Resumed from 23 June.
Comments and speeches by various members
HON ALISON XAMON (North Metropolitan) [7.25 pm]: I rise as the lead speaker on behalf of the Greens to make a contribution on the Criminal Law (Unlawful Consorting) Bill 2020. The bill has a relatively simple policy outcome; that is, it makes it possible for a police commander or a more senior officer to issue an unlawful consorting notice against an adult. I will say from the outset that the Greens are pleased to see that it is not intended for these laws to apply to children.
Specifically, the bill is intended to deal with adults who have been convicted of an indictable offence or a child sex offence or who are a declared drug trafficker under the Misuse of Drugs Act and who have or are suspected by the officer on reasonable grounds to be likely to consort with another person who also has been convicted of one of the offences that I just listed or is a declared drug trafficker under the Misuse of Drugs Act, and that is provided that the officer considers it appropriate to issue the notice in order to disrupt or restrict the capacity of those named in the notice to commit that indictable offence. That is simply the mischief that this bill is trying to address. The issue of a notice, therefore, is going to involve a degree of crystal ball gazing. A notice can be issued against a person who has not consorted with another convicted offender, but is predicted by the officer to be likely to do so at some predicted time in the future. A notice is issued in order to disrupt predicted indictable offending. Like any prediction, it needs to be noted that it may not necessarily be accurate.
The explanatory memorandum outlines that police commanders and more senior police officers tasked with this responsibility will be from within the state crime unit. They are meant to have a particular focus on organised crime. I note that the consorting laws are not intended to be used as a general policing tool. It is important that the bill is not used for general policing, given what happened in New South Wales, which I will discuss in a moment.
Indictable offences include either-way indictable offences that can be dealt with summarily. I have sought, unfortunately in vain, to ascertain the number of people who met the criterion of having been convicted of an indictable offence in Western Australia. The Attorney General has kindly provided me with the figures on the number of people convicted in the Supreme Court or the District Court from 2015 to 2019. These figures indicate that around 2 000 different people are convicted in those courts each year. The figures range from just over 1 800 in 2015 to just over 2 500 in 2018. The total number of adults who have been convicted of an indictable offence in those courts is not ascertainable because a person who is a repeat offender might end up being counted in multiple years, but not in the same year. I am not sure whether that was the point that Hon Michael Mischin wanted to make. In any event, the Attorney General has been unable to extract for me the number of people who are convicted in the Magistrates Court on either-way indictable offences, but we know that is likely to be a fairly substantial number of people, too.
“Consort” means to seek or accept the other person’s company or to be in their company. I note that the definition of “conviction” in the bill excludes convictions for an offence committed when someone was a minor and spent convictions. Under the bill, whether the conviction is spent is relevant, not the age of the conviction. The bill can therefore capture very old convictions, unless offenders bother getting them spent. However, upon getting an unlawful consorting notice, a restricted person or a person named in the notice can then apply for a spent conviction and, if successful, the restricted person can then consider applying for revocation or variation of the notice. I will have a little more to say about that in a moment.
Breach of an unlawful consorting notice occurs if within the three-year duration of that notice, the restricted person consorts on two or more occasions with a person who is named in the notice. As I understand it, the reason the bill states “2 or more occasions” is to allow for one slip. Under this bill, consorting is established by one communication. The communication does not have to be habitual or even repeated to constitute consorting. However, to constitute a crime, it does have to be repeated. The first time the restricted person consorts as defined is not a crime and they cannot be charged, but they can receive a warning from the police and perhaps a move-on direction. However, if they consort as defined a second or subsequent time, they will be considered to have committed a crime and they can be charged. That breach is a crime. Whatever the reason for the consorting, it is still a crime. The purpose does not need to be crime related.
Very importantly, the bill contains a number of defences, including consorting between family members that is considered to be reasonable in the circumstances. Other defences include a number of other activities that are undertaken whereby consorting is considered to be necessary, such as lawfully working, doing some sort of training or getting a health or social welfare service for either themselves or a dependant. I note that “health service” has the meaning given in section 7 of the Health Services Act, and that “social welfare service” includes services provided by governments and charitable organisations for community welfare, financial assistance, housing and temporary accommodation. One question I would like the minister to clarify, please, is whether this defence includes necessary consorting while undertaking rehabilitation. I am concerned that it may well be that the category of people that we are talking about may need to undertake rehabilitation and I want to ensure that that is a defence, because we certainly should not be putting anything into law that would prohibit anyone from being able to undertake rehabilitation.
