain v Doyle as the strongest end of the general presumption that legislation does not bind the Crown, requiring an "unequivocal indication" where the statutory provision is a penal provision.[148]
The second authority cited by McHugh and Gummow JJ, R v Eldorado Nuclear Ltd,[149] does distinguish between a statute binding the Crown and a statute exposing the Crown to criminal liability, and is contrary to the proposition that the presumption against the latter applies for the benefit of statutory corporations acting on behalf of the Crown. In that case a majority of the Supreme Court of Canada held that the relevant legislation did not bind the Crown, and that the statutory corporations were immune because they were agents of the Crown.[150] Dickson J, writing for the majority, expressly rejected the notion that Crown agents are immune from criminal liability for unlawful acts, observing that "[t]he maxim that the Queen can do no wrong is a legal fiction which, at common law, serves the purpose of preventing the Queen from being impleaded in her own courts. There is, however, no comparable maxim that an agent of the Queen can do no wrong."[151] The statutory corporations were not criminally liable because the acts were not unlawful, as the Act did not bind the Crown and the corporations were acting on the Crown's behalf,[152] not because the Cain v Doyle presumption applied for the benefit of the corporations as agents of the Crown.
To the extent that McHugh and Gummow JJ's obiter statements suggest that the Cain v Doyle presumption extends beyond the body politic, they are to be disregarded.

[69]

This case affords an opportunity to confirm, consistently with that long line of authority, that the Cain v Doyle presumption does not apply beyond "the Crown" as a body politic.[163] That is, the Cain v Doyle presumption does not apply beyond the Commonwealth, States or Territories as bodies politic.[164]
It is established that, unlike the Bropho presumption,[165] the Cain v Doyle presumption does not apply for the benefit of natural persons who act with the authority or purported authority of the Crown or executive government - be they servants or agents.[166] The Commonwealth Attorney-General accepted that natural persons forming part of the executive government are bound by criminal norms of general application, but contended that some statutory corporations fall within a special category that can share the body politic's presumptive immunity. The statutory corporations said to have the benefit of Cain v Doyle were those statutory corporations that Parliament intended to "have the same protection as the body politic itself" or to fall within what used to be described as "the shield of the Crown".
The executive functions of the executive government are necessarily performed through the agency of persons who "may be natural persons or, as has been increasingly the tendency over [more than one] hundred years, fictitious persons - corporations".[167] Why there should be a different rule for natural persons and fictitious persons was not explained. Each is a distinct legal personality. Each has been held to be able to fall within the so-called "shield of the Crown".[168] A body corporate, like a natural person, may "represent the Crown"[169] or be a "servant or agent"[170] of the Crown. But statutory corporations, whatever their relationship to the executive government, "are not and never do become the Crown itself".[171] Statutory corporations are not "the Crown in right of the Commonwealth" or "the Executive Government of the Commonwealth" under the Constitution. Statutory corporations are creatures of statute, they have their own distinct legal personality, and their powers (and any immunities) are sourced in statute.[172] Statutory corporations do not have any common law prerogative powers or immunities that may exist as part of the executive power of the Commonwealth in s 61 of the Constitution. Although presumptive immunity from criminal prosecution is now regarded as a principle of statutory interpretation rather than a prerogative, it remains that it is only for the benefit of the Crown.
The Commonwealth Attorney-General submitted that the "modern rationale" for the Cain v Doyle presumption is to recognise that, as a matter of history, the imposition of criminal liability upon the body politic is an unusual step and not something to happen by accident. The Attorney submitted that it has been part of the "working hypothesis", the existence of which is known both to Parliament and to the courts, upon which statutory language will be interpreted.[173] That hypothesis is "an aspect of the rule of law".[174] But it has never been a part of that working hypothesis that bodies other than the body politic have the benefit of the Cain v Doyle presumption. A statutory corporation may, however, be able to claim the benefit of rights, privileges or immunities that are similar or equivalent to those to which "the Crown" is entitled,[175] but those rights, privileges or immunities must be sourced in the statute.
There is no principled basis on which the Cain v Doyle presumption should apply to statutory corporations who act with the authority or purported authority of the Crown. Two of the reasons given by Dixon J in Cain v Doyle[176] for the presumption do not apply to different legal entities. A fine imposed on a different legal entity to the Crown would not necessarily involve a payment from consolidated revenue to consolidated revenue; and any power to remit a fine would be at the discretion of an entity with a different legal personality.[177] Those justifications provide no reason to extend its protection, beyond the body politic, to a statutory corporation.
The two other reasons given in the same passage by Dixon J do not have contemporary significance. First, Dixon J was concerned that there is no court of summary jurisdiction with jurisdiction over the Crown and no summary procedure to which the Crown is amenable.[178] But such summary jurisdiction can be conferred; in this case the proceedings were brought in the Local Court under s 18(1)(a)(i) of the Local Court Act 2015 (NT).[179] Second, Dixon J observed that the Crown acts only by its Ministers and servants.[180] The idea appears to have been that it is sufficient to expose those persons to criminal liability when engaging in action which "constitutes or involves the offence on the part of the Crown".[181] As the Authority submitted, this idea does not accord with modern notions of criminal responsibility whereby corporate entities are seen by Parliaments to also be proper subjects for criminal punishment and deterrence.[182] The exposure of natural persons to criminal liability provides no reason why the Cain v Doyle presumption should extend to bodies corporate.
And that is reinforced by the differences in the rationales underpinning the Bropho presumption and the Cain v Doyle presumption which have been explained earlier. The rationale for the Bropho presumption is against legislation prejudicing or impairing the existing legal position of the Crown or the executive branch of the body politic.[183] That is why the presumption also applies for the benefit of servants and agents of the Crown - because the Crown acts through its servants and agents. The application of an Act to the servants and agents acting in their official capacity is, in legal effect, an application of the Act to the Crown.[184] By contrast, Cain v Doyle has a more limited rationale. If the Act evinces an intention to bind the Crown (like the Sacred Sites Act), then the Crown's legal position, in the Bropho sense, is already affected. It cannot lawfully instruct its servants or agents to do something that is contrary to the law and its servants or agents will be subject to consequences for breach of the criminal law. The Crown may also be liable to civil consequences. Put in different terms, the extra work done by the Cain v Doyle presumption is to protect the body politic from criminal prosecution.
Where an Act evinces an intention to bind a statutory corporation and that Act imposes criminal liabilities for breach of its provisions, there is no presumption that the criminal penalties do not apply to the statutory corporation.

[73]

A statute may expressly provide that a statutory corporation is not liable to any penalty to which the Commonwealth is not subject (as in Telstra) or may impliedly do so. As in Telstra, the result would be that any State or Territory law purporting to impose liability on the statutory corporation would be inoperative to the extent of any inconsistency. However, special privileges and immunities should not be readily implied. As Gibbs CJ, writing for the Court, said in Townsville Hospitals Board v Townsville City Council, "[a]ll persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them. It is not difficult for the legislature to provide in express terms that a corporation shall have the privileges and immunities of the Crown, and where it does not do so it should not readily be concluded that it had that intention."[189]
A mere statement that the statutory corporation represents the Crown or is an agent of the Crown would not be sufficient to confer on it a presumptive immunity equivalent to the Cain v Doyle presumption, given that the presumption only applies in respect of the Crown itself and not its servants or agents. Rather, there would need to be an intention, express or implied, that the statutory corporation be immune or presumptively immune from criminal laws, or that it not be subject to any penalty or liability to which the Commonwealth itself is not subject.
The EPBC Act does not expressly confer immunity on the DNP from criminal liability from State and Territory laws in the performance of its functions or powers under the EPBC Act. Nor does it expressly state that the DNP has the status of the Crown, either generally or for the purposes of the presumption against the imposition of criminal liability.
Nor is there an implied conferral of immunity or presumptive immunity. Indeed, there are indicators in the EPBC Act that the DNP is not intended to be presumptively exempt from criminal liability. First, it is a separate legal person; it is constituted as a body corporate under s 514E of the EPBC Act. Incorporation, without express immunity, is a powerful contra-indicator of immunity. Second, it may sue and be sued in its corporate name.[190] Third, it is exposed to criminal liability under the EPBC Act[191] but the Commonwealth as a body politic is not exposed to those offences.[192] There is nothing to indicate that the DNP was intended under the EPBC Act to possess the same presumptive immunity from criminal liability enjoyed by the Commonwealth.
The Commonwealth Attorney-General identified one case, Superannuation Fund Investment Trust v Commissioner of Stamps (SA) ("SFIT"),[193] that was said to be of particular assistance in identifying the factors that guide the task of determining whether a body was intended to have the same privileges and immunities of the Crown. In that case, the question was whether the Superannuation Fund Investment Trust had the benefit of a statutory exemption from stamp duty for conveyances or transfers "to the Crown, or to any person on behalf of the Crown". The problem with the indicia relied on by the Attorney by reference to SFIT - chiefly, control by the executive government and the nature of the functions of the statutory corporation - is that those indicia may more generally go to whether the application of the Act to the corporation is, in legal effect, an application of the Act to the Crown or the executive branch of the body politic.[194] The indicia do not address the correct question.
As explained, the Cain v Doyle presumption has a more limited rationale and scope. It is narrower; it does not extend to servants and agents of the Crown. Factors relevant to whether a body can be characterised as a "servant or agent" of the Crown do not assist in identifying any specific intention to confer on the DNP any immunity or presumptive immunity from criminal law, either generally or when undertaking the statutory functions in issue, including administering, managing and controlling Commonwealth reserves.

