Mowanjum Community By-laws 2005

Community lands: The geographic area designated by the Lieutenant-Governor and Administrator under the Aboriginal Communities Act 1979. The by-laws apply only within that area. The by-laws do not themselves define the boundaries; the community must look to the original Gazette notice. s 1(5) merely states that the Lieutenant-Governor and Administrator has specified which lands are community lands.

Member of the community: Defined in s 1(6) as a person who is a member of the Mowanjum Aboriginal Corporation under its constitution. This is a binary status: either you are a member (with automatic rights of entry) or you are not (requiring permission). The corporation’s constitution is external to the by-laws, so one must consult that document to know who qualifies.

Governing Council: The decision-making body of the Corporation. The by-laws do not define its composition or appointment; those matters are presumably in the Corporation’s rules. The Council has powers to make decisions under the by-laws, including granting or refusing permission, designating out-of-bounds areas, imposing conditions, and delegating its powers in writing to a member or other person (s 3(1)). It does not need to give reasons for its decisions (s 2(2)). It may communicate decisions orally, in writing, or by public notice (s 2(3)).

Permission system: A central mechanism. Non-members entering the lands must have permission from the Governing Council. Permission can be given to individuals or classes, with conditions, and can be varied or revoked at any time (s 3(3),(4)). There is no right to a hearing or appeal. Even a non-member who seeks permission before entry must report to the Administration Office upon arrival (s 4(4)). Conditions must be obeyed; failure allows the Council to order the person to leave immediately (s 4(5),(6)).

Harmful substance and illegal drug: Defined in s 10(1). A harmful substance is any substance that may harm health if swallowed or inhaled, such as glue or petrol. An illegal drug is any drug it is illegal to possess under Western Australian law. The by-law then prohibits possessing, bringing, giving, or using illegal drugs, and also prohibits deliberately inhaling or swallowing any harmful substance (s 10(3)). The prohibition on alcohol is absolute unless the Council permits (s 10(2)). The by-law also requires a person affected by alcohol, drugs, or harmful substances to go to their house and stay there until the effects wear off (s 10(4)).

Gun: Defined in s 12(1) by reference to the Firearms Act 1973. Owners and bringers must report to the Administration Office. The office must keep a list of community members with guns (s 12(4)). This does not require non-member gun owners to be listed, only members.

Custom defence: A defence available only to community members. Under s 14(3), a member is not guilty of an offence if they show the court that at the time of the offence they were a member and that what they did was a custom of the community. The term custom is not defined. This defence does not extend to non-members. It places the burden on the accused to prove membership and custom on the balance of probabilities.

The by-laws directly affect any person who enters or remains on the Mowanjum community lands. That includes:

• Members of the Mowanjum Aboriginal Corporation: They have an automatic right to be on the lands (s 4(1)) but remain subject to all other by-laws: they must not bring alcohol without permission, must report guns, must not damage property, must obey out-of-bounds signs, must not behave indecently, and must comply with police powers. They also have access to the custom defence.

• Non-members: Any person who is not a member of the Corporation. This category includes visitors, family members not formally members, contractors, service providers, tradespeople, government officials, tourists, delivery drivers, and anyone else who sets foot on the lands. They are generally prohibited from entering unless they have obtained permission from the Governing Council (s 4(2)). They may enter only to go straight to the Administration Office to ask for permission (s 4(3)). They must obey any conditions imposed. If they breach conditions, the Council can order them to leave immediately.

• Drivers: All drivers on the lands must drive carefully and obey any signs erected by the Council (s 6). This includes both members and non-members.

• Gun owners and bringers: Anyone who owns a firearm or brings a firearm onto the lands must report to the Administration Office (s 12(2),(3)). This applies regardless of membership status.

• Persons affected by substances: Anyone who is affected by alcohol, drugs, or harmful substances must go to their house and stay there (s 10(4)). This could include both members and non-members, though non-members may not have a house on the lands, creating ambiguity.

• The Governing Council and the Administration Office: The Council has decision-making and enforcement powers. The Administration Office (likely the Corporation's administrative staff) has duties to maintain a gun list (s 12(4)) and presumably to receive permission requests.

• Western Australia Police: Members of the police force have specific powers under s 13: to ask for name and address, to arrest and remove persons believed to be breaching a by-law, and to remove property (including vehicles and animals). Police can also charge persons with offences under s 14(2).

• Courts: Courts dealing with charges under the by-laws can impose fines up to $5,000 and compensation orders up to $250. They must consider the custom defence if raised.

