Consorting with criminals: a legitimate offence?
In Australia, the crime of consorting differs slightly from state to state but the key element is the same. Knowingly associating with criminals (or being ârecklessly unaware of their identitiesâ) is still considered an offence.
While first pioneered in Australia and New Zealand in the early 1900s to target vagrants and other âundesirablesâ like prostitutes, the offence has been reformed in Australia since the 1970s, to target high level and organised crime, and a new generation of offences has been enacted in recent decades.
Critics of the offence of consorting with criminals claim that its attribution of fault based on what the individual knew rather than what he or she intended is unfair. Additionally, they argue that mere association should not be criminalised as this extends criminal law beyond its remit and impinges on personal freedoms.
, Professor of Criminal Law and Criminal Law Theory at and Co-Director of the , however, has a more nuanced view of consorting.
In a  published in University of Western Australia Law Review, she argues that consorting laws show the way that criminal procedure is being used to legitimise an old â and odd â offence.
Most jurisdictions, including Queensland, New South Wales and Tasmania, now require the police to issue a warning to a person before they are charged with consorting. This shows that institutions of criminal justice and procedure have come to play an important role in criminal responsibility, Dr Loughnan argues.
In addition, this new generation of laws change what an individual is responsible for. Now, a more extensive conception of responsibility â encompassing personal attitudes and self-regulation â sustains this element of the offence. âThe laws now work to inculcate âfriendship with the stateâ rather than prohibit âcompanionship with thievesâ,â Professor Loughnan said.
âThis means that when police issue a warning, the individual is given a choice: itâs us (the state, and the security of the state) or them (his or her associates). And, of course, there may be a personal price to pay for choosing the state to avoid criminal sanction. Put another way, itâs a case of âyouâre either for us or against usââ.
Dr Loughnan acknowledged that the offence still has other problems: âPolice are charging people with consorting based on âobservations of people spending time together in places open to the publicâ.â
A 2016 NSW Ombudsman review states, âthis has meant that certain groups, including Indigenous people and young people, have been disproportionately affected by the new consorting laws.
âThis reveals that the main target of the offence â suspect populations or status - not conduct â is common to each generation of the laws.â
âConsorting has only been given limited consideration by criminal law scholars,â Dr Loughnan said. âThe story told in this article suggests that consorting warrants further attention.â
Funding declaration: Professor Loughnanâs research was supported by an ARC grant âResponsibility in Criminal Law (DE130100418)â.
