Local Government (Aboriginal Lands) Act Amendment Act 1978 (Qld)

743 ^^.lC>`Q11^^cC2T^ ANNO VICESIMO SEPTIMO ELIZABETHAE SECUNDAE REGINAE No. 87 of 1978 An Act to amend the LocalGovernment (Aboriginal Lands)Act 1978 in certain particulars and for other purposes [ASSENTED TO 15TH DFcEtin3ER, 19781 BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Assembly of Queensland in Parliament assembled, and by the authority of the same, as follows:- PART I-PRELIMINARY 1. Short title . This Act may be cited as the Local Government (Ahoriginal Lands) Act Amendment Act 1978. 2. Commencement of Act. This Act or the provisions of this Act specified in the Proclamation shall come into operation on a day or days proclaimed by the Governor in respect of this Act or. as the case may be, those provisions.

744 Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 3. Arrangement of Act. This Act is arranged in Parts as follows:- PART I-PRELIMINARY (SS. 1-3); PART I1-AMENDMENTS (ss. 4-13); PART III-ADMINISTRATOR'S ENTITLEMENTS (SS. 14-22). PART 11-AMENDMENTS 4. Citation . (1) In this Part the Local Government (AboriginalLands) Act1978 is referred to as the Principal Act. (2) The Principal Act as amended by this Part may be cited as the Local Government ( Aboriginal Lands) Act 1978. 5. Amendment of s. 6 . Section 6 of the Principal Act is amended by- (a) in subsection (1), (i) omitting paragraphs (a) and (b) and substituting the following paragraphs :- " (a) to Council of the Shire of Aurukun, incorporated by section 4 (2), a lease of the whole of the land comprising the Shire of Aurukun declared by section 9; and (b) to Council of the Shire of Mornington, incorporated by section 4 (2), a lease of the whole of the land comprising the Shire of Mornington declared by section 10."; (ii) inserting after the words " a grant relates " the words " together with improvements included in the grant "; (b) omitting from subsection (2) the words " the schedule " and substituting the words " Schedule 1"; (c) inserting after subsection (2) the following subsection:- " (2A) The reservation and setting apart, prior to the date of commencement of Part II of the Local Government (Aboriginal Lands) Act Amendment Act 1978, of land, which pursuant to section 9 or 10 is part of the Shire of Aurukun or, as the case may be, Shire of Mornington, as a reserve for any public purpose is hereby cancelled and each Order in Council by which the same was reserved and set apart shall be deemed to have been rescinded.". (d) omitting from subsection (3) the first and second paragraphs and substituting the following paragraphs:- " When making a grant pursuant to subsection (1) the Governor in Council may reserve to the Crown- (a) in the case of the grant to Council of the Shire of Aurukun, the right to reserve and set apart for one or more of prescribed public purposes, whether specified or not- (i) parts of the demised land being the shaded areas shown on the plan contained in Schedule 2; and (ii) parts of the demised land in or adjacent to the existing township in the Shire being of an aggregate area of 4 hectares approximately,

Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 745 without specifying, in relation to the parts referred to in provision (ii), in the grant or in the instrument of lease evidencing the same the parts of the demised land affected by the reservation; (b) in the case of the grant to Council of the Shire of Mornington, the right to reserve and set apart for one or more of prescribed public purposes, whether specified or not- (i) parts of the demised land being the shaded areas shown on the plan contained in Schedule 3; and (ii) parts of the demised land in or adjacent to the existing township in the Shire being of an aggregate area of 4 hectares approximately, without specifying, in relation to the parts referred to in provision ( ii), in the grant or in the instrument of lease evidencing the same the parts of the demised land affected by the reservation; (c) in the case of each grant, the right to reserve and set apart for public purposes, whether specified or not, any part or parts of the demised land of an area to be specified but not exceeding 500 hectares in the case of the grant to Council of the Shire of Aurukun and 100 hectares in the case of the grant to Council of the Shire of Mornington, without specifying in the grant or in the instrument of lease evidencing the same the part or parts of the demised land affected by the reservation. For the purposes of subparagraphs (a) and (b) of the preceding paragraph a prescribed public purpose is one of the following purposes:- departmental and official purposes; educational institutions or education purposes; health purposes or hospitals; police purposes. The reservation and setting apart of land pursuant to the right reserved under the first paragraph of this subsection shall be effected by the Governor in Council by Order in Council and the provisions of Part XI of the Land Act 1962-1978 apply in relation thereto as if the land in question were Crown land and the reservation and setting apart were authorized by that Part of that Act."; 6. Amendment of s. 7. Section 7 of the Principal Act is amended by omitting from paragraph (a) the words " demised land " and substituting the words " land to which the grant relates ". 7. Amendment of s. 12. Section 12 of the Principal Act is amended by- (a) omitting from subsection (2) the words " the last Saturday in March 1979, or, if in either case an election is not held on that day," and substituting the words " a day declared by the Governor in Council by

