By Zeb Holmes and Ugur Nedim
The proposal would make it a crime for a convicted offender to associate with with another within five years of being given an official warning notice.
Tasmanian Labor has criticised the current bill for unjustifiably curtailing freedom of association, pointing to the unfairness of continuing to punish those who are merely trying to get on with their lives.
The party is pushing for a defence of attending religious or cultural events, such as weddings and funerals, but the state’s police minister Michael Ferguson says such a qualification would “render the intent of the bill obsolete”.
Labor is also pressing for the existing defence of being family to be broadened to include people other than immediate family members such as parents, offspring and siblings. The suggested amendment seeks to include uncles, aunties and cousins, and is especially relevant to Indigenous people where extended kinship relationships don’t necessarily follow bloodlines.
Restrictions on clothing
The move comes in the wake of legislation which prohibits motorcycle club members from wearing distinguishing markings, such as patches.
Labor and the Greens objected to these, with Labor MLC Josh Willie saying they are an unfair abrogation of the basic right to where what one likes, and impinge upon the separation of powers because the Police Minister and Attorney-General are empowered to decide which groups are affected.
“We believe these decisions are best placed in the court,” Mr Willie remarked.
Lack of consultation
The bill tabled was tabled in parliament last Tuesday morning and passed just two days later, with virtually no assessment or community consultation.
Labor police spokesperson, Shane Broad, informed the House of Assembly that concerns about the legislation have since been raised by the Tasmanian Bar Association, the Australian Lawyers Alliance, and Civil Liberties Australia.
The bill will ultimately be considered by the Tasmanian Legislative Council, where a number of independents who hold the balance of power will have the opportunity to debate its provisions.
Anti-consorting law in NSW
Section 93X of the NSW Crimes Act makes it an offence punishable by up to 3 years’ imprisonment and/or a fine of $16,500 fine to:
- Habitually consort with ‘convicted offenders’
- Consort with those people after being given an official warning regarding consorting with each of them.
The section provides that a person does not “habitually consort” with convicted offenders unless:
- the person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and
- the person consorts with each convicted offender on at least 2 occasions.
An “official warning” is one given by a police officer (orally or in writing) that:
- a person is a convicted offender, and
- consorting with that person is an offence.
A ‘convicted offender’ is one convicted of an ‘indictable offence’ – which is any that comes with a maximum penalty of more than 2 years imprisonment.
Declaring criminal organisations
Under the Crimes (Criminal Organisations Control) Act 2012, the Supreme Court can upon application declare that an organisation is a ‘criminal organisation’ for the purposes of the law, and make control orders in relation to its members
These orders can restrict the ability of members to associate with one other and recruit others, and prohibit them from participating in a range of otherwise lawful activities including certain types of employment such as tattoo parlours.
Ineffective and unjustified laws
In his 2016 “Review of police use of powers under the Crimes (Criminal Organisations Control) Act 2012”, acting NSW State Ombudsman Professor John McMillan blasted the state’s consorting laws as both ineffective and unjustified.
“We have concluded that the Act does not provide police with a viable mechanism to tackle criminal organisations, and is unlikely to ever be able to be used effectively,” Professor McMillian stated.
He said current consorting laws are, “onerous, resource-intensive, and involve difficulties.”
Professor McMillan observed “an exceptionally high level of police error” when consorting warnings were issued to children.
He found that 79% of the 133 warnings issued by police to juveniles incorrectly identified convicted offenders.
He further found that warnings disproportionately targeted minority groups, with half of the ‘warned’ or charged women identifying as Aboriginal, and 60% of children and young people doing so.
The professor strongly recommended the repeal of the laws, detailing in his report that they have failed to meet their stated objectives and been consistently misused in NSW as well as in Queensland, South Australia, Western Australia and the Northern Territory.