CRIMINAL LEGISLATION AMENDMENT (CONSORTING AND RESTRICTED PREMISES) BILL 2018

2nd Reading Speech

26 September 2018


The Hon. ADAM SEARLE (11:21): I lead for the Opposition in debate on the Criminal Legislation Amendment (Consorting and Restricted Premises) Bill 2018. The Opposition does not oppose the bill. The objects of the bill are to amend both the Crimes Act and the Restricted Premises Act in response to reports by the Ombudsman. This legislation has been carefully expressed to be in response to the reports, not to adopting the recommendations in the reports. The provisions of the bill are, in a number of respects, at variance with the content of the reports. The first of these reports is by the Ombudsman relating to the consorting provisions of the Crimes Act. The report was tabled in June 2016.

The second is the report by the Ombudsman relating to some of the police powers and offences under the Restricted Premises Act. It was tabled in the other place in November 2016. Two years or more after the reports were tabled, legislation has at last appeared. I note that the Attorney General in the other place made the defence in his reply speech that the Government did not want to rush such important reforms but preferred to take a considered approach. I could understand that were it a weighty undertaking such as the Uniform Evidence Act or some entirely new piece of legislative edifice, but to take such a long time to deal with these two reports shows a Government lacking an agenda and the competence and wherewithal to proceed expeditiously with these reviews. The end product suggests that the period between the tabling of the reports and now has been taken up by bureaucratic struggles over the provisions in the bill. That certainly seems to be the case with the consorting provisions.

The provisions in the bill do a number of things. Offences committed outside the jurisdiction can make someone a convicted offender for the purposes of the principal Act in relation to consorting. Any person under the age of 14 is excluded from the offence of consorting. A clearer statutory form of the consorting warning is provided, although lack of strict compliance does not, apparently, invalidate the warning. An official warning expires two years after it is given, or for someone under 18 years age six months after it is given, and the defence of reasonable consorting is extended to consorting that occurs while complying with an order by the State Parole Authority or complying with a case plan direction or recommendation by Corrective Services NSW or providing transitional crisis or emergency accommodation or a welfare service.

The defence of reasonable consorting between family members now takes into account the Indigenous kinship system of an Aboriginal defendant’s culture. There is also a requirement that the Law Enforcement Conduct Commission [LECC] review the amendments made by this bill within three years of the provisions coming into force. The LECC is to report both to the Attorney General and to the Minister for Police as to the outcome of the review. Perhaps that is a worthwhile safeguard given recent events. Consorting laws in this State have had a long, chequered, unpleasant and contested history. They were introduced in the 1920s ostensibly in response to the razor gang phenomenon primarily in East Sydney. They grew from the vagrancy legislation that simply targeted the poor. They fell into disuse and were certainly an element in police corruption, as was recognised by the Wood royal commission—a situation that arose from the very wide discretion allowed to individual police officers.

This Parliament amended the law relating to consorting with the Crimes Amendment (Consorting and Organised Crime) Bill 2012, which commenced operation on 9 April 2012. It was subject to a High Court challenge instituted in 2012 and finalised in 2014. The 2012 Act provided for a review of the operation of the provisions. The Ombudsman’s report, to which this bill responds, was the result of that review. The original review was to be two years after commencement but it was extended to three because it was assumed that the High Court proceedings would have reduced the use of the provisions. The Ombudsman’s review covered the period from 9 April 2012 to 8 April 2015.

Consorting as an offence does not sit easily within the usual range of criminal laws. It does not punish someone for a criminal act per se, but is aimed at stopping people committing criminal acts in the future because of whom they associate with. It does so by targeting what could be ordinary, regular, innocent relationships that, on any rational view and in other circumstances, should not be the subject of intervention by the criminal law. But the wide discretion involved and the consequent potential for—and in previous times the actual occurrence of—corruption means that care should be exercised in designing and implementing laws of this nature.

This law can criminalise otherwise innocent behaviour and tries to control future conduct without demonstrating that someone is involved themselves in criminal behaviour. The majority of Australian jurisdictions have consorting laws—a point made by the Attorney General and the shadow Attorney General in the other place during the debate. Item [3] of schedule 1 to the bill amends section 93X (3) of the Crimes Act relating to a warning to be given. It is said to mirror more closely the elements of the offence and seems to respond to recommendation 2 of the Ombudsman’s report.

