JACS Discussion Paper: Consorting laws for the ACT June 2016
A PDF Version of this Submission is also available .
- 2Overview of the proposed model
- 3Human rights implications of the proposed model
- 4Inadequate evidence to justify necessity for these measures
- 5Measures are too broad and disproportionate
- 5.1Requirement to show suspected link to criminality:
- 5.2Definition of a serious offence must be linked to organised crime:
- 5.3Requirement that a convicted offender must have been convicted of a prescribed offence within a specified timeframe:
- 5.4No ability for police to issue warnings on the basis of membership of a criminal group:
- 5.5Fixed time limits and no rolling orders:
- 5.6Manner of issuing warnings:
- 5.8Safeguards for vulnerable groups:
- 5.9Reporting and training requirements:
This submission expresses my opposition to the proposals contained in the Discussion Paper to introduce consorting laws in the ACT. By definition, offences that criminalise the act of associating with a particular class of individual should have no place in a modern democratic society based on the rule of law and fundamental human rights. It is disappointing that the ACT Government is actively proposing to enact consorting laws from other jurisdictions, after having maintained a principled position previously that it would ‘tackle [organised crime] based on the offending behaviour, based on the offence, [and] based on the criminality’.
Overview of the proposed model
In broad terms, the model outlined in the Discussion Paper will create a two tiered consorting warning scheme that would allow police to either:
- issue a consorting warning to a person convicted of a serious offence or who is a member of a criminal group to not consort with another person convicted of a serious offence or who is a member of a criminal group; or
- apply to the Magistrates Court to issue a consorting warning where a convicted offender or a member of a criminal group is consorting with a person who is not a convicted offender or member of a criminal group. The police will not be required to disclose criminal intelligence information to the respondent in an application, and proceedings about such evidence may be held in secret.
A consorting warning commences when the relevant party has been served, and lasts for a period of two years. A person will be taken to commit an offence where they have received a consorting warning, and intentionally consorted on two or more occasions. The offence will be punishable by up to two years imprisonment.
The proposed scheme will include a set of defences (with an evidential burden on the person arguing the defence), and a person subject to a consorting warning will have a right to independent merits review before ACAT in relation to the warning by police (but not the Magistrates Court, which is subject to usual judicial review). It is not proposed to apply the scheme to a person under the age of 18 years old.
In my view, it will be important for any legislative amendments that may flow from this process to be subject to full and proper scrutiny, as the precise human rights implications of these proposals can only be assessed when detailed provisions are drafted. This should include releasing an exposure draft bill, and referral of the bill to the Standing Committee on Justice and Community Safety, prior to the introduction of any legislative amendments.
Human rights implications of the proposed model
The anti-consorting model outlined in the Discussion Paper would impose significant limitations on a person’s right to freedom of association, which is guaranteed in s 15 of the Human Rights Act 2004 (HR Act). Freedom of association is recognised as being a foundational right, which ‘[serves] as a vehicle for the exercise of many other civil, cultural, economic, political and social rights. … [As such it is] a valuable indicator of a State’s respect for … human rights.’ Human rights jurisprudence from the UK and Canada confirms that the right to freedom of association is to be construed broadly, and that it is not restricted to political associations:
[Its] purpose is … to recognise the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of his or her ends. … The right of association therefore appears … almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society.
The comparative case law recognises that permissible limits may be placed on freedom of association, but ‘only where a clear distinction appears between innocent associations and those of a sinister nature, to avoid “guilt by association”’. It is not surprising that similar consorting laws do not exist in the UK or Canada.
As noted in the Discussion Paper, these proposals limit the right to equality and non-discrimination (s 8); protection of the family (s 11); privacy and reputation (s 12); freedom of movement (s 13); freedom of expression (s 16); and liberty and security (s 18). They also limit the right to a fair trial (s s 21 and 22). In addition, given the well-documented propensity for consorting laws to impact disproportionately on Indigenous people, they are also likely to limit the cultural rights of Aboriginal and Torres Strait Islander peoples, which are expressly protected in newly enacted s 27(2) of the HR Act.
For the reasons set out below, I believe that the proposed model goes well beyond its stated purpose of combating organised crime, and involves unjustifiable limitations on human rights, contrary to s 28 of the HR Act.
