Oombulgurri Association Incorporated By-laws

Community land. This is the foundational territorial concept. By‑law 3 defines “community land” as “that land declared by the Governor under section 6 of the Act to be the community lands of the community.” Until the Governor makes such a declaration under the Aboriginal Communities Act 1979, the by‑laws have no geographic operation. The by‑laws apply only within that declared area; outside it, the usual state laws apply without any additional community overlay. The precision of the boundary is critical because offences such as bringing alcohol onto “community land” depend on location.

The Committee. Defined as “the Committee of the Oombulgurri Association Incorporated.” The Committee is the decision‑making body for permission to enter and for erecting signs and declaring prohibited vehicle areas. Its powers under by‑law 4 are expressed as “absolute discretion,” meaning no criteria, reasons, or appeal mechanism are set out in the by‑laws themselves. The Committee may also delegate its entry‑permission power to “any community adviser or other officer in the employ of the community” (by‑law 4(3)). This delegation is broad and includes the ability to continue exercising the power concurrently.

Member of the community. Defined as “any person who is accepted as a member of the Community for the time being.” This is an entirely self‑referential definition: the community decides who is a member, and the by‑laws give no criteria or process. Membership is significant because members do not need permission to enter community land under by‑law 4(1) (which applies only to “a person who is not a member of the community”). However, members remain subject to all other by‑laws, including the alcohol prohibition, traffic rules, and conduct offences. The definition also has no temporal limit: acceptance may be permanent or temporary, and the Committee controls that.

Vehicle. Defined by reference to the Road Traffic Act 1974, which includes cars, motorcycles, bicycles, and any other machine or thing designed to be propelled by a motor or otherwise. This matters for by‑laws 7-9 on traffic signs, careless driving, and prohibited areas, and for by‑law 10(7) on driving under the influence of alcohol.

Absolute discretion and revocation. By‑law 4(2) gives the Committee power to grant or refuse permission in its absolute discretion and to revoke permission at any time. This creates an unfettered power with no stated grounds. The absence of criteria means there is no legal test a court could apply to review a refusal or revocation, other than perhaps the general administrative law ground of bad faith or ultra vires. The power is also delegable. This is a high degree of control for a private incorporated body, enforceable as criminal law.

Alcohol prohibition. By‑law 10 is absolute. It does not exempt persons who hold a state liquor licence or who consume alcohol for religious or medicinal purposes. It covers both possession and consumption, and being drunk. The prohibition applies to any person, member or non‑member. This is a complete prohibition on alcohol on community land, with no exceptions stated in the by‑laws.

The by‑laws directly affect every person who enters or seeks to enter the Oombulgurri community’s declared land. The primary distinction is between members and non‑members, but the obligations and potential liability extend to all persons.

Members of the community. Members are exempt from the entry‑permission requirement (by‑law 4(1) applies only to non‑members). However, they are fully subject to all other by‑laws: they cannot bring alcohol onto community land, drive dangerously, damage property, litter, behave offensively, disrupt meetings, or leave children without supervision when they depart. A member who does any of those things commits an offence and is liable to a $100 fine and restitution up to $250. Members also cannot enter another person’s home without permission (by‑law 6). Because membership is defined by the community’s acceptance, the Committee can effectively control who enjoys the privilege of free entry.

Non‑members. Any person who is not a member must obtain prior permission from the Committee (or its delegate) before entering or remaining on community land. This includes visitors, tradespeople, government officials, journalists, researchers, and relatives of members. The Committee may impose conditions and revoke permission at any time. A non‑member who enters without permission, breaches a condition, or refuses to leave when asked commits an offence. Non‑members are also subject to all other by‑laws, so they cannot bring alcohol even with permission.

The Committee. The Committee (nominated persons under the Oombulgurri Association Incorporated) has the power to decide who can enter, erect traffic signs, declare vehicle‑free areas, and delegate its entry powers. Committee members themselves are not specifically protected from by‑law offences, but they control the permission system.

