It follows that this land is not "Aboriginal land" and therefore section 32 of the ALA does not apply to it.
[32] The lighting and maintenance of fire are acts which render the defendant to a penalty hence they are offences.5 As offences are of two kinds only, namely criminal and regulatory offences 6 and these are not regulatory offences, they are therefore criminal offences albeit simple offences because they are not otherwise designated.
[33] In Walker v New South Wales 7 Mason CJ 8 said: "It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle (see Racial Discrimination Act 197 5 (Cth), s 10). The general rule is an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters. The rule extends not only to all persons ordinarily resident within the country but also to foreigners temporarily visiting. And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose. The presumption applies with added force in the case of the criminal law which is inherently universal in its operation and whose aims would otherwise be frustrated. "
[34] It could be argued that the principle set out by Mason CJ above is not offended by what has been done here. The defendant is a non Aboriginal person. It could be argued that the law equally applies to him as it does to an Aboriginal person as long as he is doing for Aboriginal purposes and for no other purpose. In my view, because of what follows, the fact that he is a non Aboriginal person acting on the instruction of or at the request of an Aboriginal elder doesn't assist the defendant's argument.
[35] Earlier in Walker v New South Wales Mason CJ 9 said: "The legislature of New South Wales has power to make laws for peace, welfare and good government of New South Wales in all cases whatsoever. The proposition that those laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected As Gibbs J (with whom Aickin J agreed) said in Co v The Commonwealth ((1979) 53 ALJR 403 at p 408; 24 ALR 118 at p 129) 'The Aboriginal people are subject to the laws of the Commonwealth and of the states or territories in which they respectfully reside '.
(36) Section 2 of the Constitution Act 1867 (Qld) similarly provides that the legislative assembly can advise and consent to the Queen making laws for the peace, welfare and good government of the colony in all cases whatsoever and through the Land Act, the Local Government Act and the City of Brisbane Act the Brisbane City Council is empowered to make these by-laws which it is alleged the defendant has off ended. As Mason CJ said as quoted above, the proposition that these laws could not apply to particular inhabitants or particular conduct occurring within the State must be rejected. (37) Reading that proposition into the deed of grant of land in trust, one would have to interpret the schedule of trusts which says "The grantee is to hold the land in trust for Aboriginal and for no other purposes whatsoever" as being subject to persons upon the land acting lawfully.
(38) It follows that the local laws are not inconsistent with the DOGIT.
