NSW Consorting Laws Upheld by High Court

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A recent bid to have controversial NSW consorting laws repealed has been unsuccessful, with the High Court upholding the current legislation.

Habitual consorting laws have been around since 1929, but were recently reviewed and updated to deal with an alleged spate of bikie-related crime.

The new laws state that it is an offence for an offender to consort with other known offenders on a habitual basis.

A number of legal and civil liberties groups have protested against the laws, on the basis they limit personal freedom and are open to misuse by police.

The High Court challenge

The legislation was challenged in the High Court by three men who were charged under the new laws.

Two of the men were bikies, and the other an intellectually disabled man who was charged after going shopping and taking walks with his housemates, who were also convicted ‘criminals’.

Their challenge was based on two main arguments.

The first was that the laws breached human rights and freedom of association, and the second was that it breached laws around freedom of communication.

The High Court ruled to uphold the laws on the basis that they aren’t federal laws and therefore are not legally a breach of international civil and human rights laws.

While the court did concede that the laws do impinge on freedom of communication, that was considered acceptable for a legitimate purpose of reducing criminal activity.

The challenge focused on a specific section of the anti-bikie legislation which was brought into force in 2012.

Section 93X of the NSW Crimes Act states that someone who habitually consorts with convicted offenders and continues to consort with them after they have been given an official warning is guilty of a criminal offence.

To be described as ‘habitually consorting’, the defendant has to have been in contact with at least two offenders on at least two separate occasions.

The penalties

Under the laws, there is a maximum three-year prison sentence or a $16,500 fine if a person who has been convicted of an indictable offence habitually consorts with other known criminals.

Under the legislation, police have to give an official written warning before they can charge a person.

If the person continues to consort after they have been warned, they could face heavy fines or even a prison sentence.

According to NSW Attorney General Brad Hazzard, the consorting laws allow police to better disrupt bikie gangs and organised criminal activities, but legal bodies including the NSW Law Society have raised a number of objections to the laws.

Human rights concerns

In October 2012, the NSW Law Society sent a letter to the then Attorney General requesting the repeal of Section 93X and Section 93Y of the Crimes Act.

The main grounds for this request were concerns that the laws undermine human rights obligations around freedom of expression and freedom of association.

Concerns were also raised that the laws interfere with the presumption of innocence until proven guilty by putting the onus on defendants to prove that their consorting was ‘reasonable’.

It is also suggested that the laws could leave people like medical practitioners, religious leaders and lawyers open to charges of consorting, even if they are just dealing with criminals in their professional capacity.

Potential for misuse

As well as the human rights and legal concerns around the consorting laws, there is also a high possibility that they can be misused or mistakenly used against people other than the organised crime gangs they are intended for.

In February this year, it was revealed that police had mistakenly given official warnings to at least 100 people in the time since the laws were brought into effect.

Many of the people involved were incorrectly identified as having a previous conviction, when they in fact had no criminal record.

The laws in their current form are so broad that anyone who has been convicted of an indictable offence can be the subject of them.

This includes any offence, even if it is relatively minor and not remotely related to the crime the person they’re consorting with has committed.

Crimes that were committed decades ago can still be taken into consideration for the purposes of these laws, even if the individual hasn’t committed any crimes since then.

The NSW Ombudsman estimates that close to 200,000 people in NSW have at one stage or another been convicted of an indictable offence, and in some communities, especially those with a higher than average rate of offenders, it may be difficult for people with conviction to avoid coming into contact with others who have committed an offence.

This could lead to certain sections of society being unfairly targeted by these laws, including Aboriginal people and homeless people.

But in spite of the many concerns that have been raised about them, this decision in the High Court means that NSW consorting laws appear to be here to stay, for now at least.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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