Beagle Bay Aboriginal Council Inc. By-laws 1982

Community land is land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of the Beagle Bay Aboriginal Community. This definition is central because most by-laws apply only on community land. The by-law 3 definition excludes the administrative area for the purposes of the entry permission requirement, but for other by-laws (alcohol, traffic, etc.) the administrative area remains part of community land unless otherwise stated.

Member of the community is defined as “any person who is accepted as a member of the community for the time being” (by-law 2). This is a subjective, community-determined status. There is no registry or objective criterion; acceptance can change over time. Non-members are subject to stricter entry and alcohol rules. The by-laws do not create any right to become a member.

The Council is the council constituted by the constitution of the Beagle Bay Aboriginal Council Inc. The by-laws do not specify the composition or quorum of the Council. The Council grants or refuses permissions to enter community land (by-law 3), to bring alcohol onto land other than the administrative area (by-law 12(2)(a)), and to light fires (by-law 13(1)). The Council may also erect restriction signs (by-laws 4 and 6). All permissions may be given or revoked orally or in writing, and may be subject to conditions.

The Administrator is a person acknowledged by the Council to be the Administrator of the community, or a delegate appointed orally or in writing. The Administrator has authority over the administrative area, including granting permission to bring alcohol onto that area (by-law 12(2)(a)). The Administrator does not have the power to grant general entry permissions; that power rests with the Council.

The administrative area is that part of community land described in a specific plan (Miscellaneous Plan No. 1097). It is excluded from the entry permission requirement in by-law 3, meaning non-members may enter the administrative area without prior Council permission if they have a bona fide reason and are authorised by the Administrator. However, they must still comply with all other by-laws while there. By-law 3(4) also permits a person authorised to be in the administrative area to pass through other community land to reach it.

Custom is referred to in by-law 17 as a defence. The by-laws do not define “custom of the community”. This leaves the defence open-ended; a court would need to determine whether a particular practice constitutes a custom and whether it excuses the conduct. The defence is only available if the defendant was “acting under, and excused by” the custom. This may require evidence of the custom’s existence, content, and binding nature within the community.

Permission is a recurring concept. All permissions under the by-laws may be given or refused orally or in writing, and may be revoked at any time orally or in writing. This creates significant flexibility for the Council and Administrator but also uncertainty for persons relying on permission, as there is no requirement for written records. A person who fails to comply with a term, condition, or restriction attached to a permission commits an offence (by-laws 3(3) and 12(4)).

The by-laws directly affect several categories of persons.

Non-members of the community are the primary targets of the entry and alcohol restrictions. Any person who is not accepted as a member of the community cannot enter or remain on community land without the prior permission of the Council, with the exception of the administrative area (by-law 3(1), (4)). This includes visitors, delivery drivers, tradespeople, government officials, and any other outsider. A non-member who enters without permission commits an offence, and if a non-member has been given permission but fails to comply with any term, condition, or restriction (e.g., time limit, area limitation), that also is an offence. Non-members also cannot bring, possess, use, or supply alcohol on community land without permission (by-law 12). For the administrative area, permission must be sought from the Administrator; for other land, from the Council.

Members of the community are not subject to the entry permission requirement (by-law 3(1) expressly applies to persons who are not members). However, members are bound by all other by-laws: they cannot drive dangerously or carelessly (by-law 7), damage property (by-law 8), litter (by-law 9), behave offensively or disrupt meetings (by-laws 10, 11), bring alcohol without permission (by-law 12), or light unauthorised fires (by-law 13). Members are also subject to by-law 5: if they are in a home that is not their own, they must leave when directed by an occupier of that home.

The Council is an affected entity because it holds the power to grant, refuse, and revoke permissions and to erect signs. The by-laws impose no duties on the Council other than the ability to act. However, the Council must exercise its discretion in relation to alcohol permissions with “the welfare of the community” as the paramount consideration (by-law 12(3)). This imposes a legal obligation, though it is not enforceable by a private person except perhaps through judicial review of a decision.

The Administrator has authority over the administrative area for alcohol permissions and for authorising persons to be there. The Administrator can be a delegate appointed orally or in writing. The Administrator’s decisions are also subject to the welfare of the community paramount consideration when dealing with alcohol permissions (by-law 12(3) applies to “the giver”, which includes the Administrator).

Occupiers of homes gain a right under by-law 5 to direct any person (including members) to leave their home. Failure to leave when directed is an offence. This gives occupiers a summary power to remove unwanted visitors, backed by criminal sanction. The by-law does not require the direction to be reasonable; it is absolute.