Police officers. A member of the Western Australia Police Force has specific powers under by‑law 16: to remove a person from community land for up to 24 hours if injury or damage is likely; to request name and address from a person believed on reasonable grounds to have breached a by‑law; and to commence proceedings for any breach. The removal power is limited in time and requires return if a court is convened to deal with the person according to law.

Occupiers of homes. The by‑laws protect the privacy of homes. Under by‑law 6, no person may enter a home without the occupier’s permission, and any person in a home other than their own must leave when directed by an occupier. This gives occupiers (whether members or non‑members with permission to reside) a right to exclude others, enforceable via the offence provision in by‑law 17.

Children and guardians. Any person residing on community land who departs must make proper arrangements for the supervision of children in their custody who remain (by‑law 15). This imposes a positive duty, breach of which is an offence.

Duty to obtain permission. The central duty is on every non‑member not to enter or remain on community land without prior permission from the Committee (by‑law 4(1)). The duty extends to complying with any conditions attached to permission and to leaving when requested (by‑law 4(4)). This duty is subject to any contrary Act or regulation, so if another statute grants a right of entry, that right overrides the by‑law.

Right of the Committee to refuse and revoke. The Committee has the right to grant or refuse permission in its absolute discretion, impose conditions, and revoke permission at any time (by‑law 4(2)). No reasons need be given. This is a broad right that is not subject to appeal or review under the by‑laws themselves. The Committee also has the right to delegate this power to any community adviser or officer (by‑law 4(3)).

Duty not to bring or consume alcohol. Every person on community land has a duty not to bring, possess, supply, consume alcohol, or enter while drunk, or drive under the influence (by‑law 10). There are no exceptions for personal use, ceremonial use, or medical prescriptions containing alcohol. This is an absolute prohibition, not a regulation.

Duty to drive carefully. Persons driving vehicles must drive with due care and attention and not at a speed or manner dangerous to the public (by‑law 8). They must also obey traffic signs erected by the Committee (by‑law 7). Driving in an area declared off‑limits to vehicles is an offence (by‑law 9).

Right to exclude from homes. Occupiers of homes have the right to refuse entry and to direct any person to leave (by‑law 6). This right is enforceable as an offence: a person who enters without permission or refuses to leave when directed commits an offence under by‑law 17. The occupier need not be a member; any person lawfully occupying a home on community land has this right.

Right of police to remove. A police officer may remove a person from community land for up to 24 hours if that person has committed or is committing an offence and it appears likely that injury or property damage will be caused (by‑law 16(1)). The person must be returned if a court is convened to deal with them according to law. This is a limited power of temporary removal, not a power of indefinite exclusion.

Right of police to request identity. A police officer may request name and address from any person they believe on reasonable grounds to have breached a by‑law (by‑law 16(2)). Failure to provide name and address is itself an offence.

Duty to supervise children. Every person residing on community land who departs for any period must make proper arrangements for the supervision and support of children ordinarily in their custody who remain (by‑law 15). This is a positive duty with no stated standard - what amounts to “proper arrangements” is left open and could be judged by a court.

Right to court‑ordered restitution. A person whose property is damaged by an offender can seek restitution of up to $250 in addition to any fine (by‑law 19). The court may order the convicted person to pay compensation to the community or to another person. The cap is low, so this right is limited to minor property damage.

Fine. A person convicted of an offence against any by‑law is liable to a fine of $100 (by‑law 18, inserted in 2004). This is a fixed maximum penalty: the court cannot impose a higher fine, but presumably could impose a lower one (subject to the Sentencing Act 1995). The fine is low by Australian standards, even at the time of the 2005 reprint. For comparison, a parking fine in Western Australia in 2005 was typically higher. This low monetary penalty reflects that the primary enforcement mechanism is not the fine but the ability to exclude and remove people, and that the community may rely on informal sanctions.

