The Operation of the Aboriginal Courts

734. The Commission’s Field Work. No extensive study has been done on the operation of the Aboriginal courts in Queensland, and there is very little published information on how they work in practice. While there are 12 Aboriginal trust areas in Queensland entitled to conduct Aboriginal courts,[1034] the number that actually do, and the regularity of court sittings, are unknown. Nor is there any regular statistical information available on offences heard or penalties imposed by the Aboriginal courts. As a result some caution must be exercised in assessing the statistics that are available. It cannot be assumed that these give a clear picture of the situation throughout Queensland. Commission staff visited Aboriginal communities in North Queensland in 1979, 1981 and 1984.[1035] During the 1979 and 1984 visits, the Aboriginal courts were seen in operation and court records were examined. The new legislation was in force during the 1984 visit but the old by-laws and regulations still operated. Thus the courts worked very much as they had done in 1979. The following observations are made on the basis of these visits and other information available to the Commission.

735. Range of Offences. Four offences, all set out in Chapter 4 of the By-laws (‘Conduct and Behaviour’) are almost exclusively the source for charges in recent years:

  • being under the influence of alcohol;

  • behaving in a disorderly manner;

  • assault; and

  • gambling.

The vast majority of offenders were charged with the first two of these offences. For example at Kowanyama Aboriginal Court in June 1984, 173 offenders (some repeat offenders) came before the court. Nearly all the offenders faced charges of being under the influence of alcohol (usually fined $5) and behaving in a disorderly manner (usually fined $10) although in addition there were 17 charges of assault and 11 of gambling. There were 30 pleas of not guilty to one or other of the offences charged. At Edward River Aboriginal Court in June 1984 65 offenders appeared. Of these 17 faced the charge of being under the influence of alcohol, and 44 of disorderly conduct. In contrast to Kowanyama only two faced both charges. Most, probably all, of the disorderly behaviour charges related to alcohol, but two charges were specifically identified as involving damage to property. In these cases restitution of $10 and $80 was ordered to be paid. In addition, 5 persons were charged with breaching the regulations by possessing alcohol in the trust area. All were banned from the beer canteen for three weeks.

736. Appeals. Appeals are rare.[1036] There is general ignorance both of the right of appeal and the procedure required. As well, access to the appellate courts is in most cases difficult. Those communities which are part of a magistrate’s court circuit have more ready access but, depending on the timing of the circuit, travel may be necessary. Given the limited penalties the Courts may impose, many regard an appeal as not worth the trouble.

737. Charges Heard, Court Sittings. There is great variation in the number and regularity of court sittings between the different communities, and also in the number of charges heard. For example at Kowanyama, Yarrabah and Palm Island during 1984 the court sat approximately three days a week and heard approximately 10-30 cases at each sitting.[1037] At Edward River the court sits as required, usually twice a week. During the first six months of 1984 the court heard 486 cases.[1038] At other communities the courts sit less regularly: at Lockhart River only on Friday afternoons if required, and at Weipa South not even on a weekly basis.[1039] Many factors account for these variations, including the significant population differences between the communities, the fact that in some communities the existence and operation of the court has become more institutionalised, differing local attitudes to the effectiveness of the court in resolving disputes and punishing offenders, the presence in particular communities of individuals with. sufficient strength or community acceptance to comprise the court, and the attitude of the executive officer or resident police officers to the operation of the court.[1040]

738. Penalties. While the powers of Aboriginal courts with respect to penalty is strictly circumscribed,[1041] there are variations in practice between them. The most common penalty is a fine, but in the larger communities until the end of 1984 the local gaol was still used regularly. In some communities being sentenced to a number of days in the lock-up meant community work in the day-time and spending only nights in the lock-up. To some extent this depended on an offender’s willingness to participate. Other communities had no system of community work and offenders spent all their time in the lock-up.[1042]







Possessing alcohol in breach of regs




$5 or $10


Edward River



$40 or 3 week ban from beer canteen.



$10 or $20


Palm Island



If repeat offenders a number of days in lock-up


If repeat offenders a number of days in lock-up



  • There is an overlap between ‘disorderly’ and ‘assault’. Persons fighting might be charged with either one. For some communities both were used, in others only one.

  • While gambling occurs in most communities it rarely is the basis of a charge before the Aboriginal court.

  • Cumulative charges or repetitive offenders are also likely to be barred from the beer canteen for a period of time or to get a number of days in the lock-up.

739. Procedure. Aboriginal courts have tended to develop their own procedures and there is considerable variation. Some courts (e.g. Yarrabah) have relatively formal procedures (including formal presentation of evidence, the administration of an oath to witnesses, etc.); others have little if any organised procedure. But one consistent feature is the absence of legal representation. Although Commonwealth law confers a fight to legal representation,[1044] in practice this is discouraged.[1045] These informalities can lead to difficulties. For example at Palm Island in a number of cases witnesses who admitted their involvement in a fight leading to a charge against another person of behaving in a disorderly manner were themselves convicted and sentenced, after a brief opportunity to explain their side of the story.[1046] The reasons for variations in procedure are not clear, though the role played by the executive officer (formerly manager) and the Queensland police stationed in communities is an important factor. Some Aboriginal courts are largely left to run themselves; others have only in recent years had resident Queensland police.[1047] This may change if the new regulations are fully enforced.[1048]

740. The Special Situation of Aurukun and Mornington Island. In 1978 the status of Aurukun and Mornington Island communities was altered from Aboriginal reserve to local government shire. This came about following a dispute involving the Uniting Church (which had been responsible for administration of the communities), the DAIA, and the Queensland and Commonwealth Governments. The Commonwealth Government’s reaction was to enact the Aboriginals and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 (Cth) for the purpose of enabling specified Queensland reserves and communities to control their own affairs independently from Queensland law and administration. The Queensland Parliament retaliated with the Local Government (Aboriginal Lands) Act 1978 (Qld). Later the same year an amending Act was passed abolishing the status of Aurukun and Mornington Island as reserves and making them local government areas subject to the Local Government Act 1936 (Qld). No longer were they subject to the Aborigines Act 1971 (Qld), its regulations or by-laws. Hence the Aboriginal courts ceased to operate, and both communities became subject to the Magistrates Court Act 1921 (Qld) and the Justices Act 1886 (Qld). In consequence the 1978 Commonwealth Act, which by its terms applied only to reserves, did not apply to the two communities. One result of this change of status was that from 1979 Aboriginal justices of the peace have comprised a court and exercised all the powers available to justices, a situation which has created the potential for heavier penalties and greater involvement by the Queensland police than in the Aboriginal courts on reserve or trust land. Aboriginal justices still sit as a court at Aurukun, but justices no longer sit at Mornington Island where all cases are heard by a visiting magistrate. Aurukun thus has a dual system: a local court of justices and the magistrate’s court sitting on circuit. The justices court at Aurukun is a court of record so that convictions before the court may be relied on in other courts in Queensland, whereas the records of Aboriginal courts do not have this status. This also means that the sentencing powers of the justices are much greater than in an Aboriginal court. Prosecutions are conducted by the Queensland police and the paperwork involved is the same as other lower courts in Queensland, although the procedures are more flexible and less formal.[1049] The courts are restricted to dealing with charges of offences against the general law of Queensland, neither shire having yet managed to get into place local government by-laws.[1050] In general an accused person can choose whether to appear before the local Aboriginal justices or the magistrate when on circuit.[1051] One interesting innovation at Aurukun is the use of banishment. Offenders are ordered to spend a period of time at one of the outstations and not to come into the community during this time. The Queensland police assist to enforce these orders.