Bracegirdle v Aurukun Shire Council
[2009] QMC 26
•10 December 2009
LOCAL GOVERNMENT (ABORIGINAL LANDS) APPEALS MAGISTRATE
CITATION:
Bracegirdle v Aurukun Shire Council [2009] QMC 26
PARTIES:
DANIEL LUKE BRACEGIRDLE
(appellant)
v
AURUKUN SHIRE COUNCIL
(respondent)
FILE NO/S:
MAG240377/09(8)
DIVISION:
Magistrates Courts
PROCEEDING:
Appeal under section 24(2) of the Local Government (Aboriginal Lands) Act 1978
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
10 December 2009
DELIVERED AT:
Brisbane
HEARING DATE:
10 December 2009
MAGISTRATE:
Judge Butler SC, Chief Magistrate
ORDER:
1. The appeal is allowed.
2. The decision of the respondent of 14 August 2009 that the appellant be given notice to remove himself from the Shire of Aurukun forthwith and not re-enter the Shire for a period of six (6) months is set aside.
3. The notice of eviction dated 14 August 2009 giving effect to the decision of the Council is set aside.
4. No order is made as to costs.
CATCHWORDS:
ABORIGINALS – restrictions on non-aboriginals residing on aboriginal land - where limited classes of persons authorised to reside in Shire and a person intermarried with a local Aboriginal person is authorised - whether the term “intermarried” is confined to those who have entered into a registered marriage under the Marriage Act 1961 (Cth) – whether those in a genuine domestic relationship are “intermarried” within the meaning of the Act – power of Council to remove a person from the Shire
PRACTICE AND PROCEDURE - COSTS – whether Local Government (Aboriginal Lands) appeals magistrate has power to award costs – whether Uniform Civil Procedure Rules 1999 apply to appeals under the Local Government (Aboriginal Lands) Act 1978
Local Government (Aboriginal Lands) Act 1978
Judicial Review Act 1991
Judicial Act 1903 (Cth)
Acts Interpretation Act 1954
Uniform Civil Procedure Rules 1999
Justices Act 1886
Wyatt v Albert Shire Council [1987] 1 Qd R 4
Hurley v Clements Ors (No 2) [2009] QCA 207
COUNSEL:
P Morreau for appellant
DJ Campbell SC for respondent
SOLICITORS:
Boe Lawyers for appellant
Bottoms English Lawyers for respondent
Introduction
The appellant is a non-aboriginal man who has resided in the Shire of Aurukun for the better part of 10 years during which time he has maintained a defacto relationship with an Aboriginal resident of that Shire.
He appeals against a decision of the respondent Shire Council directing him to remove himself from the Shire and not re-enter it for a period of 6 months.
The respondent gave that direction in the belief that the appellant was not authorised to enter in, reside in or be in the Shire of Aurukun pursuant to the provisions of sections 19 and 20 of the Local Government (Aboriginal Land) Act 1978 (“the Act”)[1]. The appellant asserts that he has “intermarried with an Aborigine who is authorised…to reside in the Shire of Aurukun” and is thus authorised by s 19(f) of the Act to reside and remain in the Shire.
[1] Exhibit “MFV-5” to Affidavit of Melody Valentine, filed 25 September 2009.
The appeal
The Appeal is brought under s 24(2) of the Act. That subsection provides a right of appeal to a magistrate appointed as a Local Government (Aboriginal Lands) Appeals Magistrate. The Governor-in-Council on 8 October 2009 approved my appointment as a Local Government (Aboriginal Lands) Appeals Magistrate (“the appeals magistrate”) under s 24(3) of the Act.
The appellant’s solicitors by letter dated 15 October 2009 sought on behalf of their client that the Notice of Appeal and supporting affidavits filed on 25 September 2009 be received by me as appeals magistrate for the purpose of determining his appeal under the Act. I then proceeded to receive the material and hear the matter in accordance with s 24(4) and (5) of the Act.
In accordance with directions given under s 24(4) the parties filed affidavits supplying information to enable determination of the application.
