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Foley, Matt --- "Queensland Aboriginal Communities and 'Services' Legislation" [1982] AboriginalLawB 43; (1982) 1(5) Aboriginal Law Bulletin 3


Queensland Aboriginal Communities and ‘Services’ Legislation

by Matt Foley

In March 1982, the Queensland Parliament passed the Land Act (Aboriginal and Islander Land Grants) Amendment Act which provided for the much-criticized deeds of grant in trust over existing reserve lands.[1] No such deeds have yet been executed. The delay has arisen because the legislation dealing with 'services' to reserve communities has yet to be introduced. Originally scheduled for August, the legislation may be deferred until November, after the Commonwealth Games. The 'services' legislation will repeal the Aborigines Act and the Torres Strait Islanders Act. This was promised by Premier Bjelke-Petersen as far back as November 1980.

The term 'services' has caused confusion. The Deputy Premier, Dr Edwards, has said that the legislation will be introduced 'to provide ongoing government services such as health, eduction and police'[2], but the continued provision of these services requires no special legislation. Despite a number of requests, the Government has not yet announced detailed proposals for the legislation[3]. If the Aborigines Act and the Torres Strait Islanders Act are to be repealed, the following matters at least will require legislation: land use and management, access to reserves, local government, liquor, mining, the administration of law and the Island Industries Board. Clearly the term 'services' is intended to cover a multitude of sins.

Land use and management

The Minister for Lands will have power to refuse approval for the leasing of blocks of land to particular individuals or families: Land Act s.343(l) and 5.343(3). The Minister will have power to cancel a lease if he is satisfied that the conditions are not being met: s.348. The power of the trustees (Aboriginal or Island Councillors) to terminate leases of land would be subject to review by the Minister for Lands: s.347A. The Governor-in-Council will have power to remove any trustee (Aboriginal or Island councillor) from office if it is of the opinion that it is 'in the public interest' to do so: s.340(3).

These provisions place substantial restrictions on the management and use of land. It has been suggested that they may be amended in the 'services' legislation.

Access to reserves

Under existing legislation, Aboriginal or Island councils control the access of persons to the reserves: Aborigines Act s.31(3)(B), Torres Strait Islanders Act s. 36(2), Aboriginal and Torres Strait Islanders (Queensland Discriminatory Laws Act (C'th) S.6. The Premier has indicated that councils would continue to exercise this power.[4] By contrast, the Deputy Premier is reported assaying: 'Normal access will apply except within the privacy of people's own land and homes. Outsiders will be able to go onto the public areas of reserves'.[5]

Local government

Existing Aboriginal and Island councils exercise some of the functions of local government. They are, however, 'responsible to the manager for the conduct, discipline and well-being of Aborigines residing within the reserve or community': Aborigines Regulation 19. This provision is clearly paternalistic. It renders the council completely subordinate to the manager, an officer of the Department of Aboriginal and Islander Advancement (DAIA).

The Minister said to the Parliament that the DAIA would be restructured into a Services Department. Herein lies the litmus test for the 'services' legislation. The DMA's history of paternalistic control renders it a singularly unlikely vehicle for promoting self-management and effective local government.

It is to be hoped that the by-laws currently operating will be reviewed. The current set of archaic provisions seems to have been produced by the DAIA and simply circulated to Aboriginal councils for adoption.[6]

An unpublished document detailing discussions points from a working party of the Aboriginal Advisory Council includes the following proposals:

Liquor

At present beer may be sold through canteens on the reserves, but the Direcor of DAIA may discontinue business on the recommendation of the community council concerned: Aborigines Act s.34, Torres Strait Islanders Act 2.33. Other liquor is prohibited.

The working party of the Aboriginal Advisory Council proposed that the current system of alcohol supply to the communities be continued but continuously reviewed.

