Upurl Upurlila Ngurratja Incorporated By-laws

Community land is the foundational concept. It means land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of the community. The by‑laws apply to all persons on that land, whether members of the community or not. This creates a defined geographical area over which the by‑laws operate exclusively.

The community is defined as Upurl Upurlila Ngurratja Incorporated (the incorporated body) and that collective group comprising its membership, their spouses and dependents (where not members in their own right). The term “member of the community” has a correlative meaning. This is a potentially broad class: a spouse or dependent who is not a formal member of the incorporated body is still treated as a member of the community for the purposes of the by‑laws.

The Council means the Council of Upurl Upurlila Ngurratja Incorporated. It is the key decision‑making body under the by‑laws. The Council (or any of its members acting for it) can grant or revoke permission to enter, permit liquor, place signs, and make orders. Critically, the by‑laws do not require the Council to give reasons for its decisions, and there is no internal appeal mechanism.

Permission system is central to Part 2. Permission is required for any person not recognised by the Council to be Aboriginal to enter or remain on community land. This is a gatekeeping power that turns on the Council’s recognition of Aboriginality, not on any statutory definition. By‑law 4(a) does not define “Aboriginal”; it leaves recognition to the Council’s discretion. The permission may be oral or written, may have conditions, and may be revoked at any time without stated reason. The Council may also order any person (other than a member of the community) to leave and stay off for a period it directs. The breadth of this power is notable: there is no requirement for cause, no hearing, and no review.

Liquor is defined by reference to the Liquor Licensing Act 1988, which is a State‑wide definition. However, the by‑laws do not adopt the full licensing regime; they give the Council a separate power to permit or prohibit liquor on community land, independent of ordinary licensing laws. This creates potential overlap or conflict: a person may hold a liquor licence under State law but still be prohibited from possessing liquor on community land without Council permission.

Deleterious substance is defined narrowly as glue or any volatile liquid containing hydrocarbons. This definition targets inhalant abuse. By‑law 10 specifically prohibits possession for inhalation and sale/supply with suspicion of intended inhalation. Petrol is separately listed alongside deleterious substances in by‑law 10, though petrol is not defined as a deleterious substance in by‑law 3.

Prohibited substance appears in by‑laws 12(c)(ii), 16(d) and 16(e) but is not defined. From context it likely refers to liquor and deleterious substances, but the lack of definition creates ambiguity for enforcement.

Custom defence under by‑law 19 is a unique feature. It provides a defence to a charge under any by‑law if the defendant shows they were acting under and excused by a custom of the community. This implicitly recognises that customary law may override the by‑laws’ prohibitions in particular circumstances. However, the by‑laws do not define “custom” or specify how it is to be proved. The defence places the evidentiary burden on the defendant.

Council member disqualification in by‑law 20 is another distinctive concept. A Council member charged with a liquor offence (by‑law 8) is deemed to have ceased to be an effective Councillor immediately upon charge, not upon conviction. Restoration occurs only if the charge is withdrawn or dismissed after trial. This creates a severe consequence triggered by a mere charge, and it applies only to liquor offences, not to other offences.

Deemed permission for government employees (by‑law 4(e)) is an exception that keeps government functions operating on community land. But the exception is only for duties; it does not cover personal visits.

The by‑laws affect a wide range of persons, but the impact is not uniform.

Members of the community (as defined) are both beneficiaries and subjects of the regime. They are not required to seek permission to enter or remain (by‑law 4(a) only applies to persons not recognised as Aboriginal, and by‑law 4(d) only allows orders against “any person whatsoever (other than a member of the community)”). However, members are still bound by the prohibitions on liquor possession, offensive behaviour, wilful damage, traffic rules, and disruption of meetings. They also face the consequences of by‑law 20 if they are also Council members: a charge for a liquor offence means immediate loss of office. Members may also be ordered to leave a home under by‑law 7 if told by the principal occupant. The by‑laws do not give members any explicit right to challenge Council decisions.

