Looma Community Inc. By-laws

The by-laws depend on several defined terms and structural concepts. Community land means land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of the Looma Community Inc. This is the physical territory to which the by-laws apply. Community means the Looma Community Inc., a body corporate under the Aboriginal Communities Act 1979, with a Council as its governing body. The by-laws do not define the Council further, but it is the entity that holds the power to grant or refuse permission for entry, place signs, declare vehicle‑prohibited areas, and set aside fire places. Member of the community means any person accepted as a member for the time being. This is an internally determined status, not defined by any external statutory criteria, meaning the Council controls who counts as a member. Non-members have no right to enter or remain without the Council’s permission (by-law 4). Vehicle adopts the Road Traffic Act 1974 definition, bringing in that Act’s scope for traffic regulation but not importing its licensing or registration offences unless the by-laws say so.

The by-laws also rely on the concept of the Act (the Aboriginal Communities Act 1979), which is the enabling legislation that allows the Governor to declare community lands and for the council to make by-laws. The by-laws are subsidiary legislation approved by the Governor and published in the Government Gazette; they are not a private contract.

A recurring concept is the absolute discretion of the Council. By-law 4(2) says the Council may grant or refuse permission to enter community land in its absolute discretion, impose conditions, and revoke permission at any time. This discretion is not subject to any criteria, reasonableness requirement, or appeal process within the by-laws. The Council may also delegate this power to any person it thinks fit (by-law 4(3)). This creates a regime where entry rights are entirely at the mercy of the Council, with no stated grounds for refusal or revocation. However, the by-laws do not explicitly exclude non-members from public roads that may run through community land (by-law 4(1) says "except as provided to the contrary in any Act or regulation"), leaving open the possibility that state roads are not subject to the by-law.

Another key concept is the custom defence (by-law 22). It provides a defence to a complaint if the defendant was acting under and excused by any custom of the community. The by-laws do not define "custom", nor do they require the custom to be written, proven by elders, or consistent with state law. This gives the courts authority to recognise unwritten traditions as a complete answer to an otherwise proven offence. It applies to all by-law offences, including alcohol prohibition, though the scope of what constitutes a recognised custom is likely to be developed on a case‑by‑case basis.

The by-laws also distinguish between offences and prohibitions. For example, by-law 10 creates multiple ways to commit an offence involving alcohol, but by-law 18 lists only certain by-laws as creating offences. By-laws 6, 8, 11, 12, 13, 14, 15 are specifically listed in by-law 18 as offences. By-laws 4, 5, 7, 9, 10, 16(5), and others also create offences implicitly by stating that a person who does or fails to do something "commits an offence" (e.g., by-law 4(4), 5(3), 7(3), 9(2), 10, 16(5)). The drafting is inconsistent but the effect is that all substantive prohibitions are criminal.

The by-laws directly affect anyone who enters or remains on the community land of Looma Community Inc., whether or not they are members. But the regime distinguishes sharply between members and non-members. Non-members are the primary targets of entry control. They must obtain permission from the Council before entering or remaining, and can be evicted if that permission is revoked. This includes visitors, tradespeople, government officials (unless another Act or regulation provides otherwise), researchers, journalists, and delivery drivers. Any non-member who enters without permission, breaches a condition, or refuses to leave on request commits an offence (by-law 4(4)). The police have power to request name and address of anyone believed on reasonable grounds to have breached a by-law; failure to give name and address is itself an offence (by-law 16(4)(5)). Members are not subject to the entry permission requirement, but they are subject to almost all other by-laws: home entry restrictions (by-law 6), traffic rules (by-laws 7, 8, 9), alcohol prohibition (by-law 10), wilful damage, litter, offensive behaviour, meeting disruption, and fire restrictions. The only by-law that expressly exempts members is the requirement for permission to enter community land (by-law 4(1) applies to persons who are not members). But members can still be affected by the alcohol prohibition and other conduct rules.

Alcohol suppliers and transporters are caught by by-law 10. Any person who brings alcohol onto community land, assists another to bring alcohol, is in possession of alcohol, sells or supplies alcohol, or enters in a drunken condition commits an offence. This covers not only community residents but also external suppliers, such as shops, couriers, or visitors who bring alcohol as a gift. The prohibition is absolute: there is no exception for personal consumption, medicinal use, or religious ceremonies. This affects the ability of any business to deliver alcohol to the community, and may reduce tourism if visitors must abstain. The economic impact includes lost alcohol sales to local residents and potential discouragement of tourists who drink.

