Lombadina Community Incorporated By-laws 1982

The by-laws rely on several defined and operating concepts that determine their scope and application. "Community land" is the land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of the Lombadina community (by-law 2). This is the physical territory over which the by-laws have effect. Critically, the by-laws distinguish between "community land" generally and "the administrative area," which is a specific part of community land described in Department of Lands and Surveys Miscellaneous Plan No. 1096 (by-law 2). The administrative area is subject to separate, usually more liberal, rules: for example, the Administrator (not the Council) controls alcohol permissions there (by-law 12(2)(a)), and the blanket entry permission requirement of by-law 3 does not apply to the administrative area (by-law 3(4)). The "Council" is the council constituted by the constitution of the Lombadina Community Incorporated (by-law 2). This body holds substantial discretion: it decides who may enter community land generally (by-law 3(1)), sets and revokes conditions for entry (by-law 3(2)), may erect signs prohibiting entry (by-law 4(1)), may erect traffic signs (by-law 6(1)), gives permission for fires (by-law 13(1)), and gives or refuses permission for alcohol on community land outside the administrative area (by-law 12(2)(a)). The "Administrator" is the person acknowledged by the Council to be the Administrator for the time being, or a delegate appointed orally or in writing (by-law 2). The Administrator controls permissions within the administrative area, including alcohol permissions (by-law 12(2)(a)), and may authorise a person who has a bona fide reason for being on the administrative area to pass through other parts of community land (by-law 3(4)). The "member of the community" is any person accepted as a member for the time being (by-law 2). This definition is circular and open-ended; it gives the community the power to decide membership criteria without legislative guidance. Members are exempt from the entry permission requirement (by-law 3(1) applies to persons who are not members), but they remain subject to all other by-laws (traffic, alcohol, offensive behaviour, etc.) unless exempted by custom. The concept of "permission" is central: it can be given or refused orally or in writing, can be subject to terms, conditions and restrictions as the giver thinks fit, and can be revoked at any time, also orally or in writing (by-laws 3(2), 12(2)). This gives near-absolute discretion to the Council and Administrator, with no stated criteria for refusal (except alcohol where welfare is paramount) and no right of review or appeal. The "custom of the community" is a defence to any offence (by-law 17), but it is not defined; the court would need to determine on evidence what customs exist and whether they excuse the conduct. The concept of "welfare of the community" is relevant only to alcohol permission decisions (by-law 12(3)) and not to entry or other permissions. These concepts combine to create a governance structure where community authorities have wide, largely unreviewable powers over who may be present and what they may do on community land.

The by-laws directly affect several distinct groups. Most obviously, they apply to non-members of the Lombadina community who wish to enter or remain on community land. This includes visitors, service providers, government officials, tradespeople, researchers, journalists, relatives of members, and any other outsider. For these individuals, the by-laws impose a strict requirement to obtain prior permission from the Council (by-law 3(1)) and to comply with any conditions attached. Failure to do so is an offence. This places a significant compliance burden on anyone seeking access: they must identify the correct body (the Council), make a request, await a decision that may be oral or written, and then adhere to potentially vague or changing conditions. The by-laws do not prescribe a process or timeframe for permission decisions, leaving non-members in a position of uncertainty and dependence on the goodwill of the Council. The administrative area provides a limited exception: persons with a bona fide reason and authorisation from the Administrator may enter the administrative area and pass through other parts of community land to get there (by-law 3(4)). However, "bona fide reason" is not defined, and authorisation remains discretionary. Members of the community are affected differently. While exempt from the entry permission requirement, they are bound by all other by-laws: traffic rules (by-laws 6, 7), prohibitions on wilful damage (8), litter (9), offensive behaviour (10), disruption of meetings (11), alcohol restrictions (12), and fire controls (13). Members who live in homes on community land may also be subject to the requirement to leave a home other than their own when directed by an occupier (by-law 5). This provision affects both members and non-members; it gives an occupier the power to eject anyone from their home, and failure to leave is an offence. The by-laws also affect the Council and the Administrator, who bear the responsibility of managing permissions, erecting signs, making decisions on alcohol and fires, and otherwise administering the regulatory scheme. They face no express accountability mechanisms within the by-laws for their decisions. Police are affected as the primary enforcement agents. By-law 14 gives police specific powers on community land: to apprehend and remove a person for up to 24 hours where injury or damage appears likely, and to request name and address from anyone reasonably believed to be in breach. These powers supplement ordinary police powers under state law. The court system is also engaged: by-law 16 provides for fines and compensation orders, and by-law 17 allows a custom defence. The cumulative effect of the by-laws is to create a sphere of intensive regulation over a defined geographic area, affecting the freedoms of both members and outsiders. The instrument imposes costs on those seeking access, on community governance bodies who must administer the system, and on the state through policing and court resources.

