By-laws for the Regulation of the Wubin Memorial Park

“The park” is defined in s 1 as the Wubin Memorial Park, including any part of it. This definition is broad enough to cover all land within the reserve boundaries, irrespective of improvements, water bodies, or subdivided areas. “Unauthorised person” is defined as any person other than a person for the time being duly authorised in writing by an officer of the Board. This is a critical concept: it effectively means that every person entering the park is an unauthorised person unless they have received written authorisation from a Board officer. The by-laws then impose a long list of prohibitions on unauthorised persons (s 2(i)-(xxiii)). The practical effect is that the default legal position for anyone in the park is that they must not do any of the listed acts. The only ways to become authorised for a particular activity (such as selling goods, holding a public speech, or playing a musical instrument) are to obtain the Board’s written consent under the hand of some official. This creates a permission-based regulatory regime rather than a rule-based one: the Board retains discretion to grant or withhold consent for each activity on a case-by-case basis, with no documented criteria in the by-laws themselves. Games and sports are a separate regime under s 3. The Board may set apart portions of the park for games, athletic sports, or general assemblages by way of conspicuously exhibited notices. Once an area is set apart, additional prohibitions apply: no driving or riding over the ground, no dangerous driving among assembled persons, no unauthorised participation except at times and under regulations the Board prescribes, no obstruction of participants, and no placing of chairs, seats, bandstands or other moveable erections without Board consent. This concept effectively creates a zoning power: the Board can designate parts of the park for active recreation (potentially with fees) while leaving other parts subject only to the general prohibitions. Removal of offenders under s 4 is a distinct concept: it is an administrative power of ejection, separate from the penalty provision. It does not require a conviction or any judicial process. The officer or constable can remove a person if (a) the infraction is witnessed and the person’s name and residence are unknown or not readily ascertainable, or (b) the infraction is witnessed and there is reasonable ground to believe the person’s continued presence may result in another infraction, or removal is otherwise necessary for proper use and regulation of the park. This is a low-threshold power: “reasonable ground for belief” is subjective, and the officer may rely on information from others (“credibly informed”). Rights not affected under s 7 protects the interests of anyone holding a legal estate, right or interest in or over the park. This might refer to holders of leases, easements, or other proprietary rights that predate or survive the vesting in the Board. These by-laws cannot prejudice those rights, and the Board does not obtain any greater estate than it already holds under the Parks and Reserves Act 1895. Penalty under s 5 is a fine not exceeding twenty pounds. That amount was set in 1952 and has never been adjusted. In modern terms, twenty pounds from 1952 would be equivalent to several hundred dollars, but the by-laws do not provide for any indexation, so the maximum penalty remains at that historical figure.

The by-laws primarily affect all persons entering or using the Wubin Memorial Park. Because “unauthorised person” is defined by reference to written authorisation from a Board officer, the default classification of every visitor is as an unauthorised person unless they have obtained specific written permission. This includes local residents, tourists, contractors, delivery drivers, and anyone seeking to exercise free speech or assembly within the park. Members of the Wubin Memorial Park Board are directly affected as the body responsible for making the by-laws, granting or withholding consents, setting fees for games and sports, designating areas for activities, and enforcing the rules. The by-laws give the Board significant discretionary power: decisions about which activities to permit, on what terms, and at what price are left entirely to the Board with no published criteria, no right of appeal, and no requirement to give reasons. Officers of the Board (employees or agents authorised by the Board) have powers of removal under s 4 and the ability to grant written authorisations. They also have enforcement responsibilities; interfering with them is itself an offence (s 2(xxii)). Police constables are also empowered to remove offenders under s 4, and their general powers to prevent or punish offences are preserved by s 6. This means that police can act under both the by-laws and general criminal law, potentially using the removal power as a lower-threshold tool to eject someone from the park without charging them with an offence. Persons holding legal estates, rights or interests in or over the park are protected under s 7. This might include the original grantors of the reserve, lessees, or those with easements or profits à prendre. Their rights cannot be prejudiced by the by-laws. However, the identity of such persons is not specified in the by-laws themselves. Commercial operators are heavily affected: selling or letting articles (s 2(xvi)), placing chairs or seats for hire (s 2(xvi)), or erecting any booth, tent, stand or other structure (s 2(vii)) all require the Board’s written consent. Erecting a band-stand or other moveable erection on a designated games area also requires consent (s 3(e)). This creates a licensing regime with no criteria, no cap on fees, and no guarantee of approval. Community groups and event organisers are affected because public speeches, lectures, prayers, sermons, addresses, songs, public discussions, and public assemblages are prohibited except between morning and sunset on approved sites (s 2(xviii)). This restricts not only political or religious speech but also any form of public gathering. Animal owners are affected: livestock (s 2(vi)) are entirely prohibited; dogs must be under control on a leash (s 2(xxi)); and riding horses, ponies, donkeys, or other animals is only allowed in places described in writing by the Board (s 2(xii)). Musicians and performers cannot play or make sounds on any musical instrument without the Board’s written consent (s 2(xix)). Bathers and water-users are restricted: bathing, washing, and water removal are only permitted under Board-prescribed conditions (s 2(xx)).

