Irrungadji Community By-laws 2005

The central concept is the “community lands” , the geographic area designated by the Governor under the Aboriginal Communities Act 1979 as the lands of the Irrungadji community (by-law 1(5)). These are private lands owned or occupied by the community, and the by-laws exercise control over that territory. Membership of the community is defined by membership of the Irrungadji Group Association Incorporated under its constitution (by-law 1(6)). This creates a two-tier legal status: members have an automatic right to be on the lands (subject to police removal), while non-members require permission from the Committee.

Permission is a recurring mechanism. The Committee may give, refuse, or revoke permission, and may impose conditions (by-law 3). It can delegate its permission-making powers in writing to a committee member or another person (by-law 3(1)). Permission can be given to a class of persons as well as to individuals (by-law 3(3)). The Committee does not have to give reasons for any decision (by-law 2(2)), and decisions may be communicated orally, in writing, or by public notice (by-law 2(3)). This gives broad, unreviewable discretion to the Committee, with no stated avenue for appeal within the by-laws.

“Prohibited alcohol” is defined as port, wine, spirits, or any drink containing alcohol but not beer (by-law 11(1)). This means beer is excluded from the default prohibition; however, the Committee may give permission to bring in prohibited alcohol. “Illegal drug” means any drug illegal to possess under Western Australian law (by-law 11(1)). “Harmful substance” includes glue or petrol (by-law 11(1)). The by-laws create a near-total ban on illegal drugs and harmful substances (by-law 11(3)), and a conditional ban on prohibited alcohol (by-law 11(2)). There is also a specific prohibition on supplying alcohol to persons under 18 (by-law 11(5)) and to community members who have been told by a doctor not to drink (by-law 11(6)).

“Damage” includes graffiti (by-law 7(1)). The by-laws prohibit intentional damage to community property or property of others (by-law 7(2)), and damage to planted plants or trees (by-law 7(3)). Abandoning vehicles is prohibited except in a community rubbish tip (by-law 8(2)). Rubbish must be placed in bins or tips set up by the Committee (by-law 8(1)).

“Custom of the community” is a defence available only to a member of the community (by-law 14(3)). If a member charged with an offence shows the court that their conduct was a custom of the community, they are not guilty. This recognises customary law as a potential justification, but it is a narrow defence: it requires court proof and applies only to members.

Police powers are significant. A police officer who believes a person is breaking or has broken a by-law can ask for name and address (by-law 13(1)), and failure to comply is itself an offence (by-law 13(2)). The officer can also arrest and remove the person from the community lands (by-law 13(3)), with the person to be released after being dealt with by a court and in any event within 24 hours (by-law 13(4)). This is a form of summary removal without warrant, but only for breaches of by-laws, not for any other offence. Police can also remove any thing from the lands, including vehicles and animals (by-law 13(5)).

The primary affected persons are the members of the Irrungadji Group Association Incorporated. They have the right to be on the community lands at any time (by-law 4(1)), but they are subject to all the by-laws. They may be removed by police if they breach a by-law (by-law 13(3)). They also face restrictions on their own conduct: they must not damage property, litter, be a nuisance, disrupt meetings, enter others’ houses without permission, use community property without committee permission, or be under the influence of illegal drugs or harmful substances (by-laws 7-11). Members are also subject to the alcohol restrictions: they may not possess or drink prohibited alcohol without committee permission (by-law 11(2)), and those under 18 may not drink any alcohol (by-law 11(4)). They must report guns they own and guns they bring to the lands (by-law 12(2),(3)). The custom defence under by-law 14(3) is only available to members, which is a significant legal advantage.

Non-members are more heavily restricted. They may only be on the community lands with the Committee’s permission (by-law 4(2)). They may enter the lands without permission only to go directly to the Committee’s office to ask for permission (by-law 4(3)). If they obtain permission before arriving, they must notify a committee member of their arrival (by-law 4(4)). They must obey any conditions imposed (by-law 4(5)), and the Committee can order them to leave immediately if they breach conditions (by-law 4(6)). Non-members are also bound by all other by-laws, including driving, alcohol, behaviour, and weapons. They do not have the custom defence.

