Mugarinya Community Association Incorporated By-laws

The by‑laws affect three broad classes of people. First, any person who is not recognised by the Council as Aboriginal, and who is not a member of the community, is required to obtain prior permission to enter or remain on community land (by‑law 4(a)). This includes tourists, contractors, service providers, journalists, researchers, relatives of members who are not themselves Aboriginal, and any other non‑Aboriginal visitor. Government employees are deemed to have permission when entering in connection with their duties (by‑law 4(e)), but that exception is limited: they must be acting in the course of their employment, and presumably their permission is not for personal visits. Second, members of the community themselves are not subject to the entry permission requirement (they are “recognised by the Council to be Aboriginal” and are part of “members of the community”), but they are bound by every other by‑law. They must not bring or possess liquor without Council permission (by‑law 8(b)), drive without due care (by‑law 12), cause disturbance (by‑law 13), damage property (by‑law 14), or discharge firearms without approval (by‑law 16). A member who is told to leave a house by the occupant must leave (by‑law 7). Third, the Council itself and its individual members are affected: a Council member charged with a liquor offence under by‑law 8 is deemed to have ceased to be an effective councillor unless the charge is withdrawn or dismissed (by‑law 21). This creates a strong personal incentive for councillors to avoid any appearance of unauthorised liquor activity. Fourth, police officers are given powers and duties: they may take proceedings, apprehend and remove persons, request identity, search vehicles, and seize vehicles for up to 14 days (by‑law 17). They must act on reasonable grounds and must follow the procedure under the Criminal Procedure Act 2004 for commencing proceedings within six months. Fifth, any person who is on community land without permission or in breach of a condition faces a fine of up to $100 and potential compensation order up to $250 (by‑law 19). The low penalty caps mean that the primary deterrent is not the fine itself but the risk of removal, loss of permission, and the inconvenience of prosecution. The by‑laws also affect suppliers of glue, petrol, and volatile liquids: they must not sell or supply those substances on community land if they have reasonable grounds to suspect the buyer intends to inhale them (by‑law 10(b)). This imposes a duty on retailers and residents to assess the buyer’s intention, which carries compliance costs and potential liability for mistaken assessment.

Duties: For non‑members, the central duty is to obtain and comply with permission to be on community land (by‑law 5). Persons ordered to leave by the Council must do so as soon as reasonably possible (by‑law 5(c)). No person may bring, possess, use or supply liquor without Council permission (by‑law 8(b)). No person may be on community land while under the influence of liquor to the extent that their behaviour alarms, annoys or upsets members (by‑law 8(c)). No person may possess a deleterious substance or petrol for inhalation, or sell or supply it where there are reasonable grounds to suspect intended inhalation (by‑law 10). Drivers must obey traffic signs, drive with due care and attention, and not drive dangerously (by‑laws 11, 12). A community‑owned or leased vehicle may only be driven with Council permission, by a licensed driver, and not while under the influence of liquor or a deleterious substance (by‑law 12(c)). No person may cause disturbance or annoyance by abusive language, fighting, or offensive behaviour (by‑law 13). No person may wilfully damage property (by‑law 14). No person may interrupt Council, community, or customary meetings (by‑law 15). No person may use or discharge a firearm or offensive weapon without Council approval, which can be withdrawn without reason (by‑law 16). Persons told to leave a house must do so (by‑law 7). Persons on community land must comply with signs restricting entry to certain areas (by‑law 6).

