The Balgo Hills Aboriginal Community Incorporated By-laws 1982

Community land. This is the central spatial concept. It is land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of the Balgo Hills Aboriginal Community. The by-laws apply only within that boundary. However, by-law 3(4) carves out the “administrative area” from the entry restriction in by-law 3, creating a two-tiered regulatory geography.

The administrative area. This is that part of community land described in Department of Lands and Surveys Miscellaneous Plan No. 1111. It appears to cover the physical infrastructure of the community (such as the store, clinic, airstrip or office). The by-laws treat it differently: a non-member who has a bona fide reason and authorisation from the Administrator may be present there without the Council’s permission, and that authorisation also permits the person to pass through other parts of community land to reach the administrative area. The alcohol by-law also gives the Administrator power to permit alcohol in the administrative area, whereas on the rest of community land only the Council may give that permission.

Member of the community. Defined as any person who is accepted as a member of the community for the time being. This is not a fixed legal definition; it depends on the community’s own acceptance processes. Members are not subject to the entry restriction in by-law 3, but they remain subject to all other by-laws (including those on alcohol, fires, litter, offensive behaviour, and traffic).

The Council. The council constituted by the constitution of The Balgo Hills Aboriginal Community Incorporated. It is the primary decision-maker under the by-laws: it may give or refuse permission to enter (by-law 3), erect signs restricting entry (by-law 4), erect traffic signs (by-law 6), give permission to bring alcohol onto community land (by-law 12(2)(a)), give permission to light fires (by-law 13(1)), and set aside areas for rubbish or litter (by-law 9(2)). The Council may also revoke permissions at any time, orally or in writing.

The Administrator. The person acknowledged by the Council as the Administrator for the time being, or a delegate appointed orally or in writing. The Administrator’s powers are confined to the administrative area: authorising entry to that area, permitting alcohol there, and (by implication) managing day-to-day operations. The Administrator may also give permission by oral or written means, subject to conditions, and may revoke permission orally or in writing.

Permission. A recurring concept. The by-laws do not require any particular form for permission. By-law 3(2) expressly allows oral or written permission, with terms conditions and restrictions as the Council thinks fit, and revocation at any time. This creates substantial discretion and flexibility but also uncertainty for those seeking to rely on it.

Custom of the community. By-law 17 provides a defence to any by-law offence if the defendant was acting under, and excused by, any custom of the community. The by-laws do not define “custom” or specify how it is proved. This defence would likely require evidence from community elders or anthropological sources. It is a rare statutory recognition of customary law within a Western Australian regulatory instrument.

The by-laws primarily affect three categories of people: non-members of the community, members of the community, and those exercising official functions (police, the Council, the Administrator).

Non-members are the most directly affected group. Any non-member who wishes to enter or remain on community land must first obtain the permission of the Council. Without that permission, they commit an offence simply by being present. This applies to visitors, tradespeople, government officials, journalists, researchers, and relatives of members who are not themselves accepted as members. However, a non-member who has a bona fide reason to be in the administrative area and who is authorised by the Administrator may enter that area without the Council’s permission, and may pass through other community land to get there (by-law 3(4)). Non-members are also subject to all other by-laws when on community land: they must not bring alcohol, light fires, litter, cause disturbance, drive dangerously, or damage property.

Members of the community are not subject to the entry restriction in by-law 3. They can come and go freely on community land. But they are bound by the other by-laws: they cannot bring or possess alcohol without Council permission (by-law 12), they cannot light fires without permission except in domestic fireplaces (by-law 13), they cannot litter, cause offensive behaviour, disrupt meetings, damage property, or drive carelessly. Members are also required to obey traffic signs (by-law 6) and to leave another person’s home if directed by the occupier (by-law 5). The custom defence (by-law 17) may be particularly relevant for members when their conduct is grounded in customary practice.

The Council and Administrator are the key rights-holders and decision-makers. The Council controls entry, alcohol, fires, signs, and the setting aside of areas for rubbish and fires. The Administrator controls entry to and alcohol in the administrative area. Both can delegate their powers orally. The by-laws impose no express duties on them to act reasonably or to give reasons for decisions. The only criterion mentioned is in by-law 12(3): when deciding whether to give permission for alcohol, the welfare of the community shall be the paramount consideration. That requirement does not apply to other decisions.