It does not seem to completely correlate with the Ombudsman’s recommendations, which in turn were the same as the NSW Police Force submission to the Ombudsman’s review. If the Ombudsman and the police agree, it is curious that the Government does not. I note that the Attorney General in his reply speech in the other place said that the Ombudsman’s recommendations had to be considered in close consultation with the New South Wales police because of the operational impact of any changes to consorting law on law enforcement. I note the Attorney General in the other place also said that the warning proposed by the Ombudsman in recommendation 2 of the report was not correct because of some technical analysis that the Attorney General then engaged in.

The Attorney General said that the warning in this bill was developed in consultation with the Police Force and the Parliamentary Counsel’s office. It still does not really explain why the Government’s actions here differ from the Ombudsman’s recommendation given that the Ombudsman’s recommendation was congruent with the submission of the police. An explanation of that would be useful, particularly should these provisions be applied judicially in the future. Given the lack of clarity, it would be useful for the Government to outline the deviance and diversion from the recommendations in this bill.

New section 93X (4) also arises from the Ombudsman’s report. An official warning ceases to have any effect six months after the warning is given to someone under 18 or in other cases two years after the warning is made. This issue arose as a practical one because the 2012 legislation made consorting an indictable offence when previously it had been a summary offence with a set period in which prosecutions had to commence. There is no such limit on indictable matters. The police sensibly dealt with this as a matter of policy by deciding that criminal proceedings for consorting should not commence unless the occasions of consorting occurred within a six-month period, unless in exceptional circumstances. Most other jurisdictions in Australia also contain time limits. Recommendation 9 in the Ombudsman’s report was that the Attorney propose for consideration by Parliament an amendment to the consorting laws to include a statutory time limit. Proposed section 93X (4) effectively achieves that objective.

The Ombudsman made a number of recommendations concerning defences to a charge of consorting. It is worth noting that the principal Act places an onus on the defendant to establish defence, reversing the onus in a way that is usually frowned upon in our criminal law system. The Ombudsman records the view of submissions to his inquiry that the existing defences are not extensive enough and exclude a range of circumstances that ought to be included, such as consorting in the course of sporting activities, religious activities or between neighbours. Recommendation 12 proposes amendments to section 93Y of the principal Act to provide additional defences. Items [4] and [5] of schedule 1 to the bill seem to do precisely that. Recommendation 13 proposes a definition of family members that includes kinship relations between Aboriginal persons, as I indicated earlier. That is contained in the proposed addition to section 93Y and the definition of “family”.

Another amendment to section 93Y seems to deal with the Ombudsman’s recommendation 14 that would allow consorting as part of attending a health service that includes therapeutic rehabilitation, drug and alcohol services. The shadow Attorney did ask that the Attorney explicitly confirm in his reply that the Ombudsman’s recommendation 14 had been implemented in the bill. I did not find that confirmation in the Attorney’s reply. I may have missed it, but it would be useful if the Government attended to that matter in this place, or at least point out my oversight. Preventing people seeking drug rehabilitation services because other people there might have committed criminal offences seems genuinely bizarre when we consider the chain of circumstances often leading people to seek such rehabilitation services. Item [1] of schedule 1 includes as an indictable offence and brings within the consorting regime an offence committed in another jurisdiction that would be an indictable offence if committed in New South Wales. That does not appear to have come from the Ombudsman’s report, but it is not objectionable.

Schedule 1 [7] provides a review provision, with the review to be carried out by the Law Enforcement Conduct Commission, which is also consistent with the Ombudsman’s recommendation. The final provision in the bill dealing with consorting is the proposed addition to section 93X (1) in schedule 1 [2]. This would exclude from the consorting regime anyone under the age of 14. There is currently no age restriction in the principal Act, so this is a new restriction and a removal of one group previously included in the consorting regime. The Opposition finds it a troubling proposition. The Ombudsman’s recommendation was for an exclusion for every person under 18 years rather than the New South Wales Government’s proposal of under 14 years. The NSW Police Force adopted as policy that consorting charges should not be brought against those under 16 years of age unless in exceptional circumstances. The Government’s proposal is not only less restrictive than that proposed by the Ombudsman but also less restrictive than that proposed by the police. I note in his reply speech the Attorney in the other place defended the approach taken by the New South Wales Government with this statement:

Excluding people under the age of 18 from the consorting law may also result in certain young people being more susceptible to exploitation by organised crime groups.

