The observations outlined herein are taken from the Attorney-General’s parliamentary speech when introducing the consorting laws.  The Attorney-General’s speech is referred to by the Courts in interpreting a new law such as consorting.

The consorting law makes it a criminal offence for a person to associate with two other people who have certain previous convictions.  It is preceded by a warning to the person that continued association is a criminal offence.  The new offence will apply only to adults, that is, people aged 18 years or over and will not apply to young people.  A person must consort on two occasions with at least two people who are recognised offenders.

A recognised offender is defined to mean a person who has previously been convicted of an indictable offence punishable by a maximum penalty of five or more years imprisonment or to prescribed offences where the maximum penalty falls below five years but which have been identified as being associated with organised crime, such as riot.

In relation to the issue of warnings a person must first be officially warned, and at least one of those occasions of consorting must occur after the issue of the warning.  The official warning can be given orally or in writing and must be given in relation to each convicted offender.  If the official warning is given orally it must be confirmed in writing including by electronic means within 72 hours, otherwise the oral warning lapses and has no legal effect.

Warnings can be given pre-emptively.  For example, the official warning can be issued by police without any consorting ever having occurred.  But the person must then consort with those persons on two occasions post-receipt of the warning.

Warnings can also be given retrospectively.  For example, where there is video footage uncovered that shows consorting.

The consorting can occur in public or in private and is not limited to physical association.  The offence is sufficiently broad so as to capture any kind of communication, for example, over the phone, email or social media.  There is no requirement that the consorting be linked to, or have any suspected link to, criminal activity in any way.

Certain types of consorting must be disregarded if the person can satisfy the Court on the balance of probabilities that the consorting was reasonable in the circumstances and that one of the following applies:

  • Consorting with close family members;
  • Consorting that occurs in the course of lawful employment;
  • Consorting that occurs in the course of the provision of a legitimate and necessary health service;
  • Consorting that occurs in the course of a person obtaining legitimate education;
  • Consorting that occurs in the course of a person obtaining legal services; or
  • Consorting that occurs in lawful custody.

The onus of proving that the act of consorting is one that must be disregarded and that it was reasonable in the circumstances falls to the person charged.

The offence is punishable by a maximum penalty of three years’ imprisonment and the offence is indictable but may be dealt with summarily on defence election.

The new consorting offence has warrantless stop, search and detain powers for police.  Police are allowed to search a person they reasonably suspect has consorted, is consorting or is likely to consort with one or more recognised offenders.  Where a police officer holds a suspicion they may also:

  • Require the person to provide their name, address and date of birth;
  • Take the person’s identifying particulars if necessary to confirm their identification;
  • Give the person an official warning for consorting; and
  • Require the person to move on from the place where an official warning has been issued.

Police also have been given a new power that where a police officer has given a person an official warning for consorting and the officer reasonably suspects that the person is consorting at the place with the recognised offender, the officer may require the person to leave and not return within a reasonable time of not more than 24 hours (a new form of move on power).

The move on power has a safeguard that provides the police cannot require the person to leave the place if doing so would endanger the safety of the person or someone else, for example, requiring the person to leave a vehicle in which recognised offenders are passengers in circumstances where the person has no access to alternative transport.

The effectiveness and use of the offence and associated police powers have to be reviewed by a retired Judge within five years.

It is important that anyone who is subject to the exercise of these new consorting laws and considers they have been unfairly dealt with sends a brief note to Robertson O’Gorman Solicitors as we are compiling a dossier on the use of the consorting powers for the purpose of the review in five years.


By Terry O’Gorman

23 January 2017