Criminalising conversations: Australia's damaging love affair with consorting laws

Australia is known as a desirable place to live. It has the freedoms most associate with a Western democracy. But Australian state and territory governments are moving toward criminal association or consorting laws as a means of crime management, particularly in relation to organised crime.

Queensland, New South Wales, Victoria and South Australia have introduced these restrictive laws. But are the laws justified? Are they an efficient and effective way to combat organised crime?

Not new – just previously unused

Consorting laws are designed to stop perceived risk populations from social transactions among each other. In effect, it is policing someone because of who they are, not on the basis of any criminal activity they may be doing. They aim to pre-empt any offences.

NSW had historical consorting laws. However, they were seldom used and fell into disuse. In some ways this reflects the Northern Territory’s more modern experience. It enacted consorting laws in 2006, but as of June 2013 no-one had been prosecuted using this offence.

In 2005, Queensland repealed its consorting offence due to the provision’s archaic nature. It wanted to replace it with more modern and effective provisions that facilitated community safety and public order. The then-police minister, Judy Spence, described them as “ridiculous offences”.

The new era

NSW replaced its existing consorting laws in 2012. They survived a High Court challenge in 2014, although there were dissenting judgments as to its validity. The new offence section was clearly aimed at organised crime.

In 2015, Victoria and South Australia enacted consorting laws under the pretext of combating organised crime.

The NSW Ombudsman reported to parliament in mid-2014 on the first 12 months of operation of that state’s laws. A further review is now underway. Despite having been designed to combat organised crime, general duties police were the majority users of the consorting provisions (85%) – not detectives from specialist squads (11%).

The NSW Ombudsman reviewed 1247 persons targeted by police for “consorting”. About 7% of these were children and young people aged between 13 and 17. 40% of all people subject to the consorting provisions in their first year of use were Indigenous, despite making up only 2.5% of the NSW population.

The review also highlighted the fallacy of the law being targeted at organised crime. An analysis of the criminal histories of a select group (604 people) targeted by the laws revealed:

• 28 people, or 24% of those who were the subject of official warnings issued by the specialist squads, had a conviction for a serious criminal offence; and

• 43 people, or 15% of those who were the subject of official warnings issued by the local area commands, had a conviction for a serious criminal offence.

These figures highlight the lack of serious criminal activity of those being targeted by the laws.

The review raised the crucial question of what gaps – if any – the consorting provisions filled that current laws and powers did not already cover. There were already existing laws available to achieve what the consorting laws supposedly did – but senior NSW police still claim the laws are necessary.

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The Queensland experience

In 2013 the Queensland government passed harsh consorting and mandatory sentencing laws in response to a bikie brawl on the Gold Coast.

In essence, though, the situation was not caused by what the bikies did, but rather by what the police were unable to do. Submissions from the Queensland Police Service to a recent review of the laws indicated that on the night of the brawl only 13% of available police were rostered on.

As of January 2016, Queensland’s war on bikies had resulted in the arrest of 2573 offenders on 8582 charges. Yet only 20 bikie gang members had been charged under the laws’ mandatory sentencing provisions in almost two years of the campaign. This amounts to around 0.7% of those charged.

Even more significantly, as of July 2015 only 45 “participants” had been charged under the consorting laws. No-one had been convicted. Police have offered no evidence in many of these cases, due to a lack of evidence in the first place.

Do police really need the laws?

The Queensland Police Service claims it needs the current consorting laws to remain. But, it has had similar laws at its disposal since 2009 and failed to use them.

Queensland and NSW claim that bikie numbers are going down. Yet Australian Crime Commission data indicated that in 2012 there were 4483 bikie gang members across Australia. There are now approximately 6000 members. This is a 34% increase in three years.

The argument is also made that consorting laws assist in fighting organised crime. But, in Queensland, organised-crime-type offences have risen since the laws’ introduction in 2013.

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Queensland police credited the new bikie laws with a reduction in reported crime in 2013-14. However, no explanation was provided when reported crime increased in 2014-15, despite the anti-bikie laws still being in place. What this does highlight is how the laws cannot be held responsible for any increase or decrease in Queensland’s overall crime rate.

Policing people for who they are rather than the criminal activity they are involved in poses other dangers. As the Queensland Law Society argued:

Another risk is that the proposed law will lead to lazy policing, where mere criminal intelligence, as opposed to proper evidence, is required to bring criminal consequences upon citizens.

What Australia needs is informed debate, removed from the strident moral panic being propagated by the media and law enforcement agencies. We need to implement criminal justice policy from a strong evidence base with a view to establishing best practice. This is lacking in the current rush to embrace criminal association laws.