Kundat Djaru Community By-laws 2005

The by-laws apply to every person present on the designated community lands, irrespective of whether that person is a member of the Kundat Djaru Aboriginal Corporation (by-law 1(4)). This casts a wide net over visitors, service providers, tradespeople, government workers, contractors, family members of residents who are not themselves members, and any other person who enters the lands. Members of the community have a default right of access subject to removal orders, but they are still bound by all other by-laws. Non-members have no right to be on the lands without the permission of the Governing Committee and must comply with any conditions of that permission, as well as all other by-laws. The Governing Committee itself is directly affected as the body that makes and communicates decisions. Its members and any delegate authorised under by-law 3(1) are key actors. Employees or agents of the Corporation are also affected by the duty not to make it difficult for them to do their jobs (by-law 12(2)). The Western Australia Police are affected by the specific powers granted in by-law 14, and by the obligation not to hold an arrested person for more than 24 hours unless the Bail Act 1982 operates. Courts that hear charges under the by-laws are affected by the penalty ranges and the custom defence. The state of Western Australia is indirectly affected because the by-laws are state law, and police enforcement resources must be allocated. Potential litigants include the Corporation as the entity whose property is protected, and individual residents who may seek compensation for damage. The by-laws do not create any rights or obligations for the State outside the police powers. Owners of guns affected by the notification and storage requirements (by-law 13). Parents or guardians of young persons affected by the prohibition on under-18 alcohol consumption (by-law 11(2)). Persons seeking to bring alcohol onto the lands must obtain permission or commit an offence. The by-laws also affect those who might bring drugs or harmful substances, by criminalising possession, use, and being under the influence. In summary, the by-laws impose a comprehensive regulatory regime on anyone who sets foot on the community lands, with particular burdens on non-members and enhanced scrutiny of alcohol, drugs, weapons, and general order.

The by-laws impose a range of duties and grant specific rights to different persons. For all persons on community lands: the duty to obey the by-laws themselves and any conditions imposed by the Governing Committee (by-laws 15(1), 4(4)); not to damage property of the Corporation or others (8); not to enter another's house without permission (9(1)); to leave if asked by the occupant (9(2)); not to use the Corporation's or another's property without permission (9(3)); not to bring, possess, give, or consume illegal drugs or harmful substances, and not to be under their influence (10(2)-(3)); not to bring, possess, give, or consume alcohol without permission (11(1)); to drive carefully, wear seatbelts, secure children, ensure vehicle is in good mechanical condition, and obey traffic signs (6); not to leave rubbish except in designated bins or tips (7); not to annoy or frighten others through bad language, fighting, weapons, rowdiness, or irresponsible driving (12(1)); not to disrupt meetings of the Governing Committee or community or customary meetings (12(3)); to provide name and address to a police officer if asked under by-law 14(1)-(2); to leave immediately if ordered to leave by the Governing Committee under the drugs or alcohol provisions (10(4), 11(2)) or by the police under arrest and removal (14(3)). For members of the community only: the right to be on community lands at any time except when ordered to leave (4(1)); the right to offer the custom defence if charged with an offence, by showing the act was a custom of the community and that they were a member at the time (15(3)). This is a procedural right affecting criminal liability. For non-members: the right to be on the lands only if they have permission (4(2)); upon arrival, the duty to tell a member of the Governing Committee of their arrival (4(3)). For gun owners: the duty to tell the Governing Committee about every gun they own or bring onto the lands (13(2)-(3)); to keep guns safely where children cannot access them (13(4)); to obey shooting bans declared by the Committee (13(5)-(7)). For the Governing Committee: the right to make decisions without giving reasons (2(2)); to delegate permission decisions in writing (3(1)); to grant, refuse, condition, or revoke permissions (3(3)-(4)); to declare areas out of bounds (5); to put up signs (5(3), 6(4), 13(6)); to order persons under the influence of drugs, harmful substances, or alcohol to leave (10(4), 11(2)). For the Police: the right to request name and address (14(1)); to arrest and remove a person from the lands (14(3)); to seize property connected with or evidence of an offence (14(5)); the duty not to hold an arrested person longer than 24 hours unless the Bail Act applies (14(4)). For courts: the power to impose fines up to $5,000 (15(4)); to order compensation up to $250 for property damage (15(5)); to consider the custom defence (15(3)). The rights and duties are heavily weighted toward the Governing Committee and police, with limited procedural protections for individuals.

