Jigalong Community Incorporated By-laws

Community land: The by-laws apply on all community land, which is land held by or on behalf of Jigalong Community Incorporated or its members, but the term is not expressly defined. The by-laws apply to all persons on that land, whether members or not (by-law 3, scope provision). The community: Defined as (as the context requires) the incorporated association and the collective group comprising its membership, their spouses and dependants (by-law 3). The Council: The Council of Jigalong Community Incorporated, which is the body authorised to give or revoke permissions, place signs, and whose members face special rules under by-law 20. Permission: The central gatekeeping concept. The Council may give permission to enter, to bring liquor, to use community vehicles, etc. Permission may be oral or written, and may be subject to conditions. It can be revoked at any time without reason. There is no stated formality or right of review. Liquor: Defined by reference to the Liquor Licensing Act 1988. The Council may permit its possession, use or supply on community land; without such permission it is prohibited. Entering or remaining while under the influence to the extent of causing alarm, annoyance or upset is also an offence (by-law 8(c)). Deleterious substance: Defined as glue or any volatile liquid containing hydrocarbons. Petrol is separately listed (by-law 10). Possession for inhalation, or supply to a person whom one suspects intends to inhale or resell for inhalation, is prohibited. Vehicle: Any motor vehicle capable of self-propulsion, including trailers and caravans when attached (by-law 3). Custom: A defence under by-law 19 allows a defendant to show they were acting under and excused by a custom of the community. The term “custom” is not defined, leaving its content to be proved as a matter of fact. Offence and penalty: Breach of any by-law is an offence punishable by fine not exceeding $100. The court may also order compensation up to $250 for property damage. The low penalty contrasts with the breadth of police powers. Police powers: A police officer may take proceedings, remove persons, request names and addresses, stop and search vehicles on reasonable suspicion of liquor or deleterious substance contraventions, seize those substances, and detain the vehicle for up to 14 days if necessary to prevent repetition (by-law 16). Council members: A council member charged with an offence against by-law 8 (liquor restriction) is deemed to have ceased to be an effective councillor, but is restored if the charge is withdrawn or dismissed (by-law 20). These concepts interact to create a system where the Council has near-absolute discretion over who may be on the land and what they may do, subject only to the very limited defence of custom and the procedural requirements of the Justices Act 1902.

The by-laws apply to all persons on community land, but they differentiate between categories. Non-Aboriginal persons: They cannot enter or remain without prior Council permission. This includes any visitor, tradesperson, government employee not on duty (but employees of state or commonwealth departments entering in connection with their duties are deemed to have permission: by-law 4(e)), journalist, researcher, or contractor. The by-law uses the phrase “not recognised by the Council to be Aboriginal”, which gives the Council power to determine who qualifies, with no stated criteria. This creates a bright-line rule affecting freedom of movement based on ethnic recognition by the Council. Government employees: They are deemed to have permission under by-law 4(a) when entering in connection with their duties. This exemption covers those working, but not those visiting in a private capacity. Members of the community: They are not subject to the entry permission requirement (by-law 4(d) applies to “any person whatsoever (other than a member of the community)”). However, members are subject to all other by-laws: they must not bring or possess liquor without permission (by-law 8), must not drive dangerously, must not cause disturbances, etc. Persons living in homes: By-law 7 applies to any person told to leave a house by the principal occupant or person in charge; refusal to leave is an offence. This affects tenants, guests, and family members who are not the occupant. Drivers: By-law 12(c) restricts driving community-owned vehicles: the driver must have Council permission, not be under the influence of liquor or deleterious substance, and hold a valid driver’s licence. This affects members and non-members who might drive community vehicles. Police: Given specific powers to enforce the by-laws, including search, seizure, and removal. Police are also bound by the procedural constraints in by-law 17 (complaint and summons within six months). Council members: Face a unique consequence: if charged with a liquor offence under by-law 8, they are automatically deemed to have ceased to be an effective councillor. This creates a strong personal disincentive and could affect community governance by temporarily removing a councillor upon mere charge. The by-laws do not state who determines “effective” or what happens if the charge is withdrawn or dismissed (by-law 20(b) provides restoration). Any person on community land: All persons must obey traffic signs (by-law 11), must not damage property (by-law 14), must not disrupt meetings (by-law 15), and must not behave offensively (by-law 13). The reach is territorially based; once a person is on community land, the by-laws apply irrespective of membership. The effect on economic actors: a contractor needing to perform work must obtain permission; if permission is revoked mid-job, the contractor must leave. The by-laws do not address compensation for losses arising from such revocation. This creates a deterrent effect on businesses and service providers who may be reluctant to invest time or money in serving the community without certainty of access.