Drivers are affected by the vehicle-related by-laws. The Council can erect traffic signs and prohibit vehicle entry to any area (by-laws 7, 9). Driving without due care and attention or in a manner dangerous to any person is an offence (by-law 8). This mirrors state road rules but with potential differences: the by-laws do not define "due care and attention" or "dangerous" in terms of the Road Traffic Act 1974, leaving interpretation to the court. Also, the Council can prohibit access by vehicles to any area, not just roads, which may affect residents’ ability to park near homes or move goods.

Home occupiers gain a right to control entry into their homes (by-law 6). A person must not enter another’s home without prior permission, and must leave when directed by an occupier. This empowers private individuals to enforce exclusion from their dwelling, with criminal consequences for the intruder. However, the by-laws do not specify what constitutes a "home" - presumably a dwelling - and do not address common areas.

Police and wardens gain extensive powers under by-law 16. Any alcohol brought onto community land contrary to by-law 10 is liable to confiscation. Police may seize alcohol and receptacles they reasonably suspect are liable to confiscation. They may enter and search any vehicle using reasonable force if they reasonably suspect alcohol is inside in breach of the by-laws. They may stop vehicles for that purpose. They may dispose of confiscated alcohol contents if they think it necessary for good order or prevention of an offence. They may keep confiscated alcohol for as long as necessary in the interests of justice. And where a person has committed or is committing an offence and injury or property damage appears likely, police may apprehend and remove that person from community land for up to 24 hours, returning them if a court is convened to deal with them. These powers are broad and largely unreviewed within the by-laws.

The by-laws impose several clear duties. For non-members, the primary duty is not to enter or remain on community land without the Council’s permission (by-law 4(1)). That duty is qualified only by contrary provision in any Act or regulation, meaning that if state law gives a right of entry (e.g., for emergency services, postal delivery, or statutory office holders), the by-law does not override it. But for ordinary visitors, the duty is absolute. Non-members also have a duty to comply with any conditions of permission and to leave when requested (by-law 4(4)). For all persons (members and non-members alike), duties include: not entering another’s home without permission and leaving when directed (by-law 6); obeying traffic signs and not driving carelessly or dangerously (by-laws 7, 8); not driving in areas declared vehicle‑prohibited (by-law 9); not bringing, possessing, selling, supplying alcohol, or entering in a drunken condition (by-law 10); not causing wilful damage (by-law 11); not leaving rubbish or litter except in bins or designated areas (by-law 12); not causing disturbance or annoyance by abusive language, fighting, or offensive or disorderly behaviour (by-law 13); not interrupting council or customary meetings (by-law 14); and not lighting fires outside designated areas or without council permission (by-law 15). The duty to give name and address to a police officer on request applies to anyone the officer believes on reasonable grounds has breached a by-law (by-law 16(4)(5)). These duties are criminal, with no requirement of mens rea stated in most by-laws - they appear to be strict liability offences, subject only to the custom defence (by-law 22).

The by-laws also confer certain rights. The Council has the right to grant or refuse permission to enter, impose conditions, revoke permission, delegate that power, place signs, declare vehicle‑prohibited areas, set aside rubbish areas and fire places, and sue for restitution of up to $250 for damage caused by an offender (by-law 20). Home occupiers have the right to exclude others from their home, and to direct any non‑occupier to leave (by-law 6). Members presumably have the right to remain on community land without needing permission, though the by-laws do not state that explicitly - it is implied by by-law 4(1) which only restricts non-members. Police have the rights to stop, search, seize, arrest, remove, request identity, and prosecute, as described in by-law 16. Defendants have the right to raise the custom defence (by-law 22), though it is not defined how they prove custom or what standard of proof applies - presumably the defendant has the evidential burden, and the prosecution must then disprove it beyond reasonable doubt.

The primary penalty for any by-law offence is a fine of $100 (by-law 19). This maximum has been in effect since the 2004 amendment; the original by-laws probably had a different amount (the 2004 Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations revised it). $100 is a relatively minor fine, roughly equal to one penalty unit under state law at the time of the amendment but now much lower than standard fines under the Criminal Code or road traffic laws. This limits the deterrent effect for serious offences such as repeated alcohol smuggling or dangerous driving. Beside the fine, a court may order restitution of up to $250 to the community or to another person for damage caused in the course of the offence (by-law 20). The restitution order is in addition to any fine. It is not limited to property damage; the wording “damage to the property” in by-law 20 restricts it to property damage, not personal injury or other loss.

