Scope of Commonwealth immunity from criminal liability

Last Wednesday, the High Court handed down its judgment in Chief Executive Officer, Aboriginal Areas Protection Authority v Director of National Parks [2024] HCA 16 which confirms that the presumption that the Commonwealth is immune from criminal liability does not extend to natural persons, corporations sole and other bodies corporate.

The Director of National Parks, a corporation sole, had engaged a contractor to carry out works to realign a walking track in the Kakadu National Park. Under s 34 of the Northern Territory Sacred Sites Act 1989 (NT) (Act), it is an offence to carry out work on a sacred site without an Authority Certificate or a Minister’s Certificate.

The Aboriginal Areas Protection Authority charged the Director of National Parks with an offence against s 34(1) of the Act. The High Court held that the offence and penalty prescribed by s 34(1) apply to the Director of National Parks as a matter of statutory construction.