Visitors, tradespeople, government officials, and delivery drivers are all non-members needing permission. There is no exemption for routine service providers unless the Committee grants permission to a class. Authorisation to be on the lands is thus at the Committee’s discretion, with no stated criteria for granting or refusing permission. This creates a high compliance burden for anyone wishing to enter who is not a member.

Police are affected as enforcers. By-law 13 gives police specific powers not available under general law, such as the power to remove a person from the lands for a by-law breach and to remove any thing. Police are not community members, but they may enter the lands as part of their duties.

The Committee of Management itself is the key governing body. Its members make decisions on permissions, out-of-bounds areas, traffic signs, and shooting zones. They must consider the welfare of the community as the most important factor when making decisions (by-law 2(1)), but otherwise have broad discretion and no obligation to give reasons. They can delegate decision-making (by-law 3(1)). They are also subject to the by-laws , for example, they cannot damage property or be abusive. But they have significant authority: they can order people to leave the lands for failing to comply with conditions (by-law 4(6)) or for being drunk or under the influence (by-law 11(8)).

The by-laws impose specific duties on every person on the community lands. A person must not: intentionally damage community or others’ property (by-law 7(2)); damage planted plants or trees (by-law 7(3)); leave rubbish except in bins or tips (by-law 8(1)); abandon a vehicle except at a tip (by-law 8(2)); annoy or frighten others by bad language, fighting, carrying a weapon, being rowdy, or driving irresponsibly (by-law 9(1)); be a nuisance such as playing music loudly (by-law 9(2)); make it difficult for the Committee or its members/employees to do their jobs (by-law 9(3)); disrupt a meeting (by-law 9(4)); be offensive to an elder (by-law 9(6)); enter another’s house without permission (by-law 10(1)); fail to leave a house if asked (by-law 10(2)); use another’s property without permission (by-law 10(3)); use community property without a committee member’s permission (by-law 10(4)); bring, give, keep, or drink prohibited alcohol without committee permission (by-law 11(2)); bring, give, keep, use, or inject illegal drugs or harmful substances (by-law 11(3)); drink alcohol if under 18 (by-law 11(4)); give alcohol to a person under 18 (by-law 11(5)); give alcohol to a community member who has a doctor’s advice not to drink (by-law 11(6)); be under the influence of illegal drugs or harmful substances (by-law 11(7)); fail to report a gun owned or brought onto the lands (by-law 12(2),(3)); fail to keep a gun safely out of children’s reach (by-law 12(4)); shoot in a place the Committee has said is no shooting (by-law 12(7)).

Drivers have duties: drive carefully without causing danger (by-law 6(1)); not drive drunk or under the influence of any drug or harmful substance (by-law 6(2)); hold a valid Australian driver’s licence (by-law 6(3)); obey traffic signs put up by the Committee (by-law 6(5)). The duty to hold a licence applies to all driving on community lands, even on private roads not normally subject to state licensing laws; the by-law makes it a local offence.

Non-members have a duty to obtain committee permission before entering or remaining (by-law 4(2),(5)). They may enter only to go to the committee office to ask (by-law 4(3)). If they have prior permission, they must report arrival (by-law 4(4)). If ordered to leave for breach of conditions, they must leave immediately (by-law 4(6)). If the Committee orders a drunk or drug-affected person to leave, that person must leave immediately (by-law 11(8)). A person asked to leave a disrupted meeting must leave (by-law 9(5)).

When asked by police, a person must provide their name and address if the officer believes a by-law is being or has been broken (by-law 13(1),(2)). A person arrested under by-law 13(3) must submit to removal.

The rights conferred by the by-laws are limited. Members have the right to be on the lands at any time (by-law 4(1)), subject to removal by police. Members have the right to rely on the custom defence if charged (by-law 14(3)). Any person charged has the right to a court hearing with a maximum penalty of $5,000 (by-law 14(4)). A person who damaged property is liable to pay compensation up to $250 (by-law 14(5)), but that is a court-imposed order, not a civil right.

