Consorting Notice

What is a Consorting Notice?

The real teeth in the legislation is the power of Police to issue a Consorting Notice. In short, it is a crime for a person who has been served with a consorting Notice to consort with any other named person(s) on 2 or more separate occasions. A Consorting Notice remains in effect for at least 3 years. Consorting notices apply to contact and communication, direct or indirect, in public and in private and both within WA, outside WA, and even outside Australia. A consorting notices can be served either orally or in writing. If served orally, a written record of the Notice must be served in writing within 72 hours, otherwise the Notice will lapse.

A consorting must specify the following:
(a) the name and address of the “restricted offender”;
(b) the name(s) of “restricted offenders” whom the person must not consort with;
(c) that consorting on 2 further to occasions with any “named offenders” may lead to the commission of a crime;
(d) the date of issue of the notice;
(e) the name, rank and pd number of the officer issuing the notice; and
(f) that the notice remains in effect for 3 years (this duration can be extended).

What does “consort” mean?

The definition of consort is extraordinarily broad, it includes seeking to accepting the company of another person, being in the company of another person, communicating with the person directly or indirectly by any means and regardless of whether in public or private. By contrast Dispersal Notices only apply to consorting in a public place. Consorting Notices purport to apply extra-territorially, meaning that the Notices continue to operate in other States and in foreign countries. The extraterritorial application of the law is likely to prove legally controversial and is yet to be tested in Court.

Who can issue a Consorting Notice?

A Police Officer holding the rank of Commander, Assistant Commissioner, Deputy Commissioner or Commissioner.

Legal Preconditions to a Consorting Notice

A person may only be issued with an Unlawful Consorting notice if person is a “relevant offender” the person has been convicted of any one of the following:
(a) an indictable offence in any State or an indictable Commonwealth offence;
(b) an offence of displaying prohibited insignia (of an Identified Organisation) (s 25 (2),
(c) an offence of consorting contrary to a dispersal notice (s 42 (1), or
(d) certain sex offences whether committed in Australia or overseas.

Effect of Spent Conviction Order

Offences of of displaying prohibited insignia (of an Identified Organisation) (s 25 (2) and consorting contrary to a dispersal notice (s 42 (1)) and indictable cannot be relied upon for the purpose of rendering a person liable to be issued with a Consorting Order if a Court has made a spent conviction order. A spent conviction order will also mean that the conviction does not appear on the persons National Police Clearance. The court has the power to make a spent conviction order at sentencing if satisfied that the person is of prior good character or that the offence is of a trivial nature, is unlikely to reoffend, and is satisfied that the person should be relieved immediately of the adverse affect that a conviction would have upon them.

In relation to convictions for State indictable offences, a person can apply to the District Court to have an indictable conviction spent 10 years from the date of conviction, or if a term of imprisonment is imposed, 10 years from the completion of the sentence including any parole period, provided the person has not reoffended in the subsequent 10 years. If the person is convicted of a subsequent offence, the waiting period resets 10 years from the date of conviction.

When can a Consorting Notice be Issued?

The person must be a “relevant offender” because they satisfied the one of the preconditions listed above at (a) - (d). In addition a Consorting Notice can only be issued to a person who is 18 years or older, and where the Police Officer issuing the Notice is satisfied Criteria A and B below are both met.

Criteria A

A Police Officer may issue a Consorting Notice if:

(i) the person has consorted or is consorting with another “relevant offender”; or

(ii) the officer suspects of “reasonable grounds” is likely to consort with another relevant offender. This sets a very low bar indeed, the High Court has said that a suspicion is a positive feeling of actual belief amounting to 'a slight opinion, but without sufficient evidence go ground a positive belief.’ Reasonable grounds will depend on facts known or believed by the Police Officer at the time and may be based on hearsay or other evidence which would be inadmissible in Court.

It may be sufficient if police to have some grounds to believe a person is a member of an OMCG and that at least one member of the same OMCG satisfies the preconditions listed above at (a) - (d). It is apparent that once one member meets the preconditions under (a) - (d), it becomes much easier for Police to issue Consorting Notices to other members who later come to satisfy the preconditions under (a) - (d), and the more members who meet the preconditions, the more readily Police will have grounds to form a reasonable suspicion. Police could only issue Consorting Notices if at least one member satisfied the preconditions, otherwise Police could not establish the person has consorted, is consorting or that there are reasonable grounds to believe the person is likely to consort with person who satisfies criteria (a) - (d). It is important to note that a “suspects on reasonable grounds sets a low bar for Police to satisfy.

