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Consorting with criminals: a legitimate offence?

26 July 2019
A University of Sydney Law School researcher has argued that consorting laws reveal a new character of criminal responsibility in a research paper.

In Australia, the crime of consorting differs slightly from state to state but the key element is the same. Knowingly associating with criminals (or being ‘recklessly unaware of their identities’) is still considered an offence.

While first pioneered in Australia and New Zealand in the early 1900s to target vagrants and other ‘undesirables’ like prostitutes, the offence has been reformed in Australia since the 1970s, to target high level and organised crime, and a new generation of offences has been enacted in recent decades.

Critics of the offence of consorting with criminals claim that its attribution of fault based on what the individual knew rather than what he or she intended is unfair. Additionally, they argue that mere association should not be criminalised as this extends criminal law beyond its remit and impinges on personal freedoms.

Dr Arlie Loughnan, Professor of Criminal Law and Criminal Law Theory at Sydney Law School and Co-Director of the Sydney Institute of Criminology, however, has a more nuanced view of consorting.

In a paper published in University of Western Australia Law Review, she argues that consorting laws show the way that criminal procedure is being used to legitimise an old – and odd – offence.

Most jurisdictions, including Queensland, New South Wales and Tasmania, now require the police to issue a warning to a person before they are charged with consorting. This shows that institutions of criminal justice and procedure have come to play an important role in criminal responsibility, Dr Loughnan argues.

In addition, this new generation of laws change what an individual is responsible for. Now, a more extensive conception of responsibility – encompassing personal attitudes and self-regulation – sustains this element of the offence.  “The laws now work to inculcate ‘friendship with the state’ rather than prohibit ‘companionship with thieves’,” Professor Loughnan said.

“This means that when police issue a warning, the individual is given a choice: it’s us (the state, and the security of the state) or them (his or her associates). And, of course, there may be a personal price to pay for choosing the state to avoid criminal sanction. Put another way, it’s a case of ‘you’re either for us or against us’”.

Dr Loughnan acknowledged that the offence still has other problems: “Police are charging people with consorting based on ‘observations of people spending time together in places open to the public’.”

A 2016 NSW Ombudsman review states, “this has meant that certain groups, including Indigenous people and young people, have been disproportionately affected by the new consorting laws.

“This reveals that the main target of the offence – suspect populations or status - not conduct – is common to each generation of the laws.”

“Consorting has only been given limited consideration by criminal law scholars,” Dr Loughnan said. “The story told in this article suggests that consorting warrants further attention.”

Funding declaration: Professor Loughnan’s research was supported by an ARC grant ‘Responsibility in Criminal Law (DE130100418)’.

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