Offences under the by-laws are created by by-law 15. A person commits an offence if they do not obey a by-law or do not obey a condition imposed by the Governing Committee when giving permission (15(1)). This incorporates all the duties described above. The penalty for an offence is a fine up to $5,000 (15(4)). There is no term of imprisonment specified, so it is a purely pecuniary penalty. Additionally, if a court finds a person guilty and also finds that the person caused damage to property of another or the Corporation, the court may order compensation not exceeding $250 to the victim (15(5)). This compensation order is separate from the fine and is capped at a low amount, potentially inadequate to cover actual losses. Enforcement is primarily through the Western Australia Police. A member of the Police Force can charge a person with an offence (15(2)). Police also have specific enforcement powers: they may ask for a person's name and address if they believe the person is breaking or has broken a by-law (14(1)); they may arrest and remove the person from the community lands (14(3)); they may seize any thing (not just vehicles or animals) they believe is connected with or evidence of an offence (14(5)). The arrest power under by-law 14(3) carries a limitation: the arrested person must not be kept in custody longer than 24 hours, but this does not affect the operation of the Bail Act 1982 (14(4)). In practice, this means police can detain for up to 24 hours for processing and then must either release or proceed under bail laws. The removal from community lands is itself a form of enforcement, separate from the charging process. The Governing Committee can also order a person to leave the lands under the drugs and alcohol provisions (10(4), 11(2)). That order must be obeyed immediately; it is not stated to be enforceable by the Committee itself but rather police powers would likely be used. There is no appeal mechanism provided in the by-laws against a Governing Committee decision to refuse permission or to order removal. The only judicial review route would be through general administrative law or judicial review, which is not mentioned in the by-laws. The custom defence (15(3)) provides an escape from liability for members if they can prove the act was a custom. The burden of proof would be on the defendant on the balance of probabilities, as it is a defence. The penalty of $5,000 is substantial relative to typical by-law penalties but consistent with summary offences. The compensation cap of $250 appears low and may not deter damage or reflect replacement value.

By-law 1(7) provides that these by-laws are in addition to the laws of Western Australia. They do not replace or override state law; they supplement it. This means a person could be prosecuted under both a by-law and a state statute for the same conduct. For example, a person who damages Corporation property could be charged under by-law 8 and also under the Criminal Code for wilful damage. The by-laws incorporate other legislation by reference: the Firearms Act 1973 definition of a gun is used for by-law 13(1); the Bail Act 1982 is preserved in by-law 14(4); and the definition of an illegal drug in by-law 10(1) refers to the laws of Western Australia that make possession illegal. This means any change in state drug or firearm laws automatically affects the scope of the by-laws. The Aboriginal Communities Act 1979 is the enabling Act. That Act provides that the Governor can approve by-laws and declare community lands. The by-laws do not derogate from the general criminal law. Police powers granted by the by-law are additional to their common law and statutory powers. For example, police already have powers to arrest for indictable offences; by-law 14 adds a specific power to arrest for by-law offences and to remove persons from community lands. Similarly, police can already seize evidence under general search and seizure laws; by-law 14(5) extends that to things "connected with" an offence, which is broader than just evidence. The custom defence in by-law 15(3) is a provision that would likely override general criminal law only within the scope of the by-laws; it does not create a defence to a charge under a state statute unless that statute itself recognises custom. There is no provision for double jeopardy, so a person could face charges under both the by-laws and state law, although a court might consider whether the by-law offence and the state offence are substantially the same for sentencing purposes. The interaction with Aboriginal heritage laws, native title, or other land rights legislation is not addressed in the by-laws. The by-laws do not purport to affect the operation of any other Act. The relationship with the Criminal Investigation Act 2006 (WA) is not mentioned, so general police powers under that Act would apply alongside by-law 14. Overall, the by-laws operate as a local overlay on the standard legal framework, creating additional restrictions and enforcement tools specific to the community lands.

