Commissioner of Police v Gray

Supreme Court of NSW|2020-07-03|Before: Adamson J, Lee J

Solicitors: Office of the General Counsel, NSW Police Force (Plaintiff) O'Brien Criminal & Civil Solicitors (Defendant) File Number(s): 2020/197152

Introduction

By summons filed in Court on 3 July 2020, the Commissioner of Police (the plaintiff) seeks an order under s 25 of the Summary Offences Act 1988 (NSW) (the Act) prohibiting the holding of a public assembly arranged by a group known as "Fighting in Solidarity Towards Treaties" (FISST) to be held on 5 July 2020 at 1pm at Civic Park, Newcastle. The defendant, Taylah Gray, is both a member of FISTT and an organiser of the public assembly. It is proposed that those assembled will listen to speeches at Civic Park, after which the participants will proceed along King Street to Crown Street and then along Hunter Street to Pacific Park where the event will conclude. Ms Gray has also proposed an alternative plan, which would involve the protesters congregating in one park and not marching along the streets of Newcastle. Neither proposal was acceptable to the plaintiff.

Factual background

On 6 June 2020, FISTT held a protest similar to the one planned for 5 July 2020 (the first protest). The purpose of the first protest was to call for justice for George Floyd and for an end to black deaths in custody in Australia as part of the BLM movement. Ms Gray attended and spoke at the first protest. From her perspective, the event ran smoothly with the co-operation of the police. She deposed in her affidavit sworn 3 July 2020 that there were, to her knowledge, no arrests made at that event. She was not challenged about her description of the event. She agreed that she came to know that the Form 1 (the form required to be submitted under the Act for proposed public assemblies) submitted in respect of the event on 6 June 2020 had specified that about 100 people would attend. According to media estimates after the event, about 5,000 people attended. It was common ground that the Form 1 for the first protest had been submitted within the 7-day period provided for under the Act and that the organisers had not sought authorisation, with the result that the first protest was unauthorised. The statutory provisions will be addressed below.
On 21 June 2020, FISTT posted a Facebook event for the second protest. On 23 June 2020, Senior Constable Jason Williams of the Operations Unit Events Office from Waratah Police Station contacted Ms Coe, a member of FISTT, about the event. He provided her with a blank "Form 1" for her to complete.
On 24 June 2020, Ms Gray emailed a completed Form 1 to Senior Constable Williams (the first Form 1). In the first Form 1, Ms Gray estimated that 100 people would take part and outlined the route set out above. She described the purpose of the protest as follows: "to peacefully protest deaths in custody, BLM and anti-racism."
The following day, on 25 June 2020, Constable Williams emailed Ms Gray to ask her to contact him to discuss the first Form 1. Upon her calling Constable Williams, Ms Gray was invited to go to the Waratah Police station to speak with him and Superintendent Greentree. Later that day Ms Gray and Ms Tighe, another member of FISTT, met with police officers about the protest. During the meeting Superintendent Greentree told Ms Gray that the protest was opposed on the grounds of public health. He invited Ms Gray and Ms Tighe to make further submissions which would be considered by the delegate before a decision was made. At that meeting, Ms Gray was served with a notice pursuant to s 25(2)(a) of the Act to attend the police station on 26 June 2020 at 3.30pm.
On 26 June 2020, a Friday, Ms Gray emailed an amended Form 1 to Superintendent Greentree (the second Form 1). She reminded him in a covering email that she was still within the 7-day period to provide notice of the public assembly under the Act. She amended the number of people expected to attend from 100 in the first notice to 500. She did so because, by the night of 25 June 2020, 385 people had indicated that they were "going" on the Facebook event and 742 said that they were "interested".
At 4pm on 26 June 2020, Superintendent Greentree, Senior Constable Sheehan, Ms Gray and Ms Tighe met to discuss the proposed protest. At that meeting, the police officers confirmed that their opposition to the assembly derived from their concerns for public health. Ms Gray and Ms Tighe told police that, even if the Supreme Court prohibited the second protest, it would go ahead although they would step back from it.
On 29 June 2020, Assistant Commissioner Mitchell, the plaintiff's authorised delegate, refused to authorise the second protest. He gave written reasons to Ms Gray on that day as follows: "I have taken into consideration responses raised by the author and organiser, Taylah Gray on 26 June 2020 and provide the following points; • Acknowledge the right to protest but argue against this point at a time during an extraordinary and ongoing health pandemic • I consider the points raised by Ms Gray regarding current health regulations and lifting of restrictions citing shopping centres, or other community locations as invalid with the planned protest activity. What Ms Gray is intending is a minimum of 500 protesters all with a common purpose, which is not in the spirit of the current NSW Health Regulation amendments • Currently, we are very aware of a COVID spike in Victoria and there are no restrictions in border control between NSW and Victoria. We are also aware of a male testing positive for COVID in western Sydney. Health are of the view this incident may well be as a result of community transmission. Organisers cannot guarantee only local Hunter Region protesters will attend this event thereby placing the wider Hunter community at risk of COVID. Where Ms Gray cites Dr Kerry Chant in her letter, Dr Chant when recently questioned on the Victorian COVID spike and protest activity has summarised any protest activity at this current time as potentially dangerous for our community • The date intended by Ms Gray for this protest also corresponds with school holiday period across eastern States. This could increase the number of attendees and more importantly attract protesters outside of the Hunter Region thereby increasing the potential for transmission of COVID • Any outbreak of COVID in our indigenous communities could be devastating and police within Regional NSW have worked closely with indigenous communities during COVID to protect and minimise risk • Although Ms Gray raises some valid points, now is simply not the time to protest in this manner. I encourage organisers to consider other appropriate and safe means to protest. For example, the use of technology in sharing messages not unlike society which has embraced IT solutions for communication purposes For the above reasons I do not permit the proposed protest activity In Newcastle on the 5th of July 2020 pursuant to s 25 of the Summary Offences Act 1988 (NSW)."
When Ms Gray was cross-examined, she was asked to update her evidence by informing the Court of the numbers who had said that they were "going" to the event on 5 July 2020 or who were interested. She said, by reference to her mobile, to which she was granted access in the witness box for this purpose, that the updated numbers were that 539 had said that they were "going" and 879 said that they were "interested".

