Kalumburu Aboriginal Corporation By-laws

The by‑laws operate through several key definitions and structural concepts. Community land is the physical territory declared by the Governor under section 6 of the Aboriginal Communities Act 1979. It is not defined by metes and bounds in the by‑laws themselves; rather, the declaration is external. The community is defined as the Kalumburu Aboriginal Corporation, an incorporated body. A member of the community is any person accepted as such for the time being , a circular definition that leaves membership criteria entirely to the Corporation’s internal rules. The Council is the corporation’s governing body.

The by‑laws create a distinction between members and non‑members that is fundamental to the entry regime. Members have an implied right to be on community land; non‑members require permission. That permission is a personal, conditional, and revocable privilege, not a property right. The Council may delegate its permission‑granting power to any community adviser or officer (by‑law 4(3)). This creates a hierarchy of authorised decision‑makers, though the Council retains concurrent power.

Alcohol offences are broad and strict. The prohibition covers bringing, possessing, supplying, consuming, and being drunk on community land, and driving under the influence. Notably, the prohibition applies to “any person” , including community members. The only exception is for mission staff transporting alcohol through the land for consumption at the Mission by non‑members or for sacramental use (by‑law 11). This exception does not extend to mission staff consuming alcohol themselves on community land; it only permits transport and supply to non‑members at the Mission and use in sacraments.

Traffic signs are a Council‑controlled mechanism. The Council may erect signs prohibiting, regulating, or guiding vehicle traffic and pedestrian passage. The inscription on a sign operates according to its tenor , meaning written directions have the force of law for all persons on community land, regardless of whether the person is a member. The same principle applies to general prohibition signs under by‑law 5, which restrict entry to designated areas.

Enforcement concepts: wardens are members of the community appointed by the Council, with duties to inquire into alleged breaches and enforce the by‑laws generally. They are not police but have the power to request name and address (by‑law 17(2)) and to commence proceedings (by‑law 17(4)). Police have broader powers of removal. The defence of custom (by‑law 22) is a unique feature: it allows a defendant to show they were acting under or excused by a custom of the community. This creates a legal avenue for customary law to override a by‑law prohibition in a specific case, though the burden of proof lies on the defendant. The by‑laws do not define “custom” or provide a mechanism for proof. Finally, the offence is created either by the specific conduct prohibitions (by‑laws 4-5, 7-11, 17-18) or by a separate provision (by‑law 19) making breach of by‑laws 6, 8, 12-16 an offence, despite those by‑laws already stating “commits an offence” in some cases. This duplication creates minor redundancy but no conflict.

The by‑laws apply to every person physically present on community land, but the most significant practical burdens fall on non‑members. Any person who is not a member of the Kalumburu Aboriginal Corporation must obtain prior Council permission to enter or remain. This includes visitors, service providers, government officials (unless another Act or regulation provides an applicable exemption), tradespeople, delivery drivers, journalists, researchers, tourists, and family members of residents who are not themselves accepted as members. The by‑laws do not require written permission, but in practice, the Council’s absolute discretion means access can be denied or revoked at any time for any reason, giving residents significant control over who enters.

Mission staff stationed at Kalumburu Mission receive a limited exemption under by‑law 11, allowing them to transport alcohol through community land for consumption at the Mission by non‑members or for sacraments. This does not exempt them from other by‑laws or from the alcohol prohibition while off‑duty or when the alcohol is for personal use. The Mission exemption recognises a pre‑existing institutional presence but creates a distinction between mission staff and other non‑members.

Members of the community are also affected. While they do not need permission to enter, they are bound by the prohibitions on alcohol, traffic offences, wilful damage, litter, offensive behaviour, disruption of meetings, unauthorised fires, and home entry. A member can be removed by police for up to 24 hours if injury or damage appears imminent (by‑law 17(1)). Wardens are drawn from among members, imposing duties of inquiry and enforcement that may create social friction within the community. The defence of custom provides some flexibility but places the evidentiary burden on the defendant, who must prove the custom and that they were acting under it.

Commercial operators are affected in several ways. Any business delivering goods or providing services on community land must arrange Council permission. Vehicle access may be restricted. The alcohol prohibition prevents retail sale, supply, or consumption, which affects any business model involving alcohol sales (e.g., a store, catering, or event services). The litter and wilful damage provisions impose compliance costs on any contractor. The Council’s ability to erect traffic signs and prohibit vehicles from areas can disrupt commercial routes or access points.

