Commissioner of Police v Coglin

Applicable law

1. The original notices dated 9 October 2024 complied with the requirements of s 23(1) of the Summary Offences Act. The Commissioner caused senior officers to confer with the organisers of Rising Tide regarding those notices, as required by s 25(2). Representations and information received have been taken into consideration by the Commissioner. The defendant has agreed that that consultation process satisfies the statutory prerequisites for the Commissioner to continue the present application in respect of the public assemblies, with start and finish dates as amended by the documents served on 4 November 2024.
2. If the Commissioner's application is refused then, by operation of the Act, the assemblies will be "authorised" under the Act and the following section will apply: 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.
3. Section 24 would not exempt people attending the protests from prosecution for offences of violence, which would self-evidently go beyond the statutorily permitted purpose of participation. The section would not inhibit police from arresting violent offenders. However, if the protests go forward as authorised assemblies, the power of arrest for lesser offences - such as failure obey directions to move on in the parkland or to remove watercraft from the channel - would be denied to police. They would not have the ability to disperse participants in the event of a deteriorating situation of disorder in the park or of danger on the waterway.
4. Section 24 would not exempt participants or organisers of the land assembly from liability for unauthorised installation of marquees and other infrastructure in the park. The organisers are in discussion with Newcastle City Council with respect to a permit for such installations. In determining whether to issue a permit Council may conclude that the proposed events in the park and on the beach would be of sufficient interest and value to the city community to warrant a permit. Council is in a position to evaluate the live music and entertainment aspect of the intended protest, as well as the level of community concern with the political issue. Council also has knowledge of any objections that may been received from members of the public, whereas the Court does not. If Council grants Rising Tide a permit to use the park for the intended four days, that licence will not have any effect upon the exposure of attendees to criminal liability for public order offences. Council's licence will not suspend police powers to make arrests if such offences are committed. In contrast, the Court's decision on this application is solely concerned with the right of assembly and free speech for political purposes and with the question whether, for the protection of those rights, it is necessary that s 24 of the Act should be engaged.
5. If the Commissioner's application is upheld and prohibition orders are made, the orders would not of themselves render unlawful the conduct of either the assembly on land or the use of light craft in the channel. However, any participant in the land assembly, as planned by the organisers according to material they have published on the internet, would likely contravene s 6 of the Summary Offences Act (obstruction of traffic) and regulations of the Newcastle City Council governing the use of parkland (subject to any permit). Under ss 197 and 198A of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) police would be able to exercise their usual power to give any participant or group of participants at the unauthorised assembly a direction to move on, subject to the limitations of s 200. Participants would be liable to arrest for contravention of s 199 if they should fail to obey any such direction. If the Court were to make a prohibition order in respect of the port blockade, participants in that protest would almost certainly render themselves liable for contraventions of s 13(1) of the Marine Safety Act 1988 (NSW) (negligent or reckless operation of a vessel), or s 14 (unreasonable interference with lawful use by others of navigable waters), or s 15A (failure to obey a direction of an authorised officer concerning use of navigable waters) or r 18 or r 21 of the Marine Safety Regulation 2016 (obstruction of a fairway or channel or navigable waters).
6. In deciding the Commissioner's application, the Court is required to find a balance between two competing rights and expectations of the community, described as follows by Simpson J in Commissioner of Police v Rintoul [2003] NSWSC 662 at [5]: … the right, jealously guarded, of the citizen to exercise freedom of speech and assembly integral to a democratic system of government and way of life, and the right of other citizens not to have their own activities impeded or obstructed or curtailed by the exercise of those rights.