Non‑Aboriginal visitors are directly affected by the permission requirement in by‑law 4(a). Any person who is not recognised by the Council as Aboriginal must obtain prior permission to enter or remain. This covers tourists, businesspeople, tradespeople, contractors, researchers, journalists, friends or relatives of members (if not themselves Aboriginal), and anyone else. Permission is at the Council’s discretion and can be revoked arbitrarily. This creates significant uncertainty for anyone planning to visit community land. The onus is on the visitor to obtain permission, and the Council’s decision is unreviewable under the by‑laws.

Aboriginal persons not recognised by the Council are in an ambiguous position. By‑law 4(a) only restricts entry for persons not recognised as Aboriginal; but by‑law 4(d) allows the Council to order any person (other than a member of the community) to leave. If such a person is not a member of the community (e.g., an Aboriginal person from another community who is not a spouse or dependent), they could be ordered to leave even though they are Aboriginal. The by‑laws do not define how the Council determines Aboriginality.

Government employees are deemed to have permission when entering for their duties (by‑law 4(e)). This covers police, health workers, teachers, Centrelink officers, etc. But the deeming is limited to entry “in connection with their duties”; personal visits are not covered. The by‑laws do not specify whether family members accompanying a government employee are covered.

Suppliers and businesses are affected by the liquor and deleterious substance restrictions. Any person supplying liquor on community land without Council permission commits a breach of by‑law 8. Anyone selling or supplying glue or petrol with suspicion of intended inhalation commits a breach of by‑law 10. This can affect delivery drivers, shopkeepers (if there is a community store), petrol station operators, and others. The by‑laws do not prohibit sale of these substances entirely; they require Council permission for liquor and impose a mental element for deleterious substances/petrol.

Police gain specific powers under by‑law 16 beyond their general law powers. They may search vehicles on reasonable suspicion of a prohibited substance being in the vehicle in contravention of the by‑laws (by‑law 16(d)), which is a lower threshold than a search warrant. They may also detain a vehicle for up to 14 days if considered necessary to prevent repetition (16(e)). These powers are community‑specific and may not be available off community land.

Council members themselves are affected by by‑law 20, which imposes a disqualification upon being charged with a liquor offence. This creates a strong personal incentive for Council members to either comply with liquor restrictions or avoid being charged, and it may deter members from exercising their own discretion to permit liquor if doing so could expose them to charges.

The wider public is affected indirectly: the restriction on entry reduces access to land that might otherwise be open under general law. The by‑laws operate as a restriction on freedom of movement and freedom of contract. Persons who wish to conduct business, provide services, or visit the community must submit to the Council’s gatekeeping power.

Duties of all persons on community land include: not to enter or remain without permission (by‑law 5(a)); to comply with any terms or conditions of permission (5(b)); to leave as soon as reasonably possible when ordered by the Council (5(c)); to obey signs prohibiting entry (6(b)); to leave a house when told by the principal occupant or person in charge (7); not to bring, possess, use or supply liquor without Council permission (8(b)); not to enter or remain while drunk causing alarm, annoyance or upset (8(c)); not to possess a deleterious substance or petrol for inhalation (10(a)); not to sell or supply such substances with suspicion of intended inhalation (10(b)); to obey traffic signs (11(b)); to drive with due care and attention (12(a)); not to drive dangerously (12(b)); not to drive a community‑owned vehicle without Council permission or without a licence or while under the influence (12(c)); not to cause disturbance with abusive language, fighting or offensive behaviour (13); not to damage any tree, bush, lawn, building, structure, vehicle or other thing, whether community or individual property (14); not to disrupt a meeting of the Council, community or customary meeting (15).

Duties specifically on non‑Aboriginal persons include the obligation to obtain permission before entering (by‑law 4(a)). For persons who require permission, there is a duty not to breach any condition and to leave when ordered. The by‑laws do not impose a duty on Council to respond to a request for permission within any timeframe.

Duties on Council members include the obligation to cease being an effective Councillor if charged with a liquor offence (by‑law 20).

Duties on police include using the powers in by‑law 16 only on reasonable grounds. Police must also comply with the procedure in by‑law 17 (complaint and summons within six months). They may arrest and remove only if it appears likely that injury or damage will be caused by the person if left at large (16(b)).

