Northern Land Council v Quall [2020] HCA 33 | Case summary

KIEFEL CJ, GAGELER AND KEANE JJ. The ultimate question in this appeal is whether the Northern Land Council ("the NLC") has power to delegate to its Chief Executive Officer ("the CEO") the function conferred on it as a representative body by s 203BE(1)(b) of the Native Title Act 1993 (Cth) ("the NT Act") of certifying an application for registration of an indigenous land use agreement ("ILUA") relating to an area of land or water wholly or partly within the area for which it is a representative body subject to satisfaction of the precondition imposed by s 203BE(5) of the NT Act that it is of the opinion that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified and that all of the persons so identified have authorised the making of the ILUA. The answer is that the NLC has that power of delegation under s 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) ("the ALR Act"). If the NLC exercises that power to delegate the certification function to the CEO, the CEO is empowered by s 34A of the Acts Interpretation Act 1901 (Cth) ("the AI Act") to perform the certification function on the basis of the CEO's own opinion in relation to the matters in s 203BE(5) of the NT Act, and certification by the CEO in performance of the delegated function is attributed to the NLC by force of s 34AB(1)(c) of the AI Act. Process for registration of an ILUA Under Div 3 of Pt 2 of the NT Act, a future act affecting native title is valid if, but only if, the parties to the ILUA consent to it being done and, at the time it is done, the ILUA is registered on the Register of Indigenous Land Use Agreements. Registration of an ILUA that is an area agreement under Subdiv C of Div 3 of Pt 2 can occur only on application made by a party to the Native Title Registrar, who is also responsible for the Register of Indigenous Land Use Agreements. One requirement for the making of an application for registration of such an ILUA concerns identification of persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA and authorisation by those persons of the making of the ILUA. The requirement can be met in either of two ways. The first way the requirement can be met is by the application for registration having been certified by all representative bodies for the area in the performance of their functions under s 203BE(1)(b). If the application has been so certified, any person claiming to hold native title in relation to land or waters in the area covered by the ILUA is entitled within a specified period to object to registration and the Registrar at the end of that period must make a decision to register the ILUA if specified conditions are met or not to register the ILUA if any specified condition is not met. One of the specified conditions on which registration depends involves absence of any unwithdrawn objection or, in the face of an unwithdrawn objection, non-satisfaction on the part of the Registrar that the requirements as to identification and authorisation set out in s 203BE(5) were not met in relation to the certification of the application by any representative body. Faced with an unwithdrawn objection, the question for administrative determination by the Registrar is whether (having regard to information provided by the person making the objection and the representative body concerned) the Registrar is satisfied by the objector that all reasonable efforts have not been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified or that one or more of the persons who have been identified have not authorised the making of the ILUA. If the Registrar is so satisfied, the Registrar must not register the ILUA. The second way the requirement can be met is by the application for registration including a statement to the effect that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified and that all of the persons so identified have authorised the making of the agreement together with a statement briefly setting out the grounds on which the Registrar should be so satisfied. Where those statements appear in an application, the Registrar must decide either to register the ILUA if other specified conditions are met or not to register the ILUA if any specified condition is not met. A specified condition then is that the Registrar affirmatively considers (having regard to the statements in the application and any information provided by any representative body or any other body or person) that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the ILUA have been identified and that all of the persons so identified have authorised the making of the ILUA. If the Registrar does not affirmatively so consider, the Registrar must not register the ILUA. Depending on how an application for registration of an ILUA is made the Registrar can therefore come under a duty to exercise either of two relevant powers as a precondition to registering the ILUA: a power to determine any unwithdrawn objection by re‑examining the matters about which a representative body has formed an opinion under s 203BE(5), where an ILUA has been certified; or a power to form an independent opinion about the same matters as those about which a representative body would be required to form an opinion under s 203BE(5), where an ILUA has not been certified. Those powers can be exercised personally by the Registrar, who is a statutory officer appointed under the NT Act. Those powers can alternatively be exercised by a Deputy Registrar or by any member of the staff assisting the National Native Title Tribunal, who are persons engaged under the Public Service Act 1999 (Cth), under delegation from the Registrar. The nature and delegability of the powers so conferred on the Registrar bear on the nature of the certification function conferred on a representative body by s 203BE(1)(b) in ways to which it will be necessary to return. The CEO's certification of the Kenbi ILUA The NLC in 2016 made an ILUA in relation to land and waters at the Cox Peninsula near Darwin which was varied in February 2017. The ILUA as varied is known as the Kenbi ILUA. In March 2017, the CEO signed a certificate in connection with the making of an application