Ngaanyatjarra Council (Aboriginal Corporation) By-laws

Community Land means land from time to time declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of Ngaanyatjarra Council (Aboriginal Corporation). It is not a fixed area; the Governor may add or remove land by proclamation, and the by-laws automatically apply to the land as declared. The term “Community” is defined as the corporation itself, not the residents. Member of the Community means a person who is for the time being a member of the Ngaanyatjarra Council (Aboriginal Corporation). Whether a person is a member is a question of fact determined according to the customs of the corporation. This is an important concept because members are the only persons exempt from the entry permission requirement. The Committee is the Governing Committee of the Community - the body that exercises the discretionary powers to grant or refuse permission to enter, to permit liquor, and to place entry restriction signs. The Committee’s discretion under the liquor by-laws must have “regard to the welfare of the Community as the paramount consideration”, but the entry by-laws contain no such explicit welfare criterion - only the Committee’s “discretion”. Liquor is defined by reference to the Liquor Licensing Act 1988, which is the general WA licensing statute. Deleterious substance is defined as “glue or any volatile liquid containing hydrocarbons”. This is a substance‑based prohibition; it does not require a minimum quantity or a particular brand. Road is defined narrowly as the Warburton‑Giles Road and those parts of the Laverton‑Warburton Road and Giles‑Docker River Road that lie within Community Land. This definition matters because the only transit exception for liquor is for travel on that specific Road. The by-laws apply “on all Community Land” and “to all persons on Community Land”. That territorial reach is the foundation of the regulatory scheme. The by-laws also establish a hierarchy: they operate “except as provided in any Act or regulation to the contrary”. That savings clause preserves any inconsistent state or Commonwealth Act or regulation, meaning the by-laws are subordinate to other legislation - for example, the Aboriginal Communities Act itself or the Police Act 1892. The by-laws create offences but do not set a specific dollar penalty; instead, by-law 14 imports the maximum fine and compensation limit “from time to time in the Act”, ensuring the penalty amount can be updated by amending the parent Act without amending the by-laws.

The by-laws directly affect any person who enters, remains, or attempts to bring goods onto the Ngaanyatjarra community land. That includes members of the community (who are exempt from the entry permit requirement but not from the liquor or deleterious substance prohibitions), non‑member residents, visitors, travelling motorists, contractors, government employees, police, health workers, and tourists. Because the by-laws apply to “all persons on Community Land”, they also capture people who may be unaware they are on community land - for example, a driver on the Warburton‑Giles Road whose vehicle deviates onto land that has been declared community land. The Committee is directly affected: it bears the administrative burden of issuing or refusing written permissions for entry and liquor. Its decisions are discretionary, reviewable only through internal governance or possibly through judicial review if a decision is ultra vires. The police force is affected because the by-laws confer additional powers not otherwise available under general law: to enter and search without a warrant, to stop vehicles, to seize and destroy property, and to apprehend and remove persons. These powers are triggered by reasonable suspicion of a by-law contravention. The by-laws also affect businesses and individuals who sell or supply glue or volatile solvents on community land: they commit an offence if they have reasonable grounds to suspect the recipient intends to inhale or on‑sell for that purpose. This imposes a positive duty to assess the customer’s likely use and to refuse sale. The by-laws affect people travelling through the area with liquor: unless they are on the defined Road and transporting the liquor to a destination outside the community land, they commit an offence. That creates a compliance risk for any traveller who stops or takes a detour. The by-laws affect the Ngaanyatjarra Council (Aboriginal Corporation) itself: it is the applicant and beneficiary of the restrictions, but it also faces legal responsibility if the Committee’s decisions are challenged. The corporation’s membership roll becomes a legally operative fact - determining who can enter without permission. Finally, the by-laws affect the prosecution authorities: they must bring proceedings within six months of the offence and must file by way of complaint and summons under the Justices Act (subject to the Child Welfare Act for young offenders).

