WHAT IS CONSORTING?
It is a criminal offence if, after receiving an official warning not to, you habitually consort with a convicted offender. This includes meeting at least 2 people on at least 2 occasions, who each have a criminal record, provided you intentionally sought out those peoples company. This applies only if a police officer has, prior to you doing this, warned you that the person is a convicted offender and that consorting with him or her is an offence. This offence carries up to $16,500 fine and/or 3 years imprisonment under section 93X Crimes Act 1900 (NSW).
A review has recommended that Parliament amend current consorting laws so that police can focus on targeting serious organised crime and cannot use them against children.
Consorting laws essentially seek to prevent people from associating with convicted offenders by prescribing heavy penalties for the various types of consorting that it seeks to criminalise.
Persons can only be charged with the offence if they have previously received a formal warning from an officer detailing that a certain person is a convicted offender and habitually consorting with convicted offenders is an offence.
Consorting laws largely differ from ordinary offences in that it is a 'pre-inchoate' offence.
This means that liability is imposed on a person prior to doing anything wrong or planning to do so.
It can thus lead to entirely innocent conduct being criminalised, such as continuing to merely maintain a friendship with someone, after receiving a warning.
In 2012, the laws formed the then state government's main response to organised crime gangs and gun violence, following a spate of drive-by shootings in Sydney.
The review conducted by the Law Enforcement Conduct Commission ('LECC') focused on the 3-year period from 2019-2022, and primarily examined amendments to the laws introduced in 2018.
These amendments enabled police to issue warnings about offenders who had been convicted of offences in states other than NSW and limited the use of consorting laws to people over the age of 14.
They also enforced that a warning stays in place for 6 months for people under 18 years and for 2 years for adults and clarified what should go in a consorting warning.
Extra defences were created to a charge of consorting including where it occurs during compliance with directions from the State Parole Authority and Corrective Services officers, engaging in welfare services or transitory accommodation arrangements, as well as when associating within Aboriginal kinship systems.
In the period between 2019 – 2022, police issued 16,480 warnings to 2,671 people, with general duties police officers giving 79% of these warnings.
Police charged 11 people with consorting, with one person charged twice.
Notably, whilst no one under 18-years old was charged during this period, 48 people who were under 18-years old received a warning.
Whilst the LECC conceded that police had only charged adults and reduced the number of consorting warnings issued to young people in this period, it emphasised that further changes were still required.
The basis of this was largely due to how warnings issued to young persons appeared to target low level activity that does not fit the definition of 'coordinated serious criminal activity' and how amendments would ensure no young person is charged in the future.
The report noted an overwhelming theme of police utilising the laws to target less serious offending, which stands in stark contrast to their original purpose of curbing 'bikie gangs'.
This included two men who were issued with warnings after being stopped by a police officer whilst biking home together after purchasing burgers and drinks.
The officer asked for their details and after noting that both had prior drug-related convictions, decided to search both men – which returned nothing.
The officer asked how they knew each other, with both men indicating that they met at a methadone clinic. He then issued both men with a verbal consorting warning, telling them "I've got a job to do and you two shouldn't be together."
Another incident included that of two men in a regional town, who were stopped by police and questioned as to why they were together.
The men had met in gaol, with police issuing both men with consorting warnings about each other.
One of the men, whilst accepting the warning, noted that the scheme would essentially mean that he couldn't 'hang around' with half of the town due to either his or their conviction history.
It is also notable that police retain discretion regarding whether to issue a warning, with this related to a judgement regarding whether 'observed behaviour would form or reinforce criminal ties'.
The report expressed worry at the practice of many officers who told persons being warned that they have no choice but to issue a warning once they know that someone has a conviction for an indictable offence.
However, it does note that police Standard Operating Procedures were changed in 2022 to emphasise that application of consorting legislation must be appropriate to the circumstances presented.
The procedures now advise that "officers should use discretion and consider whether the interaction was reasonable in the circumstances or if the behaviour forms or reinforces criminal ties."
Officers also now have to be able to 'articulate the reasons for reaching' the decision to issue a consorting warning.
The LECC has ultimately recommended that the law should be amended to seek to ensure that police only utilise consorting warnings and charges to target and disrupt serious organised criminal activity.
This may include an amendment to the law stating that their purpose is to prevent serious criminal offending.
Chief Commissioner of the LECC Peter Johnson SC stated: "consorting laws carry serious penalties and are designed to target and disrupt the most serious types of organised criminal activity...The law should clearly state this intention."
Consorting is criminalised under Division 7 of the Crimes Act 1900 (NSW).
Section 93X of the Act provides that a person (other than a person under the age of 14 years) who habitually consorts with convicted offenders, after having been given an official warning in relation to each of those convicted offenders, is guilty of an offence.
The maximum penalty applicable is 3 years imprisonment and/or a $16,500 fine.
In order to 'habitually consort' a person must have consorted with at least 2 convicted offenders (whether on the same or separate occasions), on at least 2 occasions.
It has been held that habitually consorting requires the defendant to intentionally seek out companionship with convicted offenders (Tajjour, Hawthorne and Forster [2014] HCA 35).
Furthermore, it has also been held that a casual, chance encounter between persons does not constitute consorting (Forster v DPP [2017] NSWSC 458).
The Court will consider the number of times the person had been in company with reputed criminals and the circumstances.
An official warning will entail a police officer stating, orally or in writing, that a certain person is a convicted offender, and habitually consorting with convicted offenders is an offence.
Current Standard Operating Procedures provide that a person may request a written warning if they have been issued with an oral one, with this to be provided as soon as practicable.
An official warning will cease to have effect after 6-months (if the warning is given to a person under the age of 18 years) or 2-years (in any other case).
For the purposes of this offence, a 'convicted offender' is defined as a person who has been convicted of an indictable offence.
An indictable offence is a type of serious offence which can carry a maximum penalty of more than 2 years imprisonment.
Defences available to the offence are outlined under section 93Y of the Act.
This includes where the defendant can satisfy the court that the conduct amounting to the offence was reasonable, due to the consorting being with a family member, or occurring in the course of:
- lawful employment or the lawful operation of a business,
- the provision of a health service or welfare service,
- the provision of legal advice,
- lawful custody or in the course of complying with a court order,
- complying with an order granted by the Parole Authority,
- complying with a case plan, direction, or recommendation by a staff member of Corrective Services NSW, or
- providing transitional, crisis or emergency accommodation.
