Warmun Community By-laws 2006

Community lands. The geographic scope of the By-laws is defined by reference to a Governor’s determination under the Aboriginal Communities Act 1979 (s 4). The By-laws do not themselves describe the boundaries; they simply refer to “the community lands of that Aboriginal community” (by-law 1(5)). Any person on those lands is subject to the By-laws, irrespective of whether they are a member. This creates a form of territorial jurisdiction that can extend to roads, public areas, and private dwellings within the community’s designated area.

Membership. A person is a member if they satisfy the constitution of Warmun Community (Turkey Creek) Inc., or if the Council agrees they are a member for the purposes of the By-laws (by-law 1(7)). This dual track gives the Council an ongoing power to add members without constitutional amendment. Members have an automatic right to be on community lands; non-members do not.

Council decisions. The Council is the governing body of the incorporated association. Under by-law 2(1), when making decisions under the By-laws it “will consider the welfare of the community as the most important consideration”. This is an unenforceable direction of intent rather than a legally enforceable duty. The Council is not required to give reasons for its decisions (by-law 2(2)). It must communicate decisions by speaking, writing, or public notice (by-law 2(3)). The Council may delegate its permission-granting power to a council member or any other person, but must do so in writing (by-law 3(1)).

Permission regime. Many prohibitions in the By-laws are subject to an override: the Council may grant permission to do what would otherwise be prohibited. This applies to alcohol (by-law 13(1)), non-member entry (by-law 5(1)), and out-of-bounds areas (by-law 6). Permission can be given to any person or class, with conditions, and the Council may change or revoke conditions or the permission itself at any time (by-law 3(3)). There is no right to a hearing or to reasons. Permission can be refused without explanation (by-law 3(4)). This creates a system of discretionary licensing rather than a fixed set of rights. The uncertainty inherent in revocable permissions imposes a compliance burden: anyone who receives permission must continuously monitor whether it remains in effect.

Offence structure. By-law 17 creates a single offence: failing to obey a by-law or a condition imposed under a by-law. The offence is not graded (e.g. strict liability vs fault element) and carries a maximum fine of $5,000. A court may also order compensation of up to $250 for property damage. No separate penalty for alcohol or drug offences; all breaches are subject to the same maximum. This means the marginal deterrent effect of the fine is uniform across all conduct, so the By-laws do not differentiate between minor littering and serious drug trafficking in terms of potential penalty, though a court could vary the fine within the $5,000 limit.

Police powers. By-law 16 gives police officers broad powers. They can demand name and address on suspicion of a breach, arrest and remove the person from community lands, and seize any thing connected with the breach. The power of removal is not subject to a warrant; it is a summary power that can be exercised on belief. The arrested person must be released after being dealt with by a court, and in any event within 24 hours. This is a significant derogation from ordinary criminal procedure, where arrest powers are more constrained. The power to remove “any thing” from community lands is also broad and includes but is not limited to vehicles.

The By-laws directly affect three categories of persons. Members of the community are subject to all the By-laws but have a baseline right to be on community lands at any time (by-law 4). They cannot be excluded except by police removal under by-law 16(3). However, they remain subject to prohibitions on alcohol, drugs, noise, littering, damage, driving rules, etc. Members also face the Council’s discretionary powers: for example, the Council could designate a member’s home area as out of bounds under by-law 6, or revoke permission to possess alcohol. Members who breach the By-laws can be fined up to $5,000. Non-members are more heavily restricted. They cannot be on community lands at all without Council permission (by-law 5(1)). To ask for permission, they may enter only during weekday hours (8am-12 noon, 1-4pm, excluding weekends) and must go directly to the administration office (by-law 5(2)). If permission is obtained before entry, they must notify a Council member upon arrival (by-law 5(3)). Non-members who breach conditions can be ordered to leave immediately (by-law 5(5)). This regime effectively controls access by visitors, tradespeople, service providers, tourists, and anyone else who is not a member. It imposes a transaction cost on any non-member wishing to enter: they must know the rules, obtain permission, comply with conditions, and risk summary ejection. Police officers are directly affected: they gain expanded powers of arrest, removal, and seizure under by-law 16. Those powers are in addition to any powers they have under State law. The By-laws also indirectly affect businesses that might supply goods or services to the community. For example, a delivery driver who is not a member would need Council permission to enter, or must rely on a class permission (if one exists). Alcohol suppliers are effectively excluded unless the Council grants a permission; bringing alcohol onto the lands without permission is an offence (by-law 13(1)). The Council itself is affected: it must make decisions under the By-laws, delegate powers, manage permission applications, and put up signs for traffic control (by-law 7(8)). The Council bears the administrative cost of this regime. Courts are affected: they hear prosecutions for by-law offences and can impose fines and compensation orders. The maximum fine is $5,000 per offence, which is modest relative to State law penalties for similar conduct (e.g. drug possession under the Misuse of Drugs Act 1981 carries much higher penalties). This creates an incentive for police to use the by-law route for low-level matters rather than State law, which may result in lower penalties for offenders but also lower procedural protections.