The by-laws do not make exceptions for minors, visitors from other Aboriginal communities, or emergency services. Emergency personnel would presumably rely on implied permission or necessity, but the bylaws contain no explicit exemption.

Duties of all persons on community lands:

• Obey all by-laws (s 14(1)).
• Obey any conditions imposed by the Governing Council when granting permission (s 14(1)).
• Drive carefully and obey traffic signs (s 6).
• Do not light fires in prohibited areas (s 7).
• Do not intentionally damage property (s 8).
• Do not enter another person’s house without permission; leave if asked (s 9).
• Do not bring, possess, consume, or give alcohol (unless the Council permits) (s 10(2)).
• Do not bring, possess, consume, or give illegal drugs; do not deliberately inhale harmful substances (s 10(3)).
• If affected by alcohol or drugs, go to your house and stay there (s 10(4)).
• Do not behave indecently or disorderly (s 11(1)).
• Do not interrupt meetings (s 11(2)).
• Report any gun you own or bring onto lands to the Administration Office (s 12).
• If asked by police for name and address under s 13(1), you must provide it (s 13(2)).
• Do not enter out-of-bounds places (s 5(3)).
• If you are a non-member and the Council orders you to leave for breaching conditions, you must leave immediately (s 4(6)).
• If you are a non-member who obtained permission before entry, you must tell a member of the Governing Council of your arrival as soon as you arrive (s 4(4)).
• If you are arrested by police under s 13(3), you must submit to removal; resisting may be a separate offence under state law.

Rights of members:

• Can be on the community lands at any time unless removed by police (s 4(1)).
• Can assert the custom defence if charged (s 14(3)).
• Can ask the Council for permission to bring alcohol (s 10(2) allows Council permission).
• Can ask the Council for permission to do other restricted acts (though the only explicit permission mechanism is for entry of non-members and alcohol; other by-laws do not have a permission gate except the general power of Council to permit under s 3, but only where the by-law says “unless the Governing Council permits”. Only by-law 10(2) uses that language regarding alcohol. The by-law 4(2) for non-member entry does not say “unless permitted” in the same way but requires permission; that is a duty on non-members, not a right of members.)

Rights of non-members:

• Can apply for permission to be on the lands (s 4(3) allows entry to the Administration Office to ask).
• If granted permission, can be on the lands subject to conditions.
• Can ask the Council to vary or remove conditions, but the Council can refuse without reasons.
• Can challenge an offence charge in court and argue innocence on the facts (but cannot use the custom defence unless they also happen to be members).

Rights of the Governing Council:

• Can make decisions without giving reasons (s 2(2)).
• Can delegate its decision-making in writing (s 3(1)).
• Can impose, vary, or revoke conditions on permissions (s 3(3)).
• Can refuse permission (s 3(4)).
• Can designate out-of-bounds areas (s 5).
• Can erect traffic signs (s 6).
• Can decide where fires cannot be lit (s 7).
• Can order non-members to leave for breaching conditions (s 4(6)).
• The Council itself has no duty to give notice of its decisions except as it chooses (s 2(3) says it can tell you, not must).

The primary enforcement mechanism is the criminal offence under s 14(1). Any breach of a by-law or of a condition imposed under a permission is an offence. The same provision applies whether the breach is minor (e.g. failing to report a gun) or serious (e.g. assault, though that would also be a state offence). There is no tiered penalty structure; all offences carry a maximum fine of $5,000 (s 14(4)). The court may also order compensation of up to $250 for property damage caused during the offence (s 14(5)). Compensation is capped low, which may reflect the summary nature of the jurisdiction.

Police have specific powers under s 13. A police officer who believes a person is breaking or has broken a by-law can:

• Ask for name and address (s 13(1)). Failure to provide is not itself an offence under the by-laws, but it may be an offence under state law (e.g. obstructing police). The by-law does not create an offence for refusal, only a duty to tell. If a person refuses, police could likely arrest under s 13(3) for the underlying breach, if they believe a breach is occurring.
• Arrest and remove the person from the community lands (s 13(3)). This is a summary arrest power. The person must be released after being dealt with by a court for the breach, and in any event within 24 hours (s 13(4)). This limits detention but does not prevent re-arrest on fresh grounds.
• Remove anything from the community lands, including but not limited to vehicles and animals (s 13(5)). There is no requirement for a warrant, and no requirement to show that the thing is evidence of an offence. The power is broad: any thing can be removed if the officer believes a by-law is being or has been breached? The text says “A member of the Police Force can remove anything from the community lands …” without linking it to the breach belief. The initial clause in s 13(1) and (3) is “If a member of the Police Force believes a person is breaking, or has broken, one of these by-laws, he or she can …”. That belief condition likely qualifies the entire section, including removal. So removal is authorised only on belief of a breach. Still, the power extends to any thing, not only items directly involved in the breach.

