Careful who you chat with, it could turn you into a criminal

[Alice]

Original article published at The Conversation: http://theconversation.com/careful-who-you-chat-with-it-could-turn-you-into-a-criminal-32727

Careful who you chat with: it could turn you into a criminal

Next time you strike up a conversation at your local coffee shop, have a chat in the pub after work, or have a natter with fellow dog lovers as you follow your pooch around the park, you may want to get in early with a few key questions. Like, “Do you have a criminal record?” If yes, I suggest you ask a delicate follow-up: “How serious was your crime?”

Granted, questions like these are likely to kill the conversation buzz. They will probably cause your new friend to seek company elsewhere. But according to a High Court decision handed down last week, if you don’t take these precautions, you might be placing yourself at risk of being charged with a serious criminal offence yourself.

You see, under section 93X of the Crimes Act 1900 (NSW) it is an offence to “habitually consort” (i.e. communicate more than once) with convicted offenders. The penalty is three years' imprisonment or a $16,500 fine, or both.

The legislation has a few “safeguards” that are meant to make us breathe a little easier.

The person must have been convicted of an indictable offence. But that is still a very long list. It includes everything from serious crimes such as murder to minor offences such as shoplifting.

You have to communicate with not just one, but two convicted offenders (though not necessarily at once and it doesn’t have to be in person - the legislation covers phone, email and social media communications too). The police have to give you a “warning”, so you can’t later claim that you didn’t know your coffee buddy or Facebook friend was a bad guy.

It gets worse. If the person you are chatting with has a criminal record, it doesn’t matter what you talk about. If you are charged with consorting, the police don’t have to prove that you were discussing anything naughty, let alone planning a crime.

Your mate could be explaining why he loves Manchester United, sharing the gory details of her mother’s hip replacement, grieving over the axing of your favourite TV show or making plans for a charity fun run next weekend. It doesn’t matter when it comes to consorting.

The rationale seems to be that people who have committed a crime in the past can never be trusted again, even after they have “done their time”. So much for punishing and stigmatising people only for what they do rather than who they are (or were).

It’s not just really bad people who’ve been charged

Of course, if we take the government at its word, most of us have nothing to worry about. Surely it’s only bikies and terrorists and the like who are going to be on the receiving end of a consorting warning or charge?

Certainly, when the NSW government re-introduced and beefed up consorting laws back in 2012, it indicated that the laws, and the powers they gave police, were necessary to break up the criminal activities of outlaw motorcycle and other organised crime gangs.

There are two problems with this reassurance. First, nothing in the drafting of the legislation limits its operation to bikies and organised crime gangs, or to the planning of crimes. Second, others are getting caught up in the very wide web of consorting laws.

The first man charged with consorting after the 2012 revival in NSW, Charlie Forster, was not a bikie or a crime lord. As described in a press report, he was “an intellectually disabled 21-year-old from Inverell, in northern NSW, who was charged with consorting while grocery shopping with his housemate”.

When the Office of the NSW Ombudsman completed a preliminary review of the consorting law in 2013 (a final report is due later this year) it expressed concern that it was being used against vulnerable and disadvantaged groups, including Aboriginal people and the homeless. Police issued warnings to more than 100 people when they had no authority to do so.

Bad law puts our basic rights at risk

Although it grabs the headlines, constitutional litigation in the High Court of Australia is a seriously problematic way of challenging the fairness and legitimacy of even the most outrageous parliamentary over-criminalisation. Why? Because the High Court is a conservative place and the judges will only work with the tools the Constitution gives them. When it come to rights and liberties, there are very few.

The NSW consorting laws (and similar laws in other parts of Australia) are patently inconsistent with the fundamental human right of freedom of association. This is enshrined in Article 22 of the UN International Covenant on Civil and Political Rights (ICCPR). The problem is that even though Australia has been a party to the ICCPR for decades, neither the Constitution nor any statute enacted by Parliament formally recognises this right.

There are further problems with relying on the High Court to be the voice of reason and praying that it will rein in bad law-making. If the law is found to be valid, the relevant state government can puff out its chest and boast that the law in question has the High Court’s tick of approval. The reality is that the High Court only ever adjudicates on narrow technical constitutional issues when scrutinising legislation, rather than undertaking a holistic review of the merits of a law.

Tellingly, three of the judges that upheld the NSW consorting law said: “The desirability of consorting provisions … is not relevant to the task before the Court.” Sad but true.

Even when a constitutional challenge to zealous over-criminalisation “succeeds”, the win is often short-lived. For example, when the High Court struck down the Crimes (Criminal Organisations Control) Act 2009 (NSW) in Wainohu v NSW (2011) 243 CLR 181 - another law that criminalised association by allowing police to seek court orders banning named bikies from having any contact with each other - how did the NSW government respond? Did it retreat in response to the High Court’s chastisement?