The police are given specific powers under by-law 14: to apprehend and remove a person from community land for up to 24 hours if the person has committed or is committing an offence and injury or damage appears likely; to request the name and address of any person believed on reasonable grounds to be unlawfully on community land or to have committed a breach of a by-law; and to take proceedings for any breach. These powers are in addition to any general police powers under state law.

Courts are affected insofar as they must adjudicate offences under the by-laws, apply the maximum penalty of $100, consider compensation orders up to $250, and determine the custom defence under by-law 17.

Anyone who drives a vehicle on community land is affected by by-law 7 (careless and dangerous driving) and by-law 6 (traffic signs). The by-laws create offences additional to the state road traffic laws.

Anyone who wishes to light a fire on community land outside a domestic fireplace must obtain the Council’s permission, and even then must not contravene the Bush Fires Act 1954 (by-law 13).

Duties of non-members: The primary duty is to obtain prior permission from the Council before entering or remaining on community land (by-law 3(1)). A non-member who is granted permission must comply with any terms, conditions, or restrictions attached (by-law 3(3)). For the administrative area, a non-member must have a bona fide reason and be authorised by the Administrator, and may only pass through other community land for the purpose of reaching the administrative area (by-law 3(4)). Non-members also must not bring, possess, use, or supply alcohol without permission from the Council (or Administrator for the administrative area) and must comply with any conditions (by-law 12).

Duties of all persons on community land: No person may drive dangerously or without due care and attention (by-law 7). No person may wilfully damage any tree, bush, building, vehicle, or other thing (by-law 8). No person may leave rubbish or litter except in designated bins or areas; in a home, they need the occupier’s permission to leave rubbish (by-law 9). No person may cause a disturbance or annoyance using abusive language, fighting, or otherwise behaving offensively or disorderly (by-law 10). No person may interrupt any meeting of the Council, the community, or any customary meeting (by-law 11). No person may bring, possess, use, or supply alcohol without prior permission (by-law 12). No person may kindle, light, or use a fire outside a domestic fireplace without the Council’s permission (by-law 13). Any person who is in a home other than their own must leave when directed by an occupier (by-law 5). Persons must obey signs erected under by-laws 4 and 6, including restriction signs and traffic signs.

Duties of the Council and Administrator: When deciding whether to grant permission for alcohol, the giver must treat the welfare of the community as the paramount consideration (by-law 12(3)). This is a legal duty that could ground a challenge if a permission is granted or refused arbitrarily. The Council may erect signs but is not required to do so.

Rights of the Council: The Council has the right to grant, refuse, or revoke permissions for entry and alcohol (on land outside the administrative area) orally or in writing, and to impose terms, conditions, and restrictions (by-laws 3(2), 12(2)). The Council may erect signs restricting entry or regulating traffic (by-laws 4, 6). The Council may set aside places for rubbish and for fires (by-laws 9(2), 13(1)).

Rights of the Administrator: The Administrator has the right to grant, refuse, or revoke alcohol permissions in the administrative area, and to authorise persons to be in that area (by-law 12(2)(a), 3(4)). The Administrator may delegate that power orally or in writing.

Rights of occupiers of homes: An occupier has the right to direct any person to leave their home (by-law 5). Non-compliance is an offence, so the occupier effectively has a summary eviction power backed by criminal law.

Rights of the police: Police may apprehend and remove a person from community land for up to 24 hours if an offence is committed or being committed and injury or damage appears likely (by-law 14(1)). Police may request name and address from a person believed on reasonable grounds to be unlawfully on community land or to have committed a breach (by-law 14(3)). Police may take proceedings for any breach (by-law 14(4)).

Right to raise the custom defence: Any person charged with an offence may argue that they were acting under and excused by any custom of the community (by-law 17). The burden is on the defendant to show that the custom exists and that the conduct was under and excused by it.

Right to return to community land: If a person is removed by police and a court is convened to deal with them, they must be returned to community land (by-law 14(2)). This ensures the person can attend court on the community land.

No right to a written record: A person who is given permission (entry or alcohol) has no right to a written record; permission may be oral. This creates evidentiary difficulties if the permission is later revoked or its terms disputed.

The penalty structure is set out in by-law 16. A person convicted of an offence against any by-law is liable to a fine of not more than $100. This is a relatively low maximum, fixed in 1982 and amended in 2004. The amount has not changed since 2004 and is not indexed. In addition to the fine, the court may order the convicted person to pay compensation of not more than $250 to the community or to another person for damage to property caused in the course of committing the offence (by-law 16(2)). This compensation is separate from any civil remedy.