Enforcement is primarily through police and wardens (by-law 16). Wardens are not defined in the by-laws, but presumably they are appointed under the parent Act or by the Council. Police have broad powers: they can confiscate alcohol brought contrary to by-law 10, seize receptacles, enter and search vehicles with reasonable suspicion, stop vehicles for that purpose, dispose of alcohol contents if necessary for good order or prevention of further offences, and keep confiscated alcohol for as long as necessary in the interests of justice (by-law 16(1)-(2)). The power to enter and search a vehicle under by-law 16(2)(b) does not require a warrant; it is based solely on reasonable suspicion that alcohol is in the vehicle in breach of the by-laws. There is no power to search a person - only vehicles and receptacles. For removal from community land, by-law 16(3) allows a police officer to apprehend and remove a person who has committed or is committing an offence where injury or damage appears likely, for up to 24 hours. The person must be returned if a court is convened to deal with them; otherwise, they can be held for the full 24 hours and then released. This is a form of temporary exclusion without charge, akin to a move‑on power but with explicit time limit and connection to court appearances.

Proceedings must be commenced within six months after the offence was committed (by-law 17). They are commenced by complaint and summons under the Justices Act 1902 (now the Criminal Procedure Act 2004, per the compilation notes). The notes confirm that references to complaints are now references to prosecution notices under the Criminal Procedure Act 2004. The six‑month limitation period is relatively short and may constrain enforcement for alcohol or entering offences that are not ongoing. However, possession of alcohol on community land is likely a continuing offence? The by-laws do not specify whether possession is momentary or continuing; the court would interpret it.

The by-laws also create an offence of failing to give name and address to a police officer who believes on reasonable grounds the person has breached a by-law (by-law 16(5)). This is a standalone offence with a fine of $100. It does not require that the person actually committed the breach - only that the officer had reasonable grounds to believe. This forces compliance with identity requests even when the person is innocent, potentially violating the privilege against self‑incrimination, though the by-laws do not address that.

The by-laws are made under the Aboriginal Communities Act 1979 (WA), which is the enabling statute. That Act provides for the Governor to declare community lands and for councils to make by-laws. The by-laws are subsidiary legislation, meaning they must be consistent with the parent Act and with other state laws. Several specific interactions are noted in the text. By-law 4(1) contains the saving clause “except as provided to the contrary in any Act or regulation”. This means that if a state Act or regulation gives a person a right to enter community land (e.g., the Police Act 1892 for police powers, the Emergency Services Act 2005 for emergency workers, the Postal Services Act for mail delivery, or the Native Title Act 1993 for certain rights), the by-law does not override that right. Similarly, by-law 5(1) contains the same saving provision for restricted entry areas.

By-law 10 (alcohol prohibition) does not contain a saving clause, but it does not override other laws that might allow alcohol on community land (e.g., a licence issued under the Liquor Control Act 1988). However, the by-law is an absolute prohibition; any other law would need to expressly or impliedly permit the activity. If the liquor licensing regime permits a licensee to sell alcohol on the land, the by-law could still make it an offence unless the Aboriginal Communities Act 1979 or Liquor Control Act provides that the by-law does not apply. This creates potential conflict: a person selling alcohol with a licence from the Director of Liquor Licensing could be criminally liable under the by-law. The by-laws likely prevail as a local law, but the licensing authority could exempt the community from the prohibition via a condition.

By-law 8 (careless and dangerous driving) interacts with the Road Traffic Act 1974. The by-law does not define "due care and attention" or "dangerous", but the same terms appear in the Road Traffic Act. It is likely a court would interpret them consistently with that Act, but there is no express incorporation. This means a person could be charged twice for the same conduct - once under state law and once under the by-law - unless the double jeopardy principle or the rule against double punishment applies. The by-laws do not contain a provision barring prosecution under both.

By-law 15 (fires) says it does not authorise lighting a fire in an open fireplace in contravention of the Bush Fires Act 1954. This means the by-law does not create a defence to a bush fire offence. The Council’s permission to light a fire does not override the need for a permit or compliance with fire ban orders under state law.

By-law 17 (procedure) originally referred to the Justices Act 1902 and the Child Welfare Act 1947. The compilation notes explain that the Justices Act 1902 was renamed the Criminal Procedure (Summary) Act 1902 and then repealed, with references now to the Criminal Procedure Act 2004. This means that proceedings for by-law offences are by prosecution notice under the Criminal Procedure Act 2004, with a six‑month limitation period. The Child Welfare Act 1947 (now the Children and Community Services Act 2004) provides special procedures for child defendants.