The Committee has the right to give, refuse, change, or take away permission (by-law 3). It may impose conditions (by-law 3(3)). It may decide out-of-bounds areas and put up signs (by-law 5). It may decide shooting zones (by-law 12(5)). It may order people to leave (by-law 4(6), 11(8)). It does not have to give reasons (by-law 2(2)).

Police have the right to request identity, arrest and remove, and remove property (by-law 13). These are additional to their general police powers under state law.

Enforcement is primarily by police, not by the Committee or community members. By-law 14(2) states that a member of the Police Force can charge a person with an offence against the by-laws. This is the only charging mechanism expressly provided; there is no provision for the Committee to issue infringement notices or to prosecute summarily. The by-laws do not create a community policing power. However, the Committee may request police attendance to enforce removal orders.

A court that finds a person guilty of an offence under the by-laws can impose a fine of not more than $5,000 (by-law 14(4)). That is a relatively high maximum for a local by-law offence, potentially reflecting the seriousness of unauthorised entry or alcohol breaches. Additionally, if the court finds that property was damaged in the commission of the offence, it may order compensation of not more than $250 to the owner (by-law 14(5)). That compensation order is capped at a low amount and likely covers minor damage only; more significant damage would presumably be pursued under state criminal damage laws or civil action.

The main enforcement tool, however, is the police power of removal. Under by-law 13(3), a police officer who believes a person is breaking or has broken a by-law can arrest and remove that person from the community lands. This is a summary power without warrant, akin to a trespass removal but activated by any by-law breach, not just entry without permission. The person must be released after being dealt with by a court and in any event within 24 hours (by-law 13(4)). This creates a potential for detention without charge for up to 24 hours. The power is triggered by belief, not certainty, and there is no requirement of prior warning.

Police can also remove any thing from the community lands, including vehicles and animals (by-law 13(5)). This is a broad property seizure power, with no stated constraints such as reasonableness or compensation. It appears to be a discretionary removal, not a forfeiture; but the by-laws do not provide for return or storage.

Failure to comply with a by-law is an offence (by-law 14(1)). That includes failure to obey a condition imposed by the Committee when granting permission. Thus, breach of a condition is itself a criminal offence, not merely a civil breach of contract.

The custom defence in by-law 14(3) is available only to a member of the community. The member must show the court that their conduct was a custom of the community. This is a burden of proof on the accused on the balance of probabilities, presumably. It is a complete defence: the person is not guilty. The by-laws do not define “custom of the community”, leaving it to the court to interpret. This provision potentially allows members to justify conduct that would otherwise be an offence, such as entering an out-of-bounds area for a customary purpose or possessing alcohol for a ceremony. However, the defence is not available to non-members, even if they are acting with community consent.

By-law 1(7) states that these by-laws are in addition to the laws of Western Australia. This means that state laws continue to apply concurrently. For example, a person who drives drunk on community lands may be charged under both the by-laws (by-law 6(2)) and the Road Traffic Act 1974 (WA). A person who assaults someone may face state assault charges as well as a by-law offence of bad behaviour (by-law 9(1)). The by-laws add local regulatory offences, but they do not replace or override state criminal law.

The by-laws also interact with the Aboriginal Communities Act 1979, the parent Act. That Act gives the Governor the power to approve by-laws and to define the community lands. The by-laws themselves do not set out any appeal or review mechanism under the Act, but it is possible that judicial review of committee decisions is available under general administrative law, though the by-laws expressly state the Committee does not have to give reasons (by-law 2(2)), which would hinder such review.

The firearms provision (by-law 12) defines “gun” by reference to the Firearms Act 1973 (WA). That means the definition will track state firearm classifications. However, the by-laws impose additional duties: reporting guns to the Committee, safe storage, and restrictions on where shooting may occur. A person may comply with the Firearms Act but still breach the by-laws if they fail to report a gun to the Committee. Conversely, the by-laws do not authorise possession of a gun without a state licence; that remains prohibited.

