The operation of the consorting law in NSW in its first 3 years and recommendations for refining its scope

K. McDonald

Kate McDonald, Senior Investigation Officer, NSW Ombudsman, kmcdonald@ombo.nsw.gov.au

On 9 April 2012, a new consorting law commenced in New South Wales. The NSW Parliament required the NSW Ombudsman to prepare a report on its operation over three years for the Commissioner of Police and the Attorney General. The Attorney General tabled our report in June 2016.

Built on colonial anti-vagrancy laws, the new consorting law is simultaneously located in policing practices of the 1920s and the contemporary trend of preventive policing. It remains a controversial offence involving ‘the criminalisation of ordinarily harmless and seemingly innocent behaviour in order to allow authorities to intervene at an early stage’[1] and attempt to prevent or reduce future offending by stopping people from associating in a ‘criminal milieu’. Consorting is now punishable by up to three years imprisonment and/or a $16,500 fine.

The NSW consorting law has the broadest reach in the country in terms of the class of people with which any person can be charged for consorting, and it is being used by police to a far greater extent. The offence was adopted in South Australia in 2015 and is currently being considered in the ACT.  In our report we outline concerns about use of the consorting law in relation to vulnerable and disadvantaged people and people with no criminal histories. We also outline use of the consorting law to target high-risk Outlaw Motorcycle Gangs. We make 20 recommendations aimed to improve the operation of the consorting law and refine its scope.

This paper will present the NSW Ombudsman’s analysis, findings and recommendations regarding the operation of the consorting law and aims to promote informed discussion of the topic.On the Record

[1] David Brown et al., Criminal Laws: Material and commentary on Criminal Law and Processes of New South Wales, The Federation Press, 6th ed, 2015, p. 101.

Biography

Kate McDonald is a senior investigation officer at the NSW Ombudsman’s office.

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