Duty to obey by-laws and conditions. Every person on community lands must comply with each by-law and with any condition imposed by the Council under a permission (by-law 17(1)). This is a blanket duty without exceptions, subject only to the limited permissions that the Council may grant.

Members’ right to be present. Members have a prima facie right to be on community lands at any time (by-law 4). This right is defeasible by police removal under by-law 16(3). It is not a property right but a statutory permission; it can be overridden by a Council decision to make a member’s home out of bounds (by-law 6(1)), which could effectively exclude a member from a portion of the lands.

Non-members’ limited rights to enter. Non-members have no right to be on community lands without permission. They have a limited right to enter during weekday hours for the sole purpose of asking for permission (by-law 5(2)). This is not a right to enter for any other purpose.

Right to permission? No person has a right to receive permission from the Council. The Council may refuse permission without reasons (by-law 3(4)). This is a pure discretionary system.

Right to reasons. No person has a right to reasons for any Council decision under the By-laws (by-law 2(2)). This prevents judicial review on the merits, but does not exclude review for procedural fairness or jurisdictional error under general administrative law, though the source is silent on such review.

Right to notice of decisions. The Council must tell a person about a decision that affects them, by speaking, writing, or public notice (by-law 2(3)). This is a duty, but the content is minimal.

Duty to comply with police requests. A person who is asked for their name and address by a police officer who believes the person is breaching a by-law must provide it (by-law 16(1)-(2)). Failure is itself an offence under the general offence provision.

Right to be released within 24 hours. A person arrested under by-law 16(3) must not be kept in custody for longer than 24 hours (by-law 16(4)). This is a statutory limit on police detention.

Duty to leave upon order. Non-members who breach conditions must leave immediately if the Council orders (by-law 5(5)). Anyone disrupting a meeting must leave immediately if asked (by-law 14(4)). These are obligations without prior warning or appeal.

Right to use medication. By-law 12(4) preserves the right to take medication as intended or as prescribed by a doctor or nurse. This is an important carve-out from the drug prohibition. It does not apply to alcohol, which is banned entirely unless the Council permits.

No right to compensation. Except for the limited court-ordered compensation for property damage (up to $250) under by-law 17(4), a person whose property is damaged by another has no specific right under the By-laws; they must rely on State law.

The sole penalty provision is by-law 17. A person guilty of an offence (i.e., any breach of a by-law or a condition imposed under a by-law) is liable to a fine not exceeding $5,000. There is no provision for imprisonment, community service, or suspended sentence. The maximum fine is a single ceiling for all offences, so the court has discretion to impose less. The fine is payable to the State (as the matter is prosecuted in a State court). The court may also, upon finding guilt and that property of another person or the association was damaged during the offence, order the offender to pay compensation of not more than $250 to the damaged party (by-law 17(4)). This is a civil compensation order within the criminal proceeding; it does not require a separate civil claim. The low cap suggests it is intended for minor vandalism or property damage, not for substantial loss. Enforcement is initiated by a police officer charging a person with an offence (by-law 17(2)). There is no provision for the Council or community members to initiate prosecutions directly; the By-laws rely on police discretion. This is a practical limitation: if police choose not to enforce, the By-laws become unenforceable. Police also have pre-charge powers under by-law 16: they can demand name and address, arrest and remove a person from community lands, and seize connected property. The power of removal is summary; it does not require a court order. The person removed can be released after 24 hours, but this is not an acquittal; they can still be charged later. The police can also seize “any thing” connected with a breach, including vehicles (by-law 16(5)). This could include alcohol, drugs, documents, or the vehicle itself. There is no court oversight of the seizure; the owner would need to challenge it under general property law. The 24-hour limit on custody is not a limit on the effect of removal: the person can be physically kept off the lands, but they can re-enter after release if they have permission or are a member. The By-laws do not create a criminal record separate from State law; a conviction under by-law 17 is a conviction under State law (because the by-laws are made under a State Act). It would appear on a criminal history check. This is a significant consequence for minor breaches like littering or drinking alcohol. The maximum fine of $5,000 is not trivial for low-income individuals. For a member of the community, a conviction for an alcohol-related offence could affect housing eligibility or employment.