The by-laws impose negative duties on persons in the park: a long list of things that an unauthorised person must not do (s 2). The most absolute duties are to not damage vegetation, remove soil, light fires, litter, trap birds, bring livestock, erect structures, deface property, drive off defined roads, ride outside designated areas, brawl, use indecent language, discharge firearms, climb trees, or allow dogs off-leash. Some duties are conditional: selling articles, playing games, delivering public speeches, playing musical instruments, bathing, and removing water all require prior written consent from the Board. Conditional duties shift the burden of proof: the individual must obtain permission before acting; acting without permission is an offence. Duties of drivers and riders under s 3 include not driving or riding over ground set apart for games or assemblages, not driving dangerously among persons assembled, not participating except at prescribed times, and not placing moveable erections without consent. Duty to comply with removal orders is implicit: a person removed under s 4 must leave the park. Failure to do so may constitute trespass or obstruction, though the by-laws do not expressly criminalise non-compliance with a removal order. Duties not to interfere with officers or other users are found in s 2(xxii): wilfully interfering with an authorised user or obstructing an officer in the execution of duty is prohibited. Duty not to aid or abet unspecified acts under s 2(xxiii) prohibits “any act which may not in these by-laws be specifically mentioned and which may tend to the injury or disfigurement of the park, or to interfere with the use thereof by the public for the purposes of exercise and recreation.” This is a sweeping residual prohibition that gives the Board and officers broad discretion to deem any behaviour detrimental, even if not listed. Rights are relatively sparse. The right to passive recreation is implied: the by-laws are made for the regulation of the park but do not grant an affirmative right of entry. Persons who comply with restrictions may remain. Rights of property holders are preserved under s 7: anyone with a legal estate, right or interest in the park cannot have those rights prejudiced by the by-laws. Rights of persons with written authorisation are recognised: unauthorised persons are defined negatively, meaning those who are authorised are not subject to the prohibitions (to the extent of their authorisation). However, the by-laws do not specify the rights of an authorised person; presumably they can do what the authorisation permits. Rights of removal are held by officers and constables under s 4. These are powers, not rights in the ordinary sense. Rights of police under s 6 are preserved. Right to make by-laws is vested in the Board under the parent Act, but the by-laws themselves do not confer any new rights on the Board. Right to set fees and conditions is implied in ss 2(xvi), 2(xvii), 2(xx), and 3. The Board can prescribe fees for games and sports, and conditions for bathing and water use, but the by-laws do not limit the amount of fees or require them to be reasonable.