The alcohol provisions (by-law 11) interact with state liquor licensing laws and the Liquor Control Act 1988 (WA). The by-laws create a stricter regime: they prohibit possession of port, wine, spirits, and other non-beer alcohol without committee permission, even if that alcohol was lawfully purchased. They also prohibit supply to persons under 18 and to community members with a doctor’s advice not to drink. Those restrictions go beyond general state law. For example, state law does not generally make it an offence to give alcohol to a person told by a doctor not to drink, unless the person is in care.

The custom defence (by-law 14(3)) interacts with the general criminal law. It does not make custom a defence to state offences; it only applies to by-law offences. A member who assaults another during a customary ceremony could still be charged with assault under state law. But if the assault also constitutes a by-law offence (e.g., annoying or frightening), the custom defence could negate that by-law charge.

By-law 4 controls entry onto private land. It effectively creates a trespass offence under the by-laws for non-members without permission. This interacts with the state Criminal Code trespass provisions (s 70A of the Criminal Code Act Compilation Act 1913 for being on premises without lawful excuse). The by-law offence is narrower in that it only applies to community lands designated under the Act, but it provides an additional enforcement mechanism via police removal under by-law 13.

The police powers in by-law 13 are additional to police powers under general law. Under general law, police can arrest for certain offences, require identity, and remove trespassers in limited circumstances. By-law 13 broadens those powers: removal can be for any by-law breach, and property removal is not tied to seizure for evidence. However, the by-law does not confer power on police to enter the lands; they presumably already have that power as members of the public (if permitted) or under warrant or other authority.

The only version provided is the original by-laws gazetted on 21 December 2005, commencing on that date (Compilation table). There is no indication in the source text of any amendments. The compilation table shows a single entry with no amending instruments. Therefore, as at the date of this deep dive (based on the source), the by-laws remain as originally enacted. It is possible that subsequent unpublished amendments exist, but the source does not reveal them. The Aboriginal Communities Act 1979 allows by-laws to be amended by the same procedure (committee resolution and Governor approval), but no such amendments appear in the compilation note.

The source text does not mention any litigation. There is no record of cases interpreting these specific by-laws in the provided document. This does not mean no cases exist, but on the basis of the source, the litigation history is unknown. In practice, local by-laws of this nature rarely generate reported case law, especially where the maximum penalty is only $5,000. Most prosecutions would be in the Magistrates Court. Any appeal would be to the Supreme Court, but no such case is recorded in the source.

Several features of the by-laws could catch out the unwary.

First, the definition of “prohibited alcohol” excludes beer (by-law 11(1)). This means a person may bring beer onto the community lands without committee permission , but only beer. Wine, spirits, port, and any other alcoholic drink (including cider, pre-mix spirits, liqueurs) are prohibited unless permission is obtained. The line between “beer” and “other drink containing alcohol” is likely to be interpreted literally; a drink containing alcohol that is not beer is caught. That could include non-alcoholic beer (if it contains trace alcohol) but such products are arguably not alcohol for these purposes; the by-law uses “drink containing alcohol” for prohibited alcohol, so trace amounts might technically be prohibited, though prosecution would be unlikely.

Second, the by-law does not require the Committee to give reasons for any decision (by-law 2(2)). A person refused permission to enter the lands has no right to an explanation. This non reviewable discretion could be used arbitrarily, but there is no internal appeal mechanism. Judicial review on grounds like procedural fairness might still be available in theory, but the absence of reasons makes it difficult to challenge.

Third, the custom defence (by-law 14(3)) is only available to members. A non member who performs a customary act (e.g., a visiting relative participating in a ceremony) cannot use that defence. This creates a potential inequality, though the by-laws are a community instrument and may intentionally reserve the defence to those who are formally part of the community.

Fourth, the police power of removal (by-law 13(3)) does not require a warrant or even a charge. The officer only needs a belief that a person is breaking or has broken a by-law. That is a low threshold. Combined with the power to detain for up to 24 hours (by-law 13(4)), it creates a risk of overuse. The person can be removed without being charged, then released after 24 hours with no further action. There is no requirement that the officer lay a charge.

