In fact, NSW already had a consorting offence (Crimes Act section 546A), but it was a summary offence with a significantly lower maximum penalty. Moreover, it was rarely prosecuted: Judicial Commission sentencing statistics suggest that only one person was convicted of this offence between 2008 and 2012.
The new law has been embraced with gusto by police in certain areas, and has (predictably) been used against some of the most vulnerable members of our community.
Under the new law, ‘consorting’ is not clearly defined but is deemed to include electronic and other forms of communication as well as face-to-face contact. According to the second reading speech, consorting does not include coincidental contact. Consorting can be an offence even if there is no criminal purpose.
A person ‘habitually consorts’ if they consort with at least two convicted offenders (separately or together) on at least two occasions.
A ‘convicted offender’ means a person who has been convicted of an indictable offence (other than the offence of consorting). It seems this does not include people who have been found guilty without a conviction being formally recorded.
A person is not guilty of an offence unless they consort with at least two convicted offenders, after receiving a police warning that those persons are convicted offenders, and that it is an offence to consort with them. The warning may be verbal or written, and there is no prescribed form of words.
Section 93Y provides that certain forms of consorting are to be disregarded (eg consorting with family members, in the course of lawful employment, business, education, or in the provision of a health or legal service) but only if the defendant satisfies the court that the consorting was reasonable in the circumstances.
There is no general ‘reasonable excuse’ type defence. So, for example, unless an extremely broad definition of ‘family’ is adopted, a person who ‘consorts’ with their flatmates or neighbours would not have a defence, no matter how reasonable that consorting may be.
Apart from offending basic human rights principles such as freedom of association, there are significant privacy concerns surrounding the issue of warnings to a person’s associates. The threat of consorting charges can also be a significant barrier to an ex-offender’s rehabilitation.
The NSW Ombudsman has commenced a review of the consorting provisions and is due to report in 2014. Meanwhile, a constitutional challenge awaits a hearing in the Supreme Court of NSW.
JANE SANDERS is Principal Solicitor, Shopfront Youth Legal Centre at Darlinghurst.