By-law 1(8) states the By-laws are “in addition to the laws of Western Australia”. This means they do not replace State laws; they supplement them. A person who drinks alcohol on community lands could be charged both under the By-laws (by-law 13) and under State licensing laws or the Liquor Control Act 1988. The principle against double jeopardy would likely prevent two convictions for the same conduct, but police have the option to choose which law to enforce. Similarly, drug offences under by-law 12 overlap with State drug laws; a person could be charged under either or both (though double punishment would be avoided). The By-laws also interact with the Bush Fires Act 1954: by-law 10(3) explicitly says it does not authorise a breach of that Act, so fire restrictions imposed under State law remain in force. The By-laws do not appear to override the Racial Discrimination Act 1975 (Cth), but their application to non-members based on membership status (which is correlated with Aboriginality) could raise questions. However, the source does not address this. The By-laws are made under the Aboriginal Communities Act 1979, which is a State law. That Act likely prevails over any inconsistent State law, but the By-laws do not claim to invalidate State laws; they operate concurrently. The driving rules in by-law 7 mirror State road traffic laws but also add a requirement that the vehicle be in “good mechanical condition” (by-law 7(7)), which is vague and goes beyond the Road Traffic Act 1974’s roadworthiness provisions. The By-laws also interact with the Criminal Code (WA) in relation to offences like assault or theft; those remain separately chargeable. The police powers in by-law 16 are likely in addition to powers under the Criminal Investigation Act 2006 (WA). A police officer could arrest under by-law 16(3) without a warrant based on a belief of a by-law breach, which is a lower threshold than for many State offences. This could lead to challenges under the Constitution (s 109) if a Commonwealth law (e.g., the Racial Discrimination Act) were found to be inconsistent, but no such challenge is recorded in the source. The By-laws do not interact with Commonwealth native title law; they are local government-style by-laws for an Aboriginal community, not a determination of native title. The existence of the By-laws does not affect any native title rights that may exist on the lands, but the By-laws regulate conduct on the lands and could limit the exercise of native title rights (e.g., access, ceremony). The source does not mention native title.

The compilation table at the end of the document shows only one entry: the Warmun Community By-laws 2006 were gazetted on 18 August 2006 (Government Gazette pages 3451-62) and commenced on that same date. There are no subsequent amendments recorded in the compilation. This means the By-laws have been in force unchanged since 2006, a period of nearly 17 years. The note states it is a compilation, but the table contains no amendment entries. It is possible that later amendments have been made but are not included in this compilation; however, the document as provided appears to be the current version as at the date of compilation. The By-laws replaced the earlier Warmun Community (Turkey Creek) Inc. By-laws made in 1991. The 2006 version is the only version in effect under the Aboriginal Communities Act 1979. The Act itself (1979) has been amended over time, but the By-laws have not been updated. This raises questions about whether the By-laws reflect current community needs, contemporary legal standards (e.g., regarding police powers, procedural fairness, or alcohol management), and whether they are actively enforced or merely remain on the books. The lack of amendment may indicate a lack of use or a deliberate decision to keep a stable regime. From a compliance perspective, the absence of amendments means the text is static and predictable, but it also means that any drafting errors or omissions cannot be addressed without a new Governor’s approval process.

The source document does not mention any litigation about the By-laws. There are no references to court cases interpreting or invalidating the By-laws. This is common for community by-laws under the Aboriginal Communities Act 1979; they tend to generate little reported case law because prosecutions are rare and typically dealt with in local courts without written judgments. However, there may be unreported cases. The By-laws have never been the subject of a High Court challenge or a judicial review in the Supreme Court of Western Australia, at least as far as the source shows. The broad discretionary powers and absence of reasons requirement could theoretically be challenged on grounds of procedural fairness, but the Aboriginal Communities Act 1979 may oust or limit judicial review. Without case law, it is uncertain how a court would treat a challenge to a council decision. The police powers under by-law 16 might be tested in the context of an unlawful arrest or excessive force, but no such case is cited. The 24-hour detention limit is short enough to make civil claims for false imprisonment unattractive. The low fines ($5,000 max) may mean there is little incentive to appeal. Overall, the litigation history is a blank slate, which means the By-laws operate with legal risk: their meaning has not been settled by courts, and a future challenge could alter their interpretation or validity.

No reasons required. The Council does not have to give reasons for any decision under the By-laws (by-law 2(2)). This makes it nearly impossible to challenge a refusal of permission or revocation of a permission, unless the person can show bad faith or procedural unfairness. A person removed from the lands or denied alcohol permission has no formal explanation.

Permission can be revoked at any time. If the Council gives permission (e.g., to bring alcohol onto the lands for a wedding), it can later take it away without notice (by-law 3(3)). The person relying on the permission may be committing an offence if they do not know it has been revoked. The Council must tell them about the decision (by-law 2(3)), but "tell" could be by public notice, not personal notice.

Strict alcohol ban. Unless the Council permits, no alcohol may be brought onto, possessed, kept, sold, given, or drunk on community lands (by-law 13(1)). This includes in private homes. Even being under the influence triggers a requirement to go home and stay there (by-law 13(2)). This is a zero-tolerance regime with no exceptions for cultural or religious use, unless the Council gives permission.