[103]

So said Dixon J, in Cain v Doyle,[195] with the agreement of Rich J.[196] The consequence, Dixon J explained, was to require "clear expression of a valid intention" and "at least ... quite certain indications that the legislature had adverted to the matter and had advisedly resolved upon so important and serious a course".[197]
It can be a sign of lack of clarity of principle when a legal principle or rule comes to be known by reference to the case in which it was first set out rather than by reference to any point of principle. The "presumption in Cain v Doyle" (in the terms in which it was described on this appeal) did not even command the support of a majority of the Court when the case was decided. More fundamentally, every consideration cited by Dixon J in support of the presumption, and the ultimate foundation claimed for the presumption, was, or is now, based on an incorrect premise or English constitutional notions that were displaced upon Federation in 1901.
For nearly eight decades there has been confusion about the meaning of the "presumption in Cain v Doyle", the flexibility with which to apply the "presumption in Cain v Doyle", the extent of the operation of the "presumption in Cain v Doyle" including the connotation of the "Crown", and whether there are exceptions to the "presumption in Cain v Doyle". Even the meaning of "presumption" in the "presumption in Cain v Doyle" is unclear.
The "presumption in Cain v Doyle" was applied in this case by the Full Court of the Supreme Court of the Northern Territory. The Full Court, valiantly and diligently endeavouring to apply confused and confusing authority in this Court and in others, held that a Commonwealth statutory corporation, the Director of National Parks ("the DNP"), was immune from any criminal liability for carrying out work on a sacred site,[198] although its employees and contractors were not so immune.
One basic issue raised by this case is whether a presumption that is stripped of every basis given for its existence can be sustained in the same form only by its recognition in past authority. That issue was decided in a joint judgment of six members of this Court in Bropho v Western Australia,[199] who held that such a view might be of "considerable superficial appeal" but that a rule concerning a presumption "does not, of itself, provide an impregnable foundation for its own observance". In Bropho v Western Australia, the joint judgment set out the terms of the "presumption in Cain v Doyle" without mentioning the case itself and carefully omitting any reference to the outdated or flawed reasoning of Dixon J. The joint judgment then placed the "presumption" upon a new, and intelligible, foundation.[200]
The "presumption in Cain v Doyle" is now best understood as an example of a particular circumstance in which an inference of immunity from liability will often be very likely to be drawn, despite the absence of any expressly conferred immunity. The particular circumstance is where the object of the immunity is a body politic and the subject matter of the immunity is criminal liability. Even then, however, as in every case, any inference of a statutory implication of immunity will depend upon all the circumstances.
The Commonwealth statutory corporation that asserts immunity from criminal liability in this case, the DNP, is not the body politic of the Commonwealth of Australia. The subject matter of the DNP's assertion of immunity from criminal liability concerns an Act of the Legislative Assembly of the Northern Territory which aims to provide protection for a subject matter of enormous significance. That Act, the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ("the Sacred Sites Act"),[201] among other things, creates an offence which is committed where a natural person or body corporate carries out work on a sacred site without a particular certificate. The DNP is a body corporate.
If the DNP had the immunity from criminal liability that it asserts then it could knowingly carry out work on a sacred site without a certificate and without incurring criminal liability. It could knowingly desecrate a sacred site without incurring criminal liability.[202] The DNP could do so even though other bodies corporate could not. The DNP could do so even though natural persons who are members of the Executive Government (being officers, employees or other agents of the body politic of the Commonwealth of Australia) could not. For the reasons below, the Legislative Assembly of the Northern Territory should not be taken to have intended in the Sacred Sites Act to carve out such an immunity from criminal liability for the DNP.

[104]

Within Kakadu National Park lies the Gunlom Falls. The Gunlom Falls (including the falls and surrounding area) is sacred to the Jawoyn people and it is a sacred site within the Sacred Sites Act. The land is within buladjang (Sickness Country) where Bula (Creation Spirit) sleeps.
The Gunlom Falls is Aboriginal land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) and is held on trust for the Jawoyn people by the Gunlom Aboriginal Land Trust. That trustee leased the land to the DNP in accordance with the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The lease to the DNP made the land subject to a Plan of Management with joint management by the Jawoyn people and the DNP.
The DNP was created by s 15 of the National Parks and Wildlife Conservation Act 1975 (Cth). The existence of the DNP continues under s 514A of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) ("the EPBC Act"). One of the DNP's functions is to "administer, manage and control Commonwealth reserves and conservation zones".[203] The DNP's powers include entering into contracts and carrying on works.[204]
In 2019, the DNP, through a contractor, carried out construction work to realign a walking track at the Gunlom Falls. The construction work included excavating and clearing trees, rock, soil and vegetation and inserting concrete steps. There is no dispute that the construction work was carried out on a sacred site and that the DNP carried out the work without the required authority under the Sacred Sites Act.
On 11 September 2020, the appellant in this Court, the Chief Executive Officer of the Aboriginal Areas Protection Authority ("the CEO of the AAPA"), charged the DNP with an offence under s 34 of the Sacred Sites Act of carrying out work on a sacred site. In the Local Court of the Northern Territory at Darwin, a special case was stated for the opinion of the Supreme Court of the Northern Territory. The relevant question of law asked by the 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. Grant CJ ordered that the question of law be referred to the Full Court of the Supreme Court of the Northern Territory.
The Full Court answered the question reserved by saying that "[t]he offence and penalty prescribed by s 34(1) of the [Sacred Sites Act] do not apply to the [DNP] as a matter of statutory construction". Central to the reasoning of the Full Court was the application of the decision of this Court in Cain v Doyle,[205] which the Full Court described as recognising a "presumption that a statute is not properly construed to impose criminal liability on the Crown without the clearest of indications".[206] The Full Court treated the DNP as falling within the denotation of "the Crown" in this "presumption",[207] concluding that the Sacred Sites Act "did not evince a sufficiently clear objective intention to impose criminal liability on the Crown".[208]
On this appeal, the CEO of the AAPA submitted that the "presumption in Cain v Doyle" should be reopened and overturned - or, perhaps more accurately, restated (or re-explained)[209] - and either subsumed within a general presumption or confined in its application to bodies politic. The CEO of the AAPA submitted that, subject to defences and any inconsistency with Commonwealth legislation (neither of which is relevant to this appeal), the only real obstacle to recognising that the DNP was subject to criminal liability for the offence in s 34 of the Sacred Sites Act was the "presumption in Cain v Doyle". The CEO of the AAPA was supported by a joint intervention by the Northern Land Council, the Gunlom Aboriginal Land Trust and two of the traditional Aboriginal titleholders and custodians of the sacred site,[210] Messrs Joseph and Billy Markham.
The DNP, the first respondent, did not make any substantive submissions. The Attorney-General of the Commonwealth, the second respondent, submitted that the "presumption in Cain v Doyle" should not be reopened, overruled or re-explained. Rather, the presumption should be applied beyond bodies politic to statutory corporations that are created to "have the same legal status as the bod[y] politic". In any event, the Attorney-General submitted, independently of the "presumption in Cain v Doyle", s 4 of the Sacred Sites Act contains a negative implication to the same effect. The submission was that the express exclusion in s 4 of the immunity of the body politic of the Northern Territory supported an implied immunity of the body politic of the Commonwealth of Australia, as well as any statutory corporation that was created by the Commonwealth with the intention of it bearing the same immunities as the body politic of the Commonwealth of Australia.
For the reasons below, the CEO of the AAPA was correct that the "presumption in Cain v Doyle" must be re-explained. The submissions of the Attorney-General of the Commonwealth, although supported by some decisions in this Court and others, should not be accepted. The starting point to the legal approach to the interpretation of s 34 of the Sacred Sites Act is therefore the meaning of the "presumption in Cain v Doyle".

[105]

In Cain v Doyle,[211] Mr Wright was reinstated in his employment by the Commonwealth of Australia at the Commonwealth Government's Munition Factory, following his war service. Mr Wright's employment by the Commonwealth was terminated by Mr Doyle, a manager at the factory. Mr Doyle was charged as an accessory to the commission of an offence,[212] namely the offence by the Commonwealth of terminating the employment of a reinstated employee in contravention of s 18(1) of the Re-establishment and Employment Act 1945 (Cth).
A majority of this Court (Latham CJ, Rich, Starke and Dixon JJ) held that Mr Doyle was not liable as an accessory to the offence in s 18(1). Latham CJ and, separately, Dixon J (with whom Rich J agreed) held that the Commonwealth Parliament intended that "the Crown" be prohibited from terminating the employment of a reinstated employee[213] but that the Commonwealth Parliament also intended that the Crown not be subject to punishment for any contravention of that prohibition.[214] In other words, the Crown was not immune from any civil liability such as an injunction or declaration but the Crown was immune from criminal liability.
The reasoning of Latham CJ, "a lonely Australian judicial opinion",[215] was based upon the incorrect premise explained later in these reasons that the Commonwealth could never be liable for a criminal offence.[216] By contrast, Dixon J (with whom Rich J agreed) recognised that the Commonwealth might be liable for a criminal offence but relied upon the presumption quoted at the start of these reasons to conclude that the Commonwealth was immune from criminal liability. An assumption made by Dixon J, perhaps reflecting the manner in which the case was argued, was that if the Commonwealth had an immunity from liability, there would be no principal offender and there could therefore be no accessory.[217] Dixon J therefore concluded that Mr Doyle could not be found guilty of procuring or being knowingly concerned with the commission of an offence.[218]

[106]

The definition of an employer in s 10 of the Re-establishment and Employment Act 1945 (Cth) had included, subject to contrary intention, "the Crown (whether in right of the Commonwealth or of a State)". The reference in Dixon J's discussion of his presumption to "an attempt to impose upon the Crown a liability of a criminal nature" must have been to the "Crown in right of the Commonwealth".[219]
The expression "the Crown in right of the Commonwealth" and an even more difficult expression of English origin, "the Crown", are slippery and are capable of various meanings. As Gleeson CJ, Gummow and Hayne JJ said in Sue v Hill,[220] Professor Pitt Cobbett identified the expression "the Crown" as a "defective conception ... the outcome of an attempt on the part of English law to dispense with the recognition of the State as a juristic person, and to make the Crown do service in its stead". Their Honours referred to Maitland's preference for the term "the Commonwealth", which would correspond with a description of each State by the State name rather than "the Crown".[221] As Seddon has noted, legislation could follow the model of the Constitution and "could just as effectively provide 'This Act binds the Commonwealth' instead of 'This Act binds the Crown in right of the Commonwealth'".[222]
But even the expression "the Commonwealth" is not free from ambiguity. Some of its meanings were explored in Hocking v Director-General of the National Archives of Australia.[223] The Constitution itself uses "the Commonwealth" in different senses. For instance: s 92 refers to "the Commonwealth" in the sense of a physical space; s 118 refers to "the Commonwealth" in the sense of Australian legal jurisdictions; and ss 75(iii), 78, 85, 105, 111 and 114 refer to "the Commonwealth" in the sense of a body that holds legal powers and rights and is subject to legal duties.[224] The last is perhaps the most common usage of "the Commonwealth". It has the same meaning as "the Crown in right of the Commonwealth", which was the phrase used in the Re-establishment and Employment Act 1945 (Cth). It describes a political entity or body that holds rights and is subject to duties.
The holding of rights requires legal personhood, natural or artificial. "At the time of federation,[225] and for centuries before that time,[226] the only artificial persons in English law were corporations, and corporations were either aggregate or sole."[227] Hence, although Maitland saw "no great harm" in the expression "the Crown", this was because he regarded it as apparent that the reference was to a body which he described as a "corporation aggregate".[228] The better nomenclature to describe the political entity of the Commonwealth of Australia as a "right-and-duty-bearing unit"[229] is to follow the language of the Constitution but to add the clarity that a reference to the "Commonwealth" is to a legal "person": a "corporation" (from corpus), or a "body". In other words, the best description of the legal entity of the Commonwealth as a political body that holds rights and is subject to duties is the "body politic of the Commonwealth of Australia", with "body politic" used in the sense described by Rousseau to mean a "public person".[230]
The body politic of the Commonwealth of Australia has three dimensions of power: the legislative power of the Commonwealth; the executive power of the Commonwealth; and the judicial power of the Commonwealth. The Constitution refers to the vesting of each of those dimensions of power: the legislative power in the Commonwealth Parliament;[231] the executive power in the Queen;[232] and the judicial power in the federal courts[233] and State and Territory courts invested with federal jurisdiction.[234] Each type of power remains the power of the body politic of the Commonwealth of Australia and the exercise of that power is attributable to the body politic of the Commonwealth of Australia. The point of the division of the power, and the "vesting" of each division, is to separate the three types of power.
The vesting of power is different from the exercise of that vested power. For instance, although Commonwealth judicial power is vested in federal courts and State and Territory courts invested with federal jurisdiction, where a legal challenge is brought to the authority of a decision-maker it is usually brought against the judicial officer who is said to have acted beyond jurisdiction.[235] In relation to executive power, the Constitution expressly provides that the executive power that is vested in the Queen "is exercisable by the Governor-General as the Queen's representative",[236] advised by the Federal Executive Council,[237] and acting through Ministers who administer Departments of State.[238] The Executive Government is not itself a legal person or "body".[239] Nor are the Departments of State legal persons.[240] A challenge to an executive decision or action is generally brought against the Minister or the responsible officer or agent within the relevant department.
The exercise of any type of power of the body politic of the Commonwealth of Australia by any Commonwealth officer, employee or other agent (including sub-agents) will, subject to any immunity from liability, be attributed to the body politic of the Commonwealth of Australia as the body on whose behalf the power was exercised. As Hartford Davis has written:[241]