7. Relevantly to the proposed land-based assembly in the present case, Simpson J made the following observations in Commissioner of Police v Rintoul at [20]: [Counsel] for the Commissioner expressly acknowledged that the disruption of a sporting fixture and, indeed, disruption of traffic would not of themselves be sufficient to warrant the making of a prohibition order - the regular use of a public facility such as [a park] does not entitle the regular user to the exclusive and continuous possession of that facility at the cost of others who also have a legitimate claim to its use. Public facilities are to be shared and occasionally even a regular user has to give way to the claims of others. It is in the very nature of the entitlement to peaceful protest that disruption will be caused to others. The fact that the proposed assembly is likely to cause significant inconvenience to residents of [a locality] and to individuals involved in the events at the park is far from determinative. If matters such as this were to be determinative, no assembly involving inconvenience to others would be permitted.
8. To justify the making of a prohibition order it is not necessary that the Commissioner of Police should demonstrate that the holding of the proposed public assembly would cause, or would be likely to cause, a breach of the peace. However, if it should appear probable that a breach of the peace would occur, that would usually provide grounds for such an order: see Commissioner of Police v Allen (1984) 14 A Crim R 244 (Hunt J), a decision on predecessor legislation. The Act does not empower the Court to lay down conditions for the conduct of either of the assemblies proposed in the notices served by the Rising Tide organisers. The alternatives open to the Court are that the Commissioner's application is dismissed and the assemblies proceed as authorised under the Act, or that prohibition orders are made with the consequence that the assemblies are not authorised and therefore s 24 is not engaged for the protection of any person who nevertheless proceeds to take part in one or both of the planned protests.
9. Because s 24 exempts participants in an authorised assembly from criminal liability for "anything done or omitted to be done by the person for the purpose only of participating in that public assembly", the section correspondingly denies to police any basis for lawful arrest for such conduct. Thus, if an application by the Commissioner such as the present is refused, police are left with limited capacity to maintain public order and safety in the conduct of the event. That will usually be an acceptable price to pay for the liberty of assembly and protest because in most cases the right is sought to be exercised for a limited duration, measured in hours, and in a safe urban environment. Where for any reason there is difficulty in foreseeing how the conduct of participants may develop over the course of an assembly, that uncertainty may of itself favour the making of a prohibition order so that police will not be deprived of capacity to respond effectively if unfolding events require their intervention.
10. The point is illustrated by the decision in NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5. In that case the notice given under the Act was for a public assembly of 5,000-7,000 people, to take place at night between 9:00 pm and midnight in the confined semi-residential area of Kings Cross, with music provided by a live band. Lindsay J considered that "the proposed event involves large logistical questions about crowd management that bear upon the safety of participants and the general community in the vicinity of the venue". His Honour made a prohibition order and said this at [14]: In my assessment, the proposed event is not one appropriate to extend to participants in it the protection afforded by s 24 of the Summary Offences Act by dismissal of the Commissioner's summons. The logistical problems of the event are too large, and too unknown, to deny to police officers powers that might reasonably be required, in the interests of all concerned, to be exercised in management of the large number of people expected to participate, even assuming (as one hopes, and the defendants expect) that all participants will be well behaved, sober and conscious of the rights of others.

