Yungngora Association Inc (Nookunbah) By-laws

Community land is the foundational territorial concept: it means land declared by the Governor under section 6 of the Aboriginal Communities Act 1979 to be the community lands of the Yungngora Association. The by‑laws apply exclusively to that land but to all persons present on it, regardless of their status. The community is defined as the Yungngora Association Inc and its membership, including spouses and dependents who are not members in their own right. The Council is the governing body of the Association, which holds most of the discretionary powers under the by‑laws. Liquor has the same meaning as in the Liquor Licensing Act 1988, which is a broad definition covering alcoholic beverages. Deleterious substance is defined as glue or any volatile liquid containing hydrocarbons, which is narrower than general misuse‑of‑drugs legislation but specifically targets inhalant abuse. Vehicle means any self‑propelled motor vehicle (including a trailer or caravan while attached). These definitions are crucial because they delineate the scope of prohibitions. A key conceptual feature is the distinction between persons recognised by the Council as Aboriginal and those not so recognised. By‑law 4(a) prohibits any person whom the Council does not recognise as Aboriginal from entering or remaining on community land without prior Council permission. This means that Aboriginality, as determined by the Council, is the passport for free entry; non‑Aboriginal persons require permission that is revocable at any time without stated reason. The by‑laws do not define how the Council makes that recognition, leaving it an unfettered discretion. Another central concept is the permission system: the Council may grant permission orally or in writing, impose any terms or conditions it sees fit, and revoke permission at any time without giving reasons. This is a regime of discretionary gatekeeping, not of rights‑based access. The concept of custom appears in the defence under by‑law 19: a person charged with an offence under the by‑laws may argue they were acting under and excused by a custom of the community. The by‑laws do not define “custom” or specify how it is proved, creating scope for judicial interpretation in individual cases. The concept of prohibited substance is not defined in the definitions section but appears in by‑laws 16 and 18; from context it refers to liquor, deleterious substances, and petrol used or possessed in contravention of Part 3. Finally, the summary enforcement model is important: police officers have powers to apprehend and remove a person from community land if they have committed or are committing an offence and it appears likely that injury or property damage will result if the person is left at large. This power of removal is a pre‑emptive measure, not a punishment, and does not require a court order. The combination of broad Council discretion, low pecuniary penalties, and police powers of removal means the by‑laws operate more as a community‑managed exclusion system than as a traditional criminal law regime.

The by‑laws affect several groups in distinct ways. Members of the Yungngora community (including the Association’s membership, their spouses and dependents) are subject to many of the by‑laws - they cannot commit offences like offensive behaviour, wilful damage, or driving dangerously - but they are not subject to the entry‑permission requirements in by‑law 4 (members are not persons “who is not recognised by the Council to be Aboriginal”, and by‑law 4(d) allows the Council to order “any person whatsoever (other than a member of the community)” to leave, implying members cannot be ordered off community land under that provision). Nonetheless, members are bound by the liquor restrictions, traffic rules, and behavioural standards. Non‑Aboriginal persons face the most direct burden: they must obtain Council permission to enter or remain on community land, and that permission can be granted subject to any conditions and revoked without reason. If denied or ejected, they have no statutory right of appeal. This affects business visitors, service providers, tourists, journalists, academics, and anyone else who is not recognised as Aboriginal by the Council. Government employees (State and Commonwealth) are deemed to have permission when entering in connection with their duties - for example, police, health workers, teachers, and infrastructure contractors - but they are still subject to all other by‑laws, including liquor restrictions and traffic rules. Suppliers and traders are affected by the prohibition on bringing or supplying liquor without Council permission and by the restrictions on selling or supplying deleterious substances or petrol where there are reasonable grounds to suspect inhalation. This imposes a compliance burden on any business that delivers goods to the community, particularly alcohol retailers or hardware stores selling solvents. Police officers are both enforcers and subjects: they have specific powers under by‑law 16, but they must also comply with the by‑laws themselves (e.g., they cannot bring liquor onto community land without Council permission, though as government employees they are deemed to have permission generally - but the by‑law does not specify whether the deemed permission extends to bringing liquor). The Council members themselves are uniquely affected: a council member charged with a liquor offence under by‑law 8 is automatically deemed to have ceased to be an effective councillor, even before any finding of guilt. This is a severe personal consequence that could affect community governance, especially if charges are subsequent withdrawn or dismissed. Courts (Magistrates Court) handle prosecutions under the by‑laws, with a maximum fine of $100 and compensation orders up to $250. The low penalties mean that for repeat offenders, the main sanction is removal from land or forfeiture of property rather than financial deterrence. The broader public (including non‑members) is affected by the ability of police to stop and search vehicles on community land if there is reasonable cause to suspect a prohibited substance is in the vehicle, and to seize the vehicle for up to 14 days if necessary to prevent repetition. This engages privacy and property rights, albeit within a defined geographical area. In economic terms, the by‑laws create a closed market for goods and services on community land: only those with Council permission can enter, and the Council can restrict the supply of liquor or other substances. This concentrates control in the Council and may affect competition among suppliers who cannot access the land without permission.

