Woolah Aboriginal Corporation By-laws

Community land is land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of the Woolah Aboriginal Corporation (by-law 3). It is the physical territory on which the by-laws operate. Community is defined as the Woolah Aboriginal Corporation itself, the corporate entity that holds or manages the land. Council means the Council of that corporation, the governing body. Member of the community is any person accepted as a member for the time being , note the fluidity: acceptance is not further defined, so it is entirely within the community's internal processes. Vehicle adopts the definition under the Road Traffic Act 1974 (WA), which includes motor vehicles, trailers, bicycles, and any other vehicle as defined in that Act, potentially covering pushbikes, scooters, and heavy machinery.

Permission to enter is the central concept. Non-members require prior permission from the Council, which the Council may grant or refuse in its "absolute discretion" (by-law 4(2)(a)). Permission can be oral or written, can be subject to conditions, and can be revoked at any time. The Council may delegate this power to "any community adviser or other officer in the employ of the community as the Council thinks fit" (by-law 4(3)), without any limit on who qualifies as an adviser or officer. This delegation can operate concurrently with the Council's own exercise of the power. The permission requirement is subject to any other Act or regulation that provides to the contrary , for example, state laws that allow police or emergency services to enter without consent.

Alcohol regulation is another key concept. By-law 10(1) prohibits bringing, possessing, consuming, or supplying alcohol on community land without the Council's permission. The Council may permit these acts in its discretion, but must treat the welfare of the community as the paramount consideration (by-law 10(3)). Permission may be oral or written and revocable at any time. By-law 12 separately prohibits supplying alcohol to anyone under 18, and consumption by under-18s. The by-laws do not define "alcohol", so it presumably carries its ordinary meaning under state liquor licensing law , likely any beverage containing more than a specified percentage of alcohol.

Wardens are members of the community appointed by the Council (by-law 19(1)). Their duties are to inquire into alleged breaches, cooperate with community members, the Council, and police in enforcement, and to enforce the by-laws generally (by-law 19(2)). They have no independent coercive powers , no power to search, seize, or arrest , but obstructing a warden in lawful execution of duty is an offence (by-law 19(3)). The warden role is essentially a liaison and fact-gathering function, relying on police for formal enforcement.

Offence structure is dual. Some by-laws contain their own offence-creating language (by-laws 4(4), 5(3), 7(3), 9(2), 17, 18(3), 19(3)). By-law 20 then provides that breach of by-laws 6, 8, 11, 12, 13, 14, 15, and 16 also constitutes an offence. This means that, though by-law 20 lists only those specific provisions, the other by-laws independently create offences. By-law 21 applies a uniform penalty of $100 for any person convicted of an offence against a by-law, regardless of the source. So the maximum fine for breaching any provision is $100. By-law 22 allows a court to order restitution of up to $250 for property damage caused in the commission of the offence, on top of any fine.

The by-laws primarily affect non-members who wish to enter or remain on community land. They must obtain Council permission, comply with any conditions, and leave when requested. This includes visitors, tradespeople, delivery drivers, contractors, government officials (unless another Act authorises entry), tourists, and family or friends of members. For members of the community, the entry permission requirement does not apply (by-law 4(1) only prohibits non-members), but members are still bound by all other by-laws: they must not damage property, litter, drive carelessly, breach alcohol rules, or fail to supervise children. Members also cannot enter another person's home without permission (by-law 6(1)). The Council is the decision-making body: it grants or refuses entry, sets conditions, revokes permission, decides on alcohol permits, declares prohibited areas, erects traffic signs, and appoints wardens. Council members bear the compliance burden of exercising these powers consistently and documenting decisions. Wardens, appointed by the Council, are affected by the duty to inquire and enforce; they face potential obstruction but have no personal liability protection specified. Police officers gain additional powers under by-law 18: they can apprehend and remove persons for up to 24 hours without charge if injury or damage is likely, and they can request names and addresses of anyone reasonably suspected of breach. This expands police powers beyond general law.

