The Commonwealth is immune from criminal prosecution after allegedly illegally disturbing an Aboriginal sacred site at a former movie set in Kakadu National Park, a court has been told.
The Northern Territory's Aboriginal Areas Protection Authority filed a criminal charge against the director of Parks Australia in 2020 for carrying out uncertified work at Gunlom - a cascading waterfall that appeared in the movie Crocodile Dundee.
It alleges Parks built a walking track to Gunlom's top pools without permission from the Indigenous custodians.
Parks agreed to remove the offending section of track and apologised to traditional owners for the distress the work caused but pleaded not guilty to the charge.
This triggered a court case being fought on Monday before a full bench of the NT Supreme Court.
The case is not about the walking track but rather to find out if Parks can be prosecuted for carrying out the unauthorised work or if it is immune.
Brendan Lim, representing the Commonwealth Attorney-General, says the director of Parks Australia is a corporate instrument created by the federal government to manage Kakadu and other significant national parks.
"The director of the corporate entity, it is so understood, is not an entity to which the criminal offence and penalty in section 34 of the Northern Territory Aboriginal Sacred Sites Act is intended to apply," the lawyer said.
He said director of Parks Australia is not a person but a statutory corporation to carry out executive functions for the Commonwealth and the equivalent of the Crown.
Chief Justice Michael Patrick asked if a situation could arise where a contractor carrying out works on behalf of Parks Australian could be liable for the criminal penalty under the Sacred Sites Act to which Mr Lim replied: "Yes".
"What if the director has a division within his office that carried out works themselves and the manager of that division had gone out to Gunlom and carried out the realignment, could that employee, the director and Commonwealth be subject to the criminal sanctions?" Justice Patrick asked.
"That would raise a question," Mr Lim replied.
Justice Patrick said: "So the person pushing the wheelbarrow would be liable to criminal prosecution and penalty but the director not."
"The director is the statutory corporation," Mr Lim said.
"Different considerations arise for the employees."
Mr Lim also raised questions about whether Parks Australia actually needed permission from AAPA and traditional owners to carry out the works.
"That's certainly true of tourism industry and business community, the question is whether it is true of the director," he said.
Parks has previously urged the AAPA to drop the criminal charge but it refused.
AAPA previously alleged the track was constructed close to a restricted ceremonial feature against the wishes of the World Heritage-listed park's traditional owners and without an authority certificate, which is issued after consultation.
Before AAPA issues a certificate it consults traditional owners about the sites to understand how they should be protected, and what restrictions and conditions should be applied to the proposed works.
Parks has since obtained a certificate and negotiated with traditional owners about the realignment of the track.
National Parks acting-director Jody Swirepik previously said Parks was ordered to plead not guilty by the commonwealth attorney-general so constitutional issues raised by the case could be addressed.
The maximum penalty under NT law for carrying out work on a sacred site without a certificate is $314,000.
