This is not a case about the question of people's right to assemble and to walk together to demonstrate solidarity for issues of searing importance to us as a community. This is a case about when that undoubted right must be tempered by concerns about public health and safety in a time of a pandemic where Australia has been lucky enough to have avoided the devastating death rates and horrific overrunning of health systems that other countries have suffered.
This is a case where individuals and organisations whose job it is to protect public health and safety hold a genuine, well-evidenced concern that a planned gathering has a risk that will undo the good work by the people of New South Wales, by a type of gathering that has recognised risks of potentially spreading this virus to various communities who may gather on this day at this time for this purpose, namely Wollongong at 1 o'clock tomorrow.
Common sense dictates, and the evidence tendered in this case demonstrates that safe and fool-proof social distancing during a gathering of this type is virtually impossible and does not occur as a general rule. There is a risk, albeit a very low one, that a person who may be unwittingly carrying this virus will pass it to people gathered in the way proposed. Whilst this risk is very low, the consequences are potentially extreme, and, most importantly, avoidable, by taking simple precautions, including avoiding large, close gatherings. The risk of random and rapid person to person spread in close quarters has been demonstrated by the clusters of infection that can and have occurred in pockets of Australian society.
However, a free society in which we are all lucky enough to live dictates freedom of assembly is vital, held dear, and must be protected.
These are the difficult competing considerations that I have been required to weigh today.
By summons filed in Court today, the Commissioner of Police has sought an order pursuant to s 25 of the Summary Offences Act ("the Act") prohibiting the holding of a public assembly in Wollongong at 1 o'clock tomorrow. The assembly has been identified in a Notice of Intention to Hold a Public Assembly dated 12 June 2020 and has been signed by the defendant Mr Kumar. Mr Kumar has been present in Court and he has given evidence. He prepared an affidavit and he was cross-examined. He is the Ethno-cultural Officer of the National Union of Students.
The Summons and affidavit material in support of it was served just before 5.30pm yesterday. Mr Kumar instructed solicitors and counsel, who have been under great time pressure to prepare affidavit material and submissions in response. Section 27 of the Act which governs these types of applications requires that the Court decide the application with "the greatest expedition possible so as to ensure that the application is not frustrated by reason of the decision being delayed to after the date proposed for the public assembly."
The hearing commenced at 9am and concluded just after 1.30pm. In the circumstances these reasons have to be given ex tempore and without the benefit of a transcript. I hope I do the evidence and the arguments carefully raised by counsel, justice.
The plaintiff relied upon an affidavit of Dr Kerry Chant. She is the Chief Health Officer and Deputy Secretary in the Population Public Health part of the New South Wales Department of Health. Her affidavit dealt with the nature of the risks associated with public gatherings and the current provisions in place to limit those risks and the reasoning behind those provisions.
There was also an affidavit of Assistant Commissioner Greg Moore, which dealt with the proposal for the gathering, his experience of the behaviour at public assemblies of this character, his understanding of the high transmission risk of the COVID-19 virus and the details of the information upon which he concluded that the holding of the proposed public assembly should be opposed. The information upon which he based his decision included detail provided to him of a meeting that police held with Mr Kumar on 17 June 2020. Assistant Commissioner Moore has been a police officer, and a senior police officer for many years, his experience spanning 32 years in the service.
The defendant relied upon an affidavit of Mr Kumar and an affidavit of Steve Blanks, solicitor. It is worth observing that in the affidavit of Mr Kumar, he makes no reference to or complaint about notes taken by the Police of the meeting he had with them on 17 June 2020 or any query or complaint about their accuracy. The affidavit also did not mention what steps he had taken, if any, by that time, to notify persons proposing to attend the proposed gathering of what they should do to ameliorate risks of passing on any possible unwittingly suffered COVID-19 infection.
