THE DELEGATION RESOLUTIONS WERE NOT VALID
29 I turn now to Mr Quall and Mr Fejo's alternative contention above: that, even if the certification function under s 203BE of the NTA was delegable, the resolution of 1 October 1996 and the instrument of 10 March 2000 did not effect a valid delegation of that function to the NLC's CEO. It is convenient to begin by considering a relatively recent amendment to the Acts Interpretation Act 1901 (Cth) (the AIA), to which reference was made by both parties in argument. In 2011, s 34AB was introduced to the AIA by s 89 of the Acts Interpretation Amendment Act 2011 (Cth). Section 34AB provides:
(1) Where an Act confers power on a person or body (in this section called the authority) to delegate a function, duty or power:
(a) the delegation may be made either generally or as otherwise provided by the instrument of delegation;
(b) the powers that may be delegated do not include that power to delegate;
(c) a function, duty or power so delegated, when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the authority;
(d) a delegation by the authority does not prevent the performance or exercise of a function, duty or power by the authority; and
(e) if the authority is not a person, section 34A applies as if it were.
(2) If:
(a) a person (the delegator) or body (also the delegator) delegates all the person's or body's functions, duties or powers under an Act, or a provision of an Act, to another person or body; and
(b) the Act is amended to give the delegator one or more additional functions, duties or powers under the Act or provision; and
(c) the delegation is in force immediately before the amendment takes effect;
then, on and after the amendment taking effect, the delegation is taken to include the additional functions, duties or powers.
(3) If:
(a) a person or body delegates one or more of the person's or body's functions, duties or powers under an Act, or a provision of an Act, to another person or body; and
(b) the Act is amended to alter the scope of one or more of those functions, duties or powers under the Act or provision; and
(c) the delegation is in force immediately before the amendment takes effect;
then, on and after the amendment taking effect, the delegation is taken to include the functions, duties or powers as altered.
(Headings omitted)
30 If this provision had applied retrospectively, it could well have affected the outcome in this matter. However, item 8 of Schedule 3 of the amending Act provided:
The amendment made by item 89 of schedule 1 applies in relation to alterations or additions that are made on or after the commencement of that item (regardless of whether the delegation referred to in [s 34AB] as inserted by this Act, is made before, on or after that commencement).
31 It was therefore common ground in this matter that s 34AB does not apply to the resolution of 1 October 1996 or the instrument of 10 March 2000. The Explanatory Memorandum to the Acts Interpretation Amendment Bill 2011 set out the reason why s 34AB was introduced in the following terms:
216. Item 89 adds a new subsection (2) to section 34AB (which deals with the effect of a delegation) that makes it clear that a delegation expressed to extend to all the powers, functions or duties under a given Act or part of an Act extend to a power, function or duty included in that Act or part that has come into existence after the delegation is made. This provides greater certainty for delegated functions, duties and powers.
217. This amendment specifically addresses the concern raised by Chief Justice Street in the unreported decision of the New South Wales Court of Criminal Appeal case of Australian Chemical Refinery (sic - Refiners) Pty Ltd v Bradwell (28 February 1986). Street CJ indicated that there was a strong common law presumption that a delegation does not extend to a power that comes into existence after the delegation is made, even if within the literal words of the delegation.
218. This was in contrast to the generally accepted position under the Acts Interpretation Act that delegations could encompass subsequently enacted powers based on section 10 of the Acts Interpretation Act which allows from 'time to time' references which, under section 46 of the Acts Interpretation Act, can be included in instruments. Given the importance of delegations to Commonwealth administration, it was important that this issue be dealt with explicitly.
219. Item 89 also adds a new subsection 34AB(3) to provide that when an Act amends the scope of a function, duty or power that has been delegated, the delegation is taken to include the altered function, duty or power.
220. This provision does not prevent a delegate from reviewing a delegation when new powers, functions or duties are enacted and amending the delegation if they want to ensure that that new or altered function, duty or power remains solely with them.
32 The judgment mentioned in paragraph 217 of the Explanatory Memorandum above (Australian Chemical Refiners Pty Ltd v Bradwell (unreported, New South Wales Court of Criminal Appeal, 28 February 1986) (Bradwell)) dealt with a prosecution under the Clean Air Act 1961 (NSW). After describing the factual background to the proceeding, Street CJ (with whom Slattery and Finlay JJ agreed) identified two questions that fell to be determined as follows:
… The first is whether the Instrument of Delegation of December 1974 could in its terms operate to delegate to the Commissioner powers of the Commission which did not exist at December 1974, but which only came into existence in May 1975-- that is to say to consent to the institution of proceedings for an offence against the Clean Air Act. The second question is whether the delegation to the Director to give that consent is ambulatory, so as to avail the person who may for the time being and from time to time hold that office within the Commission.
33 It was the answer to the first of these questions that is of particular relevance in the present matter. In providing that answer, the Chief Justice said:
In considering the first of the matters, that is to say whether the delegation of December 1974 could catch up powers which did not then exist and which only came into existence some five months later, it is difficult to see any valid argument to support an affirmative answer. The delegation plainly enough must speak at the date at which it is executed. So far as it purports to delegate powers, authorities, duties and functions conferred or imposed on the Commission by or under the Clean Air Act, the intention of the instrument which is carried into effect by its terms is a delegation of those powers as they existed at that date. There is an old maxim that is in point-- "one does not give what one does not have". It would indeed be surprising to contemplate such a solemn act as the delegation of statutory powers to a permanent officer being made, so to speak per incuriam, that is to say without specific awareness and consideration of the content and significance of the delegation. I would hesitate long before recognising that the delegation could be construed as operating in future in this way. The delegation requires a conscious and deliberate exercise by the Commission of its delegating powers. It is to be construed as confined to those powers that can be fairly said to have been before it for consideration at the time of its decision to delegate.
