Nettheim, Garth --- "Smallwood v Queensland and Mulgrave Shire Council" [1985] AboriginalLawB 43; (1985) 1(14) Aboriginal Law Bulletin ?

• Smallwood V Queensland And Mulgrave Shire Council
• Racial Discrimination Act, 1975 (Cth), S. 10-Community Services (Aborigines) Act, 1984 (Qld), S.19 (B)-Local Government Act, 1936-1984 (Qld)-Whether Exclusion From Voters’ Roll For Local Government Area Of Persons On Voters’ Roll For Trust Area Constitutes Racial Discrimination.

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Smallwood v Queensland and Mulgrave Shire Council

Racial Discrimination Act, 1975 (Cth), s. 10 - Community Services (Aborigines) Act, 1984 (Qld), s.19 (b) - Local Government Act, 1936-1984 (Qld) - whether exclusion from voters’ roll for local government area of persons on voters’ roll for trust area constitutes racial discrimination.

Smallwood v Queensland and Mulgrave Shire Council

Supreme.Court of Queensland Civil Jurisdiction (Kelly J.) Cairns

27 March 1985

Casenote by Garth Nettheim

The Community Services (Aborigines) Act, 1984 (Qld.), makes certain provisions for trust areas i.e. former Aboriginal reserves or communities to be subject to deeds of grant in trust under the Land Act 1962 (Qld) as amended in 1982 and 1984. Under s. 19 of the Community Services legislation, land in such an area is not rateable land under the Local Government Act,1936-1984 (Qld.).. In addition, under s. 19 (b) a, person whose name is properly on a voters' rolll for the purpose of an election of an Aboriginal Council shall not be entitled to vote at elections of the Local Authority of the Area of which the area of the Aboriginal Council forms a part.

Plaintiff was a resident of Yarrabah area within the boundaries of Mulgrave Shire Council. His name, and the names of some 700 other Yarrabah residents, were not included in the Shire voters' roll for triennial local government elections to be held on 30 March. He sought a declaration that 5.19 (b) was invalid for inconsistency with s. 10 of the Racial Discrimination Act, 1975 (Cth). He also sought injunctive relief.

The action was unsuccessful. Kelly J. considered a number of provisions of the Community Services Act; and concluded:

It is apparent that what has been effected by the Community Services Act is the establishment of a separate system of Local Government for trust areas as defined by the Act.

His Honour noted that there were similarities but also differences between provisions of the Community Services Act and corresponding provisions of the Local Government Act. However

.. there is nothing to indicate that the system established by the Community ServicesAct is in anyway inferior to that existing under the Local Government Act. Whilst the Community Services Act does not expressly provide that a local authority constituted under the Local Government Act shall not have jurisdiction within a trust area governed by an Aboriginal Council, in my view this is a necessary implication, as it is apparent that the two authorities could not operate within the same area.

He concluded, accordingly, that

... it could not be said that Aborigines as defined by the Community Services Act resident within a trust area do not thereby enjoy any right that is enjoyed by persons who are not Aborigines, or that they enjoy any right to a more limited extent than persons who are not Aborigines.

He added that Regulation 6 of Community Services (Aborigines) Regulations 1985, incorporates the relevant provisions of the Local Government Act so that the voters' roll for a trust area is compiled on a geographical basis and not on a racial basis.

Kelly J. dismissed the motion, gave judgment for the defendants. and ordered the plaintiff to pay the defendants' costs.

(For earlier comment on the Community Services legislation, see 11 AboriginalLB (August 1984) 1, 4, 5, 9-11).