Nettheim, Garth --- "Queensland's New Legislation - Letting Go?" [1984] AboriginalLawB 14; (1984) 1(11) Aboriginal Law Bulletin 10

• Queensland's New Legislation-Letting Go?
• Self-Management

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Queensland's New Legislation -

Letting Go?

by Garth Nettheim

In October, 1980, the Queensland Premier, Mr. Bjelke-Peterson, announced that the much-criticized Aborigines Act, 1971, and Torres Strait Islanders Act, 1971, would be repealed.

In 1982 and 1984 amendments to the State's Land Act established the framework for grants in trust of reserve lands to Aboriginal and Island Councils. The "grant in trust" system as a form of "land rights" has already been analysed by Frank Brennan (AboriginalLB, No. 10, May 1984). He concluded that it should establish substantial security of tenure and inalienability (subject to a power of mortgage); the issue of the integrity of reserve boundaries would not be clarified until deeds were actually issued; and other matters would largely depend on the proposed "services" legislation, namely, controls over access and mining, hunting, fishing and gathering rights, timber and quarry rights, and community self-management.

In April, 1984, the Queensland Parliament enacted the Community Sevices (Aborigines) Act and the Community Services (Torres Strait) Act. The nature of the package to replace the 1971 Acts is now clear and, presumably, deeds of grant in trust will soon be issued in replacement of the old reserve system.

In the recent past the Queensland Government has at least purported to introduce legislation after consultation with leaders of Aboriginal and Islander communities. Similar promises were made on this occasion but the government effectively abandoned any consultation process in 1982. In addition, it kept Aboriginals and non-Aboriginals alike completely in the dark about the detail of the services legislation until it was introduced and rushed through Parliament, after an all-night sitting, on Friday, 13 April (inauspicious date!), 1984.

And yet the community services legislation is not as bad as the 'recitation of these events might suggest. It certainly represents a considerable advance on the 1971 Acts (as amended), just as the Land Act amendments now provide substantial security of tenure for Aboriginal lands. There are indications that the Killoran tradition of paternalistic, bureaucratic control may be beginning to crack and that the Queensland government is almost ready to concede some measure of self-management to Aboriginal and Islander communities.

The Department of Aboriginal and Islander Advancement (DAIA) and its Director will, presumably, have some continuity under the new titles of Department of Community Services and Under Secretary. But significant functions are to be transferred to Aboriginal and Islander bodies.

One major focus of disappointment in the new legislation (not surprisingly) concerns the issue of mining. The 1971 Acts did at least confer on the government discretions as to whether mining activity should proceed on reserve lands and, if so, whether a share of profits should be allocated to reserve residents, or to Aborigines or Islanders generally- (The councils of the shires of Aurukun and Mornington themselves have a voice in such matters under the Local Government (Aboriginal Lands) Act, 1978 (Qld.). By contrast (and despite a recommendation from the Aboriginal Advisory Council's Working Party) the 1984 Acts are completely silent about mining and the 1982 Land Act amendment simply requires the Governor-in-Council to "have regard to the views" of councils. Otherwise there is no recognition of any particular interest of Aboriginals and Islanders' placing Queensland law in conflict with two of the Commonwealth Government's five principles for Aboriginal Land Rights, namely, "Aboriginal control in relation to mining on Aboriginal Land" and "access to mining royalty equivalents".

Another disappointment on a matter ancillary land rights is the very limited recognition of any right of the people to the natural products of the land. A new provision does say that community residents will not be liable to prosecution "for taking marine products or fauna by traditional means for consumption by members of the community". This closely circumscribed right of hunting and fishing is not accompanied by recognition of any gathering rights for plants, timber or quarrying materials and is more limited than the rights accorded to the residents of Aurukun and Mornington Shires in 1978.

Arrangements for access to "trust areas" and "community areas" are radically changed. Prior to the new Acts, most non-Aboriginals and non-Islanders required permits (from Council or Government) to reside on or visit reserves; Aboriginals and Islanders did not require permits but could be excluded by direction of the Council. Under the 1984 Acts access is generally open, subject only to a power ina Council to make by-laws authorising access, or excluding, prohibiting or restricting access, for specified classes of persons. There seems to be no power to exclude individuals as individuals. Any person denied access can require a written notice of reasons; a similar provision in the 1978 legislation for Aurukun and Mornington Island also grants a right of appeal. Communities may welcome the demise of governmental controls over access to their lands but may also wish to have stronger controls themselves as an essential incident of land rights and self-management.

Self-management

In many respects the powers of community self-management are greatly enhanced under the 1984 Acts. The Acts speak of "local government of areas", and enact provisions similar to the State's general local government system. All reserves that become trust areas "shall" have councils which will be elected at the same time as State-wide local government elections.