Inadequate evidence to justify necessity for these measures
Limitations on rights guaranteed in the HR Act must conform to the strict test of necessity in accordance with the requirements of s 28 of the HR Act, which requires limits to be reasonable and demonstrably justified in a free and democratic society.
There would need to be compelling evidence of the need to enact consorting laws in the ACT, given that ACT Policing already have extensive powers to deal with organised crime. The ACT Government’s Report on Serious Organised Crime Groups and Activities in 2009 identified that the ACT has a suite of laws that facilitate the investigation, prosecution and prevention of serious organised crime activities. Subsequent to that report, further laws targeting organised crime have been introduced over the last five years. The range of applicable laws include:
The Crimes (Sentencing) Act 2005, which provides a scheme where a court can make a non-association and/or place restriction order as part of a criminal sentence. These orders can be used to prevent association between individuals or attendance at particular venues. The Crimes (Serious and Organised Crime) Legislation Amendment Bill 2016, which is currently before the ACT Legislative Assembly, will further expand the categories of offence which are subject to non‐association and place restriction orders. As the Discussion Paper notes, these orders can be used strategically to target serious and organised criminal activity where it is appropriate and required.
The Bail Act 1992, which allows the court to impose an association or place restriction when granting bail to adults. These orders can also be used to target organised criminal activity where it is appropriate and required. In addition, the Crimes (Serious and Organised Crime) Legislation Amendment Bill 2016 will introduce a new bail power of review for the Director of Public Prosecutions.
The Crimes Prevention Powers Act 1998, which gives police the power to direct a person to leave the vicinity of a public place if that person has engaged in, or is likely to engage in, violent conduct and mandate that person not to return to a specified place for a period of up to 6 hours. The Crimes (Serious and Organised Crime) Legislation Amendment Bill 2016 will replace and expand these powers to, among other things, enable move-on directions to be issued against groups in exclusion zones. At common law, police also have a power of arrest for breach of a peace where there is a reasonable apprehension of imminent danger of a breach of the peace.
The Confiscation of Criminal Assets Act 2003, which allows for property associated with criminal activity to be forfeited to the Territory. A conviction for an offence is not required for action to be taken. Civil forfeiture can occur where a court is satisfied on the balance of probabilities that the person committed a serious offence. Property is tainted where it was derived in any way from the commission of an offence, or was used (or intended to be used) in the commission of the offence.
The Crimes (Controlled Operations) Act 2008, which provides a formal process for ACT Policing to conduct local and cross border controlled operations to gather evidence and intelligence against those who organise and finance crime.
The Crimes Act 1900, which provides for a range of offences that are relevant in the context of serious organised crime activities. These include offences against the person such as murder, wounding and assaults of various degrees, as well as offences such as threats to kill or inflict grievous bodily harm, demands accompanied by threats, possession of an object with intent to kill or cause grievous bodily harm, acting or threatening to act with intent to cause public alarm, fighting in a public place, offensive behaviour (which includes behaving in a riotous, indecent, offensive or insulting manner), possession of offensive weapons and disabling substances in a public place, possession of offensive weapons and disabling substances in circumstances indicating intention to use the weapon or substance to commit an offence involving actual or threatened violence.
The Criminal Code 2002, which contains a number of offences with the primary focus of targeting the activities of organised criminal syndicates, including serious drug offences and administration of justice offences.
The Crimes (Serious Organised Crime) Amendment Act 2010, which introduced the offences of affray, participation in a criminal group, and recruiting people to participate in criminal activity into the Crimes Act 1900 and the Criminal Code 2002, and introduced the criminal liability concepts of ‘joint criminal enterprise’ and ‘knowingly concerned’ into the Criminal Code.
The Firearms Act 1996, which was substantially amended in 2008 to expand the definition of possession to include constructive possession, and strengthen national and local firearms control by addressing the illegal trade in firearms, increasing penalties for firearms offences, and modernising the licensing scheme.
The Commonwealth’s Public Order (Protection of Persons and Property) Act 1971, which provides police with additional offences and powers relating to assemblies that take place in a Territory or wholly or partly on Commonwealth premises.