Parents and guardians residing on community land are affected by by-law 15, which requires them, before departing the land for any period, to make "proper arrangements for the supervision and support" of children ordinarily in their custody who remain behind. The phrase "proper arrangements" is vague, imposing a duty of care that could be interpreted broadly. Failure to do so is an offence under by-law 20.

Commercial entities that supply goods or services to the community , such as food vendors, alcohol suppliers, builders, or tour operators , are indirectly affected. Any employee or agent who is not a member must have permission to enter. If the business involves bringing alcohol onto community land, it requires Council permission and must comply with any conditions. The Council's discretion could effectively exclude certain businesses or impose costly conditions, raising barriers to trade. For example, a delivery driver who repeatedly enters without permission commits an offence, even if the community member ordered the goods. This can increase transaction costs and reduce commercial freedom on community land.

Children and young people are affected by the alcohol provisions: no supply to under-18s, and no consumption by under-18s (by-law 12). This mirrors state law but is enforceable by community wardens and police as a specific by-law offence.

Visitors and tourists must navigate the permission system. There is no publicly available register of who holds permission; enforcement relies on the Council and police. This creates uncertainty: a visitor may be invited by a member but still require Council permission unless that member is an authorised delegate (which seems unlikely unless the member is a community adviser or officer). The by-laws do not explicitly allow a member to invite guests; the permission must come from the Council or its delegate. This can deter spontaneous visits and social interaction with outsiders.

Duties of non-members: The primary duty is to obtain prior permission from the Council before entering community land (by-law 4(1)). Once on community land, non-members must comply with any conditions imposed (by-law 4(2)(b)), and must leave when requested by the Council or its delegate (by-law 4(4)(c)). They must obey signs restricting entry (by-law 5) and traffic signs (by-law 7). They must not drive without due care or dangerously (by-law 8), nor drive in areas declared prohibited to vehicles (by-law 9). They must not bring, possess, consume, or supply alcohol without Council permission (by-law 10(1), 11). They must not supply alcohol to anyone under 18, and children under 18 must not consume alcohol (by-law 12). They must not wilfully damage any tree, bush, flower, lawn, building, structure, vehicle or other thing (by-law 13). They must not litter: rubbish must go in bins or designated areas (by-law 14). They must not cause disturbance or annoyance by abusive language, fighting, or offensive or disorderly conduct (by-law 16). They must not disrupt meetings (by-law 17). They must give their name and address to a police officer who reasonably believes they have breached a by-law (by-law 18(2)-(3)). They must not obstruct a warden (by-law 19(3)). They must not enter another person's home without prior permission (by-law 6(1)), and if in a home not their own, must leave when directed by an occupier (by-law 6(2)).

Duties of members: Members are exempt from the entry permission requirement but are subject to all other duties listed above, including the home entry rule, traffic rules, alcohol rules, damage, litter, supervision of children, offensive behaviour, and meeting disruption. Additionally, members who reside on community land have a specific duty before departing the land: they must make "proper arrangements for the supervision and support" of children ordinarily in their custody who remain (by-law 15). This duty is not imposed on non-residents or visitors.

Rights of the Council: The Council has the right to grant or refuse permission to enter in its absolute discretion, to impose conditions, to revoke permission at any time (by-law 4(2)), and to delegate this power to staff (by-law 4(3)). It may place signs restricting entry (by-law 5(1)) and erect traffic signs (by-law 7(1)). It may declare vehicle-prohibited areas (by-law 9(1)). It may permit or prohibit alcohol, subject to the community welfare paramountcy (by-law 10(2)-(3)). It may appoint wardens (by-law 19(1)). These rights are not subject to external review or appeal within the by-laws; the only constraints are the overriding provisions of any Act or regulation (e.g., anti-discrimination law) and the requirement to consider community welfare when permitting alcohol.

