741. More Basic Criticisms. Criticisms at a number of different levels have been directed at the Queensland Aboriginal court system. At one level there has been criticism of the philosophy underlying the courts and of the effect they are said to have had, and continue to have, on Aborigines collectively and individually. These relate principally to Aboriginal rights to self-determination, and to the effect that the reserve system in Queensland has had on Aboriginal people. At a second level, criticism is directed at the rules and regulations which guide them and the way they operate in practice. The Community Services (Aborigines) Act 1984 (Qld) has attempted to meet some at least of the criticisms at this second level. It remains to be seen to what extent improvements will be made in the actual working of the courts. In any event, more basic criticisms are likely to continue. These include:
the courts are inferior or ‘second-class’ institutions;
the lack of real Aboriginal influence or control;
the courts’ inability, or failure, to take into account local customs and traditions;
criticism of the courts as an aspect of the reserve system as a whole, which is seen as an imposition of alien structures and values.
742. ‘Second-class’ Institutions. A complaint commonly made about Aboriginal courts is the lack of training provided to the Aboriginal justices and the Aboriginal Police. Justices of the peace are appointed to sit in the court but are given no guidelines, instructions or formal tuition in the job they are expected to perform. One effect of this lack of training is that the Aboriginal justices are unsure of the jurisdiction, procedure or powers of the Aboriginal court. They take their job seriously but are very aware of their shortcomings and are keen to improve their skill, but do not know how to go about it. If it is thought they may have acted in an inappropriate way the executive officer or local Queensland police officer (or, though this is less likely, the Aboriginal council) may intervene to advise them. However, this very much depends on the attitude of the executive officer and the police to the court. The limited powers available to an Aboriginal court also affect its status. A similar problem exists with the Aboriginal police. They have no formal training, although they generally work under the direction of the Queensland police, who may provide some guidance and instruction. Several factors make the present Aboriginal police system unsatisfactory. First, the Aboriginal police are actually employed by the council, which is responsible for hiring and firing. Councils now have specific responsibility for providing uniforms but this is being implemented very unevenly. The lack of a uniform is said to affect the status of the Aboriginal police from both the community and the individual viewpoint. Secondly, family or kin relationship can make it difficult for an Aboriginal policeman to do his job. Thirdly, the relatively small size of most of the Aboriginal communities and the mix of groups from different areas also leads to tensions which make policing difficult. Being an Aboriginal policeman may set a person apart from his friends. A combination of these factors results in a high turnover which makes policing even more difficult. Finally, the limited powers of the Aboriginal police restricts the role they can play and affects their status. But the factors listed above are usually given as justification for imposing such limitations, creating a self-perpetuating image of inferiority.
743. The Lack of Aboriginal Influence or Control. Another basic criticism directed at the Queensland system is that it was set up, and is in effect run, by the relevant Queensland government department (the Department of Community Services, formerly the Department of Aboriginal and Islander Advancement). To some degree the new legislation overcomes this:
The role of the Department is to be phased out (although the extent to which communities are being prepared for this appears to be uneven).
Community councils are required to prepare by-laws for their communities (which have effect when approved by the Governor in Council).
Community councils would seem to have control over whether or not an Aboriginal court is established for their area.
Community councils are said to have greater control over the content of by-laws. The existing by-laws have been the subject of trenchant criticism over their disregard for basic human rights.
The jurisdiction of the Aboriginal court has been extended to cover offences by non-Aboriginal residents (provided the non-Aborigine is not resident as a requirement of his employment).
But these changes may be formal rather than real, especially given the history of the courts on reserves. Moreover the question of local control over the courts cannot be divorced from the basic issue of the control exercised by the Department of Community Services under the Community Service (Aborigines) Act 1984. Formally, at least, that Act took some steps towards establishing Aboriginal reserves as local government areas under Queensland law. But the relationship between the powers of Aboriginal councils in trust areas, and the powers of ordinary local government councils in those areas, is confused. Insufficient attention was given to this relationship, and to the appropriate range of local government powers for Aboriginal councils. Until these problems are resolved, the trust areas cannot be regarded as having a proper system of local government.