The defendant, however, sought and was given leave to reopen his case to tender a Facebook page post headed "Protesting in a Pandemic" which provided some basic information about use of hand sanitiser, social distancing, avoiding touching one's face and to stay home if you are sick and to wear a mask. An encouragement was provided with that Facebook post to comply with those matters. The existence and contents of that Facebook post, although it seems it was made on the evening of 17 June 2020, was not alerted to Assistant Commissioner Moore or the relevant police officers until the tender of that material at 12 noon today.
In his Notice, Mr Kumar identified that the purpose of the proposed assembly was "to show solidarity with the black lives matter movement and raise awareness about aboriginal deaths in custody."
No right thinking person would have any view other than that these are very important issues and go right to the heart and fabric of Australia as a society that upholds basic tenets of justice.
The plan was a public assembly estimated to be approximately 500 persons to tomorrow at 1pm gather together commencing in the Crown Street Mall amphitheatre, then to "proceed down Crown Street towards Lang Park, turning left on Parkside Avenue and dispersing at Lang Park."
There is evidence before the Court that these are fairly spacious areas and on application of a four metre square rule could manage a 500 person crowd and remain within Covid-related guidelines. The only "special characterisations" identified, however, in the Notice provided by Mr Kumar were that "provisions will be in place to encourage social distancing." Those provisions were not specified in the notice.
Central to the opposition by the Commissioner of Police to that public assembly and the Order now sought prohibiting that public assembly, were two grounds identified in the affidavit of Acting Assistant Commissioner Greg Moore:
1. It would be in contravention of the current Public Health (Covid-19 Restrictions on Gatherings and Movement) Order (No 3) 2020 and the consequent current prohibition of public gatherings of more than 20 persons which came into effect on 13 June 2020
2. It would bring about an unacceptable and unnecessary risk of attendees or other members of the public in the vicinity of the public assembly being exposed to transmission of the Covid-19 virus.
Mr Spartalis, who appears on behalf of NSW Police, submitted that in weighing the important competing public interest in free speech and assembly on the one hand, and the important public interest in not exposing the public to the risks associated with COVID-19, the Court should be guided by the extant public health order and the opinion of Dr Chant about preventable risk.
Counsel for the defendant, Mr Brennan, submitted that first there was a jurisdictional issue that arises because of a failure by the Commissioner to comply with s 23(2)(c) of the Act and so this Court's jurisdiction is not enlivened. Second, Mr Brennan argued that when the gathering proposed is analysed in light of other gatherings permitted by the Public Health (Covid-19 Restrictions on Gathering and Movement) Amendment Order (No 3) 2020, such as in shopping centres and on public transport, I should conclude that the type of gathering proposed is well within a comparable level of risk to those permitted gatherings stated in Schedule 2 to that legislation to be "essential gatherings."
Mr Brennan also submitted that I should conclude that this gathering, to bring attention to the issues raised and the importance of those issues and people's right to pursue those issues in the way of gathering and walking together, should be considered by the Court to be an "Essential gathering."
I can understand why Mr Brennan made that submission, and in the normal course, I would embrace it.
Mr Brennan submitted that the arrangements proposed by Mr Kumar, albeit late yesterday for the first time identified in a written form, must be factored into my consideration in weighing the "powerful competing considerations" as the Court of Appeal described it in Bassi v Commissioner of Police [2020] NSWCA 109.
It is indeed an unenviable task.
Both counsel accepted that the articulation of this difficult weighing exercise was accurately set out in the judgment of Fagan J in Commissioner of Police v Bassi [2020] NSWSC 710 at [17]-[18]. This is what he said:
"In deciding whether to make an order of this nature the Court usually has to strike a balance between two competing public interests. The first is the public interest in free speech and assembly and in the facilitation of public gatherings at which people with views on matters of public importance may gather together and show their strength, to demonstrate their solidarity with a point of view on a particular issue. The right of assembly and of expression by that means is of great importance in a democracy such as that enjoyed in Australia.
The Court recognises that a strong public interest attaches to any expression of public opinion in this manner. In this case the particular cause that the organiser wishes to advance is awareness of what he and others of like mind perceive as unequal treatment of indigenous people in this country by police and concern with respect to death of indigenous people that have occurred whilst in custody, and concern with the known high rates of incarceration of indigenous relative to other members of the community."