for registration of the Kenbi ILUA. The certificate signed by the CEO states that "the NLC hereby certifies" the application for registration of the Kenbi ILUA pursuant to s 203BE(1)(b) of the NT Act. The certificate goes on to state that "[t]he NLC is of the opinion" that the requirements of s 203BE(5) about identification of the native title holders and their authorisation of the agreement have been met, namely that all reasonable efforts have been made to ensure that all persons who hold native title in relation to land or waters in the area covered by the Kenbi ILUA have been identified and that all of the persons so identified have authorised the making of the Kenbi ILUA. It is common ground that the CEO signed the certificate purporting to act as a delegate of the NLC. The decision to issue the certificate was in fact made by the CEO alone and the opinion set out in the certificate was in fact formed by the CEO alone. Judicial review of the CEO's certification of the Kenbi ILUA Mr Quall and Mr Fejo each brought judicial review proceedings against the NLC and the CEO in the Federal Court of Australia challenging the efficacy of the certificate on grounds that the NLC's certification function under s 203BE(1)(b) of the NT Act is not delegable or, if delegable, was not validly delegated by the NLC to the CEO. The primary judge (Reeves J) rejected the first ground but accepted the second, finding that the instruments on which the NLC and the CEO then relied as instruments of delegation were ineffective. His Honour in each application made a declaration to the effect that the certificate signed by the CEO did not amount to certification pursuant to s 203BE(1)(b). The NLC and the CEO appealed to the Full Court. They did not challenge the finding that the instruments on which the NLC and the CEO had relied before the primary judge were ineffective. Instead, they applied for leave to adduce fresh evidence to attempt to prove the existence of other effective instruments of delegation. Mr Quall and Mr Fejo cross‑appealed, reiterating their primary argument that the NLC's certification function is not delegable. The Full Court (Griffiths, Mortimer and White JJ) was persuaded that, as a matter of the construction of the NT Act, the certification function conferred on a representative body by s 203BE(1)(b) of the NT Act is incapable of delegation. The Full Court on that basis allowed the cross-appeal and made an additional declaration to the effect that the NLC "did not have power to delegate" its certification function to the CEO. The cross-appeal being allowed, the issues in the appeal did not arise. The Full Court on that basis dismissed the appeal without addressing the merits of the application to adduce fresh evidence. Appeal to this Court The NLC and the CEO now appeal to this Court. The sole ground of appeal on which special leave to appeal has been granted is that the Full Court erred in holding that the NLC did not have power to delegate the performance of the certification function conferred on it under s 203BE(1)(b) of the NT Act. Determination of the appeal on that ground necessitates consideration of two overlapping issues. One concerns the extent, if at all, to which any delegation of the certification function is compatible with the scheme of the NT Act. The other concerns the source of the power, if any, for the NLC to delegate the certification function to the CEO. The public importance of the issue of the compatibility of delegation of the certification function with the scheme of the NT Act has led to the Attorney-General of the Commonwealth and the Northern Territory seeking and being granted leave to intervene in the appeal. The interveners broadly support the NLC and the CEO in arguing that there is no applicable impediment to delegation. They differ between themselves as to the source of the power to delegate. Scheme of Pt 11 of the NT Act Consideration of whether, and if so to whom, delegation of the certification function conferred by s 203BE(1)(b) might occur consistently with the scheme of the NT Act cannot be undertaken without close attention to the text and structure of Pt 11. Introduced as part of the NT Act as originally enacted in 1993, Pt 11 was substantially amended in 1998 and again in 2007. Eligibility for the status of a representative body is governed by the definition of "eligible body" located within Div 1 of Pt 11. Within that definition is a "body corporate" registered under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) the objects of which enable it to perform the functions of a representative body, a "body corporate" established by or under any other law of the Commonwealth or of a State or Territory prescribed by regulation for the purpose of the definition, any "company" incorporated under the Corporations Act 2001 (Cth), as well as a "body corporate" that is already a representative body. Two features of the definition are significant. The first significant feature of the definition is that an eligible body, as either a "body corporate" or a "company", is in every case a corporation constituted by or under other Commonwealth, State or Territory legislation. Being a corporation, an eligible body is an "artificial person" which (leaving prospective advances in artificial intelligence out of account) is inherently constrained to perform its functions through natural persons who act within the scope of authority granted to them by or under its constating statute. Any repository of a statutory function can delegate performance to a natural person if, but only if, permitted by statute. In the absence of permitted delegation, however, a corporate repository can only perform a statutory function through natural persons who constitute the corporation, or who constitute emanations or authorised agents of the corporation, acting in the manner and within the limits set by or under the constating statute of the corporation. The second significant feature of the definition stems from the capacity for Commonwealth, State or Territory legislation to "create a juristic person without identifying an individual or a group of natural persons with it, as the living constituent or constituents