Aboriginal Movement for Outback Survival (Mt Margaret Mission) By-laws

The by‑laws define several key concepts that determine their scope and application. Community land is land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of the Mt Margaret Mission community. The boundaries of that land would be defined in the Gazette declaration, but the by‑laws themselves contain no map or description. The by‑laws apply to all persons on that land, whether members of the community or not.

The community is defined in two senses: as the incorporated body Aboriginal Movement for Outback Survival (Mt Margaret Mission) and as the collective group comprising its membership, plus spouses and dependants who are not members in their own right. This dual definition can create ambiguity about who is a “member of the community” for purposes of by‑law 4(d), which exempts members from being ordered to leave entirely. The Council refers to the Council of that incorporated body, which exercises the discretionary powers to grant or revoke permission to enter, permit liquor, place signs, and authorise use of community vehicles.

Liquor is defined by reference to the Liquor Licensing Act 1988, which broadly covers beverages containing more than 1.15 per cent ethanol by volume. The effect is to import the State‑wide definition, so any substance that would be liquor for licensing purposes is also prohibited on community land unless the Council permits it. Deleterious substance is defined as glue or any volatile liquid containing hydrocarbons. This is a narrow list compared to broader drug legislation, but it covers common inhalants. Petrol is dealt with separately in by‑law 10, where possession for the purpose of inhalation is banned, as is sale or supply where the seller suspects inhalation.

Vehicle is defined as any motor vehicle designed and manufactured to be capable of self‑propulsion, including trailers and caravans while attached. This excludes bicycles, animals, and pedal‑powered devices. The definition is important for the traffic provisions, police search powers, and the offence of driving without due care. The definition is not exhaustive and does not include watercraft or aircraft, but those are unlikely to be relevant on the community land.

Permission is a central operational concept. It may be given orally or in writing and can be subject to any terms or conditions the Council sees fit. The Council may revoke permission at any time without stating a reason, and may act through any of its members. This gives individual Council members substantial authority to grant or withdraw access on the spot. Permission may also be implied for government employees in the course of their duties. There is no mention of a right to appeal a refusal or revocation, and no criteria guide the Council’s discretion, leaving it unfettered.

Custom of the community is relevant as a defence under by‑law 19. It is not defined, but the defendant bears the onus of showing they were acting under and excused by a custom. This allows traditional or community‑accepted practices to override the by‑law prohibitions, but the burden of proof lies on the accused. In practice, this defence would need to be established on evidence, potentially through community witnesses or cultural reports.

The by‑laws affect everyone who enters or remains on the relevant community land. However, the impact differs sharply between categories of people. Non‑Aboriginal persons are the primary targets of the entry control regime. They may not enter or remain without prior permission of the Council, even if they are residents of neighbouring towns or have friends in the community. The Council may order any non‑member to leave at any time. This creates a legal barrier to access that is not subject to any external review or procedural fairness requirement. Government employees are given a deemed permission, but only when entering in connection with their duties. This means a police officer, health worker or teacher can enter without express permission, but if they are off‑duty or engaging in personal activities they would need separate permission. The by‑laws do not extend that exemption to contractors, volunteers or journalists.

Members of the community are not subject to the entry permission requirement, but they are bound by all other by‑laws: liquor restrictions, substance bans, traffic rules, offensive behaviour prohibitions and wilful damage. They cannot be ordered to leave the community land entirely (by‑law 4(d) exempts them), but they can be ordered to leave a specific house under by‑law 7. Council members face a unique additional consequence: if charged with an offence under by‑law 8 (bringing, possessing, using or supplying liquor without permission), they are automatically deemed to have ceased to be effective councillors. This operates from the moment of charge, not conviction, and they are only restored if the charge is later withdrawn or dismissed. This creates a strong deterrent against liquor offences but also introduces a risk of misuse: a frivolous or politically motivated charge could remove a Council member from office temporarily.

