High Court hears appeal on application of State laws to the Commonwealth

14 December 2023

This week the High Court of Australia heard an important appeal concerning whether the offence and penalty provisions of a law of the Northern Territory apply to a Commonwealth Body.

The case, Aboriginal Areas Protection Authority v Director of National Parks, arises from the construction of a tourist walkway at Gunlom Falls in Kakadu. The site and area surrounding the construction works is held under a lease by the Traditional Owners.

The area where works were carried out is sacred to the Jawoyn Aboriginal people and is a ‘sacred site’ as defined in the Northern Territory Aboriginal Sacred Sites Act. The Director carried out the works without an Authority Certificate or a Minister’s Certificate under the Sacred Sites Act.

As a result, the Aboriginal Areas Protection Authority (AAPA) charged the Director of National Parks with offences under the Sacred Sites Act. The Director contends that the Act does not bind the Crown, including by application of the rule of statutory construction in Cain v Doyle (1946) 72 CLR 409. For its part, the AAPA submitted that "upon analysis, none of the historical justifications for Cain v Doyle has any contemporary relevance or can sustain its rigidity as a rule of construction."

Following two days of hearing this week, judgment is now reserved.

Justin Gleeson SC and Sebastian Hartford Davis of Banco Chambers, together with Lachlan Spargo-Peattie of the NT Solicitor General's Chambers appeared for the AAPA. They were instructed by Michael McCarthy of Hutton McCarthy. They are pictured below with members of the Traditional Owners Group at the High Court of Australia.

Link to submissions

Link to media coverage