The Rising Tide movement

1. There is no evidence before the Court about the number of people who count themselves as members of Rising Tide. Several people are identified as organisers of the movement, including the defendant who has been its National Legal Coordinator since August 2023 and Ms Anne Hodgson who has since April this year coordinated the drafting of an Event Management Plan for the November protests at Newcastle. It is clear from their affidavits and from the content of promotional material published online that the adherents of Rising Tide constitute a significant number of community members who hold strong and sincere opinions about the need for Commonwealth and New South Wales governments to accelerate the development of policies and action towards cessation of mining, burning and exporting coal.
2. Since 2006 there have been 12 occasions when protesters, organised either by Rising Tide or by other movements with similar policy concerns, have coordinated the positioning of small craft in the entry channel of the Port of Newcastle with the object of blocking the arrival or sailing of coal ships, as a demonstration in support of their cause. In previous years those protests have been the subject of notices served pursuant to the Summary Offences Act, in response to which the Commissioner has allowed the events to proceed unopposed subject to directions issued to the organisers and participants for the purpose of maintaining safety on the water. The longest blockade of past years was that of 24-25 November 2023, for which the Commissioner did not seek a prohibition order in circumstances where the notice for the event stated that it would run for 30 hours continuously.

Program for the planned protests

1. Internet publicity for the protests that are the subject of the present proceedings advises that setting up of facilities in the park immediately behind Horseshoe Beach will take place on Tuesday 19 November. Under the amendments to the notices that are now in force, the set up presumably would take place on Friday 22 November. It will include the establishment of 11 marquees, kitchens and food stalls, 102 portable toilets and a stage for speechmaking and musical performances. Ms Hodgson gave evidence that one large marquee measuring about 40 m x 15 m would be erected and there would be another 10, each measuring about 10 m x 5 m. She said that a number of supportive organisations would also set up such things as a shade sail and drink stands and that Rising Tide would receive and grant applications from individuals to set up their own tents.
2. Ms Coglin said in her oral evidence that in 2023 about 25% of people who registered their intention to attend the protest indicated that they would bring their own watercraft. In addition there were a number of attendees who did not register in advance and some of those brought kayaks. Extrapolating from the number of registrants for the November 2024 protest, it is reasonable to estimate that at least 350 small craft will venture onto the channel to blockade the port. Rising Tide's publicity on the internet nominates Wednesday and Thursday, 20 and 21 November, as dates on which participants will undertake "non-violent direct action training", apparently intended to enhance the skills of those who will attempt to obstruct the channel. I infer that under the amended notices, any such training would take place on Friday 22 November. According to the online publicity, speeches and live music attractions will continue on land during daylight hours and into the evenings, including on the Saturday and Sunday that are now nominated as the days of the blockade.
3. The defendant has estimated the number of attendees of the land-based protest, across the scheduled four days, at 5,500 in total, with a "spike" at any time of up to 5,000 people, probably on Saturday, 23 November 2024. The estimate has been made on the basis of the number of people who have already registered interest in response to the online publicity. Although the defendant's witnesses said that Rising Tide would welcome members of the public who ordinarily use Horseshoe Beach and its park to continue to do so over the four days of the land assembly, the introduction of the extensive installations referred to above and the presence of 5,000 protesters would thoroughly deter any outsider from entering those spaces. For practical purposes, the whole of the public area would be commandeered by the protest for its duration.

