Police Continue to Use Consorting Laws to Target the Most Vulnerable, Watchdog Finds

If a NSW police officer officially warns a civilian over the age of 14 to stop communicating with at least two convicted criminals, and the individual continues to interact with at least two of the cited past offenders on at least two occasions each, that person has broken the law.

This communication, whether it be in person, electronically or by other means, is referred to as consorting. And under the provisions of section 93X of the Crimes Act 1900 (NSW), if found guilty of habitually consorting, a person can be sentenced to three years prison time and/or fined $16,500.

Police warnings can be imposed on anyone over the age of 14, regardless of whether they’ve been convicted of a crime before or if they’re suspected of having any intent to commit one in the future.

For someone under 18, a warning expires after six months, while for anyone else warnings apply for a two year period.

Section 93Y of the Crimes Act contains a number of defences against a consorting charge, which include when it involves family members, for employment reasons, education, health or welfare, receiving legal advice, involving crisis accommodation, or if it’s by court, parole or corrections order.

Consorting laws were brought in during the 1920s to deal with East Sydney’s razor gangs.

But having fallen into disuse, the O’Farrell government enacted new tougher laws in 2012, which were ostensibly aimed at dealing with outlaw motorcycle gangs. And following recommendations from the NSW Ombudsman in 2016, consorting laws were amended once again two years later.

Prejudicial in practice

The sole NSW police oversight body, the LECC (the Law Enforcement Conduct Commission), published its review report on the NSW consorting laws on 26 October, which considered how they’ve been operating since the latest set of amendments took effect on 28 February 2019.

The new statistics relating to the updated laws tracked their performance up until 29 June 2020. They revealed that 2,361 unique people were subject to the law, with 1,487 individuals having received a warning, and 1,721 having had others warned about them.

Officers issued 11,111 warnings either in written or verbal form. Two thousand and three consorting incidents occurred over this period, and only two charges were laid.

These figures contrast with those set out in the 2016 Ombudsman report, which found that over the three years to 9 April 2015, 2,824 people were warned, 2,545 had others warned about them, there were 1,818 consorting incidents, 9,155 warnings were issued, and 46 consorting charges were laid.

The Ombudsman also found that despite the focus on bikies, these laws were being used to target Aboriginal people, young people and people experiencing homelessness.

Overall, First Nations people made up 37 percent of those singled out in the early statistics, despite their only accounting for just under 3 percent of the entire NSW population.

Prejudice remains

However, the LECC found that despite the updating of consorting laws – which included an amendment to the family members defence, so that it reflects First Nations kinship systems – 40 percent of people affected by the law were Aboriginal or Torres Strait Islander.

And when it came to the 34 youths between 14 and 17 that were subjected to the consorting law, 25 percent were First Nations kids.

“This finding is reflective of the Ombudsman’s report, which similarly found that, as a proportion of the population, Aboriginal and Torres Strait Islander people were more likely to be issued a consorting warning than non-Aboriginal people,” the LECC report sets out.

The Commission also acknowledged that this bias in application reflects a broader issue with the relationship between the Australian criminal justice system and First Nations peoples.

The report outlines that it is general duty officers – not those from specialist squads – who are overwhelmingly applying these laws to Indigenous people. General duties accounted for 79 percent of consorting law use in relation to Aboriginal and/or Torres Strait Islander peoples.

Indeed, across the six NSW Police Force regions, 46 percent of those subject to the updated consorting law were First Nations people, which accounts for a 24 percent rise in their application in this manner, when compared with 2015 figures.

The new report concludes that the LECC “remains concerned by the high proportion of” First Nations peoples “subject to the consorting law”, adding that it will continue to assess their use “against Aboriginal and Torres Strait Island peoples”.