Bayulu Community By-laws 2006

The by-laws affect every person who enters or resides on the community lands of Bayulu Community Incorporated, but the impact differs sharply between members and non-members.

Members are those recognised under the association’s constitution. They have an automatic right to be on community lands at any time, subject only to police removal under by-law 14(3). However, they are still bound by all substantive rules: driving, rubbish, noise, drug and alcohol prohibitions, and the general prohibition on indecent or disorderly behaviour. Members benefit from the custom defence, which non-members do not. They are also subject to Council decisions regarding conditions and permissions when those are required (e.g., for alcohol permission). Members may be affected by the Council’s ability to take away permission at any time without reasons, and by the police powers of arrest and removal. For a member, the by-laws represent a trade-off: they gain collective control over community spaces, but they lose some individual freedoms, especially regarding alcohol and freedom of movement when under the influence.

Non-members are anyone not a member: visitors, service providers, contractors, family members of members, government officials, or trespassers. Non-members have no right to be on community lands unless they hold written permission from the Council (by-law 5(1)). They may enter the lands without permission solely for the purpose of going straight to the administration office to request permission (by-law 5(2)). Once granted permission, they must obey any conditions imposed, and the Council can order them to leave immediately if they breach conditions (by-law 5(4)-(5)). Non-members are fully subject to all other by-laws and face the same fines and police powers as members, but cannot use the custom defence. This creates a high compliance burden: a non-member must secure written permission before staying or even entering for non-administrative purposes, and that permission may be revoked without warning.

The Council of Leaders is the key decision-maker. Its members bear the responsibility of exercising discretion under by-laws that give no objective criteria beyond “the welfare of the community.” The absence of a reasons requirement means Council members are not publicly accountable for individual decisions. The by-laws do not impose duties on the Council to act fairly or reasonably, only to consider community welfare as the most important consideration. This may expose the Council to internal governance disputes and external legal challenges based on the parent Act or general administrative law, but the by-laws themselves provide no avenue for review.

Western Australia Police Force officers have significant powers under by-law 14. They can request name and address from anyone they believe is breaching a by-law; they can arrest and remove any person they believe is breaching a by-law or is going to injure others or damage property; and they can seize anything connected to an offence. These powers are additional to those under general criminal law and the Bail Act 1982 (by-law 14(5)). Police are the primary enforcement agents, and the by-laws do not provide for any community-based enforcement.

Courts are affected in that they have jurisdiction over offences against the by-laws. They can impose fines up to $5,000 and order compensation up to $250 for damage to property or injury to a person or the association. The court must adjudicate the custom defence if raised by a member. The small compensation cap is notable: it likely reflects an intention to keep matters simple and avoid complex civil claims, but it also means victims cannot recover full market value for damage.

Duties apply to all persons on community lands. The most significant are: (1) the duty to obtain and comply with permission (for non-members) (by-law 5); (2) the duty to drive carefully with a valid Australian driver’s licence and obey Council traffic signs (by-law 6); (3) the duty not to leave rubbish except in Council-provided bins or tips, and not to leave rubbish in or outside houses without permission of the occupants (by-law 7); (4) the duty not to intentionally damage property not belonging to oneself, including plants and trees planted in residential areas (by-law 8); (5) the duty not to enter another’s house without permission and to leave if asked (by-law 9); (6) the duty not to bring, possess, supply, consume, or be under the influence of illegal drugs or harmful substances (with an exception for prescribed medication taken properly) (by-law 10); (7) the duty not to bring, possess, supply, or drink alcohol without Council permission, and if under the influence, to go home and stay there and avoid public places including the store and office (by-law 11); (8) the duty not to behave indecently or disorderly (by-law 12); (9) the duty not to play loud music or make loud noise after 10 p.m. Sundays to Thursdays and after midnight Fridays and Saturdays until 7 a.m. (by-law 13); and (10) the duty to provide name and address to a police officer who believes a by-law is being broken (by-law 14(2)).