of the corporation". There is simply no reason to consider that an eligible body constituted by or under other Commonwealth, State or Territory legislation must be constituted by natural persons. Much less is there reason to consider that it must be constituted by natural persons in a manner that is representative of persons holding or claiming to hold native title in an area. How an eligible body becomes a representative body for an area or areas is in consequence of applying to and being recognised by the Commonwealth Minister administering the NT Act as a representative body in a legislative instrument under Div 2 of Pt 11. Once recognised, the eligible body remains a representative body for a period specified in the instrument of recognition unless the Commonwealth Minister sooner withdraws its recognition by further legislative instrument. The Commonwealth Minister cannot recognise an eligible body as a representative body for an area or areas unless the Commonwealth Minister is satisfied that it would be able to perform satisfactorily the functions of a representative body and, in the case of a renewal of or change to the recognition of an existing representative body, that it is currently satisfactorily performing its functions as a representative body. The Commonwealth Minister is correspondingly empowered to withdraw recognition of a representative body for an area if the Commonwealth Minister is satisfied that it is not satisfactorily performing its functions. In considering for the purpose of recognition or withdrawal of recognition whether an eligible body will satisfactorily perform its functions as a representative body or is satisfactorily performing its functions as a representative body, the Commonwealth Minister is required to form and take into account an opinion as to whether it will comply with or is complying with s 203BA, which deals with how the functions of a representative body are to be performed and to which it will be necessary in due course to turn. For so long as an eligible body is recognised as a representative body, Div 3 of Pt 11 confers on it functions that are cumulative upon any functions it might have under any other law of the Commonwealth or of a State or Territory. Leaving to one side the "certification functions" referred to in s 203BE, which will be examined separately in more detail, the functions conferred on a representative body are remarkable for the expansiveness and practicality of their content. Prime amongst them are "facilitation and assistance functions" (involving representing and otherwise assisting native title holders and persons who may hold native title in consultations, mediations, negotiations and proceedings relating to native title applications and to ILUAs), "dispute resolution functions" (involving promoting agreement and mediating between native title holders and persons who may hold native title) and "notification functions" (involving ensuring that relevant notices are brought to the attention of native title holders and persons who may hold native title). A representative body also has an "agreement making function" (involving itself being a party to ILUAs) and "internal review functions" (involving providing and publicising a process for native title holders and persons who may hold native title "to seek review by the representative body of its decisions and actions, made or taken in the performance of its functions or the exercise of its powers, that affect them"). Section 203B(3) provides that, except as mentioned in s 203BB (which relevantly allows a representative body performing facilitation and assistance functions to "brief out" the representation of a person or body by entering into an arrangement with another person) or as mentioned in s 203BD (which allows a representative body to perform facilitation and assistance functions in relation to an adjoining area if it is acting in accordance with a written arrangement with the representative body for that area) or as mentioned in s 203BK, "a representative body must not enter into an arrangement with another person under which the person is to perform the functions of the representative body". Section 203BK, which s 203B(3) flags as mentioning an exception to its operation, relevantly provides: "(1) A representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) Without limiting subsection (1), a representative body has power to enter into arrangements and contracts to obtain services to assist in the performance by the representative body of its functions." Section 203B(4)(b) allows for a representative body to "allocate resources" in the way it thinks fit in order "to be able to perform its functions efficiently", giving priority to the protection of the interests of native title holders, and s 203BA mandates how the functions of a representative body are to be performed. To the detail of s 203BA it is now appropriate to turn. Section 203BA(1) provides that "[a] representative body must use its best efforts to perform its functions in a timely manner". Section 203BA(2) provides: "A representative body must perform its functions in a manner that: (a) maintains organisational structures and administrative processes that promote the satisfactory representation by the body of native title holders and persons who may hold native title in the area for which it is the representative body; and (b) maintains organisational structures and administrative processes that promote effective consultation with Aboriginal peoples and Torres Strait Islanders living in the area for which it is the representative body; and (c) ensures that the structures and processes operate in a fair manner, having particular regard to: (i) the opportunities for the Aboriginal peoples or Torres Strait Islanders for whom it might act to participate in its processes; and (ii) the extent to which its processes involve consultation with those Aboriginal peoples or Torres Strait Islanders; and (iii) its procedures for making decisions and for reviewing its decisions; and (iv) its rules or requirements relating to the conduct of its executive officers; and (v) the nature of its management structures and management processes; and (vi) its procedures for reporting back to persons who hold or may hold native title in the area, and to the Aboriginal peoples or Torres Strait Islanders living in the area." The "organisational structures and administrative processes" of the representative body to which s 203BA(2) refers are the structures and processes through which natural persons or groups of natural persons perform its functions within the scope of the authority conferred on them (whether as delegates or as agents or emanations of it) by or under its constating statute. The "executive officers" of the representative body, to which s 203BA(2)(c)(iv) refers, are defined to extend beyond the members of its "governing body" (in turn defined to mean the group of persons who are responsible for its "executive decisions") to include any person who is concerned or takes part in its management at a senior level. The considerations required by s 203BA(2)(c)(iii), (iv) and (v) to inform assessment of the fairness of the manner in which the organisational structures and administrative processes of a representative body operate tell against a representative body being confined to perform its functions only through such group of natural persons as may constitute its membership or as may constitute its governing body. Those considerations tell rather in favour of those functions being able to be performed by persons or groups at other levels within its organisational structure. So too do the internal review functions, the very existence of which implies that the other functions of the representative body might be exercised and re‑exercised by persons or groups at multiple levels within its organisational structure. Having regard to the range and content of the functions conferred on a representative body under Div 3, to the recognition in s 203B(4)(b) of the need for a representative body to allocate resources to enable efficient performance of those functions, and to the standards imposed by s 203BA(2), the distinction drawn in s 203B(3) between "a representative body", on the one hand, and "another person" with whom the representative body must not enter into an arrangement under which the person is to perform its functions, on the other hand, cannot be a distinction between the representative body as an artificial person and all other natural or artificial persons. Nor can it be a distinction between the membership or governing body of the representative body and all other persons. The distinction drawn in s 203B(3) between a representative body and another person must instead be a distinction between the representative body, including all natural persons or groups of natural persons having authority to perform its functions within the organisational structures and administrative processes established by or under its constating statute, and all persons (natural or artificial) who are external to the organisational structures and administrative processes established by or under its constating statute. The natural persons or groups of natural persons who can perform the functions of a representative body are limited by s 203B(3) to the former category. The power conferred on a representative body by s 203BK(1) in the familiar terms of a power "to do all things necessary or convenient to be done for or in connection with the performance of its functions", though "broad", is "strictly ancillary", authorising "the provision of subsidiary means of carrying into effect what is enacted in the statute itself" and encompassing "what is incidental to the execution of its specific provisions". The power does "not support the doing of a thing which departs from the scheme of the enactment by which the power is conferred". That limitation is important. The scheme of Pt 11 of the NT Act, as has been seen, involves taking an eligible body recognised as a representative body as it exists under its constating statute subject to the organisational structures and administrative processes established by or under that constating statute for the performance of its functions as a representative body complying, or at least being seen by the Commonwealth Minister to comply, with the requirements of s 203BA(2). And the scheme of Pt 11, as has been seen, involves confining by s 203B(3) the natural persons or groups of natural persons through whom the eligible body can perform its functions as a representative body to those within its organisational structures and administrative processes upon whom authority is conferred by or under its constating statute to perform those functions as its delegates or as its agents or emanations. Section 203BK(1) does not empower a representative body to transgress those limits. Section 203BK operates as an exception to s 203B(3) only to the extent that s 203BK(2) makes clear that s 203B(3) does not prevent a representative body from engaging external service providers to assist natural persons within the organisational structures and administrative processes established by or under its constating statute to perform its functions. Contrary to the view of the primary judge and contrary to the principal arguments of the NLC and the CEO and of the Northern Territory, s 203BK(1) cannot be treated as an independent source of power to delegate the performance of a function of a representative body. If the representative body has power under its constating statute to delegate performance of the function within its organisational structures and administrative processes, no further power is needed. If the representative body has no power under its constating statute to delegate performance of the function, s 203BK(1) cannot overcome that limitation on its power. The conclusion to which that leads is that, unless the certification function conferred by s 203BE(1)(b) can be seen to exhibit some special feature confining performance of that function to the members or governing body of a representative body, delegation of the certification function to a natural person within the organisational structures and administrative processes established by or under its constating statute is not incompatible with the scheme of the NT Act but the power to delegate must