The by-laws impose a series of specific duties, coupled with limited rights and defences. The primary duty for non-members is the obligation not to enter or remain on community land without prior permission of the Council (by-law 3(1)), and to comply with any conditions attached to that permission (by-law 3(3)). This duty is broad: it covers all community land outside the administrative area, and there is no exception for emergency, public office, or other circumstances unless another Act or regulation provides to the contrary (by-law 3(1)). A related duty arises from by-law 4: persons must obey directions on signs erected by the Council that prohibit entry to particular parts of community land. By-law 5 imposes a duty on any person (whether member or non-member) who is in a home other than their own to leave immediately when directed by an occupier. This gives occupiers a unilateral ejection right, with criminal sanction for non-compliance. Traffic duties include obeying traffic signs (by-law 6(2)) and not driving dangerously or without due care and attention (by-law 7). By-law 8 imposes a duty not to wilfully damage any tree, bush, flower, lawn, building, structure, vehicle or other thing. This is stricter than general criminal property damage laws because it covers vegetation and does not require proof of damage to property belonging to another; it could potentially cover damage to one's own things if interpreted literally. By-law 9 imposes a duty not to leave rubbish or litter in a home or its enclosure without the occupier's permission, and elsewhere only in designated bins or areas. By-law 10 imposes a duty not to cause a disturbance or annoyance by using abusive language, fighting, or otherwise behaving in an offensive or disorderly manner. "Annoyance" is a low threshold and creates significant subjective enforcement risk. By-law 11 imposes a duty not to interrupt any meeting of the Council, the community, or any customary meeting by noise or offensive or disorderly behaviour. This protects community decision-making processes. The alcohol duty under by-law 12 is blanket: no person shall bring, possess, use or supply alcohol on community land without prior permission from the Council (outside the administrative area) or the Administrator (within the administrative area). Permission may be subject to conditions and revocable at any time. This amounts to a prohibition regime that places alcohol effectively at the discretion of community authorities. Fire duties under by-law 13 prohibit lighting a fire outside designated places without Council permission, subject to an exception for cooking or heating in a home fireplace, and subject to the Bush Fires Act 1954. In terms of rights, the by-laws confer few procedural rights on individuals. The greatest right is the defence of acting under custom (by-law 17), which allows a person to avoid conviction if they can prove their conduct was excused by a custom of the community. This is significant because it recognises Indigenous customary law as a legitimate defence within the state legal system, but it places the evidentiary burden on the defendant. There is no right to reasons for refusal of permission, no right to appeal a refusal or revocation, no right to a hearing before removal, and no right to be informed of the terms of permission in writing (they may be oral). The only limit on police removal power is a 24-hour maximum and a requirement to return the person if a court is convened to deal with them (by-law 14(2)). The by-laws do not create any private right of action for breach; enforcement is through criminal prosecution.

The by-laws establish a streamlined enforcement system centred on police powers and criminal penalties. By-law 14 gives a member of the police force the power to apprehend and remove any person from community land if that person has committed or is committing an offence and it appears likely that injury to persons or damage to property will be caused by that person. The removal is limited to 24 hours, and the person must be returned if a court is convened to deal with them according to law (by-law 14(2)). This is a preventive detention power without charge or judicial order, albeit for a short period. Police may also request the name and address of any person they reasonably believe to be on community land in breach of by-law 3 or to have committed a breach of any by-law while on community land (by-law 14(3)). Failure to comply with such a request is not itself an offence under the by-laws, but it may trigger other powers. By-law 14(4) expressly authorises police to take proceedings for any breach of a by-law. The primary penalty for any offence against a by-law is a fine of not more than $100 (by-law 16(1)). This is a relatively modest amount, but it has not been indexed since the 2004 amendment; for context, $100 in 2025 currency is worth much less than when the by-laws were made, reducing the deterrent effect. In addition to the fine, the court may order a person convicted of an offence to pay compensation of not more than $250 to the community or to another person where damage to property was caused in the course of the offence (by-law 16(2)). This allows the court to remedy property damage without requiring a separate civil claim. The compensation is at the court's discretion, not automatic. By-law 15 specifies which by-laws create offences: by-laws 5 (homes), 7 (dangerous/careless driving), 8 (wilful damage), 9 (litter), 10 (offensive behaviour), 11 (disruption of meetings), and 13 (fires) are listed. Other by-laws themselves state that a breach is an offence: by-law 3(3) (entry without permission or breach of conditions), by-law 4(2) (disobeying restriction signs), by-law 6(2) (disobeying traffic signs), and by-law 12(4) (alcohol breach). So all substantive prohibitions are criminal offences. The enforcement gap is that detection and prosecution depend almost entirely on police resources and willingness to act on community land. The by-laws do not create any community enforcement body or civil penalty regime. The custom defence (by-law 17) may reduce conviction rates for conduct that is culturally accepted, but it places the burden on the defendant. There is no provision for infringement notices or on-the-spot fines; all prosecutions must go through the court system, which imposes time and cost burdens on both the state and defendants. The low maximum penalty may make prosecution uneconomic for minor infractions, potentially leading to under-enforcement. Alternatively, police could use the removal power (by-law 14(1)) as a quicker alternative to prosecution for non-compliant individuals. The absence of a right to reasons or appeal for administrative decisions (entry, alcohol permissions) means that persons excluded from community land have no effective recourse within the by-law framework; they could potentially challenge decisions under administrative law or on human rights grounds outside the by-laws, but that is not provided for in the instrument itself.