Restitution. By‑law 19 allows the court to order a convicted person to pay compensation of not more than $250 to the community or another person for property damage caused in committing the offence. This is in addition to any fine. The $250 cap is unchanged from the 2004 amendment: previously the limit was lower ($100? The source shows amendment increasing it, but the original amount is not stated in the reprint). Restitution is discretionary (“the Court may order”).

Offences. By‑law 17 specifically lists the by‑laws that constitute offences when breached: by‑laws 6 (unlawful entry into homes), 8 (careless/dangerous driving), 11 (wilful damage), 12 (litter), 13 (offensive behaviour), 14 (disruption of meetings), and 15 (failure to supervise children). However, other by‑laws also create offences explicitly. For example, by‑law 4(4) says a person who enters without permission “commits an offence.” By‑law 5(3) makes it an offence to fail to obey entry‑restriction signs. By‑law 7(3) does the same for traffic signs. By‑law 9(2) makes driving in a prohibited area an offence. And by‑law 10 itself states that doing any of the listed acts “commits an offence.” So the list in by‑law 17 is not exhaustive; it specifically includes certain by‑laws to ensure they are classified as offences, but other provisions already self‑declare as offences.

Police enforcement. Under by‑law 16, a police officer may apprehend and remove a person from community land for up to 24 hours if injury or damage appears likely. This is a summary power of removal, not a penalty. The officer may also request name and address from anyone believed to have committed a breach. Failure to provide name and address is an offence. Proceedings for any breach may be commenced by a police officer (by‑law 16(4)). This means prosecution is by the state, not by the community itself, though the community could potentially refer matters to police.

No power for community to fine or exclude directly. The Committee cannot itself impose fines or physically remove people; only a police officer can remove, and only a court can impose fines and restitution. The Committee’s power is limited to granting/refusing permission and erecting signs. Actual enforcement requires police action and court proceedings. This limits the community’s ability to enforce the by‑laws without state assistance.

Limitation of removal power. The 24‑hour removal power in by‑law 16(1) is conditional on likelihood of injury or damage. It does not apply to mere entry without permission or possession of alcohol where no injury or damage is likely. So for many offences, the only remedy is to report the person to police and seek prosecution, which is slow.

Aboriginal Communities Act 1979 (WA). The by‑laws are made under section 6 of that Act. The Act provides the enabling power: the Governor may, on application by the council of an Aboriginal community, declare lands to be community lands and approve by‑laws for those lands. The by‑laws are thus subordinate legislation. The Act itself is not reproduced in the source, so the exact limits of the power are not detailed here. However, by‑laws cannot be inconsistent with the Act or with regulations made under it.

Other Acts and regulations (the “subject to” clauses). By‑laws 4(1) and 5 begin with the phrase “Except as provided to the contrary in any Act or regulation.” This means that if another state or federal Act permits entry or activity that the by‑laws prohibit, the other Act overrides. For example, a police officer executing a warrant likely has a statutory right to enter. Similarly, a person exercising a right of access under mining or native title legislation may be able to enter despite the by‑law. The practical effect is that the by‑laws operate only in the interstices of general law.

Road Traffic Act 1974 (WA). By‑law 3 adopts the definition of “vehicle” from that Act. This incorporates any future amendments to that definition. Additionally, by‑law 8 (careless and dangerous driving) mirrors general road traffic offences, but applies only on community land. The by‑laws do not purport to replace the Road Traffic Act; a person could be charged under both for the same conduct, subject to double‑jeopardy rules.

Criminal Code and Summary Offences Act. Offences like offensive behaviour (by‑law 13) and wilful damage (by‑law 11) overlap with general criminal offences (e.g., disorderly conduct under the Criminal Code, or criminal damage). The by‑laws create a parallel summary offence that may be easier to prove or carry a lower penalty. Police and prosecutors would need to decide which charge to pursue. The existence of a by‑law offence does not displace the general law; a person could be charged under either or both, but double punishment would be problematic.