Police are given specific powers by the by-laws. A police officer may apprehend and remove a person from community land for up to 24 hours where an offence has been committed and injury or damage appears likely (by-law 14(1)). The person must be returned if a court is convened to deal with them (by-law 14(2)). Police may also request the name and address of anyone reasonably believed to be in breach of by-law 3 (unlawful entry) or to have committed any by-law breach (by-law 14(3)). Police may take proceedings for by-law breaches (by-law 14(4)). These powers supplement ordinary police powers under the Criminal Code and other legislation.

Courts are affected insofar as they must adjudicate by-law offences. The maximum fine is only $100, and compensation orders are capped at $250. The defence of custom may require the court to receive evidence of customary practice.

Duty not to enter or remain without permission. By-law 3 imposes a strict duty on non-members: they must not enter or remain on community land without the prior permission of the Council. This is a prohibitory norm with criminal consequences. There is no de minimis exception. Even a brief, inadvertent entry may technically be an offence. The only exception is for a person passing through to the administrative area with the Administrator’s authorisation.

Duty to obey signs restricting entry. By-law 4 allows the Council to erect signs prohibiting entry to specific parts of community land. Anyone who disobeys a direction on such a sign commits an offence. The by-law does not require that the sign be prominently placed or that the person had actual notice; the sign operates “according to its tenor”.

Duty to leave another’s home on request. By-law 5 requires any person (including a member) who is in a home other than their own to leave if directed to do so by an occupier. This creates a straightforward ejectment power in the occupier, backed by criminal sanction.

Duty to drive safely and obey traffic signs. By-law 6 makes it an offence to disobey traffic signs. By-law 7 prohibits dangerous driving and driving without due care and attention. No speed limit is specified; dangerousness is judged by all the circumstances.

Duty not to damage property, litter, or cause disturbance. By-laws 8, 9, and 10 create broad prohibitions. Wilful damage is prohibited (by-law 8). Littering is prohibited, with a specific obligation to use bins or designated areas (by-law 9). Offensive behaviour, abusive language, fighting, or disorderly conduct that causes disturbance or annoyance to others is prohibited (by-law 10). These are not limited to public places; by-law 9(1) applies to litter inside homes and enclosures.

Duty not to disrupt meetings. By-law 11 prohibits interrupting any meeting of the Council, the community, or any customary meeting, by noise or other offensive or disorderly behaviour. This protects a range of gatherings, including traditional ones.

Duty not to bring, possess, use, or supply alcohol without permission. By-law 12 is the most comprehensive prohibition. It covers all stages of alcohol handling. Permission may be given by the Council (for non-administrative area) or the Administrator (for administrative area). The “welfare of the community” must be the paramount consideration when deciding whether to give permission (by-law 12(3)). This is a substantive duty on the decision-maker, but it is not enforceable by an individual; it is a statutory criterion.

Duty not to light fires without permission. By-law 13 prohibits lighting fires except in designated places or in domestic fireplaces. It also explicitly preserves the operation of the Bush Fires Act 1954, so a permission under the by-law does not authorise a fire that would contravene that Act.

Rights of the Council and Administrator. They have the right to grant or refuse permission on any terms, and to revoke permission at any time, orally or in writing (by-laws 3(2), 12(2)). No reasons need be given, and no appeal mechanism is provided within the by-laws. The Council also has the right to erect signs and set aside areas for rubbish and fires.

Rights of police. Police have the right to apprehend and remove a person for up to 24 hours (by-law 14(1)), to request name and address (by-law 14(3)), and to take proceedings (by-law 14(4)).

Defence of acting under custom. By-law 17 provides a right to raise customary excuse as a defence. It is a complete defence if made out. The burden of proof would be on the defendant on the balance of probabilities, as it is an excuse.

The penalty regime is intentionally modest in monetary terms. By-law 16(1) sets the maximum fine at $100. This was amended in 2004; the original 1982 penalty is not specified in the text provided, but the compilation shows the amendment raised the maximum from a lower figure. The fine applies to all by-law offences, including unlawful entry, alcohol offences, dangerous driving, damage, littering, offensive behaviour, disrupting meetings, and unauthorised fires. The low cap suggests these are treated as minor regulatory offences rather than serious crimes. However, the social consequences may be more significant for an individual removed from community land or barred from re-entry.

In addition to a fine, a court may order compensation of up to $250 for property damage caused in the course of the offence (by-law 16(2)). This is separate from any civil claim for damages and is limited to property of the community or another person. The compensation order is discretionary and cannot exceed $250.