The Kundat Djaru Community By-laws 2005 are a compilation with a single entry in the compilation table. The by-laws were gazetted on 9 December 2005 (Government Gazette pages 5929-5940) and commenced on the same date. There are no amendments recorded in the compilation. The by-laws have remained in their original form for nearly 20 years. The compilation table shows only the one citation. This stability may reflect either that the community's needs have not changed or that the amendment process under the Aboriginal Communities Act 1979 has not been invoked. Under that Act, by-laws must be approved by the Governor. Any amendment would require the Governing Committee to propose a change and obtain Governor approval, a process that involves state executive oversight. The absence of amendments could also indicate that the by-laws are sufficiently broad in their discretionary powers (such as the ability to grant permission, impose conditions, and declare areas out of bounds) that the Governing Committee can adapt to new circumstances without formal amendment. For example, the definition of illegal drugs is tied to state law, so changes in prohibited substances are automatically incorporated. The same applies to firearms legislation. The lack of amendment history means there is no track record of policy changes or judicial or community feedback being incorporated. Practitioners should be aware that the by-laws are a static document, and the only way to change the text is through formal amendment. The notes to the compilation indicate that the by-laws are a "compilation" as defined in the Interpretation Act 1984 (WA). There is no provision for sunsetting or review in the by-laws themselves, though the enabling Act may have its own review provisions. For the purposes of legal research, the current version is the 2005 original as compiled. Any case law interpreting the by-laws would need to refer to the text as it stood at the relevant time.

The source document for these by-laws does not contain any references to litigation. No cases are cited, and there is no note of any legal challenge to the by-laws or to actions taken under them. This absence of reported litigation is common for local community by-laws that operate in a specific geographic area and are enforced primarily through police action or administrative removal, rather than through court processes. However, the absence of reported cases does not necessarily mean no proceedings have occurred; they may have been dealt with in magistrates courts without being published, or may have been resolved by diversion or by persons simply complying with removal orders. Potential grounds for litigation could include: a challenge to the validity of a Governing Committee decision for failure to consider relevant matters (though the by-law expressly says reasons are not required); a challenge that a by-law is beyond the power conferred by the Aboriginal Communities Act 1979; a challenge to the application of a by-law to a person who is not a member and who argues it infringes their rights of free movement; a dispute over the scope of the custom defence; or a claim for false imprisonment if a person is detained beyond 24 hours. The by-law 14(4) limitation on custody would be a key issue in any unlawful detention claim. The compensation cap of $250 could be challenged if a person suffers greater damage and argues the cap is arbitrary, but it is a legislative limit. The custom defence in by-law 15(3) may be a point of contention if the court has to determine what constitutes a "custom of the community". No judicial guidance on that phrase exists in the source. Given the by-laws have been in force since 2005, the lack of any noted appellate decisions suggests either very low rates of contested prosecutions or that disputes are resolved without litigation. For practical purposes, the by-laws are treated as valid and operative. Any lawyer advising a client subject to a charge under these by-laws should be aware of the custom defence for members and the maximum penalty, but should also consider whether the by-law under which the charge is laid is intra vires the Aboriginal Communities Act 1979 and whether the police powers were lawfully exercised.

