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What is a Dispersal Notice?
A Police Officer is empowered to issue a Dispersal Notice to a member of an OMCG or other Identified Organisation if the person has reached 18 years of age; and the officer reasonably suspects:
(a) the person is a member of an Identified Organisation; and
(b) the person has consisted, or is consorting, in a public place with another person who is a member of an Identified Organisation.
A Dispersal Notice makes it a criminal offence for the person served with the Notice to consort in public with any person named in the Notice for 7-days. It is a criminal offence to contravene a dispersal notice.
What does “consort” mean in the context of a Dispersal Notice?
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. Consorting Notices purport to continue to apply in other jurisdictions and overseas. This extraterritorial application of the law is likely to prove legally controversial and is yet to be tested in Court. Importantly, a Dispersal Notice applies only in to consorting with a named person in a public place. Whereas a Consorting Notice applies in both public and private places.
What is the content of a Dispersal Notice?
A dispersal notice must contain the name and address of the person restricted by it and the name of each person with whom the person must not consort. A Dispersal Notice must state the period which it remains in effect: 7-days unless revoked sooner.
Offence of Consorting Contrary to a Dispersal Notice
An offence is committed if a person is served with a Dispersal Notice and during the subsequent 7-day period of the Notice, the person consorts with a person named in the notice in public.
Special Police Powers Regarding Service of a Consorting Notice
For the purpose of serving a Consorting Notice, Police are given far reaching powers to:
(a) require the person to stop;
(b) require the person to provide their personal details;
(c) require the person to accompany Police to a Police Station to serve the person;
(d) require the person to remain at the Police Station or some other place for up to 2 hours to serve the person;
(e) serve the notice;
(f) if the notice was served orally, for the purpose of creating a written record of service of the notice;
(g) enter a vehicle or detain a vehicle for up to 2 hours for the purpose of serving the notice;
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.
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 Dispersal Notice or where the consorting “relates to criminal activity”.
Penalty and Consequences of Conviction
The offence carries a maximum of 12 months imprisonment or a fine of $12,000. To date these offences have generally been dealt with by way of a fine of $500 - $2000. More importantly, a person who has been convicted of an offence of consorting contrary to a dispersal notice is liable to be issued with a Consorting Notice. The impact of a Consorting Notice is potentially drastic (see Consorting Notice section).
Effect of Spent Conviction Order
Convictions for offences of consorting contrary to a dispersal notice (s 42 (1)) 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. 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.
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.