be found, if at all, in the constating statute. Before turning to examine whether the certification function can be seen to exhibit some such special feature, something needs to be said of s 203FH in deference to the prominence given to that provision in the arguments of the interveners. For anything meaningful to be said about s 203FH, more must first be said about the structure of Pt 11. Following on from Div 3 within Pt 11 are four more Divisions which impose numerous obligations on a representative body. Division 4 deals with provision of Commonwealth funding. Division 5 deals with financial accounting and corporate accountability. Division 6 deals with conduct of directors and other executive officers. Division 7, headed "Miscellaneous", contains provisions explaining those obligations and facilitating their enforcement. Section 203FH is within Div 7. Within that context, s 203FH(1) imputes to a body corporate the "state of mind" of a director, employee or agent of the body corporate who engaged in "conduct" within the scope of his or her "actual or apparent authority". Section 203FH(2) deems "conduct" engaged in by a director, employee or agent of the body corporate within the scope of his or her "actual or apparent authority" to have been also engaged in by the body corporate unless the body corporate can establish that it "took reasonable precautions and exercised due diligence to avoid the conduct". The imputation in s 203FH(1) and the deeming in s 203FH(2) are both expressed to be "for the purposes of this Part". Section 203FH(6) specifies that an opinion is a "state of mind" within s 203FH(1). Section 203FH(8) specifies that "conduct" within the whole of s 203FH includes failing or refusing to engage in conduct. It is noteworthy that, in a piece of legislation that makes express reference to the "executive officers" and the "governing body" of a representative body, the certification function is not reposed in either of these groups of natural persons but in the representative body itself. Beyond the obvious point that s 203FH is framed on the assumption that an eligible body will do things related to the performance of its functions as a representative body through natural persons, s 203FH has no bearing on the question of which natural persons are authorised to perform any function of a representative body or on the question of by which natural person or persons an opinion required to be held by a representative body as a precondition to the exercise of a function might be formed. As is indicated by its placement within Div 7, its unqualified references to an "agent" of a body corporate (who might well be an external service provider such as an accountant), its similarly unqualified refences to "conduct" (which need not be the doing of anything in the actual performance or purported performance of any function conferred under Div 3 and can be the doing of nothing at all), its extension beyond "actual authority" to "apparent authority" (a concept based on estoppel which cannot give legal efficacy to a purported exercise of authority that is in excess of a statutory limitation on the permitted scope of authority), and its inclusion within s 203FH(2) of a "due diligence" defence, not to mention its provenance in earlier provisions of the Aboriginal and Torres Strait Islander Commission Act 1989 (Cth) which were unmistakeably directed to corporate responsibility, s 203FH is directed not to the capacity of any natural person to perform any function conferred on a representative body under Div 3 but to the liability of a representative body for non-compliance with an obligation imposed on the representative body by or under Div 4, 5, 6 or 7 by reason of any act or omission of a natural person. Certification function or functions The function of certifying an application for registration of an ILUA relating to an area of land or water wholly or partly within the area for which it is a representative body conferred by s 203BE(1)(b) is one of two certification functions conferred on a representative body by s 203BE. The other is the function conferred by s 203BE(1)(a) of certifying an application for a determination of native title relating to such an area. The precondition set out in s 203BE(5) to performance of the certification function conferred by s 203BE(1)(b) is mirrored by an equivalent precondition set out in s 203BE(2) to performance of the certification function conferred by s 203BE(1)(a). Section 203BE(5) provides: "A representative body must not certify under paragraph (1)(b) an application for registration of an indigenous land use agreement unless it is of the opinion that: (a) all reasonable efforts have been made to ensure that all persons who hold or may hold native title in relation to land or waters in the area covered by the agreement have been identified; and (b) all the persons so identified have authorised the making of the agreement." Persons holding native title in relation to land or waters "authorise" the making of the ILUA within the meaning of the NT Act if those persons authorise its making in accordance with a process of decision-making required by their traditional laws and customs or otherwise in accordance with a process of decision‑making agreed to and adopted by them. Likewise, persons in a native title claim group "authorise" the making of an application for a determination of native title within the meaning of the NT Act if those persons authorise its making in accordance with a process of decision-making required by their traditional laws and customs or otherwise in accordance with a process of decision-making agreed to and adopted by them. The Full Court was persuaded to the conclusion that the certification function conferred by s 203BE(1)(b) is incapable of delegation having regard to two main considerations. The first was an apprehension, which would logically apply equally in relation to all other functions conferred on a representative body under Div 3, that s 203B(3) read together with s 203BK(2) tells against delegation. That apprehension is not well founded for reasons that have been addressed and that need not be revisited. The second was an apprehension addressed