The appeal proceeded upon the information furnished by the parties and is in the nature of a hearing de novo. When satisfied, upon the information furnished, of the facts of the case the appeals magistrate may make an order in accordance with law.[2]
[2]Local Government (Aboriginal Lands) Act 1978 s 24(5)
The amended grounds of appeal of the Appellant raised five grounds; two grounds having been discarded.
Grounds of appeal
a) The decision was ultra vires.
Particulars
(i) The Appellant is the de facto partner of Sharon Ngallamatta.
(ii) They have been in a de facto relationship, living in the Shire, for approximately ten (10) years.
(iii) Ms Ngallamatta is authorised to reside and remain in the Shire by virtue of section 19(a) of the Act.
(iiiA) The Appellant has been accepted by his partner, his partner’s family and the Aurukun community, as being married to Ms Ngallamatta.
(iiiB) To the extent the Act operates to discriminate against the Appellant on the grounds of his marital status, it is constitutionally invalid, under section 109 of the Constitution, as being inconsistent with the operation of a federal statute, namely, the Sex Discrimination Act 1984 (Cth).
(iiiC) The Act can be interpreted in such a way as to operate validly.
(iv) In the circumstances, the Appellant has “intermarried with an Aborigine who is authorised … to reside in the Shire of Aurukun” and thus is authorised to reside and remain in the Shire by section 19(f) of the Act.
(v) The Respondent’s power to remove persons from the Shire is set out in section 23 of the Act. Section 23(1)(a) provides that removal can only relevantly occur in respect of persons “there without authority conferred by this Act or by the local laws of the council.”
(vi) In the circumstances, the Respondent has no power to remove the Appellant.
(vii) The Respondent did not have the power to order the ‘temporary removal’ of the Appellant under the Act.
b) The decision involves an error of law.
Particulars
(i) The Respondent’s formal reasons of 4 September 2009, provided under section 24(1) of the Act (‘the reasons’), state that the decision was made because the Appellant is not authorised to reside in the Shire under section 19 of the Act.
(ii) In the circumstances set out under Ground (a), this decision involves an error of law.
c) (no longer pursued)
d) The respondent has failed to exercise its own power to consider authorising the appellant to reside and remain in the Shire of Aurukun.
Particulars
(i) The reasons state that the decision was made because the appellant is not authorised to reside in the Shire under section 19 of the Act.
(ii) Section 21(1)(a) of the Act empowers the respondent to make local laws that authorise persons of a specified class to enter, be in or reside in the Shire.
(iii) Section 13 of the Aurukun Shire Council Local Law No. 1 (Administration) provides that the respondent “may authorise a person to exercise the powers of an authorised person under a local law.”
(iv) The Act otherwise envisages that the respondent has the power to authorise persons to reside and remain in the Shire under its local laws, e.g. sections 19(c), 19(e), 23(1)(a) and 25(1).
(v) In making the decision by reference only to authorisation under the Act, the respondent has failed to exercise its own power to consider authorising the appellant to reside and remain in the Shire.
e) The decision was an improper exercise of the respondent’s powers under section 23 of the Act.
Particulars
(i) In providing the appellant notice of the decision, the respondent met with the appellant and caused its lawyers to write to the appellant in the following terms, on 20 August 2009:
“The meeting was facilitated by them to give me the opportunity of explaining to you the position we were instructed to put on behalf of the democratically elected Council. In short this was that notwithstanding your view that you were a part of the community, Council was of the view that you came from the mainstream outside community and that you should not be involving yourself in politics within the community itself. We suggested to you that, whilst we had no instructions to that effect, if you were to put to the Council that you would give an undertaking not to involve yourself in Aboriginal politics, we would raise with them the possibility of suspending the operation of their resolution so that you could remain in the community.”
(ii) These communications reveal the respondent’s underlying reasons for making the decision.
(iii) The respondent’s powers under section 23 of the Act must be exercised according to law.
(iv) The appellant’s political activities are irrelevant to such a decision.
(v) In the circumstances, the decision was made for a purpose other than that for which the power was conferred.
