Commissioner of Police (NSW) v Gibson

Public Health Act 2010 (NSW)

1. In Commissioner of Police v Gray [2020] NSWSC 867, Adamson J decided a case in respect of a public assembly that also required the consideration of COVID-19 public health concerns, and her Honour considered the legislative framework of the Public Health Act 2010 (NSW). I respectfully adopt her Honour's summary as reproduced in the following passages: "23 Section 7 of the Public Health Act 2010 (NSW) confers power on the relevant Minister (the Minister of Health) to give directions by order to deal with public health risks. Section 10 of the Public Health Act provides that a person who is subject to, and has notice of, a direction must not, without reasonable excuse, fail to comply with it. The maximum penalty for an offence under s 10 is 100 penalty units or imprisonment for 6 months or both. 24 The incidence and spread of the COVID-19 virus has given rise to a number of orders made by the Minister under the Public Health Act. Of present relevance, cl 18 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW) (Order 4), which commenced on 1 July 2020 provides: '18 Direction of Minister concerning outdoor public gatherings (1) The Minister directs that a person must not participate in an outdoor public gathering of more than 20 people. (2) This clause does not apply to a person who is - (a) engaged in work, or (b) providing care or assistance to vulnerable persons. (3) This clause does not apply to the following - (a) a gathering on premises for which a person is required by clause 7 of this Order to develop and keep a COVID-19 Safety Plan, (b) a community sporting activity for which a person is required by clause 16 of this Order to develop and keep a COVID-19 Safety Plan, (c) a gathering listed in Schedule 2 of this Order, (d) a gathering of persons who are all from the same household, (e) a gathering for a wedding, a funeral, a memorial service or a religious service or a gathering immediately after a wedding, a funeral, a memorial service or a religious service, (f) a gathering to move to a new place of residence or a business moving to new premises, (g) a gathering to provide emergency assistance to a person or persons, (h) a gathering necessary to allow a person to fulfil a legal obligation, (i) a gathering of persons on real property to enable persons to view or inspect the real property for the purposes of the sale or lease of that property, (j) a gathering of persons at a display home or other display premises to enable persons to view or inspect the display home or display premises for the purpose of the sale or lease of real property. 25 Order 4 relevantly contains the following definitions in cl 3: '… public gathering means a meeting or assembly of persons for a common purpose, including an organised or planned event, in a public place (whether ticketed or not). public place has the same meaning as in the Summary Offences Act 1988. …' 26 I note that the predecessor to Order 4, Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 (NSW) (Order 3), which commenced on 29 May 2020 specified a limit of 10 people for outdoor public gatherings. This number was increased by Order 4 to 20 people. … 28 It is important to note that the so-called 'social distancing rule', that persons except those in the same household, ought remain at least 1.5m apart, is not contained in an order under the Public Health Act. It remains a recommendation only and therefore does not give rise to criminal liability for breach."

The first threshold issue: Implied freedom of political communication under the Commonwealth Constitution