The by-laws operate under the authority of the Aboriginal Communities Act 1979 (WA), which is the enabling Act that allows the Governor to declare community lands and empower communities to make by-laws. The by-laws themselves note that the definition of "community land" comes from section 6 of that Act. The by-laws repeatedly state "except as provided to the contrary in any Act or regulations" (see by-laws 3(1) and 4(2)), indicating that other state or Commonwealth legislation may override the by-laws in specific instances. For example, a person might have a right of entry under the Native Title Act 1993 (Cth) or the Racial Discrimination Act 1975 (Cth) that could conflict with the entry permission requirement, but the by-laws do not themselves resolve that conflict; it would be determined by principles of legislative inconsistency. The by-laws also explicitly reference the Bush Fires Act 1954 (WA) in by-law 13(3), providing that nothing in the by-laws authorises lighting a fire in an open fireplace in contravention of that Act. This means the by-law fire permissions do not override fire restrictions imposed by the Bush Fires Act; a person with Council permission to light a fire might still commit an offence under that Act if a total fire ban is in place. Traffic by-laws (by-laws 6 and 7) arguably supplement rather than replace the Road Traffic Act 1974 (WA) and associated regulations, which apply to roads generally. However, because community land may not be a "road" as defined in that Act, the by-laws fill a gap by regulating driving on private community land. The alcohol prohibition in by-law 12 interacts with the Liquor Control Act 1988 (WA), which generally regulates the supply and possession of alcohol in the state. The by-laws create an additional layer of restriction beyond state law; a person who is legally allowed to possess alcohol under state law could still be guilty of an offence under by-law 12 if on community land without permission. Conversely, if state law prohibits alcohol in a specific way (e.g., a dry area declaration), the by-law would operate concurrently. The by-laws do not expressly state that they are subject to the Criminal Code (WA) or the common law, but the offence provisions create summary offences that would be dealt with in the Magistrates Court. The custom defence (by-law 17) is a unique provision that recognises Indigenous customary law within the state criminal justice system for breaches of these by-laws. This interacts with the general criminal law principle that custom is not a defence; the by-laws carve out an exception specifically for community custom. The by-laws are silent on their relationship with the Australian Constitution or Commonwealth anti-discrimination legislation. It is conceivable that the entry permission requirement or alcohol ban could be challenged as racially discriminatory if they operate in a way that disproportionately affects non-Indigenous persons, but the by-laws apply to all persons on community land regardless of race (except that "member of the community" is likely to be Indigenous). The by-laws are also silent on the interaction with the Privacy Act 1988 (Cth) regarding the collection of name and address by police (by-law 14(3)); police would need to comply with their own information handling obligations.