The penalty provision (s 5) states that every person who offends against any provision of the by-laws shall be liable to a fine not exceeding twenty pounds (£20). This is a single maximum penalty applying to all offences, regardless of severity. The sum of £20 in 1952 is approximately $800 to $1,000 in 2025 Australian dollars when adjusted for inflation, although no official indexation is provided in the by-laws. The fine is likely recoverable in a summary court, but the by-laws do not specify the court or procedure; presumably the Parks and Reserves Act 1895 or general criminal procedure applies. Notably, there is no escalating penalty for multiple offences, no daily penalty for continuing offences, and no provision for other remedies such as restitution or community service. Enforcement is primarily by removal from the park under s 4, which can be exercised by any officer of the Board or any constable. Removal does not require a charge or conviction; it is an administrative act. There are two triggers. The first trigger (s 4(a)): the infraction is committed within the officer’s or constable’s view, and the person’s name and residence are unknown and cannot be readily ascertained. This allows immediate ejection of someone who cannot be identified. The second trigger (s 4(b)): the infraction is committed within view, and from the nature of the infraction or from any other fact of which the officer is aware (or is “credibly informed”), there is reasonable ground for belief that continued presence may result in another infraction, or that removal is otherwise necessary as a security for proper use and regulation. This is a broad discretionary power: “credibly informed” means the officer can act on hearsay; “necessary as a security for proper use” is subjective and not defined. There is no requirement to warn the person or give reasons. The by-laws do not provide any right of appeal against removal. Once removed, the person could potentially re-enter and be subject to the same removal power, which may lead to criminal trespass charges under other laws. Police powers are expressly preserved by s 6, so constables may also use their general powers to arrest, charge, or use reasonable force independently of the by-laws. The interaction between removal under s 4 and prosecution under s 5 is not specified. A person could be removed and later prosecuted, or only one action could be taken. The by-laws do not create a defence of lawful excuse or consent except where the Board has given prior written permission. The by-laws also do not provide for notices to comply, good behaviour bonds, or alternative dispute resolution. Enforcement relies on the presence of officers: the by-laws assume someone will be patrolling. Given the rural location of Wubin, actual enforcement may be sporadic. The lack of amendment since 1952 also suggests this instrument has been little used, if at all, but that does not affect its legal force.

The by-laws explicitly preserve police powers (s 6) and existing rights (s 7). They are made under the Parks and Reserves Act 1895, which is the parent Act. That Act likely contains provisions about the making of by-laws, the vesting of reserves, and the powers of boards. The by-laws cannot confer on the Board any greater estate, right or power than the Board already possesses under that Act (s 7). The by-laws also reference the Permanent Reserves Act 1899, under which the Wubin Memorial Park was gazetted as an “A” Class reserve. That Act may contain separate provisions about the management of permanent reserves. The interaction between these two Acts is not explained in the by-laws, but the vesting appears to be under the Parks and Reserves Act while the classification as an “A” Class reserve is under the Permanent Reserves Act. This could create complex questions if the two Acts conflict. The by-laws do not affect general criminal law. For example, assault, theft, drug offences, and drink-driving remain punishable under standard statutes, and police can deal with them under their usual powers (s 6). The by-laws add extra prohibitions (e.g., climbing trees, defacing rocks) that may not be criminal under other laws, but they do not override any other law. Trespass law may apply. A person removed under s 4 who later re-enters could be charged with trespass if the park is private property. However, the park is a public reserve, so the law of trespass may be limited. The by-laws do not create a specific trespass offence; they rely on removal and the penalty provision. Local government by-laws for the area (Shire of Dalwallinu) may also apply to the park if it is within that shire. The by-laws do not state they prevail over local laws. If both instruments regulate the same conduct (e.g., dogs, littering, vehicle use), there could be overlapping or conflicting provisions. Freedom of speech is constrained by s 2(xviii) which bans public speeches and assemblies except on Board-approved sites between morning and sunset. This interacts with the implied constitutional freedom of political communication under the Australian Constitution. While the by-laws predate the modern doctrine (established in Nationwide News and Lange cases), they may be invalid if they impermissibly burden political communication. However, the by-laws do not explicitly exempt political speech. Discrimination laws under state and federal legislation may be engaged if the Board exercises its discretion to grant or deny permissions in a discriminatory manner (e.g., based on race, sex, religion). The by-laws do not contain any non-discrimination clause. Occupational health and safety laws could apply to events or works within the park, but the by-laws do not reference them. Water rights are affected by s 2(xx), which restricts the carrying away or removal of water from the park. This interacts with state water allocation legislation. The by-laws do not carve out a right to take water for domestic or stock purposes. Native title is not mentioned, but if native title exists over the park, the by-laws may need to be read subject to the Native Title Act 1993 (Cth) and any applicable determinations. The by-laws do not provide for native title holders’ access or use.