Duties: (1) Obtain permission before entering: non-Aboriginal persons must not enter or remain without Council permission (by-law 5(a)). (2) Comply with conditions: persons with permission must not contravene any term or condition of that permission (by-law 5(b)). (3) Leave when ordered: any person ordered by the Council to leave must do so as soon as reasonably possible (by-law 5(c)). (4) Obey signs: signs prohibiting entry or regulating traffic must be obeyed (by-laws 6, 11). (5) Leave a house when told: a person told to leave a house by the principal occupant or person in charge must leave or face an offence (by-law 7). (6) Do not bring, possess, use or supply liquor without Council permission (by-law 8(b)). (7) Do not enter or remain while under the influence of liquor to the extent of causing alarm, annoyance or upset (by-law 8(c)). (8) Do not possess a deleterious substance or petrol for inhalation, and do not sell or supply such substances to another if there are reasonable grounds to suspect they intend to inhale or resell for inhalation (by-law 10). (9) Drive with due care and attention; do not drive in a manner dangerous to any person (by-law 12). (10) Do not drive a community-owned/leased vehicle without Council permission, while under the influence, or without a valid licence (by-law 12(c)). (11) Do not cause disturbance or annoyance using abusive language, fighting, or behaving offensively or disorderly (by-law 13). (12) Do not willfully damage property (by-law 14). (13) Do not interrupt Council, community or customary meetings by noise or offensive/disorderly behaviour (by-law 15). (14) If a council member charged with a liquor offence, accept being deemed ineffective as a councillor (by-law 20).

Rights: (1) Right to apply for permission: any person may seek Council permission to enter or to engage in regulated activities (though the Council may refuse without reason). (2) Right of government employees to deemed permission when on duty (by-law 4(e)). (3) Right of defence: a defendant may raise the defence of acting under a custom of the community (by-law 19). This is the only express substantive defence in the by-laws; it is not limited to acts done in accordance with the permission system. (4) Right to procedural fairness: proceedings must be by complaint and summons under the Justices Act 1902, within six months (by-law 17). (5) Right of council member restored if charge withdrawn or dismissed (by-law 20(b)). (6) Right of compensation: the court may order compensation up to $250 to the community or an individual for property damage caused by an offence (by-law 18(b)). (7) Right to have property dealt with: upon conviction, the court may order destruction, disposal or forfeiture of seized liquor or deleterious substances (by-law 18(c)). (8) Implicitly, the by-laws do not confer any right to remain or to be heard before permission is revoked. The Council’s discretion is unfettered. The by-laws also do not create a right to challenge the Council’s recognition of Aboriginality or its discretionary decisions in court, other than by defending a prosecution for trespass. The defence of custom is available but leaves the burden on the defendant to prove existence and application of the custom.