(vi) In the circumstances, the decision was unreasonable.
(vii) In the circumstances, the decision represents an abuse of power on the part of the respondent.
f) The decision was unreasonable in that the respondent failed to have any or any proper regard to the appellant’s circumstances, including those of his partner and child.
Particulars
(i) The appellant has resided in the Shire for approximately ten (10) years.
(ii) He was first authorised to reside in the Shire by the respondent in or about July 1999.
(iii) Alternatively, the appellant came to believe he was authorised to reside in the Shire by the respondent’s conduct towards him in or about July 1999.
(iv) The appellant is the de facto partner of Sharon Ngallamatta, who has traditional and customary ties to the Shire and is authorised to reside in the Shire under the Act.
(v) They have been in a de facto relationship, living in the Shire, for approximately ten (10) years.
(vi) The appellant and Ms Ngallamatta are foster parents of a five year old child, Erica Kelinda.
(vii) The appellant has familial responsibilities for Ms Ngallamatta, her mother and their foster child.
(viii) In particular, the exclusion of the appellant has meant that he has been unable to care for his partner and child, and has not seen them for over a month. He has been unable to contribute to the day to day care of his child and the financial and non-financial maintenance of his household.
(ix) The appellant runs a business, Wik Media Pty Ltd, which has had a number of ongoing jobs placed on hold and up to six casual employees left without work. His ability to provide for his family financially is also being jeopardised while the business is on hold.
(x) The impact of the decision is having a lasting effect on his relationship with his foster daughter.
(xi) The respondent is aware of the particulars listed above, given that it is a small community and the familial, social and business ties between members of the respondent and the appellant and his family.
(xii) In all the circumstances, the respondent’s decision was unreasonable in that the respondent failed to give any or any proper regard to these circumstances.
The Appellant’s principal argument is that he is authorised to reside in the Aurukun Shire by virtue of his being “intermarried with an Aborigine” who is authorised to reside there.[3] The Appellant contends that the term “intermarried” in the Act should be interpreted to “include persons who have formed a genuine domestic relationship or common law marriage.”[4]
[3] Ibid s19(f)
[4] Appellant’s submissions in reply, para 1.
Legislation
The Local Government (Aboriginal Lands) Act 1978 (“the Act”) provides for the creation of local government areas at Aurukun and Mornington Island. This appeal is only concerned with the Aurukun area. The Act provides for the Governor-in-Council to grant a lease of the whole Shire of Aurukun to the Council of the Shire, a local government within the meaning of the Local Government Act 1993: ss 3(1) and s 9 of the Act.
The Act specifies who is authorised to enter or reside in the Shire:
“19 Right of residence in shires
The following persons are authorised to enter, to reside in and to be in the Shire of Aurukun or the Shire of Mornington—
(a) an Aborigine who on 5 April 1978 was lawfully entitled to reside in the Aurukun Reserve or, as the case may be, the Mornington Reserve;
(b) a descendant of an Aborigine referred to in paragraph (a);
(c) an Aborigine who at any time lawfully resided in the Aurukun Reserve or, as the case may be, the Mornington Reserve or in the Shire of Aurukun or, as the case may be, the Shire of Mornington and who has obtained the approval of the council of the shire concerned to return to reside in the shire;
(d) a descendant of an Aborigine referred to in paragraph (c);
(e) a descendant of an Aborigine who, if the Aborigine had obtained the approval of the appropriate council would be an Aborigine referred to in paragraph (c), which descendant has obtained the approval of the council of the shire concerned to reside in the shire;
(f) a person, other than one referred to in paragraphs (a) to (e), who intermarries or has intermarried with an Aborigine who is authorised or becomes authorised to reside in the Shire of Aurukun or, as the case may be, the Shire of Mornington; ……”
In addition persons may be authorised by a local law to enter or reside in the Shire:
“21 Local laws may regulate presence in shires
(1) Each of them the Council of the Shire of Aurukun and the Council of the Shire of Mornington may, pursuant to its power to make local laws conferred by the Local Government Act 1993 as modified by this Act—
(a) make local laws that authorise persons of a class specified therein to enter, to be in or to reside in its area; and
(b) make local laws not inconsistent with this Act that exclude persons of a class specified therein from its area or prohibit or restrict persons of a class specified therein from entering, being in or residing in its area”
It is accepted that the respondent has passed no such local law.[5]
[5] Affidavit Neville Pootchemunka, 11 November 2009, para 11
A person not authorised to enter or reside is prohibited by law from being in the Shire:-
“25 Person not to be in shires without authority
(1) A person shall not be in the Shire of Aurukun or the Shire of Mornington unless the person is authorised by this Act or local laws of the council of the shire.
