Commissioner of Police v Jackson

Supreme Court of NSW|2015-02-13|Before: Schmidt J, Mr J, Garling J, Association J

Judgment

On 10 February 2015 the Commissioner of Police sought leave to file a summons seeking an order under s 25 of the Summary Offences Act 1988 (NSW), prohibiting a public assembly involving a proposed procession from Waterloo to Circular Quay to commence at 10.30am on Saturday, 14 February. The purpose was notified to be a march to commemorate the 11th anniversary of the death of TJ Hickey, during a police pursuit. The application was supported by an affidavit sworn by a solicitor employed in the Crown Solicitor's Office, Mr Butler.
Garling J granted that leave and gave directions for the preparation of the application for urgent hearing. The matter was mentioned on 11 February and listed for hearing before me on 13 February, his Honour urging the parties to resolve their differences. On 13 February the Commissioner's application was pressed, no agreement having been reached between them.
Section 27 of the Act requires that an application such as this be dealt with "the greatest expedition possible", to ensure that it is not frustrated by reason of the Court's decision being delayed until after the date on which the public assembly is proposed to be held. Accordingly, at the conclusion of the hearing on 13 February, I announced that I was satisfied that the Commissioner had met the onus falling upon him and accordingly made the order sought, giving a short explanation for the conclusion which I had reached.
These are the complete reasons which I then indicated I would later give.

The relevant considerations

Section 25 of the Act does not prescribe the matters to be considered by the Court when determining an application such as this, although relevant considerations include those flowing from the notice requirements of s 23 and the notification form provided by reg 13 of the Summary Offences Regulation 2010 (NSW) in Sch 1, as to matters such as the time, duration, route, purpose of the assembly and procession, the numbers of people, vehicles, animals, entertainers or speakers addressing the assembly and other notified special characteristics of the proposed assembly.
In Commissioner of Police v Rintoul [2003] NSWSC 662, Simpson J considered at [5] that the Act was intended to strike a balance between competing rights, observing: "It is apparent that 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. Other rights may be involved, and this is such a case. What I have said so far is completely uncontroversial and reflects the submissions made by counsel for both parties. It is important to mention here that besides the right of free movement, there are also rights of privacy and day to day activities on the part of persons who will not be involved in the proposed assembly."
Hamilton J, considered that the whole purpose of this Part of the Act was not to prohibit public assemblies, but to facilitate a due exercise of the democratic right to free speech, by protecting participants from prosecution for certain offences (see Commissioner of Police v Gabriel [2004] NSWSC 31 at [1]). That approach accords with that of Hunt J, who in Commissioner of Police v Allen (1984) 14 A Crim R 244 at 245 observed that under the predecessor legislation, the Public Assemblies Act 1979 (NSW), a prohibition order under s 6 did not itself operate to prevent the assembly or procession being held, or to make it unlawful and that persons who are not party to the proceedings cannot be punished for acting in disobedience of an order under s 25.
In New South Wales Commissioner of Police v Bainbridge [2007] NSWSC 1015, Adams J considered, however, that while a prohibition order did not make an assembly unlawful, it might prevent Mr Bainbridge, but not other members of the public, from participating in it (see at [17]).
In Allen Hunt J considered that it would be a rare case where evidence establishing that a breach of the peace would or would be likely to be caused by the holding of the public assembly would not justify the making of an order (see at 250). There was such evidence in this case, it being common ground that there were problems of that kind experienced during the 2014 TJ Hickey march and the 2015 Invasion Day march, problems which on Mr Jackson's evidence, he could not control in the event that they recurred on 14 February 2015.
Given that evidence and having in mind the new route which it was proposed to pursue during the 2015 march, I was satisfied that a real basis for the concerns raised by the Commissioners' application had been established.