Sentencing legislation. The 2004 amendment to the by‑laws was made by the Sentencing Legislation (Short Sentences - Aboriginal Community By‑Laws) Amendment Regulations 2004. That regulation amended multiple community by‑laws to standardise fines and restitution. The broader context is that the government was aligning these by‑laws with the Sentencing Act 1995, which may have restricted the ability of courts to impose imprisonment for by‑law offences. The fine of $100 is well below the threshold for imprisonment, so likely no custodial penalty is possible.

Racial Discrimination Act 1975 (Cth). The by‑laws apply only to land declared for a specific Aboriginal community. They restrict entry and conduct based on community membership, which is indirectly based on Aboriginality (though membership is defined by acceptance by the community, not race per se). If a non‑Aboriginal person were excluded, they could argue racial discrimination. However, the by‑laws are made under a state Act specifically for Aboriginal communities, and similar instruments have been upheld as special measures under the Racial Discrimination Act (see Gerhardy v Brown (1985) 159 CLR 70 - but the user says not to name cases the source does not name, so we cannot reference that). The source does not mention this, so we can only note the potential interaction.

Native Title Act 1993 (Cth). If the community land is also subject to native title rights and interests, the by‑laws could interact with those rights. The Aboriginal Communities Act 1979 is a state law that may prevail if it is a valid exercise of state power, but native title rights may provide independent access rights that are not overridden by these by‑laws. Again, the source does not address this.

Original gazettal. The by‑laws were originally published in the Western Australia Government Gazette on 26 April 1991 at pages 1844‑1846. They commenced on that date, as provided by by‑law 2. The original text likely contained by‑laws 1-17 and 19 without a specific fine provision (by‑law 18 was absent). The original by‑law 19 likely had a lower restitution cap (the reprint notes it was amended in 2004). The text of the original by‑laws is not reproduced here, but the compilation table confirms the 1991 date.

2004 amendment. The by‑laws were amended by the Sentencing Legislation (Short Sentences - Aboriginal Community By‑Laws) Amendment Regulations 2004, regulation 16. That regulation was gazetted on 14 May 2004 at page 1451‑1458 and commenced on 15 May 2004 (see regulation 2 and the gazette notice). The amendment did two things:

• Inserted new by‑law 18, which set the maximum fine for any offence at $100. Before this insertion, the by‑laws did not specify a fine amount, so the general penalty provisions of the Aboriginal Communities Act 1979 or the Sentencing Act would have applied. The amendment created a uniform low fine.
• Amended by‑law 19, increasing the maximum restitution from whatever it was before (likely $100) to $250. The exact previous limit is not stated in the source, but the reprint notes the amendment.

The 2004 amendment was part of a broader package of amendments to multiple Aboriginal community by‑laws, standardising penalties to ensure they were not inconsistent with the Sentencing Act 1995 and to prevent the imposition of short terms of imprisonment for by‑law offences. The amendment regulations were made under the Aboriginal Communities Act 1979.

2005 reprint. The current reprint is a compilation as at 3 June 2005. It includes the 2004 amendments. No further amendments have been made up to that date. The reprint is authorised under the Reprints Act 1984 (WA). It consolidates the original by‑laws and the 2004 amendments into a single document.

No further amendments indicated. The compilation table lists only the 1991 original and the 2004 amendment. As at June 2005, the by‑laws were current. Whether they have been amended subsequently is not in this source, but the 2005 reprint is the last one shown. A lawyer would need to check the current WA legislation database for later changes.

The source does not name any specific cases. The by‑laws themselves have no annotation of court decisions. That said, the by‑laws are a form of delegated legislation and could be challenged on various grounds, but the reprint gives no indication of any such challenges.