Mining

Lands subject to a deed of grant in trust under the Lands Act fall within the definition of a `reserve' under s.7 of the Mining Act. This has important consequences. ft means that the Governor-in-Council has discretionary power to grant a mining tenement or authority to prospect. In exercising that power, the Governor-in-Council is required simply to 'have regard to the views of and any recommendations made by the trustee' of the land in question. The usual protections afforded by the Mining Warden are not available, in comparison with mining on private land where such protection is available (Mining Act s.118).

Current legislation provides for participation in the profits of a mining venture to be carried on in the reserve for the benefit of Aborigines resident on the reserve or for other Aborigines: Aborigines Act s.30(2). Advice from the Lands Department indicates that the 'services' legislation will provide for participation in profit sharing from mining.[7]

Administration of law

Aboriginal courts and Island courts operate on reserves to enforce the by-laws: Aborigines Act s.32, Torres Strait Islanders Act s.42. The Premier has indicated that they will continue.[8] The working party of the Aboriginal Advisory Council has suggested that it would be ultimately of benefit to the communities to abolish the system and have two Justices of the Peace constituting a Magistrates Court (as at Aurukun and Mornington Island). It was suggested this be phased in with a suitable training program.

The working party suggested that Aboriginal police should no longer be under the manager but directly responsible to the Queensland police.[9]

Island Industries Board

This board operates wide-ranging business activities in the Torres Strait. It consists of the DAIA District Officer (who is chairman of the board), two persons appointed by the Governor-in-Council, and three Island group representatives: Torres Strait Islanders Act s.51.

Following an Islander meeting in October 1981, the Island Advisory Council wrote to the Government urging that the IIB should be Islander owned and administered.

The Island Advisory Council has also called for the establishment of a statutory body for the purpose of gradually assuming the present role and function of the DAIA.[10]

Conclusion

The Land Act (Aboriginal and Islander Land Grants) Amendment Act 1982 was rushed through the Parliament in four sitting days with little opportunity for public discussion, particularly among Aboriginal and Islander people. Concern is mounting lest the same indecent haste recur with the 'services' legislation. Several public seminars have been held in recent months.[11] A meeting of Reserve Chairmen and Deputy Chairmen was held at Bamaga on 11 June. Counsel advising the Catholic Bishops, Frank Brennan SJ, who has been visiting the reserves has prepared and widely distributed a seven-page discussion paper in straightforward language outlining the options on the 'services' legislation for use by Aboriginal and Islander communities.

At the time of writing, the Minister for Aboriginal and Island Affairs (and Water Resources) is cruising the Torres Strait in the DAIA vessel Melbidir together with the Minister for Commerce and Industry and the Chairman of the TAB. The purpose of this midwinter cruise through scenic fishing spots is apparently to consult the Islanders. In order to promote this consultation the Premier has publicly directed that proposed visits to the uninhabited islands be excluded from the itinerary.[12]

In the Federal sphere, the private member's Bill moved by Senator Susan Ryan to provide for land rights and self-management for Queensland Aboriginal and Islander communities was passed by the Senate in March and now awaits attention from the House of Representatives.


[1] (1982) 7 Legal Service Bulletin 86 and (1982) 4 Aboriginal Law Bulletin 4.

[2] Courier Mall, 19.3.82, p.3.

[3] E.g. the request for a White Paper on the proposed legislation contained in the submission from the Australian Association of Social Workers (Qld Branch) to the Minister for Aboriginal and Island Affairs, dated 13.4.82.

[4] Media release from the Premier's Department, 13.82.

[5] Courier Mail, 19.3.82 p.3.

[6] Garth Nettheim, Victims of the Law: Black Queenslanders Today, Allen and Unwin, Sydney, 1981, p.113.

[7] Letter from Queensland Department of Lands, 31.3.82.

[8] Op. cit.

[9] Discussion points from the working party of the Aboriginal Advisory Council, p.3.

[10] Report of the Torres Strait Advisory Council, submitted to the Premier of Queensland.

[11] 'Aboriginal Land Rights and Self-Management in Queensland', seminar at All Hallows, Brisbane, 15.5.82; 'Land Rights and Social Justice', seminar at Griffith University 25-26 June, 1982.

[12] Courier Mail, 13.7.82.


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