Rights: The Council has the right to grant, condition, or revoke permission to enter or remain on community land without stating a reason (by‑law 4(c), (f)). The Council may also permit liquor, subject to terms (by‑law 8(a)), and approve firearms use (by‑law 16). The Council may place signs restricting entry and traffic signs (by‑laws 6, 11). Police have rights to apprehend and remove persons reasonably believed likely to cause injury or damage (by‑law 17(b)), to request names and addresses (by‑law 17(c)), to stop, detain and search vehicles for liquor or deleterious substances, and to seize those items and the vehicle for up to 14 days (by‑law 17(d), (e)). A person charged with an offence has the right to a defence of acting under an excused custom of the community (by‑law 20). A Council member charged with a liquor offence has the right to be restored to their position if the charge is withdrawn or dismissed (by‑law 21(b)). A person aggrieved by a police seizure may seek orders from the court for destruction, disposal or forfeiture (by‑law 19(c)). The court may order compensation only up to $250 (by‑law 19(b)). All proceedings must be commenced within six months (by‑law 18). The right to silence and other standard criminal procedural protections apply because proceedings are under the Justices Act / Criminal Procedure Act, but these are not spelled out in the by‑laws.

The primary penalty for any breach of the by‑laws is a fine of not more than $100 (by‑law 19(a)). This maximum is low in dollar terms, even by 2005 standards, which suggests the regime relies more on exclusion and police powers than on financial deterrence. In addition, on conviction the court may order the offender to pay compensation of up to $250 to the community or to any person whose property was damaged in the course of the offence (by‑law 19(b)). This cap may be inadequate to cover significant damage, but it allows a quick summary remedy without a separate civil claim. If the offence involved possession or use of a prohibited substance (liquor or deleterious substance), the court may make orders for destruction, disposal or forfeiture of any property seized under police powers, such as the vehicle containing the substance (by‑law 19(c)). The court’s discretion here is broad: it may order destruction even if the vehicle is not itself illegal, and the power only arises upon proceeding to conviction.

Enforcement is primarily in the hands of the police. A police officer may take proceedings (i.e., initiate a prosecution) for any breach (by‑law 17(a)). The officer may also, without warrant, apprehend and remove a person from community land if that person has committed or is found committing an offence and it appears on reasonable grounds likely that injury to persons or damage to property will be caused if the person is left at large (by‑law 17(b)). This is a preventive power of removal, not a formal arrest, and can be exercised summarily. Police may request the name and address of anyone they believe on reasonable grounds is on community land in breach of a by‑law, or has committed a breach while there (by‑law 17(c)). Failure to provide details is presumably an offence under general law, though not specified here. Police may stop, detain and search a vehicle if they have reasonable cause to suspect liquor or a deleterious substance is in it in contravention of the by‑laws, and may seize any such substance, receptacle, and the vehicle itself for up to 14 days if considered necessary on reasonable grounds to prevent a repetition (by‑law 17(d), (e)). This vehicle seizure power is substantial: it applies even if the driver is not charged, and the 14‑day detention can impose significant inconvenience and cost. The power is discretionary and reviewable by the court only indirectly through forfeiture orders on conviction.

Proceedings must be commenced within six months after the offence was committed (by‑law 18). This is a short limitation period that requires swift police action. The procedure is by way of complaint and summons under the Criminal Procedure Act 2004 (formerly Justices Act 1902). Because the penalties are low, the matter would be heard in the Magistrates Court, likely as a minor summary offence. There is no provision for imprisonment or fine default.