The parties' cases

At the hearing it became apparent that there was not much dispute between the parties as to problems which had occurred during the 2014 TJ Hickey march and the 2015 Invasion Day march, but no agreement about the route of the 2015 TJ Hickey march, or how it should be conducted and safely managed.
The Commissioner's case was that prior to 2014 the march had posed no substantial concerns about safety or public order. In 2014, when the march proceeded to Parliament House for the second year, however, a larger number of people had participated in the march than in the past. Even greater numbers were expected this year, when the route was proposed to go through the CBD to Circular Quay.
In 2014 some participants had failed to abide by police instructions, putting their own safety and that of police officers at risk. Mr Jackson was then traveling in the sound van and, on the Commissioner's case, did not take adequate steps to ensure that people kept within the designated lanes. That was disputed by Mr Jackson, but he agreed that he was not able to control the crowd and there were difficulties experienced by police in making contact with him. Similar problems arose during the 2015 Invasion Day march.
In the result, in those marches there had been difficulties with stops taking longer than had been planned and with crowd control. There were, however, no arrests, even though a number of offences were committed. There were also no injuries suffered, even when police were, at times, pushed towards oncoming traffic.
This application rested on the Commissioner's concern that similar problems would arise in this year's march, problems which would have to be dealt with in the more difficult circumstances prevailing along the new route proposed to be marched for over three hours, on 14 February, a busy Saturday morning.
The Commissioner's case was pressed on the basis that three factors tipped the balance towards the making of the order sought. The first, various safety concerns; the second, lack of control exercised by organisers themselves during the march; and the third, that reasonable alternatives to what was proposed for the march were available.
Mr Jackson appeared at the hearing in person to oppose the order sought. He submitted that the evidence led for the Commissioner had sought to put the ISJA and its supporters into a false light as troublemakers, who were unable to control themselves, even though he and TJ Hickey's mother, Mrs Hickey had addressed each march at the outset on the basis that the march was intended to be peaceful, with no violence. He also explained, however, that they did not consider swearing to be violence.
Mr Jackson submitted that the application had to be considered in light of the unhappy history of the relationship between Aboriginal people and police, which had yet to evolve to a peaceful and loving one. He explained that the TJ Hickey march was not pursued for political purpose, but to raise consciousness about his death and to pursue justice for his family and the families of some 450 other Aboriginals who had died police initiated deaths or deaths in custody. He considered that as the result of the police approach, the marches had been over policed, but still, there had been no arrests or any injury suffered by anyone.
Mr Jackson accepted that there was much community sympathy for the ISJA's concerns, but not, he said on the part of Redfern Police. Still, he explained that in the past, agreements had always been reached about safety concerns raised by the Commissioner, but this year, the alternatives routes and conditions proposed by the Commissioner were not appropriate, given the ISJA's desire to generate greater mainstream media publicity for the march.
Mr Jackson considered that the conditions proposed by the Commissioner, particularly that the marchers keep to the footpath and one lane of the road, were not appropriate. This had been an ongoing disagreement in past years, when the organisers had not considered it safe to march on footpaths, because of the presence of pedestrians. They needed the road, given their numbers and the banners which they carried.
Given the numbers of pedestrians likely to be on the footpath, Mr Jackson considered that it would not be safe for marchers to walk on the footpath along the new route. Given their likely increased numbers, they needed to walk along two lanes of the road. While he acknowledged that was likely to cause more disruption, Mr Jackson considered that the democratic rights of supporters of the march ought not to be interfered with, by the making of the orders sought by the Commissioner. In his view, the police had sufficient powers to deal with any problems which might arise.
On Mr Jackson's evidence, past problems during the march had not been caused by the ISJA and its supporters, but by infiltrators, an unidentified outside group of people, who were not welcome at the march any longer as a result. He said that while he could not control those people, if they attended, he intended to eject them. In the event that they did cause problems this year, such as moving across the lanes of the road, blocking traffic and pushing police towards oncoming traffic, Mr Jackson considered that would be for the police to deal with. He would want police to remove troublemakers, but considered that they had ample powers to do so, without the making of a s 25 order.
Mr Jackson also believed that the long march proposed this year to attract the attention of the media could be undertaken safely, with the professional assistance of the police force, but that required their acceptance that the march had to proceed down two lanes of the road. He considered that would inconvenience others for only a relatively short time, while the road was closed off, block by block.
That had, however, not been accepted by the Commissioner and so this application had to be determined.

