Aboriginal Communities Act 1979

Three distinct classes of persons and entities are directly affected.

First, the incorporated Aboriginal communities named in s.4(1)(a) or added by proclamation under s.4(1)(b). At the date of the 2012 reprint these are the Bidyadanga Aboriginal Community La Grange Incorporated and the Bardi Aborigines Association Inc. Each such community must have a “council of management or other governing body” (the statutory definition of “council” in s.3). The council is the repository of the by-law making power and the body that must observe the absolute-majority, sealing and Ministerial-submission requirements of s.8(2).

Second, individual members of those communities. Although the Act does not create membership rules, it assumes the existence of a “community or association wholly or principally composed of persons who are of Aboriginal descent” (the definition of “Aboriginal community” in s.3, cross-referencing the Aboriginal Affairs Planning Authority Act 1972). Members are both the beneficiaries of the regime and the electorate whose views the council must consult in accordance with the constitutional safeguards demanded by ss.4(2) and 5(2). When by-laws are made, members are bound by them in the same way as outsiders.

Third, any person who enters the proclaimed community lands, including non-Aboriginal visitors, contractors, government officers and police. Section 9(1) is unequivocal: the by-laws “apply to all persons within those boundaries whether members of the community or not”. Consequently, a tourist who drives at excessive speed, a delivery driver who leaves litter, or a health worker who supplies alcohol contrary to a by-law is liable to prosecution, removal from the land, and a fine. The evidentiary presumption in s.9(2) places the onus on any such person to disprove that the place in question lay within the community lands.

In addition, state instrumentalities are indirectly affected. The Minister for Aboriginal Affairs must form opinions about consultation mechanisms and ongoing appropriateness before recommending inclusion or exclusion (ss.4(2), 5(2)). The Governor exercises multiple proclamation powers (ss.4(1)(b), 5(1), 6(1)–(2)). Police officers are expressly empowered by by-laws made under s.7(2)(a) and therefore become the frontline enforcement arm. Courts are required to apply the six-month limitation period (s.10), may order compensation under s.7(2)(e), and must respect the savings provisions in s.13.

Finally, the broader Western Australian community is affected to the extent that the Act carves out pockets of land where localised rules supplement the Criminal Code, the Road Traffic Act 1974, liquor licensing legislation and local government by-laws. Because s.13 preserves all other liabilities, the Act creates parallel rather than exclusive regulation.

Duties imposed on councils are both procedural and substantive. A council wishing to exercise the s.7 power must obtain an absolute majority resolution, seal the by-law and forward it to the Minister (s.8(2)). Before advising the Governor to add or remove a community, the Minister must form an opinion about the existence and observance of consultation provisions in the community’s constitution (ss.4(2)(a)–(b), 5(2)(a)–(b)). Once by-laws are in force the council may be delegated discretionary approval functions under them (s.7(2)(c)) and must be prepared to receive fines paid under s.12.

Rights conferred on councils include the ability to tailor rules to the community’s particular needs within the 11 enumerated heads, to limit by-laws by time, place or circumstance, to authorise police to act as their enforcement agents, and to receive both fines and court-ordered compensation.

Rights of community members are largely indirect. They possess the political right to be consulted in accordance with their constitution before by-laws are made, amended or revoked. They also enjoy the practical benefit that fines levied for breaches are applied “for the use of the community” (s.12). Members are equally entitled to the protection of any by-laws that prohibit nuisances, disorderly conduct or damage to community property.

Rights and duties of outsiders are essentially reciprocal. Any person on community lands owes a duty to obey the by-laws and to supply name and address when lawfully requested by a police officer acting under a by-law (s.7(2)(a)(iii)). They enjoy the right to know that no by-law can criminalise conduct that is otherwise authorised by another statute (s.13(2)) and that any prosecution must be commenced within six months (s.10). They may also, in appropriate cases, receive compensation if they are the victim of damage caused by an offender convicted under the by-laws (s.7(2)(e)).

Police duties and powers are expanded. Where a by-law so provides, officers may apprehend and remove offenders, seize vehicles or animals, demand identification, commence proceedings and “generally … enforce the provisions of the by-laws” (s.7(2)(a)). These powers exist in addition to, and do not limit, ordinary policing powers.

The Act caps the monetary penalty for any breach at a fine of $5,000 (s.7(2)(d)). This figure was inserted by the Sentencing (Consequential Provisions) Act 1995 and reflects the modernisation of penalty units that occurred across Western Australian statute law at that time. In addition to the fine, a sentencing court may order the convicted person to pay compensation not exceeding $250 to the community or to any other person whose property was damaged during the commission of the offence (s.7(2)(e)). All pecuniary penalties recovered must be paid to the council “for the use of the community” (s.12), giving the community a direct financial stake in enforcement.