However, the local government model is incomplete. Whereas Mornington and Aurukun, in 1978, were established as shires in the local government system, the 1984 Acts do not clearly establish the "trust areas" as independent local government units. Presumably, they continue to fall within existing local government areas and to be subject to the powers of the councils of those areas (except in the matter of rating). However, Section 19 of the 1984 Acts effectively disenfranchises from the local government electoral system persons entitled to vote for Aboriginal or Island councils. This appears to infringe Artide25 of the International Covenant on Civil and Political Rights, Article 5(c) of the International Convention on the Elimination of All Forms of Racial Discrimination and section 10 of the Racial Discrimination Act, 1975 (Cth.).

The other major area of disparity between the 1984 Acts and Queensland's general local government legislation arises from the more stringent provisions for State government oversight of Aboriginal and Island Council financial affairs. It is probably that the differences simply reflect the shift to councils of responsibilities formerly imposed on Managers and other DAIA officials. However, Ministerial and departmental controls which are appropriate for public servants are inappropriate to elected community councils. The local government model is a logical model for vesting self-management in Aboriginal and Islander communities, but there has been a failure to carry it through to completion. Again, it would have been better to follow the pattern set in 1978 for Aurukun and Mornington Island by applying the general local government regime with only such modifications as are appropriate to the particular interests of Aboriginal and Islander communities.

Section 23 of the Community Services (Aborigines) Act provides that there shall be an Executive Officer of each Aboriginal Council. This looks like a continuation of the reserve Manager. However, his powers are relatively confined - approval for council use of Departmental personnel and property, for expenditure of money appropriated by Parliament, and for bills of exchange etc. against funds allocated to the council by Paliament. In addition, the office is to continue for only three years. The departure of the dominating figure of the old reserve Manager will provide a powerful stimulus to genuine community self-management.

On the important issue of alcohol, some responsibility is given to councils. However, the Under Secretary's approval is required for the establishment of beer canteens, and he can also require premises to be closed down. The Aboriginal Advisory Council and its Working Party had recommended that the effective decisions be left to individual councils.

Arrangements for co-ordinating councils are different from those under the 1971 Acts. The Aboriginal Co-ordinating Council and the Island Co-ordinating Council comprise all the chairmen of Aboriginal and Island councils. As well as having general advisory powers, they also select four members (one from each geographical division) to an executive commitee; they select members of the Aboriginal Industries Board or the Island Industries Board, and they may apply property for the benefit of communities. Specifically, they are required to report on the operation of the 1984 Acts after four years.

The existing Island Industries Board is retained but with a change in its composition so that four of the seven members will be Islanders. For the first time an Aboriginal Industries Board (with an Aboriginal majority) is established along similar lines, and presumably, it will take over most of the entrepreneurial activities of the DATA.

The chairman and executive officer of the Island Industries Board is, for four years, to be the Thursday Island departmental head. The chairman and executive officer of the Aboriginal Industries Board is, for five years, to be the Under Secretary. After the prescribed periods, the Board members are to choose their own chairman. While some governmental controls remain, there is a definite move towards autonomy. What remains of the old trust fund system for departmental management of peoples' earnings and property, now no longer a matter of compulsion, becomes under the 1984 Act virtually a banking facility for Aboriginals and Islanders who may not have ready access to banks. And the facility may be provided by the Industries Boards as well as by the Department.

Regrettably, the 1984 Acts still retain significant discretionary powers of the Under Secretary in respect to the estates of deceased or missing Aboriginals and Islanders. These powers, even in their current modified form, raise significant human rights problems and would have been better omitted. Fortunately, discretionary departmental powers to supervise transactions have been left out of the new Acts.

Police powers in trust areas and community areas are confirmed. Aboriginal and Island police are to be appointed by councils "with the Minister's approval". Aboriginal and Island Courts are to comprise two Aboriginal/Islander Justices of the Peace or, if they cannot be so constituted, by the members of the Council. It is worth noting that the Aboriginal Advisory Council was unanimously of the view that Councillors should not sit on courts. Jurisdiction is confined to persons who are part of the resident community. There is a right of appeal as though such court were a Magistrate's Court. It is worth noting that the court at Aurukun is a regular Magistrate's Court constituted by Aboriginal Justices of the Peace.

Overall, as noted, there are some advances in the new legislation. But significant problems remain, caused, in large part, by the failure of the Queensland Government to consult with the Aboriginal and Islander people or to heed their proposals. A series of simple amendments could easily transform the new legislation into a genuinely new deal for black Queenslanders.