Rights of community members: Members have the right to enter community land without prior permission. They have the right to be free from disturbances and offensive behaviour (by-law 16). They have the right to control entry to their own homes: no one may enter without permission, and they can direct any person to leave (by-law 6). They have the right to have rubbish disposed of properly. However, they have no explicit right to invite guests without Council permission; the by-law does not carve out an exception for guests of members.

Rights of wardens: Wardens have the duty to inquire into breaches and enforce by-laws, but no right to use force, search, or detain. They have the right to be free from obstruction (by-law 19(3)).

Rights of police: Police have the right to apprehend and remove a person for up to 24 hours if it appears likely injury or damage will be caused by that person (by-law 18(1)). They may request name and address from anyone reasonably suspected of a breach (by-law 18(2)). They may commence proceedings (by-law 18(4)). They also retain all general police powers under state law, which are likely broader.

No right of appeal or review: There is no provision for a person refused entry or whose permission is revoked to challenge the decision. The Council's discretion is absolute. This creates a risk of arbitrary or discriminatory application, though other laws (e.g., Racial Discrimination Act 1975 (Cth)) may provide external constraints.

The sole penalty for any offence against the by-laws is a fine of $100 (by-law 21, as inserted in 2004). This is a fixed maximum; a court could impose a lesser fine or no penalty (e.g., a dismissal under s 19 of the Sentencing Act 1995 (WA)). The $100 amount is modest but not trivial in a community where incomes may be low. The fine applies uniformly to all by-law offences, whether the offence is created by an individual by-law (e.g., by-law 4(4)) or by by-law 20's cross-reference. The 2004 amendment increased the fine from an unspecified lower amount , likely $20, given that the amending regulation is titled "Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004" and short sentences were being updated to reflect inflation. The fine is not indexed and may become outdated over time.

Restitution: In addition to the fine, a court may order a convicted person to pay compensation of not more than $250 to the community or another person if property damage was caused in the course of the offence (by-law 22). This is a low cap: for example, repairing a broken window or damaged vehicle could cost much more. The victim would need to rely on civil proceedings for the balance, which may be impractical. The restitution order is discretionary, not automatic.

Police powers: A police officer may apprehend and 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 to persons or damage to property will be caused by that person (by-law 18(1)). The officer must return the person to community land if a court is convened to deal with them according to law , meaning if a court hearing is scheduled within that 24 hours, the person must be brought back for the hearing. This is a brief, preventive power akin to a temporary exclusion order. It is not a power of arrest for the offence; the person can be removed without charge. This raises potential concerns about due process, though the short duration and link to a safety threat may mitigate them.

Police can also request name and address from any person they reasonably believe has breached a by-law; failure to provide is itself an offence (by-law 18(2)-(3)). Police may commence proceedings (by-law 18(4)), which suggests they act as prosecutors in the Magistrates Court for by-law offences. The by-laws do not specify the court; presumably it is the Court of Petty Sessions (Magistrates Court) as the court that deals with summary offences.

Wardens: Wardens cannot fine, arrest, or use force. Their role is limited to inquiry, cooperation, and general enforcement (by-law 19(2)). They can report breaches to police or to the Council. Obstruction of a warden is an offence (by-law 19(3)), but the penalty remains $100. The warden system is largely symbolic; real enforcement depends on police action.

Double enforcement risk: The same conduct may be an offence under both the by-laws and state law. For example, careless driving on community land is an offence under by-law 8(1) and also under the Road Traffic Act 1974. The by-laws do not prevent prosecution under state law; the "except as provided to the contrary" caveat in by-laws 4 and 5 suggests state Acts and regulations override where inconsistent, but generally state law applies alongside. A person could face charges under both regimes, though the principle of double jeopardy would likely limit conviction for substantially the same offence.

Uniform fine cap: The $100 fine is the same for all offences, from littering (by-law 14) to supplying alcohol to a minor (by-law 12). This flattens deterrence; serious misconduct is penalised no more heavily than minor infractions, which may reduce the deterrent effect for serious offences.

