In this matter the Court declared that the first respondent, the Northern Land Council (NLC), had not certified an application for the registration of the Indigenous Land Use Agreement (ILUA) in accordance with s 24CG(3)(a) of the Native Title Act 1993 (Cth) (NTA), and in performance of its functions as a representative body under s 203BE(1)(b) of the NTA. The ILUA was dated 21 July 2016 and amended by a Deed of Variation dated 2 February 2017, known as the Kenbi ILUA. The Court ordered that the first respondent pay the applicant’s costs. The applicant was Mr Kevin Quall. The respondents to the claim were the Northern Land Council, and Joe Morrison as Chief Executive Officer of the Northern Land Council.
The NLC had submitted a certification of the ILUA which was signed by Mr Joe Morrison, acting in his capacity as CEO of NLC. The issue was not with the contents of this agreement, but whether the CEO could validly sign the certification of the agreement and therefore meet the requirements of s 203BE(1)(b) NTA. The applicants, Mr Quall and Mr Fejo, contended firstly that the applicants function under s 203BE(1)(b) NTA was not delegable, and alternatively, that the function had not been validly delegated to the CEO by way of resolution of meetings held on 1 October 1996 and 10 March 2000.
[21] – [28] On the first issue, Reeves J agreed with the NLC’s contention that s 203BK of the NTA, as of 1 July 2000, was sufficiently broad enough to allow the NLC to delegate its functions to a staff member such as its CEO. It was held that the words ‘all things necessary or convenient to be done’ extended to the delegation of a representative body’s function to a member of its staff, that delegation enabled satisfactory and effective performance of NLC’s functions by s 203BA(2) of the NTA, and that such a construction of the acts promotes the primary purpose of a representative body to represent native title holders, persons who may hold native title and Aboriginal and Torres Strait Islanders living in the area. It was also noted that Division 3 of Part 11 NTA enabled employment of third parties to assist in the performance of their functions, and by a matter of logic, this function should also therefore extended to their staff.
[29] – [34] On the second issue, Reeves J agreed with the applicants that resolutions made in the meetings of 1 October 1996 and 10 March 2000 had not validly delegated its function to the CEO. Section 34AB of the Acts Interpretation Act 1901 (Cth), introduced in 2011, does not apply retrospectively and so did not apply to the resolution and instrument in this case. Therefore, the common law presumption that a delegation does not extend to a power that comes into existence after the delegation was made, even within the literal words of the delegation (Street CJ in Australian Chemical Refiners Pty Ltd v Bradwell (unreported, New South Wales Court of Criminal Appeal, 28 February 1986)). [41] As the functions of the NLC under s 203BE NTA did not exist at the time of the 1 October 1996 resolution this power could not be delegated. There was nothing in the 10 March 2000 instrument to indicate that the NLC applied ‘specific awareness and consideration of the content and significance of the delegation’ (Bradwell) as it was in substantially the same terms as the 1996 resolution, and so it too was ineffective in delegating function to the CEO.