Offences are created by individual by-laws, but by-law 15 cross-references a list: “A person who breaks or fails to comply with by-law 5, 7, 8, 9, 10, 11 or 13 commits an offence.” This appears to be a partial list, because by-laws 3, 4, 6, and 12 also contain express offence-creating language (e.g., by-law 3(3): “commits an offence”; by-law 4(2): “commits an offence”; by-law 6(2): “commits an offence”; by-law 12(4): “commits an offence”). The effect is that all by-laws in Parts 2, 3, and 4 create offences, either through their own wording or through by-law 15. There is no inconsistency; by-law 15 is simply redundant for those by-laws that already say “commits an offence”.

Enforcement is primarily by police. By-law 14(4) expressly states that a member of the police force may take proceedings for any breach of a by-law. This means private prosecutions are not excluded, but the provision suggests police are the expected prosecutor. Police also have the power to apprehend and remove a person from community land for up to 24 hours, but only where an offence has been committed and injury or damage appears likely (by-law 14(1)). This is a summary removal power without warrant; it is not a power of arrest for the offence itself, but a power to prevent imminent harm. The person must be returned to community land if a court is convened to deal with them (by-law 14(2)). Police may also request name and address from anyone reasonably suspected of being on community land in breach of by-law 3 or of having committed a by-law breach (by-law 14(3)). It is an offence to fail to comply with that request, though the by-laws do not expressly say so; the power is to request, not to demand, but failure to provide name and address may be dealt with under other police powers in the Criminal Investigation Act or similar.

The limitation period for commencing proceedings is not specified in the by-laws. The general six-month limitation for simple offences under the Criminal Code may apply, but the by-laws are silent.

The by-laws are made under the Aboriginal Communities Act 1979 (WA). That Act is the enabling legislation; it confers power on the Governor to declare community lands and on the community to make by-laws. The by-laws do not replace or override State law; they supplement it. They create additional offences that apply only on community land.

The by-laws themselves acknowledge two specific interactions. By-law 13(3) provides that nothing in by-law 13 authorises a person to light a fire in an open fireplace in contravention of the Bush Fires Act 1954. This means a person who has permission from the Council to light a fire under the by-laws may still commit an offence under the Bush Fires Act if the fire is lit during a restricted burning period or without a permit. The by-laws do not grant an exemption from that Act.

By-law 3(1) and by-law 4(2) use the phrase “except as provided to the contrary in any Act or regulations”. This reservation means if another Act or regulation (for example, a law giving a right of access to land, or a court order, or a statutory authority to enter for inspection) permits entry without the Council’s permission, that permission is not required. The by-law does not conflict with other laws but yields to them. This prevents the by-laws from obstructing police executing a warrant, emergency services personnel, or officers exercising statutory powers.

The by-laws also interact with the Road Traffic Act 1974 and related regulations. By-law 7 prohibits dangerous driving and careless driving on community land. These are distinct from but similar to offences under the Road Traffic Act. A driver could potentially be charged under both regimes, though the double jeopardy principle would likely prevent two convictions for the same conduct. The by-laws do not purport to regulate licensing, registration, or other road traffic matters; those are left to State law.

The alcohol prohibition in by-law 12 interacts with the Liquor Control Act 1988. That Act controls the sale, supply, and possession of alcohol throughout Western Australia. The by-law creates an additional layer of prohibition on community land, but does not override the Liquor Control Act. A person who brings alcohol onto community land without permission may commit an offence under both laws if the alcohol was obtained or supplied in breach of the Liquor Control Act. The paramount consideration of the welfare of the community (by-law 12(3)) is unique to the by-law and has no parallel in general liquor law.

The custom defence in by-law 17 interacts with the general criminal law. It is not available for offences under other Acts, only for by-law offences. It may also interact with native title rights and interests, though the by-laws make no mention of the Native Title Act 1993 (Cth). The existence of a custom defence suggests an intention to accommodate traditional practices, but it does not create a positive right to engage in custom; it only excuses what would otherwise be an offence.

The by-laws do not mention the Criminal Code, the Sentencing Act, or the Fines, Penalties and Infringement Notices Enforcement Act. General sentencing principles apply, but the maximum fine of $100 limits the range of sanctions. The 2004 amendment (Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004) likely increased the penalty; the compilation shows the amendment was made by that regulation. This suggests the original penalty was even lower, and the 2004 amendment sought to bring it to a more effective level.