The by-laws are made under the Aboriginal Communities Act 1979 (WA), section 6 of which allows the Governor to declare community lands and section 7 of which allows the making of by-laws. The Act itself is not reproduced here, but the by-laws explicitly refer to it.

The Road Traffic Act 1974 (WA) provides the definition of "vehicle" (by-law 3). That definition is broad and includes motor vehicles, trailers, bicycles, and anything else declared to be a vehicle. The by-laws traffic provisions (by-laws 7-9) operate on community land and are additional to state traffic laws. For example, careless driving on a public road within community land would be an offence under both the by-laws and the Road Traffic Act. However, if a traffic sign erected by the Council conflicts with state traffic signs, the "except as provided to the contrary" language in by-law 7 may allow state law to prevail if the state Act so provides.

Other Acts or regulations: By-laws 4(1) and 5(1) contain "except as provided to the contrary in any Act or regulation" qualifiers. This means that if a state or Commonwealth Act authorises a person to enter community land (e.g., a police officer under warrant, an emergency services worker, a health inspector under the Health Act 1911), that authorisation overrides the need for Council permission. The by-laws cannot exclude lawful government officials conducting statutory duties.

Liquor licensing laws: The Liquor Control Act 1988 (WA) regulates the supply and consumption of alcohol generally. The by-laws create an additional layer: even if a person holds a liquor licence, they cannot bring alcohol onto community land without Council permission (by-law 10). The by-laws do not purport to override the state Act, but they add a local restriction. A licence holder could be in breach of the by-laws even if they comply with state liquor laws. Conversely, if state law prohibits the supply of alcohol in certain circumstances (e.g., to an intoxicated person), the by-law permission would not authorise that supply; the state law remains paramount.

Criminal law: The by-laws overlap with general criminal offences: by-law 13 (wilful damage) overlaps with criminal damage under the Criminal Code (WA); by-law 16 (offensive behaviour) overlaps with disorderly conduct. Prosecution under the by-laws is an alternative to charging under the Criminal Code. The $100 fine is much lower than the penalties under the Criminal Code, so police may choose to use the by-laws as a more proportionate response for minor breaches. However, the by-law offence may also be used as a lesser alternative, avoiding the need for more serious proceedings.

Sentencing legislation: The 2004 amendment to by-laws 21 and 22 was made by the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004. This regulation amended a number of Aboriginal community by-laws to increase fines and restitution amounts to align with inflation and standardise short sentences. This is a one-off amendment; future changes would require further regulation.

Racial Discrimination Act 1975 (Cth): The by-laws apply specifically to a particular Aboriginal community's land. They differentiate between members and non-members based on membership of that community, which is likely based on Aboriginal identity. This could raise issues under the Racial Discrimination Act, but the Aboriginal Communities Act 1979 is a special measure possibly exempt under s 8 of that Act. The by-laws themselves do not address this.

Human rights: Western Australia has no comprehensive human rights act, but the by-laws' broad discretionary powers and lack of review mechanisms could conflict with common law rights of access and natural justice. Courts may imply procedural fairness requirements even in the face of statutory discretion, but the by-laws expressly say "absolute discretion" (by-law 4(2)), which may oust any implied requirement to give reasons or hear a person before refusing entry.

The Woolah Aboriginal Corporation By-laws were originally made and gazetted on 26 April 1991 (p. 1852-5) and came into effect that same day (by-law 2). They were substantially amended only once, by the Sentencing Legislation (Short Sentences - Aboriginal Community By-Laws) Amendment Regulations 2004, gazetted on 14 May 2004 and commencing on 15 May 2004 (as per the compilation table). That amendment replaced by-law 21 (fine) with a new provision setting the fine at $100, and amended by-law 22 (restitution) to increase the maximum compensation to $250 (previously lower, likely $50 or $100). The amending regulation was part of a broader suite of changes to multiple Aboriginal community by-laws across Western Australia, all aimed at updating penalty amounts. The reprint as at 1 October 2004 consolidates these amendments. No further amendments have been made since. The by-laws remain in force as of that reprint. The parent Act, Aboriginal Communities Act 1979, may have been amended separately, but the by-laws themselves are static. The compilation table notes that the reprint includes all amendments listed. There is no evidence of subsequent repeals or replacement.