By-law 22 (custom defence) allows a defence of acting under a custom of the community. This interacts with the general criminal law. Custom is not defined, but it presumably means a traditional practice or rule of the Looma Community. The defence may be limited by the Aboriginal Communities Act 1979 itself: if the parent Act prohibits by-laws that conflict with state law, a custom that authorises assault or alcohol might not be a defence. But the by-law does not state any public policy limits.

The by-laws also interact with Australian constitutional law. The Racial Discrimination Act 1975 (Cth) may be relevant: by-laws that impose restrictions based on membership in an Aboriginal community could be considered race‑specific. However, the Aboriginal Communities Act 1979 is a state law that may be a special measure for the benefit of Aboriginal people, and thus exempt from the RDA. That is a contested area of law.

The Looma Community Inc. By‑laws were originally gazetted on 10 May 1991 and came into effect on that day (by-law 2). The compilation table shows only one substantive amendment: the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004, which took effect on 15 May 2004, amended by-laws 19 and 20. Before that amendment, by-law 19 prescribed a fine - the 2004 regulations inserted a new by-law 19 setting the fine at $100. The original fine amount is not stated in the source, but it was likely lower. By-law 20 was amended to increase the maximum restitution from possibly a lower amount to $250 (the text says “amended” but does not show the previous amount). The 2004 amendment was part of a broader package adjusting fines and restitution for various Aboriginal community by-laws across Western Australia. The compilation notes indicate that the reprint is as at 8 July 2005, including the amendments. No further amendments appear in the table. There is no amendment history for the other by-laws. The by-laws have not been repealed or superseded. The five‑year gap between the 1991 original and the 2004 amendment suggests the by-laws received little legislative attention for 13 years. The £100 fine has not been updated since 2004; inflation has significantly eroded its value. The restitution limit of $250 is similarly low relative to the cost of material damage such as broken windows or vehicle damage. This may reduce the deterrent effect and the incentive for the community to pursue enforcement.

The source text does not mention any litigation history. There are no reported cases cited, no mention of appeals, convictions, or judicial interpretations of the by-laws. The by-laws themselves are a schedule to the regulations; they do not reference any court decisions. It is possible that prosecutions under the by-laws have occurred in the Magistrates Court of Western Australia, but they would not be widely reported. The compilation notes and definitions do not provide any case references. Given that the by-laws are local and the penalty is minimal, it is unlikely that many appeals have reached the higher courts. However, the custom defence (by-law 22) could be a source of litigation if a defendant raises it and the prosecution disputes the existence or scope of the custom. No such case is reported in the source. Users should not assume that absence of litigation means the by-laws are unenforced; routine prosecutions may occur without generating appellate decisions. The by-laws also interact with the Criminal Procedure Act 2004, which may have procedural decisions, but the source does not mention any.

Several provisions in the by-laws create traps for the unwary. Absolute alcohol prohibition: By-law 10 contains no exceptions. Possessing alcohol in one’s own home, bringing it for a private celebration, or even having a single can in a vehicle is an offence. Unwitting visitors may be caught. There is no exemption for medicinal religious wine, small quantities, or low‑alcohol beverages. Police can stop and search any vehicle on reasonable suspicion of alcohol being inside (by-law 16(2)), without a warrant. This is a broad power that could be exercised based on vague suspicion. Council’s absolute discretion: By-law 4(2) gives the Council absolute discretion to grant or refuse permission to enter, impose conditions, and revoke at any time. There is no right of review, no stated criteria, and no requirement for reasons. A non-member who has had permission granted can be told to leave instantly, and if they do not, they commit an offence (by-law 4(4)(c)). Permission to enter is not a general licence: It may be oral or written (by-law 4(2)(a)), so the terms and conditions may not be documented. The Council may impose conditions orally, and breach of any condition is an offence (by-law 4(4)(b)). A visitor who is told they can come for two hours but fails to leave after that time may commit an offence without having been directly asked to leave. Removal without charge: By-law 16(3) allows police to remove a person from community land for up to 24 hours if an offence has been committed and injury or damage appears likely. This is a form of administrative detention without charge or court order. The person must be returned if a court is convened, but otherwise can be held for the full period. It is not clear what happens if no court sits within 24 hours - the person is simply released off community land. Failure to give name and address: By-law 16(5) makes it an offence to fail to give name and address when called upon by a police officer who believes on reasonable grounds that the person has breached a by-law. This can apply even if the person has not actually breached a by-law, as long as the officer’s belief is reasonable. This creates a duty to self‑identify in circumstances where the person might be innocent. Custom defence: By-law 22 provides a defence if the defendant was acting under a custom of the community. But custom is not defined, and the defence may be hard to prove. It could also be interpreted narrowly by courts, or the prosecution may argue the custom does not excuse the specific act. Relying on custom without legal advice could lead to conviction. Low penalties may encourage non‑compliance: The maximum fine is only $100, and restitution $250. For a business or an individual with means, these penalties may be seen as a cost of doing business. The by-laws lack escalating penalties for repeat offences, and there is no power to seize vehicles or goods (except alcohol). This could undermine the regime’s deterrent effect. Limitation period: Proceedings must be commenced within six months (by-law 17). For alcohol possession or entry offences that are discovered late, the prosecution may be time‑barred. Interactions with state laws: The by-laws do not create a defence of acting under a licence under the Liquor Control Act. A person with a licence to sell alcohol may still be prosecuted under by-law 10. Also, the driving offences may overlap with state road traffic offences, exposing the driver to two separate fines for the same conduct. No explicit right of appeal: There is no provision in the by-laws for an internal or external appeal against the Council’s decision to refuse or revoke permission to enter. A person excluded from community land cannot challenge the decision under the by-laws themselves; they would need to rely on state administrative law or the Racial Discrimination Act.