Non-members have very limited entry. A non-member cannot enter the community lands except during specific hours (8-12 noon and 1-4pm weekdays) and only to go to the administration office to ask for permission (by-law 5(2)). Even if permission is obtained beforehand, the non-member must report arrival to a Council member (by-law 5(3)). A simple social visit by a non-member friend or relative could be an offence if the entry protocol is not followed.

Police can remove you without charge. Under by-law 16(3), a police officer can arrest and remove a person from community lands if the officer believes the person is breaching a by-law. This can happen before any charge is laid. The person must be released within 24 hours, but they may have been removed from their home if they are a member. There is no requirement for a warrant.

No right to be on common areas. Even members can be excluded from parts of the community lands designated as out of bounds (by-law 6(1)). The Council can declare whole areas off-limits to all people or some people. A member could be barred from the store, office, or recreational areas.

Conditions can be imposed on any permission. When the Council grants permission, it can impose conditions (by-law 3(3)). Breach of a condition is an offence (by-law 17(1)). There is no appeal from the conditions.

Maximum compensation is only $250. Despite the fine being up to $5,000, if the offence damages property, the court can only order up to $250 compensation (by-law 17(4)). This is low compared to typical property values. A victim of property damage may need to bring a separate civil claim in the Magistrates Court, which adds cost and complexity.

No limitation on what can be seized. By-law 16(5) allows police to remove “any thing” connected with a breach, including vehicles. There is no requirement for the thing to be prohibited or dangerous. A vehicle used to bring a non-member onto the lands without permission could be seized. There is no procedure for recovery or compensation.

Driving offences overlap with State law. By-law 7 requires drivers to have a valid Australian licence, the vehicle to be licensed and in good mechanical condition, and occupants to wear seatbelts and helmets. These mirror State laws but are separate offences. A person could be charged twice for the same conduct (though double jeopardy would likely prevent double punishment).

No provision for emergency entry. There is no exception for emergency services, delivery drivers with time-critical goods, or visitors for medical reasons. They are subject to the same permission regime unless the Council has given a class permission.

Vague standard for vehicle condition. By-law 7(7) requires the car to be “in good mechanical condition”. This is subjective and could be enforced arbitrarily. A car with a cracked windscreen or worn tyres could be considered not in good mechanical condition, leading to a by-law offence.

Compliance with the By-laws requires proactive steps from both members and non-members. For members: Ensure you understand the current Council decisions about out-of-bounds areas and any ongoing permissions. Do not bring alcohol onto the lands without written Council permission. If you wish to possess or drink alcohol, apply to the Council in writing for permission; note that permission is revocable. Do not use or possess illegal drugs or harmful substances. If you are under the influence of alcohol or drugs, go home and stay there until sober, and do not enter the store, office, or any public place. Dispose of rubbish only in designated bins or tips. Do not damage community or other property. Do not enter another person’s house without permission. Avoid fighting, abusive language, rowdy behaviour, and driving irresponsibly. After 10pm on weeknights (midnight on weekends) and before 7am, keep noise levels down so as not to disturb others. When driving, obey traffic signs, wear seatbelts, ensure your vehicle is licensed and mechanically sound, and do not drive under the influence. If a police officer asks for your name and address and you are suspected of breaching a by-law, provide it. If you are arrested and removed, cooperate and seek legal advice upon release.

For non-members: Before entering community lands, obtain Council permission. This typically requires contacting the Council (or a delegated person) by phone, email, or letter and explaining the purpose of your visit. If you have permission, upon arrival inform a Council member immediately. If you do not have prior permission, you may enter only between 8am-12 noon and 1-4pm on weekdays, and must go directly to the administration office to request permission. Do not enter at any other time or for any other purpose. Comply with all conditions imposed by the Council, including any restrictions on movement, times, or activities. If the Council orders you to leave, do so immediately. Do not bring alcohol, drugs, weapons, or harmful substances onto the lands. Do not leave rubbish. Obey all traffic signs. Keep noise down at night.

For everyone: Regularly check for notices posted in public places on the community lands, as these may contain new Council decisions affecting permissions or out-of-bounds areas (by-law 2(3)). If in doubt about a particular activity, ask the Council for permission in writing and keep a copy of any response. Even if the Council has given oral permission, try to obtain written confirmation to avoid disputes. If you are charged with an offence, seek legal advice promptly; the maximum fine is $5,000 but a conviction may have other consequences such as affecting access to the community or employment. Photograph any property damage before cleaning up to preserve evidence if compensation is sought. Finally, remember that the By-laws are “in addition to the laws of Western Australia” (by-law 1(8)): compliance with the By-laws does not excuse compliance with State laws, and vice versa.