(Emphasis added)
34 In my view, these observations compel the conclusion that the resolution of 1 October 1996 did not constitute a valid delegation of the NLC's certification function under s 203BE to the CEO of the NLC. That is so because, at the time of that resolution, neither the NLC nor any other representative body was vested with a certification function under the NTA. As is recorded above, that function was first introduced to the NTA in the first stage of the 1998 amendments to that Act. Since the NLC did not have that function in October 1996, the ruling in Bradwell establishes that it could not delegate it.
35 As for the 10 March 2000 instrument, it purported to confirm the delegation of all the NLC's powers under the NTA to, among others, its CEO. The delegation being confirmed was described in recital clause D of that instrument as that made by the 1 October 1996 resolution. Furthermore, the power under the NTA that was being referred to was that described in recital clause B as: "the power to assist Aboriginal people, in its capacity as a representative Aboriginal and Torres Strait Islander body, in respect of the functions outlined in Section 202 of the Act". This power was therefore described in substantively identical terms to the power described in the 1 October 1996 resolution (see at [11] above), namely the NLC's then extant facilitation and assistance function under s 202 of the NTA. There was, therefore, nothing in the 10 March 2000 instrument to indicate that the NLC had undertaken a considered delegation of its newly acquired certification function. That is to say that it had applied any "specific awareness and consideration of the content and significance of the delegation" it was purportedly making (see Bradwell above at [33]). That all the more so, where the certification function under s 202(4)(e), and, subsequently, s 203BE, was quite different in content to the facilitation and assistance function of a representative body under s 203BB and where the former function could only be performed if the representative body held the opinions prescribed by s 203BE(5) and gave brief reasons for being of that opinion under s 203BE(6)(b).
36 To attempt to counter these conclusions, the NLC relied upon various provisions of the AIA and the Carltona principle (Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 at 563 (Lord Green MR)). First, while it accepted that s 34AB of the AIA did not relevantly apply before that section came into effect in 2011, it sought to rely upon, what it claimed was, a common law presumption to similar effect. It contended that presumption operated in a similar way to s 34AB to expand a function or power to correspond to the expansion by amendment of the original statutory provision vesting that function or power. To address the observations of Street CJ in Bradwell which are to the opposite effect, it attempted to distinguish that judgment by claiming those observations were confined to delegations involving criminal prosecutions, or which gave rise to criminal liability. I do not consider this distinction is valid. The Chief Justice's observations in Bradwell were, in my view, expressed in general terms and were plainly intended to state the pre-existing common law position with respect to delegations generally, namely that one cannot delegate a function or power that one does not possess.
37 Secondly, the NLC sought to rely upon ss 46(1)(a) and 10(c) of the AIA to contend that the delegation achieved by the resolution of 1 October 1996 and confirmed by the 10 March 2000 instrument continued in operation and extended to the re-enactment of ss 202(4)(e), (8) and (9), as s 203B(1)(b) and 203BE. In my view, this contention encounters a similar difficulty. It is that the certification function inserted into s 202 of the NTA in the first stage of the 1998 amendments, and later moved to s 203BE in the second stage, was an entirely new and distinct function from the facilitation and assistance function vested in the NLC by the original version of s 202. Sections 203B(1)(b) and 203BE did not, therefore, constitute a re-enactment of the originally vested facilitation and assistance function in s 202, rather they constituted the enactment of a completely new function.
38 Thirdly, the NLC claimed that s 203BK(1) permitted the NLC to authorise an internal officer such as its CEO to act in the NLC's name in performing its certification function. For the reasons I have given above, this proposition may be accepted as broadly correct. However, it does not avail the NLC in this matter because it has not produced any evidence that its Council provided such an authorisation to its CEO, aside from the resolution of 1 October 1996 and the instrument of 10 March 2000 which by their terms purported to "delegate" the certification function to its CEO. In other words, I do not consider that failed attempt to delegate that function can, in the circumstances, be taken to, in effect, evidence or constitute an authorisation to similar effect.
39 Finally, the NLC sought to rely upon the Carltona principle. As the High Court explained in O'Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1 (at 12-13 per Gibbs CJ and 31-32 per Wilson J), that principle applies where "practical administrative necessity" dictates that a person such as a Deputy Commissioner of Taxation has to exercise his or her functions by the actions of authorised officers because he or she has no power to delegate those functions. That is not the situation in which the NLC found itself in this matter. First, for the reasons given above, the NLC's Council did have the power to delegate its certification function under the NTA to its CEO. As Brennan J said in Re Reference under section 11 of Ombudsman Act 1976 for an advisory opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 94:
… The practical administrative necessity which warrants an authority's exercising his power by the acts of another disappears when the authority is empowered to delegate all of his powers and functions to that other.
40 Secondly, while the NLC exercises certain functions under Part 11 of the NTA, I do not consider it is, in that capacity, exercising those functions as a statutory authority. Rather it does so as a statutory body corporate. In those circumstances, aside from cases concerning the indoor management rule which does not arise in this matter, the actual authority of its Council members and CEO is more analogous to that of a body corporate where: "A director's normal power is to bind the company only by joining with other directors in a resolution of the board of directors" (see Colin R Price & Associates Pty Ltd v Four Oaks Pty Ltd (2017) 251 FCR 404; [2017] FCAFC 75 at [150] citing Northside Developments Proprietary Limited v Registrar-General (1990) 170 CLR 146 at 198 and 205).