Compliance with the Looma Community Inc. By‑laws requires careful attention to the rules, particularly for non‑members. For non‑members seeking to enter community land: Obtain prior permission from the Council. Permission can be oral or written. Ask for the conditions, ensure they are clear, and comply strictly with any time limits or other restrictions. If the Council delegates its power to a specific person (e.g., a community liaison officer), ensure you deal with that person. Revocation of permission may happen without notice, so be prepared to leave immediately if asked. Avoid alcohol entirely: Do not bring, possess, or consume alcohol on community land. Do not assist others to bring alcohol. Do not enter if under the influence of alcohol. Even small amounts or closed containers within a vehicle are prohibited. If you have a medical or religious need for alcohol, seek an exemption from the Council beforehand - but note the by-law does not recognise such exemptions. Best practice is to leave all alcohol outside community land boundaries. Respect homes: Do not enter any home without the prior permission of the occupant. If you are a guest, leave when the occupant asks you to. Drive with care: Obey all traffic signs erected by the Council. Drive at a safe speed for the conditions, and avoid any manner dangerous to persons. Do not drive in areas declared vehicle‑prohibited. If unsure whether an area is prohibited, ask the Council. No damage or litter: Do not damage any tree, building, structure, vehicle, or other thing. Dispose of rubbish only in bins or areas set aside by the Council. Do not leave rubbish in or near homes without the occupant’s permission. Behaviour: Avoid using abusive language, fighting, or otherwise acting in an offensive or disorderly manner. Do not interrupt council or customary meetings. Fires: Do not light a fire outside designated fire places without the Council’s permission. Even with permission, comply with the Bush Fires Act 1954 - check for fire bans or permits. Cooking fires in home fireplaces are allowed. If stopped by police: Give your name and address when asked. Failure to do so is an offence. Police can search your vehicle if they reasonably suspect alcohol is inside. You do not have to consent to a search but they can use reasonable force. If you are in possession of alcohol, it may be confiscated and destroyed. If accused of an offence: Seek legal advice promptly. The custom defence (by-law 22) may apply if you were following a community custom. Gather evidence of the custom (e.g., statements from elders, written records, or previous accepted practices). The limitation period is six months, so ensure evidence is preserved early. For businesses or organisations delivering goods or services: Contact the Council before any scheduled visit. Obtain written permission specifying the date, duration, and purpose. Declare if you carry any alcohol (e.g., in a vehicle). If you are likely to be on the land frequently, consider negotiating a standing permission or being recognised as a member. For alcohol suppliers: Do not deliver alcohol to any address on community land. This includes home delivery of online orders. The by-law applies to bringing onto community land; it does not matter whether the alcohol is for personal use. Record‑keeping: The Council should maintain records of permissions granted and any conditions or revocations. For individuals, keep any written permission or correspondence from the Council. Stay informed: The by-laws may be updated or repealed - check the WA legislation website for the current version. Community announcements about signs or vehicle‑prohibited areas should be checked regularly.