by the Full Court specifically to the certification function conferred by s 203BE(1)(b) having regard to the precondition set out in s 203BE(5), although there appears to be no reason to think that it would not apply equally to the certification function conferred by s 203BE(1)(a) having regard to the equivalent precondition set out in s 203BE(2). The apprehension was that the nature of the opinion required to be formed as a precondition to performance of the function is peculiarly adapted to performance by the members of a representative body in plenary session by reason of the representative nature of the membership of the representative body. That apprehension is also not well founded. The Full Court's conception of the representative nature of the membership of a representative body resonates with the regime of Pt 11 of the NT Act in its original form, which allowed the Commonwealth Minister to determine any "body" to be a "representative Aboriginal/Torres Strait Islander body for an area" if satisfied that the body was "broadly representative of the Aboriginal peoples or Torres Strait Islanders in the area". The 1998 and 2007 amendments combined to replace the regime for determination of a "body" to be a "representative Aboriginal/Torres Strait Islander body for an area" with the current regime of recognition of an "eligible body" as a "representative body" and made provisions for bodies which had been determined to be representative Aboriginal/Torres Strait Islander bodies to apply as eligible bodies for recognition as representative bodies. To continue to conceive of a representative body as taking its essential character from the representative make-up of its membership fails to accommodate the range of eligible bodies now capable of being recognised by the Commonwealth Minister as representative bodies. It also fails to accommodate the range of organisational structures and administrative processes by which a representative body might perform its representative functions consistently with s 203BA(2). The decisions of differently constituted Full Courts in Kemppi v Adani Mining Pty Ltd [No 2] and McGlade v South West Aboriginal Land & Sea Aboriginal Corporation [No 2] illustrate that a certification function performed by a representative body that is a company incorporated under the Corporations Act might in practice fall to be performed through its chief executive officer. Moreover, the subject matter of the opinion required by s 203BE(5) to be formed by a representative body as a precondition to performance of the certification function conferred by s 203BE(1)(b) is a question of fact. As has already been explained, it is a question of fact about which the Registrar or a delegate of the Registrar may be required to form his or her own opinion, which can prevail over that of a representative body in the event of objection to a certified application for registration, and a question of fact about which the Registrar or delegate of the Registrar must form his or her own opinion in the event of an uncertified application for registration of an ILUA. The process of making and registering an application for a determination of native title has complexities which are unnecessary to explore. Suffice it to note that the subject matter of the opinion required by s 203BE(2) to be formed by a representative body as a precondition to performance of the certification function conferred on it by s 203BE(1)(a) is a similar question of fact, about which each of the Federal Court, the Registrar or delegate of the Registrar and the National Native Title Tribunal can be required to form and act on their own opinions. Not only is a question of fact of the nature posed by s 203BE(5) and by s 203BE(2) not peculiarly adapted to determination by the membership or governing body of a representative body, but there are reasons to consider that such a question of fact might be peculiarly ill-adapted to determination by the membership or governing body of a representative body. The burden of receiving and assessing extensive and potentially contentious evidence is one. The potential for conflicts of interest to occur is another. The notion that some special feature of the certification functions conferred by s 203BE or of the specific certification function conferred by s 203BE(1)(b) confines performance to the membership or governing body of a representative body must therefore be rejected. Delegation under the ALR Act Axiomatically, a statutory corporation's "power and authority to do any particular thing" is to be found, if at all, "in the language of the statute, in what it expressly provides and what it inferentially provides as a matter of necessary implication". Proceeding upon that premise, there remains finally to examine the ALR Act to determine whether the NLC can delegate to the CEO a function conferred on the NLC as a representative body by the NT Act. The NLC is one of four Land Councils that have long been established under Pt III of the ALR Act each for a distinct area of the Northern Territory. Three of those Land Councils were determined under the NT Act to be representative Aboriginal/Torres Strait Islander bodies for an equivalent area in 1993. Two of those Land Councils (the NLC and the Central Land Council), on application, were recognised as representative bodies under Div 2 of Pt 11 of the NT Act in its current form in 2018. Under Pt III of the ALR Act, a Land Council is a body corporate with perpetual succession, the functions of which include but are not confined to functions conferred by Pt III of the ALR Act, the members of which are Aboriginal people living in the area or who are registered as traditional owners of the area who have been chosen by Aboriginal people living in the area in accordance with a method or methods of choice from time to time approved by the Minister or who are co-opted by the Land Council with the approval of the Minister, and the Chair of which is a member chosen by members at a meeting of the Land Council. The Chair of a Land Council is obliged to convene such meetings of the Land Council "as are, in his or her opinion, necessary for the efficient conduct of its affairs". At a meeting