1. On 22 July 2020, the defendant filed and served a notice pursuant to s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth and of each of the States, alerting them to the defendant's intention to raise a constitutional issue ("s 78B notice"). The New South Wales Attorney General intervened to make submissions on this issue both in written form and orally at the hearing.
2. The defendant's s 78B notice initially detailed two constitutional issues. The first was the contention that cl 18 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 ("the Public Health Order"), as made under s 7 of the Public Health Act 2010 (NSW) and amended on 16 July 2020, is ultra vires because it impermissibly burdens the implied freedom of political communication ("the implied freedom"). The second was that, in exercising its jurisdiction under s 25 of the Act, this Court is obliged to exercise its powers in conformity with the implied freedom, which requires the Court to read down the provision, so that it would not accede to the plaintiff's application for a prohibition order.
3. At the hearing, the defendant submitted that because both the plaintiff and the Attorney General had conceded in written submissions that an authorised public assembly confers immunity on participants from the penalties of a breach of cl 18 of the Public Health Order (per Adamson J in Commissioner of Police v Gray at [51]-[57]), the issue of cl 18 being ultra vires fell away. However, the second issue remained.
4. The test to be applied in determining whether legislation impermissibly burdens the implied freedom was recently stated in Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448; [2019] HCA 11 at [5]-[6] (per Kiefel CJ, Bell and Keane JJ) as follows: "5. The test to be applied was adopted in [McCloy v New South Wales (2015) 257 CLR 178; [2015] HCA 23] by French CJ, Kiefel, Bell and Keane JJ, and it was applied in [Brown v Tasmania (2017) 261 CLR 328; [2017] HCA 43] by Kiefel CJ, Bell and Keane JJ and Nettle J. For convenience that test will be referred to as 'the McCloy test'. It is in the following terms: 1. Does the law effectively burden the implied freedom in its terms, operation or effect? 2. If 'yes' to question 1, is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 3. If 'yes' to question 2, is the law reasonably appropriate and adapted to advance that legitimate object in a manner that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government? 6. The third step of the McCloy test is assisted by a proportionality analysis which asks whether the impugned law is 'suitable', in the sense that it has a rational connection to the purpose of the law, and 'necessary', in the sense that there is no obvious and compelling alternative, reasonably practical, means of achieving the same purpose which has a less burdensome effect on the implied freedom. If both these questions are answered in the affirmative, the question is then whether the challenged law is 'adequate in its balance'. This last criterion requires a judgment, consistently with the limits of the judicial function, as to the balance between the importance of the purpose served by the law and the extent of the restriction it imposes on the implied freedom." (footnotes omitted)
5. The defendant submitted the following basis for the constitutional challenge to a s 25 prohibition order on the s 78B notice: "2. In exercising its jurisdiction under s 25 Summary Offences Act 1988 (NSW) (SOA), the NSW Supreme Court must recognise the limitation on state legislative power arising from the Implied Freedom and must exercise its jurisdiction conformably with the Implied Freedom. In this regard: a. A determination by the Supreme Court to 'prohibit' a proposed public assembly under s 25 SOA also burdens the Implied Freedom by denying a participant in the assembly an immunity under s 24 SOA from liability vis-à-vis cl 18(1) of the Order: see Commissioner of Police v Gray [2020] NSWSC 867 per Adamson J at [57]. b. The burden on the Implied Freedom by cl 18(1) of the Order is subject to alleviation by authorisation of protest activity under the SOA - either by way of the Commissioner not opposing the holding of the public assembly as contemplated by s 23 SOA, by the Supreme Court refusing an application by the Commissioner under s 25 SOA, or by the Supreme Court granting an application by an organiser under s 26 SOA. c. To the extent possible, the Court must preserve the validity of cl 18 of the Order. This may be achieved in this case by not acceding to the Commissioner's application for a 'prohibition' order under s 25 SOA which would have the effect of the public assembly remaining 'authorised'. d. The Supreme Court must exercise its powers under the SOA so as to preserve compliance with the Implied Freedom, by refusing the Commissioner's application under s 25 SOA to 'prohibit' the public assembly."
6. In oral submissions, the defendant added that, in respect of the "necessity" and "in the balance" aspects of the test to be applied (as detailed in Clubb and McCloy: see [16] above), a prohibition order is not reasonably necessary where there is a less restrictive means of balancing public health goals with the public assembly. That less restrictive means is the authorisation of the public assembly to allow it to proceed, with suitable "risk mitigation strategies in place". Therefore, when the Court makes its decision under s 25, those constitutional principles must be applied and the prohibition order must not be granted.
7. The Attorney General submitted that the burden is to be assessed by reference to how the relevant legislative provision affects the implied freedom generally, and not by reference to the burden placed on a particular group's ability to engage in political communication, citing Brown v Tasmania at [90] (per Kiefel CJ, Bell and Keane JJ) and Comcare v Banerji (2019) 93 ALJR 900; [2019] HCA 23 at [20] (per Kiefel CJ, Bell, Keane and Nettle JJ). The Attorney General further referred to the following passage by Gageler J in Comcare v Banerji at [96]: "Wotton v Queensland [(2012) 246 CLR 1; [2012] HCA 2] establishes that the validity of a law which burdens freedom of political communication by empowering an exercise of an administrative discretion is to be determined by asking in the first instance whether the burden is justified across the range of potential outcomes of the exercise of that discretion. If the burden is justified across the range of potential outcomes, that is the end of the constitutional inquiry. The law is valid and the validity of any particular outcome of the exercise of discretion is to be gauged by reference solely to the statutory limits of the discretion. There is no occasion to consider whether the scope of the discretion might be read down in order to ensure that the law is within constitutional power. There is in consequence no occasion to consider whether a particular outcome might fall within the scope of the discretion as so read down, and there is accordingly no occasion to consider whether a particular outcome falls within the scope of the discretion having regard to the implied freedom."
8. Applying the implied freedom test stated in Clubb, the Attorney General submitted that the purpose of Pt 4 of the Act is legitimate because it is "designed to allow certain public assemblies to be held without fear of liability on the part of those participating for otherwise relevant offences". The law is suitable, as it empowers a Court to decide whether or not to authorise such a public assembly after balancing competing interests, and the law is necessary, as there is no reasonably practical means of achieving the same purpose that is less burdensome on the implied freedom. Lastly, the law is adequate in its balance as it gives the Court the ability to balance the competing interests in arriving at its decision.