[108]

When Dixon J referred to "the Crown" in Cain v Doyle, and when s 10 of the Re-establishment and Employment Act 1945 (Cth) referred to "the Crown ... in right of the Commonwealth", the references were to a body that holds rights and is subject to legal duties. In that sense, Dixon J, and s 10, could only have been referring to the body politic of the Commonwealth of Australia, which was the employer of Mr Wright. The reference could not have been to the amorphous description of "Executive Government", which is not a legal person but is sometimes also described as "the Crown". Nor could the reference have been to any of the legal persons who exercised the executive power of the body politic of the Commonwealth of Australia in their actions as officers, employees or other agents of the body politic. None of those people was Mr Wright's employer.
Some element of confusion arises because Dixon J did refer to the effect of liability of "the Crown" for punishment being an effect on "the Executive Government of the country", saying that the Executive Government "is the practical meaning of the expression Crown in such a connection".[242] Perhaps for this reason, the Full Court in this proceeding held that "the Crown" in Cain v Doyle included "the executive branch of government represented by the Ministry and the administrative bureaucracy ... including statutory corporations".[243] That was also how Professor Winterton had understood Dixon J.[244]
Although Dixon J had referred to the Executive Government as the "practical meaning" of "the Crown", all that should be understood by this statement is that the effect of punishing the body politic of the Commonwealth of Australia by fine is that the fine will be paid from the "Federal treasury",[245] the Consolidated Revenue Fund, which is, in practice, the source of funds for the activities of the Executive Government. Elsewhere, his Honour was careful to separate "the Crown", in the sense of the body politic of the Commonwealth of Australia, from its agents. "[T]he Crown", he said, "acts only by its Ministers and servants", who could be liable as accessories under s 5 of the Crimes Act 1914 (Cth) if the Crown were liable as principal, or liable as conspirators under s 86 of the Crimes Act 1914 (Cth) if an offence was committed on behalf of the Crown.[246] So too, the Crown might act through its creation of a statutory corporation as its agent. But the Ministers, servants, or corporations that act as agents of "the Crown" are not, themselves, "the Crown" to which Dixon J was referring when enunciating what has become known as the "presumption in Cain v Doyle".
The expression "the Crown" is, however, sometimes used in a broader sense when describing an immunity from liability for that "class of departments, organizations and persons generically (and loosely) described as the Crown" where the effect of liability for the legal persons in those departments or organisations "would mean some impairment of the existing legal situation" of a body politic.[247] In this loose use of "the Crown", the immunity extends to officers, employees or other agents of the body politic, including statutory corporations over which there is sufficient executive control to permit their characterisation as agents of the body politic. The immunity might extend even further if, in what has been described as "derivative Crown immunity",[248] the functions of the holder of the immunity are "looked upon by the law as performed for the Crown" even if the person is not an officer, employee or other agent of a body politic.[249] Precision in identifying the subject of any claim of immunity can only be achieved by avoiding the use of the phrase "the Crown" and substituting for it a clear description of the precise nature of the legal person that is the subject of the claim of immunity.

[109]

The opening words of the extract from Dixon J quoted at the start of these reasons describe the strength of a "presumption". Those words immediately invite attention to what is meant by a "presumption". The term is used in a variety of different senses in law.[250] Sometimes it is used in law in the same sense as ordinary communication: a presumption is a standardised inference that arises from "common probabilities of fact".[251] It arises because common experience, such as the experience of the behaviour of humans or nature, generates reasonable expectations that when one fact exists another is also likely to, or ordinarily will, exist.[252] The presence of smoke gives rise to a presumption of fire.
Closely related to this is another sense in which "presumption" is used in law. This second sense represents the use of the term by Dixon J in Cain v Doyle. This sense is adapted from the usual sense of a standardised inference but requires a legal conclusion to be drawn in the absence of contrary information.[253] By treating Parliament as a notional person, a standardised inference was recognised to the effect that, subject to the force of anything to the contrary, when Parliament legislates to create a criminal offence it does not intend to "impose upon the Crown [in the sense of the body politic] a liability of a criminal nature". That assumption, or reasonable expectation, about parliamentary intention was based upon the longstanding public experience of Parliament's past approach, which was said to reflect "all our conceptions [of the Crown], constitutional, legal and historical".[254]
The term "presumption" was also used in this way by six members of this Court in Bropho v Western Australia.[255] Their Honours gave the example of the strong presumption that Parliament will not abolish or modify fundamental common law principles or rights and said that this was founded on "an assumption that the legislature would, if it intended to achieve the particular effect, have made its intention in that regard unambiguously clear".[256] The foundation of that assumption in reasonable expectations of the public based on longstanding experience means that the less fundamental the principles or rights are, and the more eroded they are, the less force the presumption will have.[257] Further:[258]

[113]

In Cain v Doyle,[263] Dixon J gave four examples to support his "presumption against general words bearing such a meaning" as to impose criminal liability upon the body politic of the Commonwealth of Australia. Consistently with the concept of a presumption as a standardised inference which is drawn based upon common experience, his Honour described these examples as "considerations which have a daily application".[264] Unfortunately, each of the examples was, or is now, based on a mistaken understanding of the law or a misconceived attempt bluntly to apply English constitutional concepts to Australian law after 1901.
First, Dixon J said that "[t]here is no Court of summary jurisdiction with jurisdiction over the Crown and no summary procedure to which the Crown is amenable, that is apart from the consent of the Crown".[265] That has long ceased to be the case. In relation to the present proceedings, s 18(1)(a)(i) of the Local Court Act 2015 (NT) confers jurisdiction on the Local Court of the Northern Territory to hear and determine a charge of a summary offence and s 67B of the Judiciary Act 1903 (Cth) provides that the Northern Territory may bring a suit in respect of any cause (including a criminal proceeding[266]) against "the Commonwealth" (meaning the body politic of the Commonwealth of Australia).
Secondly, Dixon J said that, with a limited exception, "the whole of a forfeiture, fine or penalty would presumably go to the Federal treasury; and yet a fine imposed is payable by the treasury".[267] As Latham CJ put the point, "[t]here is no reason in a provision that the Commonwealth shall pay a fine to itself".[268] That conception of the inutility of a person imposing a fine on itself is no longer, if it ever were, accurate. First, where different bodies politic are involved the fine will be paid to a different source (in this case, the Central Holding Authority of the Northern Territory[269]). So too, in circumstances such as the present, the activities of the party paying the fine might not be directly funded from consolidated revenue.[270] In any event, the need for a ministerial department to account for the cost of a fine would permit political scrutiny of the department.[271] The imposition of a fine could also have consequences for third parties, as it could have in Cain v Doyle itself where a penalty upon conviction could have been ordered to be paid, in part, to compensate the employee, Mr Wright.[272]
Thirdly, Dixon J said that "[i]t is for the Crown to remit fines".[273] So it is. But that power is exercised by the relevant Vice-Regal officer of the body politic whose officers of the Executive Government prosecuted the offence. Even where (as in Cain v Doyle) the prosecuting authority is formally part of the Executive Government of the polity which is subject to the fine, the prosecutions are usually conducted independently of executive policy. A decision to remit a fine would be taken with an appreciation of the political cost of a finding of guilt. There will also be circumstances where, as here, the prosecuting authority is not part of the body politic responsible for the offence. Here, if a fine were able to be imposed on the body politic of the Commonwealth of Australia, it would be the Administrator of the Northern Territory,[274] on the advice of the Executive Council of the Northern Territory,[275] who would take any decision to remit any fine that is imposed upon the body politic of the Commonwealth of Australia.
Fourthly, Dixon J said that the "Crown" generally "acts only by its Ministers and servants".[276] The effect of this, he said, was that if the "Crown" were criminally liable then two or more of its agents could be guilty of conspiracy by acting solely in the interests of the Commonwealth where, "knowing the facts" but unaware of the legal consequences of their actions, the agents "agree upon a course of action which constitutes or involves the offence on the part of the Crown".[277] Further, Dixon J added that a single officer might be liable as an accessory. It is unnecessary to descend into the elements of liability for conspiracy or accessory liability other than to note the serious difficulties presented by the assumption of Dixon J that a person could not be liable as an accessory to a crime for which the principal had an immunity from liability.[278]
More fundamentally, there are serious questions for the rule of law, and more specifically equality under the law,[279] presented by Dixon J's concern to immunise from criminal liability any agents of the body politic of the Commonwealth of Australia whose offence was committed with a belief that they were acting in the interests of the Commonwealth, but not to immunise others who acted in the same way with respect to a different employer. To the contrary, "[i]f an act is unlawful ... a person who does it can claim no protection by saying that he acted under the authority of the Crown".[280]

[115]