(2) A person who is authorised to enter, be in or reside in either of them the Shire of Aurukun or the Shire of Mornington shall not, by reason of that authority alone, be authorised to enter, be in or reside in the other of the said shires.”
A power to remove persons from the Shire is granted to the Council by section 23:
“23 Power of ejectment and control
(1) In addition to all other powers had by it to remove persons from land of which it is lessee, the Council of the Shire of Aurukun and the Council of the Shire of Mornington may cause its agents to summarily remove from its area—
(a) any person who is there without authority conferred by this Act or by the local laws of the council;
(b) any person—
(i) who belongs to a class of person that is excluded from its area by its local laws; or
(ii) who belongs to a class of person whose entry to its area is prohibited by its local laws; or
(iii) who, being a member of a class of person whose entry to, being in or residing in its area is restricted by its local laws, has contravened or failed to comply with the relevant local laws.”
Powers of appeals magistrate
The appeals magistrate’s power is limited by the terms of s24 of the Act. The appeals magistrate may only act on evidence adduced in accordance with the section. When satisfied of the facts, the appeals magistrate may make an order in accordance with law.
In the context of this case the task of the appeals magistrate is limited to determining whether the decision of the respondent to exclude the applicant from the Shire was made in accordance with law.
The appellant has raised the availability of review under the Judicial Review Act 1991 and advanced submissions on administrative grounds. In my view, the respondent is correct in submitting that the processes that apply in an administrative review under the Judicial Review Act 1991 are not available to me under this appeal. The appeals magistrate may only determine whether an order was made “in accordance with law” and is not empowered to consider, as might be the case upon judicial review, whether there has been misuse or abuse of power.
The appellant has submitted that the interpretation of the Act adopted by the respondent is discriminatory and that the Act is therefore constitutionally invalid as being inconsistent with the Sex Discrimination Act 1984 (Cth).
The respondent submits that an appeals magistrate does not have power to determine the constitutional validity of the relevant provision of the Act. I do not agree with that submission. The power to determine whether an order was made “in accordance with law” surely includes determination as to whether the law relied upon to issue the order is constitutionally valid.
I have given consideration to the obligation under s 78B of the Judiciary Act 1903 to issue notices to the Attorney-Generals in a case where a matter arises under the constitution or involves its interpretation. However, s 78B(2) permits a court to proceed to hear matters severable from any matter concerning the constitution. I have proceeded on that basis and, as will appear from my decision, it will become unnecessary to consider the appellant’s submission on constitutional invalidity.
The facts
The appellant first went to Aurukun in 1999. He is not an Aboriginal person. He formed a relationship with Sharon Ngallamatta, a local Aboriginal woman from Aurukun, in August 1999 and they commenced to live together. That de facto relationship has continued to the present. The appellant and his partner have not married but he asserts that he is regarded as her husband in the Aurukun community and is referred to as such in Wik language by the locals.[6] Ms Ngallamatta says that she regards the appellant as her husband and considers that they are married under Aboriginal law.
[6] Appellant’s affidavit, 24 September 2009, para 8
In 2004 the appellant and Ms Ngallamatta took into their home a child, Erica Kelinda, of 6 months of age. Neither has legally adopted the girl who is the daughter of a cousin of Ms Ngallamatta. Miss Kelinda has resided with them and been continuously in their care since 2004. They regard her as their daughter and they are referred to as her parents by others in the community. The child refers to the appellant as “Dad.”