Medical professionals and patients are exempted from the liquor restrictions only in respect of pharmaceutical preparations properly used in medical practice. This exemption is narrow: it covers medicines in the ordinary course of medical practice, but does not extend to, say, alcohol‑based hand sanitiser or over‑the‑counter preparations containing alcohol. Visitors who are Aboriginal but not members of this community are in a strange position. The by‑law 4(a) only restricts entry to persons “not recognised by the Council to be Aboriginal”. So an Aboriginal person from another community can enter without permission, unless the Council uses its by‑law 4(d) power to order them to leave. In practice, this would likely be exercised rarely, but the legal asymmetry could cause confusion.

Drivers of any vehicle on community land are affected by the traffic provisions, which create offences of careless and dangerous driving independent of the State’s Road Traffic Act. For community‑owned vehicles, drivers must have Council permission, a valid licence, and not be under the influence of liquor or deleterious substances. This creates a stricter regime than general road law, because the requirement for Council permission is additional to any licence requirement. Persons in possession of glue or petrol for inhalation are directly targeted, as are those who supply such substances with knowledge they will be used for inhalation. This could affect shopkeepers or tradespeople bringing such substances onto community land.

The by‑laws impose a number of positive and negative duties on persons on community land. The most significant duty is the obligation not to enter or remain on community land without permission if the person is not recognised as Aboriginal by the Council. This is a strict liability offence by its terms: there is no requirement for the person to know they needed permission. A visitor who drives onto the land without realising permission was required could be guilty. The duty extends to complying with any terms or conditions attached to such permission. Failure to do so is a separate offence.

If the Council orders a person to leave community land, the duty is to do so “as is reasonably possible”. This implies a timeframe that depends on the circumstances: a person with a vehicle may need to leave promptly, but someone on foot may need more time. There is no specified maximum, but the duty is immediate. Any person who is told by the principal occupant or person in charge of a house to leave that house must do so, without having to be a non‑member. This gives individual householders authority to evict anyone from their home, including community members. The duty is absolute: refusal to leave is an offence.

On liquor, the duty is not to bring, possess, use or supply liquor on community land without the permission of the Council. Permission is not deemed for any class of person. The duty extends to not entering or remaining on community land while under the influence of liquor to the extent that behaviour causes alarm, annoyance or upset to members of the community. This is a more subjective test than, say, a blood‑alcohol limit. It focuses on the effect of the behaviour, not a specific measurement.

On deleterious substances and petrol, the duty is absolute: no possession for inhalation, and no sale or supply where there are reasonable grounds to suspect inhalation. The second limb creates a duty of inquiry on the seller. A shopkeeper who sells glue to a known inhaler would be liable, but also one who had reasonable grounds to suspect, even if they turned a blind eye.

On traffic, the duty is to obey traffic signs placed by the Council, to drive with due care and attention, and not to drive dangerously. For community vehicles, the additional duties are to have Council permission, a valid licence, and not to be under the influence. These duties overlap with State traffic laws, but enforcement under the by‑laws is separate.

The rights created by the by‑laws are primarily procedural. The right to raise the defence of acting under a custom of the community is significant. It is the only substantive defence stated, and it overrides the by‑law prohibitions entirely. The right of a court to order compensation of up to $250 for damage to property gives an avenue for restitution that might not be available under general law for minor damage. The right of a Council member charged under by‑law 8 to be restored to office if the charge is withdrawn or dismissed provides a safeguard against wrongful charges.

Police have rights to search vehicles on reasonable suspicion and to detain vehicles for up to 14 days. These are powers beyond ordinary search powers under the Criminal Code or the Road Traffic Act. The Council has the right to grant or revoke permissions, place signs, and control access, all without needing to give reasons.

The penalty structure is unusually modest. The maximum fine for any breach is $100, which at current values is a trivial amount. Even at 2005 values when the compilation was published, $100 was not a heavy penalty. The maximum compensation order is $250. These small amounts suggest the by‑laws are intended as a disciplinary mechanism rather than a punitive deterrent. However, the availability of police removal, vehicle detention, and the risk of being ordered off the land indefinitely may have greater practical impact than the fine.