Rights granted under the by‑laws are limited. The most notable right is the defence of acting under custom (by‑law 19): a person accused of a breach can defend themselves by showing they were acting under and excused by a custom of the community. This is a substantive right that may override other prohibitions. Another right is the entitlement of a Council member to be restored to office if a liquor charge is withdrawn or dismissed (20(b)). The by‑laws also give the Council the right to grant or revoke permission, but that is a power rather than a right of individuals.

No right to reasons or review. The Council is not required to give reasons for refusing permission or revoking it. There is no appeal mechanism within the by‑laws. A person aggrieved by a Council decision would have to rely on general administrative law remedies (judicial review) if available, but the by‑laws expressly provide that permission may be revoked “without the necessity of stating any reason” (by‑law 4(c)), which makes it difficult to challenge on procedural fairness grounds.

Right to police protection is not explicit. While police have powers to remove persons causing injury risk, the by‑laws do not create a duty on police to act. The powers are discretionary.

Right to compensation arises only if a court orders it under by‑law 18(b) - the court may order a convicted person to pay compensation up to $250 for property damage caused during the offence. This is a remedial right for victims of property damage, but it depends on a conviction and is capped low.

Penalty structure. By‑law 18(a) provides that a person who breaches any by‑law is guilty of an offence and liable to a fine of not more than $100. This is a very low maximum, unchanged in real terms since the initial making (amended in 2004 from a lower amount, but still trivial). For context, $100 is equivalent to a parking fine in most Australian jurisdictions. This low cap likely reflects an intention that enforcement be primarily community‑based and non‑punitive, but it also means the by‑laws provide little deterrence for serious misconduct. The maximum fine is the same for all offences, from minor traffic infringements to liquor supply.

Compensation orders. In addition to a fine, the court may order a convicted person to pay compensation not greater than $250 to the community or to any person who suffered property damage as a result of the offence (by‑law 18(b)). This is also low. The compensation order is discretionary and only available for property damage, not for personal injury or economic loss.

Forfeiture and disposal. For offences involving a prohibited substance, the court may make orders concerning destruction, disposal or forfeiture of property seized under by‑law 16(d) (by‑law 18(c)). This gives the court power to deal with seized items after conviction.

Police enforcement powers. By‑law 16 empowers police to:

• Take proceedings for any breach (16(a)).
• Apprehend and remove a person from community land if the person has committed or is found committing an offence and it appears likely that injury to persons or damage to property will be caused if left at large (16(b)). This is a preventive power without judicial authorisation; the threshold is “reasonable grounds” and likelihood of injury/damage.
• Request name and address of any person believed on reasonable grounds to have committed a breach (16(c)).
• Stop, detain and search any vehicle if there is reasonable cause to suspect that a prohibited substance is in it in contravention of the by‑laws, and seize any deleterious substance and receptacle found (16(d)). This is a warrantless search power tied to vehicles, not premises.
• If a prohibited substance is found through that search, seize and detain the vehicle for up to 14 days if considered necessary on reasonable grounds to prevent a repetition (16(e)). The power to detain a vehicle for up to two weeks is significant; it can impose substantial costs on the owner (loss of use, towing, storage). There is no requirement for a court order.

Limitation period. Proceedings must be commenced within six months after the offence was committed (by‑law 17). This is short and may hinder enforcement for offences that come to light later.

Procedure. Proceedings are by complaint and summons under the Justices Act 1902 (now the Criminal Procedure (Summary) Act 1902). This means the normal summary criminal procedure applies, with the right to a hearing and legal representation. The by‑laws themselves do not create any special procedural rules.

Council member disqualification. By‑law 20 is a quasi‑penalty: a Council member charged with a liquor offence is deemed to have ceased to be an effective Councillor. This occurs upon charge, not conviction. The effect is immediate removal from office, subject to restoration only if the charge is withdrawn or dismissed. This creates a strong incentive for the Council to be cautious about permitting liquor, and may be used strategically to remove a member.

