January 2015 - Law Society Journal
They were touted as a necessary tool in the fight against organised crime, but are serving as a convenient method of punishing unpopular people who have already served their sentences.
Police officers can now issue warnings to anyone consorting with a person who has a conviction for an indictable offence. Consort with two offenders after being warned about each of them, and you can be charged.
Defences exist for consorting with family, for employment, training, health or legal services and importantly, consorting in custody, but the court must find the defence was “reasonable in the circumstances”.
The lack of a broader “reasonable excuse” defence drastically increases the likelihood of technically correct, but unjust prosecutions.
Before even reaching the stage of a charge, the consorting warnings themselves have the weight of extra-judicial punishment. Based on figures available to the Ombudsman, approximately 5,000 warnings have been made since the introduction of the legislation in 2012.
That number is likely to spike now that the High Court has ruled on the legality of the legislation (see Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35).
The disruption caused to organised crime is likely, however, to be minimal in comparison to the disruption caused to the rehabilitation prospects of those subject to/of official warnings who have no connection with organised crime.
Rehabilitation and reintegration into society are necessary parts of the criminal justice system, and yet the consorting provisions threaten the efforts of anyone who attempts to support a person re-entering society.
If the law was actually being aimed at hardened organised crime figures, then rehabilitation might be a less-relevant consideration, but that is not where the consorting warnings have been aimed. In the first 12 months of the legislation, only 11 per cent of the warnings issued were made by Strike Force Raptor and other specialist police.
The remainder were made by general duties police, and contrary to the racial profiling that the NSW Police Force has engaged in on organised crime, 40 percent of the warnings were issued to Aboriginal or Torres Strait Islander people. These figures suggest that consorting was immediately seized on by general duties police to do their usual work.
The figures also support the contention that the primary tool in the eyes of police is the coercive and punitive power of the warning.
In 2012, there were more than 1,000 warnings. These resulted in only 14 charges. Even if that is presumed to demonstrate the deterrent power of the warnings, it remains true that these were warnings to stop engaging in lawful activity. That is little more than the arbitrary exercise of power. If the legislation had been drafted with consideration of its misuse, we would not have seen the disproportionate targeting of Aboriginal people – especially women and children.
Despite the government’s claims that the legislation was designed to target organised crime, the closest that the legislation gets to targeting a particular type of offender is to specify that they must have committed an indictable offence.
The lack of stringency in the legislation creates the ideal circumstances for the prosecution of “low-hanging fruit” – cases that are easily made, not the cases worth making. The first consorting prosecution of Charlie Forster is a perfect example of this.
Forster, a 21-year-old man from Inverell, who was born with an intellectual disability and cannot read or write, was convicted in 2012 and sentenced to 12 months imprisonment for a series of shopping trips and walks with three friends who have prior convictions. His matter is awaiting rehearing.
To find a sense of proportionality, procedural fairness, or anything resembling a suggestion to target those suspected of involvement in organised crime, we are forced to look beyond the consorting legislation to the NSW Police Force’s Consorting Standard Operating Procedures, but this document is not public. This is a sorry state of affairs for a statute, especially a criminal offence.
The consorting legislation is too arbitrary, the warnings too punitive. The section is too broad and the misuse too pervasive. It is not targeting organised crime.
By finding a crime where before there was none, the legislation functions less as a mechanism of crime prevention and more as a means of crime creation. It should be repealed to remove the temptation of this particular variety of low-hanging fruit from the NSW
Police Force.
David Porter, Senior Solicitor, Police Powers
Read the article on the Law Society of NSW Journal website (pg 33).