Civil disobedience

1. In November 2023, the 30 hour blockade of the Port of Newcastle shipping channel on the 24th and 25th of that month was an authorised assembly organised by Rising Tide. A supporting land-based assembly was also authorised. About 3,000 people attended across the four days of the combined activities. The notice given under the Summary Offences Act in respect of the assembly of protesters in small craft on the channel specified that they would disperse at 4:00 pm on Sunday, 25 November 2023. The Commissioner had not sought a prohibition order and the kayakers who gathered in the channel had the protection of s 24 of the Act up to that time. At 4:00 pm they did not return to shore. They refused to obey police directions to leave the water. To clear the channel for shipping police had to exercise their powers of arrest. It took them about one hour to arrest 109 protesters and to secure the channel for free passage of commercial vessels. Carrying out arrests under those circumstances involved obvious physical difficulties and risks to the safety of both the police officers and protesters.
2. On 24 January 2024 Inspector Lawson of the Newcastle City Police District interviewed Mr Shaun Murray, an organiser of the Rising Tide Movement who was involved in the 2023 blockade and who is again active in organising and promoting the protests planned for November 2024. Inspector Lawson asked Mr Murray why the protesters had considered it necessary to provoke police into carrying out arrests by continuing to obstruct the channel after expiry of the period for which notice had been given. Inspector Lawson has deposed to the following explanation provided by Mr Murray: In response, Mr Murray said that Rising Tide had undertaken research that demonstrated that media attention tended to be local to a geographical area if there was no civil disobedience but that, if there was civil disobedience resulting in a large number of arrests, the media attention was global. For that reason, he said, it was Rising Tide's intention to always enter a civil disobedience phase during a public assembly. He said that he believed that was the only way to bring about sufficient social pressure to achieve political change.
3. Following the 2023 blockade, Rising Tide published on the YouTube internet site a video showing scores of kayaks, together with a smaller number of rafts and crudely constructed floating platforms, assembled on the channel while the blockade was in progress. Segments of the video depict obstruction of the waterway both during the day and by night. An organiser of Rising Tide, Mr Zack Schofield, is recorded on this YouTube clip making the following statement: Effective protest means pushing the boundaries and we needed to disrupt the Newcastle coal port as long as we possibly could. We were scheduled to finish our 30 hour blockade but the cops didn't know we were going to keep it going longer than we had planned for.
4. On 14 May 2024 two members of Rising Tide, Ms Alexa Stuart and Ms Naomi Hodgson, outlined to a television journalist their plans for the movement. Their statements, broadcast on the SBS Dateline program, included the following: 2025 is when we hope we will have the power and numbers to launch a civil resistance phase. That is what we are planning for and that is why our goal for 2024 is about building capacity up until that point. The group aims to have 10,000 members before it launches its civil resistance phase, rolling waves of [disruption] acts, including stopping coal trains [and] blocking coal ships from passing through the Port of Newcastle later this year.
5. Commencing on about 10 October 2024 and continuing up to the date of the hearing there has been published on the internet a YouTube interview of Mr Murray. The recording includes the following statements by him: … civil disobedience as I said before we are on the pathway to resistance, hopefully the start of that in 2025 and that pathway involves these acts of mass disobedience which are important because it starts to create this dramatic moral challenge to the status quo and as I'm sure many of us know it has played a critical role in the struggles for justice such as the suffragettes to the Indian Independence Movement, the US Civil Rights movements or other things closer to home like a First Nations led Wave Hill walk off and Jabiluka, through the Franklin Dam. … So we think it does play a critical role and last year we saw 109 people made a choice to engage in civil disobedience and be arrested and they did that by staying in the shipping channel after the 30 hour protest or permitted protest ran out so the outcome of that I guess is that drama story helped the people's blockade explode in an international news story and there was over a thousand media hits reporting