Maximum fine: $100 for any breach (by-law 18(a)). This is a relatively small amount, even in 1991 values, and has not been updated except that the amendment in 2004 (see compilation table) related to sentencing legislation but did not increase the penalty. The low fine reduces deterrence for those who treat it as a cost of doing business or of visiting. However, the by-laws also provide for compensation up to $250 for property damage (by-law 18(b)), which can be ordered in addition to a fine. Seizure and forfeiture: Under by-law 16(d), police may stop, detain and search a vehicle on reasonable suspicion that liquor or a deleterious substance is in the vehicle in contravention of the by-laws, and seize those substances and any receptacle. They may also seize and detain a vehicle for up to 14 days if considered necessary to prevent repetition of the prescribed conduct (by-law 16(e)). Upon conviction, the court may order destruction, disposal or forfeiture of seized property (by-law 18(c)). This gives police a powerful tool to interrupt supply of liquor or inhalants. Removal: Police may apprehend and remove any person from community land if that person has committed or is found committing an offence and it appears on reasonable grounds likely that injury or damage will be caused if left at large (by-law 16(b)). This is a summary removal power without court order, limited by the practical ability to remove and the person’s cooperation. Procedure: Offences are dealt with by complaint and summons under the Justices Act 1902 (by-law 17). Proceedings must be commenced within 6 months after the offence. This relatively short limitation period may protect defendants but also puts pressure on police and the Council to act quickly. Council member consequence: A council member charged with an offence against by-law 8 is deemed to have ceased to be an effective councillor (by-law 20(a)). This is not a criminal penalty but a statutory consequence. It applies upon charge, not conviction. If the charge is withdrawn or dismissed, the member is restored (by-law 20(b)). This raises natural justice concerns, as the presumption of innocence is not respected; the mere laying of a charge disrupts community governance. The term “effective” is not defined, but likely means the member may not exercise councillor functions. Enforcement actors: Police are the primary enforcers. The Council also plays a role by giving orders to leave, giving or revoking permissions, and placing signs. However, the by-laws do not create a power for the Council to issue fines or penalties; only a court can impose penalties. The effectiveness of enforcement depends on police presence and willingness to act. Defence of custom: By-law 19 provides a defence to any offence if the defendant was acting under and excused by a custom of the community. This allows the court to hear evidence about customary law or practice. The burden is on the defendant to show the custom and that the act was excused by it. This defence could limit the reach of the by-laws in certain circumstances, but its scope is uncertain.

Aboriginal Communities Act 1979: The by-laws are made under this Act. That Act provides the enabling power and likely imposes some limits on the scope of by-laws, though the text of the by-laws does not mention those limits. The by-laws refer to “the Act” in definitions (by-law 3). The by-laws do not purport to override the Act, but they operate within its framework. Liquor Licensing Act 1988: The definition of “liquor” is taken from that Act. The by-laws do not create an independent liquor definition; therefore state licensing law determines what substances are caught. By-law 8 effectively creates a local prohibition on liquor without Council permission. It may overlap with state liquor licensing laws: for example, it is an offence under state law to sell liquor without a licence, but the by-law also prohibits possession and supply without Council permission. The by-laws do not appear to require compliance with state licensing law; permission from the Council alone may not satisfy the Liquor Licensing Act. The by-law does not state that Council permission overrides state law, so a person with Council permission to bring liquor might still commit an offence under state law if they are not licensed or otherwise exempt. This creates potential legal uncertainty. Justices Act 1902: Proceedings must be commenced by complaint and summons under this Act (by-law 17). This means the usual summary procedure applies, including rights of appeal. The six-month limitation period is derived from the by-law itself, not the Justices Act. Child Welfare Act 1947: By-law 17 says “Subject to the Child Welfare Act 1947”. This suggests that proceedings involving children may need to comply with that Act, but the by-law does not specify how. The interaction is unclear without further reference. Road traffic laws: By-law 12 creates additional driving offences on community land: careless and dangerous driving. These may overlap with state road traffic offences. The by-law does not state that it replaces or excludes state law. A driver could potentially be charged under both by-law 12 and the Road Traffic Act for the same conduct. The by-law also requires a valid driver’s licence for community-owned vehicles (by-law 12(c)(iii)), which mirrors state law. Other state and commonwealth laws: By-law 4 begins “Save as otherwise provided by any law of the State or Commonwealth”. This saving clause suggests that if another law requires a person to be on community land (e.g., a police officer executing a warrant, or an official acting under commonwealth law), that law prevails over the by-law. Government employees are deemed to have permission when entering in connection with their duties (by-law 4(e)), which resolves potential inconsistency. Interaction with native title and other indigenous land rights: The by-laws operate on lands held by Jigalong Community Incorporated. They do not purport to affect native title rights, but they regulate behaviour on that land. The defence of custom (by-law 19) indirectly acknowledges customary law as a potential excuse. Other by-laws: There may be by-laws for other Aboriginal communities made under the same Act. The Jigalong by-laws are independent; they have no interaction with other community by-laws except to the extent that a person moving between communities would need to comply with each set.

