Recent figures reveal that NSW police have issued over 8,500 warnings and charged 54 people with ‘consorting’ over the past four years, renewing concerns that the laws unfairly target individuals for simply associating with those who have ‘done their time’ and want to get on with their lives.
Controversial ‘anti-consorting’ laws came into effect in 2012 through the enactment of section 93X of the NSW Crimes Act, which make it a crime to ‘habitually consort’ with anyone who has been convicted of a crime.
Acts which can constitute ‘consorting’ include everyday activities such as meeting up with the person, speaking with them on the phone or communicating by email; even if the contact has nothing to do with illegal activity.
To be found guilty, a person must have “consort[ed]with at least 2 convicted offenders (whether on the same or separate occasions), and… with each convicted offender on at least 2 occasions”.
The stated purpose of the section is to disrupt the activities of ‘outlaw’ motorcycle groups, but there is no evidence they have achieved that objective.
The law prescribe a maximum penalty of three years’ imprisonment and $16,500 fine for anyone who continues to associate with convicted offenders after receiving an official warning from police.
Anti-consorting laws have been criticised on the basis that they:
- remove an individual’s freedom to associate with who they please,
- isolate and alienate people who have duly served their debt to society and want to move forward with their lives, and
- provide a tool for police to target and harass members of the public who have done nothing inherently wrong.
As Greens MP David Shoebridge points-out:
“The fundamental problem with consorting laws is that they’re potentially putting people in jail not because they’ve committed a criminal offence…
People are going to jail because they’ve met with somebody the police didn’t want them to meet with, or they’ve emailed someone the police didn’t want them to email.”
Predictably, police have strongly defended the laws:
“These laws have been very successful as one of our tools we have in the disruption of criminal gangs,” Gangs Squad Commander Detective Superintendent Deb Wallace said. “We use these laws really judiciously, and we apply it very carefully.”
Police claim the laws are successful because 42 of the 54 people charged are members of motorcycle clubs, but are unable to point to any evidence the laws have fulfilled their stated objective, or done anything other than unfairly criminalise people for hanging around with each other.
General Use of the Laws
Although around 60% of warnings were indeed handed-out by the NSW Police Gangs Squad (the intended recipient of the powers), there are concerns that the other 40% were issued by officers from individual local area commands.
Indeed, police now admit to using the laws for purposes other than originally intended:
“It’s not necessarily they’re always used for gangs, they can be used if there’s some significant crime happening in a local community and it’s appropriate to use it for that purpose,” Ms Wallace said.
Unfairly Affecting the Disadvantaged
The laws have also been criticised for disproportionately impacting upon disadvantaged and vulnerable groups.
The Brotherhood Christian Motorcycle Club is an organisation which actively supports marginalised groups in the community. The Club’s Sergeant-at-Arms, Greg Hirst, says:
“With this legislation it means they can effectively target the homeless, young people, Indigenous people and motorcycle people because we all look a certain way and they’re often working on prejudices and stereotypes.”
Mr First’s views are supported by a 2013 NSW Ombudsman’s report, which found that 7% of consorting warnings were issued to those aged between 13 and 17 years, while Indigenous people were issued with a whopping 40% of all warnings, despite making up only 2.5% of the NSW population.
High Court Challenge
A challenge to consorting laws was heard by the High Court of Australia in 2014, which ultimately ruled that the laws are constitutionally valid.
The Court essentially found that our Constitution does not guarantee freedom of assembly or association, and that any implied freedom was expressly overridden by Parliament through the enactment of the laws.
Since the decision, the number of people charged with consorting has skyrocketed – only two people were charged in 2014, which increased to 32 between January and September 2015.
“We weren’t going to charge people if we thought the law wasn’t going to be validated, so we waited until we got the validity from the High Court challenge,” Ms Wallace said.
Of the 32 charged in 2015, 20 were convicted, compared to only one each year in 2012, 2013 and 2014.
Criminalising the Community
It is important to be aware that anti-consorting laws can be used against anyone who chooses to be friends with someone who has previously been convicted of a crime. The act of consorting can occur in your home, on the street, at a pub, supermarket or even on the phone or online.
In fact, the first person ever charged under section 93X was not a member of a motorcycle club at all, but a 21-year-old Northern NSW man with an intellectual disability. He was initially charged while out shopping with friends and sentenced to nine months in prison. Ironically, he was reported to have been arrested and placed in custody with the ‘criminals’ he was not supposed to associate with.
Thankfully, the man’s conviction was ultimately overturned on appeal.
So while some may think police are only using the powers against ‘dangerous’ people, the facts tell a different story.