Duty to obtain permission before entry. Any non‑member who comes onto community land without prior written permission from the Committee commits an offence (by-law 4). This is a strict liability duty - there is no requirement that the Committee post signs or that the person know the land is community land, except as provided in other Acts or regulations. Right of the Committee to grant or refuse permission. The Committee may grant permission subject to any terms and conditions, and may revoke it at any time. That right is not limited by any criteria for entry; the by-law gives no guidance on when permission should be granted or refused. Duty to comply with entry conditions. A person who has permission but breaks a term or condition commits an offence. Duty to obey signs placed by the Committee. The Committee may place signs prohibiting entry to parts of the land, and every person must obey the inscription (by-law 5). This creates a separate offence of disobeying a sign, independent of the general entry permission requirement. Duty not to bring liquor onto community land without permission. By-law 6 creates a prohibition, and by-law 7 makes unauthorised possession, use, or supply an offence. The Committee may permit liquor in writing, subject to terms. When exercising that discretion, the Committee must have regard to “the welfare of the Community as the paramount consideration”. That is a statutory duty that may be enforceable if the Committee acts capriciously. Right to use liquor for religious or medicinal purposes. By-law 8 provides a defence: the accused must prove on the balance of probabilities that the liquor was for a sacramental or other religious observance, or was prescribed or administered by a medical practitioner, nurse, or pharmacist. The onus is on the accused. Right to transit liquor on the Road. A person travelling on the defined Road who has liquor only for transport to a destination outside community land does not commit an offence. The right is limited to the Road; any deviation terminates the defence. Duty not to possess deleterious substances for inhalation. By-law 9 makes it an offence simply to be in possession for that purpose. It does not require that inhalation actually occur. Duty on sellers/suppliers. By-law 10 prohibits sale or supply if there are reasonable grounds to suspect the recipient intends to inhale or on‑supply for inhalation. This imposes a duty of inquiry on the seller. Right of police to confiscate and search. By-law 11 gives police the right to seize liquor reasonably suspected to be liable to confiscation, to enter and search premises and vehicles using reasonable force, to stop vehicles, and to decant or dispose of liquor. Right of police to apprehend and remove. By-law 12 allows police to take proceedings and to apprehend and remove a person if it appears likely injury or damage will be caused.

The primary penalty for a breach of any by-law is a fine of not more than the maximum provided for from time to time in the Aboriginal Communities Act 1979. The by-laws themselves do not state a dollar amount; it must be looked up in the parent Act. As at the 2004 reprint, the maximum fine would be set by s. 9 of the Act (which is not reproduced in this document). By-law 14(2) also allows a court to order a convicted person to pay compensation to the community or another body for property damage caused during the offence, again capped at the Act’s maximum. The compensation order is additional to the fine. Enforcement is primarily through the police. Police are given specific powers: they may seize liquor and any receptacle containing it if they reasonably suspect it is liable to confiscation (by-law 11). They may enter and search premises or vehicles using reasonable force if they reasonably suspect liquor is kept there in contravention of the by-laws (by-law 11(2)(b)). They may stop any vehicle for the purpose of such a search. Once liquor is confiscated, police may decant or dispose of the contents if they consider that action necessary or conducive to preserving good order or preventing an offence under the by-laws or any other state law (by-law 11(2)(d)). That is a broad discretion. They may keep confiscated liquor as long as necessary in the interests of justice (by-law 11(2)(e)). For deleterious substances, they may confiscate and dispose of the substance and any container that contains or has contained it (by-law 11(2)(f)). Police may also take proceedings for a breach, and where a person has committed or is committing an offence and it appears likely that injury (including self‑injury) or property damage will be caused, they may apprehend that person and remove them from community land (by-law 12). The removal power is summary - no court order required. Proceedings are to be commenced within six months after the offence, by complaint and summons under the Justices Act 1902, subject to the Child Welfare Act 1947 for young offenders (by-law 13). The six‑month limit is a fixed limitation period; after that, the offence cannot be prosecuted. The penalty structure does not include imprisonment; it is a fines‑only regime, though failure to pay a fine could lead to enforcement under state fine recovery legislation.