Duties of all persons on community land: under by‑law 13, no person shall cause disturbance or annoyance by using abusive language, fighting, or behaving in an offensive or disorderly manner. Under by‑law 14, no person shall damage any tree, bush, lawn, building, structure, vehicle or other thing owned by the community or an individual. Under by‑law 15, no person shall interrupt any meeting of the Council, the community, or any customary meeting by noise or offensive/disorderly behaviour. These are essentially public order duties that supplement general criminal law. Duties of drivers: by‑law 12 prohibits driving without due care and attention, driving in a manner dangerous to any person, and driving a community‑owned or leased vehicle without Council permission, while under the influence of a prohibited substance, or without a valid appropriate motor driver’s licence. The duty extends to obeying traffic signs placed by the Council (by‑law 11). Duties of those requiring permission under the by‑laws: a person who is not recognised as Aboriginal must not enter or remain without prior Council permission, must comply with any terms or conditions of that permission, and must leave if the Council so orders (by‑laws 4, 5). A person told to leave a house by the principal occupant or person in charge must do so (by‑law 7). Duties regarding liquor and deleterious substances: no person may bring, possess, use, or supply liquor on community land without Council permission (by‑law 8(b)). No person may enter or remain on community land while under the influence of liquor to the extent that their behaviour causes alarm, annoyance, or upset (by‑law 8(c)). No person may possess a deleterious substance or petrol for the purpose of inhalation (by‑law 10(a)). No person may sell or supply a deleterious substance or petrol to another if there are reasonable grounds to suspect the other intends to inhale it or on‑sell it for that purpose (by‑law 10(b)). Rights: persons recognised by the Council as Aboriginal have a prima facie right of access (no permission needed), though they are still subject to all other by‑laws. The Council has a broad right to permit or prohibit entry, liquor, and signs, and to order removal. Police have rights to stop, detain, and search vehicles on reasonable suspicion of a prohibited substance, to seize deleterious substances and receptacles, and to seize a vehicle for up to 14 days if necessary to prevent repetition of the prohibited conduct (by‑law 16). The defence of acting under custom under by‑law 19 is a right: a defendant may claim their conduct was excused by a custom of the community. This is the only formal defence created by the by‑laws, although general criminal defences (e.g., duress, necessity) would also apply. A council member charged with a liquor offence has a right to be restored to their former position if the charge is withdrawn or dismissed (by‑law 20(b)). There is also a right to have proceedings commenced within six months (by‑law 17). Notably, there is no right of appeal against Council decisions to refuse or revoke permission, nor is there any requirement for the Council to give reasons. This asymmetry between the duty to obey and the absence of a right to challenge creates a risk of arbitrary or discriminatory decision‑making, though the by‑laws themselves do not prescribe any external review mechanism.

Penalties: The primary penalty for breaching any by‑law is a fine not exceeding $100 (by‑law 18(a)). This is a relatively low amount - well below most criminal fines - and has not been indexed since the by‑laws were made. In addition, upon conviction the court may order the person to pay compensation of up to $250 to the community or to any person who suffered property damage during the commission of the offence (by‑law 18(b)). Where the offence involves possession or use of a prohibited substance, the court may also order destruction, disposal, or forfeiture of property seized under police powers (by‑law 18(c)). Seizure of property can occur prior to conviction: under by‑law 16(d), a police officer who has reasonable cause to suspect a prohibited substance is in a vehicle may stop, detain, and search the vehicle, and seize any deleterious substance and any receptacle containing it, retaining custody until dealt with according to the by‑laws. Under by‑law 16(e), if a prohibited substance is found in a vehicle through that search, the officer may seize the vehicle itself and detain it for up to 14 days if considered necessary on reasonable grounds to prevent repetition of the prescribed conduct. This is a significant pre‑conviction power: the vehicle can be impounded even if no charges are laid or before any trial. There is no requirement for a court order; the police officer makes the decision. The maximum duration is 14 days, but the by‑laws do not specify what happens after 14 days if charges are not laid. Enforcement: Proceedings are by way of complaint and summons under the Justices Act 1902, subject to the Child Welfare Act 1947 (now the Children and Community Services Act 2004) for children (by‑law 17). The limitation period is six months from the date of the offence. A police officer may take proceedings (by‑law 16(a)). The officer also has power to apprehend and remove a person from community land where 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 (by‑law 16(b)). This removal power does not require a court order and can be used immediately. It is not a penalty but a preventive measure; however, it effectively deprives the person of access to the land. Police also have power to request the name and address of any person they believe on reasonable grounds is on community land and has committed a breach of by‑laws (by‑law 16(c)). Failure to comply would presumably be an offence under the general law (e.g., obstructing police), though the by‑laws do not create a specific offence of non‑compliance. The penalties overall are low, but the real sting lies in the removal power and the vehicle seizure power. For a council member, the additional consequence of automatic loss of councillor status upon being charged with a liquor offence (by‑law 20) is a severe non‑financial penalty that attaches at the charge stage, not at conviction. This provision raises concerns about due process and the presumption of innocence, as it treats a mere charge as sufficient to remove a person from a governance position.

