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The-Consorting-Law-Report-On-The-Operation-Of-Part-3A,-Division-7-Of-The-Crimes-Act The consorting law Report on the operation of Part 3A, Division 7 of the Crimes Act 1900 April 2016 this page is intentionally blank. The consorting law Report on the operation of Part 3A, Division 7 of the Crimes Act 1900. April 2016 NSW Ombudsman NSW Ombudsman Level 24, 580 George Street Sydney NSW 2000 Phone 02 9286 1000 Toll free (outside Sydney Metro Area): 1800 451 524 Facsimile: 02 9283 2911 Website: www.ombo.nsw.gov.au Email [email protected] ISBN 978-1-925061-80-2 © Crown Copyright, NSW Ombudsman, April 2016 This work is copyright, however material from this publication may be copied and published by State or Federal Government Agencies without permission of the Ombudsman on the condition that the meaning of the material is not altered and the NSW Ombudsman is acknowledged as the source of the material. Any other persons or bodies wishing to use material must seek permission. The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900 - April 2016 NSW Ombudsman Foreword In February 2012 consorting laws in New South Wales were modernised as part of a suite of amendments designed to assist police to tackle organised crime and criminal gangs. The Parliament acted in response to increased concern about drive-by shootings. The controversial nature of the new consorting law was acknowledged by Parliament in requiring the NSW Ombudsman to prepare this report about the first three years of the operation of the new consorting law. The new consorting law makes it a criminal offence for a person to continue to associate or communicate with people who have been previously convicted of an indictable offence, after receiving an official police warning. The consorting law aims to prevent criminal activity by disrupting or deterring associations that may lead to the building or continuation of criminal networks. Public concern about the operation of the new consorting law was reflected in consultations conducted by the Ombudsman’s office and in the number of submissions we received expressing serious concern about the law and calling for it to be amended or repealed. The central concern is that the consorting law may criminalise social interactions in circumstances where there is no requirement for police to suspect any link between the consorting and planning or undertaking criminal activity, organised or otherwise, or building criminal networks. The breadth of the new consorting law means that the main constraint on its application is the sensible exercise of discretion by police officers. In order to prepare this report we conducted state-wide consultations, a comprehensive analysis of police consorting data, and published an issues paper that identified emerging issues and called for submissions. During the review period police issued more than 9,000 consorting warnings and 46 charges for the offence of consorting. Our review found qualitative evidence to support the effective use of the consorting law by the Gangs Squad to target high-risk Outlaw Motorcycle Gangs. However, this review also found evidence to indicate use by officers attached to Local Area Commands in relation to a broad range of offending, including minor and nuisance offending. The report details use of the consorting law in relation to disadvantaged and vulnerable people, including Aboriginal people, people experiencing homelessness, and children and young people. In addition, this review found an exceptionally high police error rate when issuing consorting warnings in relation to children and young people. We found that although the NSW Police Force has used the consorting law to disrupt serious and organised crime and criminal gangs as intended by Parliament, it has also used the consorting law in a manner that, to some extent, illustrated public concerns about its operation. I recommend that statutory and policy amendments are made to increase the fairness of the operation of the consorting law, and to mitigate the unintended impacts of its operation on people in circumstances where there is no crime prevention benefit, or where the crime that may be prevented is relatively minor. I recommend the adoption of a new statutory and policy framework for use of the consorting law, to ensure its use is focused on serious crime, is closely linked to crime prevention, and is not used in relation to minor offending such as summary offending. This framework is consistent with the overarching intent of Parliament that the consorting law adequately equips police to combat serious and organised crime and criminal groups. Unless these changes are made it is likely that the consorting law will continue to be used to address policing issues not connected to serious and organised crime and criminal gangs and in a manner that may impact unfairly on disadvantaged and vulnerable people in our community. My view is that the implementation of these recommendations is essential to maintain public confidence in the NSW Police Force and its use of the consorting law. Professor John McMillan AO Acting Ombudsman The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900 - April 2016 iii NSW Ombudsman Acknowledgements We would like to thank the NSW Police Force, NSW Department of Justice, Corrective Services NSW, Juvenile Justice NSW and the NSW Bureau of Crime Statistics and Research for providing information and assistance to the preparation of this report. Particular thanks to the NSW Police Force Consorting Standing Committee, the NSW Police Force Performance Improvement and Planning Command, and the police officers from the State Crime Command and Local Area Commands who participated in interviews and provided us with their comments during consultations. We would also like to thank the government agencies, community organisations and service providers, and individuals who provided information during interviews, responded to our issues paper and participated in consultations. Without the valuable information you provided we would not be in a position to comprehensively assess and report on the operation of the new consorting law. This report was researched and written by Kate McDonald and Natalie De Campo with editing by Michael Gleeson and Selena Choo. Daniele Capraro assisted with the statistical analysis of police consorting data. Other assistance was provided by the Research and Project team, Police Division of the NSW Ombudsman’s office. iv The consorting law: Report on the operation of Part 3A, Division 7 of the Crimes Act 1900 - April 2016 NSW Ombudsman Contents Foreword .................................................................................................................................................................... iii Acknowledgements ... ...............................................................................................................................................iv Glossary ................................................................................................................................................................... vii Executive Summary ..................................................................................................................................................1 Summary of Recommendations ................................................................................................................................7 Chapter 1. Introduction ............................................................................................................................................9 1.1 The new consorting law ....................................................................................................................................9 1.2 Our role ......... ......................................................................................................................................................9 Chapter 2. Methodology .......................................................................................................................................10 2.1 Information from the NSW Police Force ..........................................................................................................10 2.2 Police consultations .........................................................................................................................................10 2.3 Information from other government agencies .................................................................................................10 2.4 Issues paper and submissions .......................................................................................................................11 2.5 Consultations with community groups, service providers and government bodies .....................................11 2.6 Charges and court observations .....................................................................................................................11 2.7 Academic literature ..........................................................................................................................................11 2.8 Parliamentary and public debate ...................................................................................................................11 2.9 Related laws ....................................................................................................................................................11 Chapter 3. Context and background ..................................................................................................................12
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