There are other defences, such as being able to get legal advice whilst in custody or complying with a written law or a court order. Another thing I want to ask the minister is whether the defence that I have just described also includes necessary consorting while complying with the terms of a sentence or parole, or specifically with case plans—for example, again, attending compulsory counselling or rehabilitation. The minister is probably getting a bit of a theme here. I just want to make sure that nothing within this bill in front of us will prohibit people from getting the necessary supports that they need to be able to get their lives on track. Importantly, one of the defences is industrial action by members of a registered union for the purposes of the business of that union. I am presuming that is in the legislation as a defence because it has to be recognised that workers have rights and the bill is not intended to cut across that. There is also a defence for Aboriginal and Torres Strait Islander people who are fulfilling cultural obligations.
The bill specifies that if any purpose of consorting—not necessarily the only purpose—is to avoid the operation of an unlawful consorting notice or relates to criminal activity, it is not going to be reasonable or necessary, so the defences will be deemed to be inapplicable if the court finds that that was the purpose of the consorting. This is aimed at, for example, consorting for criminal purposes under the cover of work or education. Of course, if criminal activity is alleged, the person can also be charged with those related offences. That means that any amendment to remove these defences is unnecessary because it is quite clear that when people try to use any of these activities to provide cover for their unlawful activities, the defences simply will not apply.
One of the changes made by the Family Violence Legislation Reform Bill 2019, which was recently passed in this place, is that when a restraining order is varied, it is a substitute order, and that means that the previous order is cancelled. That sensible provision was put forward to ensure that we avoid confusion of having to read multiple orders together. As I said, that was an eminently sensible reform. At the briefing, I asked whether the process would be similar for this situation, so that the restricted person and the police need refer to only one document instead of two. I was surprised that the answer was no and that we would be looking at two documents—the unlawful consorting notice will need to be read in conjunction with the notification of the correction. That is a pity because it creates scope for confusion that could have been avoided. It is not beyond the wit of our police to look at having a regime similar to the restraining orders regime.
Regarding the scope to make corrections to the list of people with whom the restricted person must not consort, I ask the minister to please confirm that the corrections power extends only to deleting names, not to adding names.
The Criminal Law (Unlawful Consorting) Bill 2020 gives police two new powers. If an officer suspects on reasonable grounds that a person has an outstanding notice that needs to be served on them, they can stop them and require them to disclose their name, date of birth and address and they can detain them and any vehicle that they are using for up to two hours, using reasonable force if necessary to serve the notice on them. The other new power that the bill gives the police is to move on a restricted person for up to 24 hours. As I understand it, that is intended to operate in a similar way to move-on notices, and can be used if an officer suspects on reasonable grounds that a person has breached the unlawful consorting notice. That would be the situation unless the officer was satisfied that the restricted person had one of the defences that I previously outlined. The bill contains no requirement for a move-on direction to be in writing, unlike the move-on order provision in the Criminal Investigation Act 2006, but that is because that act will apply anyway. The bill is effectively an extra head of power for the usual move-on notice process to be issued; therefore, the direction must be in writing as required by the Criminal Investigation Act. I ask the minister to please confirm for the record that my understanding of that is correct. For the same reason, if a person does not comply with a direction from a police officer and does not have a reasonable excuse, that will be an offence that attracts a maximum penalty of 12 months’ imprisonment or a $12 000 fine. Similarly, I ask the minister to confirm that a reasonable excuse includes the two circumstances that are referred to in section 27 of the Criminal Investigation Act; that is, when the person is accessing a place at which they usually reside, shop or work, or they are accessing transport, health, education or other essential services and the person is taking reasonable steps to comply and move out of the area. I note that self-incrimination is not a defence for noncompliance with a direction to provide personal details or corroborating evidence.
