Episode 109

Gordon Brysland

The legal ‘person’ is the sun around which the planets of the law revolve.  Only a thing with legal personality can have rights and obligations or bear criminal sanctions1.  To which category of ‘person’ a statute applies poses perennial puzzles for judges, as a recent High Court case illustrates2.  The issue was whether the corporatised Director of National Parks (Cth) could be held liable as a ‘person’ for unauthorised trackwork in Kakadu3.  In other words, did the presumption against the Crown being criminally liable under general statutes apply here?4  This was resolved by the context and purpose of the offence provision5.  All judges held that the presumption immunised the Commonwealth body politic from liability, but not the corporatised Director.  Two judges stressed the duty of all government officers to observe the law6.  The Director later pleaded guilty to all charges.

Gordon Brysland – Tax Counsel Network gordon.brysland@ato.gov.au

See here for the official PDF of Episode 109 of interpretation NOW!

Thanks – Oliver Hood & Suzanne McMahon.


1 Queensland Rail [2015] HCA 11 [53], cf Stanley [2015] NY Slip Op 05257.

2 Aboriginal Areas Protection v Director of National Parks [2024] HCA 16.

3 s 34(1) of the Northern Territory Aboriginal Sacred Sites Act 1989 (NT).

4 Cain v Doyle (1946) 72 CLR 409 (424), Pearce 10th ed [9.23] (535).

5 cf ss 17 & 24AA of the Interpretation Act 1978 (NT).

6 [15-16], Residential 190 CLR 410 (427), cf Hayden (1984) 156 CLR 532 (580).