Offences are created in two ways. By-law 15 expressly lists by-laws 5, 7, 8, 9, 10, 11, and 13 as offences. Additionally, by-laws 3(3), 4(2), 6(2), and 12(4) themselves state that a person who contravenes them commits an offence. Thus, every substantive prohibition in the by-laws is an offence. There is no by-law that imposes a penalty without an offence provision. The maximum penalty applies uniformly to all offences.

Enforcement is primarily by the police. By-law 14(4) provides that a member of the police force may take proceedings for any breach of a by-law. Police also have summary enforcement powers: under by-law 14(1), where a person has committed or is committing an offence and it appears likely that injury to persons or damage to property will be caused by that person, a police officer may apprehend and remove that person from community land. The removal must not exceed 24 hours. If a court is convened to deal with the person, the person must be returned to community land (by-law 14(2)). This power is not a penalty; it is a preventative measure. It does not require a conviction.

Police may also request the name and address of any person they believe on reasonable grounds to be on community land in breach of by-law 3 (entry without permission) or to have committed a breach of any by-law (by-law 14(3)). Failure to comply is not stated to be an offence in the by-laws, but it may be an offence under general police powers legislation (e.g., failing to provide name and address when required by a police officer).

The court may need to consider the custom defence under by-law 17. If the defendant raises it, the court must determine whether the conduct was under and excused by a custom of the community. This could lead to evidence from community elders or other sources. The by-laws do not allocate the burden of proof for this defence, but as a statutory defence, it is likely the defendant must prove it on the balance of probabilities.

The low maximum fine of $100 means that the deterrent effect of the by-laws is limited. For comparison, a single traffic infringement under state law can be hundreds of dollars. The by-laws also do not provide for infringement notices or on‑the‑spot fines; all offences must be prosecuted in court. This imposes transaction costs on the community and the state for each breach. The compensation order of up to $250 is also modest, though it may cover minor property damage.

There is no power for police to seize alcohol or other items under the by-laws. Police could rely on general powers under other legislation.

The by-laws are subordinate legislation made under the Aboriginal Communities Act 1979 (WA). That Act provides the head of power for the Governor to declare community lands and for by-laws to be made. If any by-law were inconsistent with the parent Act, the parent Act would prevail. The by-laws themselves acknowledge this hierarchy: by-law 3(1) says “Except as provided to the contrary in any Act or regulations”, and by-law 4(2) has a similar saving clause. This means that if a state or federal Act or regulation permits entry to community land (for example, a search warrant, a statutory right of access, or a law enforcement power), the by-law prohibition does not apply.

The by-laws intersect with the Bush Fires Act 1954 (WA). By-law 13(3) expressly provides that nothing in the by-law authorises a person to light a fire in an open fireplace in contravention of that Act. Thus, the Council’s permission to light a fire does not override the Bush Fires Act restrictions. A person must comply with both.

State road traffic laws also apply on community land. The by-law 7 prohibitions on careless and dangerous driving are additional to similar offences under the Road Traffic Act 1974 (WA) or the Road Traffic Code 2000. A driver could be charged under both regimes, though the double jeopardy principle would likely prevent two convictions for the same conduct. The by-law 6 traffic signs may conflict with state traffic signage standards, but the by-laws do not require signs to conform to state standards. A sign erected under by-law 6 could purport to regulate traffic in ways not authorised by state law; however, the by-law 6(2) provision that the inscription “operates and has effect according to its tenor” is subject to the saving clause in by-law 4(2) (“Except as provided to the contrary in any Act or regulations”), which likely means that if a state Act or regulation prohibits a certain sign, the by-law sign is ineffective.

The by-laws do not expressly interact with the general criminal law. Offences like assault, theft, or criminal damage remain prosecutable under state law. The by-laws provide additional, lower-level offences. The police powers in by-law 14 are in addition to the general powers of police under the Criminal Investigation Act 2006 (WA) or the Police Act 1892 (WA).

The custom defence in by-law 17 may intersect with native title rights or cultural heritage legislation, but the by-laws do not mention those. A custom that is also a criminal offence under state law (e.g., assault) could not be a defence to the state charge; the defence only applies to by-law offences.

The by-laws are local in geographic scope, applying only to community land. Outside that land, the by-laws have no effect. The definition of community land is tied to a Governor’s declaration under the parent Act, which is not reproduced in the by-laws.

The Land Information Authority Act 2006 (WA) is noted in the compilation: the Department of Lands and Surveys plans are now held by the Western Australian Land Information Authority. This affects the location of the administrative area plan.

The by-laws were originally made on 4 June 1982 and published in the Western Australian Government Gazette on pages 1770-1772. They commenced on that date.