Apart from the revocation and the variation processes by the Commissioner of Police, which I have already mentioned, there are two accountability mechanisms. One is the review clause, which provides for a one‐off review after three years. The review must address whether the policy objectives are still valid, whether the provisions are still appropriate for achieving those policy objectives and whether the powers given by the legislation have been exercised for the purposes of the objects, which are set out in clause 6. Clause 6 states —
The objects of this Act are to disrupt and restrict the capacity of convicted offenders to organise, plan, support or encourage the carrying out of criminal activity.
The review can also consider any other matters that the minister considers relevant to the operation and effectiveness of the legislation. I note that the report needs to be tabled in Parliament within 12 months.
One of the recommendations made by the New South Wales Ombudsman, who reviewed the unlawful consorting laws in that state, was that the review should include input from the New South Wales Bureau of Crime Statistics and Research so it could establish quantitative measures of the consorting laws’ effectiveness in preventing serious crime. However, no quantitative measures have been developed to measure the effectiveness of this law for the purposes of the review, even though a WA Office of Crime Statistics and Research is being developed that will be capable of providing independent statistics and evidence-based research. That is a significant shortcoming of this legislation. The object of the Criminal Law (Unlawful Consorting) Bill is to disrupt and restrict criminal activity and the review clause includes a requirement to review the effectiveness of the act, but the absence of any planned quantitative measures is going to compromise the quality of the review.
The other accountability mechanism is monitoring by the Ombudsman. The Ombudsman is required—it is not discretionary—to keep the exercise of powers conferred by the bill under scrutiny. This includes, but is not limited to, the mandatory inspection of police records in order to ascertain whether police have complied with the bill. Despite the fact that this additional requirement has been put onto the Ombudsman, no new resources have been provided for that extra function. From debate in the other place, I note that it is anticipated that the nature of the Ombudsman’s scrutiny is going to be to review unlawful consorting notices to check whether they meet the criteria outlined in clause 10. The number of unlawful consorting notices for review is expected to be around 1 000. That is 305 out of 561 known motorcycle gang members who are convicted offenders, plus about 620 child sex offenders. The task of review will not be so onerous that extra resourcing is expected to be needed—at least, that has been the response. As I said earlier, the concern I have is that the number of people who meet the definition of “convicted offender” and to whom this bill could potentially apply, depending on how the police end up exercising their discretion, could end up being far more than 1 000 people. In addition, the bill as worded permits the Ombudsman’s scrutiny to be broader than just reviewing the unlawful consorting notices.
The New South Wales Ombudsman’s report states that for the 42 people who were charged under the New South Wales consorting law, the Ombudsman accessed charge sheets, fact sheets and briefs of evidence and obtained court transcripts of hearings and sentencing. When possible, the Ombudsman also observed court proceedings. That is the level of scrutiny I believe our Ombudsman should be applying to the exercise of power under this bill, but there is no indication that that will happen. Even if that was the intention, additional funding is not being released in order to facilitate a level of oversight that is comparable with what is expected in New South Wales. I suspect that the New South Wales Ombudsman’s report might have been quite different if the Ombudsman had not carried out that level of scrutiny and investigated more sources of information than simply the police records. Instead, the bill in front of us today sets out a pretty minimal level of scrutiny. The Ombudsman has the liberty to scrutinise further, but that is not going to happen unless we ensure that he is adequately resourced. I want to know what level of scrutiny Parliament and the public can reasonably expect the Ombudsman to apply within the limited resources that his office is being given.
As I said, I want to be sure that the Ombudsman’s scrutiny will extend to observing or reading the transcripts of court hearings. I want to be sure that the Ombudsman will be monitoring the use of police directions. I think this is complicated because the bill will result in Western Australia having two sources of authorisations for move-on directions. The authority granted by this bill will be far narrower than that under section 27 of the Criminal Investigation Act. For the Ombudsman or, for that matter, the Attorney General to ascertain whether a police power to issue a move-on direction subject to this bill has been properly exercised, the records of the police, the courts and the Director of Public Prosecutions need to distinguish between the two kinds of move-on orders. As far as I am aware, there is no system in place to do that. I find that concerning. I ask the minister whether that will be looked at. I want to ensure that all relevant police and Department of Justice records will show whether the restricted person is Aboriginal or Torres Strait Islander, because the New South Wales Ombudsman found that unlawful consorting notices were being disproportionately used against Aboriginal people. I understand that that information will be sought for all restricted people and that however that is answered will be recorded, but I ask the minister to please confirm whether my understanding of that is correct. It is important that we ensure these laws will not be disproportionately and inappropriately applied to Aboriginal and Torres Strait Islander people when it is not warranted or necessary.