The compilation table in the Notes shows only one citation: the original by-laws gazetted on 4 July 1952 at pages 1679-81, commencing on the same date. There are no amendments listed. This means the by-laws have remained unaltered for over 70 years. The penalty of £20 has never been updated. The regulatory framework reflects the social conditions and legal assumptions of 1952: restrictions on public speaking without consent, prohibition of “indecent” books and pictures, and the broad catch-all provision (s 2(xxiii)) are typical of mid-20th century reserve by-laws. No new technologies (e.g., drones, amplified sound, electric scooters, mobile phones) are addressed. The Board could have amended the by-laws by making new by-laws under the Parks and Reserves Act 1895 and having them approved by the Governor, but this has not occurred. The absence of amendment may suggest the by-laws are largely ignored or unenforced, or that the park is rarely used in ways that trigger them. However, from a strict legal perspective, all prohibitions remain in full force. The by-laws are still current legislation in Western Australia, as indicated by their inclusion in the compilation table. If a member of the public were to contravene any provision, they could theoretically be prosecuted, although a court may question the applicability of archaic penalties. The lack of amendment also means the by-laws have not been adapted to modern human rights instruments, such as the Charter of Human Rights and Responsibilities (Victoria) or the Human Rights Act (ACT), although Western Australia does not have a statutory human rights act. The by-laws may be vulnerable to challenge on grounds of implied repeal if later inconsistent legislation exists, but no such repeal is evident in the source.

The source text does not mention any litigation, and the compilation table does not reference any court decisions. There are no noted cases in the by-laws or the notes. It is highly likely that these by-laws have never been the subject of a reported court decision. Given the remote location of Wubin (a small town in the Western Australia wheatbelt), the park’s usage is likely minimal, and enforcement is probably rare. If prosecutions have occurred, they would have been in the local Magistrates Court and would not have generated reported judgments. The by-laws have not been challenged on constitutional grounds (such as implied freedom of political communication) or on administrative law grounds (such as unreasonableness or procedural fairness). Had there been litigation, it might have examined the validity of s 2(xviii) (public speech) or the breadth of the officer’s removal power under s 4(b). However, without any reported case, the interpretation of these by-laws remains untested. The threat of litigation may nonetheless deter the Board from enforcing certain provisions, or may encourage a cautious approach to granting permissions. The by-laws’ age and lack of judicial consideration mean that any court faced with a prosecution would have to interpret them from scratch, potentially applying principles of statutory construction appropriate to by-laws made under a 19th-century Act. Courts may apply a presumption that by-laws should not unreasonably restrict common law rights, such as freedom of movement or speech, unless the parent Act clearly authorises such restrictions. The absence of litigation does not mean the by-laws are legally sound; it may simply reflect a lack of resources or interest in challenging them.

The definition of “unauthorised person” is a trap. It means any person who does not have written authorisation from an officer of the Board. Since most visitors will have no such authorisation, they are automatically prohibited from doing any of the listed acts. This includes carrying out seemingly innocent activities such as having a picnic on an unauthorised area that is not a defined road (driving a vehicle off a defined road is prohibited; even parking on grass may be an offence). The residual prohibition in s 2(xxiii) is a catch-all that prohibits “any act which may not in these by‑laws be specifically mentioned and which may tend to the injury or disfigurement of the park, or to interfere with the use thereof by the public for the purposes of exercise and recreation.” This is extremely broad. An officer could deem that playing a quiet board game on a picnic rug interferes with recreation, or that excessive noise from children disturbs others. There is no requirement for the act to be intentional; “tend to” implies a risk rather than actual damage. The removal power under s 4(b) allows removal based on “credibly informed” information, not first-hand observation. An officer could be told by a third party that someone is likely to break a by-law, and remove that person without witnessing any infraction. The provision does not require the officer to give the person an opportunity to explain or to produce identification. There is no right to be heard before removal. Public speeches and assemblies are permitted only between morning and sunset on Board-approved sites. Not only does this restrict political and religious speech, it also catches secular assemblies such as a book reading, a community meeting, or a historical re-enactment. “Morning” and “sunset” are not defined; an officer could interpret “morning” as, say, 9 am, making a dawn service potentially illegal. Musical instruments require written consent. This covers everything from a flute to a harmonica to a radio. Even passive listening to music on a personal device may technically be caught if the device “plays or makes sounds”, although an argument could be made that the person is not “playing” an instrument. The lack of a definition is risky. Bathing and water use are heavily restricted. Removing water from the park (including taking a drink from a tap or a stream) is prohibited unless the Board prescribes conditions. The by-laws do not carve out an exception for drinking water. Writing consent is required for many activities, but the by-laws do not specify a form: “under the hand of some official” means a signed document by an officer. There is no provision for electronic consent or verbal approval. A person who obtains verbal permission from a ranger may still be committing an offence if no written consent is produced. Fines are denominated in pounds, a currency that has not been legal tender in Australia since 1966. A court may need to convert the penalty to dollars. The by-laws do not specify a conversion rate; the Currency Act 1965 (Cth) deems one pound equals two dollars, so the maximum fine would be $40. This is trivial and may make prosecution not worth the cost, but it is still on the books. The lack of amendment means the penalty has no deterrent effect today, yet the prohibition remains fully enforceable in principle. The compilation table shows no amendments, so any new by-law intended to modernise the regime would have to be made separately. It is possible that the Board no longer exists or that the park has been transferred to another body; the by-laws would still apply unless repealed. Interference with officers (s 2(xxii)) is an offence. An officer could deem any questioning of their authority as “wilful interference”. There is no right to dispute a removal order without potentially committing a further offence. Children are not expressly exempt. If a child climbs a tree or picks a flower, they are liable to a fine, though enforcement against minors is unlikely. Vulnerable persons such as homeless people seeking shelter could be removed under s 4 for the “proper use” justification, even if they have not committed any listed act, provided an officer believes their presence may lead to an infraction. This creates a risk of arbitrary ejection.