I interpolate here that the concerns that Fagan J was dealing with were similar, as I see it, to those concerns raised by Mr Kumar as the basis for this gathering. Fagan J continued at [19]-[20]:
"There is no doubt that that cause is one that is widely supported in the community and with great strength of feeling. That being the matter about which it is sought to conduct this demonstration, the first interest that I have said needs to be balanced in this exercise, that of allowing such free speech and assembly, is obviously of very high importance and is taken very seriously by the Court. Counsel for Mr Bassi has urged upon the Court that the timing of this proposed demonstration is most important on the basis that Mr Bassi and those who share his interest in the relevant cause perceive there to be a heightened awareness in our community of the issue which is important to them, raised by the circumstances of the death of George Floyd in Minneapolis following his arrest, and raised by wide dissemination in the media of images of strong protest about that event in the United States.
The usual countervailing consideration that the Court has to weigh up, relative to the right of assembly and free speech, is the right of other members of the public who are not participating in the assembly to make normal use of roads, footpaths and public open spaces; not to be obstructed in their movements around the city; and the right of business people in locations where large public gatherings might take place not to be impeded in going about the ordinary conduct of their affairs. Usually these latter considerations can readily be accommodated to the holding of large demonstrations for a few hours at a time, and usually the balance would strongly favour permission for people to conduct a public gathering of this type."
The approach to the judicial task referred to by Fagan J was accepted and approved by the Court of Appeal in Bassi v The Commissioner of Police [2020] NSWCA 109 at [6]-[7] and [34].
I should emphasise, however, that my task is a limited one. As observed by Simpson J in 2003, then in a very different context and time, in a decision cited by Mr Spartalis of Commissioner of Police v Rintoul [2003] NSWSC 662 at [24]:
"The act gives me no power to do other than grant or refuse the order sought. I am not empowered to impose conditions upon the conduct of any assembly that goes ahead…".
In the decision of the Court of Appeal in Bassi v Commissioner of Police, the Court gave a relevant outline of the statutory context of this application and it is necessary and useful to refer to it so that those reading this judgment can understand the context in which this application has been made:
"The procedure in New South Wales for the holding of an authorised public assembly is governed by Part 4 of the Summary Offences Act, entitled "Public Assemblies".
For the purposes of that Part, a "public assembly" is defined as meaning "an assembly held in a public place, and includes a procession so held". "Public place" is defined as meaning "a public road, public reserve or other place which the public are entitled to use".
Broadly speaking, Part 4 of 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.
The key statutory provisions of the Summary Offences Act are as follows:
'24 Participation in authorised public assembly
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.'" [1]
I interpolate here to highlight the submission made by Mr Brennan that the effect of s 24 potentially is that if any persons participate in the public assembly, were I to refuse the Commissioner's application to prohibit it, they are protected from any prosecution for an offence that relates to their participation.
That would mean, in effect, as I apprehend Mr Brennan's argument, that should I refuse the Commissioner's application, persons who participate in the assembly cannot be prosecuted pursuant to the Public Health Order for congregating in numbers over 20.
Section 25 is the provision pursuant to which the application was made and that provides for the prohibition by a Court of a public assembly. It provides that the Commissioner can apply to the Court for an order prohibiting the holding of a public assembly in respect of which a Notice referred to in s 23(1) has been served, if it was served seven days before the date specified on the Notice as the date which it is proposed to hold the assembly.
Subsection (2) provides:
The Commissioner shall not apply for an order under subsection (1) relating to a public assembly in respect to which notice referred to has been given unless:
(a) the Commissioner has caused to be served on the organiser of the public assembly a notice in writing inviting the organiser to confer with respect to the public assembly with a member of the Police Force specified in the notice of a time or place specified or to make written representations to the Commissioner with respect to that public assembly within a particular time,
(b) if the organiser has, in writing, informed the Commissioner that he or she wishes so to confer and the Commissioner is made available to confer with the organiser at the time and place specified in the notice, the member of the Police Force specified or if that member of the Police Force is for any reason unavailable to confer, another member of the Police Force and,
(c) the Commissioner has taken into consideration any matters put by the organiser at the conference and in any representations made by the organiser.