I want an assurance that the Ombudsman’s scrutiny captures relevant information that is obtained from other sources; for example, via a complaint made to the Ombudsman by a restricted person or by an organisation such as the Aboriginal Legal Service of Western Australia. I ask the minister to confirm that, please. Clause 27(3) outlines that the Ombudsman’s annual report to the minister must include a review of the act’s operation on a particular group in the community, if that has come to the Ombudsman’s attention. As I say, it is quite important to ensure that other bodies are able to bring concerns directly to the Ombudsman. I draw members’ attention to the recent report that was tabled in this place by the joint standing committee oversighting the CCC, which captured the Aboriginal Legal Service’s frustrations. It felt as though concerns raised directly with the Corruption and Crime Commission were not being heeded. As the New South Wales report has identified, if a potential problem is on foot, we need to ensure that the Ombudsman is able to receive concerns from any relevant agency.
The bill provides that the Ombudsman can, at any reasonable time, enter police premises, with notice to the Commissioner of Police, and access and take copies of any police records. Also, the Ombudsman can direct police to produce documents or things in their possession or control. Police have to provide a whole range of information. In addition, the Commissioner of Police must keep a register and provide that information to the Ombudsman regarding how unlawful consorting notices are being exercised. If the Ombudsman is of the opinion that an unlawful consorting notice has been issued and that the statutory requirements have not been met, or that it needs to be varied, the Ombudsman can recommend in writing to the police commissioner that it be revoked or varied, and set out the reasons. If that happens, the police commissioner must, as soon as practicable, notify the minister in writing of the recommendation, as well as notify the minister and the Ombudsman of any action taken in respect of that recommendation. It is important to note that it will not be compulsory for the police commissioner to comply with the recommendation of the Ombudsman, but at least the Ombudsman will provide the minister and the police commissioner with a report each year about what monitoring activities have been undertaken by the Ombudsman.
A number of things need to be included within the Ombudsman’s annual report, including information contained in the police commissioner’s register; a review of the impact of the operation of the act on a particular group in the community, if it has been indicated that there may be a problem; and any observations that the Ombudsman considers appropriate to make about how the act is operating. I note that the minister must table that report each year within 12 sitting days of receiving it, and I ask the minister to confirm that the names of convicted offenders will be redacted from any version tabled in Parliament or any public version. That is my understanding, but I would like to get that on record, please. Aside from the annual report, the Ombudsman can report to the minister at any time about what they are uncovering or can respond to a request from the minister.
The Criminal Code currently contains two consorting provisions, one in relation to declared drug traffickers and one in relation to convicted child sex offenders. These provisions make it an offence to habitually consort with another person who is likewise a declared drug trafficker or convicted child sex offender after being warned by any police officer not to. Both these offences are now going to be repealed and replaced by the provisions under this bill; however, the repeal of the child sex offender provision will not come into effect for 12 months. I understand that as part of the transitional period, existing police warnings for convicted child sex offenders not to consort with each other will be preserved, as will the defences, and police will not be able to issue any new warnings under the Criminal Code provisions; they will have to use the provisions in the bill instead. There is no transitional period for the conversion of pre-existing warnings to declared drug traffickers into unlawful consorting notices.
Clause 24 of the bill deals with disclosure, and disclosure is authorised when the person disclosing is protected from civil and criminal liability. I ask the minister confirm that the following scenario is protected: when police serve unlawful consorting notices, they will need to ensure that bystanders do not overhear the names of convicted offenders, because I understand that there is a risk they may be divulged in a way that would not attract any of the protections under the bill. I understand that in practice when police serve the notice and explain it they will refer to the people named in the notice, rather than saying their names, but I ask whether the minister could confirm that that will be the case, because it would be very concerning if a bystander accidentally ended up disclosing the details and found themselves in breach of the law. I also ask the minister to confirm for the record that clause 24 authorises the use or disclosure of information in the following circumstances: responding to a freedom of information application; providing information to Parliament, including its committees; and providing information to the Auditor General.
