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THE RECOGNITION OF ABORIGINAL CUSTOMARY LAWS - 746. Should the Courts be Retained?
It is true that Aboriginal courts had no equivalent in traditional societies. But the Aboriginal courts have now been operating in very much their present form for .20 years, and there is some support for them among Aboriginal residents of the trust areas. [192] It is also true that they have in some cases reinforced or established the authority of court officials within the local community in ways which may not be locally acceptable. On the other hand, as Dr von Sturmer pointed out, the courts do work, though 'with certain deficiencies. They do create something of a buffer between the white world and the black world ...'. [193] Some of the particular criticisms made of the Aboriginal courts have diminished since the new Community Services (Aborigines) Act 1984 (Qld) came into effect. Aboriginal councils have been given, formally at least, greater autonomy in drafting their own by-laws which are enforceable in the Aboriginal court (although none are yet in place). This should resolve human rights violations in the old by-laws. The courts now have greater powers to fine and to impose fine option orders (e.g. community work), although they may no longer imprison.

The role played by the Department of Community Services is, apparently, to diminish. The 1984 Act significantly opens up access to the Aboriginal trust areas. No longer are permits required to enter the land. Community Councils are given greater local government powers, though not the full powers under the Local Government Act 1936 (Qld). Queensland Police now have a presence on all trust areas, and in time all will have a magistrate visiting on circuit. Some efforts are being made to establish a training scheme for Aboriginal justices. [194] If the courts are to continue certain requirements must be met. First, the courts must maintain basic standards and be procedurally fair. [195] Secondly, any decision on their continued operation should rest with the Aboriginal communities concerned, which should be able to choose whether they want or need an Aboriginal court, how long the court should operate in its present form, or whether a court such as that at Aurukun is preferable. [196] This may be a difficult decision to make, as courts have been operating in communities for many years and, despite deficiencies and criticisms, they have become an established part of community life. Thirdly, more attention needs to be given to training justices and staff of the courts. And finally the confused relationship between local government powers and the powers of Aboriginal councils under the 1984 Act [197] needs to be addressed, including the question of the appropriate range of local government powers for trust areas.


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