The by-laws were originally gazetted on 4 June 1982 and commenced on the same date. They have been amended once, by the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004, regulation 11, which was gazetted on 14 May 2004 and commenced on 15 May 2004. The amendment specifically modified by-law 16, which deals with penalties. The gazettal reference (14 May 2004 p. 1455) indicates the specific amendment. The original 1982 version of by-law 16 likely contained different maximum fine and compensation amounts; the 2004 amendment increased them to $100 and $250 respectively. (The table shows by-law 16 was amended but does not specify previous amounts; we can infer from the context that the amendment likely raised penalties from lower levels, given the general trend of penalty increases over time.) The 2004 regulations were part of a broader package that amended by-laws for multiple Aboriginal communities in Western Australia, adjusting penalties to account for inflation and to align with sentencing standards for similar offences. The compilation table also notes that Reprint 1 was issued as at 29 October 2004, incorporating the 2004 amendment. No further amendments have been made since. The by-laws have remained substantively unchanged for over 20 years, which means the penalty levels have not kept pace with inflation; $100 in 2004 is worth approximately $160 in 2025, but in real terms the penalty has declined. The Department of Lands and Surveys (mentioned in the definition of administrative area) has been superseded by the Western Australian Land Information Authority under the Land Information Authority Act 2006, as noted in the compilation. This is a machinery change that does not affect the substance of the by-laws. The by-laws have never been repealed or replaced; they remain in force for the Lombadina community unless the community or the Governor takes steps to revoke or amend them under the Aboriginal Communities Act 1979. The amendment history highlights the lack of regular legislative maintenance; a twenty-year gap between amendments suggests that updating these by-laws is not a priority for the state or the community.

The by-laws have not generated any publicly recorded litigation that is noted in the source document. The compilation table and notes do not list any court decisions interpreting the by-laws. This may be because the offences are minor (maximum $100 fine) and typically dealt with in the Magistrates Court without generating reported judgments. Alternatively, enforcement may be infrequent or cases may be resolved by guilty pleas. There are no known appellate cases that have considered the custom defence under by-law 17. However, the absence of reported litigation does not mean no litigation has occurred; it means no cases have been included in the official compilation. Given the broad discretion granted to the Council and Administrator, there is potential for challenge under administrative law: for example, a refusal of entry permission without reasons could be challenged for procedural fairness, but the by-laws expressly allow oral refusals with no stated criteria, making judicial review difficult. The removal power (by-law 14) could be challenged as an unlawful deprivation of liberty beyond the 24-hour limit, or for exceeding the threshold of "likely injury or damage." The terms "likely" and "appears" give police wide discretion, but a court might find the power is limited to preventing imminent harm, not for general social control. The custom defence (by-law 17) has not been judicially defined. Key questions include: what constitutes a "custom of the community" , is it a specific practice of the Lombadina community or a broader Aboriginal custom? Must the custom be written or can it be oral? Who bears the burden of proof , the defendant on the balance of probabilities? The by-law says "it is a defence . . . to show that the defendant was acting under, and excused by, any custom of the community." This likely places the evidential burden on the defendant. The defence may also be limited to the specific community; a member of another community could not rely on that community's custom. There is no litigation on whether the alcohol prohibition infringes any constitutional guarantees (e.g., implied freedom of interstate trade in alcohol), but such a challenge would be unlikely given the narrow geographic scope and the by-laws' status as delegated legislation. Overall, the litigation history is sparse, which may indicate either effective compliance or a lack of enforcement.

