Cosmo Newberry Aboriginal Corporation By-laws

The by-laws define several key concepts. Community means the Cosmo Newberry Aboriginal Corporation, a legal entity. Community Land is land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the Community lands of that Community. The precise boundaries are not defined in the by-laws themselves; they depend on the Governor’s declaration, which may be amended separately. Committee means the Governing Committee of the Community , the body that controls entry and liquor permissions. Member of the Community means a member for the time being of the Community, defined presumably under the corporation’s rules. Non-members have no automatic right of entry. Liquor adopts the definition in the Liquor Licensing Act 1988, which covers all alcoholic beverages. Deleterious substance is defined broadly: glue or any volatile liquid containing hydrocarbons, and specifically including marijuana, cocaine, speed, methylated spirits, crack, petrol and boot polish. Importantly, the definition is not restricted to volatile inhalants alone; it covers those named drugs and substances regardless of their form (e.g., cannabis flower, cocaine powder). However, the offence under by-law 11 is possession “for the purpose of inhalation” , a person possessing marijuana for smoking or eating would likely still be caught if inhalation is any form of breathing in, but the purpose element may create ambiguity. By-law 12 also uses reasonable grounds to suspect the other person intends to use the substance for inhalation, or to sell/supply it for that purpose. The by-laws apply to all Community Land and to all persons on that land, whether members or not (by-law 4). This means that even a member of the Community who is not on the committee is subject to the same liquor and deleterious substance restrictions as a stranger. There is also the concept of Road within Community Land, defined as a road within the Community Land. Travellers passing through on a road are exempt from the liquor possession offence if they are merely transporting liquor to a destination outside Community Land (by-law 10(2)). Permission from the committee must be given in writing and may be revoked at any time. There is no specified form for the application or any statutory right of review. The by-laws also authorise the committee to erect signs prohibiting entry to parts of Community Land; failing to obey a sign is itself an offence (by-law 7).

The by-laws directly affect multiple groups. Non-members of the Community are the primary targets: they cannot enter or remain on Community Land without the committee’s written permission. This includes family visitors, tradespeople, government officials, delivery drivers, tourists, researchers, journalists, and any other person not a member. Members of the Community are not required to obtain permission to enter, but they are subject to the same prohibitions on liquor (unless they have committee permission) and deleterious substances as everyone else. The Governing Committee bears the responsibility of granting or refusing permissions, setting terms and conditions, and revoking permissions. Committee members themselves may need permission for liquor if they are not acting in an official capacity. Police officers are given extensive powers: to seize liquor and receptacles suspected of being brought in contrary to the by-laws (by-law 13(2)(a)); to enter and search premises or vehicles with reasonable suspicion using force as reasonably necessary (by-law 13(2)(b)); to stop any vehicle for search purposes (by-law 13(2)(c)); to decant or dispose of confiscated liquor to preserve good order (by-law 13(2)(d)); to keep confiscated liquor for the administration of justice (by-law 13(2)(e)); and to confiscate and dispose of deleterious substances suspected of being used for inhalation (by-law 13(2)(f)). Police may also take proceedings for any breach and may apprehend and remove a person from Community Land if injury or damage appears likely (by-law 14). Travellers on roads passing through Community Land are exempt from the liquor possession offence if they are merely transporting liquor through the land, but they still require permission to enter for any other purpose (e.g., stopping for a rest break). Medical practitioners, nurses and pharmacists are indirectly affected because the exception for medicinal liquor (by-law 10(1)(b)) requires the liquor to have been “duly prescribed or administered by or pursuant to a direction” of a legally qualified medical practitioner, registered nurse or registered pharmaceutical chemist. This places a burden on those professionals to ensure that any liquor prescribed for a patient on Community Land complies with the exception. Suppliers of goods (e.g., fuel delivery, grocery trucks, building supplies) must obtain committee permission to enter, and also must not supply deleterious substances (such as petrol or solvents) if they have reason to suspect the purchaser intends to inhale them. This creates a due diligence obligation for vendors. Children and young persons are covered by the Child Welfare Act 1947 for proceedings; no separate regime is provided in the by-laws.