The evidence

In February 2004, when TJ Hickey died, there was widespread public concern about his death, including understandably, particularly amongst members of the Aboriginal community. Members of the ISJA consider the police to have been responsible for his death.
State Coroner Abernathy later that year found that TJ Hickey died when he fell from his bicycle and was impaled on a street fence at Waterloo, during a police operation. There has been ongoing dissatisfaction with the inquest and calls for another inquest to be held into his death and the involvement of police.
Since 2005, Mr Jackson, as president of the ISJA, has organised a march every year on the anniversary of TJ Hickey's death, during which calls have been pursued for a new inquest into his death. Having a plaque installed at the place of his death and issues as to Aboriginal deaths in custody and Aboriginal rights have also been raised.
Between 2005 and 2012 the marches began in Waterloo and ended at the Block in Eveleigh Street, Redfern. In 2013 and 2014, they went along Elizabeth Street, ending at the NSW Parliament in Macquarie Street, where a petition was presented one year and an apology sought the next.
On 5 February 2015, Mr Jackson gave the Commissioner notice of the march proposed to be held on 14 February, on behalf of the ISJA, as s 23 requires. This was the first occasion that an agreement about the conduct of the march was not reached, with the result that the Commissioner sought an order under s 25. The Commissioner did not oppose a march being held. It was the route proposed and concerns about safety which had arisen, which led to the disagreement and resulted in this application being made.
This year it was proposed to march from Waterloo, via Redfern Police Station, Gibbons Street, Regent Street to Railway Square, then along George Street to First Fleet Park at Circular Quay, referred to in the notice given to the Commissioner as "Invasion Park". It was proposed that the march would halt at five separate points along the route, at the site of TJ Hickey's death, at the Police Station, Railway Square, Town Hall and Wynyard, for silences to be observed and various speakers to address the marchers for periods of between 5 to 10 minutes and an hour or more at Circular Quay, "dependant on demographics".
In 2014 such times were not adhered to, Mr Jackson explained, because of the quality of the speakers, who he did not wish to interrupt. It followed that the time estimates for the proposed stops this year might also be exceeded.
Mr Jackson met with Detective Inspector Crisafulli on 5 February, to discuss the conduct of the proposed march. Later that day, Superintendent Freudenstein wrote to Mr Jackson, notifying him of the concerns held about what was proposed and inviting his written representations about those concerns. Mr Jackson provided a response on 6 February.
The concerns notified included that it had been identified at the meeting that there would be up to 500 people attending the proposed march; that their safety and that of police attending was of major concern; that during the 2014 march and also during the Invasion Day march held on 26 January 2015, safety concerns had arisen in relation to participants crossing onto the wrong side of the road, narrowly avoiding oncoming traffic, participants attempting to push police horses and police into oncoming traffic, a participant taking burning leaves into Redfern Police Station, activating smoke alarms and causing a fire hazard; that excessive time would be spent outside Redfern Police station preventing access to and from the station; that major roads would be blocked for extended periods, preventing emergency vehicles responding to incidents; and that police might be assaulted.
Reference was also made to breaches of arrangements put in place for the 2014 and 2015 marches, including failures to communicate with police and to occupy only the footpath and designated lane; stopping at agreed locations for excessive times; use of offensive language; the display of offensive banners; and the failure to provide identified marshals to assist police manage participants.
In the result, it was explained, safety concerns were held for participants and police, given the numbers of participants, including the elderly and children, as well as vehicles, who, it was proposed, would proceed down a long, busy route in the CBD, in circumstances where serious safety issues had arisen during the 2014 march and the January 2015 Invasion Day march.
