Participate in a criminal group and consorting in NSW.

The news behind the law.

Raptor Squad is the NSW Police unit set up to disrupt outlaw motorcycle gangs. Its work runs in cycles of searches, charges, and control orders. When a person is charged after that kind of operation, the charge sheet often carries more than one count. A single incident can produce a charge of affray, a charge of assault, and a charge of participating in a criminal group, all at once. The gang membership is not the offence. The conduct is.

That distinction confuses a lot of people. You can wear the colours of a motorcycle club in NSW without committing an offence. What you cannot do is take part in the criminal activity of a group of three or more, associate with convicted offenders after a police warning, or breach an order that a court or a senior officer has placed on you. Those are the pressure points the law uses. This article walks through each one.

What is participating in a criminal group in NSW?

The offence sits in section 93T of the Crimes Act 1900 (NSW). A person must not participate in a criminal group if the person knows, or ought reasonably to know, that it is a criminal group, and knows, or ought reasonably to know, that their participation contributes to the criminal activity of the group.

Section 93S defines a criminal group as a group of three or more people who have, as one of their objectives, either obtaining a material benefit from serious indictable offences, or committing serious violence offences. The group does not need a name, a structure, or a leader. It does not need to be a motorcycle club. Three people with a shared criminal objective are enough.

The maximum penalty depends on the form of the offence. Basic participation under section 93T(1) carries a maximum of 5 years imprisonment. Where a person assaults someone or damages property with the intention of taking part in the group, the maximum is 10 years. Where the person assaulted is a law enforcement officer acting in the execution of their duty, the maximum rises to 14 years. Directing the activities of a criminal group that is organised and ongoing carries a maximum of 15 years.

The Crown does not have to prove that the accused personally committed the underlying serious offence. It has to prove that the accused took part in the group, and that their part contributed to the criminal activity. The word "participate" is read broadly. It can be met by playing a supporting role, keeping watch, storing goods, or providing a phone. The fault element is knowledge, actual or constructive. "Ought reasonably to know" is an objective test. A person who deliberately keeps themselves ignorant of what the group is doing does not escape the section.

What is consorting and how does section 93X work?

Consorting is a separate offence in section 93X of the Crimes Act 1900 (NSW). It targets association rather than conduct. A person commits the offence if they habitually consort with convicted offenders after being given an official police warning about each of them.

"Consort" is defined widely. It means to communicate or associate in any way, in person or by phone, email, or social media. "Habitually" has a precise meaning under the section. A person does not habitually consort unless they consort with at least two convicted offenders, whether on the same or different occasions, and consort with each of them on at least two occasions. Two people, two times each, is the floor.

The warning is central. A police officer can warn a person, orally or in writing, that a named associate is a convicted offender and that habitual consorting is an offence. The warning lasts 6 months if the person warned is under 18, and 2 years otherwise. Consorting before the warning, or after it has lapsed, does not count. The maximum penalty is 3 years imprisonment, a fine of 150 penalty units, or both.

The High Court upheld the consorting law against a constitutional challenge in Tajjour v New South Wales [2014] HCA 35. The challenge argued that the offence burdened the implied freedom of political communication. A majority held the law valid. The offence remains on the books and is used regularly against people connected to organised crime.

Section 93Y provides defences. Consorting does not count if it is with a family member, in the course of lawful employment or a lawful business, during education or training, in the course of a health or welfare service, in the course of legal advice, or in lawful custody or in compliance with a court order. The consorting must be reasonable in the circumstances. The defences carry an evidential burden; once raised, the Crown must disprove them.

Is it illegal to be a member of a bikie gang in NSW?

No. Membership of an outlaw motorcycle gang is not an offence in NSW. There have been repeated proposals to ban gang colours and to criminalise membership of a declared organisation. The colours question remains a matter of public debate. As the law stands, a person is not guilty of an offence merely because they belong to a club or wear its patch.

What the state does instead is target conduct and association, and layer control orders on top. The Crimes (Criminal Organisations Control) Act 2012 (NSW) lets the Commissioner of Police apply to have an organisation declared, and then seek control orders against its members. The first version of that scheme, the 2009 Act, was struck down by the High Court in Wainohu v New South Wales [2011] HCA 24, because it allowed a judge to make declarations without giving reasons. The 2012 Act was written to fix that defect. The point of the regime is to place restrictions on members without needing to prove a fresh criminal offence.

Can police search me without a warrant if I have a firearms prohibition order?

Yes. A firearms prohibition order, or FPO, is one of the most powerful tools police have against people linked to organised crime. It is made by the Commissioner under section 74 of the Firearms Act 1996 (NSW). Once an order is in place, the person cannot acquire, possess, or use a firearm, firearm part, or ammunition. An FPO has no fixed expiry date.