The only amendment to the by-laws is recorded in the Sentencing Legislation (Short Sentences - Aboriginal Community By‑Laws) Amendment Regulations 2004, regulation 5, which amended by-law 16. The amendment was gazetted on 14 May 2004 and commenced on 15 May 2004. The text of by-law 16 as printed in this compilation shows a maximum fine of $100 and a maximum compensation of $250. Before the amendment, the penalty was likely different. The note “[By-law 16 amended: Gazette 14 May 2004 p. 1452‑3.]” confirms the change, but the original penalty amount is not stated in the source. The amendment regulation also affected other Aboriginal community by-laws in Western Australia as part of a broader sentencing reform.

The compilation table indicates a reprint (Reprint 1) as at 5 November 2004, which incorporated the amendment. The text currently in force is therefore the 2004 amended version. No further amendments have been made.

The by-laws have not been repealed or replaced. They remain in force as at the date of this compilation (the source does not give a currency date, but the compilation table shows no later amendment).

The by-laws as provided do not cite any court cases. There is no mention of litigation in the text. Because the by-laws are a local instrument with relatively low penalties, reported litigation is likely rare. However, potential areas of dispute include:

• The validity of by-laws that restrict entry and alcohol on the basis of community membership, which could raise human rights or discrimination arguments under state or federal law (e.g., Racial Discrimination Act 1975 (Cth)). The Aboriginal Communities Act 1979 is a special measure, but challenges could arise.
• The definition of “member of the community” and whether a person has been properly accepted or excluded. This could affect the application of by-law 3 and 12.
• The scope of the custom defence under by-law 17. A court would need to determine what constitutes a “custom of the community” and whether it applies to a particular by-law prohibition. This is untested in the text.
• The interpretation of the missing sub-bylaw (3) in by-law 6(2). If a defendant argues that a traffic sign is invalid because the by-law refers to a non-existent sub-bylaw, a court may have to resolve the ambiguity.
• The exercise of the police removal power under by-law 14(1), including whether the belief that “injury to persons or damage to property will be caused” was reasonable.
• The scope of “bona fide reason” in by-law 3(4) for entering the administrative area.

No litigated cases are identified in the source material. Researchers should check the West Australian Supreme Court and Magistrates Court databases for any unreported decisions.

Several features of the by-laws create traps for the unwary, both for community members and outsiders.

1. Oral permissions with no record. Permissions to enter or to bring alcohol may be given or revoked orally (by-laws 3(2)(a), 12(2)(b)). A person who relies on a verbal permission has no documentary proof. If the permission is later denied or the terms disputed, the person bears the risk of being charged with an offence. A visitor should seek written confirmation, but the by-laws do not require the Council or Administrator to provide it.

2. Revocation without notice. Permission may be revoked “at any time orally or in writing” (by-laws 3(2)(c), 12(2)(d)). A person who is on community land with a valid permission could be told orally that permission is revoked, and then be committing an offence if they do not leave immediately. There is no requirement for a reasonable period to depart.

3. The administrative area carve-out is narrow. By-law 3(4) excludes the administrative area from the entry permission requirement, but a non-member entering that area must have a bona fide reason and be authorised by the Administrator. The by-law does not define bona fide. A person who passes through other community land to reach the administrative area must stay on the route and must not linger. If they deviate, they may be in breach of by-law 3.

4. By-law 6(2) refers to a missing sub-bylaw (3). The by-law states “subject to sub‑bylaw (3)” but there is no sub-bylaw (3) in the instrument. This is almost certainly a drafting error (possibly a sub-bylaw was omitted or repealed). A person charged with disobeying a traffic sign could argue the provision is uncertain or inoperative. Council should clarify this.

5. The alcohol permission welfare test is vague. By-law 12(3) says “the welfare of the community shall be the paramount consideration” when deciding whether to grant alcohol permission. This is broad and subjective. A person denied permission has no clear grounds for review. Conversely, a person granted permission could later have it revoked if the Council or Administrator changes its view on community welfare.

6. The custom defence is undefined. By-law 17 allows a defence of acting under “any custom of the community”. The by-laws do not define custom, how it is proved, or whether it must be in writing. A defendant relying on an undocumented custom may struggle to prove it in court. The defence may also be inconsistent with other laws (e.g., if the custom involves alcohol or dangerous driving).

7. Home eviction power is absolute. By-law 5 requires a person in a home other than their own to leave when directed by an occupier. There is no requirement that the direction be reasonable, nor any defence (e.g., the person is a tenant or has a right of occupancy). This could be used to evict family members or guests arbitrarily, with criminal consequences.