Subsection (3) of s 25 is a mechanical provision. Section 26 of the Act sets out the basis on which a Court can authorise a public assembly, but that doesn't apply to our circumstances here.
There are certain matters raised in the Regulations that are also set out in Bassi v Commissioner of Police but I do not need to go into those for the purposes of this judgment.
I turn now to the evidence tendered on the application.
Dr Chant, to whose expertise I have already referred, provided an affidavit in which she made certain key statements. Paragraphs 10 to 15 of her affidavit set out the gravamen of her concerns and considerations. She stated:
"In public health, we recognise that public gatherings bring people into close contact and increase the risk of transmission of some infectious disease such as COVID-19 and encourage the mixing of people who are not part of the same social networks. If transmission occurs in that context, the cases of transmission can be distributed to social networks that are not a single social network and therefore spread more widely.
A series of Public Health Orders have been issued under the NSW Public Health Act 2010 since the commencement of the COVID-19 pandemic. The Orders have been focused on reducing the risk of transmission, by limiting social contact and reducing the opportunity for individuals and groups, who would not normally come into contact, to mix. Large crowds create the opportunity for close contact between people.
I understand that there has been a proposed public assembly that has been proposed to take place by the National Union of Students from 1.00pm on 20 June 2020.
I understand that this event may involve 500 or more people gathering and proceeding along a particular route in public.
In my opinion should a person attend the event who is infectious with COVID-19 there is a risk of transmission to others who are attending the event. This risk can be mitigated by requesting people not to attend if unwell, ensuring social distancing, hand hygiene and the wearing of masks in settings where social distancing cannot be practiced.
In NSW, we have had the most cases in Australia because Sydney is an international destination. Whilst community transmission is low, we recognise that as we ease restrictions, there is a risk of an increase in cases as we cannot rule out undiagnosed cases in the community at this time. As a result, caution is required as we ease restrictions."
Dr Chant was courteously and vigorously cross-examined by Mr Brennan. She identified specific risks associated with a rally or organised protest comprised the fact that people can be infectious prior to having any symptoms so screening only sick persons is insufficient, as well as the size of the event which brings more people together. Even against a background of low risk, this does have an attendant risk. The proximity of individuals to each other for the proposed gathering is also a factor.
Dr Chant noted that there had been a locally acquired infection without source and this meant that there is undiagnosed infection in the Illawarra community. Dr Chant gave evidence that if a risk is introduced in the setting of a public assembly, it can be difficult to contact trace, and it is possible to miss where the first case occurred and so, once infection is seeded further along the line, contact tracing becomes more complex and there cannot be confidence that in tracing that chain of transmission, its origin can be found and broken down from a public health point of view.
Dr Chant stated that wearing masks is a reasonable step, but it can cause transmission risks, complications and difficulties if not disposed of properly and also, masks, once they become damp, are less effective.
Dr Chant also noted that the problem is that the infection can exponentially grow if it seeds in a population group and referred to Victoria as an example of where this has occurred. Dr Chant also emphasised that transmission by touching the face and hands and mouth without sanitising hands in between, and then touching another person was a method of transmission of concern.
Assistant Commissioner Moore provided an affidavit and was cross-examined. His affidavit deposed to his experience in observing marches and gatherings of this nature that people tended to be close together and march in groups. He also observed that they tended to chant which raised a concern in his mind of consequent discharge of saliva. His view was that maintaining a safety plan of strict social distancing was difficult, in particular in a mainstream shopping area on a Saturday afternoon. He noted that the COVID-19 virus was highly contagious, potentially lethal and has no known vaccine. There has been 435,000 deaths worldwide, 102 in Australia and 48 in New South Wales.