The Discussion Paper states that the ACT currently has three outlaw motorcycle gangs (OMCGs) groups with a total membership of 45 (not including associates) as at May 2016. It states that there are approximately 6000 members of OMCGs in Australia, with the ACT representing less than 1% of this group. It further notes that that ACT Policing has ‘expressed concerns about an increase in the incidence of OMCG group motorcycle outings known as ‘runs’ through the Territory and further increased OMCG activity due to displacement from NSW and the application of consorting laws and other legislative tools’. However, no explanation is provided as to why the current suite of available laws, including recent reforms to police powers, new offences and related procedures are not sufficient to deal with these concerns, based on quantifiable data.
I have become increasingly concerned about the lack of empirical data supporting law reform across Government, including consideration of how existing provisions are being utilised, particularly relatively new offences. These include the new offences of affray, participation in a criminal group and recruiting people to participating in criminal activity, as well as the introduction of criminal liability concepts of ‘joint criminal enterprise’ and ‘knowingly concerned’ into the criminal law. I have also expressed my concerns about the lack of record keeping on the use of move-on powers in the ACT, which makes it difficult to assess the evidence base for changes to these powers, such as those proposed in the Crimes (Serious and Organised Crime) Legislation Amendment Bill 2016. Those changes were also introduced with the stated rationale of providing ACT Policing with the appropriate powers to target and disrupt serious and organised crime, and in particular criminal activities of OMCGs.
While new offences and police powers are constantly being added to the statute books, no serious changes have been made to remove offences from the criminal law, and the Bail Act remains unamended despite a Declaration of Incompatibility issued by the ACT Supreme Court in 2010. A comprehensive review of police powers, which was announced by the Government in June 2008, has also lapsed. I am concerned about the growing imbalance in the ACT’s approach to these issues, with particular changes ‘justified’ in isolation without an overarching appreciation of the systemic change that has occurred. The continued expansion of police powers in a piecemeal way, outside the conclusion of the comprehensive police powers review prevents a detailed analysis of how any incremental change fits into a broader, human rights compliant system.
Disrupting organised crime and protecting public safety are undoubtedly legitimate purposes, but any legislative response to organised crime should be targeted at actual and demonstrable threats, and not simply a way of providing police with an additional ‘strategic tool’ for discretionary use in a broad range of situations. In my view, much more evidence is needed to justify the introduction of consorting offences in the ACT, particularly given the very broad proposals and the consequent risks of the powers being misused. As the Government itself has acknowledged, the level of OMCG activity in the ACT remains relatively low. The fact that other Australian jurisdictions have similar laws is not a justification for doing the same, particularly in light of the range of laws the ACT already has to deal with these concerns.
Measures are too broad and disproportionate
A key aspect of whether a limitation on a right can be justified in accordance with s 28 of the HR Act is whether the limitation is proportionate to the objective being sought. This involves tailoring the rights-restricting measure to do no more than is necessary to achieve a legitimate aim. While it is welcome that the children will not be subject to consorting offences, the proposed model nevertheless allows for broad application that exceeds the intended scope of preventing organised crime. If these proposals are progressed, it will be necessary to include the following minimum features and safeguards, which will go some way towards improving their human rights compliance. The Government should also consider the recommendations of the recently released NSW Ombudsman’s Report into consorting laws in that jurisdiction. However, it should be noted that the nature of consorting offences means that they will never be fully consistent with human rights standards. I provide the following by way of constructive feedback, noting that even with such changes, based on the current evidence, I am unable to support such laws.
A consorting warning should only be issued if there is a reasonable basis to believe that the consorting will lead to an organised crime offence being committed. The proposal as it stands contains no requirement to show any suspected link to identifiable criminal activity before these powers can be exercised. As noted above, absent evidence that a particular crime may be committed, consorting provisions will effectively operate to criminalise status on the basis of ‘guilt by association’, and regardless of whether the warning is issued by police or a court, they cannot be cured of their inherent incompatibility with the HR Act. The Government itself acknowledged in 2009 that consorting offences are unlikely to be compatible with human rights if they ‘[prohibit] association in circumstances where there is no evidence that a particular crime may be committed, [as this] is, in effect, guilt by association.’