Perhaps with an eye to the weakness of each of the four considerations above, Dixon J said in Cain v Doyle that in their support for the presumption they were "only minor considerations".[281] The fundamental basis for the reasonable expectation that the body politic of the Commonwealth of Australia would not be held criminally liable, which the considerations illustrated, was said to be the "place occupied in our system by the fundamental constitutional principle ... that the Crown is not liable to be sued criminally for a wrong, and only civilly by modern statute; and that the King is not under the coercive power of the law".[282]
In Cain v Doyle, Latham CJ appeared to rely upon the English constitutional principle that the King can do no wrong as a justification to deny even the ability of the Commonwealth Parliament to legislate to impose criminal liability upon the body politic of the Commonwealth of Australia. Latham CJ referred to "the rule that the King can do no wrong", said that this principle applied a fortiori to criminal wrongs, and said that it "would appear to be obvious that it is impossible for the Crown in right of the Commonwealth to prosecute the Commonwealth" for a serious criminal offence.[283] The Chief Justice said that although "Ministers and officers of the Crown" could be, if the Commonwealth Parliament wished, subjected "to the penalties to which private employers are liable under the Act", this was not possible for the body politic of the Commonwealth of Australia because "the fundamental idea of the criminal law is that breaches of the law are offences against the King's peace, and it is inconsistent with this principle to hold that the Crown can itself be guilty of a criminal offence".[284]
By contrast, and perhaps recognising the difficulty of bluntly transplanting English constitutional conceptions to Australia especially after Federation, Dixon J relied upon the English constitutional principle as the foundation for a presumption (rebuttable by clear evidence of parliamentary intention) about immunity rather than the foundation for an irrebuttable rule about the absence of any substantive duties.[285] A decade earlier, Dixon J had said in Werrin v The Commonwealth[286] that but for the decision of Isaacs, Rich and Starke JJ in The Commonwealth v New South Wales[287] (which had identified the foundation of the liability of the Commonwealth body politic in s 75 of the Constitution[288]) he would have "felt little or no hesitation" in concluding that the Commonwealth Parliament had "complete authority" over the cause of action for any wrong and the remedy for enforcing it.[289] In Werrin v The Commonwealth, Dixon J also said that he "should have thought that the right of the subject to recover from the Crown in right of the Commonwealth, whether in contract or in tort, is the creature of the law which the Federal Parliament controls".[290]
The view that Dixon J took in Werrin v The Commonwealth was one which transformed the English constitutional principle from one that supports an irrebuttable absence of substantive legal duties into one that supports only a rebuttable immunity. Dixon J said that one "traditional mode of expressing and indeed accounting for the absence of any liability on the part of the Crown for the torts of its servants has been to say that the Crown cannot be sued except by its own consent".[291] That mode of expression, as Dixon J recognised, treated the inability to bring an action against the Commonwealth as merely an immunity from liability, not as an absence of the underlying duty.[292] The body politic of the Commonwealth of Australia owes common law duties (the King can do wrong) but has an immunity from liability for breach of them. On that view, in Dixon J's words, the body politic of the Commonwealth of Australia owes duties but any duty is "in abstracto as a duty of imperfect obligation".[293] In short, the immunity is not the absence of duty but is instead "the shield of the Crown",[294] which immunises the body politic of the Commonwealth of Australia from the liability that exists for breach.
In Werrin v The Commonwealth,[295] Dixon J recognised that this immunity conception of the liability of a body politic was supported by a decision of the Privy Council in 1887,[296] which held that the legislative grant of a general remedy against the body politic could effectively remove the "Crown immunity" that existed for its liability for wrongdoing. The removal of an immunity, rather than the creation of a new liability, must have meant that the "Crown" still had "substantive responsibility" or underlying common law duties; the "Crown immunity" meant only that the underlying common law duties were "of imperfect obligation".[297]
This transformation of the English constitutional principle from one that supported an absence of duty to one that supported an immunity from liability meant that after 1901 the immunity no longer existed. The effect of the conferral of jurisdiction by s 75(iii) of the Constitution for suits "in which the Commonwealth ... is a party" must have been a constitutional removal of any immunity of the body politic of the Commonwealth of Australia.
The immunity conception of the English constitutional principle, and the recognition of its removal by s 75(iii) of the Constitution, was applied by four members of this Court in The Commonwealth v Mewett[298] and has been repeatedly affirmed.[299] That established Australian principle leaves no place for the application to the body politic of the Commonwealth of Australia of the English constitutional principle that "the King can do no wrong". The "fundamental constitutional principle" upon which Dixon J's presumption depended in Cain v Doyle, and which provided the foundation for a reasonable expectation that legislation would not expose the body politic of the Commonwealth of Australia to criminal liability, is now firmly established as an outdated conception that should be regarded as having been inapplicable to Australia since 1901.

[118]

The issue for this Court in Bropho v Western Australia[300] concerned an offence provision, s 17 of the Aboriginal Heritage Act 1972 (WA), that was expressed in general terms. The issue was whether that offence provision applied to any of: (i) the Crown (by which must have been meant the body politic of Western Australia); (ii) a statutory corporation that was created as "an agent of the Crown in right of the State" with, relevantly, the status, immunities and privileges of the body politic of Western Australia;[301] and (iii) individual employees and agents of that statutory corporation.[302]
This Court did not ultimately decide (i) or (ii). It was sufficient, in the appeal from a decision affirming the striking out of the appellant's statement of claim, to conclude that neither the body politic of Western Australia nor the statutory corporation had authority to authorise the individual employees and agents of the statutory corporation to commit a criminal offence by breach of s 17 of the Aboriginal Heritage Act 1972 (WA). Nevertheless, the reasoning of the joint judgment of six members of this Court explained the principles to be applied when considering whether a body politic or a statutory corporation acting as an agent of a body politic is subject to statutory obligations and, in particular, criminal laws such as s 17 of the Aboriginal Heritage Act 1972 (WA).
It is particularly telling that at the point when the joint judgment set out the terms of the "presumption in Cain v Doyle" (saying that "the presumption against a legislative intent [that a body politic would be 'liable to prosecution and conviction for a criminal offence'] would be extraordinarily strong"), the decision in Cain v Doyle was not mentioned.[303] This was no mere omission: the Court referred to copious authority and the decision in Cain v Doyle had been cited to the Court and was relied upon in detail by Brennan J.[304] Rather than referring to Cain v Doyle at the point where the joint judgment discussed the content of the "presumption in Cain v Doyle", the joint judgment cited a decision of the Supreme Court of Canada in which it was said, on one of the pages cited, that it was not "any longer right to say that the Queen can do no wrong, though in earlier times the immunity was so stated".[305]
The starting point for the relevant dispositive reasoning of the joint judgment of six members of this Court was that a rule that precluded liability of the "Crown", at least in the sense of the body politic, from arising under legislation had been treated as a "rule of statutory construction which identifies a presumption to be applied in ascertaining the relevant legislative intent".[306]
Their Honours thought that the rule "presents no real problem of principle" in so far as the presumption applied to "the actual person of the Sovereign"; in other words, their Honours were unconcerned with the application of the presumption to the body politic of the Commonwealth of Australia.[307] But the joint judgment expressed two concerns about the presumption. The first concern was the extension of the presumption "to confer prima facie immunity in relation to the activities of governmental instrumentalities or agents acting in the course of their functions or duties as such".[308] The second concern was the inflexibility of an approach which permits the presumption to be rebutted only if an intention to bind the body politic is stated in express terms or "manifest from the very terms of the statute", with the purpose of the statute only taken into account where the purpose would be "'wholly frustrated' unless the Crown is bound".[309]
One reason for the first concern - extension of the presumption beyond bodies politic - expressed by the joint judgment in Bropho v Western Australia was that such extensions may "offend notions of parity".[310] For instance, why should the agent or employee of the body politic be treated differently in terms of liability from the agent or employee of any other legal person?
Nevertheless, the joint judgment in Bropho v Western Australia regarded consistent recognition of the extension of the presumption beyond the body politic as having created a "firm factual foundation" for that extension.[311] In other words, notwithstanding legal concern about the lack of parity created by a rule that supports indemnity for one class of officers, employees and other agents because they act for the body politic, the extension of the presumption could be supported by its continued and consistent public recognition.
The concern about parity was more substantially ameliorated by their Honours' answer to their second concern, namely their concern about the inflexibility of application of the presumption. The inflexible application of the presumption in the past was replaced by a flexible application so that the strength of the presumption would depend upon "the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises".[312]

[125]

On the other hand, a circumstance where the inference of immunity from liability will rarely be drawn - where the presumption has been described as "little more than the starting point" to ascertain legislative intention[321] or as a matter of "weak operation"[322] - is where the subject of the immunity is the officers, employees or other agents (including statutory corporations) of a body politic. Indeed, in the circumstances described by the joint judgment in Bropho v Western Australia (the application to "employees of a governmental corporation engaged in commercial and developmental activities" of legislation that protects places or objects which are "of vital significance to a particular section of the community"), it may even be misleading to say that there is a presumption that is "little more than a starting point".[323] Since there is a strong likelihood of an inference of an absence of immunity, the very language of a "presumption" can "divert attention from the need to formulate legislative intent".[324]
Indeed, provisions such as s 64 of the Judiciary Act 1903 (Cth) reinforce the reasonable expectation of the public of an equality of treatment on the "not infrequent occasions"[325] where officers, employees or other agents of a body politic are engaged in the work of the Executive Government concerning commercial or developmental activities, "such as are engaged in by the Crown and its subjects alike".[326]
Further, in relation to breaches of the criminal law by employees acting with authority in the course of their duties for a body politic, "it simply would not occur to any legislature of this country" that in the absence of any express words or necessary implication in legislation, the employees would be "placed beyond the reach of the ordinary criminal law".[327] The intention of Parliament is today unlikely to be taken to involve the conferral of an immunity from the operation of general criminal provisions upon conduct by officers, employees or other agents acting with authority in the course of their duties for a body politic.[328]
In relation to statutory corporations, even prior to Bropho v Western Australia, in Townsville Hospitals Board v Townsville City Council,[329] Gibbs CJ, with whom the other members of this Court agreed, appeared to reject the existence of an extension of the presumption for the reason of parity, saying that "[a]ll persons should prima facie be regarded as equal before the law, and no statutory body should be accorded special privileges and immunities unless it clearly appears that it was the intention of the legislature to confer them".
The unlikelihood of an implied immunity from liability for statutory corporations can also be seen at the Commonwealth level in changes since the 1998 Parliamentary Counsel Drafting Direction, which was published after Bropho v Western Australia. The 1998 Direction recognised that all the circumstances, particularly ministerial control, would be relevant to determine whether a statutory body was within the "shield of the Crown" but assumed that the inference of "Crown immunity" would usually be drawn, saying that "specific provision" may be desirable if a statutory body is "not to operate under the shield of the Crown".[330] But, in 2011, it was said of the inference of immunity from criminal liability that "immunity from criminal responsibility does not extend to Crown servants" and "[m]ost of the Commonwealth's trading and business activities are carried on by [government business] enterprises, which can be held criminally responsible for unlawful conduct".[331] And, in 2023, it was said of the inference of immunity that "generally speaking, a corporate Commonwealth entity should not be entitled to the privileges and immunities of the Crown. Specific policy authority is required for departures from this general approach."[332]

[127]