Government authorities are affected where they seek to enter for regulatory functions, health services, policing (outside of by‑law 17 powers), or infrastructure work. The by‑laws state “except as provided to the contrary in any Act or regulation” (by‑law 4(1), 5), which preserves any overriding statutory power of entry, but absent such a power, even a government officer must obtain Council permission.

The by‑laws impose a range of duties and grant a corresponding set of powers, primarily to the Council and its delegates. The central duty for non‑members is to obtain prior permission before entering community land (by‑law 4). Once on the land, they must comply with any conditions attached to that permission. If permission is revoked or a request to leave is made, the duty to leave arises immediately. Non‑members also have a duty to obey the inscription on any sign erected under by‑laws 5 (restricted areas) and 7 (traffic signs). They must not bring, possess, supply, or consume alcohol, and must not be drunk or drive under the influence (by‑law 10). They must not cause damage (by‑law 12), leave rubbish outside designated areas (by‑law 13), use abusive language or fight (by‑law 14), interrupt meetings (by‑law 15), or light unauthorised fires (by‑law 16). They must not drive without due care (by‑law 8) or drive in areas declared vehicle‑prohibited (by‑law 9). They must not enter another person’s home without permission and must leave when directed (by‑law 6).

Members of the community have the same duties with respect to alcohol, traffic, damage, litter, offensive behaviour, meetings, fires, and home entry, except they do not require permission to be on community land. Members also have a duty, if appointed as wardens, to inquire into alleged breaches and cooperate with police (by‑law 18(2)). Any person must provide their name and address when requested by a police officer or warden who believes on reasonable grounds that a by‑law breach has occurred (by‑law 17(2)-(3)).

The Council holds the right to grant or refuse entry permission, impose conditions, revoke permission, and delegate those powers (by‑law 4). It also holds the right to place restriction signs (by‑law 5) and traffic signs (by‑law 7), declare vehicle‑free areas (by‑law 9), set aside areas for rubbish (by‑law 13), designate fire‑use areas (by‑law 16), and appoint wardens (by‑law 18). These are discretionary powers; the by‑laws impose no duty on the Council to exercise any of them. The Council is not required to state reasons for decisions, and no appeal mechanism is provided within the by‑laws.

Police have a right to apprehend and remove any person who has committed or is committing an offence where injury or damage appears likely, for up to 24 hours, and must return the person if a court is convened to deal with them (by‑law 17(1)). Police and wardens may request name and address and may commence proceedings. Wardens have a duty to act on alleged breaches but are not given independent powers of arrest or removal beyond the name‑and‑address request.

A defendant has the right to raise the defence of acting under custom (by‑law 22). This is a substantive defence; if established, it completely excuses the conduct. The defendant bears the burden of proof on the balance of probabilities, as it is a statutory defence rather than an element of the offence. The by‑laws do not define custom or set out a procedure for proving it, leaving the court to determine what constitutes a valid custom in each case.

The penalty framework is straightforward but carries significant implications given the strict liability nature of many offences. The maximum fine for any by‑law offence is $100 (by‑law 20, as amended in 2004). This is a fixed maximum; the court retains discretion to impose a lower amount. The fine is not indexed and has not changed since 2004, meaning its real value has eroded with inflation. In 2025 dollars, $100 is roughly $150-160, which is modest by contemporary Australian penalty standards. However, for a resident on a low income or with limited means, even $100 can be a substantial burden. The fine is the same for first and subsequent offences, with no escalating scale.

In addition to the fine, the court may order restitution of up to $250 to the community or another person for property damage caused in the course of the offence (by‑law 21). This is compensation, not a punitive measure. The cap of $250 means that damage above that amount cannot be recovered through this by‑law process; the victim would need to pursue a separate civil claim. The 2004 amendment increased the restitution cap from an unspecified lower amount, likely $100, to $250 (the amendment regulation is the Sentencing Legislation (Short Sentences - Aboriginal Community By‑Laws) Amendment Regulations 2004 r. 10).

Enforcement is multi‑layered. Police may remove a person from community land for up to 24 hours if they have committed or are committing an offence and injury or damage appears likely (by‑law 17(1)). The removal power does not require a conviction; it is a preventive measure. The removed person must be returned if a court is convened to deal with them. This creates a potential for the person to be shuttled on and off the land, though the practical limitations of policing remote communities likely limit frequent use.