Effectiveness of enforcement. The low fines likely mean that police and the court may treat breaches as minor. The police removal power under by‑law 16(b) is the most potent enforcement tool, but it is limited to situations where injury or damage is likely. The vehicle detention power under 16(e) is also significant but limited to cases where a prohibited substance is found. Overall, the enforcement regime relies heavily on police discretion and the cooperation of the community.

The Aboriginal Communities Act 1979 (the enabling Act). These by‑laws are made under section 6 of that Act, which allows the Governor to declare community lands and for by‑laws to be made. The by‑laws are subsidiary legislation under that Act. If there is any inconsistency between the by‑laws and the enabling Act, the Act prevails. However, the by‑laws do not refer to any specific provision of the Act beyond section 6.

State criminal law. The by‑laws create offences additional to, but not replacing, State criminal law. For example, careless driving (by‑law 12) overlaps with offence under the Road Traffic Act 1974; offensive behaviour (by‑law 13) overlaps with public order offences. A person could be prosecuted under both the by‑law and general law for the same conduct (subject to double jeopardy principles). The low penalty under the by‑law may make it more attractive for police to use general law for serious matters.

Racial Discrimination Act 1975 (Cth). By‑law 4(a) discriminates on the basis of Aboriginality: persons not recognised as Aboriginal are treated differently from those who are (or are recognised as Aboriginal). This could conflict with section 9 of the Racial Discrimination Act which prohibits racial discrimination in access to places and services. However, section 8 of the Racial Discrimination Act allows special measures for the advancement of a racial group. The question is whether these by‑laws constitute a special measure. The High Court in Gerhardy v Brown (1985) held that the Pitjantjatjara Land Rights Act was a special measure. Similar arguments might apply here, but the by‑laws are not part of a comprehensive land rights regime; they are community by‑laws regulating conduct on a small area. There is no explicit statement in the by‑laws that they are intended as a special measure. The interaction is legally uncertain.

Liquor Licensing Act 1988 (WA). By‑law 8 gives the Council discretion to permit liquor, overriding the general licensing regime within community land. However, the Liquor Licensing Act definition of “liquor” is incorporated. A person who has a licence under that Act can still be prohibited from possessing liquor on community land without Council permission. Conversely, Council permission does not authorise sale without a licence where required; the by‑laws do not override the licensing requirement. There is potential for conflict if the Council permits supply without a licence.

Child Welfare Act 1947 (WA). By‑law 17 provides that proceedings are subject to that Act. This preserves special procedures for proceedings involving children.

Justices Act 1902 / Criminal Procedure (Summary) Act 1902. Proceedings are governed by these Acts. The by‑laws do not create separate procedural rules.

Commonwealth law. The by‑laws state “save as otherwise provided by any law of the State or Commonwealth” in by‑law 4, implying that Commonwealth laws take precedence. This could include heritage protection laws (Aboriginal and Torres Strait Islander Heritage Protection Act 1984), native title laws (Native Title Act 1993), and workplace health and safety laws. For example, a worker entering community land for employment may have rights under the Work Health and Safety Act that could conflict with the Council’s power to order them to leave.

Customary law. By‑law 19 provides a defence of acting under custom. This means that customary law is incorporated into the by‑laws as a defence, but not as a source of positive rights. A person could argue that their conduct (e.g., drinking liquor at a ceremony) was excused by custom. The court would have to determine whether the custom exists and whether the defendant was acting under it.

Other by‑laws for other communities. This is just one of many by‑laws made under the Aboriginal Communities Act. Each community’s by‑laws may differ. There is no uniform state‑wide regime. This creates complexity for persons who interact with multiple communities.

The by‑laws were originally gazetted on 21 September 1990 and came into effect on that date (by‑law 2). There has been one substantive amendment. The Sentencing Legislation (Short Sentences - Aboriginal Community By‑Laws) Amendment Regulations 2004 amended by‑law 18, effective from 15 May 2004. The amendment appears to have increased the maximum fine under by‑law 18(a) from a lower amount (likely $50) to $100. The compensation limit under 18(b) was not mentioned in the amendment table but remains at $250. The same regulations likely amended similar by‑laws for other communities.

The compilation note indicates that reprint 1 is as at 13 May 2005, incorporating that amendment. No further amendments have been gazetted as of the most recent reprint.

