In brief

The case of Northern Land Council v Quall [2019] FCAFC 77 concerned an appeal and a cross-appeal from the Federal Court decision in Quall v Northern Land Council [2018] FCA 989 to the Full Court of the Federal Court against the Federal Court's judicial review decision that section 203BK(1) of the Native Title Act 1993 (Cth) (NT Act), properly construed, included the power to delegate certification functions under the NT Act. 

On appeal and cross-appeal, the issues for the Full Court were the following:

  1. Whether the certification functions of a representative body in section 203BE of the NT Act are delegable to the chief executive officer of a representative body.

  2. Whether the Court's discretion in section 27 of the Federal Court of Australia Act 1976 (Cth) should be exercised to allow the admission of further evidence regarding a delegation by the Northern Land Council (NLC).  

  3. In the event that further evidence is to be admitted, whether NCL's delegation to the chief executive officer of NLC (CEO), was effective so as to authorise the CEO to exercise the certification functions in section 203BE of the NT Act. 

The first issue was raised in the cross-appeal and the Full Court decided that the certification functions must be exercised by a representative body in accordance with the provisions of the NT Act. 

Upon the success of the cross-appeal, the Full Court did not need consider the remaining issues. 

Factual circumstances  

The Northern Territory of Australia and the NLC agreed upon an area Indigenous Land Use Agreement (ILUA) in 2016, which was varied in 2017. The CEO signed the certificate for registration of the ILUA after the variation. The respondents and cross-appellants, Mr Quall and Mr Fejo, sought judicial review on the basis that the certificate endorsed by the CEO was invalid either because the NLC could not delegate this function, or, in the alternative, that the instrument of delegation was not a valid delegation to the CEO. 

In the appeal before the Full Court, the NLC, CEO, and Northern Territory of Australia (which was granted leave to intervene in the appeal) argued that the Full Court should answer the issues outlined above in the affirmative. The respondents/cross-appellants argued that the issues should be answered in the negative. 

Section 203BE does not imply a power of delegation 

Section 203BK(1) of the NT Act relevantly states that "A representative body has power to do all things necessary or convenient to be done for or in connection with the performance of its functions". 

The Federal Court found that section 203BK(1) of the NT Act was broad enough to encompass a representative body delegating its certification functions. However the Full Court of the Federal Court disagreed.

The Full Court came to its decision based on the construction of the NT Act and the certification provisions, including their nature, character, text, function, and purpose. The Full Court stated that an important consideration was whether or not the power involves the formation of an opinion. As part of the provision of a certification, a representative body is required, by section 203BE(5) of the NT Act, to include an express statement that the body holds the opinion that all reasonable efforts have been made to ensure those who may, or do, hold native title in the ILUA area have been identified and that such identified persons agree to the making of the agreement (at [98] to [100]). 

The Full Court said that the particular wording in the heading of section 203BK of the NT Act, namely, that they are "powers of representative bodies"; and that "entering into an arrangement with another person", as encompassed in section 203BK(2) of the NT Act, contemplates bilateral/mutual agreement and not the unilateral delegation of a power (at [103]).

The Full Court also held that the wording in sections 203BB, 203BD, and 203BK of the NT Act including "briefing out", "obtain services to assist", "entering into arrangements" etc. do not contemplate any powers of delegation, rather, they contemplate a representative body obtaining assistance from others in the performance of its functions (at [104]). 

The Full Court also noted that although the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth) (ALR Act) makes clear that only Aboriginal people may be members of a Land Council,it is completely silent as to whether members of staff, including executive officers, have to be Aboriginal. Accordingly a chief executive officer could possibly not be of Aboriginal descent (at [68]). Furthermore, representative bodies under the NT Act do not have to be a Land Council established under the ALR Act, and therefore the Full Court stated that it is possible a representative body may not be constituted by persons who are Aboriginal (at [95]). 


Despite being able to obtain assistance in the performance of certification functions under section 203BE(1)(b) of the NT Act, representative bodies cannot delegate or outsource the actual performance of those functions nor other functions which the legislature clearly intended the representative body to perform.  

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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