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Unlawful Consorting and Prohibited Insignia Lawyers, Perth
In 2021 the State government passed the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act. The Act is directed at members of “Identified Organisations, comprised of all prominent counter-culture motorcycle clubs, frequently referred to by Police and the media as Outlaw Motorcycle Gangs (“OMCG”) and other groups allegedly involved in organised criminal activity, although several of the groups listed have no presence in WA and some have no known presence in Australia. The Act refers to the groups targeted by the law collectively as “Identified Organisations.”
List of Identified Organisations
Schedule 2 of the Act contains a list of Identified Organisations, all significant Motorcycle Clubs which Police deem to be “OMCG” are included, as are a number of to international groups which have no or presence in WA – presumably in an effort to discourage these groups from creating a WA chapter. The focus of the analysis in these pages is upon the law’s impact on OMCG clubs.
The objects of the Law
The Stated objectives of the law include:
(i) to disrupt the capacity of (OMCG/Identified Organisations) to organise, support the carrying out criminal activity;
(ii) to ensure the public may pass through public places without experiencing fear or intimidation because of OMCG/Identified Organisation related activity;
(iii) to reduce the membership of OMCG/Identified Organisations.
The objects of the Act state that the law is predicated on the novel and paranoiac idea that merely glimpsing OMCG insignia or witnessing two or more OMCG members otherwise lawfully and peacefully congregating in public, is without more, enough to reduce a public onlooker to a trembling state of fear and apprehension. Ironically, while the objects of the legislation include disrupting criminal activity, criminal activity is not in fact an element of any of the new offences created. While the law was only enacted relatively recently, it does not appear to have achieved any significant result in terms of disrupting the capacity of OMCG to operate or in reducing OMCG membership.
The law creates a number of new and far reaching Police powers, including:
1. To issue a 7-day dispersal notices to OMCG members and members of other “Identified Organisations”, preventing them from consorting in public with other persons named in the notice;
2. The power to issue a “Consorting Notice” to OMCG members and members of other “Identified Organisations”, preventing them from consorting in public or private with other persons named in the notice;
3. To require a person to stop and provide their personal details for the purpose of serving them with a Dispersal Notice or Consorting Notice;
4. To detain a person and/or a vehicle for up to 2 hours, and to take them into custody and require them to attend a Police Station or other place and to detain them there in Police Custody for the purpose of serving a Dispersal Notice or Consorting Notice for up to 2 hours;
5. To enter a private vehicle for the purpose of serving a Dispersal Notice or Consorting Notice;
6. To use “reasonable force” for the purpose of exercising Police powers at point 3 – 5 above.
7. To require a person who an officer suspects on reasonable grounds is consorting in breach of a Consorting Notice or Dispersal Notice to:
(a) to leave the place, or a part of the place, specified by the officer; or
(b) to go beyond a reasonable distance from the place, or a part of the place, specified by the officer; or
(c) to comply with a requirement of the officer under paragraph (a) or (b) for a reasonable period specified by the officer that does not exceed 24 hours.
8. To enter a private vehicle and to use “reasonable force” in exercising their powers at point 7 above.
The law creates several new offences, including:
1. Displaying the insignia of an OMCG/Identified Organisations if the insignia would be able to be seen by a person who is in a public place, regardless of whether the person displaying the insignia is in a private or public place;
2. The offence of breaching a 7-day dispersal notice.
3. The offence of breaching a 3-year Consorting Notice; and
4. The offence of failing to comply with a Police Officers direction(s) to facilitate service of a Consorting Notice or Dispersal Notice.
Observations about Consorting Notices
The most troubling aspect of the laws is the creation of the 3-year Consorting Notice (which can be extended). A breach of a Consorting notice is a serious offence - indeed it is a crime.
The crucial take away point is that the seemingly minor penalties (fines) imposed for offences of displaying insignia of an OMCG/Identified Organisation or consorting contrary to a dispersal notice are illusory. These modest penalties have the tendency to lull members of OMCG/Identified Organisations into a spirit complacency.
The insignia and dispersal offences are not an end in themselves, these offences are likely to attract only a fine. The minor penalties these l offences carry appear to bait a much bigger trap with far sharper teeth: the real consequence of a person being convicted of either offence is that they can then be served with a Consorting Notice. As will be seen in succeeding paragraphs, the operation of Consorting Notices is extraordinary wide in scope, prolonged in duration, arbitrary in operation and the potential consequences when breached are draconian.
The law represents a severe curtailment of common law liberties, such as freedom of association. Similar legislation in NSW saw consorting notices issued in error to in excess of 100 people with no criminal history and saw an intellectually disabled man imprisoned for 9-months for going shopping with 3 childhood friends, he was unaware of their criminal records. The convictions were overturned on appeal. The laws have been described by the legal profession as “overreach” and as being “redolent of authoritarianism”.
While the vast majority of West Aussies will not be directly impacted by the laws, the laws raise questions about what value we place on our liberty. The COVID-19 crisis gave State governments a license to intrude into personal liberty and privacy in ways which were unprecedented. The extraordinary conditions created by the pandemic should not be taken as a licence for the government to intrude into other, unrelated spheres of personal liberty and privacy.
As a society, if we are willing to consent to some curtailment of the rights a liberty of a section of the community, without the need for proof or any actual involvement in criminal wrongdoing, it is a slippery Orwellian slope toward the gradual erosion of individual rights and liberties toward authoritarianism. For that reason, if we are a freedom loving people, we should safeguard the rights and liberties of all members of our community, until such time as they are convicted by a court of a serious criminal offence warranting imprisonment. The rule of law is a concept at the heart of our legal system; it demands that all members of the community be treated equally before the law. A law which discriminates against one section of the community and takes away their rights and liberties, without the need for proof any actual serious criminal wrongdoing, is a dangerous erosion of the rule of law which we should not abide as a people who cherish individual liberty and the rule of law.
The philosopher David Hume observed that liberty is rarely lost all at once; instead, it is slowly and subtly eroded away:
It is seldom, that liberty of any kind is lost all at once. Slavery has so frightful an aspect to men accustomed to freedom, that it must steal upon them by degrees, and must disguise itself in a thousand shapes, in order to be received.
Benjamin Franklin, author of the Declaration of Independence and Founding Father of the US Constitution, once said:
Those who would give up essential Liberty, to purchase a little temporary safety, deserve neither liberty nor safety.
Finally, a famous American proverb from the 18th century cautions:
Eternal vigilance is the price of liberty; power is ever stealing from the many to the few.
At Andrews Legal, our team of dedicated lawyers are experienced in proceedings under the Unlawful Consorting and Prohibited Insignia Act.
If you’re looking for professional and skilled lawyers in Perth, WA with experience in proceedings under the Unlawful Consorting and Prohibited Insignia Act, look no further than Andrews Legal. We can provide sound advice on a range of traffic offences, including drink driving, drug driving, dangerous driving, and reckless driving. Contact us today if you have been charged with a traffic offence and need assistance.