Beacroft, Laura; Huggins, Jackie --- "The Final Report: Recommendations of the Legislative Review Committee" [1992] AboriginalLawB 17; (1992) 1(55) Aboriginal Law Bulletin 8

• The Final Report: Recommendations Of The Legislative Review Committee

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The Final Report:

Recommendations of the Legislative Review Committee

by Jackie Huggins and Laura Beacroft

In November 1991, the Queensland Minister for Family Services and Aboriginal and Islander Affairs, Anne Warner, agreed in principle to implement the recommendations of the Final Report of the Legislation Review Committee (LRC). The LRC was established by the Qld Government in 1990, and at the conclusion of its work comprised the following members: Eric Deeral (Chairman), Joseph Elu, Mick Connolly, Gladys Tybingoompa and Jackie Huggins. All of the members reside in Aboriginal and Torres Strait Islander communities in Qld.

The terms of reference required the LRC to consult extensively with Aboriginal and Torres Strait Islander people about community management and to recommend reform of existing legislation. Such legislation in Qld includes the Community Services (Torres Straits) Act 1984, the Community Services (Aborigines) Act 1984 and the Local Government (Aboriginal Lands) Act 1978. These Acts established community governments for Aboriginal and Torres Strait Islander areas which are modelled on mainstream local governments, but with inferior powers. The legislation also attempted to provide for Aboriginal and Islander courts, community police and a power for Councils to make bylaws consistent with community customs. However it was not well thought out or resourced adequately. The community courts, police and the by-laws could not work to the satisfaction of many of the communities they were serving. The legislation also -disenfranchised all residents in Aboriginal and Torres Strait Islander areas from mainstream local government elections. If these residents voted in such elections today, it is likely that local governments in Cape York, the Torres Strait, Burke and Carpentaria would be controlled by their vote. The existing legislation has been criticised by Aboriginal and Torres Strait Islander people and human rights agencies ever since its enactment.

The Terms of Reference for the LRC's work required two reports. The first report focused on making changes to current legislation prior to the then forthcoming Aboriginal and Torres Strait Islander Council elections. After parliamentary debate, primarily centred on the LRC's recommendations about broadening jurisdiction of the Aboriginal and Islander courts, the Government amended the legislation substantially in accordance with the recommendations of the Committee's Stage 1 Report. The major amendments were as follows:

• The jurisdiction of community courts was widened to cover non-Aboriginal and non-Islander offenders in Aboriginal and Torres Strait Islander areas.
• Repeal of some paternalistic provisions which allowed government interference in administration, community courts and finances were repealed.
• Provision for councils to employ community rangers with responsibilities for protection of natural resources, but no power of arrest.
• Councils were given power to make by-laws for possession and consumption of alcohol.
• The definitions of 'Aborigine' and 'Torres Strait Islander' were changed to a race or descent test - and thus councillors for an area must now be of indigenous descent.

The next stage of the review required the LRC to recommend legislative reforms about 'community management arrangements on Aboriginal and Torres Strait Islander communities.' The terms of reference were not restricted to those communities already covered by existing legislation.

In the middle of this stage of the LRC's work, new land legislation, which established a procedure for claims by indigenous people in Qld, was enacted. This was not well received by many indigenous people largely because of the restricted definition of 'claimable' land under the legislation. Land tenure was not within the terms of reference of the LRC but the land legislation impacted on its work. In the Final Report the LRC recognised that a significant portion of indigenous people would have difficulty claiming land and made recommendations which might nonetheless give them more meaningful input into land use and other decisions which affect their communities. Also, the land legislation pre-empted some matters which might otherwise have been within the LRC's terms of reference. Most importantly, successful claimants under the land legislation will have significant powers and responsibilities in some matters related to community management for their area such as land use, planning and development decisions, and possibly access. The LRC's final recommendations were not inconsistent with the rights, functions, powers and responsibilities of land owners under the land legislation.

