High Court of Australia finds that the certification functions of a representative body under the Native Title Act 1993 (Cth) are able to be performed by a representative body's chief executive officer

In brief                              

The case of Northern Land Council v Quall [2020] HCA 33 concerned an appeal to the High Court of Australia (High Court) against the orders of the Full Court of the Federal Court of Australia (Full Court) in the case of Northern Land Council v Quall (No 2) [2019] FCAFC 101, in which the Full Court relevantly held as follows with respect to indigenous land use agreements (ILUAs):

1. The Respondents' cross-appeal be allowed because the Full Court was satisfied that the function of a representative body under section 203BE(1)(b) of the Native Title Act 1993 (Cth) (NT Act) to certify an application for registration of an ILUA (Certification Function) could not be delegated to the chief executive officer (CEO) of the representative body (Issue 1). 

2. The Northern Land Council's (NLC) interlocutory application seeking that the Full Court exercise its discretion under section 27 of the Federal Court of Australia Act 1976 (Cth) to admit further evidence in respect of the NLC's delegation of the certification functions to its CEO, and the appeal seeking a declaration that the NLC's delegation to its CEO was effective be dismissed because the Full Court held that the issues did not need to be considered based on its finding in respect of Issue 1 above (Issue 2 and Issue 3). 

The Full Court's reasoning in respect of Issue 1, Issue 2, and Issue 3 was provided in Northern Land Council v Quall [2019] FCAFC 77, which was summarised in our June 2019 article. 

The High Court held that the Certification Function could be delegated by the NLC under section 27(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act), and where effectively delegated, sections 34A and 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth) (AI Act) attributed the CEO's opinion formed under section 203BE(5) of the NT Act to the NLC. 

Their Honours Justice Nettle and Justice Edelman disagreed with the reasoning of the majority and held that the Certification Function could be performed by the CEO as an agent of NLC. 

The High Court set aside the Full Court's decision in respect of Issue 1, Issue 2, and Issue 3, and remitted to the Full Court Issue 2 and Issue 3 for determination. 

Background

In 2016, the Northern Territory of Australia and NLC agreed upon an ILUA (Kenbi ILUA) which was varied in 2017. After the variation, the CEO of NLC, purporting to act as a delegate of NLC, signed the certificate for the Kenbi ILUA to be registered under the NT Act (Registration Certificate). 

The Respondents commenced judicial review proceedings in the Federal Court of Australia (Federal Court) seeking orders that the Registration Certificate was invalid because the Certification Function could not be delegated or the particular instrument of delegation was not a valid delegation to the CEO. 

Federal Court's and Full Court's decisions 

The Federal Court in Quall v Northern Land Council [2018] FCA 989 relevantly held that section 203BK(1) of the NT Act, which authorised a representative body to "do all things necessary or convenient", was broad enough to include the power to delegate the Certification Function. The Federal Court held, however, that the instruments of delegation of the Certification Function to the CEO were ineffective. 

The Full Court held that the Certification Function was non-delegable because the Certification Function required a representative body to first form an opinion under section 203BE(5) of the NT Act that all reasonable efforts had been made to ensure that those persons who may or do hold native title in an ILUA have been identified and agree to the making of the agreement. 

The Full Court therefore did not consider in respect of Issue 2 whether NLC's further evidence demonstrated the effectiveness of the instruments of delegation. 

Certification Function is delegable 

The High Court considered the legislative context of the functions of a representative body under the NT Act and the power under section 27(1) of the ALR Act of a land council to do all things necessary or convenient to be done or in connection with the performance of its functions. 

The High Court held that the legislative framework, in particular section 203B(3) of the NT Act, supports a representative body using persons or groups of persons within its organisational structure and administrative processes established by or under the relevant constating statute to perform its functions, unless the function has a special feature which confines the performance of it to the members or governing body of the representative body (see [30], [34], and [37]). 

The High Court held there was not any special feature of the Certification Function which would confine the performance of it to the membership or governing body of the representative body (at [52]), and that section 27(1) of the ALR Act permits the delegation of a function conferred by or under another Commonwealth Act if the delegation of that function can be characterised as something "'necessary or convenient [i.e. ancillary, subsidiary, or incidental] to be done for or in connexion with the performance' of that function or other functions…" (see [63] to [66]). 

By virtue of section 34AB(1)(c) of the AI Act, a CEO's performance of the Certification Function is deemed to be performed by the representative body and the opinion of the CEO formed under section 203BE(5) of the NT Act is authorised to be their own (at [70]).

CEO performs functions as an "agent" rather than "delegate"

Their Honours Justice Nettle's and Justice Edelman's reasoning differed from that of the majority. 

Their Honours agreed that the NLC's functions conferred on it as a representative body under section 203BE(1)(b) of the NT Act can be performed by its CEO (at [76]). Their Honours, however, made a distinction between an "agent" and a "delegate". An agent's acts are attributed to the other, whereas a delegate, in the strict or precise sense, acts on their own behalf and generally in their own name. A non-delegable duty or function must only be performed by the nominated person or their agent (see [77] and [81] to [86]). 

When dealing with the powers of a body corporate, which can only act through natural persons, issues of agency ought to be considered before issues of delegation (at [86]). 

Their Honours held that the functions of a representative body under the NT Act are "almost textbook examples" of functions that would be non-delegable by implication. However, given that the functions are a substantial undertaking, the representative body must act through natural persons as agents (at [78], [89] to [91], and [99]). 

Justice Nettle and Justice Edelman disagreed with the majority that section 27(1) of the ALR Act authorised the delegation of the Certification Function to the CEO but found that the Certification Function could be performed through the CEO as an agent of NLC and sections 27 and 28 of the ALR Act related to powers under the ALR Act and not the NT Act. 

Their Honours held that the unresolved question for the Full Court should be whether the NLC's constitutive statutes and instruments permitted the CEO to exercise the Certification Function as an agent rather than a delegate, which was clearly the imprecise way the term "delegate" was being used by the parties in this case (at [104]). 

Conclusion 

The High Court set aside the orders of the Full Court and remitted Issue 2 and Issue 3 for redetermination.