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Consorting Laws in Victoria

Insofar as the current consorting laws in Australia are concerned, the High Court considered this matter in an appeal from the NSW Supreme Court. Similar laws as those in NSW apply in Victoria under s 49F of the Summary Offences Act 1966 (Vic) which provides:

(1) A person must not, without reasonable excuse, habitually consort with a person who has been found guilty of, or who is reasonably suspected of having committed, an organised crime offence.

You should note that the accused/defendant bears the burden of proving a reasonable excuse for breaching the law and engaging in habitual consorting. The current maximum penalty upon conviction is 2 years imprisonment.

The definition “organised crime offence” is rather broad but is defined to means a person who has been convicted of an indictable offence against a law of the State of Victoria. The indictable offence must be punishable by a at least a level 5 imprisonment (10 years maximum) and involve each of the following elements of the crime:

  1. there was two or more offenders; and
  2. involves substantial planning and organisation; and
  3. forms part of systemic and continuing criminal activity; and
  4. has a purpose of obtaining profit, gain, power or influence.

There is no time limit of when the offences occurred therefore, a historical offence is sufficient to enliven the offence of consorting.

The High Court of Australia, considered the legitimacy of consorting laws in the case of Tajour v State of New South Wales, Hawthorne v State of New South Wales, Forster v State of New South Wales, where their Honours unanimously found that section 93X of the Crimes Act 1900 (NSW) was not unlawful. In reaching the decision, the Court found that s 93X provides that any person who habitually consorts with convicted offenders, after having first been given an official warning in relation to each of those offenders, is guilty of an offence, punishable by imprisonment, fine, or both. 

In Australian law, to “habitually consort” is understood to mean to seek or accept association or to keep company with persons of a particular class.  Section 93W of the Act defines “consort” to mean – consort in person or by any other means, including by electronic or other form of communication. 

Furthermore, section 93Y provides that certain forms of consorting are excusable if the person accused of consorting satisfies the court that the consorting was reasonable in the circumstances. 

Consequently, the law is here to stay and must be followed.

Possible Defences

However, there are a number of defences to a charge of consorting such as:

  1. Having a reasonable excuse such as gathering for a funeral or some circumstance beyond your control. Each circumstance will stand on its own facts.
  2. Where there is a factual dispute concerning the subject of the charges.
  3. The accused’s complete lack of knowledge of the other parties’ convictions.

Criminal Organisations Control Act 2012

Another piece of Victorian legislation that deals with consorting is the Criminal Organisation Control Act 2012 (Vic).

Section 124A(1) of the act makes it an offence for individuals who have been convicted of a serious criminal offence from association but only if they have been served with an “unlawful association notice” to an individual who is specified in that notice (“Specified Individual”) and continues to associate with the Specified Individual for a period of:

  1. on 3 or more occasions in a 3 month period; or
  2. on 6 or more occasions in a 12 month period.

A contravention of s 124A(1) is an indictable offence which upon conviction, is punishable by a custodial sentence of 3 years or 360 penalty units or both.

There are lawful excuses under s 124(3) of the Act in the following circumstances:

  1. those individuals are family members; and
  2. those individuals associate for a purpose that is not an ulterior purpose.

Section 124(4) provides further excuses for associating providing the association is not for an ulterior purpose and connected to:

  1. the lawful employment or the lawful operation of a business;
  2. in the course of participating in education or vocational training;
  3. while either or both of them are being provided a health service;
  4. while either or both of them are being provided legal advice;
  5. while in lawful custody or in the course of complying with an order, requirement or direction
  6. for genuine political purposes, or in lawful protest or industrial action;
  7. in accordance with a lawful association authority granted to the individual;
  8. at a gazetted event or gathering.

Under the act “ulterior purpose” means—

  1. the purpose to avoid the application of subsection (1); or
  2. the purpose of planning, inciting or committing an offence; or
  3. the purpose of expanding an organised criminal group or criminal network.

Proving an ulterior purpose which is a state of mind, would be hard for any prosecution to prove unless there was such evidence obtained from an LD, TI or something in writing such as emails or text messages that may support such contention.

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