Hardly. Its lawyers produced a slightly modified version of the legislation that addressed the flaws that the High Court had effectively marked up in red pen. We now have the new and improved Crimes (Criminal Organisations Control) Act 2012 (NSW). It’s another outrageous example of the criminalisation of who a person is rather than what they do, but this time “High Court-proof”.

The upshot of this sorry tale is that we need to find better ways to discourage our legislators from passing bad laws in the first place. This is a daunting task when so many governments are willing to trash principles in favour of pragmatism. The recent instance of knee-jerk bail law “reform” in NSW is another case in point.

But we need to find a way, not least if we want to socialise in peace without having to ask our friends and acquaintances intrusive questions about their past. No one should be exposed to the risk of police harassment or a stint in prison simply because of the so-called “bad character” of the person with whom they have decided to have a conversation.

[PhoenixSon]

any excuse terrorists bikies to beat the drum of propaganda to slide in rules to take our limited freedoms away, pretty scary how little control we have in making any democratic decisions against bullshit unjust laws.

such a facade that we have a choice.

[Distracted]

Excuse me but does anyone here have a criminal record?

[Slocombe]

Fucking ridiculous.

[obtuse]

agreed, fucking ridiculous

[waterboy 2.0]

that is a wicked bit of legislation.....want to be careful if there is a black sheep in the family as an example

[bullit]

time for a beer

[in_spirit]

Excuse me but does anyone here have a criminal record?

I'd rather not say...

[HolographicYou]

Nope, I'm out.

I've had it with this country I'm leaving as soon as I can afford to.

This is utter bullshit and needs to change.

Seriously there are things I'd like to say but I legally can't because of this preventative bullshit!

It will come to a point where speech will be so limited, that anything said not involving sport or music will deem you a potential threat.

[-RC-]

^ and maybe then we might dust off the guillotine...

Edited October 14, 2014 by Responsible Choice

[in_spirit]

The thing is, this law means a person who has made mistakes in life, is punished for the rest of their lives, ostracized from society, even from other criminals, but they cannot legitimately do this to a fellow human being. This is putting system before humanity and i would contend it works against human rights..

[DiscoStu]

Bad law puts our basic rights at risk

When it come to rights and liberties, there are very few.

Nope, I'm out.

yep.

although i blame the gormless dipshits who start shitting themselves at every daily telegraph beat up. fucking morons fuck every one them.

[myco]

I'm over worrying about this kinda shit to be honest

FUCK THE POLICE AND FUCK THE SYSTEM

you want me come get me cunts

Edited October 14, 2014 by myco

[Planthunter]

Spliff anyone...

[whitewind]

Distracted makes a good point. It's not exactly a conversation starter is it? Or is it? Fuck me the world I am living in seems increasingly bizarre our government is either insane or incredibly stupid, possibly both. At some point we'll have to throw away the rule book and start again, which seems like a great idea but would probably be messy. I'm so disappointed with our species it makes me very sad. Intelligence is in very short supply

[ThunderIdeal]

i thought dist was making a different point........

[whitewind]

Wait for it......

[ThunderIdeal]

if you live in nsw and so much as say boo on this forum.....

well, more than a few members here may have a spotty history

[~shameless~]

Then you get fined $440 for picking your phone up of your dash whilst in traffic dead lock.

[RonnySimulacrum]

Segregation policy, how are criminals going to re-debilitate when they’re being portrayed as a virus

[whitewind]

It's just basically stupid, especially when you realise most criminals aren't even that deviant. The one kind of criminal I'd really want to know about is paedophiles and I can't see the cops giving me a warning about them. You see, I'd like to know if a paedophile lives near me, and I'd especially like to know if I have been "consorting" with one. But I'd like that information anyway, not just because the cops were trying to fuck with me or my friends. Seriously, this brand of government is retarded and fascist and they waste a huge amount of resources in persecuting people for just trying to live their lives, while ignoring any kind of real threat.

I mean, I'd really like to see the government tackle domestic terrorism, but instead of spending $600 million on tackling men who kill their partners, they close women's refuges, reduce the amount of money available to health services, and spend it all on bombs for some little barney overseas which has fuck-all to do with the real terrorism right here on our doorstep.

Is the government going to spend time surveilling Christians who openly threaten homosexuals, and monitor known gay bashers? No. They are going to focus on environmentalists, drug users, and other religious groups who aren't "them". This government is absolutely shit, through and through, and I want them gone and all the crap they have managed to achieve turned around and voided, and them to be remembered forever for the psychopaths that they really are.

[bullit]

the real thing is im worried about my children taking the local bus to skool...............................

Edited October 15, 2014 by bullit

[ThunderIdeal]

everyone, i'm not exactly mr pep talk emotional support but you can't let shit like this or anything else fully bring you down.

well, i did say i wasn't mr pep talk. just remember there's always a bright side.

[-RC-]

^ Thanks coach. This half I'm gunna fuck em up and go for the win!!

[ThunderIdeal]

https://privnote.com/n/ilacdaoxljqmiqcr/#tcrdldgpqubxviqp