Wardens are appointed by the Council from among community members. Their duties are to inquire into alleged breaches, cooperate with police and the community, and enforce the by‑laws generally (by‑law 18(2)). Wardens have no power of arrest or removal. They may request a name and address and commence proceedings. Obstructing a warden in the lawful execution of duty is an offence (by‑law 18(3)). The effectiveness of the warden system depends on the willingness of appointees to enforce the law against fellow community members, which can create social tension. The by‑laws do not provide for training, indemnity, or funding for wardens.

Proceedings may be commenced by a police officer or a warden (by‑law 17(4)). The by‑laws do not specify a limitation period, so the general time limits under the Criminal Procedure Act 2004 (WA) for simple offences apply (usually 12 months from when the offence is alleged to have been committed, unless extended). A conviction under the by‑laws is a criminal conviction, though the low penalty may lead to it being treated as a minor offence. The defence of acting under custom is the only statutory defence; there is no general defence of honest and reasonable mistake, though such a defence may be available at common law depending on the wording of the charge.

The by‑laws operate under the Aboriginal Communities Act 1979 (WA) and expressly preserve the operation of other Acts and regulations through the phrase “except as provided to the contrary in any Act or regulation” (by‑laws 4(1) and 5). This means that if a Commonwealth or State law grants a right of entry to community land (e.g., for emergency services, health inspections, Commonwealth officials under the Aboriginal Land Rights (Northern Territory) Act 1976 if applicable, or police exercising general powers under the Criminal Investigation Act 2006 (WA)), that law overrides the by‑law requirement for Council permission. Similarly, if another Act permits the possession or supply of alcohol in certain circumstances, it would prevail over by‑law 10.

The by‑laws intersect with Western Australia’s general criminal law. Conduct that breaches a by‑law may also constitute an offence under State law (e.g., dangerous driving under the Road Traffic Act 1974 (WA), criminal damage under the Criminal Code (WA), assault, disorderly conduct). The by‑laws do not contain a double‑jeopardy clause, so a person could theoretically be charged under both the by‑law and general law for the same conduct. However, the principle against double punishment may limit consecutive sentences, and prosecutorial discretion would likely prevent multiple charges for the same act.

The Bush Fires Act 1954 (WA) is specifically mentioned in by‑law 16(3): nothing in the by‑law authorises lighting a fire in an open fireplace in contravention of that Act. This means the by‑law’s permission system does not override State fire restrictions. The Road Traffic Act 1974 definition of “vehicle” is incorporated by reference (by‑law 3), ensuring consistency with State traffic laws. However, the by‑law traffic offences (careless driving, dangerous driving) are standalone and may be charged instead of or in addition to the parallel State offences.

The alcohol prohibition in by‑law 10 interacts with the Liquor Control Act 1988 (WA), which generally regulates the sale, supply, and consumption of alcohol. The by‑law creates a blanket prohibition on community land regardless of whether any liquor licence exception would otherwise apply. The only exception is the mission staff provision. This means that even if a person holds a valid licence under the Liquor Control Act to supply alcohol on that land (e.g., a temporary licence for an event), the by‑law prohibition still applies unless the Governor or another State authority has exercised a power to override the by‑law. In practice, the by‑law prevails as a specific local law.

The Reprints Act 1984 (WA) governs the reprint of the by‑laws, as noted on the cover. This does not affect substantive content but ensures the text is authoritative.

The by‑laws do not explicitly interact with native title, the Native Title Act 1993 (Cth), or the Aboriginal Heritage Act 1972 (WA). However, the defence of custom (by‑law 22) implicitly acknowledges the operation of customary law on community land. A court may need to consider whether a custom claimed as a defence conflicts with other State or Commonwealth laws, and if so, which prevails. The by‑laws themselves do not resolve that conflict.

The by‑laws were originally made by the Governor on 26 April 1991 and published in the Government Gazette on that date (p. 1846‑9). They came into effect immediately upon that publication, as provided by by‑law 2. The original fine (by‑law 20) was $100 before the 2004 amendment, which retained that amount. The restitution cap (by‑law 21) was originally $100 (or possibly lower; the compilation table does not specify the original amount, but the 2004 amendment increased it to $250). The only substantive amendment was made by the Sentencing Legislation (Short Sentences - Aboriginal Community By‑Laws) Amendment Regulations 2004, which took effect on 15 May 2004. That regulation amended by‑laws 20 and 21, increasing the maximum restitution from $100 to $250 and confirming the fine at $100. The amendment source is r. 10 of those regulations, which also amended other Aboriginal community by‑laws across the State. The by‑laws were reprinted as at 24 September 2004, which is the version before you. No further amendments have been made as of that reprint date.