746 Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 Order in Council as the day on which either or both of such elections shall be held or on the last Saturday in March 1979, whichever day shall be the earlier, or if, in respect of either Shire, an election to constitute its council is not held on the day on which it should have been held to accord with the foregoing provisions of this subsection, then "; (b) adding at the end of the section the following subsection:- " (4) Where either of the councils referred to in this section is constituted pursuant to an election held on a day prior to the last Saturday of March 1979 the Governor in Council may direct by Order in Council that, in respect of that council, the triennial election required by the Local Government Act 1936-1978 to be held on that Saturday shall not be held whereupon that council shall continue in office as if such triennial election had been duly held and each member of that council shall be deemed to have been duly elected thereat.". 8. Amendment of s. 23 . Section 23 of the Principal Act is amended by- (a) omitting paragraph (g) and substituting the following paragraph:- " (g) a person who seeks entry to or is in the Shire of Aurukun or, as the case may be, the Shire of Mornington for the purpose of performing or exercising in the Shire a function or power under this or any other Act or under an Act of the Commonwealth, if it is necessary or desirable for the proper performance or exercise of that function or power that he be resident in the Shire and if such function or power is directed to the needs or service of the Shire or of any resident in the Shire: (b) inserting in paragraph (h) after the words " a person " the words who is the holder of land in the Shire of Aurukun or, as the case may be, the Shire of Mornington as trustee for a public purpose or ". 9. Amendment of s. 26. Section 26 of the Principal Act is amended by adding at the end thereof the following subsection:- " (4) A person who is lawfully removed from the Shire of Aurukun or from the Shire of Mornington and who at the time of his removal was qualified to be nominated as a candidate and to be elected as chairman or member of the Local Authority of the Shire shall, after his removal, not be qualified to he nominated as a candidate or to be elected or appointed or to act as chairman or member of that Local Authority unless he becomes a resident in the Shire, duly authorized according to law.".

Local Government ( Aboriginal Lands ) Act Amendment Act 1978, No. 87 747 10. Amendment of s. 35 . Section 35 of the Principal Act is amended by omitting subsection (2) and substituting the following subsection:- " (2) The first meeting of the Council of the Shire of Aurukun and of the Council of the Shire of Mornington first constituted as provided for by this Act- (a) shall be convened in accordance with the Local Government Act 1936-1978 by the person who was returning officer at the election of the council , first constituted; and (b) shall be convened on a date as soon as practicable after the conclusion of that election. 11. New s. 36. The Principal Act is amended by adding after section 35 the following section:- " 36. Sale and supply of beer in Shires. (1) Each of them, the Council of the Shire of Aurukun and the Council of the Shire of Mornington, is authorized to establish and maintain within its Shire premises for the sale and supply of beer to persons in the Shire and to conduct within its Shire the business of selling and supplying beer to such persons. (2) The authority conferred by subsection (1) on the Council of the Shire of Mornington includes authority to take over and maintain the premises known as the Canteen on Mornington Island and to conduct in and from those premises the business of selling and supplying beer to persons in the Shire. (3) If the authority conferred by subsection (1) is exercised by a council, it shall be exercised as a function of local government and as an undertaking of that council subject to and in accordance with the Local Government Act 1936-1978 and may be exercised through such person or persons as are nominated by the Council and approved by the Governor in Council by Order in Council. (4) The provisions of the Liquor Act1912-1976, other than section 81 thereof, do not apply in respect of the establishment or maintenance of premises for the sale and supply of beer pursuant to the authority conferred by subsection (1) or in respect of the conduct therein and therefrom of the business of selling and supplying of beer pursuant to that authority or in respect of the consumption of beer so sold and supplied. For the purpose of the application of section 81 of the LiquorAct1912-1976 in respect of such premises in the Shire of Aurukun or the Shire of Mornington the premises shall be deemed to be premises of a licensee within the meaning of that Act and the person for the time being conducting such business therein as nominee of the relevant council shall be deemed to be the licensee of the premises within the meaning of that Act. (5) Each of them the Council of the Shire of Aurukun and the Council of the Shire of Mornington may, pursuant to its