The court may order compensation only in addition to a fine, and only where property damage was caused in the course of committing the offence. The compensation goes to the community or to the individual whose property was damaged. The limit of $250 would cover minor vandalism but not serious property harm.

Police powers are broad. A police officer may take proceedings for any breach. They may also apprehend and remove a person from community land if it appears on reasonable grounds that injury or damage is likely if the person remains at large. This is a form of preventive detention without charge, limited to removal from the land (not arrest). It applies only where the person has committed or is found committing an offence. The officer must have reasonable grounds to believe likelihood of injury or damage. This power could be used against a drunk person threatening violence, but also against a person who simply refuses to leave a house.

Police may stop, detain and search any vehicle on community land if they have reasonable cause to suspect liquor or a deleterious substance is in the vehicle in contravention of the by‑laws. They may seize the substances and any receptacle, and may retain them until dealt with according to the by‑laws. If a prohibited substance is found, the police may seize and detain the vehicle itself for up to 14 days if necessary to prevent repetition. This is a significant power: a vehicle used to bring liquor onto the land can be immobilised for two weeks, which could severely impact a person’s mobility and livelihood.

Proceedings must be commenced within six months of the offence. This is a standard limitation period for summary offences. The procedure is by complaint and summons under the Justices Act 1902, which means the court has jurisdiction to hear the matter summarily. There is no right to trial by jury. The Child Welfare Act 1947 is noted as subject to this, meaning those Act’s provisions take precedence if they apply to juveniles.

A key enforcement consequence not found in most criminal law is by‑law 20: a Council member charged with an offence under by‑law 8 is deemed to have ceased to be an effective councillor. This is automatic upon charge. There is no requirement for the charge to be proven. The provision effectively treats the charge itself as a suspension. Restoration happens automatically if the charge is withdrawn or dismissed after trial. However, if the charge is dismissed before trial (e.g., on defective process), it is unclear whether restoration occurs. The by‑law says “withdrawn or is dismissed after trial”. A pre‑trial dismissal might not qualify, meaning the councillor would remain removed. This is a potential trap for the unwary Council member.

These by‑laws are made under the Aboriginal Communities Act 1979, which empowers the Governor to approve by‑laws for community lands. That Act is the enabling legislation and its provisions, particularly section 6 on declaration of community land, determine the geographical scope. The by‑laws do not purport to override State or Commonwealth laws except where specifically stated. By‑law 4(a) says “save as otherwise provided by any law of the State or Commonwealth”, meaning that if another law requires entry (e.g., a search warrant), it would prevail over the permission requirement.

The definition of liquor incorporates the Liquor Licensing Act 1988. That Act regulates the sale, supply and consumption of liquor generally. On community land, the by‑laws add a further restriction: possession or use without Council permission is an offence, even if the person would otherwise be lawfully entitled to possess liquor under State law (e.g., an adult in a public place is generally allowed to drink). This creates a local prohibition that supplements, rather than replaces, State liquor laws. A person could be charged under both the by‑laws and the Liquor Licensing Act for the same conduct, though principles of double jeopardy would likely prevent multiple punishments if the offences are substantially the same.

The traffic provisions interact with the Road Traffic Act 1974 and associated regulations. The by‑laws create offences of careless and dangerous driving that mirror the state offences, but they apply only on community land. The by‑laws also add an offence of failing to obey a traffic sign placed by the Council. The Road Traffic Act already makes it an offence to disobey traffic signs, but that applies only to signs erected under that Act. By‑law 11 gives the Council power to erect its own signs, and failure to obey is a separate offence under the by‑laws. The state driving offences and the by‑law driving offences could both be committed by the same act. A driver could be charged under the by‑laws and under the Road Traffic Act. The by‑laws also require Council permission to drive a community vehicle; this is a contractual or property‑based restriction enforced as a criminal offence, which is unusual.