Summary Offences Act

Part 4 of the Act makes provision for public assemblies. The effect of these provisions was recently summarised in Bassi v Commission of Police (NSW) [2020] NSWCA 109 at [17] (Bathurst CJ, Bell P and Leeming JA).
Section 24 of the Act provides that, if an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it, participants are not: "... by reason of anything 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."
By s 23 of the Act, a public assembly is an "authorised public assembly" if: (1) written notice of the intention to hold the assembly is served upon the Commissioner and contains the particulars prescribed, including the date, time, and place at which the public assembly is to be held; where the assembly is a procession, the proposed route of the procession; the purpose for which the proposed public assembly is to be held; and the number of persons expected to participate: s 23(1)(a), (b), (c) and (d), and Schedule 1 of the Summary Offences Regulation 2010; and (2) the notice is signed by and gives an address of a person who takes responsibility for organising and conducting the public assembly: s 23(1)(e)); and (3) either, the Commissioner does not oppose the holding of the public assembly, or, where the notice is served at least 7 days before the date specified in the notice as the date on which it is proposed to hold the public meeting - the holding of the public assembly is not prohibited by the Court under s 25 of the Act: s 23(1)(f).
Section 25 of the Act provides that the Commissioner may apply to this 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 the notice was served 7 days or more before the date specified in the notice as the date on which it is proposed to hold the public assembly. If no application is made by the Commissioner, the public assembly is authorised. If the notice was served within the 7-day period, it is for the person who submitted the Form 1 to apply to the Court. If no such application is made, the assembly is prohibited.
Section 27 of the Act provides that the Court to which an application in respect of a public assembly is made under s 25: "... shall decide the application with the greatest expedition possible so as to ensure that the application is not frustrated by reason of the decision of the Court being delayed until after the date on which the public assembly is proposed to be held."
My Associate was notified on 1 July 2020 that the plaintiff proposed to file a summons in respect of the second protest. I had proposed that the hearing take place at 2pm on 2 July 2020 but this was not convenient for Ms Graham, who appeared on behalf of the defendant. Accordingly, the hearing was deferred until 3 July 2020, the last business day before the second protest, to allow Ms Graham to appear.

Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA) confers powers on police officers to give directions. Of present relevance, s 197(1)(a) provides: "197 Directions generally relating to public places (1) A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person's behaviour or presence in the place (referred to in this Part as relevant conduct) - (a) is obstructing another person or persons or traffic…"
Section 199 of LEPRA provides: "199 Failure to comply with direction (1) A person must not, without reasonable excuse, refuse or fail to comply with a direction given in accordance with this Part. Maximum penalty - 2 penalty units. (2) A person is not guilty of an offence under this section unless it is established that the person persisted, after the direction concerned was given, to engage in the relevant conduct or any other relevant conduct."
Section 200 of LEPRA limits the exercise of police powers as follows: "200 Limitation on exercise of police powers under this Part (1) This Part does not authorise a police officer to give a direction in relation to an industrial dispute. (2) This Part does not authorise a police officer to give a direction in relation to - (a) an apparently genuine demonstration or protest, or (b) a procession, or (c) an organised assembly, except as provided by subsection (3) or (4). (3) A police officer is not precluded from giving a direction in relation to any such demonstration, protest, procession or assembly if the police officer believes on reasonable grounds that the direction is necessary to deal with a serious risk to the safety of the person to whom the direction is given or to any other person. (4) A police officer is not precluded from giving a direction in relation to any such demonstration, protest, procession or assembly that is obstructing traffic if - (a) the demonstration, protest, procession or assembly is not an authorised public assembly for the purposes of Part 4 of the Summary Offences Act 1988 or the demonstration, protest, procession or assembly is not being held substantially in accordance with any such authorisation, and (b) the police officer in charge at the scene has authorised the giving of directions under this Part in relation to the demonstration, protest, procession or assembly, and (c) the direction is limited to the persons who are obstructing traffic."
The effect of these provisions is that, if a public assembly is authorised, a police officer is not entitled to give a direction under s 197 and a person who is participating in the authorised public assembly cannot be guilty of an offence under s 199, because this would fall within the immunity in s 24 of the Act. Thus, the authorisation, or non-prohibition, of a public assembly has a material effect on police powers in respect of a public assembly. In particular, the police power to give a direction to people who are, for example, obstructing traffic to "move on" cannot be given to those participating in an authorised public assembly because of the limitations in s 200 of LEPRA.

Public Health Act 2010 (NSW)

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.
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.
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. …"
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.
It is common ground that a gathering for the purposes of a public assembly does not fall within any of the exceptions in cl 18(2) or (3). It is also common ground that the prohibition in cl 18(1) would, on its face, appear to make unlawful the public assembly the subject of these proceedings since it is expected that the number attending will be well in excess of 20 people.
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.