The by‑laws operate under the authority of the Aboriginal Communities Act 1979 (WA), which enables community associations to make by‑laws for their lands. The by‑laws are “local laws” subordinate to that Act and to the laws of the State and Commonwealth. By‑law 4(a) itself states “Save as otherwise provided by any law of the State or Commonwealth”, meaning the entry permission requirement is subject to any overriding law. For example, a Commonwealth law such as the Racial Discrimination Act 1975 could potentially limit the power to exclude people on the basis of Aboriginality, though the by‑laws avoid explicitly using race as the criterion: they rely on “recognised by the Council to be Aboriginal” and membership structure. Nonetheless, the interaction with anti‑discrimination laws is a live issue. The by‑laws also reference the Liquor Licensing Act 1988 for the definition of “liquor”, so any changes to that definition automatically apply. The Child Welfare Act 1947 is mentioned in by‑law 18, which says proceedings are subject to that Act (likely concerning minors). The Justices Act 1902 and later Criminal Procedure Act 2004 govern procedural aspects. The road traffic laws of the State are not displaced: by‑law 12 creates additional local driving offences (careless and dangerous driving, unlicensed driving on community land) that can be prosecuted concurrently with State traffic offences. Double jeopardy protections would apply, so a person could not be convicted twice for the same act. The by‑laws do not create a complete code; general criminal law (assault, theft, drug offences) still applies on community land. The vehicle seizure power in by‑law 17(e) interacts with the Police Act and criminal property seizure laws, but is limited to 14 days and to vehicles containing liquor or deleterious substances. The by‑laws do not create any civil remedies beyond the $250 compensation order; victims of damage must resort to ordinary civil proceedings for larger sums. The defence of acting under custom (by‑law 20) may interact with native title or cultural heritage laws, but those are not referenced. State licensing laws for firearms under the Firearms Act 1973 are not displaced; by‑law 16 only adds a requirement for Council approval on community land on top of any State licence.

The original Mugarinya Community Association Incorporated By‑laws were gazetted on 21 June 1991 and commenced on that date. The only amendment reflected in the compilation table is the Sentencing Legislation (Short Sentences - Aboriginal Community By‑Laws) Amendment Regulations 2004, regulation 14, gazetted on 14 May 2004 and commencing 15 May 2004. That amendment made a textual change to by‑law 19, as noted in the marginal annotation to by‑law 19: “By‑law 19 amended: Gazette 14 May 2004 p. 1456.” The exact content of the amendment is not specified in the text, but the effect was likely to increase the maximum fine from a lower amount to the current $100, and possibly the compensation cap from a lower amount to $250. The amendment was part of a broader set of amendments to multiple Aboriginal community by‑laws to standardise penalty levels following the introduction of the Sentencing Act 1995 and related reforms. The by‑laws were reprinted as at 7 October 2005 (Reprint 1), incorporating that amendment. There is no evidence of any further amendments. The notes to the by‑laws also record that the short title of the Justices Act 1902 was changed to the Criminal Procedure (Summary) Act 1902, and that Act was later repealed and replaced by the Criminal Procedure Act 2004. Those are not amendments to the by‑laws themselves, but affect how references in by‑law 18 are interpreted. No other amendment history is provided.

The source text of the by‑laws contains no reference to any litigation, court decisions, or interpretative rulings. As a minor local by‑law with low penalties, reported cases are likely rare. The by‑laws themselves do not create a private right of action; enforcement is through police prosecution. Any litigation would be in the Magistrates Court and is unlikely to be widely reported. The defence of custom under by‑law 20 could give rise to disputes about what constitutes an excused custom, but no such cases appear in the text. The interaction with the Racial Discrimination Act 1975 might be the most likely source of challenge, but no such challenge is recorded in the source. Because the source is only the by‑laws, and not a judicial database, we cannot assert any litigation history. The only formal event is the 2004 amendment, which was legislative, not judicial. The lack of recorded litigation may indicate that the by‑laws are enforced largely through informal means (warnings, exclusion) rather than formal prosecution in court.