The use of the Justices Act 1902 for procedure incorporates that Act’s rules on complaints, summons, evidence, and appeals. The limitation period of six months is from the Justices Act. The reference to the Child Welfare Act 1947 (now replaced by the Children and Community Services Act 2004) indicates that juvenile justice procedures under that Act would apply, but the compilation is as at 2005, so the updated Act is not referenced. Proceedings for offences by children would follow the relevant children’s legislation.

The by‑laws do not interact with the Native Title Act 1993 (Cth) or any other Commonwealth indigenous land rights legislation mentioned in the text. They are a creature of State law, and their operation is limited to land validly declared under the Aboriginal Communities Act. If the land were subject to native title, the by‑laws would still apply as a valid exercise of State legislative power, unless inconsistent with Commonwealth law. The by‑laws also do not mention the Racial Discrimination Act 1975 (Cth). The differential treatment of Aboriginal and non‑Aboriginal persons in by‑law 4 (non‑Aboriginal persons need permission, Aboriginal persons apparently do not) could raise issues under that Act, but the by‑laws are likely saved by the special measures doctrine for Indigenous communities, or by the fact that the definition is based on Council recognition of Aboriginality, not race per se. However, the phrase “not recognised by the Council to be Aboriginal” is not further defined and could be applied arbitrarily.

The by‑laws do not incorporate the Criminal Code, but the offences are additional to offences under the Code. For instance, wilful damage under by‑law 14 overlaps with criminal damage under the Code. The by‑laws provide a lower penalty option, so prosecutors might choose the more serious charge if the damage is significant. The by‑laws also do not create any civil liability; only criminal penalties and compensation orders.

The original by‑laws were published in the Government Gazette on 21 June 1991 at pages 3011‑4. They came into effect on that date, being the date of gazettal, as per by‑law 2. The only amendment identified in the compilation table is the Sentencing Legislation (Short Sentences - Aboriginal Community By‑laws) Amendment Regulations 2004, which took effect on 15 May 2004. This amendment is reflected in the note to by‑law 18 as having been amended by Gazette 14 May 2004 p. 1452.

The text of the amendment is not reproduced in the source, so the exact changes are unknown from this document. However, the title of the amending regulation suggests it concerned sentencing options for short sentences, likely removing imprisonment as a sentencing alternative or adjusting fines. Before 2004, the by‑laws may have carried a higher penalty or the possibility of imprisonment. The current by‑law 18 provides only a fine maximum of $100 and no term of imprisonment. It is plausible that the amendment reduced penalties to ensure that breaches remained summary offences with minimal sentencing consequences, consistent with a policy of avoiding incarceration for by‑law breaches.

The compilation date is 8 April 2005, and the by‑laws were reprinted as at that date. No further amendments appear in the note. This means the by‑laws have not been significantly updated in nearly two decades. The maximum fine of $100 has not been indexed for inflation; its real value has declined considerably since 1991, let alone 2005. The compensation limit of $250 is similarly outdated. The Liquor Licensing Act definition of liquor may have been amended since 2005, but the by‑laws continue to refer to the 1988 Act as at that time, though it remains the same Act. No other amendments have been made to the definitions, powers, or procedural provisions.

The compilation table also shows that the by‑laws were not amended between 1991 and 2004, so they operated for 13 years in their original form. The 2004 amendment was the only change in 14 years from commencement to compilation. This suggests that the by‑laws are not frequently reviewed or updated, which may lead to gaps with current practices or legal frameworks. For example, the definition of “deleterious substance” does not include newer inhalants such as nitrous oxide or aerosol propellants. The medical exemption for pharmaceuticals does not reference the current medicines legislation.

The absence of any amendment since 2005 also means the by‑laws do not reflect changes in police powers, criminal procedure, or community governance structures. The Child Welfare Act 1947 is now repealed, yet it is still referenced in by‑law 17. This is a technical obsolescence that could cause confusion in proceedings involving juveniles, but a court would likely read the provision as referring to the current children’s legislation by necessary implication.