By his response, Mr Jackson accepted that there had been a failure of marshals in the January 2015 march; that offensive banners would not be carried; and that there should be no violence, Mr Jackson said including by police, but he advised that offensive language could not be controlled. As to other proposed conditions, marching only on the footpath and in one lane closed to traffic was rejected. So too was vehicles not being involved in the march, no unreasonable obstruction being caused to traffic and pedestrians and the proposed time for conclusion of the march at 2 pm. Mr Jackson also advised: "We reject any consideration of traffic and pedestrians along the route due to the 15 minutes of waiting as nothing to compare with 11 years of the Hickey family."
On 10 February 2015, Detective Inspector Crisafulli advised Mr Jackson by telephone that the Commissioner still opposed the route proposed. He was emailed the letter outlining the concerns held, which Mr Jackson was invited to discuss later that day at Redfern Police Station, or to make written submissions by email. Mr Jackson was then in Canberra and did not respond. Further efforts to speak to him by telephone were unsuccessful. The result was that this application was made, although further discussions were later pursued, albeit unsuccessfully.
At the mention before Garling J on 11 February, Mr Jackson agreed that what was in issue included the involvement of vehicles, the use of the footpath and roadway. The route of the march was also not agreed.
Affidavit evidence was led at the hearing from Detective Inspector Crisafulli, Chief Superintendent Cullen and Mr Butler, where the nature of and the reasons for the Commissioner's concerns were explained.
Detective Inspector Crisafulli and Chief Superintendent Cullen were cross examined and a video of parts of the 2014 march was played. There, marchers of various ages could be seen walking, some with dogs, interacting with police, at times with some difficulty, carrying various banners, some with offensive slogans. Many of the marchers, including Mr Jackson in the sound van were loudly chanting "fuck the police".
Mr Jackson gave evidence about what could be seen on the video, explaining that he did not consider the chanting offensive, given views held about police, particularly those stationed at Redfern Police Station. He also called evidence from Mr Bray about one incident in 2014. A statutory declaration provided by his wife, Mrs Bray, who had also witnessed that incident, was tendered.
Neither Detective Inspector Crisafulli or Chief Superintendent Cullen had been involved in the earlier marches. Their evidence rested on information provided by other police officers, what was contained in police records, some of which were attached to Detective Inspector Crisafulli's affidavit and what could be seen on the video.
From Mr Jackson's cross examination, it was apparent that he did not agree with all that was contained in those reports. He challenged Chief Superintendent Cullen's understanding, that there was an anti-police sentiment attached to this march and that some elements would not only ignore police directions, but deliberately commit criminal offences. Nevertheless, the evidence which Mr Jackson himself later gave supported the conclusion that not all of those attending would march peacefully and that some could conduct themselves in the way Chief Superintendent Cullen was concerned about.
On Detective Inspector Crisafulli's evidence, if the march proceeded as proposed down George Street, police would attend to maintain public order; to allow the participants to pass along the route, so as to create minimal disturbance to vehicles and pedestrians; and to ensure safety, including that of the participants, the general public and police. Police would, however, continue to seek to persuade participants not to follow that route, including by seeking to prevent the marchers turning into the proposed route down to George Street, and to direct the march to the alternative route the Police had proposed, in the Waterloo and Redfern areas, where it had been conducted prior to 2013.
On Mr Jackson's evidence, that would not be accepted, because it was considered important to pursue the new route through the CBD, in order to maximise publicity for the march and the justice it seeks to achieve for TJ Hickey and his family.
In the result, the application had to be decided on the basis that there was likely to be a disagreement on 14 February about the route to be followed, with the likely result that those who proposed to march, would proceed down George Street as they had planned.