The by-laws operate under the Aboriginal Communities Act 1979, which is the enabling statute. Section 6 of that Act allows the Governor to declare community lands and section 9 provides for the making of by-laws. The by-laws expressly preserve the operation of other Acts and regulations: clauses 3, 4, and 5 are each qualified by “except as provided in any Act or regulation to the contrary”. This means that if another Act (e.g., the Police Act 1892, the Criminal Code, or a Commonwealth Act) gives a person a right of entry that is inconsistent with the by-laws, that Act overrides. For example, a police officer executing a warrant under the Misuse of Drugs Act 1981 could enter community land despite the by-law. Similarly, a person exercising a right of access under the Mining Act 1978 or the Land Administration Act 1997 might not require Committee permission, depending on the terms of those Acts. The by-laws are also subject to the Child Welfare Act 1947 in relation to proceedings against young persons. The liquor definition is imported from the Liquor Licensing Act 1988, which means any substance that is “liquor” under that Act is also prohibited under these by-laws. However, the by-laws do not require a liquor licence; they require Committee permission. So a person with a valid WA liquor licence would still need Committee permission to bring liquor onto community land - unless the Liquor Licensing Act or another Act overrides. The road transit exception interacts with road traffic laws: the driver may still be subject to drink‑driving laws, but the possession offence is negated. The by-laws also interact with the Racial Discrimination Act 1975 (Cth) because they apply differently to members and non‑members, who are predominantly of different races. The by-laws are state legislation, and the Commonwealth Act may render them inoperative if they are racially discriminatory. This issue has been the subject of debate but is not resolved in the by-laws themselves. The by-laws also interact with corporation law: the Ngaanyatjarra Council is an Aboriginal corporation under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) or earlier equivalent. Governance of the Committee and membership definitions would be governed by that corporation’s rule book. Finally, the by-laws preserve the existing tort of trespass: they do not replace it but add criminal penalties.

The Ngaanyatjarra Council (Aboriginal Corporation) By-laws were originally gazetted on 28 July 1989 and commenced on that date (by-law 1). They were first made as a single instrument of six pages. The only subsequent amendment recorded in the compilation table is the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004, regulation 15, which was gazetted on 14 May 2004 and commenced on 15 May 2004. That amendment changed by-law 14 by inserting the words “from time to time” in relation to the maximum penalty and compensation amounts. The original by-law 14 had specified a fixed dollar amount, but the 2004 regulations replaced that with a reference to the maximum provided for from time to time in the Act. This means the penalty can be updated by amending the Aboriginal Communities Act 1979 without needing to amend each set of community by-laws. The same batch of amendment regulations likely amended many other community by-laws under the same Act. The by-laws were reprinted as at 3 December 2004, which is the version reproduced. No further amendments appear in the compilation table. The by-laws are therefore nearly two decades old as of the reprint date, and any subsequent amendments to the parent Act that altered the penalty maximum would automatically flow through to the by-laws without a separate gazettal. The amendment history also notes that the by-laws were made by the Governor under the Aboriginal Communities Act 1979. The parent Act itself has been amended over time, but the by-laws text has remained stable since 2004. The lack of amendment suggests either that the community corporation has not sought changes, or that the existing provisions are considered adequate. The 2004 amendment was procedural rather than substantive; it did not alter the scope of the prohibitions or police powers.

This reprint contains no reference to any litigation either challenging the validity of the by-laws or arising from their enforcement. The compilation table lists only the instrument and its amendments; it does not include case notes. As a matter of public record, the Aboriginal Communities Act 1979 and by-laws made under it have been the subject of occasional challenges under the Racial Discrimination Act 1975 (Cth). The High Court case of Western Australia v Ward (2002) 213 CLR 1 considered related native title issues, but not these by-laws specifically. The by-laws themselves have been enforced in magistrates courts for decades, but no reported appellate decisions are recorded in the source. The by-laws create strict liability offences with a reverse onus for the religious/medicinal defence (by-law 8(3)). That reverse onus could be challenged as inconsistent with the common law presumption of innocence and article 14(2) of the International Covenant on Civil and Political Rights, but no such challenge is noted. The by-laws also confer wide police powers of entry, search, and seizure without warrant. These powers could be subject to challenge under the Constitution or state law on the basis that they exceed what is reasonably necessary to achieve the purpose of the by-laws, but again no case is cited. The six-month limitation period in by-law 13 is short; any prosecutions filed after that time would be struck out. The absence of litigation history in the text means the by-laws operate largely as a deterrent and are enforced summarily without generating reported case law. Potential litigants may also be deterred by costs. The by-laws have been considered in some academic and policy literature on alcohol restrictions, but the source does not reference that.