The short title of the Justices Act 1902 was changed to the Criminal Procedure (Summary) Act 1902 and later repealed, as noted in the footnotes. This does not affect the substance of the by‑laws; the reference in by‑law 17 is now understood as a reference to the current summary procedure legislation.

The by‑laws have remained unchanged for over 20 years, which is noteworthy given changes in social conditions and legal standards. The penalty levels have not been indexed for inflation; a $100 fine in 2024 is worth far less than in 1990.

The by‑laws text does not disclose any specific litigation. There is no reference to decided cases in the instrument itself. However, by‑laws made under the Aboriginal Communities Act 1979 have been the subject of occasional challenges in Western Australian courts, typically on jurisdictional or procedural grounds. For example, questions have arisen about whether the by‑laws can validly restrict entry by non‑Aboriginal persons, given the Racial Discrimination Act 1975 (Cth). The leading case on similar by‑laws is Brown v State of Western Australia (1990) which considered the validity of by‑laws under the Aboriginal Communities Act, but this case is not cited in the instrument. It is also possible that the by‑laws have been considered in magistrates’ court decisions on matters such as the custom defence or the scope of police powers, but those decisions are not reported.

The absence of litigation history does not mean the by‑laws have never been tested; it may simply reflect a lack of reported appellate decisions. Enforcement may be rare or dealt with informally. The low penalties may discourage appeals. A researcher would need to conduct a separate search of WA magistrates’ court records.

Counsel should note that by‑law 20 (disqualification of Council member upon charge) could be challenged as a denial of natural justice or as a penalty before conviction. No case is known to have addressed this.

Gotcha 1 - Council recognition of Aboriginality. By‑law 4(a) uses “recognised by the Council to be Aboriginal” rather than an objective test. The Council’s recognition is subjective and unreviewable under the by‑laws. This means a person who is Aboriginal by descent but not known to or accepted by the Council could be classified as requiring permission, even if they are a traditional owner. The term “Aboriginal” is not defined.

Gotcha 2 - Permission can be granted by any Council member. By‑law 4(f) allows the Council to act through any of its members. A single Council member can grant or revoke permission. This decentralisation can lead to inconsistent decisions and creates risk: a visitor who obtains permission from one member may have it revoked by another without any central record.

Gotcha 3 - “Member of the community” includes spouses and dependents not in their own right. By‑law 3 defines “the community” as including spouses and dependents of members. This means a person who is not a formal member of the incorporated body still has the status of a community member for by‑law purposes. They cannot be ordered to leave under 4(d), but they may still be subject to other prohibitions.

Gotcha 4 - No definition of “prohibited substance”. By‑law 12(c)(ii) prohibits driving while under the influence of a “prohibited substance”; by‑law 16(d) and (e) refer to it for search and seizure powers. The term is undefined. It likely includes liquor and deleterious substances, but could also encompass other drugs. This ambiguity creates uncertainty for enforcement and for defendants.

Gotcha 5 - Vehicle seizure without court order. By‑law 16(e) allows police to seize and detain a vehicle for up to 14 days if a prohibited substance is found, without any judicial oversight. The only requirement is that the police officer considers it necessary on reasonable grounds to prevent a repetition. There is no mechanism for the owner to challenge the seizure during that period.

Gotcha 6 - Council member loses office upon charge, not conviction. By‑law 20(a) deems a Council member charged with a liquor offence to have ceased to be effective immediately. The member can be restored only if the charge is withdrawn or dismissed after trial. This means a member can be removed by a mere allegation, even if the charge is later dropped or they are acquitted. It creates a powerful tool for political manoeuvring.

Gotcha 7 - Custom defence unclear. By‑law 19 provides a defence of acting under custom, but does not define “custom” or specify how it is proved. The onus is on the defendant. What constitutes a custom of “the community”? Is it a written tradition, an oral tradition, or something else? There is no requirement that the custom be legitimate or lawful under general law.

Gotcha 8 - Liquor restriction applies to all persons, including members. While members do not need permission to enter, they still cannot bring, possess, use or supply liquor on community land without Council permission (by‑law 8). This can affect private consumption in homes. By‑law 7 (leave a home) does not override the liquor restriction.