The Victorian legislative model is the most relevant to the ACT as it has a Charter of Rights and Responsibilities Act 2006, which is analogous to the ACT Human Rights Act 2004. Section 124D of the Criminal Organisations Control Amendment (Unlawful Associations) Act 2015 (Vic) provides that a consorting warning can only be issued if it is reasonably believed that the commission of an offence is likely to be prevented if those individuals are prevented from associating with each other. The New Zealand consorting laws similarly provide that no offence is committed unless it is shown that the association is likely to lead to the commission of a specified crime – see ss 6-6B of the Summary Offences Act 1981 (NZ).
The proposed model will apply to a person convicted of a serious offence, which is defined as an indictable offence punishable by five or more years imprisonment. This is patently overly broad and unconnected to the objectives of the scheme. In other Australian jurisdictions (except for NSW), the relevant consorting law is limited to more serious categories of offences, such as drug trafficking offences, or persons convicted of offences attracting a maximum of 10 years imprisonment. To avoid overreach, it is recommended that the definition of a serious offence be more closely aligned with group- type activity that involves organised crime. I draw your attention to s 49F(3) of the Summary Offences Act 1966 (Vic), and s 4 of the Criminal Organisations Control Act 2012 (Vic), which, in my view, contains a more appropriate definition for these purposes. I also support the Queensland Task Force’s recommendation that there should be a further limitation on applicable convictions where offences which are objectively low-level, but which by virtue of their maximum penalty, may be captured under the scheme.
Requirement that a convicted offender must have been convicted of a prescribed offence within a specified timeframe:
The powers should also be limited to where the previous offence occurred within a fixed period of the consorting. If a person has not committed a further offence in the statutorily specified time, (for example 5 years), then there is less reason to believe that an association will lead to any criminal offending.
No ability for police to issue warnings on the basis of membership of a criminal group:
Ideally, consorting warnings should not be issued by police in any circumstances without prior authorisation from a court. However, I am particularly opposed to the proposal to allow police to issue consorting warnings to individuals on the basis of membership of a criminal group. A member of a criminal group is defined in s 651 of the Criminal Code 2002 to mean three or more people who have either or both of the following objectives: (i) to obtain a material benefit from conduct engaged in or outside the ACT (including outside Australia) that, if it occurred in the ACT, would constitute an indictable offence under a territory law; or (ii) to commit serious violence offences (whether in or outside the ACT). This is a legal definition more suited for judicial interpretation in light of all the relevant factors. In my view, it would be inappropriate – and contrary to human rights standards – to give a discretionary power requiring such a high degree of subjective interpretation to the police in these circumstances, making the offence open to arbitrary application.
Fixed time limits and no rolling orders:
Warnings should be in force for a fixed period, and not be subject to rolling notices. The draft model proposes that a warning would be in place for 2 years. I believe that the recommendation by the Queensland Task Force to restrict the period to 12 months would be more proportionate. The legislation should also strictly prohibit the ability for police to issue rolling warnings, and specify that only a court may issue further warnings if exceptional circumstances exist.
Manner of issuing warnings:
The proposed model provides that police warnings must be given in writing and will include the opportunity for independent merits review, which is welcome. However it will also be important to ensure that warnings are appropriately given and understood. The legislation should include a requirement for the police to ensure that the person understands what they are permitted to do and not do if issued with a warning, including information about the right to appeal the warning. Consistent with reforms in the civil area, this might also include an obligation on police to provide all necessary supports to ensure the person can understand the information.
The model proposed envisages that a list of prescribed defences will be included so that a person will not be convicted of a consorting offence if they satisfy the court that the consorting was reasonable in the circumstances. However, this construction gives rise to issues of concern with the right to be presumed innocent in s 22 (1) of the HR Act. This is because the mere fact of ‘consorting’ would prove the proposed offence, and it then falls on the defendant to satisfy the court that they were doing so for a prescribed purpose. In my view, police should not be permitted to issue warnings to particular categories of persons, such as family members, lawyers, doctors, teachers, and employers. In such circumstances, an application should be made to the court to issue a warning should it be required in the circumstances. I note that the consorting laws in South Australia and the Northern Territory include a ‘reasonable excuse’ provision to capture the range of valid defences to the offence. The Queensland Task Force also recommended a ‘reasonable excuse’ defence. Similar provision should be made in the ACT model, as the absence of an additional general reasonable excuse defence increases the risk of over-criminalisation of persons who the law was not intended to target.
