Consorting in New South Wales

The law of consorting in New South Wales makes it a criminal offence for a person to continue to associate or communicate with at least two people who have previously been convicted of an indictable offence, after receiving an official police warning. Consorting laws were enacted by parliament with the aim of preventing crime by disrupting organised criminal activity and networks.

The Law in New South Wales

Section 93X of the Crimes Act 1900 (NSW) states:

1. A person who:
   1. Habitually consorts with convicted offenders, and
   2. Consorts with those convicted offenders after having been given an official warning in relation to each of those convicted offenders is guilty of an offence.
2. A person does not ‘habitually consort’ with convicted offenders unless:
   1. The person consorts with at least 2 convicted offenders (whether on the same or separate occasions), and
   2. The person consorts with each convicted offender on at least 2 occasions.
3. An ‘official warning’ is a warning given by a police officer (orally or in writing) that:
   1. A convicted offender is a convicted offender, and
   2. Consorting with a convicted offender is an offence. 

The maximum penalty for an offence of consorting is imprisonment for 3 years, or a fine of 150 penalty units ($16,500.00), or both.

Defences to Consorting in New South Wales

Section 93Y of the Crimes Act 1900 (NSW) outlines defences to consorting, which covers situations where people could not be expected to avoid keeping company with known offenders. This section states that the following forms of consorting are to be disregarded if the defendant satisfies the court that the consorting was reasonable in the circumstances such as:

1. Consorting with family members;
2. Consorting that occurs in the court of lawful employment or the lawful operation of a business;
3. Consorting that occurs in the course of training or education;
4. Consorting that occurs in the course of the provision of a health service;
5. Consorting that occurs in the course of the provision of legal advice; and
6. Consorting that occurs in lawful custody or in the course of complying with a court order. 

The onus lies on the defendant in each of these examples to satisfy the court that the consorting, or association, was reasonable in the circumstances.

Implementation of the Law in New South Wales

The implementation of this law has come under heavy criticism in recent times. Police are given a wide discretion and the individuals given consorting warnings may not be meeting for any criminal purpose. Simply meeting with convicted offenders for lunch or a coffee may invoke the use of the consorting legislation by Police Officers.

The law was introduced in response to increased organised crime activity, in particular the growth of outlaw motorcycle clubs. But those involved in low level street crime can be targeted in the same way as high-ranking organised crime gang members.

The unintended result of the law is to create ‘criminals’ out of individuals who have had no previous run ins with the law and who have simply associated with the ‘wrong crowd’.  It can also have the effect of victimising those who are disadvantaged or vulnerable.

The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. Given the seriousness of the applicable penalties pertaining to consorting offences, if you have been subject to an official warning or have been charged with this offence and require legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law matters with one of our lawyers.