On the Origins of Consorting Laws
McLeod, Andrew, Melbourne University Law Review
Consorting laws have piqued the attention of Australian legislatures. In the last year alone, two states have re-enacted these offences, which criminalise repeated association with criminals. Such measures, though, have a pedigree stretching over seven centuries. This article offers an historical analysis of consorting offences, placing them in the context of a long line of statutes that criminalised the act of associating with undesirable classes of people. It traces their emergence from the beginnings of English vagrancy legislation in the late-mediaeval period, to early attempts in the Australasian colonies to suppress inchoate criminality, and then to 20th century efforts to tackle organised criminal activities. What emerges is that consorting offences are neither a modern phenomenon nor one restricted to the antipodes.
CONTENTS I Introduction II The Regulation of Vagrants in Great Britain III Vagrancy Laws in Australia and New Zealand A Early Colonial Approaches to Vagrancy B Local Vagrancy Statutes C Colonial Precursors to Consorting Offences IV Consorting Offences V Recent Developments in Australia and New Zealand VI Conclusion
Australian parliaments have recently shown renewed interest in offences that punish individuals for habitually consorting with criminals. Since 2004, all but two jurisdictions have re-enacted or amended these offences. (1) The latest to do so are South Australia and New South Wales, where consorting offences were reformed last year. (2) Much of this legislative activity is attributable to increased public debate about the conduct and workings of organised criminal groups, particularly motorcycle gangs, and the most appropriate measures to suppress them. Two Commonwealth parliamentary inquiries have investigated the issue. (3) The Standing Committee of Attorneys-General has deliberated on the topic. (4) And the High Court has declared two pieces of legislation directed towards the mischief constitutionally invalid. (5)
Consorting offences are not a new phenomenon, though. They are creatures of statute that emerged early last century in legislation regulating vagrancy. Their primary object was (and remains) to punish and thereby discourage inchoate criminality, and the means by which they sought to achieve this was the imposition of criminal liability for keeping company with disreputable individuals. Such considerations also motivated vagrancy legislation; but these statutes possess a much older lineage, having their roots in the 1300s. Following a peripatetic course shaped as much by economic concerns as social ones, they came to frame a classification system comprising three classes of people. These classes escalated in the degree of nuisance and danger they were thought to pose to society--from idle and disorderly persons, to rogues and vagabonds, to incorrigible rogues. Each class was defined by reference to multifarious categories of conduct or occupation. Generally, however, there were only three offences, one for each class of person. Without exception, conduct that amounted to consorting brought a person within the class of idle and disorderly persons.
It has become axiomatic to describe consorting laws as an Australian and New Zealand phenomenon. (6) The traditional analysis begins with colonial statutes relating to vagrants and traces the emergence of consorting laws to legislation from the early 20th century amending those statutes. But this analysis overlooks a rich lode of doctrine and discourse stretching back to mediaeval England. Though the offence of habitually consorting with reputed criminals did, in terms, appear for the first time in an antipodean statute, such laws--and the concept of conditioning criminal liability on the company a person keeps--are not so modern. (7) Parliaments have for centuries experimented with legislation to reform or suppress those classes of people considered in their time to be detestable, disreputable and dangerous. …