The Balgo Hills Aboriginal Community Incorporated By-laws 1982 were gazetted on 15 October 1982 and commenced on that date. They have been amended once. The amendment was made by the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004, regulation 17, which was gazetted on 14 May 2004 and commenced on 15 May 2004. The amendment affected by-law 16 (Penalties). The original by-law 16 earlier set out penalties; the amendment replaced the penalty provision with the current version. The compilation table indicates that the 2004 amendment increased the maximum fine from a prior amount, but the text of the original by-law is not provided in the source. The current by-law 16(1) sets a maximum fine of $100. By-law 16(2) on compensation orders (up to $250) appears to have been part of the original by-law; the amendment note does not specify changes to that subsection.

No other amendments have been made. The by-laws have been reprinted once, as at 29 October 2004, incorporating the 2004 amendment. The reprint is the version provided. The by-laws are now over 40 years old. They have not been updated to reflect changes in the Aboriginal Communities Act 1979 (if any) or to address modern issues such as digital communications, licensing of commercial activities, or interaction with the Human Rights Act (WA does not have one). The lack of amendment may indicate that the community has found the by-laws adequate, or that enforcement has been minimal, or that the process for amendment (which would require further gazettal) has not been pursued.

The enabling Act, the Aboriginal Communities Act 1979, has itself been amended over the years, but those amendments do not directly change the by-laws unless the by-laws are repealed or amended by subsequent regulation. The by-laws remain in force as delegated legislation unless repealed by the Governor or replaced by new by-laws.

The by-laws do not mention any court cases, and there are no reported decisions in higher courts that specifically interpret these Balgo Hills by-laws. Given the low penalty and the limited geographic scope, prosecutions are likely heard in the Magistrates Court and may not be published in law reports. The by-laws have been in force since 1982, so it is possible that prosecutions have occurred, but the source text gives no indication.

The defence of acting under custom (by-law 17) could potentially generate litigation if it is raised and disputed. In other Australian jurisdictions, the defence of customary law in community by-laws has been considered in occasional decisions, but there is no known appellate decision on this specific by-law. The lack of reported cases may mean that the by-laws are enforced primarily through informal means (such as removal by police under by-law 14) rather than through court proceedings, or that breaches are dealt with under other laws.

The amendment in 2004 to increase the maximum fine suggests that the original penalty was considered too low to be effective. It does not necessarily indicate a sudden increase in litigation; it may reflect a policy decision to bring penalties into line with contemporary values.

The interaction between the by-laws and the general law has not been tested in a reported decision. For example, the question of whether a court can order a person to remain off community land as a condition of bail or a restraining order has not been litigated in the context of these by-laws. Similarly, the validity of the by-laws themselves under the Aboriginal Communities Act 1979 has not been challenged.

Any future litigation would likely involve the following issues: (a) the scope of “community land” and whether the administrative area is properly defined; (b) the meaning of “bona fide reason” in by-law 3(4); (c) the requirements for a valid permission, especially oral permissions; (d) the availability of the custom defence and the standard of proof; (e) whether police removal under by-law 14(1) is lawful if no offence has actually been committed; and (f) whether the by-laws breach any overriding federal law, such as the Racial Discrimination Act 1975 (Cth), if they restrict entry based on membership in a particular racial group. However, the source text provides no evidence of such challenges.

The oral permission trap. Both the Council and the Administrator may give permission orally, and may revoke it orally at any time. A person who relies on an oral permission that is later revoked without their knowledge may commit an offence by continuing to remain on community land. There is no requirement that the revocation be communicated personally. The person also cannot easily prove the terms of an oral permission if challenged. Written permissions are safer but not required.

The deeming provision for alcohol transit. By-law 12(5) deems that a person with permission from the Administrator to bring alcohol onto the administrative area also has permission to bring that alcohol across other community land to reach the administrative area. However, this deemed permission is limited to the alcohol. It does not deem the person to have permission to be on that other community land for any other purpose. The person still needs either Council permission under by-law 3 or the Administrator’s authorisation under by-law 3(4) to be on that other land. This mismatch could catch people who think the alcohol permission covers everything.

The by-law 15 trap. By-law 15 lists the by-laws that create offences: by-laws 5, 7, 8, 9, 10, 11, and 13. But by-laws 3, 4, 6, and 12 also expressly say that a breach constitutes an offence. A person reading by-law 15 alone might mistakenly think that breaches of by-laws 3, 4, 6, and 12 are not offences. They are. By-law 15 is a non-exhaustive list, not a limitation.