The second reading speech refers to the 2014 Tajjour case in which the High Court considered the New South Wales version of consorting laws. At that time, it was an offence for a person who has habitually consorted by any means with convicted offenders to continue to do so after they had been given an official warning not to consort with those particular people. That High Court decision did three things. It provided a history of consorting laws, which makes for interesting reading; it considered the meaning of “consort”; and it answered three critical questions. Those questions were whether the provisions in the act at that time were invalid, because they impermissibly burdened the implied freedom of communication in governmental and political matters, which is contrary to the Constitution; whether independently of the freedom of communication I just mentioned there is implied in the Constitution freedom of association; and whether the act was invalid because it was inconsistent with the International Covenant on Civil and Political Rights, as ratified by Australia. The High Court did not consider the merits of the fairness of those provisions in the act, and, in fact, it was not its role to do so. The question before the court was simply whether the law was valid. Like I say, the ruling provides a bit of a history of consorting laws, including vagrancy laws of medieval England under which people who were found in the company of gypsies for over a month could be considered a felon. Australia and New Zealand have had their own vagrancy laws. I note that WA legislated its first vagrancy laws in 1892. These early vagrancy laws were about preventing fraternisation amongst people who were considered idle and disorderly. I note that the vagrancy laws gradually evolved to standalone consorting laws, and I am happy to say that they evolved to be based on what someone had done rather than simply their identity.
The standalone consorting laws made it an offence to consort for any purpose, including innocent purposes, but obviously we have gradually evolved that to include defences for a range of innocent purposes. That is exactly what this bill also does. The High Court delivered five separate judgements, but there were some unanimously agreed issues. One was on the meaning of consorting. It also ruled that the bill was not directed at all social interactions or communications. There needed to be a deliberate and intentional seeking or accepting of the company of another person. It was also unanimous that state legislative powers were constrained by an implied freedom to communicate on governmental and political matters. The High Court was also unanimous that freedom of communication on governmental and political matters gives Australians our freedom of association and there is no independent freestanding right of freedom of association. It also found that states were only constrained from legislating inconsistently with the International Covenant on Civil and Political Rights if the commonwealth incorporates it into commonwealth law. I said earlier that when the judges diverged about whether the New South Wales version of consorting laws was invalid due to unduly infringing on Australians’ freedom of communication on governmental or political matters, the majority decided that the laws were valid. But the crucial point is that this was due to how section 93X defined “consort”. That definition is different from the definition in clause 3 of this bill. The New South Wales definition did not capture every communication between restricted people, whereas the definition in this bill does.
We know from the Tajjour judgement that consorting laws are capable of unduly burdening the freedom that all of us have to communicate with each other on governmental and political matters; it all depends on how they are drafted and what exactly they prohibit. It is also clear from that particular case that if consorting laws do unduly burden that freedom, at least to that extent they are invalid because they extend beyond the state’s legislative power. The definition of “consort” in clause 3 of this bill goes beyond what section 93X did in the New South Wales legislation. Section 93X defined “consorting” as consorting by any means, and Tajjour tells us that consorting denotes companionship and personal intimacy. However, clause 3 of this bill defines “consort” as, amongst other things, to communicate directly or indirectly with the other person by any means, even just once, though one slip will lead to only a warning, not a charge. That goes beyond the usual meaning of consorting. I am not certain that the door has been closed on the possibility of a High Court challenge to this bill if it is passed.
The bill explicitly protects one form of communication on governmental and political matters. It contains a defence at clause 9 on necessary consorting in the context of industrial action by members of registered unions for the purposes of the union’s business. However, there is no defence or exclusion in the bill for any other form of advocacy, protest and dissent. Ordinarily, these, as well as industrial action, are expressly protected by Western Australian legislation, so to not do so is a substantial departure from what we consider to be usual. The Criminal Organisations Control Act 2012, which was introduced by the Barnett government, currently contains a double protection. Section 4 sets out the purposes of the act. Section 4(2) states —
Without derogating from subsection (1), it is not the intention of Parliament that the powers in this Act be used in a manner that would diminish the freedom of persons in this State to participate in advocacy, protest, dissent or industrial action.