The safest course for anyone wishing to use the Wubin Memorial Park is to treat every activity beyond simple passive walking as requiring explicit written permission. Specifically, obtain prior written consent from a Board officer for any of the following: selling or letting any article or chair for hire; playing any game or athletic sport on the park; delivering a public speech, lecture, prayer, sermon or address; holding a public assemblage; playing any musical instrument; bathing or washing clothes in park waters; carrying away or removing any water; using a horse, pony, donkey or other animal in the park; and erecting any structure including booths, tents, stands, screens, posts, rails, fences, swings, or fixed chairs (other than a camp-stool or other portable seat). For games and sports, check if the Board has set apart any portion of the park by notice boards. If so, only participate in designated areas at designated times and pay any fees prescribed. Do not drive or ride over the ground set apart; do not place any chair, seat, bandstand or other moveable erection without consent. For dogs, ensure the dog is under control on a leash at all times. For vehicles, only drive on stoned, metalled, gravelled or otherwise defined roads. Never drive off-road. Do not ride animals except in places described in writing by the Board. For trees and vegetation, do not cut, pluck, injure or destroy any tree, bush or flower; do not climb any tree. Do not remove any sod, turf, loam, sand, gravel, or any other substance. Do not light any fire or do anything likely to cause fire damage. Do not deposit any rubbish, bricks, manure, timber or other material. Do not catch or trap birds, take eggs or nests, or shoot or chase animals. Do not bring any livestock (horse, pony, mule, ass, bull, ox, cow, calf, heifer, steer, sheep, lamb, goat, hog, or sow) onto the park. Do not encamp or erect any booth, tent, shed, stand, screen, post, rail, fence, swing, chair or seat (other than portable) or make any enclosure. Do not injure, deface or remove any seat, notice, post, chair, railing, fence, barrier or other item placed by the Board. Do not post or paint any bill, placard or notice. Do not paint, write, cut, carve or inscribe letters, figures or marks on any rock, tree, wall, fence or structure. Do not brawl, fight, use indecent language, or act indecently, disorderly or offensively. Do not sell, distribute or exhibit any indecent or infamous book, picture or representation. Do not fire or discharge any firearm or missile. Do not do, aid or abet any act (even if not specifically mentioned) that may tend to injure or disfigure the park or interfere with public recreation. If confronted by an officer or constable, comply immediately with any request for identification or removal. Do not interfere with or obstruct any authorised user or any officer performing duties. If you have a legal estate, right or interest in the park, ensure the Board is aware of it; the by-laws cannot prejudice those rights. In all other respects, assume you are an unauthorised person and that the burden is on you to obtain written permission. Keep a copy of any written authorisation with you in the park. Document the date, time, scope and official’s signature. If the Board has not published any designated sites for public speeches or music, then those activities are effectively banned; do not assume that absence of designation means permission. The same applies to bathing and water removal. For compliance purposes, treat the park as a strictly passive recreational space unless you have obtained explicit permission. Given the age of these by-laws, it may be worth contacting the relevant government department (likely the Department of Lands or the local shire) to confirm whether the by-laws are still actively enforced or whether they have been effectively replaced by newer instruments, but nothing in the source indicates repeal. Until formally revoked, they remain the law.