Consideration of the constitutional issue

1. Assuming, as the Attorney General has done, that s 25 of the Act does impose a burden on the implied freedom, the purpose of the law is legitimate, and it is also suitable, in the sense that it is rationally connected to the purpose of allowing certain public assemblies to take place without sanction and prohibit others from taking place, on grounds that may include public order. Counsel for the defendant did not submit otherwise, focusing instead on the second limb of the proportionality analysis in the McCloy test regarding necessity, and the assessment of whether the law is "adequate in its balance".
2. I accept that the law is necessary. The Summary Offences Act requires the parties to attempt to resolve any concerns held by the Commissioner regarding the Notice of Intention and gives the Court discretion to decide whether to authorise a public assembly. There is no obvious and compelling, or reasonably practical alternative to achieving the purpose of the provision. It is also adequate in its balance, as it allows the Court to take into account a wide range of considerations and to limit the restriction imposed on the implied freedom where free speech and political communication considerations prevail over others.
3. In recent cases in this Court concerning the authorisation of political protests in the context of the COVID-19 pandemic, the Court has carefully undertaken this balancing exercise, and recognised the importance of public assembly and free speech. In Commissioner of Police v Bassi [2020] NSWSC 710, Fagan J said at [17]: "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."
4. In Commissioner of Police v Gray, Adamson J said at [59]: "The importance of free speech as exemplified by public political gatherings does not need to be established. It is regarded as a hallmark of a democratic society … Demonstrations in public spaces remain a powerful method of advancing particular causes to governments and the general community, as well as engendering a feeling of solidarity among participants and those associated with them who may be unable to be present."
5. Adamson J exercised her discretion after undertaking the balancing exercise to not grant a prohibition order, deciding that free speech interests prevailed over public health and other concerns, and thereby making the decision with the lightest burden on the implied freedom. The range of outcomes available in the exercise of the discretion contained in the provision, and the balancing exercise required by it, are such that I am satisfied that the defendant's submissions on the unconstitutionality of granting a prohibition order under s 25 are not made out.