Sections 100 and 101 set out the defences and provide that associations that occur in the course of a lawful occupation or business or lawful political protest or lawful industrial action are to be disregarded if the accused proves that the association was reasonable in the circumstances. The out-of-control gathering provisions inserted in the Criminal Code in 2012—these were also introduced by the Barnett government—contain exclusions; that is, a public meeting or procession for which a permit under the Public Order in Streets Act has been issued and a gathering that is primarily for the purposes of political advocacy, protest or industrial action.
Even our three terrorism laws—the Terrorism (Commonwealth Powers) Act, the Terrorism (Extraordinary Powers) Act and the Terrorism (Preventative Detention) Act—all of which were introduced by the Gallop government, explicitly exclude from their scope advocacy, protest, dissent and industrial action provided it is not intended to cause a person’s death or serious physical harm to a person or to endanger someone else’s life, or to create a serious risk to the health or safety of the public. It is important to note that in the past both Labor and Liberal governments have recognised, upheld and acted to protect Western Australian’s freedom of communication on governmental and political matters. All those acts that I have named are still current.
I understand that the McGowan government’s policy reason for departing from tradition and not including them in this bill is due to the fear that they might not be able to be drafted narrowly enough to prevent convicted offenders from consorting for criminal purposes under the cover of a protest. However, I note that that argument does not seem to have been a problem in the drafting of any of the other 10 defences. Certainly, the defence relating to industrial action is drafted narrowly, but other more broadly worded defences in the bill will permit consorting that is necessary for various other purposes. In addition, every defence in the bill contains three protections against the defences being misused, some of which I have already mentioned. Firstly, the onus is on the accused because it is a defence. Secondly, the consorting must be necessary for the specified purpose, except, I note, for the first offence when “reasonable” is considered to be sufficient. Thirdly, it is statutorily deemed not necessary and, therefore, the defence does not apply if it is shown that any of the purposes for consorting were to avoid the operation of an unlawful consorting notice or related to criminal activity.
I do not think that including a defence for advocacy or protest or dissent opens the door to circumvention of this law to a greater degree than the other definitions already do. I suspect the problem relates to priority. I think it is not being given the same level of significance, hence the same statutory protection, as the subject matter of the other defences. Members, I maintain that advocacy and protest and dissent really do matter. We all know that. Think of the years of campaigning against Aboriginal deaths in custody that led to the fine default laws. Think of the advocacy and protest that finally led to the marriage equality laws and think of the advocacy and protest that continue to stop a range of concerns around government cuts, funding cuts and a whole bunch of things. Advocacy, protest and dissent are still absolutely needed in a whole range of matters. Think about reconciliation matters and a range of environmental matters that need to be addressed.
The bill’s definition of “consort” is really broad compared with what was decided in Tajjour v New South Wales. It captures every single communication between the restricted person and a person who is named on that notice. The bill’s definition of “convicted offender” is really broad. It will capture, I think, far more people than the serious organised criminals, child sex offenders and drug traffickers who are supposed to be the target of this bill.
Given the breadth of both those things, the bill really needs to specifically protect consorting that is necessary for the purposes of advocacy, dissent and protest. As such, I will move amendments that I will be asking members to support. The amendments will do two things. Firstly, the objects clause will be amended, like in the Criminal Organisations Control Act, but it will be drafted more narrowly, like in the three terrorism acts. Secondly, there will be an addition to the list of defences so that, just like the other defences, any consorting that happens in that context has to be necessary, and it is deemed to not be necessary if any purpose is to avoid the operation of an unlawful consorting notice or relates to criminal activity. In addition, there will be an extra safeguard against the defence being misused. It will apply only to forms of advocacy, protest and dissent that meet the same criteria as those that are already stipulated within our three terrorism laws.