The source document contains no reference to any court cases, decisions, or litigation history concerning these by-laws. There are no reported judgments cited in the text, nor any annotations or case notes. This is consistent with the nature of these by-laws: they are local, low-stakes criminal offences with small penalties, making appeals or legal challenges unlikely. A maximum fine of $100 is rarely worth the cost of a legal challenge, and the by-laws do not create civil rights that would ground a judicial review action.

However, the absence of litigation history in the source does not mean no cases have ever arisen. It means the compiler did not include any. A deeper search outside this document might reveal whether any appeals were heard in the Western Australian magistrates court or the Supreme Court. Given that the by-laws have been in force since 1991, it is plausible that some prosecutions occurred, but they would likely have been routine summary matters without published reasons. The defence of acting under custom has not been tested in any publicly noted case in this document.

The most likely area for litigation would be the application of by-law 20, which deems a Council member charged with a liquor offence to have ceased to be an effective councillor. This could give rise to disputes over the validity of Council decisions made during the period of suspension, or over whether a charge was properly laid. A dismissed council member might seek declarations in the Supreme Court. But again, no such case is recorded here.

Another potential area is the definition of “Aboriginal” for entry purposes. The Council’s recognition of a person as Aboriginal is subjective and not guided by any objective criteria. A person refused entry who identifies as Aboriginal could argue the Council’s decision was not made in good faith or was racially discriminatory. However, the by-laws explicitly give the Council unfettered discretion, and a court would likely defer given the special purpose of these laws.

Given the limited scope of the source, the deep dive must note that no litigation history is contained within it. The reader should be aware that this does not prove the by-laws are uncontroversial; it simply means the text does not supply cases. For a full picture, a practitioner would need to conduct independent searches of WA court databases.

Several provisions in the by-laws contain traps for the unwary. The most serious is by-law 20: a Council member charged with an offence under by-law 8 (liquor) is automatically deemed to have ceased to be an effective councillor. This operates from the moment of charge, not conviction. There is no procedure for a hearing before removal. A charge can be laid by a police officer or by any person (by-law 16 says a member of the Police Force may take proceedings, but any person could lay a complaint under the Justices Act). A malicious prosecution could remove a councillor for weeks or months, and the restoration provision only applies if the charge is withdrawn or dismissed after trial. If the charge is dismissed before trial (e.g., on a technicality), the councillor might not be restored. The by-law says “dismissed after trial”, which is ambiguous. A pre-trial dismissal might not count, leaving the councillor permanently removed.

Definition of “Aboriginal” is not defined in the by-laws. The Council decides who it recognises as Aboriginal. This gives the Council almost plenary power to decide who needs permission to enter. A person who considers themselves Aboriginal but is not recognised could be prosecuted for entry without permission. There is no appeal mechanism.

Oral permission can be given and revoked orally, with no written record. This creates evidential difficulties. A visitor who believes they received oral permission may later be accused of entering without permission if the Council member denies granting it. The burden of proof is on the prosecution, but the uncertainty could be exploited.

By-law 7 requires a person who is told to leave a house by the principal occupant or the person in charge to leave immediately. This applies even to community members and even if they have a right to be on the community land generally. A family dispute could lead to a criminal charge if the person refuses. The phrase “told” includes any communication; it does not have to be in writing or formal.

Police search powers under by-law 16(d) do not require a warrant and are based on reasonable suspicion. The power to detain a vehicle for up to 14 days under by-law 16(e) is triggered “if a liquor or a deleterious substance is found in a vehicle”. Slight grammatical oddity: the power says “if a liquor or a deleterious substance is found in a vehicle through the exercise of the power conferred by by‑law 17”. But by‑law 17 is the procedure provision, not a search power. This appears to be a drafting error; the intended cross‑reference is probably to by‑law 16(d). This error could be used to argue the vehicle detention power is invalid or ambiguous, but a court would likely read it as referring to the search power. Nevertheless, it is a drafting flaw.

The six-month limitation period is short. A person who leaves community land and is not pursued immediately may avoid prosecution if the police delay. However, the period commences on the date of the offence, not the date of discovery.