Evidence

The plaintiff adduced affidavit evidence which established the Court's jurisdiction to make an order and the concerns of the police about the potential risk to public health which would arise having regard to the number of people expected to attend the protest.
Assistant Commissioner Mitchell gave affidavit evidence of his concern about the risk to the attendees, the police and the wider community if the protest were to go ahead. He deposed in [30] of his affidavit: "I believe it is important that the prohibition order be made because: a. it will be made known to the public that the prohibition order had been made to discourage people from attending; and b. if people do attend, that police have the full suite of powers available to move people off public roadways and ensure full operational discretion to ensure and protect public safety."
Assistant Commissioner Mitchell denied, in cross-examination, that he had come to this decision as a result of any political pressure. He also expressed disquiet about the disparity between the estimate of 100 attendees which had been put on the Form 1 for the first protest and the actual number in the order of 5,000 people. It was plain from his evidence that Assistant Commissioner Mitchell was fearful of the health risk posed by the second protest and was concerned that the limitation of police powers which would result if the second protest were not prohibited would curtail the ability of the police to ameliorate the health risk posed by the gathering. The following answer given in cross-examination demonstrates his concern, motivation and intention: "I think the wider community expects police to do what is correct at this particular point in time, that is, support health regulations. So I believe I am fulfilling my role as the delegate in regards to seeking prohibition on this public assembly. If the protest goes ahead, and we believe it will be because that's what we have been told, on Sunday with or without Ms Gray and some others, police ‑ the intent of police will still be to manage the event as best we possibly can."
The plaintiff also read the affidavit of Dr Chant, the Chief Health Officer and Deputy Secretary, Population and Public Health, NSW Health who opined that the risk of community transmission of COVID-19 was "low". Her opinion as to risk was premised on the assumption that the organisers would have "appropriate risk mitigations in place". She acknowledged the low levels of COVID-19 as a result of community transmission in the last 5-6 weeks in New South Wales. However, Dr Chant remained concerned about public gatherings in New South Wales, including the one proposed for 5 July 2020. Dr Chant was extensively cross-examined. Her evidence is summarised below.
Dr Chant referred, first, to the recent outbreaks in Victoria, which were of concern since the border between New South Wales and Victoria was still open; and, secondly, to the data available to her which showed that there was some community slippage of COVID-safe practices and a degree of complacency, as evidenced by the increase in respiratory infections, including influenza, which are transmitted in a similar way as COVID-19. Notwithstanding these matters, she adjudged the risk of community transmission as a consequence of the proposed public gathering to be low because of the evidence which showed that there was little COVID-19 in the community (as distinct from in hotel quarantine) in NSW presently, and in the Newcastle region in particular. Dr Chant agreed that there had been no cases in the Hunter/Newcastle region of an unknown source in the last 4 weeks.
Dr Chant noted that notwithstanding some easing of restrictions which enabled people to participate in a greater range of activities, there had been no increase in cases in the community.
Dr Chant accepted that, as far as she was aware, the intention of the NSW Government was to return the community to relative normality within a COVID-safe environment. She also acknowledged the general health benefits to the population of being able to engage in employment, community activities and other activities which were beneficial to health. Dr Chant highlighted the increased risk of community transmission posed by a public gathering such as the one proposed whereby people of different walks of life and different geographical areas would assemble together, thereby increasing the potential spread of the virus if one or more people in the crowd had the virus. Her concern also extended to the difficulties of maintaining social distancing in a crowd of people. She also said that persons with the virus are most infectious in the 48 hours before the manifestation of initial symptoms.
Ms Graham showed Dr Chant photographs of Civic Park, the area where it is proposed the gathering begin and where it is proposed that speeches are delivered. Dr Chant agreed that the area appeared to be a wide, open space but acknowledged the difficulties of working out the potential for social distancing from a photograph.
Dr Chant said that she had assessed the risk posed by the public assemblies in Sydney, Newcastle and Byron Bay on 6 June 2020 as having a low risk and that this appeared to have been borne out by the apparent lack of community transmission evident following those events, despite high rates of testing. Dr Chant was reluctant to make a comparison between the risk posed by the protest on 5 July 2020 and a community sporting event at which 500 people were allowed to attend because she considered it to be necessary to have more detail about relevant factors to make a useful comparison. She was shown the COVID-19 safety plan devised by Ms Gray and acknowledged that it contained several measures which she would regard as appropriate to mitigate the risk.
Ms Gray gave affidavit evidence and was cross-examined. She explained the reason for the second protest and the importance of its timing as follows: "The momentum that has been gained recently in Australia in relation to calls for justice for Indigenous people means the timing of the event is crucial. Whilst usually our cries as Indigenous people have remained unheard, we now seem to have the ears and support of the broader community. But we cannot achieve real accountability on issues of racism, police brutality, deaths in custody, the mass incarceration of our people without continuing to have our voices heard loud and clear in public."
The defendant adduced evidence that established: 1. that the first protest had taken place in circumstances where social distancing was observed and a large proportion of those attending had worn masks; 2. since the first protest there has been a significant reduction in restrictions imposed on gatherings due to the COVID-19 virus; 3. the measures to be taken by the organisers to ensure social distancing and compliance with restrictions imposed to contain the risk of the COVID-19 virus.
Ms Gray gave evidence that she had prepared the COVID safety plan annexed to her affidavit on the eve of the hearing in response to Assistant Commissioner Mitchell's affidavit. The plan sets out various measures, including provision of hand sanitiser, masks, collection of email addresses from attendees who have registered and the appointment of marshalls who are to wear fluorescent vests who will assist in monitoring the crowd. It mirrors many of the measures set out in the COVID-19 safety plans annexed to Assistant Commissioner Mitchell's affidavit for activities such as community sport and football matches. Ms Gray acknowledged that she could not predict how many people would come to the protest, how many would wear masks or bring hand sanitiser or how many would provide their email addresses. She explained that the fact that there were 19 volunteer marshalls was a reflection of the number of people who had offered to perform that role and had not been worked out as a proportion of the number of people expected to attend.