The Final Report outlines the LRC's consultations throughout Qld with indigenous people and community councils, agencies and organisations, and government bodies. A discussion paper - Towards Self-Government - was released, and generated considerable discussion. The Final Report was released in November, 1991. It emphasised that consultations had shown that the minimum aspiration of communities is stable community management which enables them to have equal participation in government and which recognises their special cultural, historical and indigenous concerns. The major theme of the Report was that indigenous communities are diverse with regard to history, custom, size, land tenure, community identity, cohesiveness and aspirations for the future, and any legislative package must be flexible enough to accommodate this diversity. The LRC's recommendations reflect these findings and are as follows:

• That new legislation - called the 'Aboriginal Community Government Act' and the 'Torres Strait Islander Community Government Act' - be enacted. Existing legislation should be preserved until, and if, a community opts for the new legislation. The major initiative of the new legislation is that it allows Aboriginal and Torres Strait Islander communities to develop and adopt a community constitution. This constitution determines community management structures, procedures and powers, and many other important matters. It is adopted and amended by a referendum of the voters in that area.
• That community structures be modelled in ways suited to any particular community's needs and aspirations. In order to assist communities to develop their constitutions, it was recommended that models be available. The three main models suggested are: a single council structure, a two-tiered council structure and a confederation structure.
• That community structures have broader powers than are currently available including: 'administration of justice, policing and correctional institutions', 'preservation and management of natural resources' and 'education' in the area.
• The granting of certain extra powers and functions to community government structures would be preceded by a period of negotiation between communities and relevant government bodies, and the development and acceptance by all parties of a community development plan for the particular power or function being 'handed back'. There would be statutory procedure whereby reluctant government departments and agencies could be required to enter into negotiations about the 'hand over' of powers.
• The major recommendation, concerning a community government constitution, is confined to communities with community title to land. 'Community title' would be defined broadly to include a leasehold from ATSIC.
• A procedure for creation of a new community government areas and boundary review. The LRC recommended that there be a procedure whereby Aboriginal and Islander communities can be granted community government status, mainstream local government status, divisional status within a mainstream local government area or have their community government boundaries increased. The boundary review would be for the purpose of determining the area under the control of a community government structure and would not affect land tenure, although land tenure would be a relevant consideration in a boundary review matter. Special procedures and criterion should apply in such matters to ensure Aboriginal and Torres Strait Islander community participation and recognition of their special concerns. The reality is that these communities are the fastest growing in remote QId, yet their community government areas are a small fraction of the regions. The purpose of the procedure is to ensure that demographic needs - and also cultural, social and historical concerns - are met by the electoral system in QId. The Electoral and Administrative Review Committee (EARC) simultaneously addressed the issue of boundary review and made recommendations consistent with the LRC's. Those communities in QId which already exercise local government functions, and Old Mapoon, would not be required to apply for community government status. The committee recommended that these communities be able to develop their community constitutions after a referendum of voters in the area opts for the new legislation. Also, divisions within community government areas (as opposed to mainstream local government areas) would be an internal matter for the community and spelt out in the community constitution.
• A number of recommendations were made concerning criminal justice issues including: community policing, community courts, recognition of customary law and juvenile justice. These recommendations were intended to provide 'a step in the right direction, and are largely directed at improving legislative and financial support for developments and initiatives in the area of criminal justice which are supported and controlled by communities.

At this stage the Qld Government has not acted on the Report. Other forces, especially the Royal Commission into Aboriginal Deaths in Custody, have led to some changes consistent with the Report. This year, $535 000 will be spent on training for State and community police in QId. Also, training is already in place or being developed for the following:

Mediation officers and justices of the Peace (Magistrates Court) for community areas, by the Attorney-General's Department.

Rangers for community areas and National Parks, by the Department of Environment and Heritage under the proposed Nature Conservation legislation in Qld.

Returning officers for community areas, by the State Electoral Office.

Copies of the LRC's Report can be obtained from the Division of Aboriginal and Islander Affairs, Dept. of Family services and Aboriginal and Islander Affairs, 35 Charlotte St, Brisbane, [phone].