Assistant Commissioner Moore had the task of reviewing material provided to him from the meeting that was held between Mr Kumar and Inspector Glasgow on 17 June regarding the proposed gathering. Assistant Commissioner Moore endorsed the briefing paper with the following observations and reasons for opposing the authorisation of the proposed assembly:
"I have considered the information contained in the report and I oppose the holding of the proposed public assembly. My opposition at this time is based on concerns for the health and safety of participants and the wider community associated with the ongoing COVID-19 public health issue. The current Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 directs that persons must not participate in a public gathering of more than 20 persons. The assembly is proposed to be held in the Wollongong Mall which is in the Wollongong central business districts main shopping area. At the time of the proposed assembly there can be expected moderate numbers of shoppers of all ages and genders who will find it extremely difficult to pass through the area without being afforded the recommended physical distance. A previous unauthorised assembly was held by the same applicant on Sunday June 7, 2020. There were at least 1500 persons in attendance at this gathering and recommended physical distancing was not exercised. Additionally on the 14 June 2020, NSW Health reports that a male in his twenties from the Illawarra was diagnosed with COVID. The source of this community infection is still being investigated. This further poses a potential risk to the Illawarra community and potential participants of this assembly. Wollongong Police have attempted to negotiate with the organiser and assist in the facilitation of the event at a time in the future when health restrictions are lifted, this concession was not accepted by him. For these reasons I reaffirm my opposition to the authorisation of this assembly."
Assistant Commissioner Moore gave evidence that the handwritten notes of the meeting with Mr Kumar was consistent with his recollection of what he had been told by telephone by the officer who attended and was material that informed his reasons for refusing the application.
He was cross-examined, again courteously but vigorously by Mr Brennan. I accept Assistant Commissioner Moore's evidence that he properly considered any matters put by the organiser at the conference and any representations made by him relevant to the holding of the proposed gathering.
I am also satisfied that contrary to the submissions made by Mr Brennan on behalf of the defendant, s 25(2)(c) has been satisfied. I am of the view that matters put by the organiser at the conference included an expressed intention to proceed with the gathering regardless of Police views, with no clear plan articulated at that time for Covid-safe conduct. I also note in that regard the paucity of information in the Notice provided by Mr Kumar and the generality of matters stated by him in the conference as to what measures would be taken. I note Mr Kumar does not dispute the contents of the handwritten notes of Inspector Glasgow in that regard. These are all matters Assistant Commissioner Moore was entitled to consider.
Mr Kumar's affidavit refers to steps taken by him after the meeting with police and the decision made about the gathering was communicated to him.
He was cross-examined by Mr Spartalis and it was put to him that a person who insists on proceeding with a rally in the face of a COVID-19 embargo is someone whom the Court cannot be sure will use his best endeavours to require persons attending the gathering to take steps to guard against infection.
I am not prepared to draw that conclusion about Mr Kumar who strikes me as a very well-intentioned member of the community, but Mr Kumar candidly conceded in cross-examination that he cannot control numbers, who attends, what people do once they are gathered, how they congregate, whether they wear a mask and whether they socially distance or not. He cannot know who is sick or send home someone who is sick.
It is clear that Mr Kumar organised, along similar lines, a rally two weeks ago that was anticipated to have 500 people but ended up having 1500 people at least. It is also clear that Mr Kumar feels passionately for the cause he pursues and he has been encouraging widespread attendance on his Facebook posts.
Mr Blanks' affidavit that was tendered deals with figures in relation to the local incidence of community acquired infection. It is clear from that affidavit material, and Dr Chant's answers in cross-examination on these matters, that the incidence of community acquired COVID-19 in the Illawarra is very, very low and there is only one known case.
Having reviewed the evidence with care and listened carefully to the evidence of Dr Chant and Assistant Commissioner Moore, I am satisfied that the jurisdiction of the Court is enlivened and that s 25(2) preconditions have all been satisfied as well as the other aspects of s 25 that have to be mandatorily satisfied before this Court can exercise its discretion.