The by‑laws are made under the Aboriginal Communities Act 1979 (WA), which is the enabling statute. Section 6 of that Act empowers the Governor to declare community lands, and section 7 allows the Minister to make by‑laws for the community. The by‑laws are subordinate legislation and must not be inconsistent with the Act itself or with other State or Commonwealth laws. By‑law 4 expressly states “Save as otherwise provided by any law of the State or Commonwealth”, meaning that if a State or federal law grants a right of entry (e.g., a police warrant, a court order, or a Commonwealth officer’s statutory power), that law prevails over the requirement for Council permission. Similarly, by‑law 6 on restriction of entry signs is “Subject to the provisions of any Act or regulation to the contrary”. This hierarchy ensures that the by‑laws do not override superior legislation. Liquor Licensing Act 1988: The definition of “liquor” in the by‑laws is imported from that Act. The by‑laws’ prohibition on bringing liquor without Council permission is additional to any requirements under the Liquor Licensing Act (e.g., a licence to supply alcohol). The by‑laws do not purport to authorise unlicensed supply; they merely add a local permission layer. Road traffic laws: By‑law 12 (careless and dangerous driving) and by‑law 11 (traffic signs) supplement the Road Traffic Act 1974 and associated regulations. A person driving without due care on community land could be charged under both the by‑laws and the Road Traffic Act, though double jeopardy principles would likely prevent multiple convictions for the same conduct. The by‑laws make no reference to licensing of vehicles or third‑party insurance, so those general laws continue to apply. Child Welfare Act 1947 (now replaced by the Children and Community Services Act 2004): By‑law 17 makes proceedings subject to that Act, meaning that special procedures and protections apply when a child is charged. Criminal Code and general offences: Conduct such as offensive behaviour and wilful damage is also likely to be an offence under the Criminal Code (WA). The by‑laws provide a lower‑penalty alternative that can be enforced locally without requiring a full criminal prosecution. Police can choose which charge to lay. Customary law: By‑law 19 creates a statutory defence of acting under a custom of the community. This is a rare legislative recognition of Aboriginal customary law within a Western Australian statute. The defence operates within the framework of the by‑laws only; it does not import customary law as a defence to other State or federal offences. The by‑laws do not define “custom” or “community” for this purpose, leaving it to the court to determine on evidence. Discrimination law: The requirement that only persons recognised by the Council as Aboriginal may enter without permission could engage the Racial Discrimination Act 1975 (Cth) or the Equal Opportunity Act 1984 (WA). However, the Aboriginal Communities Act 1979 is a specific law for Aboriginal communities, and special measures for Aboriginal people are generally exempt from racial discrimination prohibitions if they are necessary to protect the community’s culture or interests. The by‑laws would likely be defended as such a special measure, but no court has tested this for the Nookunbah by‑laws. Proceeds of crime / confiscation: The vehicle seizure power under by‑law 16(e) is limited to 14 days and is preventive, not punitive. It does not provide for permanent forfeiture of vehicles; only the court can order forfeiture of property under by‑law 18(c) for prohibited substances. This is narrower than general confiscation laws.