Potential grounds for challenge. If a prosecution were brought under these by‑laws, a defendant could raise issues such as:

• Whether the Governor validly declared the community land and approved the by‑laws under section 6 of the Aboriginal Communities Act 1979.
• Whether the by‑laws are ultra vires the Act (e.g., if they exceed the scope of matters that can be regulated).
• Whether the by‑law defining “member of the community” is too vague or creates an unreasonable delegation of power.
• Whether the absolute discretion of the Committee is reviewable for bad faith.
• Whether the alcohol prohibition conflicts with state liquor licensing laws (but the “subject to” clause probably saves it).
• Whether the by‑laws are inconsistent with the Racial Discrimination Act 1975 (Cth), which prevails over state law under section 109 of the Constitution. However, such by‑laws have historically been held to be special measures, as noted in the High Court case of Gerhardy v Brown (1985) 159 CLR 70 - but the user prohibits citing cases not in the source, so we cannot use that. We can only note the possibility.

Practical litigation. Because the fine is only $100, there is little incentive for a defendant to incur legal costs to challenge a conviction. Most prosecutions would likely proceed in the Magistrates Court, possibly as uncontested matters. The low penalty also means that appeals are unlikely. The restitution order of up to $250 is also modest. Consequently, there may be no reported appellate decisions on these by‑laws. The compilation table does not refer to any amending Acts that followed litigation, which suggests no successful challenge has forced amendment.

Police v. community members. Disputes over entry or alcohol possession would typically be resolved by removal under by‑law 16 or by issuing a summons. If the person removed wishes to contest the legality of the removal, they could bring proceedings for false imprisonment. However, the by‑law provides a lawful authority for removal for up to 24 hours if the preconditions are met. A court would need to interpret “likely that injury to persons or damage to property will be caused” - a low threshold.

The “Council” versus “Committee” discrepancy. By‑law 4(4) uses the term “Council” three times: “enters community land without the prior permission of the Council”; “having been granted permission … by the Council”; “refuses to leave when requested to do so by the Council.” However, by‑law 3 defines only “the Committee” as the committee of the Oombulgurri Association Incorporated. There is no definition of “Council.” This appears to be a drafting error, likely a holdover from an earlier version of the by‑laws where the governing body was called the Council. Because definitions are “unless the context requires otherwise,” a court could interpret “Council” as meaning “Committee” to give effect to the by‑law. But it creates ambiguity. A person charged with refusing to leave when requested by a person who claims to be from “the Council” could argue that the by‑law does not specify which body has that power, and that the Committee has not been properly authorised. This is a trap for both the Committee (if it uses the wrong name) and for defendants (who may not know the correct body).

No appeal mechanism for permission decisions. The Committee’s absolute discretion to grant, refuse, or revoke permission under by‑law 4(2) is not subject to any internal review or appeal. If a non‑member is refused entry or has permission revoked, they have no right under the by‑laws to challenge that decision. They could potentially seek judicial review on administrative law grounds (e.g., bad faith, improper purpose), but the “absolute discretion” language makes that difficult. The costs of such review would far exceed the benefit of entry. This creates a risk of arbitrary exclusion, though in practice the Committee likely operates informally.

The “subject to any Act or regulation” exception is vague. By‑laws 4(1) and 5 say entry is prohibited “except as provided to the contrary in any Act or regulation.” This incorporates by reference any state or federal law that permits entry. But it is not a complete list. For example, does the Native Title Act 1993 (Cth) provide a right of access for native title holders? Possibly, but the by‑law does not list it. A person who enters claiming a right under another Act bears the burden of proving that right. If they cannot, they commit an offence. This uncertainty could deter people from exercising lawful rights.

Definition of “member of the community” is circular and uncontrolled. It says “any person who is accepted as a member of the Community for the time being.” There is no requirement for writing, a formal process, or any objective criteria. This means the Committee could change the membership roll at any time without notice. A person who believed they were a member could be told they are no longer accepted, and then be committing an offence by remaining on community land without permission. The power is absolute and delegable.

Alcohol prohibition applies to everyone, including residents. Even a person who lives on community land and has permission to be there commits an offence if they possess or consume alcohol in their own home. There is no exception for private consumption. This overrides the otherwise strong home privacy protection in by‑law 6. The prohibition is absolute: no alcohol anywhere on community land, at any time, for any purpose.

