Reconciliation and Social Justice Library
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THE RECOGNITION OF ABORIGINAL CUSTOMARY LAWS - 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. [176] 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. [177] In general an accused person
can choose whether to appear before the local Aboriginal justices or
the magistrate when on circuit. [178] 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.
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