Maximum fine of $100 is so low that it may not act as a deterrent, but it also means defendants may not bother to contest charges, especially if they risk further costs. The low penalty also means that the rules of evidence may be applied more loosely in practice.

Custom defence under by‑law 19 places the onus on the defendant. This reverses the usual criminal onus on the prosecution. The defendant must “show” they were acting under and excused by a custom. The standard of proof is likely on the balance of probabilities, as it is an affirmative defence. This can be difficult to prove without formal written records of custom.

Employee permission for government employees is deemed, but only “in connection with their duties”. An off-duty police officer visiting a friend would not have deemed permission and would need separate Council permission. Similarly, a teacher living on community land as part of a housing arrangement would need to distinguish between work time and personal time.

Possession of petrol for inhalation is banned, but petrol for use in a vehicle or generator is lawful. The offence requires proof of purpose of inhalation. This may be difficult to prove, but the sale/supply prohibition in by‑law 10(b) only requires reasonable grounds to suspect.

For any person intending to enter the community land of the Mt Margaret Mission community, the first step is to determine whether they are recognised by the Council as Aboriginal. If not, they must obtain prior permission from the Council. Permission can be requested orally or in writing, but it is prudent to obtain written confirmation to avoid later disputes. The Council may impose conditions, such as limits on the duration of stay, areas that may be visited, or conduct requirements. The person must comply strictly with those conditions. Permission may be revoked at any time without reason. If the Council asks the person to leave, they must do so as quickly as reasonably possible. Failure to do so is an offence.

Members of the community do not need permission to enter or remain, but they must still comply with all other by-laws. They should avoid bringing liquor onto community land unless they have explicit Council permission. Mere possession of liquor without permission is an offence, even if the person is in their own home. The Council’s permission is discretionary and may be granted only for specific events or people. Community members should also avoid being on community land while under the influence of liquor to the extent that they cause alarm, annoyance or upset. This is a subjective assessment, but a good rule of thumb is to avoid public intoxication that draws attention.

No person should possess glue, volatile hydrocarbons or petrol for the purpose of inhalation. Anyone selling or supplying such substances on community land must take reasonable steps to ensure the recipient is not likely to use them for inhalation. This may mean refusing sales to known inhalers or asking about intended use. Tradespeople bringing petrol for equipment should keep it only in the quantities needed and ensure it is not left accessible to others.

Drivers must obey any traffic signs erected by the Council. They must drive with due care and attention and not dangerously. These duties apply on all roads and tracks on community land, not just public roads. For those driving a vehicle owned or leased by the community, they must get permission from the Council or an authorised person, hold a valid drivers licence of the appropriate class, and not be under the influence of liquor or deleterious substances. It would be wise to carry written authorisation when driving a community vehicle.

All persons should avoid using abusive language, fighting, or behaving in an offensive or disorderly manner. This is a broad prohibition that could cover shouting, swearing, or public arguments. Damaging any property, whether community or individual, is prohibited. Even minor damage like breaking a branch off a tree could lead to a fine and compensation order. Interrupting any meeting of the Council or the community, or any customary meeting, by noise or disorderly behaviour is also an offence.

If a person is told to leave a house by the occupant or person in charge, they must do so immediately. This applies even to community members. The safest response is to leave without argument and raise any dispute later with the Council.

Police have extensive powers to search vehicles and persons. Cooperating with police requests for name and address is advisable, as refusal may lead to further investigation or removal. If a person believes they have been treated unfairly, they should seek legal advice and consider whether any defence, such as acting under custom, applies. The custom defence requires evidence of a recognised community custom that excuses the conduct. This should be raised as early as possible with the assistance of community elders and legal representation.

Finally, any person who is a Council member should be extremely cautious about liquor. Even being charged with a by-law 8 offence results in automatic loss of councillor status. It is advisable to abstain from bringing or consuming liquor on community land without formal Council authorisation, and to ensure any permissions are documented. If charged, the member should seek immediate legal advice to have the charge dismissed or withdrawn as quickly as possible to restore their position.