Several features of the by-laws create traps for the unwary. The definition of "member of the community" is "any person who is accepted as a member of the community for the time being" (by-law 2). This is circular and gives no objective criteria. A person who considers themselves a member but has not been formally accepted by the community could commit an offence by entering without permission. Conversely, a person who has been accepted as a member but is later de facto excluded may still technically be a member until the community revokes acceptance; the by-laws do not define how acceptance is given or withdrawn. The permission system under by-law 3 is precarious: permission may be given orally, subject to conditions "as the Council thinks fit," and may be revoked at any time, also orally. A visitor who receives oral permission could later be charged with trespass if the Council revokes permission without notice. The by-laws do not require the Council to communicate revocation to the person. Similarly, conditions can be imposed orally, and the visitor must comply or face an offence (by-law 3(3)). This creates immense uncertainty for anyone entering community land. The administrative area exception (by-law 3(4)) appears to allow a person with a bona fide reason and Administrator authorisation to pass through other parts of community land to reach the administrative area. However, "bona fide reason" is not defined, and the Administrator's authorisation is discretionary. A person who enters the administrative area without that authorisation is still in breach of by-law 3(1) for the parts outside the administrative area. The alcohol by-law (12) contains a trap: even if the Council gives permission for a specific event, the permission can be revoked at any time orally; drinking after revocation becomes an immediate offence. The welfare of the community is the paramount consideration for granting permission (by-law 12(3)), but this gives no guidance on what specific factors are relevant; a refusal could be based on subjective views. By-law 9(1) prohibits leaving rubbish in a home or its enclosure without the occupier's permission. "Enclosure around a home" is not defined; it could include a garden or yard, meaning even leaving a bottle on a porch without permission is an offence. By-law 10 prohibits "causing a disturbance or annoyance to other persons by using abusive language, fighting, or otherwise behaving in an offensive or disorderly manner." The word "annoyance" is a very low threshold; a loud conversation that annoys a neighbour could theoretically be an offence. The term "offensive or disorderly manner" is subjective and may catch conduct that would be lawful elsewhere. By-law 11 covers interruption of "any customary meeting," which is not defined; a person may not know a meeting is occurring. By-law 13(1) requires Council permission to kindle, light, make or use a fire outside designated areas. This applies even to small fires like a barbecue, unless it falls within the home fireplace exception (by-law 13(2)). The exception for cooking or heating in a home fireplace is narrow; it does not cover outdoor barbecues or campfires. The custom defence (by-law 17) is available only if the defendant was "acting under, and excused by, any custom of the community." This requires the defendant to prove both that their conduct was in accordance with custom and that the custom excuses the offence. The burden is on the defendant, and there is no guarantee a court will accept the custom. The defence does not apply to any by-law specifically; it is available to all offences. The penalty of $100 and compensation of $250 are low, but the by-laws do not limit the number of charges that can be laid; a person could be charged with multiple offences for a single course of conduct (e.g., entering without permission, possessing alcohol, and abusive language), resulting in cumulative fines and compensation orders. The by-laws do not provide any internal review or appeal mechanism for Council or Administrator decisions. A person refused entry or alcohol permission has no right to reasons or to challenge the decision within the by-law framework. The only recourse is to seek judicial review in the state administrative tribunal or Supreme Court, which is costly and time-consuming relative to the stakes involved.

Compliance with the by-laws requires proactive engagement with the community governance structures. For a non-member wishing to enter community land, the first step is to identify the Council of the Lombadina Community Incorporated and seek prior permission under by-law 3(1). The request should be made in writing if possible, to create a record of the permission and any conditions. However, the Council may give permission orally, so the applicant should confirm the terms in writing immediately after. It is prudent to ask whether any conditions or time limits apply, and whether the permission is revocable. If the person intends to visit the administrative area only, they should seek authorisation from the Administrator rather than the Council, and should confirm that they have a bona fide reason (by-law 3(4)). A written authorisation from the Administrator is advisable. Once on community land, the visitor must comply with all by-laws. Traffic signs must be obeyed even if they seem inconsistent with standard road rules (by-law 6). Driving must be careful and not dangerous or careless (by-law 7); this applies to all vehicles, not just cars. Alcohol must not be brought, possessed, used or supplied without specific permission under by-law 12. If permission is sought, it should be obtained from the Council for areas outside the administrative area, or from the Administrator for the administrative area. The permission should specify the quantity, time, and location. Alcohol permission is revocable, so the holder should check that it remains in force. Fires must not be lit outside designated areas without Council permission (by-law 13). The home fireplace exception only covers cooking or heating; outdoor fires require permission. If a person is in a home other than their own, they must leave immediately if directed by an occupier (by-law 5). This includes visitors staying overnight; the occupier has absolute discretion. Littering is prohibited; rubbish must be placed only in bins or areas designated by the Council (by-law 9). Offensive behaviour, abusive language, fighting, or any conduct that disturbs others is prohibited (by-law 10). This requires self-restraint and awareness of cultural sensitivities. Meetings of the Council, the community, or any customary meeting must not be interrupted (by-law 11). If unsure whether a meeting is occurring, it is safer to avoid areas where people are congregated. Wilful damage to any vegetation, building, structure, vehicle or other thing is prohibited (by-law 8). Members of the community have additional obligations: they are subject to the same by-laws (except the entry permission requirement) and must also comply with the home requirement (by-law 5). Members should be aware that the Council may have placed restriction signs (by-law 4) that apply to them as well. The custom defence (by-law 17) may protect members who act in accordance with community custom, but it is risky to rely on it without legal advice; the custom must be proven to the court. If approached by police under by-law 14, a person should provide their name and address if requested, as refusal may lead to other consequences. The police removal power is limited to 24 hours and requires a reasonable belief of likely injury or damage. A person removed should be returned if a court is convened. In sum, compliance is best achieved by seeking and documenting all necessary permissions in advance, obeying signs and directions, avoiding alcohol unless expressly permitted, avoiding conflict and disturbance, respecting homes and property, and when in doubt, consulting the Council or Administrator for clarification. The by-laws impose a high degree of control that requires active cooperation with community authorities.