The appellant says that he has lived continuously in Aurukun for the most part of ten years, save for 10 months in 2001-2002 when he and Ms Ngallamatta were residing together in Cairns.
The evidence of Neville James Pootchemunka, Mayor of Aurukun, confirms the general nature of the appellant’s relationship with his partner. Mr Pootchemunka speaks of the appellant having lived in Aurukun “off and on” for the last 10 years but I do not understand this comment to contradict the evidence of the appellant as to the time he has spent in the community.
I accept the evidence of the appellant and Ms Ngallamatta as to the general nature of their relationship. I am satisfied on the balance of probabilities that they are living together as a couple on a genuine domestic basis and are de facto partners within the meaning of that term in s 32DA of the Acts Interpretation Act 1954.
It is common ground that Sharon Ngallamatta is an Aboriginal person lawfully entitled to reside in Aurukun pursuant to s 19(a) of the Act.[7]
Discussion of Grounds (a) and (b): the decision was ultra vires or alternatively, involves an error of law.
[7] Affidavit of Sharon Ngallamatta, para 3; Affidavit of Neville Pootchemunka, para 45; Respondent’s submission, para 8(b).
The resolution of grounds of appeal (a) and (b) turns on a question of law.
The Act provides that a person may only reside in the Shire of Aurukun if authorised “by this Act or local laws of the Council of the Shire.”[8] It is common ground that the Council has passed no relevant local law.[9]
[8]Local Government(Aboriginal Lands) Act 1978, s 25(1)
[9] Affidavit Neville Pootchemunka, 11 November 2009, para 11
The categories of persons who are authorised under the Act to enter and reside in the Shire are set out in Section 19. They include an Aboriginal person entitled to reside there, as is the case with Ms Ngallamatta, and “a person … who intermarries or has intermarried with an Aborigine who is authorised to reside in the Shire.”[10]
[10]Local Government (Aboriginal Lands) Act 1978, s 19(f).
The appellant submits that the term “intermarry” should be interpreted to include persons in a genuine domestic relationship. The respondent submits it is confined to those who have entered into a registered marriage in accordance with the Marriage Act 1961 (Cth).
Ruling
The primary meaning of the term “marriage” in the Oxford English Dictionary is given as:
“1.a. The condition of being a husband or wife; the relation between persons married to each other; matrimony.
The term is now sometimes used with reference to long-term relationships between partners of the same sex.”[11]
[11]Oxford English Dictionary Online. Accessed 15/11/2009.
I find that the de facto relationship between the appellant and his partner did not constitute a registered marriage under the Marriage Act 1961.
While the term “marriage” ordinarily refers to a registered marriage it is susceptible of a broader meaning in some circumstances.
The term used in s 19 of the Act is ‘intermarries.” The Macquarie Dictionary defines intermarry as:
“To become connected by marriage, as two families, tribes, castes, or races … to marry, one with another.”[12]
[12] Macquarie Dictionary, 3rd Ed, 2003, p988
In this definition the focus is on the combination of persons of different backgrounds rather than the institution of marriage.
It is apparent that s19 of the Act is directed to preserving the right of Aboriginal people indigenous to the area and their descendants to reside there and to exclude others not authorised by law to be there. The category of those who are excluded is not expressed in terms of race. It is clear that Aboriginal people from other areas are also excluded.[13]
[13] See s 25(2)
The appellant in his submissions drew attention to the second reading speech upon introduction of this legislation. The minister said the Act “extends to the Aboriginal people of Aurukun and Mornington Island a degree of self-management and control, through local Government, that is not enjoyed by people of Aboriginal extraction anywhere else in Australia.”[14]
[14] R Hinze, Minister for Local Government and Main Roads; 2nd reading speech, 16 May 1978, p 803.
On residency the minister said:
“In respect to giving the councils authority to say who can reside in their areas I would think that everyone (except possibly the honourable member for Wolston and some of his colleagues) accepts that the people of Aurukun and Mornington Island should continue to have some meaningful say in this regard.”[15]
[15] Ibid, at p 844.
