Consorting laws make it a crime to associate with people who have criminal records or who are perceived as threats to public safety. These laws aim to control public behaviour and purport to prevent crime. In practice, the enforcement of consorting laws has disproportionately impacted upon Aboriginal people.

History of consorting laws

From 1788 to 1835, English vagrancy laws were used in the colony of New South Wales as a form of social control, to regulate the movement of people perceived as prone to crime due to their ‘class, criminal origin or association’ (DOC5655).

The first New South Wales law to criminalise consorting was contained in the Vagrancy Act 1835 (NSW) targeting people who associated with ‘reputed thieves’ and ‘people without lawful means of support’ (DOC5605).

The Vagrancy Act applied only to individuals who were transported to the colony and therefore did not extend to Aboriginal people. This exclusion appears to have been influenced by several factors:

• To enable Aboriginal people to travel for employment by settlers,
• a belief that it was fair to allow Aboriginal people to move freely in search of game, given the impacts of dispossession; and
• a prevailing view that Aboriginal people had a naturally ‘roving disposition’, rooted in the colonial assumption that they did not own the land (DOC5512).

Settlers in the mid-1800s periodically lobbied colonial authorities to apply vagrancy laws to Aboriginal people to keep them away from pastoral runs, but these requests were rejected (DOC6358).

However, the Vagrancy Act contained a unique provision that was ‘unprecedented in Britain and its Empire’ making it unlawful for non-Aboriginal people to live or ‘wander in company’ with ‘any of the black natives’ of the colony, unless the non-Aboriginal person could show a lawful place of residence, a means of support, and that their lodging or wandering was temporary and for a ‘lawful occasion’ (DOC5655, DOC5605).

These laws reflected a fear of interracial relationships and were aimed at preventing the mixing of ‘races’ (DOC5622, DOC5639).

The laws were described as being ‘necessary for the protection of the ‘black natives’ as well as ‘the whites’ (DOC5655, DOC5722). This ‘protection’ was framed as shielding Aboriginal people ‘from the harassment or corruption of criminal whites’ and to prevent ‘whites from inciting Aboriginal people to violence.’ Authorities expressed concern that ‘bushrangers might use Aboriginal people to attack settlers and plunder colonists’ property’ (DOC5655).

As Aboriginal people became increasingly employed as labourers and domestic servants, concerns emerged in Parliament that ‘respectable’ individuals could be charged and imprisoned under the Vagrancy Act (DOC6359, DOC5512).

Despite these concerns, the legal provisions concerning association with Aboriginal people remained in force until 1970 when the Summary Offences Act 1970 (NSW) was introduced (DOC5103). The new law didn’t reference Aboriginal people, but retained vagrancy-related offences targeting association with ‘reputed criminals’, individuals ‘without visible lawful means of support’, as well as reputed prostitutes and drug dealers (DOC5103).

Consorting offences in the Crimes Act

In 1979, the Summary Offences Act 1970 (NSW) was abolished and the offence of consorting was inserted into the Crimes Act 1900 (NSW) (DOC6360, DOC6427). This made it an offence to ‘habitually consort’ (meaning to associate or keep company) with people convicted of serious criminal offences. The offence does not require the person consorting to have any unlawful intention or criminal purpose (DOC6274). This part of the law remains in force today.

In 2012 new consorting laws were introduced into the Crimes Act (DOC6361). These changes aimed to modernise, clarify and extend the offence in response to the growing threat of organised crime. In Parliamentary debates, concern was raised about the impact that these new laws would have on social interactions between Aboriginal people, noting that they are incarcerated at a significantly higher rate than non-Aboriginal people (DOC6311).

Under the current law, a person can be charged if they ‘habitually consort’ with a convicted offender after police have warned them to stop. There are defences, for example if the meeting is for family, work or education purposes (DOC6361).

Impact on Aboriginal people

A 2016 review by the New South Wales Ombudsman revealed that although the modernised consorting laws were intended to target organised crime and criminal gangs, the laws were frequently applied to a wide range of offences ‘including minor and nuisance offending’ (DOC6362).

The Ombudsman found that consorting laws were disproportionately applied to Aboriginal people, young people and those experiencing homelessness, often without any evidence of those people being linked to serious or organised crime.

Despite Aboriginal people comprising just 2.5% of the population:

• 37% of individuals targeted under consorting laws were Aboriginal
• 60% of affected children and young people were Aboriginal, and
• Aboriginal women accounted for 50% of those subjected to these laws.

Aboriginal people were also significantly more likely to have others warned about consorting with them, accounting for 42% of all individuals named in consorting warnings (DOC6362).

A clear disparity was found between the practices of specialist crime squads (those targeting serious or organised crime) and general duties officers: while Aboriginal people made up 12% of those targeted by specialist squads, they accounted for 44% of those subject to consorting laws by general duties officers (DOC6362).

In response to the New South Wales Ombudsman’s review, the government changed consorting offences in 2018, excluding children under 14 and expanding the definition of ‘family’ to reflect Aboriginal kinship systems (DOC6363).

However, a 2019-2022 review by the New South Wales Law Enforcement Conduct Commission found that 42% of individuals subjected to consorting laws were Aboriginal (and this rate rose to 46% when enforced by general duties officers) (DOC4967). Aboriginal children aged 14-18 accounted for 25% of all young people affected during this period (DOC4967).

The review also found that in a ‘large number of cases’, there appeared to be no clear link between serious criminal activity and consorting warnings given by general duties police (DOC4967, see also DOC6506, DOC6507).

For more information

This part of Towards Truth highlights criminal offences that have had a particularly disproportionate impact on Aboriginal people in NSW. See also Contemporary Policing (coming soon) which considers the impact of police discretion and other policing practices.

Lee Fan v Dempsey (1907) 5 CLR 310