Consorting Laws, Penalties and Defences in NSW

Poppy Morandin and Jimmy Singh.

 

‘Consorting’ laws, formulated to target outlaw motorcycle gangs in New South Wales, have been found to disproportionately criminalise Indigenous Australians, as revealed by the Law Enforcement and Conduct Commission.

The Law Enforcement and Conduct Commission (LECC) has begun reviewing the use of consorting laws, with preliminary findings revealing that 40% of people subject to consorting laws in NSW between February 2019 and June 2020 were Indigenous.

Furthermore, 25% of children aged 14 to 18 years old that were subject to the laws in the same period were Indigenous.

An internal memo of the findings was presented to a parliamentary committee investigating high rates of Aboriginal incarceration in NSW.

As reported by The Guardian, the memo states that the LECC is “concerned by the high rates of Aboriginal people subject to the consorting laws” and “will be seeking advice” from police “about what can be done to reduce the over-representation”.

Consorting laws were one of the Barry O’Farrell’s NSW Government’s main responses to heightened anxiety about organised crime gangs and gun violence following a spate of drive-by shootings in Sydney in 2012.

It formed part of a wider campaign against ‘bikie gangs’ and essentially criminalises association with convicted offenders.

However, despite being aimed at curbing ‘bikie gangs’, NSW Police made a policy decision to not limit use of the consorting law to serious, organised gangs.

After the first three years of the law’s operation in 2016, the NSW Ombudsman released a report reviewing the offence.

It found that without explicit restrictions regarding the criminal offending to be targeted, the laws had been applied to a wide range of policing issues ranging from antisocial behaviour, minor offences to the most serious criminal offences.

“The breadth of the…law means that the main constraint on its application is the exercise of discretion by police officers. Police have significant discretion in deciding who they will warn, who will be warned about, and whether to bring charges.” stated Professor John McMillan, the Acting Ombudsman.

The NSW Ombudsman found that Indigenous Australians comprised 38% of people issued with a warning, 42% of ‘convicted offenders’ who were the reason for a warning, 50% of all women subject to consorting laws and 59% of young people in the NSW Police consorting database.

Over-representation of Indigenous Australians in the criminal justice system creates a substantially increased potential for Aboriginal people, and people they spend time with, to become subject to consorting laws.

“The impacts of the consorting law on Aboriginal people and communities are significant and arguably undermine other measures that attempt to improve relationships between Aboriginal people and police and reduce rates of involvement in the criminal justice system for Aboriginal people.” said Professor McMillan

“The fact that the Gangs Squad data contain the lowest proportion of use in relation to Aboriginal people is noteworthy given the references to tackling organised crime and criminal gangs in the second reading speech when the new consorting law was introduced.” he continued.

Strike Force Raptor, a unit within the Gangs Squad of NSW Police, asserted that the law had been effective in relation to high risk ‘bikie gangs’ due to disrupting their ability to publicly associate.

“The best thing about the consorting law is that OMCGs power and strength comes from the size and strength of the gang. This is undermined when the gang is broken up into individuals.” they submitted.

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Consorting Laws in NSW

An intellectually disabled 21-year-old man, Charlie Foster, was the first person to be charged with ‘habitually consorting’ under s 93X Crimes Act 1900 (NSW), for ‘hanging out’ with friends.

After being convicted in the Local Court, and serving most of his 12-month sentence, his appeal to the Supreme Court was successful, in which the court held that a casual, chance encounter between persons does not constitute consorting (Forster v DPP [2017] NSWSC 458).

‘Habitually consorting’ requires the intentional seeking out of something in the nature of companionship, with this involving consideration by the court of the number of times a person had been in company with reputed criminals, and the circumstances (Tajjour, Hawthorne and Forster [2014] HCA 35).

According to section 93C of the Crimes Act 1900 (NSW), it is a crime carrying up to 3-years imprisonment or a $16,500 fine, or both if you habitually consort with convicted offenders, after receiving an official warning in relation to each of those convicted offenders.

In other words, you will be up for the above maximum penalty if you meet with at least two people, who each have a criminal record, on at least two occasions, and you intentionally sought out the company of each of those people, and in relation to each of those people who have a criminal record, you were given a warning by police that:

  • The person is a convicted offender; and
  • Consorting with that person is an offence.

Put another way, in order to ‘habitually consort’ a person has to have consorted with at least 2 convicted offenders (whether on the same or separate occasions), on at least 2 occasions.

Police officers giving an official warning will entail them detailing, orally or in writing, that a certain person is a convicted offender, and habitually consorting with convicted offenders is an offence.

An official warning will cease to have effect if the warning is given to a person under the age of 18 years 6 months after the warning is given, or 2 years after the warning is given, in any other case.

For the purposes of this offence, a ‘convicted offender’ means a person who has been convicted of an indictable offence, which is a serious offence where the maximum penalty imposed can exceed two years in jail.

 

Defences to Consorting Charges

Pursuant to section 93Y of the Crimes Act 1900 (NSW), defences available to the offence of consorting include where the defendant can satisfy the court that it was reasonable, due to the consorting:

  • being with a family member,
  • occurring in the course of lawful employment or the lawful operation of a business,
  • occurring in the course of the provision of a health service or welfare service,
  • occurring in the course of the provision of legal advice,
  • occurring in lawful custody or in the course of complying with a court order,
  • occurring in the course of complying with an order granted by the Parole Authority,
  • occurring in the course of complying with a case plan, direction, or recommendation by a staff member of Corrective Services NSW,

occurring in the course of providing transitional, crisis or emergency accommodation.

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