The by-laws were originally made on 21 June 1991, published in the Government Gazette at pp. 3008-3011, and commenced on that date (by-law 2). That is the only gazettal for the original by-laws. The compilation table shows one amending instrument: the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004, regulation 8, which was gazetted on 14 May 2004 at pp. 1451-1458 and commenced on 15 May 2004. The by-law 18 itself has a note: “[By-law 18 amended: Gazette 14 May 2004 p. 1454.]”. This amendment appears to have modified the penalties. The original penalty provisions may have been different. The 2004 amendment was part of a broader set of regulations dealing with sentencing of Aboriginal offenders, likely standardising penalties across community by-laws. The current maximum fine of $100 and compensation limit of $250 likely date from that amendment. The by-laws were reprinted as at 24 September 2004 (Reprint 1). No further amendments are recorded in the compilation table, meaning the text has been stable since then. The absence of later amendments may indicate that the by-laws are no longer a legislative priority or that the community has not sought changes. It is possible that the Sentencing Legislation amendment also affected by-law 18(c) or other parts, but only the reference to page 1454 is given. The amendment history is limited; the by-laws have been in force for over three decades with only one known change. This suggests that the community may rely on the by-laws as settled, but it also means that the penalty levels have not kept pace with inflation. The $100 fine today is worth considerably less than in 1991 or even 2004, potentially reducing the deterrent effect.

The source text does not mention any case law or litigation history. There are no references to court decisions interpreting these by-laws. It is possible that prosecutions under the by-laws have been brought in the Western Australian Magistrates Court, but no decisions are published in the compilation or the notes. Given the low penalties, appeals are unlikely to reach higher courts. The defence of custom (by-law 19) has not been judicially considered in the text. However, practitioners should be aware that the defence could be litigated, and that its interpretation might be influenced by case law on customary law in other contexts. The by-laws have been in force since 1991; there may be a body of local practice but no recorded appellate guidance. The absence of noted litigation could mean enforcement is rare, or that cases are dealt with informally. The by-laws themselves provide for a swift complaint and summons process; a defendant who wishes to challenge the validity of a by-law or the exercise of Council discretion would need to raise that in the context of a prosecution. There is no separate judicial review mechanism in the by-laws. The validity of by-laws made under the Aboriginal Communities Act 1979 could be challenged on ultra vires grounds or for unreasonableness, but no such challenge is recorded in this source.

1. Unfettered discretion to revoke permission: The Council may revoke permission to enter at any time without stating any reason (by-law 4(c)). There is no requirement for natural justice or prior notice. A person who has travelled to the community could be ordered to leave immediately, with no recourse. This creates significant uncertainty for anyone entering other than as a community member.

2. Oral permission: Permission to enter may be given orally (by-law 4(b)). This means there may be no written record, creating evidential difficulties if the Council later denies having given permission. A visitor who claims to have received oral permission may face a credibility contest.

3. Definition of “Aboriginal”: The by-law uses “not recognised by the Council to be Aboriginal”. The criteria for recognition are not stated. This could lead to inconsistent or disputed determinations, and a person who believes they are Aboriginal may be treated as non-Aboriginal by the Council and required to have permission.

4. Scope of “community land” not defined in the by-laws: The term appears without definition in the by-laws. It is likely defined in the Aboriginal Communities Act 1979 or in the community’s constitution, but not in the by-laws themselves. This could create uncertainty about where the by-laws apply, especially if land boundaries are not clearly marked.

5. Low penalties but broad police powers: The $100 maximum fine is minor, but the by-laws give police power to stop, detain and search vehicles, seize property, and remove persons from the land. These powers are not contingent on a conviction; they can be exercised on reasonable suspicion. The practical impact on a person is much greater than the fine. A vehicle can be detained for up to 14 days without a court order (by-law 16(e)).

6. Council member deeming provision: A council member charged with a liquor offence is immediately deemed to have ceased to be an effective councillor (by-law 20(a)). This applies upon charge, not conviction. This could be used tactically: a charge could be laid to remove a political opponent from the Council, even if the charge is later withdrawn. The restoration provision (by-law 20(b)) is contingent on withdrawal or dismissal, but the interim period of ineffectiveness could disrupt governance.