For the reasons set out above, every case requires consideration of the context and all the circumstances. The broad statements expressed above about the unlikelihood of an inference of implied immunity from particular liability for members of the Executive Government or statutory corporations were based on an assumption of a close analogy between (i) the activities or offending conduct of those persons and (ii) the same activities or offending conduct of the general public. But the more unique the exercise of liberty or power is to the Executive Government, and the less analogous that conduct is with that of any member of the public,[333] the more confidence there might be that liability that is expressed in general terms is not to be taken to be intended to extend to those unique activities. Importantly, any inference of implied immunity from a general law is an inference that is concerned with the intention taken to be held by the Parliament that enacts the general law.
The Attorney-General of the Commonwealth submitted that an implied immunity will arise if the Parliament of a different body politic - the one that creates the statutory corporation - is taken to have an intention that the statutory corporation will have the same legal status as the body politic. That submission focuses upon the intention of the wrong Parliament. Although the functions and powers of the statutory corporation are important in determining whether an immunity is intended to exist, the question of whether legislation impliedly confers immunity from an offence or obligation can only be answered by reference to what is taken to be the intention of the Parliament that creates the relevant offence or obligation. The question is whether the Parliament that created the offence or obligation conferred an implied immunity upon the statutory corporation from liability for that offence or obligation.
The authority upon which the Attorney-General of the Commonwealth relied is consistent with this conclusion. In State Authorities Superannuation Board v Commissioner of State Taxation (WA)[334] one issue was whether a New South Wales statutory corporation, the State Authorities Superannuation Board ("the Board"), was immune from the provisions of the Stamp Act 1921 (WA). The Board was created by New South Wales legislation as "a statutory body representing the Crown",[335] where "the Crown" meant the body politic of New South Wales. It was argued that the Western Australian legislature did not intend to bind the body politic of New South Wales and that the Board was the "State" in that sense.[336] In a joint judgment, Brennan CJ, Dawson, Toohey and Gaudron JJ held that, apart from criminal liability in s 39(1a), the Stamp Act 1921 (WA) was intended to bind bodies politic. It was therefore unnecessary to decide whether the Board "was" the body politic of New South Wales "for the purpose of determining liability for the payment of stamp duty under the Stamp Act".[337] Nevertheless, it was assumed that any determination of whether the Board was to be treated in the same way as the body politic of New South Wales was a matter for the Parliament that enacted the Stamp Act 1921 (WA), not for the Parliament that enacted the legislation that created the Board. The same approach was taken by McHugh and Gummow JJ when they spoke of the classification of the Board as a State "for this purpose".[338]

[130]

With two possible exceptions, the judgments in this Court since Bropho v Western Australia that have considered the "presumption in Cain v Doyle" have treated that presumption as subsumed within the approach taken by this Court in Bropho v Western Australia.
One example is the decision of this Court in Jacobsen v Rogers.[339] An issue in that case was whether the body politic of Western Australia was subject to a Commonwealth legislative power to grant a search warrant. The decision in Cain v Doyle was cited in a joint judgment of five members of this Court for a proposition about the exceptional nature of criminal liability of a body politic in the course of an extended discussion of the decision in Bropho v Western Australia.[340]
The discussion in the joint judgment in Jacobsen v Rogers commenced by referring to the presumption, attributed to Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd[341] and explained in Bropho v Western Australia, that a Commonwealth statute does not intend to bind "the Crown" in right of the various States.[342] After observing that the "servants and agents" of the Crown "have no immunity from the ordinary criminal law", their Honours also observed, relying on Cain v Doyle, that "[t]he Crown itself may not be subjected to criminal liability, save in the most exceptional circumstances".[343] Their conclusion was that the legislation applied to premises owned by "the Crown in right of Western Australia".[344] The presumption of immunity of the body politic of Western Australia had less strength than in other circumstances, due to the impairment of the body politic's interest in the administration of justice that would arise if investigating agencies were powerless in relation to "Crown premises or Crown property".[345]
A second example is the decision of this Court in Australian Competition and Consumer Commission v Baxter Healthcare Pty Ltd.[346] In that case, in the course of considering the lack of immunity of some State bodies politic from various provisions of the Trade Practices Act 1974 (Cth), five members of this Court relied upon the decision in Bropho v Western Australia.[347] They did so in the context of considering provisions which attracted pecuniary penalties and drew an analogy with circumstances involving the commission of an offence.[348] There was no suggestion that in the same or related circumstances the presumption enunciated in Bropho v Western Australia should be replaced by a separate "presumption in Cain v Doyle".
A third example, although one that is not as clear, is the decision of this Court in Telstra Corporation Ltd v Worthing.[349] In that case, this Court considered whether New South Wales workers' compensation legislation applied to a Commonwealth statutory corporation created under the Telecommunications Act 1975 (Cth). In a joint judgment, the Court held that the Commonwealth statutory corporation was not immune from the civil effects upon it as an "employer" under the New South Wales legislation.[350] The Court then turned to the criminal liability of the statutory corporation.
The starting point for the assessment of whether the statutory corporation was immune from criminal liability was whether the body politic of the Commonwealth of Australia was subject to criminal liability. If the body politic of the Commonwealth of Australia was not subject to criminal liability, then s 109 of the Constitution would invalidate the provision in the New South Wales workers' compensation legislation imposing criminal liability upon the Commonwealth statutory corporation. The reason s 109 of the Constitution would have this effect was due to s 21(3) of the Telecommunications Act 1975 (Cth), which provided that the statutory corporation was not subject to any liability under State legislation to which the Commonwealth was not subject.[351]
The Court held that the body politic of the Commonwealth of Australia was generally immune from criminal liability, saying that it would "require the clearest indication of a legislative purpose to demonstrate that [the relevant penal] provisions attach to the Commonwealth".[352] That proposition was materially identical to the point made by the joint judgment in Bropho v Western Australia that a presumption of legislative intention to confer immunity from liability "would be extraordinarily strong"[353] where the body that would hold the immunity is a body politic and the subject matter of the immunity is a liability for criminal punishment. The authorities in the footnote supporting the proposition in Telstra Corporation Ltd v Worthing included a reference to the decision of Dixon J in Cain v Doyle, as well as the joint judgment of McHugh and Gummow JJ in State Authorities Superannuation Board v Commissioner of State Taxation (WA),[354] who said that the "presumption in Cain v Doyle" was the "same presumption" as was "said to apply where a statute has conferred the immunity of the Crown upon a body or corporation". Unfortunately, the same footnote also referred to the joint judgment of four other Justices in State Authorities Superannuation Board v Commissioner of State Taxation (WA),[355] which, as explained below, appeared to treat the "presumption in Cain v Doyle" as though it retained an independent existence from the presumption in Bropho v Western Australia.
A fourth example is the decision of this Court in Wurridjal v The Commonwealth,[356] where Gummow and Hayne JJ considered the scope of operation of the offence in s 69 of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) of entering or remaining on land that is a sacred site. Their Honours referred to both the judgment of Dixon J in Cain v Doyle and the decision of this Court in Telstra Corporation Ltd v Worthing for the proposition, again in effectively the same terms as the point made by the joint judgment in Bropho v Western Australia, that "it would require the clearest indication of legislative purpose to demonstrate that such a penal provision attached to the Commonwealth as a body politic".[357] Their Honours held that there was no such indication in s 69 but that the prohibition would apply to "officers of the Commonwealth and other parties".[358]
The first possible exception to the consistent approach in this Court of treating the "presumption in Bropho v Western Australia" as based on the same principles as the "presumption in Cain v Doyle" is the reasoning of Brennan CJ in Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority.[359] In that case, his Honour appeared to deny the existence of any presumption at all, developing the view that he had expressed in his separate reasons in Bropho v Western Australia.[360]
As to the absence of any presumption of immunity of the body politic of the Commonwealth of Australia, Brennan CJ said that "[w]hen the Crown in right of the Commonwealth enters into a transaction governed by State law, it is 'bound' in the sense that the rights it acquires or the obligations it assumes by entering into the transaction are those prescribed by or pursuant to the State law".[361] And, without adverting to the possibility of attribution of the conduct of its officers, servants or other agents to the body politic of the Commonwealth of Australia, his Honour thought it "meaningless" to speak of the body politic (which he described simply as "the Crown") "being 'bound' by State criminal laws which either prescribe duties to be performed under penalty or prohibit conduct of a prescribed kind".[362] Officers, servants or other agents would themselves be criminally liable unless their actions were authorised by a Commonwealth statute, in which case the criminal liability provision would be inoperative due to the operation of s 109 of the Constitution.[363]
Whether or not a presumption of immunity needed to be overcome, it is not correct to say that it is meaningless for a body politic to have attributed to it the conduct of its officers, employees or other agents. Whether that conduct is attributed for the purposes of civil or criminal liability, there can be real consequences for others that arise from a finding of liability of a body politic. As explained above, the facts of Cain v Doyle itself revealed such consequences. Nevertheless, no party or intervener sought to agitate those issues on this appeal and it is unnecessary to consider them. The view of Brennan CJ can be put to one side.
The second possible exception is the reasoning of Brennan CJ, Dawson, Toohey and Gaudron JJ in State Authorities Superannuation Board v Commissioner of State Taxation (WA),[364] where their Honours said that "[a]n intention that the Crown should not be bound by [s 39(1a) of the Stamp Act 1921 (WA)] is manifested, not by the application of a presumption of the kind discussed in Bropho, but by a different presumption based upon the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty". Their Honours then quoted from the reasons of Dixon J in Cain v Doyle concerning the strength of a presumption that would impose liability of a criminal nature on a body politic.
The difficulty with this reasoning in State Authorities Superannuation Board v Commissioner of State Taxation (WA) is that their Honours were not considering the application of the offence provision in s 39(1a) of the Stamp Act 1921 (WA) to a body politic. They were considering the application of that offence provision to a statutory body. If the "presumption in Cain v Doyle" were separate from the "presumption in Bropho v Western Australia" then the consideration of s 39(1a) was concerned with the latter, not the former. The more accurate characterisation of the "presumption" in State Authorities Superannuation Board v Commissioner of State Taxation (WA), consistent with all the authorities discussed above, was that of McHugh and Gummow JJ, who said that it was the "same presumption" recognised in Cain v Doyle that was "said to apply where a statute has conferred the immunity of the Crown upon a body or corporation".[365]

[133]

In 1989, the Sacred Sites Act replaced the Aboriginal Sacred Sites Ordinance 1978 (NT),[370] which had been one of the earliest enactments of the Legislative Assembly of the Northern Territory after self-government. The Sacred Sites Act created an expert body, the AAPA, with functions including the enforcement of the Sacred Sites Act,[371] and (as explained in the long title) sought "to effect a practical balance between the recognized need to preserve and enhance Aboriginal cultural tradition in relation to certain land in the Territory and the aspirations of the Aboriginal and all other peoples of the Territory for their economic, cultural and social advancement". This title was described as "an acknowledgement not only of this government's commitment to the recognition of Aboriginal tradition but also of its recognition of the aspirations of all Territorians for social, cultural and economic advancement and of the need to balance often competing interests".[372]
The Sacred Sites Act is divided into Parts. Part I defines a "sacred site" as having the same meaning as in the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), which is "a site that is sacred to Aboriginals or is otherwise of significance according to Aboriginal tradition, and includes any land that, under a law of the Northern Territory, is declared to be sacred to Aboriginals or of significance according to Aboriginal tradition".[373] Part II establishes the AAPA, regulates its operation, and confers functions and powers upon it.
Part III of the Sacred Sites Act is concerned with the procedure for protection of sacred sites. By s 19B, any person who proposes to carry out work on land can apply for an Authority Certificate from the AAPA. By s 19F, the AAPA will consult with the custodians of the sacred site on or in the vicinity of the land to which the application relates before issuing the Authority Certificate. By s 19G, the applicant for an Authority Certificate can request a conference with the custodians. The AAPA, by s 22, shall only issue an Authority Certificate (with any conditions) where "the work or use of the land could proceed or be made without there being a substantive risk of damage to or interference with a sacred site on or in the vicinity of the land" or "an agreement has been reached between the custodians and the applicant". Sections 30-32 provide for a procedure by which an applicant under s 19B who is aggrieved by a decision of the AAPA can apply to the Minister for a Minister's Certificate that sets out conditions, if any, on which work may be carried out on or use made of land comprised in a sacred site or on which a sacred site is situated.
Part IV of the Sacred Sites Act is concerned with offences, penalties and procedures. It contains, in s 34, the offence with which this appeal is concerned, namely carrying out work on a sacred site, with a defence that the work was carried out with, and in accordance with the conditions of, an Authority Certificate or a Minister's Certificate. The work carried out by the DNP was done without the permission of an Authority Certificate or a Minister's Certificate.