In regard to the very difficult balancing exercise I have had to perform, I found Dr Chant's evidence valuable and persuasive. The graduated and conservative lifting of restrictions is responsive to what is known, and what is known is that there are still community acquired infections with unknown source, which means that there are still undiagnosed infections in the community.
The risk, whilst at that level is low, can become exponential where people of different communities mix.
The gathering proposed plans to impose itself on the Wollongong shopping strip and Lang Park on a Saturday afternoon where it can be expected that people will be going about their usual Saturday afternoon affairs in that vicinity.
The defendant himself is from a suburb from the Inner West of Sydney. We cannot assume, and the Court cannot assume, that there will not be people attending from multiple different places in the greater metropolitan area.
Balancing these health risks with the success that has been achieved up to now as a result of the strict, and more recently less strict, government health measures, is one that in my view outweighs the rights to hold a public assembly of the type and timing and circumstances of the one that is proposed for tomorrow at 1pm which is the subject of this application.
In reaching this conclusion, I note that other options were sought to be explored by the representatives of NSW Police with the defendant on and around 17 June 2020 in terms of date or place or time for the proposed gathering, but these were all rejected by him.
As stated by Fagan J in Commissioner of Police v Bassi, this is an illustration of an opportunity given to "defer" the rights to gather, not to extinguish them. Different considerations in my view must apply to every different application, including any change or developments in what is known about relevant current health risks as well as the nature, the location and the size of the proposed assembly and any matters of that nature.
In this case, I am of the view that the order sought by the Commissioner should be made. Accordingly I order pursuant to s 25(1) of the Summary Offences Act a prohibition of the holding of the public assembly identified in the Notice of Intention to Hold a Public Assembly dated 12 June 2020 signed by the defendant.
[2]
Costs
Mr Spartalis submitted that the defendant ought to pay the costs of the Commissioner's application, particularly given Mr Kumar stated that he intended to proceed no matter what the NSW Police said.
Mr Brennan submitted that the structure of the Act and the circumstances in which these applications are made, processed and determined militates against imposing any such costs order on a member of the public who is pursuing his or her rights to free speech and freedom of assembly and expression.
I am persuaded by Mr Brennan's submissions. The structure of the Act imposes a level of co-operation and an application process in order to pursue, particularly in current times, the right to assemble. In my view it is not a proper exercise of my discretion to order the defendant to pay costs in circumstances where he is seeking to pursue his rights to free speech and assembly in the evolving situation and changing public health considerations and circumstances of the COVID pandemic. It is reasonable to expect there will be changes from time to time which may have an effect on the way this Court considers and determines issues relating to public assemblies of this kind.
Accordingly, I refuse to make any order that the defendant pay the plaintiff's costs. Each party should bear his or its own costs of the application.
[3]
Endnote
Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109 at [10]-[14].
[4]
Amendments
26 June 2020 - At paragraph [26]:
Line 1 - "were" has been changed to "was"
Line 2 - "approved of by" has been changed to "approved by"
[5]
At paragraph [27]:
Line 2 of the quote of Simpson J in Rintoul - "to conditions" has been changed to "to impose conditions"
[6]
At paragraph [29]:
Line 3 - "…assembly where I refuse…" has been changed to "…assembly, were I to refuse…"
[7]
At paragraph [32]:
Line 1 - "…mechanical provision and section 26" has been changed to "mechanical provision. Section 26"
[8]
At paragraph [45]:
Line 2 - "gathering communicated" has been changed to "gathering was communicated"
[9]
At paragraph [49]:
Line 4 - "incidence of COVID-19" has been changed to "incidence of community acquired COVID-19"
[10]
At paragraph [53]:
Line 2 - "park" has been changed to "Lang Park"
[11]
At paragraph [55]:
Line 2 - insert a comma after each instance of the word "strict"
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 26 June 2020
Parties
Applicant/Plaintiff:
Commissioner of Police, New South Wales Police Force