The by-laws impose several clear duties and create corresponding rights. Duty not to enter without permission: by-law 5(1) prohibits any person other than a member from coming onto or remaining on Community Land without prior committee permission. Permission must be in writing and may be subject to terms, conditions and restrictions. The committee may revoke permission at any time. A person who enters without permission, or who breaches a condition of permission, commits an offence (by-law 6). There is an exception “provided in any Act or regulation to the contrary” , a provision that may allow emergency service workers or statutory office-holders to enter despite the by-laws. Duty not to bring liquor onto Community Land without permission: by-law 8(1) prohibits any person from bringing liquor onto Community Land without committee permission. The committee may grant permission in writing, subject to terms and conditions, having regard to the welfare of the Community as the paramount consideration (by-law 8(3)). Permission may be revoked at any time. By-law 9 makes it an offence to bring, possess, use or supply liquor without permission, or to breach a condition of permission. Exception exists for liquor used for sacramental or religious observance (by-law 10(1)(a)), or as medicine prescribed by specified health professionals (by-law 10(1)(b)). Travellers merely transporting liquor through the land on a road are also exempt from the possession offence (by-law 10(2)). Notably, the burden of proof for these exceptions lies on the accused person (by-law 10(3)). Duty not to possess deleterious substances for inhalation: by-law 11 makes it an offence to be in possession of a deleterious substance on Community Land “for the purpose of inhalation”. The definition of deleterious substance includes marijuana, cocaine, speed, etc., but the offence element requires the purpose of inhalation, not mere possession. By-law 12 prohibits selling or supplying a deleterious substance to another person on Community Land if there are reasonable grounds for suspecting that the other person intends to use it for inhalation or intends to on-sell for that purpose. This imposes a subjective suspicion-based test on the seller. Rights of police: police have rights to seize, search, enter premises/vehicles using reasonable force, stop vehicles, decant/dispose of liquor, and confiscate/dispose of deleterious substances (by-law 13). Police may also take proceedings and, if an offence is being committed and injury or damage appears likely, may apprehend and remove the offender from Community Land (by-law 14). There is no express right of appeal for a person whose permission is refused or revoked, nor any right to challenge a police seizure except through the ordinary criminal process. Right of the committee: the committee has the right to grant, condition, refuse, or revoke permissions. This is a broad discretionary power with no stated criteria for entry permission, only for liquor permission (welfare of Community). Committee decisions are not subject to review under the by-laws.

The by‑laws provide for a penalty of a fine not more than $100 for any breach (by‑law 16(1)). That fine has been in place since the 2004 amendment (previously it may have been lower). In addition, the court may order a convicted person to pay compensation of not more than $250 to the Community or another person for property damage caused during the offence (by‑law 16(2)). The fine and compensation amounts are low by contemporary standards, likely reflecting the age of the instrument and a policy choice to keep penalties modest as a community‑based enforcement tool. However, the low maximum fine means there is little deterrent effect for commercial operators or repeat visitors who might value access or the ability to bring liquor at a far higher amount. Enforcement is primarily by police: a member of the Police Force may take proceedings for any breach (by‑law 14(a)). Proceedings must be commenced by complaint and summons under the Justices Act 1902, within six months of the offence (by‑law 15). The Child Welfare Act 1947 modifies proceedings for children. Police also have significant pre‑prosecution enforcement powers: they may seize liquor and any receptacle containing it if they reasonably suspect it is liable to confiscation under by‑law 13(1). Confiscation is triggered by any liquor brought onto Community Land contrary to by‑law 7 , interestingly, by‑law 13(1) references by‑law 7 (which deals with signs) rather than by‑law 8 or 9 (which deal with liquor). This appears to be a drafting error; it likely intends to refer to liquor brought contrary to the liquor provisions (Part 3). In practice, police would probably interpret it as applying to liquor brought without permission under by‑law 8. The error creates uncertainty as to the legal basis for confiscation. Police may also confiscate and dispose of any deleterious substance they reasonably suspect is to be used or has been used for inhalation, along with any container (by‑law 13(2)(f)). The power to decant or dispose of confiscated liquor is exercisable if the police officer thinks it necessary or conducive to preserving good order or preventing an offence (by‑law 13(2)(d)). This gives considerable discretion to individual officers and could lead to arbitrary destruction of property even before any charge is laid. There is no requirement for a court order or independent oversight of such disposals. The power to enter and search premises or vehicles using reasonably necessary force (by‑law 13(2)(b)) is not subject to a warrant requirement; it requires only reasonable suspicion that liquor is kept in contravention of the by‑laws. This is a broad power that may conflict with general search and seizure laws, but the by‑laws are specific legislation that likely override general provisions for the area of Community Land.