The Court's jurisdiction

The Court's jurisdiction to make the order sought depends on two notices having been given: first, the defendant must give notice to the Commissioner under s 23(1) of the Act indicating the intention to hold a public assembly and providing the particulars required; and secondly, the Commissioner must give notice to the defendant under s 25(2) of the Act inviting the defendant to confer with respect to the public assembly at a specified time and place, or to make written representations to the Commissioner with respect to the public assembly within a time so specified. I am satisfied that the requisite notices under the Act have been given such as to confer jurisdiction on the Court to determine the plaintiff's application.

The effect of a s 25 order

Before turning to the circumstances of the present case, I propose to refer to established principles relating to the operation of the Act.
It is of significance that the word "prohibit" in s 25 of the Act is inapposite since a s 25 order does not prohibit the holding of a public assembly at all. All such an order does is deprive the participants in the public assembly of the additional protection that is afforded by s 24: Commissioner of Police v Gabriel [2004] NSWSC 31; (2004) 141 A Crim R 566 at [1] per Hamilton J (Gabriel); New South Wales Commissioner of Police v Bainbridge [2007] NSWSC 1015; (2007) 175 A Crim R 226 at [15] per Adams J; Commissioner of Police v Rintoul [2003] NSWSC 662 at [6] per Simpson J (Rintoul); Commissioner of Police v Allen (1984) 14 A Crim R 244 at 244-245 per Hunt J; Commissioner of Police v Vranjkovic (Supreme Court (NSW), Lee J, 28 November 1980, unrep).
The limited nature of the application was considered by Simpson J in Rintoul, at [24] in the following terms: "Before concluding, I wish to make an observation again about the limited nature of the application before me. An authorised assembly would protect participants only if the assembly were held substantially in accordance with the application. It does not protect against criminal prosecution of any person who engages in acts of violence or vandalism in that assembly. I observe that the Act gives me no power to do other than grant or refuse the orders sought. I am not empowered to impose conditions upon the conduct of any assembly that goes ahead but such an assembly should be in accordance with the law and participants should be aware of the very limited nature of the protection that the Act affords them ..."

The criteria for making a s 25 order

The Act does not identify relevant criteria for the making of a prohibition order under s 25: Gabriel at [4]; Rintoul at [5]. The following extract from Simpson J's judgment in Rintoul at [5] summarises the approach consistently taken by this Court in determining such applications: "... the Act is intended to strike a balance between competing rights - 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."