Several provisions in the by-laws contain traps for the unwary. First, the Governing Committee does not have to give reasons for any decision under the by-laws (by-law 2(2)). This applies to decisions to refuse permission, to order removal, to declare areas out of bounds, or to impose conditions. A person who receives a refusal or an order to leave has no right to an explanation and no stated right of appeal within the by-laws. Judicial review may be available but is costly and uncertain. Second, permission can be granted subject to conditions that may be changed or taken away at any time, and the permission itself can be withdrawn at any time (by-law 3(3)). This creates instability for non-members who rely on permission to reside or work on the community lands. There is no requirement for notice before revocation. Third, the custom defence under by-law 15(3) only applies to members of the community. Non-members who engage in conduct that is a custom of the community cannot use this defence. Moreover, the defence requires the member to "show the court" that what they did was a custom; the burden of proof is on the member. The by-laws do not define "custom", leaving it to judicial interpretation. Fourth, the compensation cap of $250 for damage (by-law 15(5)) is low and may not cover the actual cost of repair or replacement. A court cannot order more than $250 compensation even if the damage is much greater. However, the victim may still pursue a separate civil claim for the balance under general law, but the by-law does not address that. Fifth, police powers under by-law 14(5) allow removal of "any thing" from the community lands if the officer believes it is connected with or evidence of an offence. This is broader than typical seizure powers that require a warrant or are limited to things used in the commission of an offence. The phrase "connected with" could encompass property that is merely associated with the offender rather than the offence. Sixth, the driving by-law requires that a vehicle be in "good mechanical condition" (by-law 6(3)). This is vague and could be enforced subjectively. There is no exemption for older vehicles that may be mechanically sound but not new. Seventh, the alcohol by-law requires permission from the "Council" (by-law 11(1)), which is the same as the Governing Committee, but the by-laws use "Council" only in the alcohol and drugs provisions, potentially causing confusion about whether the same body is referred to. Eighth, there is no by-law regulating noise or nuisance beyond "annoy or frighten" language, leaving gaps. Ninth, a member can be ordered to leave by the Governing Committee if under the influence of drugs or alcohol (10(4), 11(2)), but the by-laws do not provide a mechanism for the member to challenge the order or to return later. Tenth, the definition of harmful substance includes "any substance that may harm your health if you swallow or inhale it, such as glue or petrol" (10(1)). This is extremely broad and could include household cleaners, aerosol sprays, or even certain foods if misused. It leaves the determination of "may harm" to the prosecution. Eleventh, the by-laws do not contain a provision for review or appeal of police arrest and removal, so a person removed may have no immediate recourse other than civil action after the fact.

Compliance with the by-laws requires understanding who you are in relation to the community and your purpose for being on the lands. For members of the community: maintain your membership under the Corporation's constitution. You may be on the lands at any time unless the Governing Committee orders you to leave under the drugs or alcohol provisions (by-laws 10(4), 11(2)). You must comply with all other by-laws, including not bringing alcohol or drugs without permission, driving safely, not damaging property, not disturbing meetings, and not carrying weapons illegally. If you own a gun, you must tell the Governing Committee about it (13(2)). If you bring a gun onto the lands, even if it is not yours, you must inform the Committee (13(3)). Keep guns in a safe place inaccessible to children (13(4)). If you engage in conduct that might otherwise be an offence, you may rely on the custom defence but only if you are a member and can prove the conduct was a custom of the community. It is advisable to document the custom and notify the Governing Committee in advance if possible. For non-members: you must obtain permission from the Governing Committee before entering the community lands (4(2)). Permission should be sought in writing. The Committee may delegate decision-making to a member or other person; confirm the delegate's authority (3(1)). Upon arrival, you must tell a member of the Governing Committee of your arrival (4(3)). Comply with any conditions imposed (4(4)). The Committee can change or revoke permission at any time, so stay informed. Do not bring alcohol except with express permission (11(1)). Do not bring illegal drugs or harmful substances (10(2)). Do not enter houses without permission (9(1)). Leave a house if asked (9(2)). Drive carefully, obey traffic signs, wear seatbelts, ensure your vehicle is mechanically sound (6). Dispose of rubbish only in designated bins or tips (7). Do not damage any property (8). Do not engage in behaviour that could annoy or frighten others (12(1)). Do not disrupt meetings (12(3)). If you are asked for your name and address by a police officer, provide it (14(2)). If a police officer arrests you or orders you to leave, comply and then seek legal advice. For the Governing Committee: ensure any delegation of decision-making power under by-law 3(1) is done in writing and specify the scope. When making decisions, consider the welfare of the community as the most important consideration (2(1)). You do not have to give reasons, but it may be prudent to record the basis of decisions for potential judicial review. Communicate decisions in a manner that can be proven: in writing, by posting notices in a public place, or by speaking directly with the person (2(3)). When declaring areas out of bounds, put up signs if practicable (5(3)). When imposing conditions on permission, be clear and preferably in writing. For police officers: when exercising powers under by-law 14, ensure you have reasonable grounds to believe a breach is occurring or has occurred. Request name and address first. If you arrest and remove a person, you must not hold them longer than 24 hours unless the Bail Act applies (14(4)). Document the removal and any property seized under by-law 14(5). For all persons: the by-laws are enforceable by police and are additional to state law. Do not assume that an activity is lawful just because it is not prohibited here; check state law as well. If in doubt, contact the Governing Committee or a legal representative. Pay any fine imposed or seek to defend the charge. If ordered to pay compensation, pay it promptly to avoid further enforcement.