Police can also charge persons with offences under s 14(2). The by-laws do not say whether other persons (e.g. Council members) can lay charges; only police are specified.

The custom defence (s 14(3)) is a complete defence for members who can prove membership and that the conduct was a custom of the community. This shifts the evidential burden to the accused. If successful, the person is not guilty. The defence does not apply to compensation orders? It is a defence to “an offence”, so it would negate guilt and thus no penalty or compensation.

A court can impose a fine of up to $5,000. For an individual, that is significant. There is no option for imprisonment, but state laws for assault or other crimes may carry imprisonment. The by-laws do not create imprisonment themselves.

The $250 compensation cap is notable. If property damage is greater, the victim would need to seek damages through civil proceedings under state law; the by-laws do not allow the criminal court to award more than that.

The by-laws themselves state at s 1(7) that they are in addition to the laws of Western Australia. That means the general criminal and civil law continues to apply. An act that breaches a by-law may also be an offence under state law (e.g. assault, drink-driving, drug possession). Police may proceed under either regime, or both. There is no double-jeopardy bar because the by-laws are a separate legislative instrument; but the common law and statute may limit double punishment.

Specifically, the by-laws reference the Bush Fires Act 1954 at s 7(4): the by-law does not allow you to break that Act. So lighting a fire that contravenes the Bush Fires Act remains illegal. Similarly, the definition of gun at s 12(1) incorporates the Firearms Act 1973. Possession of a firearm without a licence would be an offence under that Act regardless of the by-laws.

The definition of illegal drug at s 10(1) relies on Western Australian law: any drug it is illegal to possess. So the by-laws do not create independent drug offences; they merely reiterate the state prohibition and add location-specific restrictions (e.g., a ban on bringing onto lands). Because many drug offences are already criminal, the practical effect of the by-law is to allow police to enforce the ban using the procedure in s 13 (arrest and removal) even if the quantity is small or the person is otherwise not charged under state law.

The alcohol prohibition in s 10(2) is broader than typical state laws: it bans all possession and consumption unless the Council permits. This may conflict with the general sale and consumption of alcohol in Western Australia, but the by-laws operate on community lands only. The Council’s permission can override the ban. There is no duty to only permit responsibly; the Council has discretion.

The by-laws do not mention the Racial Discrimination Act 1975 (Cth) or the Native Title Act 1993 (Cth). The by-laws apply on the basis of being on community lands, not on the basis of race per se. However, the custom defence only benefits members of the Corporation, which may have a racial criterion (Aboriginality). That could raise questions under the Racial Discrimination Act, but the by-laws are made under a state Act that specifically applies to Aboriginal communities, and that Act has been held to be special measures. The user should consider that this is an unsettled area but the source does not address it.

The by-laws do not create a right to sue for breach of statutory duty; enforcement is criminal only.

The Mowanjum Community By-laws 2005 were gazetted on 21 December 2005 (p. 6177-87) and commenced on that same date. The compilation table in the notes shows no amendments. The by-laws have remained in their original form since 2005. They were made by the Governing Council of the Mowanjum Aboriginal Corporation and approved by the Lieutenant-Governor and Administrator, as required by the Aboriginal Communities Act 1979.

The parent Act, the Aboriginal Communities Act 1979, has been amended over time, but the by-laws themselves have not been amended. This means the by-laws reflect decisions made in 2005 that have not been revisited. The absence of amendment could indicate either that the community considers them satisfactory, that no need for change has arisen, or that the amendment process under the parent Act is burdensome. The parent Act requires approval by the Governor, so any amendment would need to go through the same process of Council decision and executive approval.

The compilation is simply a reprint; no substantive changes have been made since the original gazettal. The by-laws therefore have a static text. For practitioners, this means the law is stable but also potentially outdated in areas such as drug definitions (s 10(1) references “illegal under the laws of Western Australia”, which will automatically incorporate changes in state law). Similarly, the reference to the Firearms Act 1973 is to a state Act that may have been replaced or renamed; the by-laws do not refer to the current Firearms Act 1990? Actually WA's Firearms Act 1973 was repealed and replaced by the Firearms Act 1973? The by-laws refer to the 1973 Act, which still exists as the Firearms Act 1973 (WA). So that is likely still current. But practitioners must check if the reference is to the correct Act.