The relevance of Public Health Orders

The present case is to be distinguished from many previous decisions of this Court in that the plaintiff's objection to the authorisation of the assembly derives neither from concern that the assembly will block public thoroughfares at peak time (as in Commissioner of Police v Langosch [2012] NSWSC 499, where a public assembly was to be held at peak hour in the CBD of Sydney on a Tuesday evening), nor that it will cause a public disturbance (as in NSW Commissioner of Police v Folkes [2015] NSWSC 1887, where an assembly to commemorate the tenth anniversary of the Cronulla riots was expected to result in violence). The plaintiff's objection in the present case arises solely from the risk posed to public health.
Mr Spartalis, who appeared for the plaintiff, made the important concession that the terms of cl 18 of Order 4 did not require that the present application be determined in the plaintiff's favour. In other words, he did not submit that the prohibition order was required to be made because the gathering would necessarily breach cl 18 of Order 4. However, he submitted that cl 18 was a highly relevant consideration in weighing up the factors for and against making the order sought.
Ms Graham contended that, if I were to refuse the plaintiff's application, with the result that the second protest was authorised, the effect would be that the plaintiff (and others attending the protest) could not be prosecuted under s 10 of the Public Health Act for a breach of cl 18 of Order 4 since the immunity conferred by s 24 would apply. In the alternative, she submitted that the authorisation of the public assembly would constitute a "reasonable excuse" within the meaning of s 10 of the Public Health Act. Ms Graham submitted that, if I accepted her primary submission, it would follow that the evidence as to the risk to public health would be relevant to the balancing exercise to be undertaken pursuant to s 25. However, she submitted that, if the s 24 immunity did not extend to an offence for breach of cl 18, the public health evidence was irrelevant since the only matters relevant would be offences relating to public order and not offences relating to public health. She submitted that, in that event, the plaintiff's application for the prohibition order would necessarily be refused because the only basis on which it was sought was the risk to public health and there would be minimal inconvenience to the public having regard to the timing and location of the protest.
Mr Spartalis contended that the reference in s 24 to "any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place" was apt to refer only to offences relating to public order and not to offences relating to public health and therefore did not affect the criminal liability under the Public Health Act of participants in a public assembly authorised under s 25.
The parties were unable to refer me to relevant authority on the construction of the immunity conferred by s 24. In any event, the task of statutory construction must begin with the text: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; [2009] HCA 41 at [47] (Hayne, Heydon, Crennan and Kiefel JJ) (Alcan). It is significant that the legislature has chosen to use the words "any offence relating to participating in an unlawful assembly" in s 24 of the Act when it might have used narrower formulations such as "any offence under this Act" or "any offences relating to public order". The words "relating to" have been held to be of wide import: see the summary of authorities in Pearce and Geddes, Statutory Interpretation in Australia (7th ed, 2011, LexisNexis Butterworths) [12.6] and [12.7].
The first question is whether an offence under s 10 of the Public Health Act for breach of cl 18 of Order 4 is an "offence relating to participating in an unlawful assembly" for the purposes of s 24 of the Act. In my view, the words are sufficient to answer that description. Clause 18 uses the terminology of "outdoor public gathering" rather than public assembly but the former is plainly a subset of the latter. When cl 18(1) is read with s 10 of the Public Health Act, it can be seen that a public gathering of more than 20 people is unlawful, since it constitutes a breach of the direction in cl 18(1). The twenty-first person to join such a gathering (and all subsequent participants) would, unless he or she falls within one of the exceptions (none of which extends to public assemblies for a political or philosophical cause), expose each person present to criminal liability for participation in an outdoor public gathering of more than 20 people.