Criteria B

In addition to Criteria A being satisfied, a Police Officer must consider that it is “appropriate” to issue the Consorting Notice in order to disrupt or restrict the capacity of person to engage in conduct constituting an indictable offence. It is important to note that this criteria does not require a reasonable suspicion based on objective grounds that the person is organising planning, supporting or encouraging any indictable offence but only that a Police Officer considers it appropriate to restrict the persons capacity to commit an indictable offence. The use of the word “appropriate” as opposed to an term such as “necessary” affords a relatively wide discretion to the Police Officer making the decision, “appropriate” means “suitable or proper in the circumstances.”

As the Police Officer is acting as a public decision maker and is making a decision effecting the rights of the person the subject of a consorting order, therefore the principles of administrative decision making apply. In addition, a person who is the subject of a Consorting Notice has the right to apply to the Supreme Court for judicial review of the decision by way of a “writ of certiorari” or a “writ of mandamus.

Offence of Consorting Contrary to a Consorting Notice

A person commits a crime if the person:(a) has been served with a Consorting Notice; and (b) while the Notice is in effect, the person consorts with a “named offender” on 2 or more occasions. The prosecution are not required to prove that the consorting was for a particular purpose or that the consorting would have led to an offence.

Penalty for Consorting Contrary to a Consorting Notice

The offence carries a maximum of 5 years imprisonment if dealt with on indictment, and a maximum of 2 years if dealt with in the Magistrates Court. The maximum term of 5 years imprisonment when the offence is charged on indictment indicates that the offence is regarded by parliament as being serious. Other offences which carry 5 years imprisonment when dealt with on indictment include: Having ready access to both a weapon and illegal drug, perjury, suffocation and strangulation and wounding. This indicates that the offence is regarded by parliament as being of a similar level of seriousness to those offences and like the other offences mentioned, a first offence would have the potential to attract an immediate term of imprisonment.

Defences to Consorting Contrary to a Consorting Notice

The law provides a number of statutory defences. The onus of proof is reversed, meaning that the Accused must prove the defence on the balance of probabilities. The defences include situations where persons are consorting who are family members and the consorting is “reasonable in the circumstances.” The law does not specify when it would be “unreasonable” for family members to consort with one another. The law also provides defences where the consorting occurs while engaging in a lawful trade or profession, attending an educational institution, receiving a health service or social welfare service, obtaining legal advice, in lawful custody, complying with a written law or the Order of a Court or Tribunal, and the consorting is “necessary in the circumstances”. Consorting is “not reasonable or necessary if it is for the purpose of avoiding the operation of a Consorting Notice or the consorting “relates to criminal activity”.

Special Police Powers Regarding Service of a Consorting Notice

For the purpose of serving a Consorting Notice, Police are given far reaching powers to:
1. To require a person to stop and provide their personal details for the purpose of serving them with a Dispersal Notice or Consorting Notice;
2. 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;
3. To enter a private vehicle for the purpose of serving a Dispersal Notice or Consorting Notice;
4. To use “reasonable force” for the purpose of exercising Police powers at point 3 – 5 above.
5. To require a person who an officer suspects on reasonable grounds is consorting in breach of a 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.
6. To enter a private vehicle and to use “reasonable force” in exercising their powers at point 5 above.

These powers are extraordinary in that they permit Police to involuntarily detain a person, convey them to a Police Station or other place and detain them there for 2 hours, in circumstances where the person is not Accused of committing any offence, merely for the purpose of serving the person with a notice. If a person fails to comply with a Police Officers directions regarding providing their personal details, accompanying Police to a Police Station or other place or to remain there for up to 2 hours for the purpose of being served, the person commits an offence carrying a maximum of 12-months imprisonment for a fine of $12,000.

Decision to Issue a Consorting Notice and Availability Judicial Review

A person who may be the subject of a decision has the right to be heard before a decision is made, including the right to respond all adverse information that is, “credible, relevant and significant”. The Police Officer making the decision must disclose all “specific and prejudicial information” to enable the person to respond to it. This principle is called “natural justice” or “procedural fairness.”

The person who is the subject of a Consorting Notice is entitled to request and be provided written reasons for the decision, the right to written reasons is a requirement of natural justice.

The decision maker is required to have due regard to all relevant information, including information and submissions made by the person concerned,

There would need to be a proper objective, evidentiary basis for the Police Officer to conclude that the consorting order is suitable or proper in the circumstances.

A decision to issue a Consorting Order which violates administrative decision making principles could be quashed by the Supreme Court on an application for a “writ of certiorari”. The Supreme Court also has the power to mandate that a different decision be made, called a “writ of mandamus” and the power to grant a temporary injunction against a Consorting Order, pending the determination of judicial review proceedings.

