WA Attorney-General Introduces New Unlawful Consorting Bill

The Criminal Law (Unlawful Consorting) Bill 2020 (WA) (the Bill) was introduced into the WA Parliament on 20 February 2020 by the Attorney-General (Mr J.R. Quigley). The Bill proposes the creation of a 'consorting offence' which would aim to: 

The Bill, according to the Attorney-General, implements the WA Government’s commitment to fighting organised crime by "criminalising communication and networking" between convicted offenders engaged in organised criminal activity. According to the Attorney-General's media release of 13 January 2020, the  proposed Bill means: 

Objects of the Proposed Bill

In the Explanatory Memorandum the object of the new law (see Clause 6 of the Bill) is stated as being intended to encompass a large group of convicted offenders which would include child sex offenders, declared drug traffickers (within the meaning of the Misuse of Drugs Act 1981 (WA) section 32A(1)(c)) and persons who have been convicted of an indictable offence. The WA Police Force will be provided with additional powers to enforce the "unlawful consorting scheme" and the Ombudsman will have the ability to scrutinise the exercise of these powers by the police. In practice under the proposed law, police would be able to issue an “unlawful consorting notice” to anyone convicted of an indictable offence, namely, an offence such as murder, robbery or wounding, ordering the offender not to communicate with a list of other people who have committed an indictable offence.

The Bill in Detail

Unlawful consorting with convicted offenders (Clause 8): Sub-clause 8(1) creates a new crime of "unlawful consorting" which arises if an unlawful consorting notice (a notice) is served on the person and during the period that the notice is in force, the person consorts with a convicted person stated in the notice on two or more occasions. The offence will carry a maximum penalty of imprisonment for five years with a summary conviction penalty of two years. The two or more occasions of consorting need not have occurred with the same convicted offender on each occasion to constitute an offence (Sub-clause 8(2)) Further, it is important to note that the prosecution is not required to prove that the consorting occurred for a particular purpose or that the consorting would have led to the commission of an offence (Sub-clause 8(3)).

Defending a charge of unlawful consorting (Clause 9): This clause sets out the defences that can be used to respond to a charge of unlawful consorting. It is a defence to prove that the consorting was between persons who are "family members" (as defined and listed in Clause 5 of the Bill) and that the consorting was "reasonable" in the circumstances (Clause 9(1)). Based on the general defence of "family member the Bill provides (Sub-clause 9 (2)(a)) that it is a defence to prove that the "consorting occurred in the course of one or more of the following" circumstance and was "necessary":

• engaging in a lawful occupation, trade or profession;
• attendance at an educational institution to take part in a higher education course registered under the Higher Education Act 2004 (WA) section 23 or an approved VET course as defined in the Vocational Education and Training Act 1996 (WA) section 5(1);
• receiving a health service or social welfare service;
• receiving a health service or social welfare service for a person who is dependent upon the person charged for care and support;
• the provision of legal advice;
• lawful custody;
• complying with a written law, an order made by a court or tribunal, or any other order, direction or requirement made under a written law;
• activities undertaken by members of an organisation of employees registered under the Industrial Relations Act 1979 (WA) Part II Division 4 or the Fair Work (Registered Organisations) Act 2009 (Cth), for the purposes of the business of the organisation; or
• if the person charged is an Indigenous person – fulfilling a cultural practice or obligation of the customary laws or traditions of the Indigenous person’s community.

The onus on the defendant in proving these defences is on the "balance of probabilities". The use of "reasonable" in Sub-clause 9(1) and "necessary" in Sub-clause 9(2) recognises that a broader scope of dealings between family members is allowable, whereas consorting in other circumstances is restricted to only what is necessary in those circumstances. Further, Sub-clause 9(3) provides that, consorting is not "reasonable" or "necessary" if the purpose of the consorting is to avoid the operation of an unlawful consorting notice or relates to criminal activity.

Unlawful consorting notices: Sub-clause 10(1) provides that the term "conduct constituting an indictable offence" includes conduct engaged in outside of WA where if it occurred in WA, it would constitute an indictable offence. A police officer may issue a notice in respect of a person if three requirements are satisfied:

•  the person has reached 18 years of age;
•  the person is a convicted offender who has consorted, or is consorting, with another convicted offender, or who the prescribed officer suspects on reasonable grounds is likely to consort with another convicted offender; and
•  the police officer considers that it is appropriate to issue the notice in order to disrupt or restrict the capacity of convicted offenders named in the notice to engage in conduct constituting an indictable offence (Sub-clause 10(2)).

It should be noted that Sub-clause 10(3) provides that a notice may be issued for consorting that occurred before, on or after the commencement of Clause 10 of the Bill.

The Bill also makes provisions with respect to the content of unlawful consorting notice, the service of unlawful consorting notice, and the further service of an unlawful consorting notice when the notice is served orally (Clauses 11 to 13). As well there are provisions dealing with the duration, correction and revocation of an unlawful consorting notice (Clauses 14 to 16). The powers of police relevant to unlawful consorting are dealt with in Clauses 17 and 18 and include the consequences of failure to comply with directions of police officer.

Part 3 (Clauses 19 to 27) of the Bill deal with the powers of the Ombudsman to monitor the legislation and the Bill also includes Clause 33 which provides that the Act is to be reviewed after three years.

Comment and Reaction

In his media release of 13 January 2020, the Attorney-General indicated that the legislation was focused on all organised crime, saying:

The West Australian reports the WA Police Acting Commissioner, Col Blanch, as saying that:

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Criminal Law (Unlawful Consorting) Bill 2020 (161 of 2020) [WA] and second reading speech and explanatory memorandum as reported in TimeBase's LawOne Service.

Media Release: New anti-consorting scheme set to obstruct organised criminal activity in WA (Hon John Quigley LLB JP MLA Attorney General; Minister for Commerce; Hon Michelle Roberts BA DipEd MLA Minister for Police; Road Safety, 13 January 2020)

Attorney-General John Quigley to propose anti-consorting legislation to tackle organised crime in WA (Peter de Kruijff, The West Australian, Monday 13 January 2020)