We are all aware of the recent protests in Sydney in response to the death of George Floyd in the United States and the tragedy of continuing deaths of aboriginal persons whilst in custody in Australia. (According to The Guardian ‘There have been at least 434 deaths since the Royal Commission into Aboriginal Deaths in Custody ended in 1991’).  The question is: ‘how was this permitted given strict public health orders in New South Wales?’

I have written on challenging COVID restrictions and one might think that someone took the matter to the NSW Supreme Court and argued that the restrictions were unconstitutional because they unnecessarily restricted the exercise of the implied right of free political communication in the Australian constitution or some international treaty. Or perhaps that the Chief Health Officer did not have the power to make the public health orders.  The answer is far less interesting and demonstrates the role of the courts in applying the law.  The answer lies in the Summary Offences Act 1988 (NSW) ss 22-27.

I have previously made the point that under Australian law, as a general rule, a person (or people) can do what they like unless there is a law that says you cannot.  You don’t need permission to walk down the street holding a placard.  You don’t need permission to have a mate join you and you both walk down the street holding placard. Pre COVID you could have 2 mates, 20, 200 or 2000.  But when you get to numbers that size it’s going to cause a problem for others so a group of 2000 may commit offences such as obstructing traffic, some people might be offended, etc.

This is where the Summary Offences Act comes in. A public assembly may be ‘authorised’ (s 23). To get an assembly authorised the organisers have to give notice to the police that provides the details and is on the form required by s 23.  Having received the form the Commissioner of Police can tell the organiser that he or she does not oppose the public assembly in which case it is approved. If the Commissioner does object to the assembly and the notice was given 7 or more days before the assembly, the Commissioner has to ask the Court to prohibit the assembly (s 25). If the notice was given to the Commissioner in less than 7 days before the assembly then if they want to proceed the organisers have to ask the Court to authorise the assembly (s 26).

Section 24 says:

If an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it under section 23 (1) (c) or, if those particulars are amended by agreement between the Commissioner and the organiser, in accordance with those particulars as amended and in accordance with any prescribed requirements, a person is not, by reason of any thing done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

The Appeal judges, in Bassi v Commissioner of Police (NSW) [2020] NSWCA 109, at [12], described the effect of s 24 this way:

… the Summary Offences Act creates a regime whereby a proposed public assembly may secure the status of an “authorised public assembly”. A person who participates in such an assembly, so long as it is conducted substantially in accordance with the previously notified details, will not be guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

So what happened in Sydney?

According to the NSW Court of Appeal the organisers served a notice on the Commissioner on 29 May 2020 regarding a proposed assembly to be held on 6 June 2020.  The original notice said that it was expected that about 50 people would attend but it was soon apparent that the public opinion was such that many more would come. In a meeting between organisers and police, held on 4 June, it was estimated that there would be 5000 people. The details of how the event would be run was negotiated with police.

The Appellant [the event organiser] understood that the Commissioner agreed with this change of proposal and did not oppose the conduct of an assembly in amended form. An email sent by the Police to the Appellant on 4 June 2020 appeared to support this view. On 5 June 2020, however, the Commissioner of Police commenced proceedings to prohibit the conduct of the proposed public assembly.

Before the Supreme Court Fagan J held that the amendments made on 4 June constituted a new notice. Because it was served with less than 7 days’ notice, and the Commissioner objected, it was incumbent upon the organisers to persuade the court to authorise the assembly.  At [34] the Court of Appeal said:

In the circumstances of the case, after earnest and no doubt anxious consideration by reference to the powerful competing considerations … and with proper and genuine consideration of the importance of the purpose and aims of the proposed assembly … the primary judge [ie Fagan J] nevertheless declined to authorise the assembly. In reaching that decision, the primary judge drew on evidence of, amongst others, the Chief Health Officer and Deputy Secretary for Population and Public Health in NSW, Dr Kerry Chant, who had sworn an affidavit that was read in the proceedings at first instance.

