Junjuwa Community Incorporated By-laws

The by-laws operate around several key defined concepts. Community land is land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of Junjuwa Community Incorporated. This is the spatial jurisdiction of the by-laws. The definition deliberately excludes any specific description of boundaries, leaving that to the Governor's declaration. The community is defined to mean both the incorporated body Junjuwa Community Incorporated and the collective group of its members, including their spouses and dependents (whether or not they are members in their own right) (by-law 3). This dual definition creates some ambiguity: the by-laws refer to "the community" in different contexts, sometimes as the body corporate and sometimes as the people. For example, by-law 4(d) says the Council may order "any person whatsoever (other than a member of the community) to leave community land". That uses the collective meaning. By-law 15 prohibits interrupting a meeting of "the community", which likely means the membership meeting. The Council means the Council of Junjuwa Community Incorporated, the governing body. It is the primary decision-maker under the by-laws: it grants or revokes entry permission, permits liquor, erects signs, regulates traffic, and can delegate through its members (by-law 4(f)). Liquor is defined by reference to the Liquor Licensing Act 1988, a fluid definition that imports the state's liquor classification regime. Deleterious substance means glue or any volatile liquid containing hydrocarbons (by-law 3). This targets solvent sniffing. Vehicle means any motor vehicle capable of self propulsion, including trailers or caravans while attached (by-law 3). The by-laws also rely on the concept of permission. Permission can be oral or written, unconditional or subject to terms. It can be revoked without reason. This grants the Council an unconstrained power of exclusion that is not subject to natural justice or merits review. The defence of acting under custom (by-law 20) is a notable concept: it is a complete defence to any offence if the defendant can show they were acting under and excused by a custom of the community. The by-laws do not define "custom" or specify how it is proved, which places significant interpretive burden on the courts. Prohibited substance is not separately defined but appears in by-law 12(c)(ii) (driving under influence) and by-law 16(d) and (e) (search and seizure powers). Context suggests it includes liquor and deleterious substances. The by-laws also create a deeming provision: a Council member charged with a liquor offence ceases to be an effective councillor until the charge is resolved (by-law 21). This operates automatically upon charge, not conviction, presuming a cooling-off period.

The by-laws apply to all persons on community land, whether members of the community or not (by-law 3). However, they distinguish sharply between classes of people. Non-Aboriginal persons are the primary target of the entry permission system: they cannot enter or remain without prior Council permission (by-law 4(a)). Aboriginal persons who are not recognised by the Council as Aboriginal? The by-law is phrased negatively: "no person who is not recognised by the Council to be Aboriginal" may enter without permission. That implies the Council has power to recognise who is Aboriginal. The by-law does not require that an Aboriginal person be a member of the community. An Aboriginal person from elsewhere could theoretically enter without permission, but the Council can still order them to leave under by-law 4(d) (which applies to "any person whatsoever (other than a member of the community)"). So a non-member Aboriginal person can be ordered to leave, but the entry permission requirement does not apply to them. Members of the community have the most extensive rights: they cannot be ordered to leave under by-law 4(d) (the exception), and they are subject to the liquor prohibitions, traffic rules, offensive behaviour, wilful damage and disruption of meetings. Government employees entering in connection with their duties are deemed to have permission to enter (by-law 4(e)). They are still subject to all other by-laws. Council members face a special risk: if charged with a liquor offence, they are automatically deemed to cease being effective councillors (by-law 21). This affects internal governance. Police officers are given enforcement powers under by-law 16, including the power to remove persons from community land if they reasonably believe injury or damage will be caused, and to stop, detain and search vehicles for prohibited substances without a warrant. Drivers of community-owned vehicles need permission from the Council or an authorised person, must hold a valid driver's licence of the appropriate class, and must not drive under the influence of a prohibited substance (by-law 12(c)). Persons in possession of glue, volatile liquids or petrol are caught if they have them for the purpose of inhalation (by-law 10(a)). Sellers and suppliers are caught if they have reasonable grounds to suspect the buyer intends to inhale or resell for inhalation (by-law 10(b)). Medical professionals and patients with properly prescribed preparations are exempt from the liquor and pharmaceutical restrictions (by-law 9). The by-laws thus create a layered regulatory scheme that affects different people in different ways, with the most onerous obligations falling on non-Aboriginal visitors and those suspected of substance misuse.