8. Low penalties may encourage non-compliance. The maximum fine is $100, which for many people is less than the cost of complying with permission requirements. The compensation order is capped at $250. These amounts have not been updated since 2004 and may not deter misconduct, especially from outsiders who have no ongoing relationship with the community.

9. Police removal power has ambiguous return condition. By-law 14(2) says a person removed must be returned to community land “if a Court is convened to deal with him according to law”. If a court is convened, the person is returned presumably to attend court. If no court is convened within 24 hours, the person must be released (the removal cannot exceed 24 hours). But the by-law does not say where the person is released; they could be left outside community land without permission to re-enter.

10. No provision for review of Council decisions. The by-laws do not create any internal review or appeal mechanism for a person refused permission. Judicial review may be available but is costly and slow.

11. Definition of “member of the community” is fluid. Acceptance as a member can change “for the time being” (by-law 2). A person who was a member could be deemed no longer a member, and then suddenly be subject to entry and alcohol restrictions. There is no requirement for notice.

12. Traffic signs may conflict with state law. The by-laws do not require Council traffic signs to comply with the Road Traffic Code 2000. A driver who obeys a by-law sign that is inconsistent with state traffic laws could still be liable under state law.

Compliance with the Beagle Bay Aboriginal Council Inc. By-laws 1982 requires attention to the specific permission requirements and prohibitions. The following steps are recommended for different categories of persons.

For non-members wishing to enter community land: Obtain prior permission from the Council. Seek written permission (even though oral is allowed) to have a record. If the permission is oral, note the date, time, and terms. Ensure you understand any conditions (e.g., areas you may enter, duration, purpose). Carry any written permission with you. If you are only going to the administrative area, you need authorisation from the Administrator, not the Council, but you also need a bona fide reason. If the purpose is to pass through other community land to reach the administrative area, do not deviate from the route.

For anyone bringing alcohol onto community land: Obtain prior permission from the Council (for land outside the administrative area) or the Administrator (for the administrative area). Again, seek written permission. Comply strictly with any conditions (e.g., quantity, location, time). Remember that the welfare of the community is the paramount consideration for the permission giver, so any behaviour perceived as contrary to community welfare may lead to revocation or refusal. Do not supply alcohol to others without specific authorisation.

For members of the community: While you are exempt from the entry permission requirement, you are not exempt from the other by-laws. Do not drive dangerously or carelessly (by-law 7). Do not wilfully damage property (by-law 8). Dispose of rubbish only in designated bins or areas; if you are in a home, do not leave rubbish without the occupier’s permission (by-law 9). Avoid offensive language, fighting, or disorderly behaviour (by-law 10). Do not interrupt meetings of the Council, community, or customary meetings (by-law 11). Do not bring alcohol without Council permission, even if you are a member (by-law 12). Do not light a fire outside a domestic fireplace without Council permission (by-law 13). If you are in a home that is not your own, leave immediately if the occupier tells you to (by-law 5).

For occupiers of homes: You have the right to direct any person to leave your home. If the person is a non-member who entered without permission, you can also report them to police. If the person refuses to leave, you may call police; the refusal is an offence (by-law 15). However, be aware that the by-law gives you this power, but you should not use it in a way that breaches other laws (e.g., assault).

For drivers: Obey any traffic signs erected by the Council, even if the by-law has a missing sub-section. Drive with due care and attention; avoid speeds or manners that are dangerous to any person (by-law 7). Note that state road laws also apply.

For anyone lighting a fire: Only light a fire in a domestic fireplace in a home without permission. For any other fire (e.g., campfire, cooking fire outside), obtain the Council’s permission first. Even with permission, ensure compliance with the Bush Fires Act 1954. Use only designated fire places set aside by the Council.

For those relying on the custom defence: If you believe you were acting under a custom of the community, be prepared to prove it. Gather evidence: witness statements, elders’ testimony, written records of the custom. The defence is not automatic; the court must be satisfied that the custom exists and that it excuses the conduct. Do not assume the defence will cover conduct that is clearly prohibited by other laws.

General compliance tips: Keep a record of all permissions. If a permission is revoked orally, ask for written confirmation. If charged, seek legal advice. The low penalty may make it economical to pay the fine rather than defend, but a conviction is recorded. For the Council and Administrator, ensure decisions on alcohol permissions are made with the welfare of the community as the paramount consideration, and if possible, document the reasoning to defend against any challenge. The Council should consider resolving the missing sub-bylaw (3) issue in by-law 6 by seeking an amendment. For now, treat traffic signs as effective. The police should ensure that removals under by-law 14(1) are based on reasonable grounds and that the 24-hour limit is respected; a longer removal could be false imprisonment.