Griffiths, Mortimer and White JJ
This matter is an appeal from Quall v Northern Land Council [2018] FCA 989. The appeal and the cross-appeal in these proceedings raised three principal issues:
whether the certification functions of a representative body under s 203BE(1)(b) of the Native Title Act 1993 (Cth) (the NTA) may be delegated to the Chief Executive Officer (CEO) of the representative body?
whether the Court should exercise the discretion under s 27 of the Federal Court of Australia Act 1976 (Cth) to admit evidence concerning the delegation on 18 October 2001 of functions of the first appellant (the NLC) to the second appellant, Mr Joe Morrison, who was formerly its CEO?
whether, in the event that the Court does receive the evidence, the delegation of 18 October 2001 had been effective so as to authorise Mr Morrison to exercise the certification functions of the NLC under s 203BE of the NTA?
The Full Court decided the first issue in the negative. As that issue was raised by the cross-appeal, it was unnecessary to determine the second and third issues. The cross-appeal was allowed and the appeal dismissed.
The appellants, the NLC and its CEO, were the respondents to the proceedings at first instance. The Northern Territory of Australia was granted leave to intervene in the appeal.
The Court held at first instance that the first respondent, the Northern Land Council (NLC), had not certified an application for the registration of the Kenbi 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. For further background to this matter, see the summary of Quall v Northern Land Council [2018] FCA 989.
The primary Judge rejected the first of the respondents’ grounds, but upheld the second. His Honour considered that s 203BK(1) of the NTA vested power in the NLC to delegate the certification functions to its CEO, but found that resolutions made in the meetings of 1 October 1996 and 10 March 2000 had not validly delegated its function to the CEO. It is the primary Judge’s rejection of the first ground which is the subject of the cross-appeal and which is summarised in the first issue identified above.
Griffiths and White JJ
Their Honours considered whether on its proper construction, s 203BK provided a source of power for the NLC to delegate the certification functions in s 203BE(1)(b). Griffiths and White JJ found in the negative for the following reasons:
Their Honours considered that ss 203BA, 203BE, 203BG, 203BH and 203BJ of the NTA are important provisions intended to ensure that in performing their statutory functions, a representative body acts in the interests of its Aboriginal constituents by satisfactorily representing their interests and consulting effectively with them. The legislative scheme is designed to maximise the prospects that all potentially affected Aboriginal persons who hold or may hold native title have an opportunity to participate in the relevant decision-making processes so as to minimise the danger that actions and decisions of a representative body are focused on sectional and not wider Aboriginal community interests. That includes actions and decisions preceding the registration of an area ILUA. That intention suggests that the certification functions in s 203BE(1)(b) are to be performed by the representative body itself (at [101]).
The certification functions in s 203BE(1)(b) of the NTA should be viewed through that prism. They are intended to promote accountability and transparency on the part of relevant representative bodies, while simultaneously protecting the rights and interests of Aboriginal persons who hold or may hold native title in land or waters which are affected by the proposed registration of an area ILUA.
The absence of an express power of delegation in the NTA (in contrast with the position under the ALR Act).
The heading to s 203B(3) states “Representative bodies to perform functions”. The heading is a part of the NTA and is therefore to be taken into account in the proper construction of the provision to which it relates (see s 13 of the Acts Interpretation Act).
The body of s 203B provides that a representative body can enter into “an arrangement with another person under which the person is to perform the functions of the representative body”. The act of delegation does not fall within that concept. The latter seems to contemplate a bilateral or mutual agreement or arrangement between the representative body and another person. This is to be contrasted with the act of delegation, which is a unilateral act.
The reference to “obtain services to assist” in the performance of the representative body’s functions also suggests that the performance of the functions is not being handed over or passed to someone else, as ordinarily occurs under a delegation. Rather, the provision contemplates a representative body obtaining assistance from other people in the performance by the representative body of its functions.
Their Honours were not of the view that Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409 and Hird v Chief Executive Officer of the Australian Sports Anti-Doping Authority [2015] FCAFC 7; 227 FCR 95 supported the primary judge’s construction of s 203BK(1). The High Court found in the leading authority, Shanahan v Scott [1957] HCA 4; (1957) 96 CLR 245, that “necessary or convenient” powers are not freestanding sources of power, but are rather “strictly ancillary” powers (at [249-250]). Consistent with that principle, Mercantile Mutual reaffirms that powers such as s 203BK are incidental powers and it is necessary to determine to which substantive power the incidental power is to attach (see Black CJ at 412-413, Lockhart J at 422-423 and Gummow J at 437, 440-441). Section 203BK(1) will only provide a source of power to delegate if it is concluded that the certification functions in s 203BE are ones that can be delegated. That is a question of construction, the primary focus of which must be on the proper construction of the terms of s 203BE themselves.
It is the NLC’s opinion (and not someone else’s) on the matters specified in the certification under s 203BE(1)(b) which counts. The NLC can obtain assistance in relation to the gathering of information and material upon which the formation of the requisite opinion may be based but, ultimately, it is the NLC which has to be satisfied on the basis of all relevant material available to it that it is in the position to give its opinion on the relevant matters.
The cross-appeal was allowed and appeal dismissed. The following orders were made:
Within four weeks hereof, the parties are to file and serve short minutes of final orders, including as to costs, to give effect to these reasons for judgment.
If the parties are unable to agree on the short minutes of final orders, each should within that time file and serve an outline of written submissions, not exceeding five pages in length, in support of their individual position.
The terms of the final orders will be determined on the papers and without a further oral hearing.
Mortimer J agreed with the conclusions and orders and directions proposed by Griffiths and White JJ.