The 24-hour removal limit. Police can remove a person from community land for up to 24 hours under by-law 14(1) without charge or court order, if an offence has been committed and injury or damage appears likely. This is a significant power that bypasses normal arrest procedures. The person removed cannot be kept off land for longer than 24 hours, but they can be removed again if a further incident occurs. There is no right to a hearing before removal.

No appeal from Council decisions. The by-laws do not provide any right to review or appeal a decision of the Council to refuse permission, revoke permission, or impose conditions. A person denied entry has no recourse within the by-laws. The only avenue would be judicial review of the Council’s decision as an exercise of public power, but the by-laws do not specify any grounds for review.

The custom defence is not self-defining. By-law 17 requires showing that the defendant was “acting under, and excused by, any custom of the community”. What constitutes a custom? The by-laws give no guidance. It must be a custom of “the community” (the Balgo Hills Aboriginal Community). Customs may vary between communities, be unwritten, evolve over time, or be contested. A court will need evidence, likely from elders or anthropologists. The defence may create uncertainty for both police and defendants about what conduct is excusable.

The administrative area boundary is defined by an old survey plan. By-law 2 defines the administrative area by reference to Department of Lands and Surveys Miscellaneous Plan No. 1111. That plan was originally held by the Department, but the note in the reprint says such plans are now held by the Western Australian Land Information Authority. The plan may be difficult to obtain or may not reflect current physical boundaries. Anyone seeking to rely on the administrative area exception must locate and interpret that plan.

For a non-member who wants to visit or work on community land, the first step is to obtain the prior permission of the Council. Permission should be sought in writing and in advance. The request should specify the purpose of the visit, the duration, and any activities proposed. The Council may impose conditions, such as a time limit, a requirement to be accompanied by a community member, or restrictions on alcohol. The visitor must ensure they comply with all conditions. If permission is revoked orally, the visitor must leave immediately. It is prudent to obtain a written record of the permission and any conditions, even though oral permission is valid.

If the visitor’s purpose is limited to the administrative area (for example, using the store, clinic, or airstrip), they may instead seek authorisation from the Administrator. The Administrator can give permission for entry to the administrative area, and that permission covers passing through other community land to get there. However, the visitor must have a bona fide reason; they should be prepared to explain that reason if asked. The Administrator’s authorisation does not permit straying beyond the route to and from the administrative area.

Alcohol must not be brought onto community land without permission. If the Council grants permission, it may be subject to conditions (such as limiting the type or quantity of alcohol, or restricting consumption to a particular venue). The condition must be observed. For the administrative area, the Administrator can give permission. If the Administrator gives permission for alcohol in the administrative area, that permission is deemed to extend to transporting the alcohol across other community land to the administrative area. But the person still needs to be authorised to be on that other land (either by the Administrator under by-law 3(4) or by the Council under by-law 3(1)).

Fire lighting is prohibited except in places set aside by the Council or in a domestic fireplace in a home. Before lighting any fire outside a home, permission from the Council must be obtained. Even with permission, compliance with the Bush Fires Act 1954 is required.

Traffic signs erected by the Council must be obeyed. This includes speed signs, stop signs, and any other directions. The by-laws do not specify a maximum speed; drivers must drive at a speed and in a manner that is not dangerous having regard to all the circumstances, and must drive with due care and attention.

For members of the community, compliance is simpler for entry but still required for all other by-laws. Members may enter and remain without permission, but they must not bring alcohol onto community land without Council permission (unless in the administrative area with Administrator permission). They must not light fires without permission except in domestic fireplaces, must not litter, must not cause disturbance or use abusive language, must not damage property, must not disrupt meetings, and must obey traffic signs. They must also leave another person’s home if asked.

Any person on community land should keep in mind that the custom defence may excuse conduct that would otherwise be an offence, but it is not a licence to ignore the by-laws. A person who believes their conduct is justified by custom should be prepared to provide evidence of that custom if challenged.

Police may request name and address from anyone reasonably suspected of being on community land in breach of by-law 3 or of having committed a by-law breach. Providing this information is advisable; failure may lead to other legal consequences.

Overall, the safest approach is to treat community land as private property with strict access controls, seek and document all necessary permissions, and adhere to all conditions. The low maximum fine does not mean the rules are unimportant; breach can also lead to removal from the land and loss of community goodwill.