The compilation table lists two entries: the original 1991 by‑laws and the 2004 amendment regulations. There is no evidence of amendment between 1991 and 2004. The by‑laws have not been amended since the 2004 reprint, so any later changes (e.g., fine increases, new offences) would require fresh Governor approval and Gazette publication.

The by‑laws themselves contain no reference to any previous litigation, and no reported cases are included in the source. As at the 2004 reprint date, there is no publicly noted judicial consideration of these by‑laws. Given the remote location, the limited penalty, and the fact that most proceedings would be heard in the Magistrates Court of Western Australia (likely the Broome or Derby circuit), reported decisions are unlikely. It is possible that unreported decisions exist, but they are not documented in the source. The by‑laws have not been challenged on constitutional grounds in any reported case, and no High Court of Australia or Supreme Court of Western Australia decision interpreting these specific by‑laws is available. The defence of custom (by‑law 22) has not been judicially construed in a published judgment concerning Kalumburu. Any future litigation would likely test the scope of that defence, the meaning of “member of the community”, or the interaction with other State laws. Practitioners should be aware that the absence of case law means the interpretation of certain provisions (particularly the custom defence and the absolute discretion in by‑law 4) is untested and may develop unpredictably.

Several provisions contain traps that could catch an unwary person or adviser.

Permission traps. The requirement for prior permission (by‑law 4) applies to any non‑member entering community land. “Entering” includes any physical presence, even transitory. A person who drives through the land without stopping has technically entered, and without permission, has committed an offence. The by‑laws do not exempt through‑traffic unless another Act provides a right of way. A person who has been granted permission with conditions (e.g., “you may enter only for the purpose of visiting person X, and must leave by 5 pm”) and breaches any condition commits an offence, even if the breach is minor (e.g., staying 10 minutes late). The Council may revoke permission at any time without notice. A person who receives oral permission from a delegate must ensure they know who the delegate is and that the delegate actually holds delegated authority under by‑law 4(3). A person who receives permission from a community adviser who has not been formally delegated may be committing an offence despite relying on that adviser’s assurance.

Alcohol prohibition is absolute. By‑law 10 makes it an offence to bring alcohol onto community land. “Bring” means any act of causing alcohol to be present. A person who has alcohol in a vehicle driving through the land, even if they do not consume it, commits an offence. The only exception is the mission staff exemption for transport through the land to the Mission for consumption by non‑members or sacramental use. This exemption does not cover mission staff themselves drinking on community land, nor does it cover any other person. A resident who purchases alcohol outside the community and brings it home commits an offence. A visitor who brings a gift of wine commits an offence. Even a person who is drunk (not necessarily drinking on the land) commits an offence if they enter or are present in a drunken condition (by‑law 10(4)-(5)). The by‑laws do not define “drunken condition”, leaving it to the court’s assessment on a case‑by‑case basis.

Home entry rule. By‑law 6 prohibits entering another person’s home without prior permission. This applies to everyone, including members. “Home” is not defined, but likely includes any dwelling, shelter, or habitable structure. The permission must be obtained from the person whose home it is. A visitor who has general permission to be on community land does not have permission to enter a home unless they separately obtain it from the occupier. The by‑law also creates a duty to leave if directed by an occupier. A person who fails to leave when directed commits an offence under by‑law 19. This overlaps with State criminal law (trespass, assault) but can be charged separately.

Traffic sign compliance. By‑law 7 makes it an offence to fail to comply with the inscription on a traffic sign. The Council can erect signs regulating anything related to vehicle traffic and pedestrian passage. A sign might say “No vehicles after 5 pm” or “No pedestrians beyond this point”. The sign does not need to be a standard government traffic sign; it can be any sign placed by the Council with the intention of prohibiting, regulating, or guiding traffic. The by‑laws do not require the sign to be conspicuous or maintained. A person who inadvertently fails to see the sign still commits an offence, as no mens rea element is stated.

Custom defence. By‑law 22 provides a defence if the defendant was acting under or excused by any custom of the community. But the burden of proof is on the defendant. The by‑laws do not require the custom to be written, recorded, or known to the Council. A court must determine what qualifies as a custom. A person charged with bringing alcohol might claim a cultural ceremony required it. However, the by‑laws do not provide for an advance approval process to test whether a custom applies. This creates uncertainty: a person cannot know in advance whether a claimed custom will be accepted in court.