No amendment history means no legislative provisions have been added, repealed, or modified. The compensation limit of $250 is unchanged since 2005; inflation has eroded its value. The fine limit of $5,000 remains, which is a fixed penalty unit amount? The by-laws do not use penalty units; they state a flat $5,000 maximum.

The source text does not mention any court cases, and no cases are cited. The Mowanjum Community By-laws 2005 are a local instrument unlikely to have generated reported litigation. The custom defence in s 14(3) has not been interpreted by any appellate court in published decisions that the source references. The interaction between the by-laws and the parent Act, or between the by-laws and state criminal law, may have been considered in lower courts unreported.

Practitioners should be aware that the by-laws have not been tested in contested litigation on key points: the scope of “custom”, the requirement to give reasons, the police power to remove property, the application of the by-laws to non-members, and the validity of the permission system under federal anti-discrimination law. Without litigation history, the by-laws operate as drafted without judicial gloss. This creates legal uncertainty for those advising clients who may be charged or who wish to challenge a Council decision.

The absence of litigation may also reflect the small jurisdiction and the likely informal resolution of disputes. But it does not mean the by-laws are immune to challenge. A court could find that the broad discretionary powers of the Council are unreasonable or ultra vires the parent Act, but no such challenge has been reported.

The compilation table indicates the by-laws have been compiled and published, but no amendments or court annotations appear. For a complete research picture, one would search the Western Australian case law databases for any mention of “Mowanjum” or “Aboriginal Communities Act 1979” in criminal or civil decisions. That is beyond the source.

Several provisions in the by-laws contain traps for the unwary:

• No reasons required: The Governing Council does not have to give reasons for any decision (s 2(2)). This means that a refusal of permission, a revocation, or a condition imposed is effectively unreviewable on its merits. A person cannot compel reasons through freedom-of-information or administrative law because the by-law expressly excludes the duty. This is a significant limit on accountability.

• Permission can be revoked at any time without cause: Under s 3(3), the Council can take away permission at any time. This applies even if the person was given a long-term permission. There is no requirement of notice before revocation. The only requirement is that the Council must tell the person (s 2(3)), but that can be by notice in a public place.

• Non-members must report arrival even with prior permission: Under s 4(4), if you get permission before entering, you must tell a member of the Governing Council of your arrival as soon as you arrive. This is an ongoing duty. If you forget, you are in breach even if you have permission. The by-law does not specify how to find a Council member; if none is available, the person could be in technical breach.

• Alcohol prohibition is absolute unless Council permits: s 10(2) prohibits bringing, having, keeping, drinking, or giving alcohol. There is no exception for medicinal use, religious ceremonies, or small amounts. Only the Governing Council can grant an exemption. Members cannot rely on custom for alcohol because the custom defence applies only to an offence under the by-laws, and it is unclear whether custom could override the alcohol ban; by-law 10 does not mention custom. The custom defence (s 14(3)) would need to be invoked in court; there is no administrative exemption.

• Custom defence only for members: Non-members cannot rely on custom even if the conduct would be a customary practice. A non-member visitor who is a member of another Aboriginal community cannot use this defence. This creates a differential treatment based on membership in the Corporation.

• Out-of-bounds areas do not require signs: s 5(4) says the Council can put up signs, not must. So a person could be prosecuted for entering a place that the Council has designated out of bounds even if no sign is present. The Council must have decided and communicated that decision; s 2(3) says the Council can tell you by speaking, writing, or public notice. So they could simply announce at a meeting that a certain area is out of bounds. A visitor who does not attend the meeting could be caught.

• Broad police removal power: Under s 13(5), police can remove anything from the community lands if they believe a by-law is being breached. This includes vehicles and animals. There is no requirement to give notice to the owner, no right to reclaim within a set time, and no compensation provision. The by-law does not establish what happens to removed property; presumably it reverts to the police or is impounded under general law, but that is uncertain.

• No maximum time for conditions even if indefinite: Conditions imposed on a permission can remain in place indefinitely; the Council can change or take away conditions at any time (s 3(3)), but if it does nothing, conditions last forever.