In that event the plans described by Detective Inspector Crisafulli would be implemented. They involved highway patrol vehicles leading and following the procession, stopping five times while speakers addressed the up to 500 marchers expected to participate, including the young and the elderly, as well as three vehicles carrying those who could not walk the 4.8 km distance. There were some concerns about the ability of the drivers of those vehicles to participate safely in the march, in the expected conditions and concerns shared by Chief Superintendent Cullen and Mr Jackson, about the safety of those on the footpaths and road.
On Detective Inspector Crisafulli's evidence, while the police presence would kept as low as possible, a traffic supervisor and police motorcyclists would be required to provide support during the march, particularly in closing major cross streets along George Street. Police push bike riders would be required to manage traffic; and other police to contain the marchers to the footpath and the kerbside lane, while police occupied the second lane or dividing line, to ensure that participants and police were not struck by other vehicles.
There were not only concerns that participants would not obey reasonable police directions and extend beyond one lane of traffic, as had occurred in the march in 2014, but that others affected by the march would become impatient and put themselves and others in danger. There were also considerable concerns as to how the marchers would affect and interact with other pedestrians and traffic along the route and how they and the police officers required to be involved could be kept safe, particularly at public transport hubs, where considerable numbers of people would be coming onto George St.
On Mr Jackson's evidence, there was a proper basis for such concerns, given various incidents which had occurred during the 2014 march, both when marchers had strayed beyond the designated lane unintentionally and when confrontations between some marchers and police had put them in danger.
Mr Bray had witnessed one incident in 2014 between a police officer riding a cycle and a marcher. Mrs Bray had also witnessed that event. What they had witnessed departed in various respects from the police record of what appeared to be the same incident. On Mr and Mrs Bray's accounts, it was the police officer, not the marcher, who had caused that altercation, which had not involved the police officer being knocked off his bike, as was recorded in the police report.
Mr Jackson had not himself witnessed that event, but he had witnessed others, which on his evidence reflected that, in 2014, whatever happened in this particular incident, there had that year been a significant departure from the orderly and peaceful way in which past marches had been conducted. That had been the result of the involvement of a group of people who had not merely joined in the chanting of "fuck the police".
Mr Jackson, who was in the sound van, giving marchers directions, explained that some who had joined the march had carried banners which even he found offensive. Some of those people had engaged in inappropriate conduct, refusing to comply with reasonable police directions, directed to ensuring marchers' safety.
There were fortunately no resulting injuries, even when marchers and police strayed into the path of oncoming traffic and no arrests, although four attempts were made, but not pursued, because of the reaction of other marchers. Unquestionably, nevertheless, both police and marchers' safety was put at risk in 2014. There had been some similar difficulties in the January 2015 Invasion Day march.
On Mr Jackson's evidence such marchers were not welcome to participate in the 2015 TJ Hickey march, but he could not control their attendance or behaviour. Indeed, on his evidence, if they did attend, he expected that the police might have to intervene and exercise their powers to control them.
It was thus apparent from the evidence that despite Mr Jackson's views as to the antipathy of police officers to the march over many years now, especially on the part of those stationed at Redfern Police Station, and their desire to stop the TJ Hickey march completely, up until this year, the annual marches held to commemorate TJ Hickey's death had not been opposed by the Commissioner. That position altered this year, following the problems which arose during the 2014 march and the Invasion Day march this year. Even in 2015, however, it was the route and safety concerns which had led to this application, not the march itself.
In the result I was satisfied that the evidence as to recent past experience provided a proper basis for the safety concerns held by the Commissioner in relation to the 2015 march, particularly given the considerably different circumstances prevailing on the proposed new route.