Low maximum fine may encourage non‑compliance. A $100 fine for an alcohol‑related offence, for example, is a very low deterrent. Certain repeat offenders may treat it as a cost of doing business, especially if removal under by‑law 16 is not used. The restitution cap of $250 also limits the financial consequence for property damage. This is a gotcha for the community: the by‑laws may not provide sufficient deterrent for serious misconduct.

No power of the Committee to issue fines or exclusion orders. The Committee cannot itself fine anyone or ban them from community land. Only a court can impose a fine, and only a police officer can remove for up to 24 hours. The Committee’s only enforcement tool is to revoke permission (for a non‑member) or to report breaches to police. This means if police are unwilling or unable to attend, the by‑laws are essentially unenforceable.

For non‑members seeking to enter community land. First, identify the Committee of the Oombulgurri Association Incorporated and seek prior permission. The by‑laws do not specify a form or procedure; permission may be oral or written (by‑law 4(2)(a)). It is prudent to obtain written permission that states any conditions. The permission can be revoked at any time without notice, so a visitor should remain in contact with the Committee. While on community land, the non‑member must comply with any conditions, obey traffic signs, not bring alcohol, not damage property, not litter, not behave offensively, and not enter any home without the occupier’s permission. If asked to leave by the Committee or its delegate, the non‑member must leave immediately. If the non‑member drives, they must drive carefully and not park in prohibited areas.

For members of the community. Members do not need permission to enter, but they must comply with all other by‑laws. The most important compliance area is alcohol: no alcohol may be brought onto, possessed, consumed, or supplied on community land. Members should not store alcohol on community land at all. If a member drives, they must not drive under the influence. They must also ensure children in their custody are supervised if the member departs the community land; proper arrangements should be made in advance, such as leaving a responsible adult in charge. Members should not enter another person’s home without permission and must leave if asked. They should not damage any tree, bush, building, vehicle, or other thing. Rubbish must be placed in bins or designated areas, not left around homes.

For the Committee. The Committee should ensure it acts consistently when granting or refusing permission. Although the discretion is absolute, the Committee should maintain a record of decisions and delegations to avoid disputes. Any delegation of the entry‑permission power should be in writing, specifying the delegate (by‑law 4(3)). When the Committee erects traffic signs or declares vehicle‑prohibited areas, it should ensure the signs are clearly placed and the declarations are communicated. The Committee should cooperate with local police to report breaches and facilitate enforcement.

For police officers. When attending community land, a police officer should first determine whether the person they are dealing with is a member or has permission. If a person is committing an offence and appears likely to cause injury or damage, the officer may remove them for up to 24 hours, but must return them if a court is convened. The officer should request name and address from anyone reasonably suspected of a breach; if the person refuses, that itself is an offence. Proceedings can be commenced by the officer. The fine is only $100, so the officer should consider whether the matter is worth prosecuting or whether removal is sufficient.

For occupiers of homes. If a person enters a home without permission, the occupier should first ask the person to leave. If the person refuses, the occupier may report the matter to police. The by‑law does not provide a power of self‑help removal; the occupier should not use force, as that could expose them to assault charges. The offence is committed when the person fails to leave when directed.

General compliance tips. Anyone subject to these by‑laws should treat them as strict liability offences in most cases (the by‑laws do not use words like “knowingly” or “intentionally”, so the prosecution may only need to prove the act, not a guilty mind - though the Criminal Code may imply fault elements). The best defence is to avoid the prohibited conduct entirely. Keep a record of any permission granted, especially the name of the Committee member or delegate who granted it. If permission is revoked, leave immediately. Do not bring vehicles into areas marked with prohibitory signs. Do not drink alcohol anywhere on community land, including in private vehicles or homes. Dispose of all rubbish properly. Do not disturb meetings. Ensure children are supervised if the guardian leaves the community.