1. Failure to give an opportunity to the defendant to be heard and to consider any matters and representations he put forward, because decision to apply to the Supreme Court was made before representations and conferral
2. The defendant submitted that it was apparent from the Commissioner's comments in the Radio 2GB interview that he had decided to make the application to the Supreme Court, regardless of what occurred at the conference, and therefore the plaintiff had not complied with s 25(2)(c) of the Act.
3. The plaintiff submitted that since the Commissioner had delegated his functions under the Act to Acting Assistant Commissioner Maloney, whatever he said on that issue was irrelevant to the application. Provided Acting Assistant Commissioner Maloney had performed her functions correctly, there was no impediment to the plaintiff's application being considered on its merits. The terms of paragraph 13 of her affidavit, quoted above at [30], was evidence she had done so.
4. The instrument of delegation was tendered. Its terms were to the effect that the Commissioner delegated his functions under the Act to "all police officers of or above the rank of Assistant Commissioner". Acting Assistant Commissioner Maloney explained in evidence that she was the delegated officer, because the protest is planned to take place in the Central Metropolitan Region, for which she is the Acting Assistant Commissioner, in place of Assistant Commissioner Willing, who is on leave.
5. In Minister for Home Affairs v Omar [2019] FCAFC 188, the Full Court of the Federal Court was concerned with the meaning of a statutory duty to "consider" (whether explicit or implicit), in the context of a duty of the Assistant Minister to consider certain representations made by a person whose visa was cancelled. The Full Court cited Kiefel J (as her Honour then was) in Tickner v Chapman (1995) 57 FCR 451; [1995] FCAFC 1726 at 495 with approval, that to "consider" is to "have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forwards and to appreciate who is making them". To discharge the onus of proving that something was taken into consideration, the empowered decision-maker must engage in an "active intellectual process with reference to those representations": at [36(d)]. What this actually requires may differ on a case-by-case basis, but in Omar, it was held that the Assistant Minister could not just acknowledge or simply note that representations had been made, but could include making specific findings of fact, such as considering whether or not a particular representation was accepted or rejected: see [39]-[40].
6. Acting Assistant Commissioner Maloney was cross-examined as to whether she was influenced by what she understood the Commissioner had publicly said: "Q. Officer, you were in an absolutely impossible situation, you being the delegate of the commissioner, the commissioner being the actual holder of the power to bring proceedings to the Supreme Court? A. No, I don't agree. Q. You were never going to make a decision that was different to the one your boss had already made? A. I don't agree. Q. And I suggest to you that if your evidence is that you were actually not influenced in any way by the statements made by the commissioner, by your knowledge that the commissioner had already decided to bring the case to the Supreme Court where the commissioner was the actual holder of the power to do that, you are not telling the truth? … A. No, I don't agree. I had made up my own mind. The Commissioner has his own view but my name is the one that has to sign off on the section 25 aspects of the prohibition order for the Court. Q. I suggest to you that your evidence that you effectively ignored anything about the commissioner's decision to take the case to the Supreme Court is not the truth? A. I don't agree."
7. I accept Acting Assistant Commissioner Maloney's evidence to the effect that she, and not the Commissioner or Assistant Commissioner Willing, exercised the functions of the Commissioner in the application. I also accept her evidence that, prior to her instructions to the OGC to make the application to this Court, she had not been instructed to do so, in particular, by either the Commissioner or Acting Assistant Commissioner Willing, and that she considered the matters put forward by the defendant at the conference, and his written representations, in the manner required by the Act.