748 Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 power to make by-laws conferred by the Local Government Act 1936-1978 as modified by this Act, make by-laws with respect to the establishment and maintenance within its Shire of premises in and from which beer may be sold and supplied; with respect to the sale, supply and consumption of beer sold and supplied in and from such premises; and with respect to the conduct of such premises. (6) Surplus moneys in the undertaking fund established or maintained for an undertaking conducted under the authority conferred by subsection (1) may, after payment of or making proper allowance for payment of costs and expenses of the undertaking in accordance with section 23 (10) of the Local Government Act 1936-1978, be applied for the welfare of residents of the Shire in which it is conducted and for works and services directed towards such welfare notwithstanding that the purpose of such application is not a purpose for which a Local Authority may lawfully apply, or does ordinarily apply, any of its funds.". 12. New s. 37. The Principal Act is amended by adding after section 36 the following section:- " 37. Roads within Shires. (1) Roads within the Shire of Aurukun or the Shire of Mornington whether constructed or formed before the commencement of the Local Government (Aboriginal Lands) Act Amendment Act 1978 or constructed or formed thereafter shall be delineated on maps deposited in the Department of Mapping and Surveying at Brisbane. A copy of each such map shall be held in the office of the Director of Local Government at Brisbane and in the office of Council of the Shire of Aurukun or, as the case may be, Council of the Shire of Mornington. (2) The location of a road delineated on a map referred to in subsection (1) may be sufficiently delineated thereon by a dotted line and may be varied, should the case require it, by an amended delineation. in like manner on a later map deposited in the Department. (3) Where possible the width of each road delineated on a map pursuant to this section shall be specified on that map and in any case where such width is not so specified it shall be taken to be 60 metres. (4) A road constructed or formed within the Shire of Aurukun or the Shire of Mornington, whether before or after the commencement of the Local Government (Aboriginal Lands) Act Amendment Act 1978 shall be deemed to be a road dedicated to public use and to be a road within the meaning of- (a) the Main Roads Act 1920-1976; (b) the Traffic Act 1940-1977; or (c) any other Act the application of which in or in relation to any place depends upon that place being a road or part of a road. (5) No person shall be entitled to be on a road referred to in subsection (4) by reason of that subsection unless he is authorized by some other provision of this Act to be in the Shire of Aurukun or, as the case may be, the Shire of Mornington at the material time.".

Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 749 13. Renumbering Schedule and new Schedules . The Principal Act is amended by- (a) in the schedule, inserting after the word " Schedule ", where it appears as a heading, the numeral " 1 "; (b) adding at the end thereof the following headings and schedules:- " SCHEDULE 2 [s. 6 (3)] w I I I I S 0 z 0 I-

750 Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 SCHEDULE 3 [s. 6 (3)] ,,

Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 751 PART III-ADMINISTRATOR'S ENTITLEMENTS 14. Meaning of terms. In this Part save where a contrary intention appears- "Administrator " means the person specified in Order in Council dated 15 August 1978 and published in the Gazette of the same date as appointed to carry on the functions of the Council of the Shire of Aurukun and of the Council of the Shire of Mornington and to exercise, perform, undertake and to be subject to the powers, duties, authorities and responsibilities of those councils and includes any person specified in a subsequent Order in Council as appointed for like purposes or any of them. 15. Construction of Act 1978 No. 6. The LocalGovernment(Aboriginal Lands) Act1978 (cited as the Act of 1978 No. 6) shall be read and construed subject to the provisions of this Part. 16. Status of Administrator . (1) The Administrator shall be deemed to have been on and since 15 August 1978 and to continue to he until the prescribed time- (a) in relation to the Shire of Aurukun declared by section 9 of the Local Government (Aboriginal Lands) Act1978, the council of that Shire in lieu of the body corporate which pursuant to section 13 of that Act was to be deemed to he that council: (b) in relation to the Shire of Mornington declared by section 10 of the Local Government (Aboriginal Lands) Act1978, the council of that Shire in lieu or the body corporate which pursuant to section 13 of that Act was to he deemed to he that council. (2) In subsection (I) the expression " prescribed time means in relation to the Shire of Aurukun, the due constitution of the council of that Shire as provided for by section 12 of the Local Government(Aboriginal Lands) Act1978 and, in relation to the Shire of Mornington, the due consitution of the council of that Shire as provided by that section of that Act. (3) For as long as he is deemed to be the council of a Shire referred to in subsection (1)- (a) the Administrator shall have and may exercise and perform in respect of that Shire the functions, powers, duties, authorities and responsibilities of a Local Authority of a Shire subject to the Local Government Act 1936-1978, the LocalGovernment(Aboriginal Lands) Act1978 and this Act; (b) the provisions of the Local Government Act 1936-1978 shall apply to the Administrator and to his administration of that Shire as if his administration were of a Local Authority. 17. Administrator may conduct trade in beer . (I) It is lawful for the Administrator, for so long as his appointment subsists, to establish and maintain within the Shire of Mornington premises for the sale and supply of beer to persons in the Shire and to conduct within the Shire the business of selling and supplying beer to such persons. (2) If the authority conferred by subsection (I) is exercised it shall he exercised as a function of local government of the Shire and as an undertaking of the Council of the Shire of Mornington subject to and in

752 Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 accordance with the Local Government Act 1936-1978, and surplus moneys in the undertaking fund established or maintained for such undertaking, after payment of or making proper allowance for payment of costs and expenses of the undertaking in accordance with section 23 (10) of that Act, may be applied for the welfare of residents of the shire and for works and services directed towards such welfare notwithstanding that the purpose of such application is not a purpose for which a Local Authority may lawfully apply, or does ordinarily apply, any of its funds. (3) The authority conferred by subsection (1) includes authority to take over and maintain the premises known as the Canteen on Mornington Island and to conduct in and from those premises the business of selling and supplying beer to persons lawfully in the Shire. (4) The provisions of the Liquor Act1912-1976, other than section 81 thereof, do not apply in respect of the establishment or maintenance of premises in the Shire of Mornington for the sale and supply of beer pursuant to the authority conferred by subsection (1) or in respect of the conduct therein and therefrom of the business of selling and supplying of beer pursuant to that authority or in respect of the consumption of beer so sold and supplied. For the purpose of the application of section 81 of the Liquor Act1912-1976 in respect of such premises in the Shire the premises shall be deemed to be premises of a licensee within the meaning of that Act and the person for the time being conducting such business therein shall be deemed to be the licensee of the premises within the meaning of that Act. (5) The provisions of this section shall be deemed to have come into operation on 15 August 1978 and shall be given retrospective effect accordingly. 18. Provisions concerning certain property of Council of Shire of Mornington . (1) It is declared that- (a) all moneys standing to the credit of the general account or the canteen account of the Council of the Shire of Mornington with the Bank of New South Wales at Normanton in the State as at the close of business on 15 August 1978; (b) all moneys credited to either of the accounts referred to in paragraph (a) since 15 August 1978; (c) all moneys payable to either of the accounts referred to in paragraph (a) as at the close of business on 15 August 1978 or since that time to the date of commencement of this section, whether credited to the account or not; and (d) all stock in trade, fittings and other movable property used in or in connexion with the conduct of the business of selling and supplying beer in and from the premises known as the Canteen on Mornington Island, are hereby divested from such person as, immediately before the date of commencement of this section, was the lawful owner of such moneys, stock in trade, fittings or property and are vested in the Administrator. (2) No claim in law shall lie against the Bank of New South Wales or any officer thereof or against the Administrator or any other person on account of- (a) the Administrator's operating before the date of commencement of this section on either of the accounts referred to in subsection (1);

Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 753 (b) expenditure or use by or on behalf of the Administrator before the date of commencement of this section of anything vested in him by this section; or (c) the sale or supply by or on behalf of the Administrator before the date of commencement of this section or the consumption before or after that date of stock in trade used in the conduct of the business of selling and supplying beer in and from the premises known as the Canteen on Mornington Island. (3) If a person satisfies the Administrator that he has a just claim (whether well founded in law or not) to any part of the moneys standing to the credit of the general account referred to in subsection (1) as at the close of business on 15 August 1978 or of moneys payable to the account at that time (whether credited to the account or not), it is lawful for the Administrator to make payment to or at the direction of that person in such amount as, in the Administrator's opinion, is sufficient to satisfy his claim. No claim in law shall lie against the Administrator on account of- (a) the payment by the Administrator of any amount pursuant to this subsection; or (b) the refusal or failure of the Administrator to make a payment pursuant to this subsection. 19. Provisions concerning certain liabilities of the Council of the Shire of Mornington . (1) It is declared that all liabilities incurred by the body corporate incorporated by section 4 of the Local Government (AboriginalLands) Act1978 in the name Council of the Shire of Mornington or incurred by the members of the Aboriginal Council, which immediately prior to 6 April 1978 existed for the Mornington Reserve within the meaning of that Act, in or in connexion with the conduct of the business of selling and supplying beer in and from premises known as the Canteen on Mornington Island are hereby imposed on the Administrator in lieu of the person or persons who incurred the same and such liabilities may be enforced against the Administrator as if he had incurred the same. (2) Where a liability transferred to the Administrator by subsection (1) arises by reason of a contract or agreement made between any person (other than the Administrator) referred to in subsection (1) (or on its or his behalf) and any other person then for the purpose of enforcing against the Administrator such liability it shall be deemed that such contract or agreement was made between the Administrator and such other person. 20. Settlement of disputes . (1) The Governor in Council is authorized to declare by Order in Council with respect to any question touching the divesting and vesting of moneys, stock in trade, fittings or other property provided for by section 18 or the imposition of liabilities provided for- by section 19. (2) A declaration made pursuant to subsection (1) shall be conclusive of the question with which it deals and shall be given effect by courts and all persons concerned. 21. Charge on funds of Mornington Shire Council . If a sum is paid to discharge a liability incurred by or on behalf of the Crown by reason of any indemnity, guarantee or security given before the date, of commencement of section 18 the repayment of such sum to the Crown shall be and remain a first charge on the general fund and on the canteen fund of the Council of the Shire of Mornington.

754 Local Government (Aboriginal Lands) Act Amendment Act 1978, No. 87 22. Passing of Administrator's property to Local Authorities. (1) Upon the due constitution of the Council of the Shire of •Aurukun as provided by section 12 of the Local Government (Aboriginal Lands) Act1978 all property held by the Administrator for the use of the Shire shall be thereby divested from him and vested in the council and all liabilities incurred by him in and in connexion with administering the Shire shall be thereby imposed on the council in lieu of the Administrator and such liabilities may be enforced against the council as if it had incurred the same. (2) Upon the due constitution of the Council of the Shire of Mornington as provided by section 12 of the Local Government (AboriginalLands) Act1978 all property held by the Administrator for the use of the Shire shall be thereby divested from him and vested in the council and all liabilities incurred by him in and in connexion with administering the Shire shall be thereby imposed on the council in lieu of the Administrator and such liabilities may be enforced against the council as if it had incurred the same. (3) Where property (being a chose in action) or a liability transferred to a council by this section arises by reason of a contract or agreement made between the Administrator and any person then for the purpose of enforcing by or against the council such chose in action or liability it shall be deemed that such contract or agreement was made between the council and that person.