Enforcement is primarily by prosecution in a court of summary jurisdiction. The six-month limitation period inserted by the Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 (s.10) is shorter than the general 12-month period that now applies to many summary offences, reflecting the legislature’s view that minor community-land infractions should be dealt with promptly. Evidentiary aids lighten the prosecution burden: the allegation that the offence occurred on community lands is prima facie proof (s.9(2)), and production of a sealed copy or Gazette reprint proves the by-law itself (s.8(5)).

By-laws may also authorise physical removal of persons, vehicles or animals without the necessity of prior conviction (s.7(2)(a)(i)–(ii)). This immediate exclusion power is a significant practical enforcement tool in remote communities where timely court processes may be impractical. Because s.13(1) expressly preserves all other liabilities, a person removed under a by-law may still face charges under the Criminal Code (e.g. for trespass, disorderly conduct or assault) or the Misuse of Drugs Act 1981 if the facts warrant.

No infringement-notice or on-the-spot fine regime is created by the Act itself; any such system would have to be constructed within the by-laws and would need to comply with the Criminal Procedure Act 2004 and associated regulations.

The Act is deliberately subordinate. Section 13(1) states that no by-law “takes away or restricts any liability, civil or criminal, arising under any other statutory provision or at common law”. Section 13(2) protects from criminalisation any act performed under a power, duty or right conferred by another statute. The broad definition of “statutory provision” in s.13(3) captures regulations and by-laws made under any other Act, ensuring that, for example, a liquor licence issued under the Liquor Control Act 1988 cannot be overridden by a community by-law purporting to ban all alcohol.

The by-law making procedure imports the Interpretation Act 1984 (notwithstanding the footnote reference to its 1918 predecessor) for matters of commencement, publication and disallowance (s.8(1)). The requirement to lay by-laws before both Houses preserves parliamentary oversight.

Interaction with the Aboriginal Affairs Planning Authority Act 1972 occurs through the definitional cross-reference in s.3: only communities composed principally of persons of Aboriginal descent “within the meaning of” that Act qualify. The Land Administration Act 1997 and native title legislation are relevant to the underlying tenure of the proclaimed community lands, but the Aboriginal Communities Act 1979 does not itself alter title; it merely regulates conduct on land that has already been set aside.

Consequential amendments listed in the compilation table illustrate the Act’s integration into the wider statute book. The Sentencing (Consequential Provisions) Act 1995 updated penalty language; the Courts Legislation Amendment and Repeal Act 2004 and Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 modernised evidentiary and limitation provisions. Section 11, which once dealt with some procedural matter, was deleted entirely by the 2004 courts legislation.

In the event of inconsistency with a local government by-law made under the Local Government Act 1995, the savings clause in s.13 would preserve both sets of rules; a person could theoretically breach both and face cumulative penalties, subject to ordinary principles against double punishment.

The 2012 reprint discloses four sets of amendments after the original 1979 enactment.

The Sentencing (Consequential Provisions) Act 1995 (assented 16 January 1996, commenced 4 November 1996) substituted modern penalty language and amended s.12. This was part of a state-wide overhaul to replace outdated penalty structures with a consistent penalty-unit regime.

The Statutes (Repeals and Minor Amendments) Act 1997 made a small textual correction.

The Courts Legislation Amendment and Repeal Act 2004 deleted s.11, which had apparently duplicated provisions now covered by the new Criminal Procedure Act 2004.

The Criminal Procedure and Appeals (Consequential and Other Provisions) Act 2004 inserted the current ss.9(2) and 10, replacing earlier evidentiary and limitation rules with language consistent with the new criminal procedure regime. It also updated cross-references.

These changes were not policy-driven expansions but housekeeping measures required by the enactment of comprehensive courts, sentencing and criminal-procedure statutes between 1995 and 2004. The substantive policy settings—community autonomy within defined limits, maximum fine of $5,000, automatic revocation on exclusion—have remained unchanged since 1979. No new communities appear to have been added by proclamation in the period covered by the reprint, nor have any been removed.

The reprinted text contains no reported decisions, and the Act’s brevity and narrow focus have kept it largely out of the reported case law. Because by-laws made under the Act are legislative instruments, any challenge would likely proceed by way of judicial review of the Minister’s “necessary and desirable” opinion under s.8(3), the Governor’s proclamations under ss.4–6, or the validity of a particular by-law said to exceed the heads of power in s.7(1).