2. Failure to comply with s 25(2)(c) of the Act, because the process was vitiated by apprehended bias
3. The defendant submitted that, if the Court accepts Acting Assistant Commissioner Maloney's evidence that she made the decision to bring the application pursuant to the Commissioner's delegation, the decision itself was vitiated by apprehended bias.
4. The consideration of whether a decision is tainted by apprehended bias involves judicial review of a decision on the basis of procedural fairness. The parties have assumed in their submissions on this issue that the decision is appropriate for judicial review, and I will proceed on that basis.
5. The consequence of a finding of apprehended bias is that the decision in question would fall into jurisdictional error, and the decision would be taken to be null and void. The declaratory relief sought by the defendant pursuant to s 75 of the Supreme Court Act 1970 (NSW) would be to that effect.
6. The test for an apprehension of bias was stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 6, and is summarised by Gageler J in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [57]: "The test for the appearance of disqualifying bias in an administrative context has often been stated in terms drawn from the test for apprehended bias in a curial context. The test, as so stated, is whether a hypothetical fair-minded observer with knowledge of the statutory framework and factual context might reasonably apprehend that the administrator might not bring an impartial mind to the resolution of the question to be decided. Such statements of the test have nevertheless been accompanied by acknowledgement that the application of this requirement of procedural fairness 'must sometimes recognise and accommodate differences between court proceedings and other kinds of decision making'". (emphasis added)
7. The majority (Kiefel, Bell, Keane and Nettle JJ) in Isbester had further comments on the application of the test to different circumstances: "20. The question whether a fair-minded lay observer might reasonably apprehend a lack of impartiality with respect to the decision to be made is largely a factual one, albeit one which it is necessary to consider in the legal, statutory and factual contexts in which the decision is made. 21. The principle governing cases of possible bias was said in Ebner to require two steps to be taken in its application. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Where it is said that a decision-maker has an 'interest' in litigation, the nature of that interest must be spelled out. The second requires the articulation of the logical connection between that interest and the feared deviation from the course of deciding the case on its merits. As Hayne J observed in [Minister for Immigration and Multicultural Affairs v Jia (2005) 205 CLR 507; [2001] HCA 17], essentially the fear that is expressed in an assertion of apprehended bias, whatever its source, is of a deviation from the true course of decision-making. 22. It was observed in Ebner that the governing principle has been applied not only to the judicial system but also, by extension, to many other kinds of decision-making and decision-makers. It was accepted that the application of the principle to decision-makers other than judges must necessarily recognise and accommodate differences between court proceedings and other kinds of decision-making. The analogy with the curial process is less apposite the further divergence there is from the judicial paradigm. The content of the test for the decision in question may be different. 23. How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker. The principle is an aspect of wider principles of natural justice, which have been regarded as having a flexible quality, differing according to the circumstances in which a power is exercised. The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision."
8. The application of the principle will differ on a case-by-case basis, and depends on a range of factors, including the identity of the decision-maker, the particular subject matter the decision is concerned with and the particular circumstances. The statutory framework is a key part of the assessment from the outset: see Spigelman CJ in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [6].
9. As to the nature of the decision-maker, the impartiality expected of judicial officers is more exacting, with a lower threshold for the finding of an appearance of bias, given the centrality of their independence and integrity. In the case of administrative decision-makers, and in particular government officials, the threshold will usually be higher. In Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17, the High Court considered certain political opinions expressed by the Minister, including statements as to how he would decide a particular migration case. The Minister subsequently cancelled the visa of that person. The High Court found that the Minister's statements did not give rise to a reasonable apprehension of bias in respect of his decision. In reaching its decision, the majority (Gleeson CJ and Gummow J at 539-540, Hayne J agreeing; Callinan J at 583-584) held that the Minister's conduct did not attract the same standards of detachment that would apply to a judicial officer. Rather, a minister is electorally and politically accountable; the role of a minister as an elected official includes being drawn into public debate and expressing opinions on issues that he may have the power to make decisions on.