[175]

For the reasons above, the amendments to s 4 of the Sacred Sites Act did not affect the criminal liability under any provision of the Sacred Sites Act of any legal entity that is not a body politic. Since the DNP is a body corporate, on the plain terms of s 34 of the Sacred Sites Act the DNP is exposed to criminal liability under s 34.
The Attorney-General of the Commonwealth, relying in the alternative upon the decision in Cain v Doyle, sought to read down s 34 so that it excluded the DNP. The Attorney-General submitted that the "presumption in Cain v Doyle" had the effect that the body politic of the Commonwealth of Australia was immune from criminal liability under s 34 and that the same immunity extended to the DNP because it was created by the Commonwealth Parliament with the intention that it have the same legal status as the body politic of the Commonwealth of Australia.
That submission should not be accepted. As explained above, the decision in Cain v Doyle should be understood merely as one circumstance, namely criminal liability of a body politic, in which the Parliament that created the offence is likely to be taken to have intended to confer immunity. The DNP is not a body politic. And the question to be asked in respect of the DNP is whether the Legislative Assembly of the Northern Territory (not the Commonwealth Parliament) intended to confer an immunity on a body corporate like the DNP when enacting the Sacred Sites Act and its amendments.
The Attorney-General of the Commonwealth relied upon a passage from a judgment of Gleeson CJ and Gaudron J to submit that the DNP fell within a class of "government instrumentalities and authorities intended to have the same legal status as the executive government".[384] In other words, any actions by the DNP should attract the same consequences as if they were the actions of officers, employees or other agents of the body politic of the Commonwealth of Australia.
That submission of the Attorney-General can be accepted for the purposes of this appeal without descending into the detail of the EPBC Act to ascertain whether the DNP is sufficiently independent of the Executive Government such that the better analogy would be to a private body corporate. The submission can be assumed to be correct because, even accepting the submission and assuming that the DNP was created by the Commonwealth Parliament to act as an agent of the body politic of the Commonwealth of Australia, there is a significant difference between equating the actions of the DNP with the actions of any other agent of the body politic of the Commonwealth of Australia and equating the DNP with the body politic of the Commonwealth of Australia. The DNP cannot be equated with the body politic of the Commonwealth of Australia.
Therefore, although the Attorney-General of the Commonwealth is correct that the DNP can be equated with other members of the Executive Government, there is no immunity from criminal liability of the DNP under the Sacred Sites Act. As the CEO of the AAPA submitted, and as the Attorney-General properly accepted, no officer, employee or other agent of the body politic of the Commonwealth of Australia, even a Minister, is conferred any immunity from criminal liability under the Sacred Sites Act. Hence, the DNP would have no immunity even if the governmental nature of the functions and powers of the DNP meant that the Sacred Sites Act should treat the DNP in precisely the same way as a Minister of State or any other officer, employee or other agent of the Commonwealth of Australia.
That common position is correct and should be accepted. But it cannot be taken further. Unlike the body politic of the Commonwealth of Australia, which is the subject of an implied immunity from criminal liability under the Sacred Sites Act, there is no basis for any intention to be taken from the Sacred Sites Act for the DNP to be treated as though it had not merely the status of an officer, employee or other agent of the body politic of the Commonwealth of Australia, but the status of the body politic itself.
The Legislative Assembly of the Northern Territory exercised its power to enact the Sacred Sites Act by s 6 of the Northern Territory (Self-Government) Act 1978 (Cth) and s 73(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth). The Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) was said to empower the Legislative Assembly to "participate in this most important legislative process in particular in relation to the protection of sacred sites".[385] Part III of the Sacred Sites Act is "one of the most important aspects of the ... legislation", providing the protection of sacred sites with a "mechanism for accountability".[386]
The importance of this subject matter, coupled with the enhancement of the protection of sacred sites and the desire for wider accountability introduced when the Sacred Sites Act replaced the Aboriginal Sacred Sites Ordinance 1978 (NT), affords no basis for reading down a "body corporate" to exclude those statutory corporations that are exercising powers of the executive or performing functions of the executive any more than a "natural person" could be read down to exclude any government official who exercises those powers or performs those functions.

[178]

STEWARD J. I gratefully adopt the description of the facts found in the reasons of Gordon and Gleeson JJ and of Edelman J.
This appeal is simply resolved.
First, the Commonwealth and each State and Territory are distinct bodies politic. As our federal system of government endures as a constitutional monarchy, it is both entirely correct and apt that the body politic of each State and Territory and the Commonwealth be described by reference to our Crown. Thus, the body politic that is the Commonwealth is accurately defined as the Crown in right of the Commonwealth.[387]
Secondly, I respectfully agree with the reasons of each of Gageler CJ and Beech-Jones J, of Gordon and Gleeson JJ and of Edelman J that the 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" is a presumption confined to each of the bodies politic that comprise our federation.[388] It is not a reference to those agents, instrumentalities or corporations that exercise executive power. Given contemporary principles of statutory construction, whether presumptions like this continue to have any useful role to play in the divination of parliamentary intention may be doubted.
Thirdly, I respectfully agree with the reasons of each of Gordon and Gleeson JJ and of Edelman J that the Director of National Parks is not a body politic; it is a statutory office manifested as a corporation sole.[389] The Environment Protection and Biodiversity Conservation Act 1999 (Cth), which establishes the continuation of that corporation sole, contains no equivalent provision to that considered in, for example, Telstra Corporation Ltd v Worthing.[390] Instead, it expressly provides that it binds the Crown in each of its capacities.[391]
Fourthly, I respectfully agree with the reasons of each of Gordon and Gleeson JJ and of Edelman J that the Director of National Parks, being a corporation, may be criminally liable under s 34 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).[392] That provision creates an offence for the carrying out of work on a sacred site by a "person". Pursuant to s 17 of the Interpretation Act 1978 (NT) a "person" includes a body corporate. It thus includes the Director of National Parks.
It follows that it is otherwise unnecessary to consider the scope and application of the presumption applied by Dixon J in Cain v Doyle. That presumption has nothing to do with this appeal. Nor is it necessary to consider the scope and application of s 4 of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT). That provision also has nothing to do with this appeal, once it is accepted that the Director of National Parks is not a body politic.
I respectfully agree with the orders proposed by Gordon and Gleeson JJ.
JAGOT J. Given the other reasons for judgment, it is sufficient to record the following matters to explain my conclusion that the Director of National Parks ("the DNP") may be prosecuted as a body corporate for an offence against s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ("the Sacred Sites Act").

[188]

The arguments for the second respondent are best able to be understood in the immediate context of s 4 of the Sacred Sites Act.
The second respondent's first argument involves three preliminary steps. These steps are: (1) s 4(1) expresses a legislative intention that the Sacred Sites Act binds (in the sense of applies to) the Crown in right of the Northern Territory and the Crown in right of all other bodies politic in Australia, including the Crown in right of the Commonwealth; (2) however, s 4(1) is to be construed in the context of s 4 as a whole, in which s 4(2) makes specific provision for the criminal liability of only one Crown, being the Crown in right of the Northern Territory, and no other Crown; and (3) by implication from s 4(2), s 4(1) means that the Sacred Sites Act binds the Crown in right of all bodies politic in Australia but does not thereby impose criminal (as opposed to civil) liability on any Crown other than the Crown in right of the Northern Territory.
These three preliminary steps, however, are insufficient for the purposes of the second respondent's first argument, namely, that the DNP is not within the scope of the criminal liability imposed by s 34(1) of the Sacred Sites Act on a "body corporate". This is because the first argument necessitates a further step to the effect that the DNP has the same status as the Crown in right of the Commonwealth and the immunities of that Crown from criminal liability imposed by s 34(1) of the Sacred Sites Act.
The second respondent's second argument involves two preliminary steps. These steps are: (1) Cain v Doyle,[396] and cases applying Cain v Doyle, establish that a statute that binds the Crown does not thereby impose criminal liability on the Crown, unless there is the clearest statement of intention to do so; and (2) general words, such as those in s 34(1) of the Sacred Sites Act imposing criminal liability on bodies corporate, are insufficient to amount to a clear statement of intention to impose criminal liability on a body corporate that has the same legal status as a Crown in right of any State or Territory or the Commonwealth (other than the Crown in right of the Northern Territory by reason of s 4(2) of that Act).
The second step in this second argument assumes the further step identified above for the purpose of the first argument - that the DNP has the same status as the Crown in right of the Commonwealth and the immunities of that Crown from criminal liability imposed by s 34(1) of the Sacred Sites Act.
The second respondent contended that these two arguments operate alternatively and cumulatively. However, there is a single issue of statutory construction - does s 34(1) impose criminal liability on the DNP as a body corporate - and the two arguments are both directed to that single issue. Moreover, the two steps in the second argument are both concerned with presumptions about statutory interpretation. Accordingly, the presumptions should be considered first.

[189]

The reasoning in Cain v Doyle did not emerge from a vacuum. It was founded on centuries of intellectual and jurisprudential wrangling between the Parliament and the Crown in England, from which Australia inherited its system of constitutional monarchy. From that wrangling, certain strands of thought came to dominate.
First, the law presumed that "the king will do no wrong",[397] so a person harmed by the monarch had no cause of action on which to sue the monarch. This is a presumption of law.
Second, it became a "well‑established rule, generally speaking, in the construction of acts of Parliament, that the king is not included unless there be words to that effect; for it is inferred primâ facie that the law made by the crown, with the assent of Lords and Commons, is made for subjects and not for the crown".[398] Lord Campbell CJ, in 1859, had cause to describe this as a "sacred maxim": "the Crown is not bound by an act of Parliament, unless it is quite clear, from the language employed, that the Legislature contemplated including the Crown, and her Majesty, in giving her royal assent, assented that the Crown should be bound, and was fully aware that she was giving her assent to be subject to the provisions of the statute".[399] This is a presumption of statutory interpretation.
Third, because the monarch primarily acted through servants and agents rather than personally, the first presumption of law extended to give the monarch immunity if wrongful conduct was the conduct of servants and agents of the monarch.[400] This third strand of thought, at one level, reflected nothing more than the doctrine of agency (that the monarch as principal could act through servants and agents). This strand applied strictly to the benefit of the person of the monarch. It did not mean that the monarch's servants and agents or other persons authorised by statute (made by Parliament) or the Executive (Ministers of the Crown or others) could themselves "do no wrong".
Consequently, because the monarch primarily acted through servants and agents rather than personally, the second interpretative presumption, that statutes do not apply to the monarch, extended beyond the person of the monarch to the servants and agents of the monarch acting in that capacity (for example, persons occupying premises as servants and agents of the monarch).