Several traps exist for the unwary. First, permission to enter can be revoked at any time without reason, and there is no right to a hearing or appeal under the by‑laws (by‑law 4(c)). A visitor who arrives with written permission may later find it has been revoked orally by any Council member acting under by‑law 4(f). Reliance on prior permission is risky. Second, the Council can act through any of its members to grant or revoke permissions and to order persons to leave (by‑law 4(f)). There is no requirement for a quorum or formal resolution. One councillor acting alone can bind the Council. Third, the government employee exemption (by‑law 4(e)) applies only when entering “in connection with their duties”. Off‑duty employees or employees entering for personal reasons do not have deemed permission. Fourth, the defence of acting under custom (by‑law 20) requires showing not only that the defendant was acting under a custom, but also that the custom “excuses” the act. The by‑laws do not define “custom” or “excused”; the court must decide. This creates uncertainty: a person who honestly believes their conduct is customary may still be convicted if the court finds the custom does not excuse the particular breach. Fifth, Council members face automatic removal from office if charged with a liquor offence under by‑law 8, even before trial (by‑law 21). The charge alone triggers the deeming provision, with restoration only if the charge is withdrawn or dismissed. This creates a strong disincentive to report or self‑police liquor matters and could be weaponised. Sixth, police can detain a vehicle for up to 14 days solely on reasonable suspicion that liquor or a deleterious substance is in it, even if no one is charged (by‑law 17(e)). The owner may lose use of the vehicle without compensation, and the by‑laws provide no mechanism for early release or appeal. Seventh, the maximum fine is $100, but the compensation order of up to $250 is not a fine; on top of the $100 fine and costs, an offender could face total outlay of several hundred dollars, but still trivial compared to damage. Eighth, by‑law 7 (homes) creates an offence for refusing to leave a house when told by the principal occupant or the person in charge. This applies even to members of the community. A guest who refuses an eviction order commits an offence, with no requirement of reasonableness or notice. Ninth, by‑law 12(c)(iii) requires a driver of a community‑owned or leased vehicle to hold “a current valid motor driver’s licence of a class appropriate to the vehicle”. This is not a general driving requirement on community land; it only applies to community vehicles. Privately owned vehicles are not covered by that subsection, though they remain subject to by‑law 12(a) and (b) and State licensing laws. Tenth, the definition of “community” includes membership of the Association, which is not publicly documented in the by‑laws. A person may believe they are a member when the Council disagrees, and that person could be trespassing while thinking they have an automatic right to be present.

For non‑Aboriginal visitors: Obtain written permission from the Council before arriving, specifying any conditions. If permission is oral, seek written confirmation if possible. Keep a copy of the permission and any conditions. Comply strictly with all conditions. If asked to leave by a Council member, do so as soon as reasonably possible, even if you believe the order is unfair. Never bring, possess, or consume alcohol without express Council permission. Do not bring glue, petrol, or volatile substances. Observe all signs restricting entry to certain areas. Follow traffic signs and drive safely. If you are a government employee, ensure you are only on community land in the actual course of your duties; record the purpose of entry. If your entry is for any other reason (e.g., to visit friends), obtain permission like any other visitor.

For members of the community: Be aware that you need Council permission to bring or consume alcohol on community land. Do not assume that custom allows it; obtain explicit permission. Do not damage property, cause disturbance, fight, or use offensive language. Do not use or discharge any firearm or bow and arrow without Council approval. If you drive a community‑owned vehicle, ensure you have the Council’s permission, a valid appropriate licence, and are not under the influence. If you are a council member, be particularly cautious about any involvement with alcohol; even a charge can affect your position. Comply with any order to leave a house issued by the occupant. Respect customary meetings and Council meetings; do not interrupt. If you are charged, the defence of custom is available, but seek legal advice on whether the custom truly excuses the conduct.

For police officers: Before exercising powers, ensure you have reasonable grounds for suspicion or belief. Document the grounds. For vehicle searches under by‑law 17(d), record the basis for suspecting liquor or deleterious substances are present. For vehicle seizure under by‑law 17(e), consider whether 14 days is necessary to prevent repetition; consider lesser alternatives. When removing a person, assess whether injury or damage is likely if left at large. Commence any prosecution within six months of the offence. Use the correct procedure under the Criminal Procedure Act 2004 (complaint and summons). If seizing property, be prepared to account for it at court for potential forfeiture orders. For Council members charged with a liquor offence, note the mandatory deeming provision, but do not act on it unless confirmed by the Council or the Association’s rules.

For third parties supplying goods: Do not sell or supply glue, petrol, or volatile substances on community land if you have reasonable grounds to suspect the buyer intends to inhale them. If in doubt, refuse the sale. Document the basis for any refusal.