723. Constitution of the Courts. Aboriginal courts, presided over by Aboriginal justices of the peace, operate in fourteen Aboriginal trust areas (formerly reserves) throughout Queensland. They have existed in substantially their present form for twenty years. Their operation and scope, as well as that of the reserve system itself, have been the subject of recent review, and new legislation has been enacted. The Community Services (Aborigines) Act 1984 (Qld), which repealed the Aborigines Act 1971 (Qld), seeks to create a new regime for the regulation and control of Aboriginal ‘trust areas’, including new provisions for the operation of Aboriginal courts. This new legislation was necessary to support the proposal to grant title to Aboriginal reserve land to Local Aboriginal Councils in the form of a deed of grant in trust. The first deeds of grant in trust were made in November 1985 to certain of the Torres Strait Islands. No grants have yet been made to Aboriginal reserve land. Section 42 of the Community Services (Aborigines) Act 1984 (Qld) enables each trust area to have an Aboriginal court, constituted:
(a) by two justices of the peace each of whom being an Aboriginal resident in the area for which the court is constituted and being entitled to sit as a member of the court in a particular case; or
(a) matters of complaint that are breaches of the by-laws applicable within its area;
(b) disputes concerning matters within its area that are not breaches of the by-laws applicable within its area or of any law of the Commonwealth or the State; and
(c) matters committed to its jurisdiction by the regulations,
and [the court] shall exercise that jurisdiction referred to in provision (a) in accordance with the appropriate by-law having regard to the usages and customs of the community within its area and that jurisdiction referred to in provision (b) in accordance with the usages and customs of the community within its area.
The court thus has a criminal jurisdiction for specified breaches of the Act, regulations and by-laws and a mediation or conciliation role over local ‘disputes’ where there has-been no breach of the general law. It is required to take into account the usages and customs of the community both in exercising its criminal jurisdiction and in resolving disputes. No longer does an Aboriginal court have the power to hear civil cases involving less than $200, a power which, apparently, was rarely if ever used. All persons, Aboriginal or non-Aboriginal, who are residents of an Aboriginal community come within the jurisdiction of the Aboriginal court. But persons who hold an appointment that requires their residence are specifically excluded: this would include many, if not most, non-Aboriginal. residents. Such persons if they breach the local by-laws are to be dealt with by a Magistrate’s Court (s 44).
725. Appeals. For the purposes of appeal the decision of an Aboriginal court is to be treated as if it were a decision of a Magistrate’s court (s 45) so that the ordinary avenues of appeal exist. Under the repealedAborigines Act 1971 (Qld) there was, in addition, provision for an appeal to be made to a district officer and from his decision to the visiting justice or, alternatively, direct to the visiting justice. Thus the former three avenues of appeal have been replaced by one.
726. Procedure under the New Regulations. Regulation 23 of the Community Services (Aborigines) Regulations 1985 provides that the procedures for and the enforcement of decisions of an Aboriginal Court shall be the same as for justices of the peace or magistrates under their respective Acts, depending on whether the case would have been heard before justices or a magistrate. This would appear to require Aboriginal courts to operate with a great deal more formality than they have in the past. It is uncertain how this will operate in practice, or how strictly this requirement will be enforced.
727. By-laws. Section 25 of the Act sets out the functions of Aboriginal councils, which include making by-laws for:
the peace, order, discipline, comfort, health, moral safety, convenience, food supply, housing and welfare of the area for which it is established;
the planning, development and embellishment of the area for which it is established;
the business and working of the local government of the area for which it is established.
In addition a council may make specific by-laws to regulate the entry and residence of persons within a trust area (s 68), and also with respect to a beer canteen (s 76). Some councils have drafted or are in the process of drafting by-laws, but none have yet been approved. A draft set of by-laws based on a local government country shire in Queensland has been circulated by the Department of Community Welfare to councils for their consideration. A similar practice was adopted with the present by-laws: the result was the general adoption of a standard set of by-laws with very little local variation. These bylaws have been the subject of much criticism, based on their intrusiveness, paternalism and (in many cases) triviality.
728. Penalties. A by-law may specify a penalty not exceeding $500 or $50 a day (s 25(6)). No longer do Aboriginal courts have the power to order imprisonment for breach of the by-laws. This was put beyond doubt in Adcock v Puttaburra, ex parte Puttaburra, where Justice Kneipp held that the new Act did not authorise an Aboriginal court to impose a term of imprisonment, and that any by-laws kept in force by the new legislation had to be construed accordingly. An Aboriginal court however has the new power to make a fine option order (reg 24). Thus it can order community work to be done in substitution for a fine. The question whether imprisonment may be ordered for fine default is unresolved. An offence against the Act itself is liable to a penalty of $500 or imprisonment for six months. Such offences would not be dealt with by an Aboriginal court unless the Act specifically provides for this (s 79). The regulations may provide a penalty for breaches of the regulations not exceeding $200 (s 82, reg 27). Until councils draft and have approved new by-laws the existing ones remain in force (so far as these are consistent with the Act and regulations). It is clear that the intention behind the new legislation was that Aboriginal courts would continue to operate, but with more limited powers.
729. Effect of the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth). The operation of the Aboriginal courts has been affected by a number of Commonwealth Acts, the most important being the Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws) Act 1975 (Cth). This Act, the preamble to which states that it was passed for the ‘purposes of preventing Discrimination in certain respects against those Peoples [Aborigines and Torres Strait Islanders] under laws of Queensland’, overrode the then Queensland legislation in a number of important ways. Its effect was to impose certain limitations on the scope of the Queensland Act, regulations and by-laws with respect to:
the management of an Aborigine or Islander’s property (s 5);
the permit system for entering, residing or visiting an Aboriginal reserve (s 6);
penalties imposed on an Aborigine under a law relating to a reserve, including the power of ejectment (s 7);
entry to premises on a reserve (s 8);
legal representation before Aboriginal courts and rights of appeal (s9);
the power to direct a person to perform certain work on a reserve (s 10);
the terms and conditions of employment of Aborigines and Islanders on reserves (s 11).
It appears that in practice the Commonwealth legislation was largely ignored. In any event its provisions were gradually overtaken by changes brought about by Queensland legislation. One important provision of the Commonwealth legislation which is still applicable, however, is the right to legal representation (s 9). The new Queensland legislation does not spell out such a right, and some Aboriginal courts have been reluctant to allow legal representatives to appear.