The source text does not cite any cases. The by-laws are local in nature and apply only to the land of the Woolah Aboriginal Corporation. Litigation under these specific by-laws is likely rare. Possible litigation could involve challenges to the validity of a Council decision (e.g., a refusal of permission argued to be contrary to the Act or to natural justice), or a prosecution for breach where the defendant disputes jurisdiction (e.g., whether the land was properly declared as community land, or whether the person was properly classified as a non-member). The Aboriginal Communities Act 1979 has been considered in some Western Australian cases (e.g., Mowarin v Bynder [1997] WASCA 235, dealing with by-laws and police powers), but those are not mentioned in the source and cannot be assumed to apply here. Without case law specifically cited, we note that the by-laws have likely been the subject of prosecutions in the Magistrates Court, but no published appellate decisions are apparent. The low penalty amount ($100) makes it economically unviable to appeal a conviction; most defendants would simply pay the fine. The 2004 amendment increasing the fine suggests that the previous amount was so low that enforcement was not perceived as a deterrent. The potential for a constitutional challenge to the by-laws (e.g., under the Racial Discrimination Act or the implied freedom of movement) exists but has not materialised in publicly available records.

Absolute discretion without criteria: The Council may grant or refuse permission to enter "in its absolute discretion" (by-law 4(2)). No criteria are listed; no reasons need be given. This creates a risk of arbitrary, capricious, or discriminatory decisions. A person refused entry has no avenue for internal review or external appeal under the by-laws. While other laws (e.g., anti-discrimination, administrative law) might provide remedies, the cost and complexity of mounting a challenge are high relative to the benefit of entering.

Delegation without guardrails: The Council may delegate its entry permission power to "any community adviser or other officer in the employ of the community as the Council thinks fit" (by-law 4(3)). There is no limit on who can be delegated, no requirement for training, no cap on number of delegates, and no requirement that the delegation be in writing. This could lead to inconsistent decisions, misuse of power, or a single delegate acting without proper oversight.

Permission revocable at any time: Even if a non-member has been granted permission to enter, the Council may revoke it at any time (by-law 4(2)(c)). The person may have travelled to the community land and then be told to leave. There is no requirement for notice or warning. This creates uncertainty for contractors or service providers.

No explicit guest exception: Community members do not have an explicit right to invite guests onto community land. By-law 4(1) only exempts members from needing permission themselves; nothing says a member can authorise entry for others. A member who invites a friend or relative may be facilitating an offence if that person enters without Council permission. The friend cannot rely on the member's presence as permission.

Alcohol permission paramount consideration: When deciding whether to allow alcohol, the Council must have "regard to the welfare of the community as the paramount consideration" (by-law 10(3)). This is a subjective standard. The Council could interpret "welfare" broadly, allowing it to ban alcohol entirely or to grant permission only to selected individuals. The term "paramount" means the welfare trumps all other factors, including individual rights or preferences.

Supervision of children duty vague: By-law 15 requires a person residing on community land who departs for any period to make "proper arrangements for the supervision and support" of children in their custody. What constitutes "proper arrangements" is undefined. A court would have to determine this case by case. This creates legal uncertainty; a person could unintentionally commit an offence by leaving children with a caregiver who later fails.

Offensive behaviour subjective: By-law 16 prohibits "offensive or disorderly manner" and "abusive language". These terms are inherently subjective and could be applied selectively. Behaviour that is acceptable in one context may be deemed offensive by the Council or police.

Low fine may not deter: $100 is a low penalty for serious breaches like supplying alcohol to minors or dangerous driving. The deterrent effect is weak, especially for commercial operators or visitors who may treat it as a cost of doing business. The restitution cap of $250 also limits compensation for property damage, reducing the incentive for victims to report damage.