Obstruction of warden. By‑law 18(3) makes it an offence to obstruct a warden in the lawful execution of duty. This can include refusing to answer questions, arguing, or physically blocking. Wardens are not required to wear a uniform or produce identification; the lawfulness of their execution of duty depends on whether they are acting within the scope of their appointment and the by‑laws.

Fine and restitution caps have not been updated since 2004. The $100 fine (now worth less than $150 in real terms) is a minor penalty for most potential offenders, but it may not function as a deterrent for against serious misconduct. Conversely, the low cap means that the court cannot impose a higher fine even if the conduct is egregious. The $250 restitution cap means that if a person damages property worth $1,000, the court can only order $250 as part of the criminal proceedings. The victim would need to separately pursue the remaining $750 in a civil action, which is impractical for many.

Compliance strategy depends on the person’s status (member or non‑member) and purpose for being on community land. For non‑members, the first step is to obtain written permission from the Council or its authorised delegate before any entry. Because the Council has absolute discretion and can impose conditions, the request should clearly state the purpose, duration, and number of people involved. If the Council imposes conditions (e.g., “must leave by 6 pm, no alcohol, no vehicles in Area X”), those conditions must be strictly observed. The permission should be kept on hand (preferably in writing) while on the land. If the purpose of the visit changes, fresh permission should be sought. If the Council revokes permission, the person must leave immediately; there is no grace period.

For members, no entry permission is needed, but all other by‑laws apply. Members should familiarise themselves with the prohibited conduct, especially the alcohol prohibition. Bringing alcohol onto community land for personal consumption is an offence even for members, unless the person falls within the mission staff exemption. Members should not allow visitors to bring alcohol for them. Members who host visitors must inform them of the by‑laws and ensure they have permission.

Any person driving on community land must obey all traffic signs and drive with due care and attention at all times. If the Council declares certain areas vehicle‑free, those areas must be avoided. A person unsure about which areas are restricted should check with the Council or a warden before driving.

Alcohol compliance: The only permitted alcohol on community land is that transported by mission staff for consumption at the Mission by non‑members or for sacraments. No other person may bring, possess, or consume alcohol. Even empty bottles or cans may constitute possession if they contain residual alcohol. For events, no alcohol may be served. If a person is on community land and becomes drunk (even from alcohol consumed off the land), they commit an offence. Practical steps: ensure no alcohol is in vehicles, bags, or accommodation; arrange for any alcohol to be left outside the community boundary.

Home entry: Always obtain permission from the occupier before entering a home. If directed to leave, do so immediately. If unsure whether a structure is a home, treat it as such.

Fire compliance: Do not light a fire anywhere on community land without Council permission, except in a home fireplace or stove for cooking or heating. Even then, ensure compliance with the Bush Fires Act 1954 (WA) restrictions. Check with the Council for designated fire areas.

Litter: Only dispose of rubbish in bins or designated areas. Do not leave rubbish in or around homes without the occupier’s permission. If working on a construction or repair job, take all waste with you.

Meetings: If attending a Council meeting, community meeting, or customary meeting, do not interrupt with noise or disorderly behaviour. If you do not have permission to attend, you likely should not be on the land at all.

If stopped by a warden or police officer and asked for name and address, provide it. Failure to do so is a separate offence. If the officer or warden believes a breach has occurred and requests removal, comply voluntarily to avoid escalation; the power of removal under by‑law 17(1) exists even without a conviction.

If charged with an offence, consider whether the conduct was excused by a custom of the community. Obtain evidence of the custom (e.g., witness statements from elders, cultural advisors) and present it in court. The custom must relate to the specific conduct alleged. Relying on custom is a defence, not a justification for ignoring the by‑laws before being charged.

For organisations: any organisation sending employees or contractors onto community land must ensure they have Council permission, are briefed on the by‑laws, and carry written confirmation of permission. Organisations should designate a liaison to obtain permissions in writing and to handle any changes. Insurance policies should cover potential fines and restitution, though the low amounts may not be worth a claim.

Finally, monitor for any changes to the by‑laws. Since 2004 there have been no amendments, but future amendments could increase fines, add offences, or alter the permission system. Regularly check the Western Australian Government Gazette for new by‑laws or amendments affecting the Kalumburu Aboriginal Corporation.