The by-laws impose clear duties and confer specific rights, primarily on the Council, police and individuals. Duty to obtain permission to enter: any non-Aboriginal person must obtain Council permission before entering community land (by-law 4(a)). The duty is ongoing: a person who enters without permission and remains commits an offence (by-law 5(a)). Duty to comply with permission conditions: if permission is granted subject to conditions, failing to comply is an offence (by-law 5(b)). Duty to leave when ordered: any person (except a member of the community) must comply with a Council order to leave and remain off community land (by-law 4(d) and 5(c)). Duty to obey signs: persons must obey signs prohibiting entry (by-law 6(b)) and traffic signs (by-law 11(b)). Duty to leave a house when told: a person told to leave the house of another by the principal occupant or the person in charge must do so (by-law 7). Duty not to bring, possess, use or supply liquor without Council permission (by-law 8(b)). Duty not to enter or remain while under the influence of liquor to the extent of causing alarm, annoyance or upset (by-law 8(c)). Duty not to possess deleterious substance or petrol for inhalation (by-law 10(a)). Duty not to sell or supply where there are reasonable grounds to suspect inhalation use (by-law 10(b)). Duty to drive with due care and attention and not in a dangerous manner (by-law 12(a) and (b)). Duty not to drive community-owned vehicle without permission, without a licence, or under the influence (by-law 12(c)). Duty not to cause disturbance or annoyance by abusive language, fighting or offensive behaviour (by-law 13). Duty not to damage any tree, bush, building, structure, vehicle or other thing (by-law 14). Duty not to interrupt meetings of the Council, community or customary meetings (by-law 15). Rights of the Council: the Council has the right to grant or refuse entry permission, impose terms, revoke permission without reason, order persons to leave, permit liquor, erect signs, regulate traffic, and authorise use of community vehicles (by-laws 4, 6, 8, 11, 12(c)(i)). Rights of police: police may take proceedings, apprehend and remove persons reasonably likely to cause injury or damage, request name and address of anyone believed to have breached a by-law, stop and search vehicles on reasonable suspicion of containing a prohibited substance, and seize and detain vehicles for up to 14 days (by-law 16). Defence of custom: any person charged with an offence may raise the defence that they were acting under and excused by a custom of the community (by-law 20). This places a right to rely on customary law in the face of these by-laws. Right to compensation for damage: the court may order a convicted person to pay compensation up to $250 to the community or an individual for property damage caused during the offence (by-law 19(b)). Right to restoration of Council position: a Council member charged with a liquor offence who has the charge withdrawn or dismissed is restored to their former position (by-law 21(b)).

The penalty regime is modest in amount but broad in scope. The maximum fine for any breach of the by-laws is $100 (by-law 19(a)). That figure was amended by the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004 (gazetted 14 May 2004, effective 15 May 2004). Prior to that amendment, the maximum may have been lower (common law figures such as $20 or $50 were typical in older by-laws). Even at $100, the fine is trivial by contemporary standards, but the by-laws have never been updated for inflation. In addition to the fine, the court may order compensation up to $250 for property damage caused during the offence (by-law 19(b)). The court also has power upon conviction for an offence involving possession or use of a prohibited substance to make orders for destruction, disposal or forfeiture of property seized under the police search power (by-law 19(c)). That is a significant additional penalty: a person could lose a vehicle worth many times the $100 fine if the vehicle is deemed to contain a prohibited substance. Police enforcement powers are extensive and largely unsupervised. Under by-law 16(b), a police officer may apprehend and remove any person from community land if, on reasonable grounds, it appears likely that injury or damage will be caused by that person if left at large. This is a preventive detention and removal power that does not require a conviction or even a charge. The officer acts on their own assessment. Under by-law 16(d), a police officer with reasonable cause to suspect a prohibited substance is in any vehicle in contravention of the by-laws may stop, detain and search that vehicle. This is a warrantless search power triggered by suspicion. The officer may seize any deleterious substance and its receptacle and retain them until dealt with according to the by-laws. Under by-law 16(e), if a prohibited substance is found in a vehicle through that search, the officer may seize, search and detain the vehicle for up to 14 days if considered necessary on reasonable grounds to prevent repetition of the prescribed conduct. That is a vehicle detention power without judicial order, limited to 14 days. Under by-law 16(c), police may request the name and address of any person they believe on reasonable grounds to be on community land and to have committed a breach of a by-law. Failure to comply is not explicitly an offence, but the power is ancillary to taking proceedings. Proceedings must be commenced by way of complaint and summons under the Justices Act 1902 and within six months of the offence (by-law 17). This is a standard limitation period for summary offences. The six month clock is relatively short, limiting the window for prosecution. A notable enforcement gap: the by-laws do not create an offence for failing to provide name and address, unlike many other summary offence regimes. Police must rely on other laws or simply rely on the removal power. The practical enforcement burden falls largely on the Council and local police. The by-laws give the Council no direct enforcement power (except through its members acting under by-law 4(f) to issue or revoke permission; they cannot issue fines or use force). All formal enforcement is through the police and the courts.