The benefit of construing an offence for breach of cl 18(1) as falling within s 24 of the Act is that it overcomes a potential inconsistency between s 10 of the Public Health Act, in so far as it creates an offence for breach of cl 18(1) of Order 4, and a public assembly which is authorised under the Act. The assumption to be made in respect of apparently competing state laws is that the legislature would not want to contradict itself: Butler v Attorney-General (Victoria) (1961) 106 CLR 268 at 276 (Fullagar J); [1961] HCA 32. For this reason, as Pearce and Geddes put it in Statutory Interpretation in Australia at [7.12]: "Every attempt should therefore be made to reconcile the competing statutes." Another canon of statutory construction is relevant: the fact that penal provisions are included in the Act and the Public Health Act form part of the context which is relevant to their interpretation: Alcan at [57].
It would be an odd result if the participants in a public assembly in respect of which this Court had refused to make a prohibition order were nonetheless liable to prosecution under s 10 of the Public Health Act for breach of cl 18(1) of Order 4 merely for participating in that public assembly. Any apparent inconsistency can be resolved by giving the words in s 24 of the Act ("any offence relating to participating in an unlawful public assembly") the interpretation for which the defendant contended.
This construction is consistent, not only with the plain meaning of s 24 of the Act, but also with the approach which has been taken to Part 4 of the Act. The Court is required to weigh the public interest in free speech, which is conventionally exercised in a public assembly, and other countervailing factors which affect the public interest (such as the general right of the public, and particularly commuters, to access to roadways and the right of members of the public to be able to access public spaces without interference by groups assembled for violent or anti-social purposes). Although public health concerns have not typically been raised by the Commissioner in times past as an objection to a public assembly, this circumstance is a reflection of the novelty (at least as far as the case precedents reveal) of a virus such as COVID-19 which is both fatal and readily transmissible from person to person.
I am not persuaded that there is any reason to distinguish the physical danger posed to members of the public by violent groups or the physical inconvenience to members of the public by obstructions to footpaths and roads caused by public assemblies on the one hand, and the increased public health risk occasioned by public gatherings such as proposed in the present case on the other.
It is also significant that the implied freedom of communication on political and government matters has been recognised as a matter of constitutional law: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ); [1997] HCA 25 (Lange). Thus, if the effect of cl 18(1) of Order 4 and s 10 of the Public Health Act is to criminalise participation in a public assembly, including one relating to political matters, the question arises whether the law, in its terms, operation or effect, effectively burdens freedom of communication about such matters. This is the first limb of the test in Lange. The constitutionality of these provisions is not for me to determine. However, legislation is to be interpreted in a way which preserves its validity. It can hardly be supposed that the New South Wales Parliament would criminalise public gatherings for political causes in circumstances where such gatherings were authorised under s 25 of the Act. The position is a fortiori in circumstances where public gatherings of significantly more than 20 people are presently permitted under Order 4 in locations which include casinos, at community sports venues and at football stadiums.
For these reasons, I accept Ms Graham's primary submission that, if the public assembly is authorised, the participants are not liable for criminal prosecution under s 10 of the Public Health Act for breach of the direction under cl 18(1) because they are entitled to the immunity granted by s 24 of the Act. If I were held to be wrong in this construction, I would have found that the circumstance that the assembly is authorised under the Act would have constituted a reasonable excuse.