The NSW Ombudsman’s Report also made recommendations about ensuring the definition of family included kinship relations between Aboriginal people. That Report also recommended new defences, including consorting that occurs in the course of the provision of crisis accommodation and in the provision of a welfare or support service.
Safeguards for vulnerable groups:
The recently released NSW Ombudsman’s Report (April 2016) notes that vulnerable groups and individuals are at risk of over-criminalisation under the consorting provisions. For example during the three year reporting period 2012-2015 9,100 warnings were made, and 44% of all persons the subject of the consorting provisions by general duties officers in the NSW review period were Aboriginal, and 37% overall. Similarly, the Report found almost 80% of children and young people who had their associates warned about consorting with them were mistakenly identified as ‘convicted offenders’ by police, making 200 warnings invalid. There was a focus by local policing using the law in respect of complaints about minor nuisance activity in public transport, walkways and seating areas. The NSW Ombudsman noted that, because police strategies for identifying consorting rely on observations of behaviour in public places, there was the potential for people who spend a lot of time in areas open to the public, such as young people, Aboriginal and Torres Strait Islander people and people experiencing homelessness, to be subject to the consorting provisions to a greater degree than others who may spend less time in public places. In addition to being more visible to police, some vulnerable or disadvantaged groups have proportionally higher numbers of people with previous convictions when compared to the general population. This brings those vulnerable groups and the people they spend time with, more readily within the ambit of the consorting provisions. The Report stated that ‘our analysis does not establish whether any measurable crime prevention benefit has been achieved by this use, or whether the people targeted have merely become caught up in the consorting law net through their otherwise innocent use of public space’. In contrast, the Report found that ‘the impacts of the consorting law on Aboriginal people and communities are significant and arguably undermine other measures that attempt to improve relationships between Aboriginal people and police and reduce rates of involvement in the criminal justice system for Aboriginal people’.
I am also concerned about the risk of people with impaired decision-making capacity being unfairly subject to these laws, including because of their vulnerability to suggestion and/or to ‘false’ friendships with those seeking to exploit their naivety.
In my view, it will be important to include legislative safeguards to protect the specific needs of vulnerable persons, including providing appropriate defences such as exempting consorting that occurs in the course of cultural activities, and providing a broad definition of family to ensure that kinship relations are included. However, as noted by the Queensland Task Force, the only effective way to reduce the ‘net-widening’ effects of consorting laws is to ensure that the threshold criteria for exercising such powers are narrowly tailored to only target their intended audience, so that other people and legitimate social interactions are not captured by the legislation. The NSW Ombudsman’s Report recommended, for example, that consorting laws not apply to children and young people aged under 17.
Reporting and training requirements:
The NSW Ombudsman’s report demonstrates the need for any new consorting scheme to include a legislative requirement to collect and publish comprehensive data on use of the powers on annual basis (see, for example, s 6 of the Criminal Organisations Control Amendment (Unlawful Associations) Act 2015 (Vic)), and ensure that police are trained to use the powers appropriately. As recommended by the Queensland Task Force, all relevant details should be recorded at the time that a warning is issued, including basic antecedents; demographical information including whether the person identifies as Aboriginal or Torres Strait Islander; the location of the incident; police observations at the time; and the nature of convictions of all persons involved in the consorting. Provision to independently review the operation of the powers should also be included in the scheme, in order to ensure that they are not having a disproportionate impact on vulnerable groups.
Similarly, the NSW Ombudsman’s Report recommended NSW Police design and implement a quality assurance process for the ongoing use of consorting law, that ensured accurate record keeping, assessment of procedures to deal with invalid warnings and that relevant policies and guidelines are complied with. The Report also recommended a further review commence in NSW in three years time, given the potential risks associated with the inappropriate use of consorting law and the potential for organised crime groups to adapt and reduce the utility of such laws.