Rights are limited but include: (1) a member’s right to be on community lands at any time unless removed by police (by-law 4); (2) a non-member’s right to enter community lands for the limited purpose of going to the administration office to request permission (by-law 5(2)); (3) the right to request permission from the Council (by-law 3(2)), though the Council may refuse without reasons; (4) a member’s right to raise a custom defence in court, shifting the evidential burden (by-law 15(3)); (5) the right of anyone arrested under by-law 14(3) to be released after court appearance and in any event within 24 hours, though this does not affect the Bail Act (by-law 14(4)-(5)); (6) the right not to have one’s lawful medication restricted (by-law 10(5)). Notably, there is no right to appeal a Council decision, no right to a hearing before permission is revoked, and no right to reasons. The Council’s power to delegate decision-making to others (by-law 3(1)) also means a person might be dealt with by a delegate without recourse to the full Council.

The by-laws create offences: a person commits an offence if they disobey any by-law or any condition imposed under a by-law (by-law 15(1)). Only police officers can charge a person (by-law 15(2)). There is no provision for Council-initiated charges. The maximum penalty a court may impose for an offence is a fine of $5,000 (by-law 15(4)). This is a substantial sum, particularly for low-income individuals. The court may also order compensation of up to $250 to Bayulu Community Incorporated or to another person if the offender damaged property or injured a person during the offence (by-law 15(5)). This cap on compensation is low relative to potential damage; it may deter victims from seeking restitution through the by-laws and instead rely on state civil remedies or criminal restitution orders under other laws.

Police powers are broad. A police officer may: (1) request name and address from anyone believed to be breaching a by-law (by-law 14(1)); (2) arrest and remove anyone the officer believes is breaching a by-law, or is about to injure others or damage property (by-law 14(3)); (3) seize any thing (including vehicles and animals) connected to or evidencing a breach (by-law 14(6)). The arrest power is triggered by a subjective belief of the officer; there is no requirement for a warrant or reasonable grounds beyond belief. The power to seize property is similarly subjective. The by-laws do not specify procedures for return of seized property or for review of the seizure. After arrest, the person must be released within 24 hours and after court appearance (by-law 14(4)). This is a safeguard, but the 24-hour detention period without charge could be significant.

Enforcement is entirely state-police driven. There is no community-based enforcement mechanism, no by-law rangers, and no penalties for breaching conditions beyond the $5,000 fine. The Council cannot levy fines or issue infringement notices; it must rely on police. This may result in under-enforcement if police resources are scarce or if officers are reluctant to intervene in community matters. Conversely, the broad police powers could be used in ways that the community does not endorse, creating tension between the Council and the police. The by-laws do not address what happens if a person removed by police returns immediately; it is likely that the removal alone is not an offence unless a court order is in place. The by-laws also do not create a trespass offence independent of the general law; they rely on police removal powers.

By-law 1(7) expressly states that these by-laws are in addition to the laws of Western Australia. This means all general state criminal laws continue to apply: for example, assault, theft, drug trafficking, traffic offences, and public order offences are still enforceable alongside the by-laws. The by-laws do not create exclusive jurisdiction; they are a supplementary layer.

The Aboriginal Communities Act 1979 is the enabling statute. Under that Act, the Governor approves by-laws for Aboriginal communities. The by-laws cannot be inconsistent with the parent Act. The parent Act grants the Governor power to declare community lands, and the by-laws derive their territorial scope from that declaration. The by-laws do not override the parent Act; any inconsistency would likely see the by-laws invalid.

The Bail Act 1982 is preserved by by-law 14(5), so a person arrested under by-law 14(3) may still be granted bail under that Act before the 24-hour limit.

State traffic laws remain in force. By-law 6(2) requires a valid Australian driver’s licence, which is also a requirement under the Road Traffic Act 1974 (WA). Driving without a licence is thus an offence under both regimes, but the by-law does not create a separate penalty for that; it is an element of the by-law offence. The Council’s power to put up traffic signs (by-law 6(3)) is additional to any state or local government sign-posting powers; presumably Council signs must be consistent with state traffic regulations, though this is not stated.

Drug and alcohol offences under the Misuse of Drugs Act 1981 (WA) and Liquor Control Act 1988 (WA) continue to apply. By-law 10(1) defines illegal drugs by reference to state law, so if a substance is decriminalised or legalised under state law, it ceases to be an “illegal drug” for by-law purposes. Alcohol prohibition under by-law 11 is stricter than state law, which generally permits alcohol possession and consumption subject to licensing and public drinking restrictions. The by-law effectively creates a dry area for the entire community lands unless the Council grants permission. That is permissible because the Aboriginal Communities Act 1979 allows communities to regulate alcohol on their lands. It interacts with any state liquor bans or permits in the area; a state permit to possess alcohol would not override the by-law prohibition without Council permission.