The Court of Appeal (Bathurst CJ, Bell P, Leeming JA) unanimously agreed that the trial judge made errors of law, in particular the Court was of the view that the amendments made on 4 June did not constitute a new notice. I have quoted s 24, above, and it refers to circumstances where ‘particulars are amended by agreement between the Commissioner and the organiser’. The Court said (at [17]):

… (iii) the Summary Offences Act expressly contemplates, in s 24, that the particulars of a statutory notice of intention to hold a public assembly may be amended by agreement between the Commissioner and the organiser of the proposed public assembly;

(iv) this reflects the scope for negotiation and co-operation between the Police and the organiser as to the details and proposed manner in which the public assembly is to be conducted;…

The Court of Appeal found that the notice issued on 4 June (and in fact drafted by police on Mr Bassi’s behalf) was an amendment as contemplated by s 24, not a new notice. Because the police had seven days notice it was incumbent on the Commissioner to persuade the court to prohibit the assembly.  It was not incumbent on the organiser to persuade the court to authorise the assembly.

Further the court referred to email correspondence between police and Mr Bassi, in particular an email where the police redrafted the form to match the agreement that had been reached (see [42]). That email was communication to Mr Bassi that the Commissioner did not object to the assembly and was therefore confirmation that the assembly was authorised (s 23(1)(f)).

At [44] the Court said:

Plainly enough, at some point between the sending of this email on 4 June 2020 on which Mr Bassi was entitled in the circumstances to rely upon and 5 June 2020, the Commissioner’s view as to the advisability of the public assembly going ahead changed, and he accordingly and appropriately made an application to this Court. No criticism should be made of that change of stance; we live in challenging and uncertain times where the exigencies of public health are of critical importance and the situation is no doubt extremely fluid. Considerations of public order, or further information becoming known to the Commissioner, may require flexibility of approach.

The Commissioner made an application under s 25 but before the court of appeal that failed for two reasons. The first was that in the Court of Appeal, the Commissioner had argued that the trial judge had refused Mr Bassi’s application under s 26 and there was no appeal from that decision (s 27). It was only when it was clear that the Court did not agree that the lawyers tried to rely on s 25. The court said (at [49]) that this argument was rejected, first because ‘although the matter proceeded with great expedition, any such application should have been flagged at the very outset of the urgent hearing. By the time it was made orally, the public assembly was within approximately 20 minutes of commencing.’

Second there were a number of steps that had to be taken before a s 25 application could be made, and the Commissioner had done none of them so the application ‘would have been futile in circumstances’ ([50]).

Prohibited assembly is a misnomer

Section 25 provides that the Commissioner may make an application to have an assembly prohibited. This is a misnomer.  If an application under s 25 is approved, there is no offence of organising or taking part in the assembly. The only effect of an order under s 25 is that anyone who takes part in the assembly does not enjoy the benefit of s 24; that is they are liable to prosecution for ‘ any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place’ but the order of the court does not, of itself, make the assembly ‘unlawful’.  That would have to be found elsewhere.

An assembly is either authorised (ss 23 and 26) or it is not. The legal protection comes with authorisation (s 24) but ‘non authorisation’ does not make the assembly unlawful or expose anyone to any prosecution simply for being there and taking part. To describe an order under s 25 as prohibiting the assembly sounds good but it’s not what the effect of an order is; the effect of the order is that it is not authorised and s 24 does not provide participants protection for the enforcement of any other law.

Balancing rights – Conclusion

This could be seen as a case where the court had to balance the right to protest against the right of the authorities to restrict movement because of public health emergency and the right of others to face a reduced risk of pandemic spread. For many, including some readers and contributors to this blog, they may want to look at this case of evidence of overreach by the government and the role of the court as saviour of fundamental freedoms. I’m afraid the result was not nearly as interesting. As the court said (at [7]):

Competing public interests of great importance were thus potentially engaged but… the issues before this Court were very narrow. Our decision did not ultimately turn on a difficult weighing exercise that resolution of that competition would necessarily have required; rather, the appeal was allowed by reason of the operation of the provisions of the Summary Offences Act in the context of a notice of intention to hold a public assembly (the Notice of Intention) which had been given pursuant to that Act by Mr Bassi to the Commissioner on 29 May 2020.

Nothing to do with human rights but the words of the statute. The organisers served a notice, the commissioner did not object and so the organisers and participants were entitled to rely on that authorisation. When the Commissioner did object it was all too late, putting the relevant objection to the court twenty minutes before the assembly was due to commence.

It confirms my view that the way to get what you want is to fill in the correct form and pay the prescribed fee.