And, of course, the statement that the Government approach was more consistent with the law of criminal responsibility. It does not explain why the New South Wales Government policy in the bill departs from that proposed by the Ombudsman and the police. I do not think either of those bases advanced by the Attorney in his reply speech gets to the pitch of the ball. Again I ask the Government in this place to give a more lucid and full explanation of these important departures. This goes to the core issue of what the consorting laws in fact intend to do. They were explicitly introduced to be utilised against serious and organised crime. Premier O’Farrell explicitly said that, as did other members from the Government side. In the debate and public discussion, that was unequivocally the Parliament’s intention. It was even contained in the title of the 2012 bill. It has been restated in the Attorney’s second reading speech introducing the bill in the other place, and I assume the Minister’s remarks in his second reading speech in this Chamber. What is going on that people as young as 15 are supposed to be subject to consorting warnings and even charges? This reflects the fact that a significant use of consorting powers by the police appear to have nothing to do with organised or serious criminal activity. I quote from page 30 of the Ombudsman’s report:

General duties police attached to LACs were responsible for issuing 4,401 official warnings during the review period, amounting to approximately half the total number of warnings issued by police. These warnings were issued to 2,268 different people on 1,538 separate occasions. Overall, 2,601 different people were subject to use of the consorting law by general duties police officers, amounting to 79% of all people subject to use of the consorting law by all police.

It does not seem to be the purpose for which the Parliament created the law. It would be good if the Government could explain how this law has been applied and why it has been applied quite differently to that intended by the Parliament. The use varied dramatically between different zones and different local area commands [LACs], suggesting significant elements in the LACs did not see the need to use the consorting powers while others obviously did. It is clear that much of this had nothing to do with serious or organised crime and it is in stark contrast to the Gangs Squad, which used the powers in what seems to be exactly the way intended by Parliament. They also used it differently to general duties officers in ways set out at pages 32 to 34 of the Ombudsman’s report. If the powers are being used other than for serious and organised crime, it can perhaps be understood why children have somehow got caught up in the use of the consorting laws. But the question is: Is this appropriate?

During the review period, the Ombudsman advises that 201 children and young people between 13 and 17 years of age were subject to the use of the consorting law; 41 were aged between 13 and 15 years; and nearly 60 per cent of them were Aboriginal, which is another very disturbing metric. Quite remarkably, 79 per cent of those warnings to children and young people were illegal, which is perhaps even more alarming. The police have been given these important powers but they are not being applied lawfully. This was almost exclusively done by general duties police. Only seven of the 201 were targeted by specialist squads. The Ombudsman quotes evidence from a regional director at Juvenile Justice that it is unlikely the use of consorting powers will in fact reduce juvenile offending. The extraordinarily high error rates suggest something has gone badly wrong. Of 133 children and young people in the consorting data whose associates or friends were warned about consorting with them, 105 were incorrectly identified by police as convicted offenders. I quote the Ombudsman at page 80:

It appears that police are issuing consorting warnings in relation to children and young people who are known to them through repeated police contact and that these mistakes have arisen from a lack of understanding by police officers of the restrictions on the Children’s Court’s ability to record convictions.

The Ombudsman notes there is evidence that these mistakes by police continue. However, the Ombudsman quotes at page 81 the submission from the police that concedes that the issue has some impact on the usefulness of consorting powers relating to those under 18 years of age. That is, only in very limited cases can consorting powers be used legally against young people. The police submission at page 82 of the Ombudsman’s report went on to say that the consorting powers should be available against persons 16 years or over who commit serious indictable offences. Again, the police posit an age of 18 but the Government’s bill states an age of 14. I quote from the Ombudsman at page 83: There is agreement among all the submissions that the consorting law should be amended to exclude its application to children aged 15 years and under. However, we are of the view that the consorting law should not be used in relation to any children and young people, that is, anyone who is not yet 18 years old.

The reason advanced by the Attorney General in the Legislative Assembly is not sufficient or compelling and obscures rather than clarifies why the Government has landed on this policy. The reality is that children can only very rarely be lawfully caught by the consorting regime, as conceded by the police, all of which means that the Government position is a bit confused and certainly confusing. It would be most useful if a bit of light was shone on this by the relevant Minister in this place. The Ombudsman’s report states that very rarely can this be legitimately used against children or young people. TheGovernment states in a piece of legislation that it will put an age limit of 14, the Ombudsman says 18 and the police say 16. It is all over the place.