The by‑laws operate under the Aboriginal Communities Act 1979 (WA), which is the enabling Act. They are subordinate legislation and must be consistent with that Act. By‑law 6 contains an express saving: “Except as provided in any Act or regulation to the contrary” , meaning that if another Act or regulation permits entry (e.g., a warrant issued under a state law, or an entry by a police officer in the execution of duty), that will prevail over the by‑law’s prohibition. This clause prevents the by‑laws from being used to obstruct lawful law enforcement or statutory functions. Similarly, by‑law 7 regarding signs is subject to “the provision of any Act or regulation to the contrary.” The Liquor Licensing Act 1988 definition of “liquor” is incorporated by reference (by‑law 3). That Act regulates the sale and supply of alcohol statewide; the by‑laws add an additional layer of prohibition on bringing liquor onto Community Land without permission, which goes beyond the standard liquor licensing regime. The Justices Act 1902 governs the procedure for commencing prosecutions (by‑law 15). The Child Welfare Act 1947 governs proceedings against children and young persons; the by‑laws explicitly say proceedings are subject to that Act, meaning that child-specific procedures will apply. The by‑laws do not reference the Criminal Code or Misuse of Drugs Act 1981 (WA). The definition of “deleterious substance” overlaps with prohibited drugs under the Misuse of Drugs Act, but the by‑laws create a separate offence relating specifically to possession for inhalation, which is narrower than the general drug possession offence. A person could be charged under both the by‑laws and the Misuse of Drugs Act for the same conduct, raising potential double jeopardy issues. The Racial Discrimination Act 1975 (Cth) may be relevant: the by‑laws apply only to Aboriginal Community Land and restrict entry and activities by non-members, which may interact with discrimination principles. However, the by‑laws are a special measure under the Aboriginal Communities Act and may be argued to be an exercise of self‑determination for Aboriginal communities, permissible under s 8 of the Racial Discrimination Act as a special measure. No cases are cited in the source to confirm this. The Workers Compensation and Injury Management Act 1981 (WA) and Occupational Safety and Health Act 1984 (WA) may impose duties on employers and landowners; a committee member allowing entry to a tradesperson may need to consider workplace safety obligations alongside the by‑laws. The Road Traffic Act 1974 (WA) still applies on roads within Community Land; the by‑laws do not override general traffic laws except as specifically provided.

The by‑laws were originally made on 23 July 1993 and published in the Government Gazette on the same day. They came into effect on that date. The only amendment recorded in the compilation table is by the Sentencing Legislation (Short Sentences - Aboriginal Community By‑Laws) Amendment Regulations 2004, regulation 7, gazetted on 14 May 2004 and effective on 15 May 2004. That amendment adjusted the penalty and compensation provisions in by‑law 16. The note under by‑law 16 indicates that by‑law 16 itself was amended: “By‑law 16 amended: Gazette 14 May 2004 p. 1453.” The 2004 regulations were a generic instrument that amended many sets of Aboriginal community by‑laws across Western Australia. The exact change was from a lower maximum fine (likely $50 or $1000? Not stated) to the current $100 fine and $250 compensation. The compilation table shows that Reprint 1 was prepared as at 24 September 2004, incorporating this amendment. There is no evidence of any subsequent amendment in the source. The by‑laws remain in their original structure, with the penalty amount updated once. The fact that the fine remains only $100 since 2004 suggests either a deliberate choice to keep penalties low for community harmony or legislative neglect. Compensation of $250 is also low, barely covering minor damage. The by‑laws have not been amended to reflect changes in the Child Welfare Act (now the Children and Community Services Act 2004) or the Justices Act (now replaced by the Criminal Procedure Act 2004), though by‑law 15 still references the Justices Act 1902 and Child Welfare Act 1947. Those references are likely now outdated; saving provisions in later legislation may preserve the proceedings. Users should check whether the commencement and procedure references remain effective.

