When the police say your friendship is criminal: consorting laws nsw

This may sound extreme, but it’s true. The offence of Consorting was repurposed in 2019 to target Outlaw Motor Cycle Gangs, however they apply to every person in NSW, regardless whether you have a clean criminal record.

You can read about recent Consorting stories in the media here and here .

THE LAW

The concept that the NSW Government is able to direct people not to associate with others can be traced back to the enactment of the Vagrancy Amendment Act 1929. This law was in response to the Razor Gangs that roamed around East Sydney and carried cutthroat razors as weapons. The modern offence of Consorting is under section 93X of the Crimes Act 1900.

You are guilty of Consorting if after given an official warning, you continue to habitually consort with convicted offenders. This offence only applies to convicted offenders of indictable offences, which excludes summary crimes. A summary crime is generally non-violent and minor in nature, such as offensive language and obscene exposure.

It’s important to note that children are mostly protected from this law as no one under 14 years old can be legally charged with Consorting.

BAD HABIT:

Habitually consorting is defined as consorting with at least two convicted offenders on at least two occasions. This includes electronic messaging and social media platforms, e.g. Snapchat, TikTok and BeReal.

WHAT’S AN OFFICIAL WARNING?

Consider yourself officially warned when a police officer tells you orally or in writing that a certain person is a convicted offender and that habitually consorting is a criminal offence.

However, a time frame applies:

1. Under 18, you will need to be given a fresh warning after 6 months
2. Over 18, the warning will last two years

It’s important to understand the maximum penalty is three years imprisonment and a fine of $16,500.00.

DEFENCE

There are several defences available to person charged with Consorting, which allows for the normal functioning of families, compliance with Court orders and the operation of government services.

However, the communication or association has to be “reasonable in the circumstances” and is limited to the following categories:

1. Family members
2. Lawful employment or operating a business
3. Training or education
4. Health or welfare service
5. Legal advice
6. Lawful custody or complying with a court order
7. Complying with Parole or Corrective Services directions
8. Transitional, crisis or emergency accommodation

IMPACT ON SOCIETY:

The NSW Government entrusted serious power into the hands of the NSW Police Force including recently graduated constables when these laws were enacted. The ability to direct friends not to hang out is an extreme power and goes beyond what most people would consider to be an appropriate power for the NSW Police Force to wield. This is particularly so when you consider the major target, Outlaw Motor Cycle Gangs, make up a tiny proportion of the population.

This means the law can have severe unintended consequences for the whole of society, but in particular for persons who have committed indictable offences decades ago.

Reintegration

This offence provides a massive barrier for offenders wishing to reintegrate into society and may inhabit their journey to rehabilitation. The feeling of belonging to society is essential for humans to abide by the social contract, and this offence may see individuals feeling isolated from society. This may result a disregard for societal norms including not committing offences.

Aboriginal and Torres Strait Islanders

There are calls by the NSW Bar Association and Public Interest Advocacy Centre to reform the Consorting laws. This movement is supported by the data of a recent report by the Law Enforcement Conduct Committee (LECC) which reports that 42% of the persons warned not to consort are Aboriginal and Torres Strait Islanders people.

The LECC report recommended that people under 18 should not be charged with Consorting and that the NSW Police should be directed to use the offence only to prevent serious criminal offending. This would provide a massive shift in how the law is currently implemented and will reduce the number of Aboriginal and Torres Strait Islanders being warned and charged.

You can read more about this issue here.

At Morrisons we are specialist criminal and traffic lawyers based in Wollongong and the Southern Highlands. If you require advice or representation, you can book an appointment with one of our expert criminal lawyers.