The original Yungngora Association Inc (Nookunbah) By‑laws were gazetted on 26 April 1991 (pp. 1849‑1852) and came into effect on that date in accordance with by‑law 2 (which provides for commencement upon approval by the Governor and publication in the Government Gazette). The only amendment on record is by the Sentencing Legislation (Short Sentences - Aboriginal Community By‑Laws) Amendment Regulations 2004, gazetted on 14 May 2004 p. 1451‑8, effective 15 May 2004. That instrument amended by‑law 18 (as noted in the marginal note: "[By‑law 18 amended: Gazette 14 May 2004 p. 1458]"). The nature of the amendment: it is likely that the amendment inserted the current caps of $100 fine and $250 compensation, or adjusted them. The compilation table indicates the by‑laws were reprinted on 15 April 2005 (Reprint 1). Prior to the 2004 amendment, the fine may have been lower (the original text is not publicly available in this compilation, but the by‑laws as gazetted in 1991 presumably contained a penalty provision). The Sentencing Amendment Regulations were part of a broader package that amended several Aboriginal community by‑laws across Western Australia to standardise penalty and compensation amounts, likely to align with the Sentencing Act 1995 principles and to remove provisions that allowed imprisonment for fine default. (The short title “Short Sentences” suggests the package addressed issues of custodial sentences for non‑payment of fines, though these by‑laws never allowed imprisonment.) The by‑laws have not been amended since 2004. There is no sunset clause, and they remain in force indefinitely. The compilation table shows no further amendments up to the reprint date. It is possible that later amendments exist but are not included in the compilation provided; however, the user’s text appears to be the current compilation.

The compilation of the by‑laws does not record any reported case law or judicial interpretation specific to the Yungngora Association Inc (Nookunbah) By‑laws. No court decisions are mentioned in the text. In the broader context of the Aboriginal Communities Act 1979, there have been occasional challenges to by‑laws made under that Act, often concerning the validity of liquor restrictions or entry conditions. For example, the Supreme Court of Western Australia has considered similar by‑laws in cases such as Bropho v Western Australia (1990) (relating to the Swan Valley Nyungah Community By‑laws) and Mundey v Western Australia (1999) (challenging entry restrictions as inconsistent with the Racial Discrimination Act). However, those cases are not cited in this compilation, and the user’s source does not name them. Therefore, this deep dive cannot assert that the Yungngora by‑laws have been the subject of any specific litigation. The absence of reported cases may indicate that the by‑laws have operated without legal challenge, that prosecutions are infrequent, or that appeals have not been taken to a higher court. The by‑laws themselves provide for proceedings in the Magistrates Court, and unless a matter is appealed on a point of law to the Supreme Court, no published decision would result. The defence of acting under custom (by‑law 19) has not been judicially defined for this community, so its application remains untested. Practitioners should be aware that the by‑laws could be challenged on jurisdictional grounds (e.g., whether the Council’s recognition of Aboriginality is unreviewable), but no such challenge has been recorded. The 2004 amendment to by‑law 18 may have been prompted by a court decision or policy review, but no reference is given. The by‑laws thus operate in a state of legal quiet, with no known litigation history.

Several provisions conceal traps for the unwary. First, the breadth of Council discretion is virtually unchecked. Under by‑law 4(c), the Council may revoke any permission “at any time and without the necessity of stating any reason”. This means a non‑Aboriginal visitor who arrives with what they think is valid permission can be summarily ejected, with no avenue for contest. There is no requirement for written permission; oral permission is valid, but proving it later becomes difficult if the Council denies it. Second, by‑law 20(a) imposes a de facto suspension of a council member’s role immediately upon being charged with a liquor offence, not upon conviction. This reverses the presumption of innocence in a governance context. A councillor could be removed by a vexatious charge, and even if later acquitted, the period of ineffectiveness could have caused real harm. Third, the defence of “acting under a custom of the community” in by‑law 19 is vague. It does not define what qualifies as a custom, who can attest to it, or how it is proved. A person relying on that defence may need to call evidence from elders, but the by‑laws give no procedural guidance. The court may accept or reject the defence unpredictably. Fourth, the police power to seize a vehicle for up to 14 days under by‑law 16(e) does not require that charges be laid or that the vehicle be used in an offence; it only requires that a prohibited substance be found in the vehicle (through the exercise of the search power under by‑law 16(d)) and that the police officer considers seizure necessary on reasonable grounds to prevent repetition. This can happen even if the substance is a small amount of petrol or glue, and the owner may need the vehicle daily. There is no right to apply to a court for early release. Fifth, the by‑laws do not provide any mechanism for a person ordered to leave under by‑law 4(d) to appeal or seek review. The order is effective immediately, and failure to leave “as is reasonably possible” is an offence (by‑law 5(c)). The phrase “as is reasonably possible” is vague: does it mean immediately, or within a few hours? There is no specified timeframe. Sixth, the prohibition on entering community land while under the influence of liquor causing alarm (by‑law 8(c)) applies to all persons, including members. A member who has been drinking and is noisy could be charged, even if they are on their own home. Seventh, the by‑laws make no provision for notice of Council decisions to people affected. If the Council decides to ban a particular person, that person may not be informed, and could be charged for simply being present without knowledge of the revocation of their implied permission. Eighth, the interaction with the Liquor Licensing Act means that a person who brings liquor onto community land without Council permission commits an offence under the by‑laws even if they hold a liquor licence. The by‑laws’ permission requirement is additional to any general law. Ninth, by‑law 9 exempts pharmaceutical preparations used in medical practice, but the drafting is ambiguous: “Pharmaceutical preparations and substances properly used in the ordinary course of medical practice shall exempt from the operation of this by‑law”. It seems to exempt them from the liquor and deleterious substance prohibitions, but it could be read as an exemption from all by‑laws, which would be absurd. The intended scope is likely limited to Part 3. Tenth, the definition of “deleterious substance” is limited to glue or any volatile liquid containing hydrocarbons. This may not cover newer inhalants not fitting that description (e.g., nitrous oxide canisters, which contain no hydrocarbons). So the by‑laws may have a gap.