on last year's blockade, many of them included the stories about the civil disobedience component so it is critical for creating this moral challenge to the state and federal governments … One the other thing it does I guess, when done well, creates positive polarisation where the public are likely to pick a side and many of them, people who are concerned about the climate crisis, sided with us. … There's an aspect of … creating a moral challenge and winning a story war against our opponents and against our political enablers and by doing that it is a key tool in eroding the social licence for the coal industry and that in turn I guess is a precondition for us ending new coal projects and achieving a rapid and just phase out of the coal exports of Newcastle. … there is a lot more people coming to this year's blockade. We expect in turn a lot more people are going to want to engage in civil disobedience and as organisers our primary concerns are that this action is undertaken safely and with participants being as prepared as possible. So this preparation involves like legal and safety briefing plus trainings in non-violent direct action ideally …
6. Rising Tide's current online publicity for the proposed November blockade includes the following: The 2023 Blockade was incredible, with a 3,000 people-powered peaceful flotilla, we stopped the coal ships for 32 hours. And when 109 people chose to take further action and get arrested, they made global headlines demanding an end to new fossil fuels and transition funding for workers and communities. With over 1,000 media hits it was the largest civil disobedience for climate justice in Australian history. As we did in 2023, we are seeking a permit to undertake a protest. …[With] our permit the harbour will be closed [to] all ships. As long as we are on the water, the ships will not move. The event has been held 12 times in the past, with thousands of participants overall. With the exception of the 2023 Peoples Blockade - where 109 people intentionally undertook civil disobedience after the end of the protest - only one fine has ever been issued and one other person was charged and received a caution in court.
7. The current online publicity contains, on a separate page, "The 10 Day Plan". It lists the events of the protests at Newcastle as intended under the original Sch 1 notices of 9 October 2024 combined with those of a three day event in Canberra. Under the heading "How We Win" the following propositions are stated: Build Momentum Through a series of well-sequenced diverse actions and training we will build momentum. We will use creativity and civil disobedience to bring attention [to] our campaign. Civil Resistance By first building the number of people who have pledged to support civil resistance, then commencing waves of sustained escalatory and disruptive actions, we will use the power of civil resistance to drive social change.
8. The defendant gave evidence in the hearing of the present proceedings that in 2023, of about 1400 persons who registered their intention to take part in the protest in November that year, about 25% took to the water in craft provided by the Rising Tide organisers. She said that other attendees brought their own craft and joined the blockade. In her estimate there were between 200 and 400 people on the water during the 30 hour period covered by the Summary Offences Act notice for 24-25 November 2023.
9. If the Court does not make an order in these proceedings prohibiting the proposed blockade of the shipping channel, I am satisfied that it will go ahead on 23 and 24 November 2024 with about 300 people on the water at any one time, in about that number of small craft. From the above evidence concerning the intentions of Rising Tide's organisers with respect to the event, I find it highly likely, to the point of near certainty, that at the end of the period specified in the amended notice a significant number of participants will fail to return to shore and will continue to obstruct the waterway in contravention of s 14 of the Marine Safety Act and in disregard of police directions that I expect would be given pursuant to s 15A of that Act. I find that it is highly likely police will have to effect numerous arrests on the water to clear the channel for shipping. I am satisfied that even in favourable weather conditions the exercise of carrying out arrests will involve significant risk to the safety of the protesters who have to be removed from the water and, at a lower level, some degree of risk to the officers carrying out the task. The evidence of the defendant and the material published by Rising Tide on the internet does not support a finding that protesters would be likely to resist arrest or that there is a likelihood of personal violence directed towards police.