A potential controversy concerns the breadth of the residual power in s.7(1)(k) to prescribe matters “necessary or convenient” for “securing decency, order and good conduct”. In other jurisdictions similar catch-all phrases have been read down so as not to permit by-laws that are oppressive or repugnant to general statute law. The savings provisions in s.13 would, however, operate to prevent any by-law that purported to authorise conduct otherwise unlawful or to criminalise conduct otherwise lawful.

Another live issue is the interaction with the Racial Discrimination Act 1975 (Cth) and the Native Title Act 1993 (Cth). Because the by-laws apply to all persons on the land, they are not racially discriminatory on their face. Nevertheless, a by-law that disproportionately burdens non-Aboriginal persons (for example, a total alcohol ban that affects licensed premises used mainly by non-residents) could theoretically attract scrutiny, though the Act’s preservation of other statutory rights would likely provide a defence.

The automatic revocation of all by-laws upon a s.5 proclamation (s.5(3)) could generate practical difficulty if a community is removed mid-proceeding; pending prosecutions might survive but the underlying normative framework would disappear.

No High Court or Court of Appeal authority directly construing the Act is disclosed in the reprint or in the material available to this analysis. Enforcement therefore appears to occur at the magistrates-court level, consistent with the summary nature of the offences.

Most practitioners assume that once a community is declared under s.4 its by-laws operate indefinitely. In fact the Minister retains an ongoing duty to monitor compliance with consultation requirements; a single failure to consult can justify a recommendation for exclusion under s.5(2)(b), automatically revoking every by-law then in force. Councils therefore need robust minute-keeping and membership-notification systems that can be produced to the Minister at short notice.

Another trap is the absolute-majority requirement in s.8(2). If the council has an even number of members and one position is vacant, an absolute majority of “all the persons for the time being holding office” may be mathematically impossible, stalling the by-law process until the vacancy is filled.

Outsiders frequently overlook s.9(2). In a prosecution the prosecution need only allege that the conduct occurred on community lands; the defendant bears the evidential burden of proving otherwise. In remote locations where boundary fences are absent or GPS coordinates disputed, this reversal can be decisive.

The $250 compensation ceiling in s.7(2)(e) is easily missed. It is not a general civil damages provision; it operates only as an ancillary criminal order upon conviction under the by-laws. Any larger claim for damage must be pursued in the civil courts, where the by-law breach may be pleaded as evidence of negligence or trespass but will not itself ground the action.

Finally, because the Act cross-references the Aboriginal Affairs Planning Authority Act 1972 definition of Aboriginal descent, any change to that upstream legislation could inadvertently alter the pool of communities eligible for inclusion. Compliance officers must therefore track amendments in both statutes.

For community councils

1. Verify that the community’s constitution contains, and that the council in fact follows, consultation mechanisms satisfying s.4(2)(a)–(b). Document every consultation step.

2. When drafting by-laws, stay strictly inside the 11 paragraphs of s.7(1). Use the residual power in (k) sparingly and always tie the provision to “decency, order and good conduct”.

3. Pass by-laws only by absolute majority of current office-holders. Record the vote, seal the instrument and deliver the sealed original to the Minister with a covering letter requesting the s.8(3) opinion.

4. Maintain a register of current by-laws, including Gazette references. Produce sealed copies or Gazette reprints in any prosecution.

5. Decide in advance which enforcement powers under s.7(2)(a) to confer on police and ensure local officers are briefed.

For individuals and visitors

1. Before entering proclaimed community lands, obtain a copy of the current by-laws from the council office or the community website. Pay particular attention to alcohol, vehicle and entry rules.

2. If requested by a police officer acting under a by-law, supply name and address immediately. Refusal itself may constitute a separate breach.

3. If served with a prosecution notice, note the six-month limitation in s.10; any charge laid outside that window should be met with a notice of objection.

For government and legal advisers

1. When advising the Minister, obtain and review the community’s constitution and recent council minutes to confirm ongoing compliance with consultation obligations.

2. Draft proclamations under ss.4, 5 and 6 with sufficient precision to avoid later boundary disputes that could undermine the s.9(2) evidentiary presumption.

3. In any civil claim arising on community lands, plead the savings provisions in s.13(1)–(2) to prevent arguments that a by-law has altered general tortious or contractual rights.

4. Keep a watching brief on the Interpretation Act 1984 and any future criminal-procedure amendments; changes to tabling or disallowance rules will flow through to s.8 via the incorporation in s.8(1).

Systematic compliance with these steps ensures that the limited autonomy conferred by the Act is both lawfully exercised and judicially defensible. The regime remains a modest but practical example of delegated community governance that has survived, largely unaltered in policy, for more than three decades.