As contended by the respondent, the Act recognizes the local Aboriginals’ connection with the land, and seeks to preserve their traditional rights, use and occupancy over the land.[16]
[16] Hansard, p 649
It is clear that the Act was directed to maintaining and strengthening the occupancy rights of the local people, one of whom is Ms Ngallamatta. Should the Act exclude from residence all de facto partners of local people, whether Aboriginal or non-Aboriginal, who are not themselves local Aurukun people, that would operate to the detriment of the local partners and significantly devalue their right of occupancy.
The right to choose one’s place of residence[17] and to maintain a domestic relationship with another irrespective of marital status[18] are well recognized as important human rights
[17] International Covenant on Civil and Political Rights, Article 12.
[18] Discrimination on the basis of relationship status in providing accommodation is prohibited under the Anti-Discrimination Act 1991.
It is accepted that the Act seeks to enhance the rights of the local peoples of Aurukun by excluding outsiders. However, to extend that to exclude persons who are in genuine long term domestic relationships with locals has the potential to seriously impinge upon the rights of many local people.
In my view, a purposive interpretation of the legislation requires that the term “intermarriage” be understood as referring to all those in a genuine domestic relationship and is not limited in meaning to those who have entered into a registered marriage.
Applying that interpretation of the Act, I find that the appellant is a person authorised under s 19(f) to enter and reside in the Shire of Aurukun while he remains intermarried with Ms Ngallamatta.
As the respondent’s power to remove persons from the Shire as set out in section 23 of the Act is limited to persons present “without authority conferred by [the] Act or by the local laws of the council”, the respondent has no power to remove the Appellant.
Traditional aboriginal marriage
The appellant’s submissions also sought to rely on the claim by Ms Ngallamatta in her affidavit that she considered herself married under Aboriginal law. However, no support for that claim other than the longstanding nature of her relationship with the appellant was provided.
On what has been placed before me I am not satisfied as a matter of fact that the relationship between the appellant and Ms Ngallamatta can in any relevant sense be described as a traditional Aboriginal marriage. Accordingly I have not relied on that claim in reaching my decision.
Discrimination on the grounds of “marital status”
Having regard to the view I have taken as to the interpretation of the legislation it is unnecessary for me to consider this submission.
Ground (d): Failure to consider approving the Appellant to reside in Aurukun
It is now unnecessary to consider this ground. In any event, the submission seems to overlook the fact that under s 21(1)(a) the Council may only make a local law to authorise persons of a specified class to enter or reside in the Shire. This would not seem to permit it to authorise an individual to enter or reside.
Grounds (e) and (f): Improper purpose and unreasonable
For the reasons given above I do not possess powers such as would be exercised by a court conducting a judicial review. Furthermore, it is unnecessary to consider these grounds in light of my decision on the question of law.
Costs
The appellant has been successful in his appeal. In that event he seeks an order that the respondent pay his costs of the appeal.
There is no power in a court or tribunal to order costs unless conferred by statute.[19] The full court of the Supreme Court of Queensland summarised the law as follows:
“The power to award costs of proceedings is entirely the creation of statute. Under the general law there was no power of awarding costs. This was true in the common law courts and apparently also in equity: see Re Birkman ex p. Pickering (1860) 1 Q.S.C.R. 14, 15, per Lutwyche J. What is more important, it is equally true of tribunals that are statutory in origin: see R. v. Justices at Brisbane ex p. Zagami (1901) 11 Q.L.J. 81, 83, per Griffith C.J. speaking on behalf of the Full Court.” [20]
[19] Halsbury’s Laws of Australia [325-9415]
[20]Wyatt v Albert Shire Council [1987] 1 Qd R 486 at 488
The appellant submits that the power to award costs is conferred by rule 678 of the Uniform Civil Procedure Rules 1999 (“the UCPR”). That rule applies to costs payable or to be assessed “under an Act, these rules or an order of the court.” Rule 683 which provides for a magistrate to fix or order assessment of costs, is stated as applying to a proceeding before a Magistrates Court.