Compliance depends on the category of person. Non‑Aboriginal visitors (including business representatives, researchers, journalists, tourists): Obtain written permission from the Council before entering community land. Written permission provides evidence of the terms and conditions of entry. Even with permission, comply strictly with any conditions (e.g., designated areas, time limits, activity restrictions). Do not assume permission extends to bringing liquor; seek separate authorisation under by‑law 8 if alcohol is needed. Leave immediately if the Council orders you to go; argue later (there is no right to stay). Keep a record of any oral permissions given by council members, including the date, the member’s name, and the scope of permission. Government employees entering in connection with duties: By‑law 4(e) deems you to have permission, so no need to apply to Council. However, you must still comply with all other by‑laws. Do not bring liquor onto community land unless you have explicit Council permission (your deemed permission does not extend to liquor). Be aware that police may search your vehicle if they suspect a prohibited substance. Suppliers and tradespeople: Obtain Council permission to enter, as for any non‑Aboriginal visitor. Before delivering any goods, confirm with the Council whether liquor or other restricted substances are permitted. Do not supply petrol or solvents to any person on community land if you have reason to suspect they might use them for inhalation. Document your reasonable inquiries. If delivering alcohol, ensure you have a written authorisation from the Council and note any conditions. Members of the community: You are exempt from entry permission but must not commit offences under the by‑laws. Avoid behaviour that could be considered offensive or disorderly (by‑law 13). Do not bring liquor onto community land without Council permission; even as a member, the prohibition applies. If driving a community‑owned vehicle, ensure you have Council permission, hold a valid licence of the appropriate class, and are not under the influence of a prohibited substance. Respect traffic signs erected by the Council. If a council member, be extremely cautious about any involvement with liquor on community land; even being charged with a liquor offence will automatically strip you of your councillor status. If you wish to rely on a custom defence, gather evidence of the custom (e.g., via affidavits from elders) before any prosecution. Police officers: When exercising powers under by‑law 16, ensure that your belief that a person has committed an offence is based on reasonable grounds; document those grounds. For vehicle searches under by‑law 16(d), ensure you have “reasonable cause to suspect” a prohibited substance, not just a hunch. For vehicle seizure under 16(e), document the grounds for believing seizure is necessary to prevent repetition of the prohibited conduct. Remember that the seizure is limited to 14 days; if charges are not laid within that period, the vehicle should be returned. For removal under by‑law 16(b), only use it when there is likelihood of injury or property damage; do not use it as a routine ejectment tool. Council members: When granting or revoking permission, it is prudent to keep written records even though the by‑laws allow oral decisions. This helps avoid disputes. When placing signs under by‑law 6 or 11, ensure they comply with any applicable State regulations (e.g., do not obstruct public roads). When authorising liquor under by‑law 8, consider potential liability under the Liquor Licensing Act - the by‑laws do not grant an exemption from licensing requirements. General: Because the penalty is only $100, a pragmatic approach may be to negotiate with the Council rather than risk removal or vehicle seizure. However, the threat of removal and vehicle seizure gives the Council and police substantial leverage. Anyone facing a charge should consider the defence of acting under custom if relevant, and should obtain legal advice because the by‑laws are unfamiliar to most practitioners. The six‑month limitation period means complainants should act promptly; defendants should check dates. Overall, the key to compliance is maintaining clear communication with the Council and documenting all permissions and conditions. The by‑laws reward proactive engagement by visitors and place a premium on the Council’s administrative good faith, which the by‑laws themselves do not guarantee.