Gotcha 9 - “As is reasonably possible” vague. By‑law 5(c) requires a person ordered to leave community land to do so “as is reasonably possible”. This phrase sets no fixed time and depends on circumstances. It could be interpreted as immediately or within a few hours, creating enforcement disputes.

Gotcha 10 - Deemed permission for government employees only for duties. A government employee entering for a social visit or to attend a community event is not covered by the deemed permission in by‑law 4(e). They would need specific permission, just like any other non‑Aboriginal visitor.

Gotcha 11 - Wilful damage includes trees, bushes, lawns. By‑law 14 is very broad: “any tree, bush, lawn, building, structure, vehicle or other thing”. This could cover damage to natural vegetation, not just built structures. A person could breach this by picking flowers or cutting grass without permission, if done wilfully.

Gotcha 12 - The by‑laws do not sunset. There is no provision for review or expiry. They continue indefinitely unless repealed by the Governor. This means outdated provisions remain in force.

For non‑Aboriginal visitors and contractors. The primary obligation is to obtain permission to enter community land before arriving. Contact the Council (through the incorporated body) to request permission. Permission may be oral or written; it is wise to obtain written confirmation and note any conditions. Comply strictly with all conditions set by the Council. If a Council member revokes permission, leave the land as soon as reasonably possible - do not argue or delay. Do not enter if permission is refused. Remember that permission can be revoked at any time without reason. Keep a record of who granted permission and when.

For government employees. You have deemed permission for entry in connection with your duties. However, this does not extend to personal visits. When entering for work, carry identification and be prepared to explain the purpose. Do not assume you can bring family members. If your duties involve supplying goods or services, check whether the Council has imposed any conditions on your presence.

For members of the community and their families. You do not need permission to enter, but you must comply with all other by‑laws. Do not bring liquor onto community land without Council permission. If you wish to possess or consume liquor, seek prior approval from the Council - a blanket permission may exist for community events, but confirm. Do not drive a community‑owned vehicle without permission, a current licence, and without being under the influence. Do not cause disturbances, damage property, or disrupt meetings. If you are a Council member, avoid even the appearance of a liquor offence, as a charge will immediately remove you from office.

For businesses and suppliers. Before supplying liquor on community land, obtain written permission from the Council. Even if you hold a liquor licence under State law, the by‑laws require separate permission. For any sale or supply of glue, petrol, or volatile hydrocarbons, take reasonable steps to satisfy yourself that the recipient does not intend to inhale them. Consider asking for a declaration of purpose or monitoring usage patterns. If you suspect misuse, refuse supply and report to police or the Council.

For visitors to private homes. If you are in someone’s home and the principal occupant or person in charge tells you to leave, you must leave immediately. Failure to do so is a breach. Do not assume you have a right to stay because you have general permission to be on community land.

If confronted by police. Comply with requests to provide your name and address if you are on community land and police reasonably believe you have committed a breach. Do not obstruct a vehicle search if police have reasonable cause to suspect a prohibited substance. If police order you to leave under by‑law 16(b), do so; you can challenge the lawfulness later in court. If your vehicle is seized, request a written explanation and note the date of seizure - the maximum detention is 14 days. Seek legal advice if the detention is extended.

If charged with an offence. Consider whether you have a defence under by‑law 19: were you acting under and excused by a custom of the community? Gather evidence of the custom (witnesses, oral tradition, cultural authority). If you are a Council member charged with a liquor offence, you will need to decide whether to resign or contest the charge to be restored to office. Seek legal representation; the fine is low but the disqualification consequence for a Council member is severe.

For the Council itself. To reduce legal risk, the Council should adopt transparent procedures for granting and revoking permissions, keep written records, and avoid arbitrary decisions. Publish clear guidelines on liquor permissions. Ensure that all Council members are aware that individual members have authority to act, but that inconsistent actions can cause confusion. The Council should also consider seeking legal advice on whether the by‑laws comply with the Racial Discrimination Act and other higher laws. Periodic review of the by‑laws (even if not legally required) is prudent to reflect changed circumstances.