Temporary closure of the port

1. The shipping channel at the entrance to the port is 180 m wide between the breakwaters at its seaward end. It is approximately the same width between the western end of Horseshoe Beach and the Stockton shoreline on the opposite side. Only the central 120 m of the channel is navigable by deep draft loaded bulk carrier vessels, for which the channel is dredged to 15.2 m below the lowest astronomical tide. Deeply laden vessels can pass through the channel only on a full tide.
2. I accept the evidence of Captain Bangia, the Harbourmaster, that if protesters in small craft should take up position in the channel and if they could not be immediately removed by police, he would have to suspend all vessel movements in and out of the port. That would include bulk carriers arriving in ballast, loaded bulk coal carriers departing and other vessels arriving or sailing with non-coal cargoes. There would normally be approximately 12 movements of large ocean going vessels through the channel in each 24-hour period. The narrowness of the channel, the speed at which large ships must proceed in order to maintain steerage and the impossibility of altering course or stopping are factors that in combination would put the users of kayaks and similar craft in extreme danger if ships should attempt to pass in any circumstance other than the Harbourmaster having complete assurance that the waterway is clear.
3. Newcastle, being a river mouth port, requires constant suction dredging of sediment to maintain adequate depth for the classes of vessel that berth there. Dredging would have to be suspended in the channel whilst ever small craft might obstruct it. At such times the dredge could not operate in any part of the harbour because obstruction of the channel would prevent it from proceeding to the offshore spoil grounds where dredge material is dumped.
4. If the Commissioner's application for an order under s 25 of the Summary Offences Act is refused, police would have no capacity to remove protesters from the channel for the 30 hours specified in the amended notice of assembly. The port would be closed to all arrivals and sailings for that duration. Having regard to the stated intention of some of the Rising Tide organisers to continue their blockade beyond the 30 hours, as occurred in November 2023, the port might have to remain closed for an uncertain duration past the scheduled conclusion, until police could arrest and remove from the water those causing the obstruction.
5. Whilst some inconvenience to non-participants must be accepted as an unavoidable concomitant of the rights of assembly and protest, the burden is usually slight and brief and it falls incidentally upon uninvolved members of the public. In contrast, the cessation of shipping movements to and from the Port of Newcastle for at least 30 hours would fall directly and specifically on commercial and recreational users of the port, particularly on enterprises that are lawfully exporting coal under current government policies and legislation.
6. The evidence shows that the Port of Newcastle is not presently operating at capacity with respect to coal shipments so that any bulk carrier movements that would not take place during the 30 hours could be rescheduled to dates in the near future. Also, any sediment that might accumulate during the suspension of dredging could be removed reasonably promptly after the conclusion of the blockade, according to evidence from the port's Executive Manager Marine and Operations, Mr Hayward. A 30 hour interruption to the dredging program would not cause longer term closure.
7. Evidence tendered by the defendant indicates that the only financial loss that would result from suspension of shipping movements for 30 hours would be suffered by ship owners or charterers, depending upon what their commercial arrangements provide with regard to the incidence of loss for loaded vessels being unable to depart or arriving vessels being required to wait offshore for clearance to enter the port. The measure of that loss has not been quantified but I infer that it would be substantial, for whoever has to bear it. There is no evidence as to the identity of the owners or charterers of any vessels that may be affected. It is at least possible that they would be foreign owned corporations. I reject the defendant's submission that foreign ownership would be a reason for the Court to disregard the interruption to commerce and the unquantified financial impact as factors to be weighed in deciding whether the police should retain their powers to clear the channel of protesters.
8. If a s 25 order is made with respect to the planned blockade, it is likely that some attempt to obstruct the channel would nevertheless proceed. Some protesters are likely to be willing to suffer arrest, prosecution and possible forfeiture of their watercraft. However, the duration of the closure in that event would likely be much shorter than 30 hours. Assistant Commissioner Waddell has given evidence that, if an assembly in the channel were unauthorised by reason of an order being made, police would direct any protesters who might attempt to move off Horseshoe Beach that they should not obstruct shipping. Police would proceed to arrest anyone disregarding the direction.
9. I do not accept the defendant's submission that preservation of police powers to enforce the Marine Safety Act is a futility because, even if the orders sought are made so that s 24 is not engaged, protesters would likely be able to force closure of the port by launching from other sites and paddling their kayaks into the channel. Assistant Commissioner Waddell has said that Horseshoe Beach is the only location on the harbour where a mass launching of small craft could take place. If the order is made, police may well be able to keep the channel clear by pre-empting a mass launching and then dealing individually with any small watercraft that arrive from other launch sites. With their usual powers available to them, police may be able to provide Captain Bangia with the assurance he requires to allow the passage of ships. Either for abundant caution or because of a need to give advance notice to the masters of vessels scheduled to enter or leave the port, the Harbourmaster may decide to suspend movements for the duration of the intended blockade even if police retain the power to disperse protesters and intend to do so. That possibility does not negate the significance of the impact on the port and its users as a factor bearing upon the Court's decision.

Police resources

1. In the estimation of Assistant Commissioner Waddell he will require the attendance of a very substantial number of police, including officers of the Marine Area Command on board their vessels, to monitor the port blockade if it proceeds under the protection of s 24. He considers that the same resources will have to be dedicated to the area for the period of the intended protest even if a prohibition order is made. In the first scenario police would need to be present to try to preserve the safety of participants and to enforce the termination of the protest, which would probably require the arrest of numerous protesters on the water as occurred in November 2023. In the second scenario the large police presence on the water would be necessary to prevent protesters manoeuvring their craft into situations that would endanger them on the channel and/or require the Harbourmaster to suspend movements. I regard the fact that substantial police resources will be required as neutral to the determination of the summons. Whether the assembly is authorised or not and whether police can exercise powers of arrest or not, the proposed activity on the water will require a large police presence.