7. Defence of custom carries evidential burden: By-law 19 provides a defence, but the defendant must show that they were “acting under and excused by a custom of the community”. This requires proof of the custom, which may be difficult to establish in a court hearing, especially if the custom is unwritten or the defendant is not a community member.

8. Interaction with state liquor licensing: The by-law prohibits liquor without Council permission, but does not exempt a person from state licensing laws. A person granted Council permission to bring liquor might still commit an offence under the Liquor Licensing Act if the liquor is not lawfully obtained or transported. The by-law does not displace state law.

9. Six-month limitation period: Proceedings must be commenced within six months of the offence (by-law 17). This is short; a complainant must act quickly. However, this also means that if the Council or police delay, the right to prosecute may lapse, potentially encouraging expedited enforcement or administrative action instead of formal charges.

10. No appeal mechanism: The by-laws do not provide any internal review of Council decisions on permission or removal. A person aggrieved by a refusal or revocation has no avenue within the by-laws other than to leave and potentially challenge any subsequent prosecution. Judicial review may be available under general law, but that is outside the by-laws.

11. Government employee deemed permission limited: By-law 4(e) deems permission for government employees entering in connection with their duties. This does not cover private contractors working for the government; they would need separate permission. It also does not cover government employees entering for personal reasons.

For non-members (especially non-Aboriginal persons): Obtain permission from the Council before entering community land. Permission should ideally be in writing, even though oral permission is allowed, to avoid disputes. Confirm any conditions of entry and adhere to them strictly. If the Council revokes permission, leave as soon as reasonably possible. Do not argue or delay. If you need to stay for multiple days, seek permission that covers the duration. If you are a contractor, get a written agreement from the Council specifying the scope of work and permission. Be aware that permission can be revoked without cause, so have contingency plans.

For all persons on community land: Do not bring, possess, use or supply liquor unless you have express Council permission. The Council may impose conditions. If you are unsure, assume alcohol is prohibited. Do not misuse petrol or other volatile substances for inhalation. Do not sell or supply substances to others if you suspect they intend to inhale them. Observe all signs, including traffic signs and area restriction signs. Drive carefully: avoid speeding, reckless driving or driving without a valid licence if driving a community-owned vehicle. If you are driving a community vehicle, first obtain permission from the Council or the person in charge, ensure you are sober and have the correct licence. Do not drive under the influence of liquor or drugs. Do not damage any property, including trees, lawns, buildings, vehicles, or other items. Do not use abusive language, fight, or behave in an offensive or disorderly manner. Do not interrupt any meeting of the Council or community, or any customary meeting, by noise or offensive behaviour.

If you are told to leave a house by the principal occupant or person in charge: leave immediately. Do not refuse.

If you are a member of the community: You are not required to obtain permission to enter (that requirement applies only to non-members), but you are still bound by all other by-laws. You must not bring liquor onto community land without permission, and you must comply with traffic and behaviour rules.

If you are a council member: Be particularly careful with liquor. A mere charge for a liquor offence will result in you being deemed an ineffective councillor. This could be avoided by not bringing, possessing or using liquor without Council permission, and not entering or remaining while intoxicated in a manner that causes alarm.

If you wish to rely on the defence of custom: You must be prepared to lead evidence of the specific custom and that you were acting under it. This may require testimony from elders or documented custom. The defence is not available merely because you are Aboriginal; it requires that the act was excused by a custom of the community.

If you are a government employee: You are deemed to have permission when entering in connection with your duties. Ensure that your entry is indeed for official purposes and not for personal reasons. Continue to comply with all other by-laws.

If you are stopped by police: Comply lawfully. If asked to leave community land, do so. If your vehicle is searched, note that the police must have reasonable suspicion. You may request their identification and the grounds for suspicion. If property is seized, you may be entitled to its return if no conviction is obtained (by-law 18(c) only deals with disposal upon conviction). Seek legal advice.

General compliance strategy: The safest approach is to seek advance, written permission from the Council for any activity that could be considered regulated (entry, bringing liquor, using community vehicles). Keep a copy of the permission. Maintain good relations with Council members. If you are a service provider, negotiate a long-term permission agreement. Understand that the by-laws give the Council wide discretion; compliance is easier if you are transparent and cooperative. Avoid conduct that could be perceived as offensive or disorderly, as the definition is broad.