• The definition of harmful substance is broad: “any substance that may harm your health if you swallow or inhale it” includes many common household products. Possessing glue or petrol is not prohibited outright; only deliberately swallowing or inhaling them is (s 10(3)). But a person affected by such substance must go to their house and stay there (s 10(4)). This could apply to someone who has sniffed glue, but also to someone who has ingested an overdose of medicine? The definition says “swallow or inhale it”, so medicine taken orally could be included if harmful in excess. However, s 10(5) exempts medicine taken as prescribed.

• The gun reporting duty is strict: You must tell the Administration Office about every gun you own, and about every gun you bring onto the lands even if it is not your gun (s 12(2),(3)). Failure to report is an offence. This applies to members and non-members. There is no exception for licensed firearms, nor is there a time limit stated; presumably it must be done before or upon bringing the gun. If you bring a friend's gun, you must report it.

• No right to a hearing before being ordered to leave: Under s 4(6), if the Council orders you to leave for breaching conditions, you must leave immediately. There is no right to contest the order or to have a review. If you refuse, you commit an offence (by failing to obey a condition? The condition itself may be the order; s 14(1) makes it an offence to not obey a by-law, and s 4(6) is a by-law that says you must leave immediately, so staying is an offence). Police could also arrest you under s 13(3).

Compliance depends on whether the person is a member of the Mowanjum Aboriginal Corporation.

For members:

• Obtain a copy of the by-laws (this document) and any current notices from the Governing Council, including out-of-bounds designations and traffic signs.
• Do not bring alcohol onto the lands unless you have prior written permission from the Council. The same applies to giving alcohol to others.
• Do not possess or use illegal drugs. Harmful substances must not be deliberately inhaled or swallowed.
• If you become affected by alcohol or drugs, go to your house and stay there until the effects wear off.
• Before lighting a fire, check if the Council has prohibited fires in that area. Cooking fires near houses are exempt, but still comply with the Bush Fires Act.
• Drive carefully and obey all signs posted by the Council.
• Do not enter another person’s house without permission; leave if asked.
• Do not damage property intentionally.
• Avoid indecent or disorderly behaviour, including swearing, fighting, or being rowdy.
• Do not interrupt community or customary meetings.
• If you own a gun, report it to the Administration Office. If you bring a gun onto the lands (even temporarily), report it. Ensure the Office has a record.
• If the police ask for your name and address under s 13(1), provide it.
• If police arrest you under s 13(3), do not resist; you must be released within 24 hours after court dealing.
• If you are charged, you may raise the custom defence if your conduct was a customary practice. Keep records or evidence of custom.

For non-members:

• Do not enter the community lands without prior permission from the Governing Council. If you have not obtained permission, your only authorised entry is to drive or walk straight to the Administration Office to ask for permission. Do not wander.
• If you have obtained permission before arrival, upon arrival immediately inform a member of the Governing Council. Find the Administration Office or a council member.
• Comply with any conditions the Council imposes. These may be stated in writing or orally.
• If the Council orders you to leave, do so immediately. Do not argue; you can later seek legal advice.
• While on the lands, obey all the same rules as members: no alcohol (without special Council permission, which is unlikely for non-members), no drugs, no damaging property, no disorderly conduct, no unauthorised entry into houses.
• Do not light fires except as allowed.
• Drive carefully and obey signs.
• Report any firearm you own or bring onto the lands to the Administration Office.
• Keep in mind that you cannot rely on the custom defence; if you are a member of another community, you may not use custom.

For the Governing Council and Administration Office:

• Ensure all decisions to grant or refuse permission are documented, though reasons are not required. Consider providing written permission to avoid disputes.
• When delegating decision-making, do so in writing as required by s 3(1).
• Publicise out-of-bounds decisions by signage or notices in public places to give fair warning.
• Maintain the gun register as required by s 12(4). Only members need to be listed, but non-member gun owners should have their guns noted for safety.
• When imposing conditions on permission, communicate them clearly to the person.

General:

• The by-laws are in addition to state laws, so also comply with the Criminal Code, the Road Traffic Act, the Firearms Act, the Bush Fires Act, the Liquor Control Act, and the Misuse of Drugs Act. The by-laws do not excuse breaches of state law.
• If in doubt about whether an area is out of bounds, ask the Council or the Administration Office.
• Keep a copy of the by-laws and any current notices.
• Do not assume that silence implies permission. The default for non-members is prohibition; for alcohol, default is prohibition.
• If charged, obtain legal representation. The maximum fine of $5,000 is substantial, and compensation orders may be added. The custom defence is available only to members and may require expert evidence on customary practice.