I said earlier that the New South Wales version of the law was reviewed by its Ombudsman. Interestingly, the Tajjour case fell within the three-year statutory review period. The Ombudsman’s report is dated April 2016. The report of the New South Wales Ombudsman contained 20 recommendations that aimed to ensure an increase in the level of fairness of the use of the unlawful consorting law and reduce the negative impacts from their lawful, but still inappropriate, use. Like the High Court in the Tajjour case, the Ombudsman did not establish whether the consorting law had achieved any measurable crime prevention benefit. He found that all it had done was simply to capture innocent behaviour. As I said earlier, the report’s final recommendation was that there needed to be a further independent review in three years’ time that included input from the New South Wales Bureau of Crime Statistics and Research to ensure that it was capturing quantitative measures of the effectiveness of the consorting law. The Ombudsman also considered that any further review should include the identification and analysis of any use of the consorting law against disadvantaged and vulnerable people. This was because of what the Ombudsman had uncovered during the review.
The report also analysed the use of the New South Wales consorting law, including comparing how it was being used by specialist squads such as the gang squad and the general police. It uncovered some striking differences. Whereas the gang squad was using the consorting law to disrupt the hierarchies within gangs linked to serious criminal activity, the general police were using the consorting law to eliminate nuisance and minor offending in public spaces. That ended up having a consequent disproportionate effect on the people who congregate in public spaces. In those instances, we are talking about children and young people, Aboriginal people and homeless people. Unlike the general police, the gang squad never, or hardly ever, used the consorting law against children and young people or homeless people. About 13 per cent of the people who were subjected to the consorting law by the gang squad were Aboriginal, compared with 44 per cent who were subjected to the law by general duties police. This issue of the use of the consorting law against disadvantaged and vulnerable people is of genuine concern to individuals and organisations, particularly those who gave input to the review. The findings certainly bear out their concerns.
The bill responds to that validated concern by permitting only police officers who are of a particular rank—in this case, we are talking about commanders or above—to issue an unlawful consorting notice, with the intention that they will be from the state crime unit, which includes the serious and organised crime division and the sex crime division. The bill also contains provisions requiring the Ombudsman to scrutinise the exercise of the police’s new powers. As I indicated earlier, I am very concerned about how far the Ombudsman’s scrutiny and resources will extend in practice.
As I said from the outset, I am very pleased that the bill before us will not apply to people under the age of 18. The report from the New South Wales Ombudsman identified a number of additional problems with the consorting law as it applies to children, including a high police error rate, incompatibility with laws that prohibit publication that a child has offended, and that it obviously contradicted the whole purpose of the Young Offenders Act. As a result, the NSW Ombudsman recommended that the consorting law be amended to prevent it from applying to under 18-year-olds. Therefore, it is right and proper that this bill does not apply to people under the age of 18. I am glad about that. I hope that is not amended at any point in the future, because independent oversight has determined that that would be entirely improper.
The limitation of this bill to a “convicted offender”, as defined in the bill, owes its existence to the content of the report of the New South Wales Ombudsman. However, the bill does not go as far as the NSW Ombudsman’s recommendations, which linked the consorting law with the prevention of serious crime and sought to prevent its use to address minor offending. In this regard, the bill will do a couple of things. First, the power to issue an unlawful consorting notice will be confined to senior police officers. We are told those officers will come from the unit that focuses on serious criminal matters. Second, the bill will allow an unlawful consorting notice to be issued only for the purpose of preventing indictable offences. However, as I have said, that covers a pretty broad category of offences. I have been unable to ascertain how many people would fall within the definition of “convicted offender”.
The New South Wales Ombudsman wanted the consorting law to be targeted to a much narrower range of offences. The Ombudsman wanted the legislation to focus on serious criminal offending and provided a definition of what that should constitute. The report refers to recent or ongoing serious offending and the need for a direct correlation between the likelihood that the consorting law would prevent serious criminal offending. That is a significant departure from the purposes of the Criminal Organisations Control Act, which refers to serious criminal activity.