When may the Supreme Court quash a Consorting Notice?

An officer’s decision to make a Consorting Order May violate administrative decision making principles where for example the decision:

(a) fails to afford the person concerned “natural justice”/ “procedural fairness”;

(b) fails to provide adequate written reasons for the decision;

(c) where a decision maker is tainted by bias or apprehended bias;

(d) where or a decision which is unreasonable and no decision making acting reasonably on the available evidence could’ve reached the decision;

(e) where the decision maker has regard to irrelevant considerations, such as unsubstantiated rumours; or

(f) fails to have regard to mandatory relevant considerations, for example by failing to have regard to the person’s character generally and the absence of convictions for indictable or serious offences;

(g) is ultra vires, meaning it is beyond the power of the decision maker; or

(h) is mala fides, meaning the decision is made in bad faith or is made for an improper purpose. For example a decision made for the purpose of preventing a person who happens to belong to a club for counter-cultural motorcycle enthusiasts, from lawfully catching up with mates, who happen to belong to the same club, for a few beers, and nothing more would arguably be made for an improper purpose and would be ultra vires.

Right to Judicial Review is Constitutionally Protected

Access to the courts to challenge administrative decisions is an important constitutionally protected rights. Judicial review of administrative decision is about setting the legal boundaries of government power, it is a forum for reviewing the merits of a decision, however there is some conceptual overlap between legality and merits. Parliament cannot remove by legislation the right of an individual to have the decision of a public decision maker (such as a Police Officer) affecting their rights judicially reviewed. The High Court has held that this right is Constitutionally protected.

Do Consorting Notices Infringe upon the Commonwealth Constitution?

It is arguable that the law infringes the implied right to freedom of political communication. A law is unconstitutional if it unduly interferes with the right to freely communicate about government and politics. Persons issued with a consorting notice could argue that their ability to communicate about legitimate political issues, for example about lobbying against a law which seriously curtails their liberty without any need for proof of actual criminal intent or criminal wrongdoing, unduly burdens their implied right. The implied freedom is not an absolute right; law can interfere with communication about government or politics without breaching the implied freedom, if the law does so for a legitimate aim, and is generally proportionate to that aim.

When considering whether a law infringes the implied right to freedom of political communication, the High Court looks at 3 issues:
1. Does the law effectively burden the freedom? If the answer is yes:
2. Is the purpose of the law legitimate, in that if is compatible with our system of representative government? If the answer is yes:
3. Is the law proportionate to its legitimate purpose?

If the answer to question 1 is yes and the answer to question 2 is “no”, the law is unconstitutional. If the answer to questions 1 and 2 is “yes” and the answer to question 3 is “no”, the law is likewise unconstitutional.

Surprisingly, Parliament have not included a defence to the offence of consorting contrary to a consorting notice where the consorting is for the purpose of legitimate political communication or participation in the democratic process. Parliament’s failure to include this defence is what calls the constitutional validity of the Consorting Notices into serious question.

It has recently been reported that an OMCG member who is the first person charged with consorting contrary to a consorting notice is challenging the constitutional validity of the legislation.

When the legislation was passed, the State Premier Mark McGowan was quote by media saying, “This government is serious about stopping organised crime and protecting the community from the intimidation and violence carried out by bikie gangs... We will not tolerate outlaw motorcycle gangs or any organised criminal activity in Western Australia.” These comments are likely to raise questions about whether Consorting Notices are proportionate to a legitimate purpose: an entire class of persons who are members of OMCG and other Identified Organisations could potentially be liable to be issued with Consorting Notices, event where their only conviction is contravening a dispersal notice or displaying insignia of Identified Organisation, and where there is no proof that these persons are actually involved in planning, organising or facilitating criminal activity. In this respect, the Court may consider that the very wide scope of the power to issue Consorting Notices reaches beyond merely disrupting the capacity of OMCG and other Identified Organisations to participate in criminal activity by burdening the rights and liberty of OMCG members who have no involvement in involved in planning, organising or facilitating criminal activity.

The separation of powers doctrine under the Australian Constitution prohibits the Parliament from conferring functions on State Courts which are incompatible with the essential characteristics of judicial process and judicial power. Anti-Consorting laws targeting OMCG have been challenged in the High Court in other States on the basis of this principle with mixed success. However the WA laws require that the decision to issue a Consorting Notice is made by a Police Officer of senior rank, not by a Court. Therefore the law does not appear to infringe the separation of powers doctrine.

Read more:
Unlawful Consorting and Prohibited Insignia
Displaying Insignia of an Identified Organisation
Dispersal Notice

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