744. Local Customs and Traditions. The Aboriginal courts do not at present administer any laws which could be regarded as being based on local customs or traditions, though there is a provision prohibiting sorcery (By-law Ch 24.1). However the new legislation provides that:
An Aboriginal court is responsible for the good rule and government of a trust area ‘in accordance with the customs and practices of the Aborigines concerned’ (s 25);
An Aboriginal court shall exercise its jurisdiction ‘having regard to the usages and customs of the community within its area …’ (s 43); and
An Aboriginal court has jurisdiction to hear and determine disputes where no breach of the by-laws, or of the general law, has occurred (s 43(2)(b)).
Again, what these provisions will mean in practice is uncertain, but potentially they allow Aboriginal councils and courts to take Aboriginal ‘customs and practices’ into account, and indeed to incorporate aspects of them into local by-laws. There was no specific provision for this to occur under the previous regime, although some courts took local customs and practices into account at least as an aspect of the ‘local knowledge’ which is a prominent feature of the courts in practice. In this context the power to deal with disputes of a general character occurring within the community is an interesting innovation. Some Aboriginal courts were already performing this function, but it is better that it is specifically provided for. Whether such disputes will be brought before the court remains to be seen: this is likely to depend on the degree of acceptance of the court within the community, and the standing and approach of the local justices.
745. Imposition of Alien Structures and Values. Despite these specific changes, it has been argued that the Aboriginal court system can never operate successfully or effectively:
The Aboriginal court was ineffective primarily because it did not reflect the mores of the local community. The Queensland Government dictated the structure and content of the laws, which stigmatized behaviour that was acceptable to the reserve population under certain conditions e.g., … swearing in public … The purpose of this imposition was to teach Aborigines European values and decorum, and to deter behaviour which Whites found offensive. The administration of justice at Yarrabah provided no such deterrence; it just caused economic hardship.
Because the dominant State Government influence over the court and over the rules it applies is exercised indirectly rather than directly, the court ‘machinery also gives certain Aborigines great power over other Aborigines …’, and its decisions may thus reflect and support particular local interests or groups at the expense of (unrepresented) others.
746. Should the Courts be Retained? It is true that Aboriginal courts had no equivalent in traditional societies. But the Aboriginal courts have now been operating in very much their present form for .20 years, and there is some support for them among Aboriginal residents of the trust areas. It is also true that they have in some cases reinforced or established the authority of court officials within the local community in ways which may not be locally acceptable. On the other hand, as Dr von Sturmer pointed out, the courts do work, though ‘with certain deficiencies. They do create something of a buffer between the white world and the black world …’. Some of the particular criticisms made of the Aboriginal courts have diminished since the new Community Services (Aborigines) Act 1984 (Qld) came into effect. Aboriginal councils have been given, formally at least, greater autonomy in drafting their own by-laws which are enforceable in the Aboriginal court (although none are yet in place). This should resolve human rights violations in the old by-laws. The courts now have greater powers to fine and to impose fine option orders (e.g. community work), although they may no longer imprison. The role played by the Department of Community Services is, apparently, to diminish. The 1984 Act significantly opens up access to the Aboriginal trust areas. No longer are permits required to enter the land. Community Councils are given greater local government powers, though not the full powers under the Local Government Act 1936 (Qld). Queensland Police now have a presence on all trust areas, and in time all will have a magistrate visiting on circuit. Some efforts are being made to establish a training scheme for Aboriginal justices. If the courts are to continue certain requirements must be met. First, the courts must maintain basic standards and be procedurally fair. Secondly, any decision on their continued operation should rest with the Aboriginal communities concerned, which should be able to choose whether they want or need an Aboriginal court, how long the court should operate in its present form, or whether a court such as that at Aurukun is preferable. This may be a difficult decision to make, as courts have been operating in communities for many years and, despite deficiencies and criticisms, they have become an established part of community life. Thirdly, more attention needs to be given to training justices and staff of the courts. And finally the confused relationship between local government powers and the powers of Aboriginal councils under the 1984 Act needs to be addressed, including the question of the appropriate range of local government powers for trust areas.