The state government recently introduced the Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 (WA). This Act was designed to deal a significant blow to ‘bikies’ or members of 1% motorcycle clubs in Western Australia. The law set out to make it illegal for club members to consort or hang out with each other, and to prohibit club members from displaying their colours, tattoos and other insignia in public. This is a significant piece of legislation as it makes normal activity, such as hanging out with your friends or having certain tattoos or types of clothing, illegal when for most people such arguably benign conduct is not illegal.

The law grants significant powers to the police to curtail the powers of persons, and does not only apply to 1% club members, but to any person convicted of a serious criminal offence.

Unlawful consorting notices

Under section 9 of the Act, a police officer of the rank of Commander or above may issue an ‘unlawful consorting notice’ to a ‘restricted person’, being a person who is over 18, who is a ‘relevant offender’ who has consorted (or is going to consort) with another relevant offender, and if the officer considers it is appropriate to issue the notice to ‘disrupt or restrict the capacity of relevant offenders to engage in conduct constituting an indictable offence’.

A ‘relevant offender’ is a person with a conviction for 1 or more of an indictable offence against WA or Commonwealth law, or a child sex offence under WA or Commonwealth law, or an offence against a law of another State or Territory or another country that, if committed in this State, would constitute an indictable offence or child sex offence, or an offence of displaying insignia in public or consorting contrary to a dispersal notice.

The consorting notice must contain various details including the name of the person(s) with whom the restricted person is not to consort. The notice remains in effect for 3 years from the day it is served unless revoked sooner.

If a person consorts with a named offender on two or more occasions during the period of the consorting notice, they commit a crime with a maximum penalty of 5 years imprisonment.

It is a defence to prove that the consorting occurred between persons who are family members, and was reasonable in the circumstances. There are other defences in section 18(2) of the Act including that consorting occurred in the course of a lawful occupation.

The police are also given broad powers to stop and request the details of a person on whom an unlawful consorting notice must be served.

There are not currently any established sentencing ranges for offences of consorting contrary to a consorting notice, but it is noted the offence carries the same maximum penalty as an offence of assault occasioning bodily harm, and imprisonment is a possible outcome depending on the circumstances of the offence.

Prohibited Insignia Offences

The Act makes it an offence to ‘display’ insignia of an ‘identified organisation’ in a public place. The maximum penalty is 12 months imprisonment or a fine of $12,000. If a company breaches the law, the penalty is a fine of $60,000.

Identified organisations are labelled in the Act and include, amongst others, the following motorcycle clubs:

• Bandidos;
• Club Deroes;
• Coffin Cheaters;
• Comanchero;
• Finks;
• Gods Garbage;
• Gypsy Joker;
• Hells Angels;
• Lone Wolf;
• Outlaws; &
• Rebels.

The Act states that the following are insignia of an identified organisation:

• The name of the organisation;
• The logo or patch of the organisation;
• Another image, symbol, abbreviation, etc that indicates membership of, or association with, the organisation;
• The symbol 1%; &
• The symbol 1%er.

To ‘display insignia in a public place’ is defined in section 24 to mean:

• to wear, carry or otherwise possess or control a prohibited thing in a manner that insignia of an identified organisation would be visible to another person in the public place; or
• to have a tattoo or other body marking that comprises or includes insignia of an identified organisation and is left uncovered in a manner that insignia of an identified organisation would be visible to another person in the public place.

This applies whether the thing or person marked with insignia is physically in the public place, or in some other place from where the insignia would be visible to another person in the public place.

Public place includes a place to which the public, or a section of the public, is entitled to have lawful access, whether on payment of money, through membership of a club or other body, or otherwise; but does not include a place to which only members of an identified organisation, or their associates, are entitled to have lawful access. ‘Place’ includes a vehicle.

There have been several fairly high-profile prosecutions of alleged offences of displaying club insignia recently. In one case, the accused was acquitted after the prosecution failed to prove the identity of the accused beyond reasonable doubt. The case relied on a comparison of CCTV footage to the accused, who had significant unique tattoos all over his body, but notwithstanding this the Magistrate was not satisfied the accused was the person in the CCTV footage.

In another case, four club members went on trial accused of displaying insignia at the Rendezvous hotel in Scarborough during a pool party. One accused was acquitted after the prosecution failed to prove beyond reasonable doubt that the 1% symbol on his calf could be clearly seen in public. It was noted that the displaying of insignia after each of the accused were required to stand for police was not an offence. The Magistrate also noted that a pool at a hotel, despite being a private area, was still a ‘public place’ and the offence in the case of the other three co-accused had been made out. Those three co-accused were each convicted of displaying insignia and fined $1,000 per offence. The Magistrate noted that repeated instances of the offence would likely result in terms of imprisonment.

It is a defence to an insignia charge to prove the display was for a genuine artistic or educational purpose; law enforcement; the performance of a legal practitioner’s functions or the receipt of legal advice; and in the circumstances, reasonable for that purpose.

It is a defence to prove the display was for the purposes of distributing the news.

It is also a defence to prove the accused did not know they were displaying insignia of an identified organisation, or that the display was to indicate membership of an organisation other than an identified organisation.

The police are given the power to issue ‘insignia removal notices’ to prevent insignia being displayed in public places.

Dispersal notices

The Act also allows a police officer to issue a dispersal notice to a person who is a member of an identified organisation or club, and who has consorted in a public place with another person who is a member of an identified organisation or club, and a dispersal notice has not already been issued in respect of the person for the suspected consorting. The notice remains in effect for 7 days unless it is revoked sooner.

It is an offence to breach a dispersal notice, carrying a maximum penalty of 12 months or a fine of $12,000.

Conclusion

The new ‘anti bikie’ laws impose significant constraints on the otherwise lawful activities of persons who either have a conviction for a serious offence, or are members of 1% clubs. These include the power to prevent persons with convictions for serious offences from consorting with certain other persons for up to 3 years; preventing club members from displaying colours in public; and preventing club members from consorting in public with other club members for up to 7 days.

There are various defences applicable to such charges and in order to successfully defend against them, you require skilled legal representation. Don’t hesitate to contact James Jackson Criminal Defence if you have been charged with an offence under the unlawful consorting or prohibited insignia legislation.