The result of the balancing exercise

The balancing exercise which s 25 required be undertaken had to commence with proper regard for people's democratic rights, to which I earlier referred. In this case there also had to be great sympathy for the underlying purpose of the march, which I accepted was genuinely shared by Mr Jackson, Mrs Hickey, who was again to lead the march as she has in past years and by other members and supporters of the ISJA. That they intend to continue to pursue this annual march in a peaceful way, also had to be accepted.
Also to be considered was that this was the first occasion on which an application under s 25 had been made. It followed the departure in 2014 from what was up till then, on the evidence, peaceful, relatively safe and ordered marches, with no-one arrested or injured. It was made in a context where an entirely different route was proposed to that which had been followed in earlier years, one which would generate potential safety risks not encountered in previous marches, given the large numbers of marchers and other people who would inevitably come into contact with each other along that route, contact which would have to be managed by police if that safe record was to be maintained,.
There was also this year no opposition on the Commissioner's part to a march being held. Rather, it was the route of the march and the safety concerns which it posed, particularly in George Street, which led to the Commissioner's objection and this application. Alternative routes had been proposed, as well as a suggestion that marchers avoid George Street and travel to Circular Quay from Redfern by train, so that the commemoration could conclude there, but those suggestions had not been accepted by Mr Jackson and the ISJA.
The reason was, Mr Jackson explained, the desire to maximise the publicity which the march will attract, in order to generate understanding of its purpose, namely the pursuit of justice for TJ Hickey and his family and the families of other Aboriginals, who have died in custody. That desire, understandable as it may be, was one, it could be expected, also likely to attract the participation of those marchers who had caused considerable problems during the march in 2014 and the 2015 Invasion Day march.
There was thus a real prospect that during the 2015 march, like during those marches, some participants would not march peacefully, or comply with police officers' reasonable directions, with the result that breaches of the peace, violence and other unlawful conduct would occur again.
Mr Jackson still did not agree that the alternative route which the Commissioner proposed was appropriate, given the publicity which was sought to be generated by this year's march. He considered that if trouble, arose as was likely, that was not within his control or that of the ISJA and so would have to be dealt with by police. Nor did he accept the conditions suggested to be appropriate, namely that participants remain on the footpath and where this was impracticable, that they use the kerbside lane of the road; that no vehicles be used; and that the march should end by 2 pm, which he considered neither safe nor practical. Indeed, he considered that the marchers required two lanes, in order to march safely.
That too, gave rise to obvious difficulties. The proposed route was the longest yet pursued during these marches, of some 4.8 km, commencing in Waterloo, through Redfern to the CBD, along George Street down to Circular Quay. The march was thus to move along streets ordinarily used by emergency vehicles accessing the CBD, as well as by buses and other vehicles. Chief Superintendent Cullen's evidence that it was not feasible simply to close George Street during the entire march had to be accepted, given that no arrangements had been made for such a closure. As Detective Inspector Crisafulli explained, George Street had to be kept open for use by buses and emergency services. Had the organisers wished to achieve the closure of George Street during the march, other steps should have earlier been taken, as they have been in the past, for other events.
Also necessary to consider was that Saturday 14 February, also Valentine's Day, fell this year on a weekend after the resumption of school. While there was likely to be less traffic generally that day than during the week, it could reasonably be expected that traffic along parts of the route would still be considerable, given Saturday morning sporting activities being pursued, which typically generates considerable traffic.
George Street is, of course, also a major bus route into the city, which other members of the community were likely to be using in greater numbers than usual, given other activities occurring on 14 February in the city. This also had to be considered. That day there were likely to be many members of the community and visitors in the CBD, shopping and attending Chinese New Year celebrations. There was also a cruise ship due to leave Circular Quay at 4 pm, with embarkation commencing from 12 pm. In the result there would be considerable numbers of additional people in the locality where the march was to end, some of them having to manage their luggage.