10. The defendant submitted that a bystander with knowledge of all the material and objective facts would take into account that the protest was shown to be opposed by police prior to any material being submitted for consideration, as a result of the Commissioner's widely publicised statements. He would have "expected it to be followed, and expected the public to know that that was his decision". The defendant contended that the effect of the statements was to create the impression that the Commissioner had already acted to uphold the views he expressed in the media. Acting Assistant Commissioner Maloney was aware of the comments made by the Commissioner and concerning Assistant Commissioner Willing, who is of a higher ranking to her, whilst making her decision. The public nature of the statements and the hierarchical structure of the organisation would have further undermined any legitimate decision-making, creating a perception of pressure on the actual decision-maker, being Acting Assistant Commissioner Maloney, to make the decision sought by the Commissioner. As a result, the reasonable observer would apprehend bias on the part of the decision-maker.
11. In response, the plaintiff submitted that the statutory context of s 25 is significant; the decision under s 25 "is not a decision which, of itself, impacts on the rights of the defendant to hold the public assembly", but rather, is a mechanism to allow the Court to decide whether the public assembly is authorised. The plaintiff further submitted that lower standards of detachment are expected from a public official such as the Commissioner, relying on Minister for Immigration and Multicultural Affairs v Jia. When this is taken into account, together with the fact that the Commissioner's statements related to a conversation he had with Assistant Commissioner Willing and not the actual decision-maker, a fair-minded lay observer would not reasonably apprehend that the Commissioner's delegate was biased in making the decision.
12. Lastly, the plaintiff contended that the doctrine of necessity was relevant. It was submitted: "If it were the case that there was a reasonable apprehension of bias when Assistant Commissioner Maloney made the decision, given the hierarchical nature of the police force, that conclusion would apply to any other person who could make the decision to commence proceedings under s 25 of the Summary Offences Act. The necessity exception to the rule against bias would be engaged and would operate to displace the requirement of procedural fairness …"
13. I accept the plaintiff's submission that the statutory context of the decision in question impacts on the standard of impartiality expected of the decision-maker. The decision concerns whether to apply for a prohibition order in this Court. The decision-maker does not have power to directly determine anyone's right to public assembly under the statute, and that decision is instead left in the hands of the Court, which is expected to make the decision impartially, with higher standards of detachment required of judicial officers.
14. I also accept that the standards of detachment expected of the Commissioner of Police are lesser than those expected of a judicial officer. However, unlike the case of Minister for Immigration and Multicultural Affairs v Jia, which involved an elected government minister, the Commissioner is a public official who is not elected, and is not a member of a political party. Commissioner Fuller's comments to Radio 2GB and Sky News on 20 July 2020 suggest that he was unaware of the process required by s 25(2)(c) of the Act, which is regrettable.
15. Although a certain standard of impartiality is expected of the Commissioner, in my view, the fair-minded observer with knowledge of all material facts and circumstances would not reasonably apprehend bias in the present case. As I have found, the decision-maker was Acting Assistant Commissioner Maloney. The Commissioner did not make any statements in public to the effect that he had directly or indirectly instructed her to make the application, or influence her decision. There was no evidence that the Commissioner participated in the decision-making process that was engaged by Acting Assistant Commissioner Maloney, who was concerned with the feedback from the conference that morning, in the form of the notes of the meeting (by contrast with the case in Isbester, where a person with the appearance of bias was a constituting member of a panel that made a decision in respect of a person's rights).
16. Once the defendant had submitted materials for consideration, a police officer would be required to make a decision about whether or not to seek a prohibition order in Court. The defendant's allegation of apprehended bias, due to the Commissioner's statements in the media and the hierarchical nature of the organisation, and in spite of Acting Assistant Commissioner Maloney's absence of communication with the Commissioner, would appear to suggest that anyone in the police force would be infected by apprehended bias. If this were the case, no officer would be able to consider the submitted materials and make any decision, and would not be able to discharge their duties. I therefore accept that, in these circumstances, if apprehended bias did exist, then the doctrine of necessity would operate to allow Acting Assistant Commissioner Maloney to make the decision despite the existence of apprehended bias: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31.

[1995] FCAFC 1726

[2012] HCA 2

(2017) 261 CLR 328

(2019) 93 ALJR 448

(2019) 93 ALJR 900

(2000) 205 CLR 337

(2015) 255 CLR 135

(1990) 170 CLR 70

(2015) 257 CLR 178

(2008) 72 NSWLR 504

(2001) 205 CLR 507

(1995) 57 FCR 451

(2012) 246 CLR 1

(2005) 205 CLR 507

[2017] HCA 43

[2019] HCA 23

[2015] HCA 20

[2008] NSWCA 209

[2020] NSWSC 727

[2020] NSWSC 804

[1990] HCA 31

[2015] HCA 23