of the Land Council, attendance by at least half of its members is needed to constitute a quorum and any question arising is required to be decided by a majority of the votes of members present and voting. Part III of the ALR Act empowers a Land Council to "appoint a committee or committees of its members to assist [it] in relation to the performance of any of its functions". A committee so appointed must consist of a minimum number of members and must operate under rules for the convening and conduct of meetings that are made by the Land Council, given to the Minister, and open to inspection by the traditional Aboriginal owners of Aboriginal land in its area and by other Aboriginal people living in the area. Mirroring the permission given to a representative body by the NT Act, the ALR Act permits a Land Council to allocate resources in the way it thinks fit in order to be able to perform its functions efficiently. And mirroring the requirements of the NT Act as to how the functions of a representative body are to be performed, the ALR Act obliges a Land Council to use its best efforts to perform its functions in a timely manner and in a manner that "maintains organisational structures and administrative processes that promote the satisfactory representation by [it] of, and promote effective consultation with, the traditional Aboriginal owners of, and other Aboriginals interested in, Aboriginal land in [its] area" and that "ensures that the structures and processes operate in a fair manner". Section 27(1) of the ALR Act provides that "[s]ubject to this Act, a Land Council may do all things necessary or convenient to be done for or in connexion with the performance of its functions and, without limiting the generality of the foregoing, may: (a) employ staff ...". The CEO is a member of the staff of the NLC employed in the exercise of the specific power conferred by s 27(1)(a). Section 28(1) provides that a Land Council may delegate to its Chair, to another of its members, or to a member of its staff "any of the Council's functions or powers under this Act" other than functions which that sub-section specifically excludes. Section 28(2) provides in materially identical terms that a Land Council may delegate to a committee that it has appointed "any of the Council's functions or powers under this Act" other than functions which that sub-section specifically excludes. Understanding the scope and interrelationship of ss 27(1) and 28(1) and (2) is assisted by reference to two well-established principles of statutory construction. One is that "when a statute confers both a general power, not subject to limitations and qualifications, and a special power, subject to limitations and qualifications, the general power cannot be exercised to do that which is the subject of the special power". The other is that "a court construing a statutory provision must strive to give meaning to every word of the provision". Having regard to the first of those principles of statutory construction, the general power conferred on a Land Council by s 27(1) to "do all things necessary or convenient to be done for or in connexion with the performance of its functions" is to be read as excluding any power to delegate "any of the Council's functions or powers under this Act" which s 28(1) and (2) identify as the subject matter of the special powers of delegation which they confer subject to the limitations and qualifications they specify. Having regard to the second of those principles of statutory construction, however, the unqualified reference in s 27(1) to a Land Council's "functions" is to be read as extending beyond the references in s 28(1) and (2) to a Land Council's "functions ... under this Act" to include functions conferred on a Land Council by or under another Commonwealth Act. The result is that no impediment appears on the face of the ALR Act to the power conferred by s 27(1) being available to support delegation of a function conferred on a Land Council by or under another Commonwealth Act if delegation of that function can be characterised as something "necessary or convenient to be done for or in connexion with the performance" of that function or other functions of the Land Council. A "necessary or convenient" power of that nature has already been emphasised to be ancillary, subsidiary or incidental. That which is necessary or convenient to be done for or in connection with the performance of one or more functions conferred on a Land Council by or under one or more Commonwealth Acts extends, but is limited, to that which conduces to "the more effective administration" of one or more of those functions. Whether the doing of a thing meets that requirement of conducing to more effective administration is an objective question of fact and degree. The bounds of the power conferred by s 27(1) are set by the need for the circumstances of its exercise to yield a positive answer to that question. There is no a priori reason why delegation of a function to a member of staff engaged under s 27(1)(a) cannot fall within those bounds. The presumption of statutory interpretation reflected in the maxim delegatus non potest delegare, that a statutory function is to be performed by none but the statutory repository of the function, yields to "any contrary indications found in the language, scope or object of the statute". In Bayly v Municipal Council of Sydney the Supreme Court of New South Wales held that a statutory provision conferring power on a Municipal Council to engage and assign duties to officers and servants permitted the Council to delegate to a senior officer the appointment and discharge of junior employees, observing that the provision "cannot be construed so as to impose upon the Council the duty of itself appointing every officer or servant that may be necessary from the highest to the lowest" given that "[s]uch a requirement would be intolerable and impracticable in the management of the affairs of a corporation such as that of the City of Sydney". Much later, in Ex parte Forster; Re University of Sydney, the Supreme Court held that a power conferred on the Senate of the University of Sydney to "act in such manner as appears