Recent measures to reduce organised criminal activity have been challenged by the Australian Human Rights Commission, although they continue to be defended by NSW Solicitor-General Michael Sexton as a legitimate way to prevent convicted criminals and bikies planning future crimes.
The controversial new consorting laws were introduced in April under the Crimes Amendment (Consorting and Organised Crime) Act 2012 (NSW).
These laws brought in a range of different measures intended to limit the ability of convicted offenders to communicate and interact with each other.
Since the inception of these laws, there have been a number of convictions and instances of people being given official warnings by police.
Last year, the Australian Human Rights Commission teamed up with Nomads bikie boss Sleiman Tajjour to challenge the new laws in the High Court as an infringement of human rights, specifically the right of association and communication.
Civil rights groups have also raised concerns that these police powers could be abused and used to target more vulnerable sections of the community.
What is the legal definition of consorting?
According to Section 93X of the Crimes Amendment Act, consorting is a criminal offence if a person habitually consorts with convicted offenders after being given an official warning by police officers.
The warning doesn’t need to consist of any particular wording and can be given orally or in writing.
The warning has to include information that the person the accused is associating with is a convicted offender and that consorting with them is an offence.
To be found guilty of consorting, a person has to communicate with at least two convicted offenders on at least two occasions each.
To be considered a convicted offender for the purposes of this law, the offender needs to have committed an indictable offence which hasn’t elapsed.
Consorting can be in person, over the phone or through social media or electronic communication.
Consorting comes with a three-year prison sentence or a $16,500 fine.
There doesn’t need to be any evidence that the consorting took place with any criminal purpose or objective for a conviction to occur.
Coincidental meetings are not included within the definition of consorting.
Some types of consorting are not counted under the legislation.
This includes consorting between family members, during the course of lawful employment, for business, education or through the provision of health or legal services.
If defending themselves on the basis that the consorting was for a legitimate reason, the accused may need to be able to show that any consorting which took place was reasonable under the circumstances.
Why were these laws created?
The consorting laws were created as a way to crack down on bikie gangs and organised crime after a spate of drive by shootings in south-western Sydney.
The idea behind the legislation is that preventing criminals from associating with each other will lead to a reduction in planned, organised criminal activities in the future.
What is wrong with these laws?
The consorting laws have been widely criticised as a violation of human rights.
The Human Rights Commission of Australia has teamed up with a number of prominent bikies to challenge these laws in the High Court on the basis that they could lead to violations of a number of human rights, including freedom of association and freedom of expression.
As well as human rights violations, privacy is another issue which is raised by these laws.
The official warning given by police includes informing people of other people’s criminal convictions, and it has been argued that this forms a breach of privacy and could make it difficult for those with a previous criminal history to reintegrate into the community and move on with their lives.
Concerns around the possibility of this law being misused to target other sections of the community have been raised and were illustrated in 2012 when an intellectually disabled man was sentenced to between nine and 12 months in jail after consorting with three friends and housemates who had prior convictions.
Charlie Foster, a 21-year-old from Inverell, was born with an intellectual disability and is unable to read or write.
He was sentenced under the consorting laws for taking a series of walks and going shopping with three of his friends who he had known from childhood and who had criminal convictions.
Although they were associates, they had no history of planning crimes together and couldn’t be described as a criminal gang.
The majority of their walks were believed to be for the purposes of paying rent and picking up groceries.
Charlie Foster’s conviction was later overturned after flaws were found in the case against him.
Although the consorting laws have a number of supporters in the NSW Government and the NSW Police Force, they have faced a barrage of criticism from human rights campaigners and a number of criminal defence lawyers.
It is particularly concerning that these laws could be misused to target vulnerable members of the community who have no associations with organised crime or bikie gangs.