The source text (the by‑laws themselves and the notes) contains no recorded litigation history. No cases are cited. That does not mean no prosecutions have occurred under the by‑laws, but no appellate or reported decisions are mentioned. Given that the by‑laws create low‑level summary offences with a maximum fine of $100, any prosecutions would likely be dealt with in the Magistrates Court and would not typically generate published judgments. The absence of litigation history may also indicate that the by‑laws are rarely enforced through the courts, or that enforcement is handled by police through warnings, confiscation, and removal rather than formal charges. The broad police powers under by‑law 13 and 14 allow effective informal enforcement without resort to prosecution. A person who is removed from Community Land under by‑law 14(b) has no immediate right of review under the by‑laws, which may discourage challenges. There is a potential for challenge on the ground that the by‑laws conflict with the Racial Discrimination Act 1975 (Cth) or with the Constitution s 109 (inconsistency), but no cases are recorded. The reference in by‑law 13(1) to by‑law 7, which clearly does not deal with liquor, could be a drafting error that might be raised as a defence in any confiscation proceeding: if the liquor was not brought contrary to by‑law 7 (signs), it may not be liable to confiscation. A court would likely interpret the reference as a mistake and read it as “by‑law 8” or “Part 3”, but that is not certain. No litigation on this point appears in the source. Practitioners should be aware that the by‑laws have not been tested in higher courts, so their validity under the enabling Act and consistency with other laws remains to be fully determined.

Several traps and ambiguities lurk in these by‑laws. The by‑law 13(1) cross‑reference error: it states that liquor brought onto Community Land “contrary to by‑law 7” is liable to confiscation. By‑law 7 deals with erection of signs. The correct reference should be to the liquor prohibitions in Part 3 (by‑laws 8 or 9). This could be a complete defence to a confiscation or a prosecution argument that the by‑law is nonsensical and thus unenforceable. A careful defendant may argue that unless the liquor was brought in disobedience of a sign (by‑law 7), it cannot be confiscated under by‑law 13. The definition of “deleterious substance” is extraordinarily broad: it includes marijuana, cocaine, speed, crack, petrol, boot polish, and any volatile liquid containing hydrocarbons. Possession of marijuana for any purpose is an offence under state law anyway, but the by‑law creates an additional offence for the purpose of inhalation. What constitutes “inhalation”? Smoking marijuana is inhalation; eating it might not be. Petrol is a deleterious substance, so filling a vehicle with petrol could theoretically be possession for inhalation if the driver intends to sniff it. The onus of proof is on the accused for exceptions, but there is no exception for legitimate use of petrol as fuel. Courts would likely read the by‑law down to avoid absurdity, but the risk remains. Permission must be in writing: by‑law 5(2) and 8(4) require permission to be given in writing. Oral permission from a committee member is not sufficient. A person who relies on a verbal “okay” could be committing an offence. Revocation is at any time without notice: the committee may revoke permission at any time (by‑laws 5(2) and 8(4)). There is no requirement for notice to the permit holder. A tradesperson who has been on the land for days could be suddenly told they are trespassing. No appeal mechanism: there is no right to review a committee decision to refuse permission or to revoke it, other than possibly judicial review in the Supreme Court on administrative law grounds (natural justice, procedural fairness). But such review is expensive and unpredictable. The medicinal liquor exception requires a prescription or direction: over‑the‑counter medications containing alcohol (e.g., cough syrups) are not covered unless they meet the “duly prescribed” standard. A person with a cold who buys cough syrup from a pharmacy outside the community could be committing an offence if they bring it onto Community Land without committee permission. The transit exception for liquor only applies to possession on the road: it does not exempt the person from the requirement to have permission to bring liquor onto Community Land. If the traveller stops for any reason, they may lose the exception. The onus of proof for the exception is on the accused (by‑law 10(3)). Police powers of entry and search do not require a warrant: only reasonable suspicion that liquor is kept in contravention of the by‑laws. This is a lower threshold than a search warrant. The penalty of $100 is extremely low: a person who values bringing a case of wine onto the land may treat it as a minor cost of doing so. The compensation limit of $250 is also low; if a vehicle is damaged in a search, the compensation may not cover the loss. The by‑laws do not specify any mechanism for applying for permission: no form, fee, or time limit. This could lead to arbitrary delays or refusals, effectively preventing access.