Schedule 2 to the bill deals with amendments to the Restricted Premises Act which originally was the Disorderly Houses Act. While consorting laws dated from the 1920s and the razor gangs, the Restricted Premises Act originates with the Second World War and considerations of national security. In July 2013 the Labor Opposition introduced a private member’s bill—the Firearms Amendment (Prohibition Orders) Bill 2013—to deal with people subject to a firearms prohibition order. Shortly after that and in response the then Premier introduced the Firearms and Criminal Groups Legislation Amendment Bill 2013. Apart from having provisions similar to Labor’s private member’s bill, it also contained provisions amending the Restricted Premises Act. These provisions expanded the existing search powers in the Act to enable police to search for weapons and explosives as well as to search for drugs, alcohol and related items, which they already could.

The amendments also created a new category of “reputed criminal declarations” and two new indictable offences that could be committed by owners and occupiers of declared premises of failing to prevent a reputed criminal from managing, attending or controlling the premises. That legislation was required to be reviewed by the Ombudsman for the two-year period 1 November 2013 to 31 October 2015. Schedule 2 to this bill seems to largely consist of provisions adopting the report’s recommendations which is interesting because the police seem to have gone to some trouble to fail to provide all the information requested by the Ombudsman, which the Ombudsman thought was relevant to the review. The expressed aim of the Government’s legislation, apart from running over the top of Labor’s private member’s bill, was to “make it easier for police to get premises declared on the grounds they were routinely used by serious criminals, such as gang clubhouses”, according to then Premier O’Farrell.

In the debate in the Legislative Assembly the shadow Attorney General referred to one application being made concerning premises at Leppington, which was withdrawn when the use was altered. In his reply speech, the Attorney General said that the powers under the Restricted Premises Act have been used against bikie clubhouses being declared as restricted premises. He also indicated that from October 2017 the NSW Police Force had used this power 14 times to enter declared premises without a warrant. I ask the Government to indicate whether those are the only occasions when that has been used, whether they have been used more recently and in what circumstances. It would be useful to understand how this legislation has been applied in practice because we do not seem to have much visibility of that. As this Parliament and this House are being called upon to enact new laws without that information it should at least be a matter of public record. I understand there may be some operational reasons why the Government does not want to give chapter and verse but we need more information than we currently have.

Apparently there were seven occasions when police obtained warrants under section 13. Police can apply for a warrant under this section before applying for a declaration if they have reasonable grounds to believe that prescribed activities are taking place at a particular location. Material gathered is meant to be used in preparing an application under the Act. Section 13 search warrants were executed during the review period on premises in Girraween, Boolaroo, Newcastle, Woy Woy, Leppington, Warwick Farm and Burwood. The section 13 searches seem to have led to the closure of motorcycle gang clubhouses. Despite Parliament’s expectation, declarations were not sought or needed. All these seven locations were gang clubhouses. Many other clubhouses were not raided. This is apparently consequence-based policing. The police do not target clubhouses generally, only those that require a response for particular reasons.

The exercise of the section 13 search warrants has given rise to recommendations by the Ombudsman which are adopted in the bill. Recommendation 2 is contained in proposed section 13AA, as is recommendation 3. While executing a section 13 warrant the police may give a reasonable direction to a person on the premises to minimise risk to any person, and it is an offence not to comply. Given that the situation involves such circumstances, these provisions make perfect sense. For example, 60-odd people present at the Rebels clubhouse at Leppington when a warrant was executed is a situation where the need for such powers being clarified seems logical.

Proposed section 13AB implements recommendation 4 of the review, giving police power to search any person on the premises whom they reasonably suspect of having in their possession something mentioned in the warrant. Recommendation 5 is replicated in proposed section 13AC, a power of the police to demand a name and address of anyone present during a section 13 search. Proposed section 10 is amended by schedule 2 [4] in accordance with recommendation 9 so that police must notify the occupier of premises searched under section 10 of the search if they were not present, which is a useful clarification of the provisions, although there was no use of the additional section 10 powers during the review period. Schedules 2 [1], 2 [2] and 2 [3] make amendments to section 4 of the principal Act to allow for the rescission of a declaration on the application of the owner or occupier of premises. The changes introduced by schedule 2 seem comparatively non-controversial and are in line with the recommendations of the Ombudsman’s report. The Opposition does not oppose the bill, despite the confusion and lack of clarity on the part of the Government, but I ask for the clarifications that I have sought and identified.