Reverse onus on the accused in the religious/medicinal defence (by-law 8(3)). Unlike most criminal defences where the prosecution must disprove the defence beyond reasonable doubt, here the accused bears the legal burden of proving on the balance of probabilities that the liquor was for a religious observance or was prescribed by a health professional. This is a significant procedural burden and means even a genuine sacramental user could be convicted if they cannot adduce sufficient evidence. Written permission requirement. Entry and liquor permission must be in writing (by-laws 3(2), 6(4)). Verbal permission, even from a Committee member, is no defence. Anyone relying on permission must ensure they have a physical document. The Committee may revoke permission at any time, without notice. Narrow road transit exception. The exception in by-law 8(2) only applies to the Road as defined - the Warburton‑Giles Road and parts of two other roads. If a traveller leaves that road for any reason (e.g., to refuel, avoid a hazard, or take a shortcut), the exception is lost and they may be in possession of liquor illegally. The exception requires that the liquor is possessed for “the purpose only of transporting the liquor to a destination outside the Community Land”. If the driver stops and opens a bottle, even if not drinking, the purpose may change. “Member of the Community” is factually determined by custom. Whether a person is a member is not determined by the corporation’s register alone but by a question of fact according to custom. This creates uncertainty for both the member and the police when deciding who may enter without permission. Police power to decant or dispose of liquor without judicial oversight. By-law 11(2)(d) allows a police officer to decant or dispose of confiscated liquor if they think it necessary or conducive to good order. There is no requirement for a court order or an opportunity for the owner to be heard. Police power to apprehend and remove without charge. By-law 12(b) allows police to apprehend and remove a person from community land if it appears likely that injury or damage will be caused, even if that person has not yet been convicted. This is a summary removal power with no time limit specified. The by-laws apply to all persons on Community Land, including those who are unaware. A tourist or contractor who does not know the area is community land commits an offence simply by being there without written permission. Ignorance of the land status is no excuse. Committee discretion is unfettered for entry. Unlike the liquor by-law, which requires the Committee to have regard to community welfare, the entry by-law gives the Committee unlimited discretion to grant or refuse permission. A refusal is not subject to any statutory criteria and could be for any reason or no reason. The six-month limitation period is short. Proceedings must be started within six months of the offence. This gives police a narrow window to investigate and charge.

For any person who is not a member of the Ngaanyatjarra Council (Aboriginal Corporation), the first step before entering community land is to obtain written permission from the Governing Committee. That permission must be in writing and should specify any terms or conditions. It is advisable to carry the original written permission at all times while on community land. The permission is personal and may be revoked without notice, so the holder should check with the Committee periodically. If entry is for official purposes (e.g., government inspection, emergency services), the person should verify whether any other Act or regulation provides a right of entry that overrides the by-laws. If such an Act applies, the by‑law does not apply, but the person should carry evidence of the authority. For liquor, the only lawful ways to possess or use it on community land are: (a) with written permission from the Committee (which must be obtained in advance); (b) for a genuine religious or medicinal purpose (with documented proof - a copy of the religious service order, a prescription, or a written direction from a doctor, nurse, or pharmacist); or (c) while travelling on the defined Road, with the liquor sealed and clearly in transit to a destination outside community land. In the transit case, do not deviate from the Road, do not stop for extended periods, and do not open any container. For deleterious substances (glue, volatile liquid hydrocarbons), do not possess any such substance on community land if the purpose is inhalation. Even if the substance is for a legitimate use (e.g., model glue, paint thinner), it is wise to keep the original packaging and a receipt to show a non‑inhalation purpose. Do not sell or supply any glue or volatile solvent to another person on community land unless you are certain the recipient does not intend to inhale it. If in doubt, refuse the sale. If approached by police, be aware that they have broad powers to stop, search, and seize without a warrant. Comply with lawful directions; do not physically resist. If you believe your rights have been breached, note the officer’s details and seek legal advice. For the Committee, compliance means maintaining a written record of all permissions granted and revoked, and ensuring that permission documents are properly issued and signed. Committee members should ensure decisions on liquor permissions consider community welfare as the paramount factor. The Committee should also ensure that any signs placed on the land are clear and comply with by-law 5.