[198]

While Latham CJ's approach has been described as "a lonely Australian judicial opinion that denies the possibility that the Crown could be guilty of a criminal offence",[419] that may be an overstatement. His Honour's conclusion was that "Parliament did not intend to subject the Crown to conviction and fine",[420] which brings his reasoning within the mainstream of a strong presumption against the Crown being criminally liable.
Dixon J (with whom Rich J agreed[421]) said that "[t]here 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", whilst allowing that "[c]onceptions of this nature are, of course, not immutable and we should beware of giving effect to the strong presumption in their favour in the face of some clear expression of a valid intention to infringe upon them".[422] He held that the part of the provision imposing the penalty of £100 was not intended to apply to the Crown in right of the Commonwealth.[423]
Starke J, in dissent on this point, said that "[s]overeign bodies may create rights and obligations against themselves and submit the determination of those rights and obligations to the jurisdiction of the Courts and provide means for enforcing them".[424] He concluded that the provision imposing criminal liability should "be given its plain and ordinary meaning in the English language unless some gross or manifest absurdity is thereby produced".[425] As there was no such absurdity, in Starke J's view the Commonwealth could be criminally liable.
Williams J, also in dissent on this issue, referred to the principle that "the Crown must be expressly named or a necessary implication to that effect must appear in a statute before it can be bound in respect of its prerogatives, rights, immunities or property".[426] He observed that "[i]t is certainly most unusual if not unique for legislation to provide for the prosecution of the Crown. But there is no constitutional difficulty in the way of the Sovereign binding himself in Parliament. It is a question in each case of the extent to which he is intended to be bound."[427] Williams J also made the point, now a given in Australia, that "[t]he Crown means of course not His Majesty in person but the Government of the Commonwealth or State of the day".[428] Williams J found "no scintilla of indication of any intention in the Act that the Crown should be subject to the obligations of an employer but not liable to the express statutory remedies for breach".[429]

[199]

Subsequently, in Wynyard Investments Pty Ltd v Commissioner for Railways (NSW),[430] the issue was whether the Commissioner as lessor was bound by tenancy legislation that provided it did not bind the Crown in right of the Commonwealth or the State, where the statute constituting the Commissioner provided that "for the purposes of any Act the Commissioner for Railways shall be deemed a statutory body representing the Crown". Williams, Webb and Taylor JJ framed the question as whether the Commissioner was a servant or agent of the Crown and as such entitled to the benefit of the prerogatives, privileges and immunities of the Crown.[431] Their Honours held that, as a servant and agent of the Crown, the Commissioner was not bound by the tenancy legislation. Kitto J, in dissent (Fullagar J agreeing[432]), distinguished between the Crown in right of the State of New South Wales and the Commissioner. Kitto J described the statutory formula "statutory body representing the Crown" as inexact, as the "Sovereign alone is the Crown".[433] In Australia, therefore, "where questions concerning the Monarch personally can seldom arise, the Crown normally means the Sovereign considered as the central government of the Commonwealth or a State".[434] In Kitto J's view, the question was not whether the Commissioner was a servant or agent of the Crown, but whether "the operation of the provision upon the subject [in this case, the Commissioner] would mean some impairment of the existing legal situation of the Sovereign".[435] As "the immunity of the Crown can never inure for the benefit of a subject[,] [w]hoever asserts it must assert it on behalf of and for the benefit of the Crown".[436] The Commissioner, "a corporation, suing in this case as a party principal to the litigation, and claiming to recover possession of land which is vested absolutely in him both at law and in equity", was not outside the scope of the tenancy legislation.[437] Kitto J's view would ultimately prevail, but not for some five decades.
Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd[438] concerned the application of the Trade Practices Act 1974 (Cth) to the Commissioner for Railways of the State of Queensland. The Trade Practices Act expressly bound the Crown in right of the Commonwealth but was silent about the Crown in right of the States. Was the Commissioner, a body established by State legislation, bound by the Trade Practices Act? To the extent relevant for present purposes one question was whether the Commissioner was an instrumentality or agent of the Crown and entitled to its immunities. That question was answered by reference to the Queensland legislation establishing the Commissioner as a corporation sole "representing the Crown" and, "as such corporation, for all the purposes of any Act, shall have and may exercise all the powers, privileges, rights, and remedies of the Crown". Also relevant to that characterisation of the Commissioner as an agent of the Crown and entitled to its immunities were the extent of ministerial control over the Commissioner and the function of railways having traditionally been regarded as governmental in Australia.[439] On that basis, the non‑application of the Trade Practices Act to the Commissioner involved a wide approach to the presumption that statutes do not bind the Crown other than by express words or necessary implication, that is, that the presumption applied to the Crown irrespective of the source of the legislation.[440]
In Superannuation Fund Investment Trust v Commissioner of Stamps (SA),[441] the question was whether the appellant, a Commonwealth body, was liable to stamp duty under South Australian legislation. To the extent relevant for present purposes, the approach taken was to ask if the Commonwealth body was the Crown in right of the Commonwealth or a "manifestation", an "alter ego" or an "emanation" of the Crown in right of the Commonwealth.[442]
In Townsville Hospitals Board v Townsville City Council,[443] the status of the Board was relevant to the application of legislation of the same legislature, Queensland, regulating building works. The Building Act 1975 (Qld) provided that it did not apply where a building was to be erected by the Crown or on behalf of the Crown or by or on behalf of a body which, for the purposes of the erection of the building, represents the Crown. The Board claimed that this exemption applied to a building it was to construct on Crown land, despite no provision of its enabling Act identifying the Board as representing the Crown or having any immunities of the Crown. Gibbs CJ (with whom Murphy, Wilson and Brennan JJ agreed[444]) explained that the status of the Board depended on "the intention to be derived from the statute under which the body in question is constituted",[445] noting that it was possible for such a body to be "given the immunities and privileges of the Crown for one purpose and not for another".[446] Gibbs CJ continued in these terms:[447]

[207]

Their Honours recognised that the presumption, and its extension to governmental instrumentalities or agents, may "offend notions of parity" (that is, between the legal status of private citizens and the state) but, "[b]e that as it may, the consistent recognition of such a presumption has undoubtedly created a firm factual foundation for it".[454] They considered the description in Moore v Smith of "a sacred maxim" - "that the Crown is not bound by an act of Parliament, unless it is quite clear, from the language employed, that the Legislature contemplated including the Crown"[455] - to have "little relevance", at least in Australia, "to the question whether a legislative provision worded in general terms should be read down so that it is inapplicable to the activities of any of the employees of the myriad of governmental commercial and industrial instrumentalities covered by the shield of the Crown".[456]
Their Honours' analysis of the contemporary Australian context led them to two conclusions: first, "that it simply would not occur to any legislature of this country that a failure to indicate by express words or necessary implication that the provisions of a Criminal Code or general criminal statute were applicable to servants of the Crown in the course of their duties as such would result in a situation where Crown servants were placed beyond the reach of the ordinary criminal law in so far as they were acting with the authority of the Crown";[457] and, second, that "considerations of principle preclude recognition of an inflexible rule that a statute is not to be construed as binding the Crown or Crown instrumentalities or agents unless it manifests a legislative intent so to do either by express words or by 'necessary implication'".[458]
Given the long history of the strong presumption against the Crown being bound by a statute other than by express words or necessary implication, their Honours said that "it may be necessary, in construing a legislative provision enacted before the publication of the decision in the present case, to take account of the fact that those tests were seen as of general application at the time when the particular provision was enacted"; however, "[i]n the case of legislative provisions enacted subsequent to this decision, the strength of the presumption that the Crown is not bound by the general words of statutory provisions will depend upon the circumstances, including the content and purpose of the particular provision and the identity of the entity in respect of which the question of the applicability of the provision arises".[459] Insofar as the immediate case was concerned, their Honours described it as involving "whether the employees of a governmental corporation engaged in commercial and developmental activities are bound by general provisions designed to safeguard places or objects whose preservation is of vital significance to a particular section of the community".[460] This led to the answer that "the presumption against the applicability of general words to bind such employees will represent little more than the starting point of the ascertainment of the relevant legislative intent".[461] It followed that the interpretative presumption that the statutory prohibition did not bind the Crown (in the wide contemporary sense) was rebutted so that the statutory prohibition applied "indifferently to natural persons in Western Australia, including government employees".[462]
In Bropho, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ did not refer to Cain v Doyle. In referring to the potential criminal liability of the Crown, their Honours confined themselves to the orthodox proposition that no person can claim immunity from the general criminal law by reason of acting under the authority of the Crown.[463]

[208]