to them to be best calculated to promote the purposes of the University" in the "management of and superintendence over the affairs ... of the University" empowered the Senate to delegate to committees established within Faculties of the University specific power to exclude students who repeatedly failed courses of study within those Faculties. In so holding, the Supreme Court observed that "the application of the maxim, and its extent, must be considered with due regard to the purpose and objects of the statute, the character of the power which is conferred, the exigencies of the occasions which may arise with respect to its exercise, and other relevant considerations". That the power conferred on a Land Council by s 27(1) encompasses power to delegate to a member of its staff a function conferred on the Land Council by or under another Act, to the extent that delegation conduces to the more effective administration of that function or other functions, is indicated by the constitution of the Land Council as a corporation and by the specific power conferred on the Land Council by s 27(1)(a) to engage staff. The specific power necessarily carries with it power to assign responsibilities to members of staff. Power to delegate such functions to a member of its staff is further indicated by the concurrent ability of the Land Council under s 28(1) to delegate to a member of its staff functions conferred on the Land Council under the ALR Act itself, by the variety of functions which might potentially be conferred on the Land Council under other Acts, and by the capacity for those other Acts to exclude or limit delegation in a manner tailored to the achievement of their specific objects. More specifically, power to delegate to a member of the staff of a Land Council functions conferred on the Land Council as a representative body under Div 3 of Pt 11 of the NT Act is indicated by the complementary provision that is made in Pt III of the ALR Act and in Div 3 of Pt 11 of the NT Act for a Land Council that is also a representative body to allocate resources in the way it thinks fit in order to enable efficient performance of the totality of its functions. The power conferred on a Land Council by s 27(1) is therefore to be interpreted, consistently with the argument of the Attorney‑General of the Commonwealth, as encompassing power to delegate to a member of staff engaged under s 27(1)(a) a function conferred on the Land Council under Div 3 of Pt 11 of the NT Act to the extent that delegation of that function is objectively necessary or convenient to be done for or in connection with the performance of that function or other of the Land Council's functions. Whether delegation of the certification function by the NLC to the CEO is or was at any relevant time objectively necessary or convenient to be done for or in connection with the performance of the certification function or of any other function or functions of the NLC is beyond the scope of the issues raised in the appeal. To the extent that s 27(1) encompasses such a power of delegation, exercise of the power of delegation attracts the operation of ss 34AB and 34A of the AI Act. By operation of s 34AB(1)(c), a function performed by a member of staff as delegate of the Land Council is deemed for the purposes of the ALR Act to have been performed by the Land Council. And by operation of s 34A, if performance of the function is dependent upon the Land Council's opinion in relation to a matter, the member of staff as delegate can perform that function upon his or her own opinion in relation to that matter. Conclusion The result is that the NLC has power under s 27(1) of the ALR Act to delegate to the CEO the certification function conferred on the NLC as a representative body by s 203BE(1)(b) of the NT Act if and to the extent that delegation is objectively necessary or convenient to be done for or in connection with performance of the certification function or other functions of the NLC. If the certification function is duly delegated by the NLC to the CEO under s 27(1) of the ALR Act, the CEO in performing that function is allowed by s 34A of the AI Act to form his or her own opinion about the subject matter of s 203BE(5) of the NT Act. Performance of the certification function by the CEO is then deemed by s 34AB(1)(c) of the AI Act to amount to performance of that function by the NLC for the purposes of the ALR Act. Because performance of the certification function by the CEO amounts to performance of the certification function by the NLC for the purposes of its constating statute, performance by the CEO also amounts to performance of the certification function by the NLC for the purposes of the NT Act. Orders The appeal to this Court must be allowed. The declaration made by the Full Court must be set aside and with it the order made by the Full Court allowing the cross-appeal. They are to be replaced with an order dismissing the cross-appeal. The orders made by the Full Court dismissing the application for leave to adduce fresh evidence in the appeal to it and dismissing the appeal to it must also be set aside. The unresolved appeal to the Full Court, including the unresolved application for leave to adduce fresh evidence in that appeal, is to be remitted to the Full Court. Lest there be any doubt, it should be made clear that the issue remaining for determination in the remitted appeal is whether the certification function conferred on the NLC as a representative body by s 203BE(1)(b) of the NT Act was in fact duly delegated by the NLC to the CEO under s 27(1) of the ALR Act. In accordance with undertakings given as a condition of the grant of special leave to appeal, the NLC and the CEO are to bear Mr Quall's and Mr Fejo's costs of the appeal limited to one set of costs. In accordance with undertakings given as a condition of the grant of leave to intervene, the Attorney-General of the Commonwealth and the Northern Territory are to bear jointly with the NLC and the CEO Mr Quall's and Mr Fejo's costs of the appeal as so limited.

Northern Land Council v Quall

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (15 paragraphs)

Parties

Legislation Cited (7)

Cited By (4)