A law meant for disrupting serious crime is disproportionately targeting Indigenous people and continues to be used on children, legal groups say.
The Aboriginal Legal Service New South Wales (NSW)/Australian Capital Territory (ACT), the Public Interest Advocacy Centre and the NSW Bar Association on Wednesday called on the state parliament to narrow the scope of the consorting law and ban its use on those under the age of 18.
It follows similar calls by the police watchdog after its three-year review showed most of the 105 warnings issued every week related to comparatively less serious potential offending.
The consorting law allows police to warn a person for associating or keeping company with those convicted of an indictable offence. After two warnings, a person can be charged and face up to three years in jail if convicted.
NSW and South Australia are the only two Australian jurisdictions where someone aged under 18 can be issued with a warning for, or charged with, consorting.
Police have suggested the law helps divert people from the criminal justice system.
But NSW Bar Association president Gabrielle Bashir SC said that reflected a “fundamental misunderstanding, which must be immediately rectified”.
She said it was “shocking” that Aboriginal and Torres Strait Islander people made up 42 percent of those subject to the consorting law, rising to 46 percent when a general duties officer was involved.
“The figures reveal a grossly disproportionate use of the consorting provisions against First Nations people,” Bashir said.
“The (watchdog’s) findings are further evidence of an underlying and persistent problem with the exercise of police discretionary powers when it comes to First Nations people in this state.”
Aboriginal Legal Service NSW/ACT principal legal officer Nadine Miles said the Law Enforcement Conduct Commission review provided “concrete evidence” consorting laws “disproportionately and unfairly” impact Aboriginal people.
“Far from targeting serious and organised crime, consorting laws have been used to criminalise social interactions and relationships between Aboriginal people,” she said on Thursday.
While four of the five Indigenous people charged under the law had bikie associations, the law was often used to try to disrupt activity such as drug possession, the commission said.
In one case, an occupant of a southwestern Sydney apartment was warned about another person in their apartment after police addressing a noise complaint heard the pair discuss having a joint.
The commission also found the majority of warnings to 48 children appeared to target activity that did not fit the definition of “coordinated serious criminal activity” including drinking alcohol in a park.
Meanwhile, all 11 warnings naming a juvenile as the convicted person did not meet the required threshold.
The commission was encouraged by a marked drop in warnings issued to children since a 2018 change limited them to people over the age of 14.
It also noted NSW Police had made important changes to its consorting procedures at the end of 2022.
But the commission remained concerned the law risked increasing the number of young people entering the criminal justice system, calling on parliament and police to make a series of changes.
NSW Police said it had limited the application of the consorting laws for Indigenous people to only target serious criminal activity and has been working on a quality assurance framework to ensure warnings are both valid and appropriate.
It acknowledged the review’s findings and said it would assess the report.