Fifth, the offence of failing to provide name and address (by-law 13(2)) applies only when a police officer asks under by-law 13(1). But the officer can only ask if they believe a by-law breach is occurring or has occurred. If the officer has no such belief, the request may be unlawful, but the by-law does not provide a penalty for an unlawful request. A person who refuses to give their name in that situation might not be guilty, but could be at risk of the officer forming a belief.

Sixth, the by-laws prohibit being “under the influence of an illegal drug or a harmful substance” (by-law 11(7)), but not being under the influence of prohibited alcohol. That is odd: being drunk on prohibited alcohol is not itself an offence under by-law 11(7), though drinking it is an offence under by-law 11(2). However, if a person is drunk, the Committee can order them to leave under by-law 11(8), and failure to leave would be an offence. So the practical effect is similar.

Seventh, the by-laws do not specify who is a “member of the Police Force”. Presumably, that includes Western Australian police officers, but could also include federal police or other officers. The by-laws do not require the officer to be in uniform or to identify themselves, though general law would apply.

Eighth, the compensation order under by-law 14(5) is capped at $250. If a person causes greater damage, the victim must pursue compensation separately in a civil court or seek an order under state criminal law. The by-laws do not preclude that; they simply limit what the by law court can order.

Ninth, a person who has permission from the Committee to bring prohibited alcohol onto the lands for a specific event (by-law 11(2)) might still commit an offence if they share it with a person under 18 or a person with a doctor’s advice (by-law 11(5),(6)). Permission does not override those specific prohibitions.

For a member of the Irrungadji community, compliance is relatively straightforward but requires awareness of the Committee’s decisions. Members should attend community meetings or check public notices to know what areas are out of bounds (by-law 5), where shooting is prohibited (by-law 12(5)), and any traffic signs (by-law 6(4)). Members must not bring prohibited alcohol onto the lands without permission, and must never bring illegal drugs or harmful substances. They must store firearms safely and report all guns to the Committee. They must not damage property, litter, or cause a nuisance. If a member wishes to use community property (e.g., a communal vehicle or building), they need a committee member’s permission (by-law 10(4)). If a member has a custom that may conflict with a by-law, they should be prepared to prove that custom in court if charged.

For a non-member wishing to enter the community lands, the primary step is to seek permission from the Committee before entering. The by-laws allow entry without permission only to go directly to the Committee’s office to ask (by-law 4(3)). A non-member should first contact the Committee (by phone or other means) to request permission, specifying the purpose and duration of the visit. If permission is granted, the non-member must comply with any conditions (e.g., reporting arrival, staying in certain areas, not bringing alcohol). The non-member must also obey all other by-laws, including no alcohol (unless permission extends to alcohol), no drugs, no weapons, no damage, no nuisance, and careful driving. All visitors should carry a copy of the permission if given in writing, though the by-laws do not require that.

For tradespeople, government officials, or delivery drivers, it would be prudent to arrange permission in advance through the Committee. A person who regularly visits, such as a health worker, should seek a class permission that covers regular visits.

For all persons on the lands, if stopped by police and asked for their name and address (because the officer believes a by-law breach is occurring), they must provide it. If arrested and removed, they should comply and seek legal advice.

Drivers must ensure they hold a valid Australian driver’s licence and drive sober, and obey signs. If a person is unsure whether a particular drink is prohibited alcohol, the safest course is to treat all alcohol as prohibited unless the Committee has given explicit permission. Beer may be an exception, but to avoid uncertainty, one could ask the Committee.

If a person sees a by-law being broken, they should report it to the Committee or to police, but they must not take enforcement into their own hands.

A practical step for anyone planning to stay on the community lands is to review the public notices and any handouts from the Committee regarding out-of-bounds areas and shooting zones. The Committee is not obliged to publish these in advance, but signs must be posted to make them enforceable (by-law 5(4), 6(4), 12(6)). People should look for signs.

Finally, if charged with an offence, a member should consider whether the conduct was a custom of the community and be prepared to lead evidence of that custom in court. Non-members cannot use this defence and must rely on other arguments such as permission or lack of knowledge, though ignorance of the by-laws is no defence (they are gazetted and published).