The balancing exercise

As referred to above, Ms Graham conceded that, if I accepted her primary submission as to the construction of s 24 of the Act, matters of public health were relevant to the balancing exercise between the importance of the right of free speech and public health concerns.
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. I do not accept Mr Spartalis' submission that the same effect as is sought to be achieved by the protest could be achieved "in this day and age" by social media. If this were the case, Ms Gray would have presumably been content to communicate with others on Facebook and other social media and would not have gone to the trouble of organising the event. 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.
The cause which is the focus of the second protest has been recognised by this Court in recent decisions. In Commissioner of Police v Bassi [2020] NSWSC 710, Fagan J said: "[18] 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 deaths of indigenous people that have occurred whilst in custody, and concern with the known high rates of incarceration of indigenous people relative to other members of the community. [19] 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."
Although Fagan J's decision was reversed in Bassi v Commissioner of Police (NSW), the Court of Appeal did not cast doubt on the correctness of his Honour's observations set out above.
The real question in the present case is whether the threat posed by the COVID-19 virus is such that public health concerns ought, at the present time, outweigh the public interest in free speech and freedom of association.
The COVID-19 virus can undoubtedly be fatal. It is readily transmissible. Its effect on public health has been thought to warrant significant inroads into personal freedoms in order to slow its spread or suppress it. However, as set out above, Dr Chant's opinion is that the risk posed by the protest is low. Her expertise is undoubted. Her opinion as to the level of risk was not challenged.
The defendant relied on evidence that some gatherings are regarded as posing an acceptable risk. Ms Graham pointed to Schedule 1 to Order 4 which contains a lengthy list of those activities where gatherings which would otherwise be prohibited are allowed. Sporting venues may now open. Community sporting activities involving up to 500 people can take place. A crowd of 10,000 people is allowed to attend a football stadium to watch a match. The players engaging in such a game are necessarily in breach of social distancing advice. Ms Graham submitted orally that the prohibition in cl 18(1) "has been so whittled away by all of the myriad exceptions that the Health Minister has included that the real situation is not a case that the risk demands a circumstance where no more than 20 people can gather in an outdoor public place".
Mr Spartalis sought to distinguish the activities in the exceptions to the prohibition in cl 18(1) from the proposed protest on the basis that these activities take place in venues or at locations to which admission can be controlled and from which those who do not comply with social distancing requirements can be excluded or evicted.
I regard this distinction as more apparent than real. It would seem naïve to imagine that one could control the behaviour of a football crowd simply because the COVID-19 plan in respect of the event had been approved by the relevant authorities. It is of significance that the protest is to take place at a time when many other activities which involve the gathering of people have been allowed. It is also relevant and important that the first protest was conducted in a peaceful manner with respect paid to social distancing. At the time of the first protest, the restrictions were greater because of the perceived greater risk. I would not infer that the participants in the second protest would be any less vigilant than at the first. It is a matter of notoriety that, even though community transmissions in New South Wales are very low, there are so-called "hot spots" in Victoria which have led to resumption of lock-downs in some areas.
Notwithstanding that the plaintiff relied on Dr Chant's evidence, which included her assessment of the risk as low, Mr Spartalis submitted in written submissions: "People's lives are more important in the current COVID-19 world. There is no such thing as a low risk in these hazardous, contagious and unprecedented times. Victoria is proof of that."
I reject this submission as inconsistent with Dr Chant's evidence.
The timing of the protest is also of significance. Ms Gray's evidence is that the momentum generated by the death of George Floyd has provided an opportunity for those who wish to effect social change in Australia to make their voices heard. To deprive such groups of the opportunity to demonstrate in an authorised public assembly would inevitably lead to resentment and alienation if the public risk concerns did not warrant it.

Conclusion

For these reasons, I am satisfied that the public interest in free speech and freedom of association outweigh the public health concerns and that the order sought by the plaintiff ought be refused. After considering the evidence and the submissions by the parties, I am not satisfied that the participants, as long as the assembly is held in substantial accordance with the notice, ought be deprived of the protections otherwise afforded by the Act.

Costs

Mr Spartalis submitted that, as the proceedings involved the public interest, each party ought bear their own costs. Ms Graham submitted that if the plaintiff were successful, the defendant ought not be ordered to pay the plaintiff's costs but that if the defendant were successful, she ought have her costs of the proceedings.
These proceedings are "civil proceedings" within the meaning of s 4 of the Civil Procedure Act 2005 (NSW), since they do not fall within the definition of "criminal proceedings" in that Act. Accordingly, Uniform Civil Procedure Rules 2005 (NSW), r 42.1 applies. Had the plaintiff been successful, there would have been a reason to depart from the usual rule that costs follow the event because the litigation has a public interest aspect. However, as the defendant has been successful, I consider that the plaintiff ought pay the defendant's costs of the proceedings.

Orders

For the reasons given above, I make the following orders: 1. Refuse the plaintiff's application for an order under s 25 of the Summary Offences Act 1988 (NSW) (the Act) prohibiting the protest in respect of which the defendant served a notice in accordance with s 23(1) of the Act. 2. Otherwise dismiss the summons. 3. Order the plaintiff to pay the defendant's costs of the proceedings.

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: 04 July 2020

Accordingly, Uniform Civil Procedure Rules 2005(NSW)

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