The by-laws operate under the Aboriginal Communities Act 1979 (WA). Section 6 of that Act allows the Governor to declare land to be community lands for a community, and section 7 empowers the community to make by-laws for the order and good government of those lands. These by-laws are subsidiary legislation under that Act. They are not a separate statute. The by-laws sit alongside and override general Western Australian law to the extent of any inconsistency. For example, the general law of trespass applies on community land, but the by-laws add a specific criminal permission regime with police enforcement powers. The by-laws specifically refer to the Liquor Licensing Act 1988 for the definition of liquor (by-law 3). That means changes to that Act (such as new definitions of liquor strength or new categories) automatically flow into the by-laws. The by-laws also refer to the Justices Act 1902 for procedure (by-law 17), the Child Welfare Act 1947 to be excluded (by-law 17), and the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004 which amended the penalty provision. By-law 6 is expressed to be subject to "the provisions of any Act or regulation to the contrary". That savings clause preserves any inconsistent state or Commonwealth law that would otherwise be overridden. For example, if a Commonwealth Act gives a person a right of access, that would prevail. By-law 4(a) also says "save as otherwise provided by any law of the State or Commonwealth". This means a Commonwealth law requiring entry for a legitimate purpose (such as a postal worker delivering mail) might override the permission requirement. However, the by-laws deem government employees to have permission (by-law 4(e)), which covers many Commonwealth and state workers. The defence of acting under custom (by-law 20) is a unique interaction. It allows customary law to excuse what would otherwise be an offence under these by-laws. No general Western Australian law provides such a defence. This means the by-laws create a carve-out for custom that may conflict with the general criminal law. For example, if a customary punishment involves the use of liquor (which is prohibited), the defence might be raised. The interaction with the Racial Discrimination Act 1975 (Cth) is legally significant but not mentioned in the by-laws. By-law 4(a) distinguishes expressly on the basis of Aboriginality, which could be challenged as racially discriminatory. However, section 7 of the Racial Discrimination Act exempts measures taken for the purpose of securing adequate advancement of certain racial groups. The Aboriginal Communities Act 1979 and these by-laws may be defended as special measures. The interaction with the Criminal Code (WA) is also relevant: the by-laws create offences that are additional to any Code offences. A person could be charged both under the by-laws (e.g., offensive behaviour) and under the Code (e.g., disorderly conduct in public). The by-laws do not contain any double jeopardy or election clause.

The by-laws were originally gazetted on 10 May 1991 (p. 2357-9) and came into effect the same day (by-law 2). They were made under the then Aboriginal Communities Act 1979. The initial penalty amount is not recorded in the reprint (the compiler notes the 2004 amendment). The only amendment recorded in the compilation table is the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004, r. 9, gazetted 14 May 2004, effective 15 May 2004. That regulation amended by-law 19. The reprint shows by-law 19 as amended: the maximum fine is $100, and the maximum compensation is $250. It is possible the pre-2004 version had lower figures (e.g., $20 fine, $50 compensation). The amendment regulation was part of a broader package that updated penalties across multiple Aboriginal community by-laws in Western Australia. The by-laws were reprinted as at 8 April 2005, incorporating that amendment. No further amendments appear in the source. There is no record of any other by-laws being made for this community, nor any revocation. The by-laws remain in force as at the date of this analysis unless subsequently amended or repealed (which is unknown from this source). The amendment history is sparse, suggesting little legislative attention to these specific by-laws over the 14 years from 1991 to 2005. The by-laws themselves have not been updated to reflect changes in other legislation they reference, such as the Liquor Licensing Act 1988 (which has been amended multiple times since 1991, including a new Liquor Control Act 1988 in some contexts). The definition of "liquor" in by-law 3 refers to "the Liquor Licensing Act 1988", which is still current in name but the Act itself has been substantially amended. The by-laws have not been updated to refer to replacement Acts or amended definitions. The Child Welfare Act 1947 referred to in by-law 17 has been largely replaced by the Children and Community Services Act 2004, but the by-laws have not been updated. The Justices Act 1902 has been replaced by the Criminal Procedure Act 2004 in many contexts, but the by-laws still reference the old Act. This creates potential technical issues for proceedings: by-law 17 says proceedings shall be "under and in accordance with the Justices Act 1902". If that Act is no longer in force for those proceedings, there may be a gap in procedural validity. The amendment history reveals a general lack of maintenance.