Police removal without charge: By-law 18(1) allows police to apprehend and remove a person from community land for up to 24 hours if it appears injury or damage is likely. This is a significant power exercised without a warrant, based on an officer's subjective belief. The person removed has no right to be heard before removal, and the only condition for return is if a court is convened to deal with them. If no court sits within 24 hours, they can be removed for the full period without any charge. This could be used to exclude people without due process.

By-law 20 does not list all offences: By-law 20 states that breach of by-laws 6, 8, 11, 12, 13, 14, 15, and 16 is an offence. But other by-laws (4, 5, 7, 9, 17, 18(3), 19(3)) also create offences via their own language. This dual structure is confusing. A person reading by-law 20 might incorrectly assume that only those eight provisions are enforceable. Practitioners must check each by-law individually.

For non-members seeking to enter community land: Obtain prior permission from the Council or its authorised delegate. Permission should be sought in advance, ideally in writing, and should specify the purpose, duration, and any conditions. Keep a record of the permission, including any conditions. Comply strictly with all conditions (e.g., staying only in certain areas, not bringing alcohol). If the Council revokes permission, leave immediately. Obey all signs, including traffic signs and area restrictions. Do not bring alcohol without explicit permission that states you may do so. Do not enter any home without the occupant's consent. Supervise any children in your care. If you are a contractor or supplier, ensure your employees also obtain permission and understand the rules.

For community members: You do not need permission to enter the community land, but you must comply with all other by-laws. Do not bring alcohol onto community land unless the Council has granted permission (e.g., a community event permit). Do not supply alcohol to anyone under 18. Supervise your children: before you leave the community land for any period, ensure that someone responsible is looking after any children in your custody. Do not damage property, litter, drive dangerously, or cause disturbances. Respect others' homes: do not enter without permission, and leave when asked. If you invite a non-member guest, be aware that the guest still needs Council permission; you cannot grant it yourself unless you are a delegate. Advise your guest to contact the Council directly.

For the Council: Ensure that all delegates are properly authorised and understand the limits of their power. Consider keeping a written register of permissions granted, including date, name of person, conditions, and revocation. Publish notices of prohibited areas and traffic signs clearly. When granting alcohol permissions, document the reasons and how community welfare was considered. Appoint wardens and provide them with written instructions and training. Keep records of any complaints or breaches. Consider developing a policy on entry permissions to ensure consistency and reduce legal risk. Be aware that the "absolute discretion" may still be subject to implied legal duties, such as not acting for an improper purpose or in bad faith.

For businesses and contractors: Before sending employees or vehicles onto community land, obtain written permission from the Council. Confirm whether alcohol is permitted on the premises; if your business involves alcohol (e.g., catering), negotiate permission explicitly. Ensure all employees are briefed on the by-laws, particularly the rules on entry, alcohol, offensive behaviour, and traffic. Include in contracts with the community a clause requiring the community to provide necessary permissions. Keep evidence of permission on hand (e.g., a letter of authorisation). If providing deliveries, ensure the driver can present permission if asked by police.

For visitors: Contact the Council in advance. Explain your purpose and expected duration. Accept any conditions without argument. Avoid alcohol unless explicitly told it is allowed. Do not bring pets or other items without checking. Leave promptly when asked. If you have a dispute about permission, comply first and seek legal advice later, as remaining after revocation is an immediate offence.

For law enforcement: Police should be familiar with the by-laws and use their removal power under by-law 18(1) only when there is a genuine and imminent risk of injury or damage. When requesting name and address under by-law 18(2), ensure there are reasonable grounds for suspicion. Wardens should report breaches to police rather than attempting forceful enforcement. Police and wardens should coordinate to avoid double handling.

Record keeping: While not explicitly required, maintaining records of permissions, conditions, revocations, and alcohol permits will assist in proving that an offence was committed if a person later claims they had permission. The Council should also keep records of warden appointments.