Section 74A is the part that matters day to day. It lets police search a person subject to an FPO, and any premises or vehicle the person occupies or controls, without a warrant and without reasonable suspicion. The power can be used as "reasonably required" to check whether the person has committed a firearms offence. In practice this means a member subject to an FPO can be stopped and searched on the street or at home with no prior grounds.

The breadth of the power has drawn scrutiny. A NSW Ombudsman review found that in a share of searches police misunderstood the limits of the power and searched people who were not subject to an order at all. That is a live issue for the defence. A search that falls outside section 74A may be unlawful, and evidence found on it may be open to challenge under section 138 of the Evidence Act 1995 (NSW).

What are public safety orders and serious crime prevention orders?

These are two more control orders in the same family. A public safety order, under Part 6A of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), can be made by a senior police officer who believes a person's presence at an event or place poses a serious risk to public safety and that the order is reasonably necessary. It can bar the person from attending. A senior officer can make one for up to 72 hours. Longer orders need the approval of the Commissioner or the courts.

A serious crime prevention order, under the Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), is made by the Supreme Court or the District Court on the application of the Commissioner, the Director of Public Prosecutions, or the Crime Commission. It can restrict where a person goes, who they associate with, and how they run their finances, for up to 5 years. An order can be made even where the person has not been convicted. Breaching a serious crime prevention order carries a maximum of 5 years imprisonment.

The common thread across all of these tools is that they work without a fresh conviction. That is the design. Where the criminal law needs proof beyond reasonable doubt, the control orders operate on a civil standard, and some of them operate on the say-so of a senior officer. For a person caught up in an operation, the control orders are often the more immediate problem than the charge.

What we do for clients facing these charges.

A participate-in-a-criminal-group charge is defended on the elements. The Crown has to prove the group, the objective, the participation, and the knowledge. Each is open to challenge. Proof that three people shared a criminal objective is often thinner than the charge sheet suggests. Proof that a particular client's role contributed to the criminal activity, rather than being mere presence, is often thinner still.

A consorting charge turns on the warnings. We check that each warning was validly given, that it named a person who was in fact a convicted offender, that it had not lapsed, and that the two-by-two threshold is actually met on the police evidence. We test whether a section 93Y defence applies. Family, work, and legal contact are common answers.

On the control orders, the work is different. An FPO search that strayed beyond section 74A can support an application to exclude evidence. A public safety order or a serious crime prevention order can be opposed at the application stage and reviewed. The bail position in these matters is often the first battle, because many of these charges are run with a detention application attached. If you or a family member has been charged after an outlaw motorcycle gang operation, get advice before the first court date.

Frequently asked.

What is the penalty for participating in a criminal group in NSW?

Basic participation under section 93T(1) of the Crimes Act 1900 (NSW) carries a maximum of 5 years imprisonment. The maximum rises for aggravated forms: assaulting a person or damaging property to participate carries up to 10 years, assaulting a law enforcement officer carries up to 14 years, and directing the activities of an organised and ongoing criminal group carries up to 15 years.

What is consorting under section 93X?

Consorting is habitually associating or communicating with two or more people who have been convicted of an indictable offence, after a police official warning about each of them. To be habitual, a person must consort with at least two convicted offenders and with each of them on at least two occasions. The maximum penalty is 3 years imprisonment, a fine of 150 penalty units, or both.

Is it illegal to be a member of a bikie gang in NSW?

Membership of an outlaw motorcycle gang is not itself an offence in NSW. What is criminalised is conduct: participating in a criminal group, consorting with convicted offenders after warning, and breaching a control order. Police also use firearms prohibition orders, public safety orders, and serious crime prevention orders to restrict members without a conviction.

Can police search me without a warrant if I have a firearms prohibition order?

Yes. Under section 74A of the Firearms Act 1996 (NSW), police can search a person subject to a firearms prohibition order, and any premises or vehicle the person occupies or controls, without a warrant and without reasonable suspicion, as reasonably required to see whether the person has committed a firearms offence.

How long does a consorting warning last?

A consorting warning lasts 6 months if the person warned is under 18, and 2 years in any other case. Consorting that happens after the warning expires does not count towards the offence.

What are the defences to consorting?

Section 93Y of the Crimes Act 1900 (NSW) provides defences where the consorting is with a family member, in the course of lawful employment or a lawful business, in the course of education or training, in the course of providing a health or welfare service, in the course of providing legal advice, or in lawful custody or in compliance with a court order. The consorting must be reasonable in the circumstances.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 8 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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