The march was due to commence at 10:30 am at Waterloo. Contrary to Mr Jackson's understanding, George Street was not to be closed that day to cars. Road closures were planned for streets surrounding George Street from 2 pm and clearways for other streets, including a part of George Street, from 1 pm, for the Chinese New Year celebrations. On Chief Superintendent Cullen's evidence, the march was unlikely to finish until after 1:30 pm, even if the proposed stoppages were strictly kept to, which seemed unlikely, given the length of the route, the proposed speakers, the young and elderly involved and what had occurred during such stoppages in 2014.
The result was that as well as those involved in the march and police, there were to be considerable numbers of other vehicles and other people using the CBD at the same time, along the route of the march, who would all have to be managed by police. It thus appeared that the march could not only cause real disruption to traffic, for a considerable time over the course of a very busy Saturday in the CBD, but also real inconvenience and disruption to others going about their normal affairs. Disruption alone, of course, was not a proper basis for making the order sought, but the real risks to safety posed by what was proposed, also had to be taken into account.
On Chief Superintendent Cullen's evidence, the route, which is crossed by major intersections, has footpaths with obstacles and trip hazards for pedestrians and limited numbers of lanes for vehicles, reducing to two in each direction for a considerable distance, commencing at the Queen Victoria Building. There are also major public transport hubs, where other pedestrians access to George Street, near proposed stops along the route.
Chief Superintendent Cullen, an expert in crowd control, had walked the proposed route, which he said wold involve the longest protest march in the CBD in history. He explained the nature of the resulting concerns held in relation to risks to safety arising during the march and how they could be managed. He assessed that the march would take at least three to three and a half hours to complete. That, on other evidence, including as to the likely length of the proposed stoppages, was likely to be an underestimate.
The vehicles involved in the march would be travelling at about 5 km per hour, while other vehicles would be travelling at considerably higher speeds. At points along George Street, the road would be restricted to one lane north for buses, emergency and other vehicles, if the footpath and one lane of road was used. It followed that if marchers walked along two lanes, as Mr Jackson envisaged to be necessary at some points, north and southbound traffic would be disrupted. Police officers involved would also have to occupy a southbound lane, increasing the disruption and risk of collision. That marchers would realistically then be quickly able to move, if they had to, to allow emergency vehicles to pass, as Mr Jackson said would be their civic duty, seemed doubtful.
The possibility of traffic in southbound lanes also being disrupted thus appeared to be real, given Mr Jackson's evidence that during the Invasion Day march, when he had considered it not safe to comply with police directions, he had told people to disobey those directions.
The resulting concerns Chief Superintendent Cullen described included the possibility of crowd crush or crowd collapse occurring, given the number of people expected to be involved in this march, those entering and leaving train stations and bus stops and the likelihood that the marchers would not all be marching peacefully, or prepared to abide by reasonable police directions to ensure their safety and that of others present.
I was satisfied on the evidence that those concerns had to be accepted as having a real basis. Given the route proposed, the number of likely marchers and others, as well as vehicles present, it would not be possible to keep marchers to the footpath; there was a real risk that they would stray into the second lane of George Street; that interactions between other pedestrians, marchers and police along the route were likely to arise; with the result real risks to safety materialising, especially where the road drops to only two northbound lanes.
Also necessary to be weighed in the balance was that it was apparent from the history of this march and others conducted in Sydney in the past, without objection by the Commissioner, that there is real support for members of the Aboriginal community and concerns which they and many other members of the community hold about TJ Hickey's death and the deaths of others in custody. Indeed, it seemed to me that it should be accepted that such concerns are widely shared and that members of the community were likely to have real sympathy for the purpose of this march.
It followed that while other people might unquestionably feel frustrated by the inconvenience likely to be caused to them by the march through the CBD, they were generally not likely to deliberately breach the peace, simply as a result of that inconvenience.
The situation could well be different, however, if the problems which occurred in 2014 were to occur again this year during the march, when police directions given to deal with the safety of people marching on the road were not complied with. That possibility also had to be considered in circumstances where even those intending to march peacefully, including on his own explanation, Mr Jackson, felt that there was nothing wrong or offensive with chanting "fuck the police" during the march, reflective of the anti-police sentiment which Mr Jackson described.