The appellant correctly points out that the absence of a specific provision to award costs in the primary act is not necessary where the court has power to make an order for costs conferred upon it under the provisions of the UCPR: Hurley v Clements & Ors (No 2).[21]
[21] [2009] QCA 207
The appellant submits that the appeal is a “proceeding in a court” for the purposes of the UCPR and that the appellant should be awarded his costs.
Discussion on Costs
Rule 3 of the UCPR provides as follows:
“3 Application
(1) Unless these rules otherwise expressly provide, these rules apply to civil proceedings in the following courts –
· the Supreme Court
· the District Court
· Magistrates Courts
(2) In a provision of these rules, a reference to the court is a reference to the court mentioned in subrule (1) that is appropriate in the context of the provision.”
The term “Magistrates Court” is defined in s 36 of the Acts Interpretation Act 1954 as:
“Magistrates Court means a Magistrates Court established under the Justices Act 1886.”
The term “magistrate” is defined in that section as:
“a magistrate appointed under the Magistrates Act 1991.”
Sections 22 and 22A of the Justices Act 1886 provide for the continuance of magistrates courts as courts of record and provide that they have civil, criminal and other jurisdiction conferred on them by the Justices Act 1886 and other Acts. The general civil jurisdiction of the Magistrates Courts is set out in the Magistrates Courts Act 1921.
In this case the appeal has been heard by an appeals magistrate appointed by Governor-in-Council pursuant to s 24(3) of the Act. The appeals magistrate is appointed from the ranks of existing magistrates. The power to hear and determine the appeal is conferred on the appeals magistrate, not upon the Magistrates Court established under the Justices Act 1886. Clear words would be necessary to confer jurisdiction upon the court. All references in s 24 are to a magistrate, not to a court.
This conferral of jurisdiction upon a magistrate as distinct from the Magistrates Court has parallels in other legislation such as the Small Claims Tribunals Act 1973[22] and the Queensland Civil and Administrative Tribunal Act 2009.[23]
[22] See s 5
[23] See s 171(2)
It is consistent with the scheme of the Act to provide for a prompt appeal process where the order of the magistrate is final.[24]
[24] S 24(6)(a)
Rule 3 of the UCPR limits the application of those rules to courts, and relevantly the Magistrates Courts. It follows that the UCPR have no application in this case.
If I am to have a power to order costs it must be found in the Act under which I received jurisdiction to hear the appeal. No explicit conferral of a power to award costs is to be found in the Act or the Regulations under the Act. The appeals magistrate is given power to “make such order as appears to the magistrate to be in accordance with law.” However that extension of power is in the context of the magistrate seeking and considering factual information relevant to determining “the matter of the application.” I conclude that those words are insufficient to confer a power to award costs.
In the result the appellant’s application for an award of costs cannot succeed.
Conclusion
The appellant seeks an order setting aside the respondent’s decision and a declaration that the respondent is authorised by s 19(f) of the Local Government (Aboriginal Lands) Act 1978 to reside in Aurukun.
As I have indicated, I find that the applicant, being a person intermarried with an Aboriginal person entitled to reside in the Shire of Aurukun, is authorised under s 19(f) to enter and reside in that Shire. Accordingly, I propose to set aside the decision of the Council that he be given notice to remove himself and to set aside the notice of eviction issued on 14 August 2009.
The appellant has advanced no submissions on whether an appeals magistrate has jurisdiction to make a declaration. Furthermore, I am not persuaded that having regard to my reasons for decision a declaration is required to preserve the rights of the appellant. In all the circumstances I do not propose to make a declaration.
Orders
1. The appeal is allowed.
2. The decision of the respondent of 14 August 2009 that the appellant be given notice to remove himself from the Shire of Aurukun forthwith and not re-enter the Shire for a period of six (6) months is set aside.
3. The notice of eviction dated 14 August 2009 giving effect to the decision of the Council is set aside.
4. No order is made as to costs.
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