Subsequent decisions confirm that Bropho did not, and was not understood to, implicitly overrule the reasoning of Latham CJ, Rich and Dixon JJ in Cain v Doyle. Rather it recast the formerly rigid interpretative presumption against the Crown being bound by a statute only by express words or necessary implication into a more flexible presumption - the strength or weakness of which depends on the full context of the provision in question. While the presumption was accepted to extend to the servants, agents, manifestations, alter egos, and emanations of the bodies politic of the Commonwealth, States and Territories, the tension between Wynyard Investments and Townsville Hospitals Board - concerning the status of a body as representing the Crown and the significance of that status for any immunities of the Crown to which the body may be entitled - remained unresolved.
In Jacobsen v Rogers,[464] Mason CJ, Deane, Dawson, Toohey and Gaudron JJ repeated the (by then) orthodoxy that: (a) the Crown is now understood to be the executive branch of government; (b) as such, the Crown carries out its functions through servants and agents; (c) those servants and agents have never been immune from criminal sanction; and (d) the Crown itself, however, "may not be subjected to criminal liability, save in the most exceptional circumstances".[465] In respect of the fourth proposition, the authority cited in support was Cain v Doyle.[466]
In State Authorities Superannuation Board v Commissioner of State Taxation (WA),[467] Brennan CJ, Dawson, Toohey and Gaudron JJ considered the question whether the Board, a statutory corporation created under legislation of New South Wales, was bound by Western Australian stamp duties legislation. Their Honours held that the Western Australian stamp duties legislation was not drafted on the basis of the rigid presumption as it applied before Bropho, so that there was "no difficulty in approaching the construction of the Act in the more flexible manner laid down in that case".[468] They then explained that different considerations applied to the criminal provisions of the Western Australian stamp duties legislation by reference to the different presumption discussed in Cain v Doyle "based upon the inherent unlikelihood that the legislature should seek to render the Crown liable to a criminal penalty".[469] The generality of the criminal provision (referring to "persons") was insufficient to create an offence of which the Crown could be guilty. They did not need to answer the question whether the Board was the Crown for the purpose of determining liability for the payment of stamp duty under the Western Australian stamp duties legislation because, but for the criminal provision, it was clear that the legislation applied to the Crown.[470]
A possible outlier in the stream of authority concerning Cain v Doyle is the passing reference to that case by McHugh and Gummow JJ in State Authorities Superannuation Board. Their Honours said that "[t]he same [Cain v Doyle] presumption has been said to apply where a statute has conferred the immunity of the Crown upon a body or corporation",[471] citing in support Bolwell v Australian Telecommunications Commission[472] and R v Eldorado Nuclear Ltd.[473] In Bolwell, Smithers J did refer to "the Crown and an emanation of the Crown" being within the scope of the presumption in Cain v Doyle,[474] citing in support F Sharkey & Co Pty Ltd v Fisher.[475] To the extent relevant, however, that case concerned only the status of a State body, not the presumption in Cain v Doyle. The other case cited in support, R v Eldorado Nuclear Ltd, also concerned the interpretative principle that statutes are presumed not to bind the Crown and the maxim that the monarch (personally) (and therefore the body politic itself) can do no wrong, an immunity which had never been understood to extend to servants or agents of the monarch (or of the body politic).
In Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority,[476] Gummow J returned to Cain v Doyle to make two salient points: first, that it "may be one thing to expose one element in the federation to civil action by another ... but it is another thing altogether to expose an element in the federation to criminal sanction";[477] and, second, that "[i]t would be to enter into another dimension to conclude that a State might create a criminal offence committed by the Commonwealth in respect of the conduct by the Commonwealth itself of its Executive Government".[478] These observations involve a focus on the unlikelihood of one body politic in the Australian federation imposing criminal liability on another body politic in the federation in its conduct as a government (the Cain v Doyle presumption).
Telstra Corporation Ltd v Worthing[479] concerned the application of New South Wales legislation to a Commonwealth body which, under its enabling statute, was not subject to any requirement, obligation, liability, penalty, or disability under a law of a State to which the Commonwealth was not subject. The New South Wales legislation was expressed to bind the Crown not only in right of New South Wales but in all its other capacities, but also so as not to make the Crown liable to be prosecuted for any offence. Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ, citing Cain v Doyle, observed that "[i]t will require the clearest indication of a legislative purpose to demonstrate that these penal provisions attach to the Commonwealth", and no such indication was apparent given that the New South Wales legislation provided "that nothing in that statute renders 'the Crown' liable to be prosecuted for any offence".[480] Further, because its own enabling statute provided that the Commonwealth body was not subject to any liability to which the Commonwealth was not subject, the Commonwealth body also was not subject to the penal provisions, the Commonwealth provision to that effect being "a declaration of legislative purpose that the law of the Commonwealth shall operate exclusively of State law on the topic", by s 109 of the Constitution.[481]
In McNamara v Consumer Trader and Tenancy Tribunal,[482] Gleeson CJ, McHugh, Gummow and Heydon JJ, and Hayne J, in separate reasons, disapproved the majority reasoning in Wynyard Investments, including on the basis that it was inconsistent with the reasoning of Gibbs CJ in Townsville Hospitals Board.[483] Accordingly, a body did not enjoy the immunities of the Crown merely because its enabling statute provided that the body was a statutory body representing the Crown.
Gleeson CJ, Gummow, Hayne, Callinan, Heydon and Crennan JJ referred to Cain v Doyle in passing in X v Australian Prudential Regulation Authority,[484] saying only that "[i]t would require the clearest of intentions that the penalties provided ... would apply to the Commonwealth ... and there may be a question whether a 'Commonwealth authority' such as [the Australian Prudential Regulation Authority] has the character of the Commonwealth for this purpose".[485] That is, their Honours recognised that the presumption in Cain v Doyle had not been understood previously to extend beyond the Crown in the sense of the body politic. That understanding is also made clear from the footnote, where, after citing Cain v Doyle, their Honours said that "[t]here is, however, no power in the Crown to dispense its servants or agents from criminal liability for acts forbidden by law".[486]
In Wurridjal v The Commonwealth,[487] Gummow and Hayne JJ referred to Cain v Doyle in orthodox terms, saying:[488]

[210]

While the Sacred Sites Act was enacted in 1989, the key provision, s 4 ("Act binds Crown"), was amended in 2005.[489] Accordingly, for present purposes, the Sacred Sites Act may be treated as post‑Bropho legislation. As such, the prevailing orthodoxy at the time s 4 was amended included those principles of interpretation as explained in Bropho.
First, there is no "sacred maxim" that the Crown is not bound by a statute other than by express words or necessary intention. Rather, where a statute uses general words only, the strength of the presumption that the Crown is not bound depends upon all relevant circumstances and may be "little more than the starting point of the ascertainment of the relevant legislative intent".[490] Where general words are used, the presumption, whatever its strengths or weaknesses in the circumstances, applies to all statutes (Commonwealth, State, or Territory) and the Crown (Commonwealth, State, or Territory) irrespective of the legislative source (Commonwealth, State, or Territory).
Second, to determine if a body is a servant, agent, manifestation, alter ego, or emanation of the Crown and has the benefit of any immunities of the Crown, the necessary focus is the statute establishing and conferring functions on that body. It is not to be assumed that a body that is a servant, agent, manifestation, alter ego, or emanation of the Crown has the immunities of the Crown. It must clearly appear from the body's enabling statute (or otherwise) that the legislature intended that the body have any such immunities.
Third, because a body that is a servant, agent, manifestation, alter ego, or emanation of the Crown may have some or other immunities of the Crown conferred on it for one purpose and not other purposes, there will always be a question whether any such conferral is relevant to the application of any other legislation to the body, be that legislation enacted by the same legislature that established the body or another legislature. If the conferral is in a Commonwealth statute, s 109 of the Constitution may be engaged.
Fourth, there remains a strong presumption that no statute imposes criminal liability on the Crown - meaning the body politic in respect of its conduct as the government of the body politic. This strong presumption applies to all statutes (Commonwealth, State, or Territory) and the Crown (Commonwealth, State, or Territory) irrespective of the legislative source (Commonwealth, State, or Territory), but has never been held to extend to servant, agents, manifestations, alter egos, or emanations of the Crown. To the contrary, Crown immunity from penal sanction has always been tightly focused on the Crown as body politic, no servant, agent, manifestation, alter ego, or emanation of the Crown being entitled to claim that immunity.

[226]

The Minister then invited the defeat of cl 4 as proposed and that an amended version of cl 4 be passed. The Minister described the amendment as "the new clause 4 which clarifies the extent to which that act binds the Crown, and specifically the liability of the Crown to prosecution for offences under that act".[495] The amended cl 4 became s 4 of the Act as amended.[496] As noted, amongst other things, the amended cl 4 changed references to "the Crown" in certain sub‑sections of s 4 to the "Territory Crown" and defined "Territory Crown" to mean "the Crown in right of the Territory".
Again, understood in context, the objective intention of the provisions as amended is clear.
Section 4(1) rebuts any post‑Bropho presumption that the Sacred Sites Act does not bind the Crown - including servants, agents, manifestations, alter egos, or emanations of the Crown - be it the Crown in right of any State or Territory, or the Commonwealth. That provision did not substantively change.
Section 4(2) recognises that the flexible post‑Bropho presumption that a statute does not bind the Crown in right of any State or the Territory, or the Commonwealth, is different from the strong Cain v Doyle presumption against any statute imposing criminal liability on the Crown in right of any State or Territory, or the Commonwealth, understood as the body politic or government of that State or Territory, or the Commonwealth. Section 4(2) recognises that s 4(1) may well have been insufficient to impose such criminal liability on any such body politic. As enacted (in contrast to as proposed), s 4(2) imposed such criminal liability on, and confined it to, the Territory Crown and made the Territory Crown liable in that capacity to be prosecuted for an offence as if it were a body corporate. It did not impose criminal liability on the Crown in right of any State, another Territory, or the Commonwealth understood as the body politic or government of that State or Territory, or the Commonwealth.
Section 4(3), in saying that the "section does not affect any liability of an officer, employee or agent of the Territory Crown to be prosecuted for an offence", is to be understood as reflecting the confinement of s 4(2) to the Territory Crown. It is not to be understood as meaning that an officer, employee, or agent of another Crown (being a natural person or body corporate) was not able to be prosecuted for an offence against the Act. That was never the law and no intention to alter that orthodoxy is apparent once the full context of the amendments is understood. In that full context, the silence of s 4(3) about officers, employees, or agents of the Crown does not carry any implication that, contrary to orthodoxy, such officers, employees, and agents (being a natural person or body corporate) are immune from prosecution for an offence against the Act, even if those persons are acting on behalf of the Crown (Commonwealth, State, or Territory).
Section 4(4), in saying that an Agency (meaning a Northern Territory Agency) and an authority or instrumentality of the Territory Crown are included within the Territory Crown, is not to be understood as indicating that the authorities or instrumentalities of the Crown (Commonwealth, State, or Territory) are to be taken to be the Crown in right of the body politic for the purpose of s 4(2). This means that there also can be no negative implication from s 4(2) (its silence about the Crown in right of any State, another Territory, or the Commonwealth) to the effect that the authorities or instrumentalities of the Crown in right of any State, another Territory, or the Commonwealth are intended to be, in common with the Crown in right of their respective bodies politic, outside of the penal provisions of the Act.
In other words, s 4 of the Sacred Sites Act is to be construed on the basis that the Cain v Doyle presumption never applied to servants, agents, manifestations, alter egos, or emanations of the Crown to protect those persons or bodies from criminal liability. The Cain v Doyle presumption operates only in favour of the Crown in right of a body politic conducting itself for its governmental purposes. Section 4 rebuts the Cain v Doyle presumption for the Crown in right of the body politic of the Northern Territory but does not rebut the Cain v Doyle presumption for the Crown in right of the body politic of any State, another Territory, or the Commonwealth. Section 4 also does not, by express words or implication, change the law so that a servant, agent, manifestation, alter ego, or emanation of any other Crown may claim the Crown's immunity from prosecution for an offence. Such a servant, agent, manifestation, alter ego, or emanation may be prosecuted for an offence against s 34(1) if they are either a natural person or a body corporate, subject of course to the Commonwealth's power to make legislation which will prevail over any inconsistent State or Territory legislation under s 109 of the Constitution or any other constitutional constraint (none of which were suggested in the present case).
The DNP, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth), is a body corporate. As there is no provision in the Environment Protection and Biodiversity Conservation Act said to engage s 109 of the Constitution, the Sacred Sites Act operates in accordance with its terms. The DNP is a body corporate able to be prosecuted for an offence against s 34(1) of the Sacred Sites Act. As noted, resolution of this single issue of statutory construction - does s 34(1) impose criminal liability on the DNP as a body corporate - is sufficient to resolve the second respondent's two arguments.
The appeal should be allowed. The orders proposed in the reasons for judgment of Gordon and Gleeson JJ should be made.

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