Compliance requires careful planning for anyone who is not a member of the Cosmo Newberry Aboriginal Corporation and who wishes to enter Community Land or bring liquor or certain substances onto it. Entry: any non-member must obtain prior written permission from the Governing Committee. There is no specified form; the safest approach is to write to the committee (at a known address or through community contacts) stating the purpose of visit, duration, and names of all persons. The request should be made well in advance to allow committee deliberation. Once received, the permission letter should be kept on hand while on the land. Do not rely on oral permission. The committee’s permission may include conditions (e.g., hours of entry, specific areas permitted). Those conditions must be strictly followed; any breach is an offence. Liquor: alcohol may not be brought onto Community Land without committee permission. If permission is sought, the application should explicitly request permission to bring liquor, specifying quantity and type. The committee may impose conditions. If permission is not obtained, no alcohol may be present. Exceptions exist only for religious sacraments (must be part of a religious service) and for medicine (must be prescribed by a medical practitioner, registered nurse or pharmaceutical chemist). A prescription note should be carried if relying on that exception. For transit through the land on a road, liquor may be in the vehicle only if it is being transported to a destination outside the land. The driver must not stop for any purpose other than emergency, and must be able to prove the destination if challenged. Deleterious substances: by‑law 11 prohibits possession of a deleterious substance (including marijuana, cocaine, petrol, glue) on Community Land “for the purpose of inhalation.” The safest approach is not to have any such substance on the land at all. Even if a substance is legally prescribed (e.g., medical cannabis), the by‑law may still apply if the purpose is inhalation. The medicinal exception only covers liquor, not deleterious substances. Therefore, a person using medical marijuana on Community Land could be committing an offence even with a prescription. For petrol, keep it in a vehicle’s fuel tank for propulsion purposes only; carrying spare fuel in a jerry can could be risky if the police suspect inhalation. Sellers and suppliers: anyone selling or supplying goods on Community Land must not supply a deleterious substance to another person if there are reasonable grounds to suspect that the person intends to inhale it or on‑sell it for inhalation. Staff should be trained to identify suspicious behaviour (e.g., repeated purchases of small amounts of petrol, thinners). If a sale is refused, document the reason. Interaction with police: if stopped by police, comply with requests to stop the vehicle and allow search. Do not obstruct. If police seize property, ask for a receipt or inventory. If removed from Community Land under by‑law 14(b), do not resist; seek legal advice later. Defending a charge: if charged, note that proceedings must be commenced by complaint and summons within six months. The court may impose a fine up to $100 and compensation up to $250. Defences include that the by‑law 13(1) reference is incorrect (for liquor confiscation), that permission was obtained in writing, that the substance was not for inhalation, or that the liquor falls under an exception (burden on accused). Keep records of permission letters, prescriptions, and receipts. Organisational compliance: the committee should maintain a register of permissions granted and revoked, and ensure that any permissions for liquor are only granted after considering the welfare of the Community as paramount. The committee should also ensure that signs erected under by‑law 7 comply with any other applicable laws and are clearly visible.