The source document contains no litigation history. No cases are cited or noted. However, the lack of citation does not prove no litigation occurred. Community by-laws of this type are rarely litigated in higher courts because they involve minor penalties and are typically dealt with in the Magistrates Court. The defence of custom under by-law 20 may have been raised in some matters, but there is no published appellate decision. The by-law's racial distinction (by-law 4(a)) could have been challenged under the Racial Discrimination Act 1975, but no such case is recorded in the source. The police power to detain a vehicle for up to 14 days without a court order (by-law 16(e)) could be subject to constitutional challenge as an acquisition of property on unjust terms under section 51(xxxi) of the Constitution, or as a breach of the implied freedom of movement, but again no case appears. The by-law's definition of "community land" depends on a Governor's declaration. The validity of that declaration could be challenged if it was not properly made. Given the by-laws are nearly three decades old and have been reprinted by the WA government, their formal validity is presumed. The most likely form of litigation would be a prosecution for breach of by-law 8 (liquor) where the defendant raises the custom defence, requiring the court to define "custom" and determine whether the defendant was excused. That is fact-intensive and unlikely to produce a reported decision. The by-law 21 (Council members charged with liquor offence deemed to cease) could give rise to a legal dispute about whether the deeming provision is a suspension or removal, and whether it requires procedural fairness. The by-law operates automatically upon charge, not conviction, which may be ultra vires the power to make by-laws for order and good government (section 7 of the Act). A councillor could challenge the validity of by-law 21 on the ground that it purports to remove or suspend a duly elected officer without any hearing, contrary to natural justice. There is no evidence such a challenge has been brought. Overall, the litigation history appears minimal or non-public, which is consistent with the low penalties and the self-policing nature of the community. Practitioners should not rely on this assumption, but the source provides no guidance.

Several features of these by-laws trap the unwary. First, the entry permission requirement (by-law 4) applies to any person who is "not recognised by the Council to be Aboriginal". The Council has complete discretion to recognise or not. There is no appeal, no right to reasons, and no time limit on a decision. A person who is Aboriginal but not recognised by this Council may still require permission. The by-law does not define how recognition is determined. This creates uncertainty for Aboriginal visitors from other communities. Second, the Council's power to order a person to leave and remain off community land (by-law 4(d)) is not limited by any reasonableness requirement. The Council can act "without the necessity of stating any reason". This is a power of banishment that operates outside the normal criminal process. Third, the by-law 8(c) prohibition on being on community land while under the influence of liquor causing "alarm, annoyance or upset" is extremely subjective. It does not require proof of specific conduct, only that the person's behaviour causes those reactions. A mere state of intoxication could be enough if a community member is annoyed. Fourth, by-law 16(e) allows police to detain a vehicle for up to 14 days if a prohibited substance is found in it. This detention is not contingent on the owner being charged or convicted. The police officer decides what is "considered necessary" to prevent repetition. The vehicle may be held for two weeks without judicial oversight, and only must be released after that maximum (by-law says "up to maximum period of 14 days"). There is no mechanism for earlier release. Fifth, the defence of custom (by-law 20) is vague. It requires the defendant to "show" they were acting under and excused by a custom of the community. The by-laws do not specify how custom is proved (e.g., by oral evidence of elders) or what happens if the custom conflicts with another provision of the by-laws (e.g., a custom that involves bringing liquor). The court has to determine whether the custom excused the conduct. This places a heavy evidentiary burden on the defendant and creates unpredictability. Sixth, by-law 21 automatically deems a Council member charged with a liquor offence to have ceased to be an effective councillor. This applies upon charge, not conviction. A politically motivated charge could be used to remove a councillor. The only restoration is if the charge is withdrawn or dismissed after trial. There is no provision for compensation for lost time or status. Seventh, the by-laws contain no sunset clause, no review mechanism, and no requirement for the Council to exercise its powers reasonably or in writing. The broad discretion coupled with low penalties means enforcement may be arbitrary. Eighth, by-law 17 requires proceedings to be commenced within six months of the offence. But the limitation does not apply to police powers of removal or vehicle seizure, which are not proceedings. A person could be removed or have their vehicle seized without any charge being laid, and the six month limitation on proceedings may then expire, leaving them without recourse. Ninth, the by-laws do not create an offence of obstructing a police officer or failing to provide name and address. This limits police ability to enforce compliance beyond the specific powers in by-law 16. Tenth, the by-laws apply to all persons on community land, but the definition of community land depends on a Governor's declaration that is not reproduced. A person may not know whether they are on community land. The by-laws do not require signage at boundaries. A visitor could inadvertently be on community land without permission and commit an offence. These traps make compliance difficult without active cooperation from the Council.