Consorting laws risk stigmatising individuals by reason of their previous conviction or criminal associations. As identified by the NSW Ombudsman’s Report, this in turn risks impairing their ability to reintegrate into society and undermines the objectives of rehabilitation, contrary to the ACT Government’s justice reinvestment and justice reform goals. In my view, consorting laws confer unacceptably broad discretionary powers to police. They have been shown in other jurisdictions to operate in ways that depart from their stated legislative intention to focus on serious organised crime, and disproportionately impact on vulnerable people. The evidence to date reveals that the powers may be used to put pressure on people whom the police want to ‘move along’ in public places, rather than as a tool for preventing the planning of serious crimes. It is also far from clear that consorting offences are effective in reducing organised crime and gang-related violence. Further, this goal could be pursued in less restrictive ways, such as police using existing powers.
It is worth noting that consorting offences are not found in the current criminal law of comparable jurisdictions, such as the UK and Canada. The offence of consorting has been described as ‘an Australasian contribution to the criminal law’, and the Discussion Paper provides a useful summary of its colonial origins. It is also worth recalling that, unlike other Australian jurisdictions (except for Queensland) where consorting offences have existed in one form or another (eg vagrancy and prostitution) since 1918, the ACT abolished consorting laws from its statute books in 1983. Given their inherent unjustness and capacity to impact most heavily on marginalised and disadvantaged groups and individuals, in my view it would be a profoundly retrogressive step for the ACT to reintroduce consorting offences onto its statute books.
 Parliamentary Debates, ACT Legislative Assembly, 19 February 2015, 601 (Mr Corbell, Attorney-General).
 UN Human Rights Council, resolution 15/21, Oct 2010.
 Reference Re Public Service Employee Relations Act (Alta)  1 S.C.R 313, Dickson CJ and Wilson J [85-86]. See also R v Her Majesty’s Attorney General  UKHL 52, ; and Friend v United Kingdom  ECHR 2068.
 Anthony Gray, Freedom of Association in the Australian Constitution and the Crime of Consorting  UTasLawRw 11; (2013) 32(2) University of Tasmania Law Review 148.
 Government Report to the ACT Legislative Assembly on Serious Organised Crime Groups and Activities, tabled in the ACT Legislative Assembly on 25 June 2009, pp 6-15.
 Discussion Paper, p 10.
 Crimes (Serious and Organised Crime) Legislation Amendment Bill 2016, Explanatory Statement, p 1.
 Discussion Paper, p 10.
 NSW Ombudsman, The Consorting Law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900, 20 June 2016.
 Government Report to the ACT Legislative Assembly on Serious Organised Crime Groups and Activities, tabled in the ACT Legislative Assembly on 25 June 2009, pp 43-44.
 Summary Offences Act 1953 (SA), s 13(3); Summary Offences Act 1966 (Vic), s 49F(1); Criminal Code Act 1913 (WA), s 557J-K.
 Taskforce on Organised Crime Legislation, Department of Justice and Attorney‐General (Qld), Final Report (2016), p 196.
 Ibid, p 197.
 Summary Offences Act 1953 (SA), s 13(1); Summary Offences Act 1923 (NT), s 55A(2).
 Taskforce on Organised Crime Legislation, Department of Justice and Attorney‐General (Qld), Final Report (2016), p 198.
 NSW Ombudsman, The Consorting Law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900, 20 June 2016.
 Ibid, 5.
 Ibid, 66.
 Taskforce on Organised Crime Legislation, Department of Justice and Attorney‐General (Qld), Final Report (2016), p 196.
 For a detailed description of these problems, see Public Interest Advocacy Centre, Submission to NSW Ombudsman Issues Paper on consorting provisions, 27 February 2014.
 Johanson v Dixon  HCA 23,  (Mason J).
 Discussion paper, p 7. See also Alex Steel, Consorting in New South Wales: Substantive Offence of Police Power? (2003) 26 University of NSW Law Journal 567.
 Queensland repealed its consorting laws in 2005, some two decades after the ACT: see, Summary Offences Act 2005 (Qld), s 30.
 Police Offences (Amendment) Ordinance 1983 (ACT) s 6(2). Those laws had been introduced in 1948 in line with other Australian jurisdictions at the time, and made it an offence for a person to habitually consort with reputed criminals, among others. See generally, Andrew McLeod, On the Origins of Consorting Laws (2013) Melbourne University Law Review 37.