The custom defence (by-law 15(3)) introduces a unique interaction with the common law and the Racial Discrimination Act 1975 (Cth). Arguably, giving members a defence not available to non-members could be seen as a special measure under the Racial Discrimination Act if it is for the benefit of the Aboriginal community. However, the defence is not limited to acts that are lawful under state law; a member could theoretically be excused for an act that would be criminal under state law if it is a custom. This could create conflict between the by-laws and state criminal law. In practice, the custom defence is likely limited to minor by-law offences (e.g., noise, rubbish) and would not excuse serious crimes. The by-laws do not define “custom,” leaving it to courts to determine.

Finally, the by-laws do not interact with native title or land rights legislation in any explicit way. The Aboriginal Communities Act 1979 is a separate statutory regime, and the by-laws operate within it.

The compilation table notes that the Bayulu Community By-laws 2006 were gazetted on 19 May 2006 (p. 1841-52) and commenced on the same date. There are no subsequent amendments recorded in the compilation. The by-laws appear to have remained unchanged since their inception. The absence of amendment history does not mean the by-laws are static; the Council could seek approval from the Governor to amend them under the Aboriginal Communities Act 1979, but no such amendments are reflected in the source document. The by-laws were made nearly two decades ago, and their content may not reflect current community needs or legal standards. For example, prescription medication exceptions (by-law 10(5)) may need updating if new substances are approved. The definition of harmful substances includes glue and petrol as examples; it may need to include synthetic drugs or new inhalants. However, the broad definition of “harmful substance” may capture new substances without amendment. The fine of $5,000, set in 2006, has not been indexed for inflation, though the court retains discretion within that maximum. The compensation cap of $250 is also frozen. Any amendment would require the same process: the Council must propose by-laws, and the Governor must approve them. Without amendment, the by-laws are starting to age, which may affect their enforceability and relevance.

The source document does not contain any references to cases or litigation involving the Bayulu Community By-laws 2006. No court decisions, enforcement actions, or challenges are mentioned. This may indicate that the by-laws have not been the subject of reported litigation. However, the absence of litigation history in the document does not guarantee that no cases exist; it simply means the compilation does not include them. It is possible that breaches have been dealt with in local courts without generating reported decisions. Potential litigation risks include: (1) a challenge to the validity of a Council decision on the ground that it did not consider community welfare as the most important consideration; (2) a dispute over whether a particular act is a “custom of the community” for the defence under by-law 15(3); (3) a claim that police powers under by-law 14 were exercised unreasonably or in bad faith; (4) an argument that the by-laws are inconsistent with the Aboriginal Communities Act 1979 or broader state or Commonwealth laws, including the Racial Discrimination Act 1975. The custom defence clause is a potential source of litigation because “custom” is not defined and may be difficult to prove. Additionally, the broad police power to arrest and remove based on a belief that a person “is going to injure other people or damage property” (by-law 14(3)(b)) is highly subjective and could be challenged as a breach of the common law requirement for reasonable grounds. To date, there is no public record of such challenges being successful or even brought. The lack of litigation may also reflect the community’s preference for informal resolution or the high cost of legal action.

The by-laws contain several traps for the unwary. First, the Council is not required to give reasons for any decision (by-law 2(2)). A person whose permission is revoked or who is refused permission has no way to know why. This makes it impossible to challenge the decision on its merits, and only procedural errors (e.g., failure to consider community welfare) could be grounds for judicial review. The by-laws do not provide for internal review or appeal.

Second, non-members may only enter community lands without permission strictly to go to the administration office and ask for permission (by-law 5(2)). Stopping anywhere else, driving around, or visiting a house before obtaining permission is a breach. The by-laws do not define “administration office” or what happens if the office is closed. A well-meaning visitor who wanders off the prescribed path commits an offence.

Third, the alcohol prohibition is absolute unless the Council grants permission (by-law 11(1)). This means possessing even a single beer is an offence. The Council’s permission may be given to a class of persons (e.g., during events) but can be revoked at any time. There is no exception for medicinal alcohol (e.g., communion wine), unlike the exception for prescribed drugs. A person taking alcohol-based medication could be in breach.