Safety on the water

1. The organisers of Rising Tide have taken a responsible approach to on-water safety by preparing very thorough plans and protocols, by engaging members of supportive organisations to attend with outboard motor driven rescue craft and by enlisting the assistance of trained lifeguards. Counsel for the defendant cross-examined the Assistant Commissioner to suggest that those measures would be sufficient to reduce the risk of a boating accident to an acceptable level, thus making the presence of large numbers of police unnecessary from a safety point of view and eliminating the consideration of public safety from the range of factors to be weighed in the Court's decision whether to make the orders sought. It was suggested to the witness that the police would not need their powers of arrest and dispersal because the risk of accident or emergency on the water was sufficiently ameliorated by Rising Tide's plans.
2. The Assistant Commissioner disputed that safety concerns have been reduced to insignificance by the precautions organisers have taken and I agree with him. Photographs of the 2023 event show hundreds of kayaks massed on the water. The safety of participants could be endangered if there were to be a rapid deterioration in the weather. The outgoing tide in the channel runs at approximately 1.5 knots or 2.7 km/h, which in combination with an offshore south-westerly breeze could carry the type of light craft that are proposed to be used out to sea. The capability of the large number of kayakers who are expected to participate cannot be known. It is not unrealistic to perceive a risk that many of them may not be able to paddle back to shore in such conditions. Capsizes or collisions that might occur among such a fleet would attract the intervention of the propeller driven rescue craft. The risk of injury among such a congested assembly of small craft is obvious. Exacerbation of the risk during the night-time phase of the blockade would be significant.

Order with respect to the proposed Port of Newcastle blockade

1. Weighing up the competing considerations I regard it as very clear that an order prohibiting the proposed blockade of the Port of Newcastle should be made, with the consequence that protesters who contravene the Marine Safety Act by obstructing the channel will be liable to prosecution and the police will have their usual powers to give directions under that Act and to effect arrests if necessary.
2. A 30 hour interruption to the operations of a busy port is an imposition on the lawful activities of others that goes far beyond what the people affected should be expected to tolerate in order to facilitate public expression of protest and opinion on the important issues with which the organisers are concerned. The impact on others is excessive both in kind and duration. The organisers could exercise their rights of free assembly and free speech in other ways and over a shorter timeframe, not inflicting disproportionate interference with the liberties of others. The organisers' choice of environment in which to conduct the protest tells against their opposition to the Commissioner's application. Weather conditions, unsafe conduct of protesters and/or accidents in the handling of their small vessels are foreseeable risks that may warrant the intervention of police to remove all participants from the water. The Court should not, by refusing the Commissioner's application, leave officers powerless to enforce reasonable directions that may be necessary to deal with such eventualities. The need for police to have their full range of statutory powers is amplified in relation to a marine protest, where the conduct of participants, including conduct that may necessitate their rescue, may endanger the officers themselves.

Impact of the land assembly on other users of the park

1. A protest assembly in a public park that is intended to extend over four consecutive days, including a weekend, is most unusually long relative to the proposed assemblies that have been considered under the Summary Offences Act in other cases. Taking over a park for protest, in the manner described earlier in these reasons, for such an extended period is unheard of, so far as I am aware. Assessing the proposal solely as a mode of exercising the right of free speech on issues of public importance, it involves an unreasonable interference with the convenience of other citizens in their enjoyment of public land.
2. The location of the intended land assembly is such that it would not likely interfere with other citizens' enjoyment of their private residences, or their access to shops or services, or transport to or from other locations. There is no evidence of the number of people who would be likely, on a normal weekend, to use the beach or the park. Whatever may be the number of other potential users, the element of the proposed assembly that is unreasonable is the unilateral assumption of what would be, for practical purposes, exclusive or at least dominant possession, for such a duration. The reasonable opportunity for free public expression of political ideas does not require this degree of invasion of public spaces.
3. None of this is to say that, if the proposed assembly commences, police should necessarily utilise their powers to break it up after a particular time. In the exercise of their judgment police may conclude that it is preferable to let the occupation of the park continue for the four days provided the assembly remains orderly. The Court's reasons are not to be understood as a direction to terminate the protest after a certain number of hours. The police may consider that such a step would be more likely to inflame disorder than if they should allow the event to run its course. The duration and nature of the intrusion of this proposed assembly upon other citizens' rights is a factor militating strongly against the defendant's endeavour to preserve protesters' immunity under s 24 of the Summary Offences Act.