Compliance begins with understanding the Council's role as gatekeeper. Any non-Aboriginal person wishing to enter Junjuwa community land must first obtain permission from the Council (by-law 4). Permission can be sought orally or in writing. It is prudent to seek written permission to avoid later disputes, though the Council may prefer oral. The permission may be subject to conditions (by-law 4(b)), which must be strictly observed. If conditions are violated, the person commits an offence and the Council may revoke permission without reason (by-law 4(c) and 5(b)). Government employees entering in connection with their duties are deemed to have permission (by-law 4(e)), but they should carry identification and be able to demonstrate the purpose of entry is within their duties. They are still subject to all other by-laws. All persons on community land, including members and permitted visitors, must obey signs prohibiting entry to specific areas (by-law 6) and traffic signs (by-law 11). The Council can place these signs at any time. Driving must be careful and not dangerous (by-law 12). A driver of a community-owned vehicle needs express permission from the Council or an authorised person, a valid driver's licence of the appropriate class, and must not be under the influence of a prohibited substance (by-law 12(c)). The by-laws do not specifically require a licence for driving a private vehicle on community land, but the general driving safety obligations under by-law 12(a) and (b) still apply. Liquor is banned unless the Council permits it (by-law 8). Any person wishing to bring liquor onto community land must seek Council permission. The Council has discretion to permit, subject to terms. It is an offence to be on community land while under the influence of liquor to the extent that behaviour causes alarm, annoyance or upset to members (by-law 8(c)). The safest approach is to avoid alcohol entirely on community land unless specifically permitted. Deleterious substances (glue, volatile liquids containing hydrocarbons) and petrol must not be possessed for the purpose of inhalation (by-law 10). Selling or supplying such substances to another on community land is an offence if there are reasonable grounds to suspect the other intends to inhale or resell for inhalation. Sellers should verify the buyer's purpose or refuse to supply within community land. Possession of properly prescribed pharmaceutical preparations is exempted (by-law 9). Offensive behaviour (abusive language, fighting, disorderly conduct) is prohibited (by-law 13). Wilful damage to any property, whether community or individual, is an offence (by-law 14). Meetings of the Council, the community or customary meetings must not be disrupted by noise or offensive behaviour (by-law 15). Visitors should be mindful of customary events and avoid causing interruptions. If a person is told to leave a house by the principal occupant or person in charge, they must do so (by-law 7). That power extends to any person, not just visitors. A person who is ordered by the Council to leave community land must comply (by-law 4(d) and 5(c)). The order may also require the person to remain off community land for a specified time. Non-compliance is an offence. In all interactions with police, persons should provide their name and address if requested under by-law 16(c), though no offence is created for refusal. Police have broad powers to remove persons if they believe injury or damage is likely (by-law 16(b)). It is prudent to avoid conduct that could give rise to that belief. Vehicles should not contain prohibited substances; if they do, police may search and detain the vehicle for up to 14 days (by-law 16(d) and (e)). The most coherent compliance strategy is to treat the Council as the primary authority: seek and follow its permissions, obey its signs, and avoid any conduct that could be seen as causing annoyance or damage. The custom defence (by-law 20) is available, but it is risky to rely on it without clear evidence. If a person believes they are acting under a customary right, they should document the custom and be prepared to prove it in court. Council members charged with a liquor offence should be aware that they are automatically deemed to cease as effective councillors (by-law 21) and should seek to have the charge resolved quickly. The overall compliance burden is moderate because the by-laws are local, the penalties are low, and many behaviours that are prohibited (e.g., dangerous driving, damage) are already illegal under general law. The main additional burden is the permission system for entry and liquor, which requires proactive engagement with the Council.