Fourth, the custom defence (by-law 15(3)) is only available to members. A non-member who performs an act that is a custom (e.g., participating in a ceremony that involves certain conduct) cannot raise custom as a defence. This could create awkward situations where a non-member is liable for conduct that is permitted for members.

Fifth, police can seize any thing connected to an offence, including vehicles and animals (by-law 14(6)). There is no time limit on retention and no compensation scheme for wrongful seizure. If an officer mistakenly believes a vehicle is evidence, the owner could lose it indefinitely.

Sixth, the noise restrictions (by-law 13) have different start times depending on the day: 10pm Sunday to Thursday, midnight Friday and Saturday. The “next day” end time is 7am. A Friday night party must stop at midnight, not 10pm. This is an easy detail to overlook.

Seventh, the obligation to go home and stay home when under the influence of alcohol or illegal drugs/harmful substances (by-laws 10(4) and 11(2)) applies even if the person is not on community lands? The by-laws only apply on community lands, so the duty to “go home” presumably means go to one’s home on the lands. If a member becomes intoxicated elsewhere and returns home, they must then stay home. But if they live off the lands, the by-laws do not apply off lands. However, the wording could be interpreted as requiring movement only within the community lands.

Eighth, there is no provision for the Council to issue infringement notices or accept payment of fines without court proceedings. All offences must go to court, which increases the cost of enforcement and the burden on the justice system.

Ninth, the consent to search or seize is not addressed; officers rely on by-law power, not on a warrant. This could be challenged under the common law as an unlawful intrusion absent specific statutory authority, but the by-law provides that authority.

Finally, the compensation cap of $250 is very low. If a person intentionally destroys a vehicle or building worth thousands, the maximum compensation under the by-laws is trivial. The victim would need to pursue separate civil proceedings for the balance.

For a member of Bayulu Community Incorporated, compliance requires understanding that most by-laws apply equally to you as to others, but you have additional rights (free access and custom defence). To avoid offences: do not bring alcohol onto community lands without explicit Council permission (by-law 11). Do not possess, consume, or be under the influence of illegal drugs or harmful substances; if you are prescribed medication, take it as directed (by-law 10). If you are under the influence of alcohol or illegal drugs, go directly home and stay there until you are sober, and do not go to the store, office, or any other public place (by-laws 10(4) and 11(2)). Do not drive without a valid Australian driver’s licence, obey all Council traffic signs, and drive safely (by-law 6). Dispose of rubbish only in Council bins or tips; do not leave rubbish in or near houses without permission (by-law 7). Do not intentionally damage anyone else’s property, including plants and trees in residential areas (by-law 8). Do not enter another person’s house without permission; leave immediately if asked (by-law 9). Avoid indecent, threatening, abusive, or rowdy behaviour (by-law 12). Keep noise down after 10pm on weeknights and after midnight on weekends until 7am (by-law 13). If a police officer asks for your name and address because they suspect a by-law breach, provide it (by-law 14(2)). If you are a member and believe your conduct was a community custom, you may raise that defence in court, but you should still comply with police instructions at the time.

For a non-member (visitor, worker, relative), compliance is more demanding. Never enter community lands without prior written permission from the Council, unless you are going directly to the administration office to request permission (by-law 5(1)-(2)). If you obtain permission before entering, upon arrival you must report to a Council member or delegate (by-law 5(3)). Strictly obey any conditions imposed by the Council; the Council can order you to leave immediately if you breach them (by-law 5(4)-(5)). Once you have permission, you must still obey all other by-laws as if you were a member, but you cannot rely on the custom defence. If you are unsure whether an act is permitted, ask the Council for written clarification; oral permission may not be sufficient, as written permission is required for non-members to be on the lands in the first place. If you are given written permission with conditions, keep that document with you. If you are directed to leave by the Council or by police, leave immediately. Do not take alcohol or illegal drugs onto the lands even if you have a general permission; alcohol requires separate express Council permission. If police arrive and request your name and address, provide it. If arrested, do not resist; you must be released within 24 hours. Avoid any behaviour that could be seen as disorderly or noisy, especially late at night. When driving, ensure you have a valid Australian driver’s licence and obey all signs. Overall, the safest course is to maintain clear written communication with the Council about your presence and activities on the community lands.