I did not consider that members of the community would generally support that sentiment. To the contrary, it seemed to me that the work which police officers are called on to perform in protecting the community has wide public support. It might thus be expected that other people present would not have much sympathy for people marching through the CBD, chanting as they were in 2014, "fuck the police". That might have a negative impact on their patience with the marchers and the disruption they would cause for a considerable time, throughout the CBD.
Also necessary to be considered was that it was apparent that Mr Jackson and those who organise the march would be in no position to effectively direct or control the conduct of those who participate in the march, or their interaction with the police, or with other members of the community. It was the Commissioner's case that in the 2014 march, Mr Jackson had ignored police requests about keeping the marchers to the footpath and actively encouraged them to walk on the road. He denied that this was so, it being his voice which can be heard on the video directing marchers to keep over, as well as joining in the chanting. Plainly that was not effective, as he himself described. Further, on his evidence, during the 2015 Invasion Day march, when he thought safety required it, he directed marchers to ignore police directions. There had also been problems in communicating with him, because of the noise.
As well as these difficulties there was no question that during the 2014 march, some of those who marched not only carried offensive anti-police barriers, joined in chanting anti-police messages, and did not comply with police directions, some police were assaulted and pushed into oncoming traffic.
The important democratic rights to peaceful assembly and demonstration and freedom of speech, which all members of our community share, had to be weighed in the balance, as I have explained. Those rights do not, however, it had to be remembered, include the right to engage in violence or other unlawful conduct, even when particular views are strongly held, including in relation to past conduct of members of the police force. Our shared history also demonstrates that our community does not support those who pursue such behaviour.
Such unlawful conduct not only posed significant safety risks along the route proposed for the 2015 march, any such attack on members of the police force assigned to duties involving the march, was also unlikely to have either the sympathy or support of other members of the community present. That could unquestionably also have had an impact on the conduct of those affected or inconvenienced by the march, making the work which police officers would then have to perform during the march to ensure safety more difficult.
Refusing the order sought would not have protected those who engaged in such behaviour from the consequences which would follow from any violent or other criminal conduct. Still, there was good reason why they should not have the benefit of the protections provided by s 24 of the Act, which would flow if the order sought was refused.
It followed that while I accepted that Mr Jackson and members and supporters of his association were well intended and intent on pursuing a peaceful and non-violent march, as occurred before 2014, what was proposed for the 2015 TJ Hickey march, had regrettably been shown on the evidence, to give rise to very significant risks to safety. That had to tilt the balance towards the grant of the order sought by the Commissioner.
The evidence established that the route proposed for the 2015 March raised safety concerns which had not arisen in the past, given the likely number of marchers, the vehicles proposed to be involved, and the greater than usual numbers of other people likely to be present in the CBD on 14 February, along the new route. Those concerns were exacerbated by the likely presence of marchers not prepared to march peacefully, or to comply with reasonable police directions, designed to ensure their safety and that of others present.
Along this route, if marchers did not keep to the footpath or the inside lane of the road, there would not only be serious resulting traffic disruption, but real risks to the safety of other marchers, police officers and other people present. Any failure by anyone present then to comply with police directions, would exacerbate the possibility of such risks materialising.
In the result, in all of the circumstances, I was satisfied that the balancing exercise required to be undertaken did not permit the order sought to be refused. To the contrary, its refusal might have given encouragement to behaviour which could give rise to the real risks to safety which I have discussed materialising.
Given that there were alternatives to the proposed route available, which did not give rise to the risks which the proposed route posed, I was well satisfied that the discretion to make the order sought had to be exercised. A desire to attract increased media attention for the aims of the march, understandable as that was, was not a proper basis for refusing to make that order.

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: 20 February 2015

Public Assemblies Act 1979(NSW)

Summary Offences Regulation 2010(NSW)

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Judgment (7 paragraphs)

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