Finally, I want to make some comments about the 2019 report from the WA Ombudsman. Consorting laws are not the only tool that we have to deal with serious and organised crime. The 2019 report from the WA Ombudsman, which was tabled in Parliament, reported on the five years of operation of the Criminal Organisations Control Act, which came into operation in late 2013. The foreword to that report notes that the powers under that act had never been exercised. The Ombudsman made nine observations and one recommendation. Observations 1 to 5 indicated that the reason the powers had never been used was that it was just too difficult, especially with membership of criminal organisations constantly changing, and that similar criminal laws interstate had not been used for much the same reasons. The Ombudsman reported that as a result, the police had sought legislative changes. That included amendment to the Criminal Organisations Control Act to provide that the declaration of an organisation as a criminal organisation could be done executively by the Governor in Executive Council, and that registration or recognition of interstate declarations could be done executively by the Attorney General. The other legislative change was that, separate from the Criminal Organisations Control Act, a consorting offence be included in the Criminal Code similar to the New South Wales version, and also that there be public safety orders and firearm prohibition orders. Observation 7 was that what was sought by WA police was similar to the approach used interstate. It also talked about the need for continued independent monitoring and identified the range of tools available in this state to disrupt and restrict the activities of organisations that are involved in serious criminal activity. It talked about a number of laws that we already have in place that can disrupt, including various provisions in the Criminal Code and laws around unexplained wealth and fortification removal, telecommunications interceptions and those sorts of things, as well as a range of quite serious penalties for a lot of offences, including the maximum penalty of life imprisonment for trafficking meth. I would add to the list of tools that have been identified by the Ombudsman— the report has identified a lot of tools—our existing consorting laws, move-on orders, restraining orders, bail conditions, sentencing and parole conditions, post-sentence restriction orders and post-sentence supervision orders. The Ombudsman recommended that consideration be given to repealing or amending the Criminal Organisations Control Act, yet I note that this bill does not repeal that act.
As was noted in the Tajjour case, the International Covenant on Civil and Political Rights has been ratified by Australia, but not incorporated into domestic law. Of course, that does not stop the state from passing laws that aspire to and are consistent with what the ICCPR says. I particularly want to refer to article 21 of the ICCPR, which states —
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order ... the protection of public health or morals or the protection of the rights and freedoms of others.
Article 22 goes on to talk about people having the right to freedom of association and no restrictions being placed on the exercise of those rights, other than those that are prescribed by law and are necessary in a democratic society. The question for all of us here is whether the bill strikes the right balance or is going beyond what is necessary. I acknowledge that the bill specifies that its object is the prevention of crime by convicted offenders, albeit not necessarily serious organised crime, but it applies only to convicted offenders, as defined, it does not apply to children or to spent convictions and can be used only by very senior police. As I say, it can have a range of defences, including defences that are specifically relevant to the culture of Aboriginal and Torres Strait Islander people, and it provides independent compliance monitoring and reporting to Parliament. But I have strong concerns that we may not have the balance right within the bill that is in front of us today. I am worried that it captures and criminalises a range of conduct that would not otherwise be deemed criminal. I am concerned that the definition of “convicted offender” captures far more people than those who are intended to be its target. The bill applies to even one-off innocent communications in a way that goes far beyond the usual meaning of “consort”, and the bill applies when people have not consorted but police suspect that they are likely to do so. The bill prohibits consorting that is necessary for advocacy, protest and dissent, even though we have managed to achieve provisions as defined within our three terrorism laws that have managed to protect those rights. The level of compliance monitoring that is intended and funded, I think, appears to be far from ideal, and Parliament has not been provided with any evidence of how effective these laws are likely to be in preventing serious criminal activity, nor have any measures been developed for measuring the degree of the bill’s success in preventing serious and organised crime.
I have some amendments that I think will ameliorate some of the concerns that I have just articulated. I am concerned to ensure that innocent people are not inadvertently caught up in these provisions or that people who have criminal records are not going to be punished for engaging in innocent activity. I hope that we are able to get a fulsome assessment of the true efficacy of these laws when we finally have the review that will be tabled three years after this bill is enacted. I think a lot of it is “we’ll just wait and see”, but it is very important that we draw from the lessons of the reports that have been undertaken in other jurisdictions that have identified key errors. I note that this bill has attempted to address some of those concerns, but it has not addressed all of them, and I am concerned that maybe the scope is too wide.
Comments and speeches by various members
Debate adjourned, on motion by Hon Pierre Yang.