Removal of police powers of crowd control for four days

1. I find no indication in the evidence that the organisers of the protest or any of the people who are likely to be attracted to Horseshoe Beach and surrounds for the purpose of taking part would have any inclination to violent or antisocial behaviour. The performances of live bands and the operation of food stalls may attract people who have no interest in the cause advocated by Rising Tide. There is no evidence upon which I could infer that an influx of such unaffiliated attendees would be likely to lead to conflict, physical or otherwise. However, there is a degree of unpredictability about whether, during a four-day assembly involving about 5,000 people at times, some may engage in group behaviour that threatens to become unmanageable, causing police officers reasonably to conclude that they should disperse some or all of those assembled. Where an assembly of this size is proposed to continue for such a duration, it appears to me that it would be unwise to deny in advance the power of police to exercise their powers of arrest for minor offences if that response should become necessary at some time over the four days in order to avoid worse.

The land-based assembly will impede police access to the beach

1. It seems highly likely that, in response to the online publicity of Rising Tide, at least some people will attend Horseshoe Beach with kayaks over the weekend of 23 and 24 November 2024 and will attempt to obstruct the passage of ships. It will be important for police to be able to gain access to the Beach from the parkland behind, to support any rescue operation, to support the provision of medical assistance in the event of accident or injury and to facilitate enforcement action against blocking of the channel. If protesters are to assemble in the parkland it may be necessary for police to direct at least some of them to move away from lines of access to the Beach. For that purpose, police may need to invoke the provisions of Pt 14 of the Law Enforcement (Powers and Responsibilities) Act.

Order with respect to the proposed land assembly

1. The proposed assembly in the park is not of such limited duration or modest impact that the Court should dismiss the Commissioner's claim for relief, trusting that no adverse development over the four days will require police intervention to move participants on. It is an ambitious proposal for an extended protest, well beyond what would be necessary to afford the organisers freedom to advocate their cause by way of public demonstration. It is by no means important to the preservation and facilitation of their rights of assembly and free speech that 5,500 people gathered in a public place should, for four days or even for a whole weekend within those four days, enjoy immunity from being moved on.

Order of the Court

1. For these reasons the following orders of the Court will be entered: 1. Order pursuant to section 25 of the Summary Offences Act 1988 (NSW) that the holding of public assembly in respect of which the defendant served a notice in accordance with section 23(1) of the Act dated 9 October 2024, as amended by agreement of the parties by a further notice served by the defendant dated 4 November 2024, for a public assembly in the period 22 to 25 November 2024 at Horseshoe Beach, Newcastle and adjoining parkland known as Camp Shortland is prohibited. 2. Order pursuant to section 25 of the Summary Offences Act 1988 (NSW) that the holding of public assembly in respect of which the defendant served a notice in accordance with section 23(1) of the Act dated 9 October 2024, as amended by agreement of the parties by a further notice served by the defendant dated 4 November 2024, for a public assembly in the period 23 to 24 November 2024 on Newcastle Harbour off Horseshoe Beach is prohibited.

Amendments 07 November 2024 - Para 32 and 39 spelling of Bangia 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: 07 November 2024