Commissioner of Police (NSW Police Force) v Joshua Lees

Cases Cited: Bassi v Commissioner of Police (NSW) [2020] NSWCA 109; 283 A Crim R 186
Commissioner of Police (NSW) v Gabriel [2004] NSWSC 31; 141 A Crim R 566
Commissioner of Police v Bassi [2020] NSWSC 710
Commissioner of Police v Coglin [2024] NSWSC 1412
Commissioner of Police v Gray [2020] NSWSC 867
Commissioner of Police v Rintoul [2003] NSWSC 662
NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5

Category: Principal judgment

Parties: Commissioner of Police (NSW Police Force) (Plaintiff)
Joshua Lees (Defendant)

Representation: Counsel:
L Gyles SC / B Mostafa (Plaintiff)
F Graham / A Sapienza / M Hawila (Defendant)
Solicitors:
Makinson d'Apice Lawyers (Plaintiff)
O’Brien Criminal and Civil Solicitors (Defendant)

File Number(s): 2025/00291346

JUDGMENT

1. The defendant, Joshua Lees, is the organiser, on behalf of the Palestine Action Group (“PAG”) of a public assembly intended to draw attention to, and advocate in respect of, the worsening humanitarian crisis in Gaza. On 26 July 2025 at 7:51 pm the defendant served a notice of intention under s 23 of the Summary Offences Act 1988 (NSW) (“the Act”) (“form 1”) on the plaintiff to hold a public assembly, commencing at 1 pm on Sunday 3 August 2025. The notified public assembly includes a procession from the Sydney CBD to North Sydney via the Sydney Harbour Bridge. An estimate of 10,000 people was provided. The assembly is currently an authorised public assembly: s 23(1)(f)(i) of the Act.

2. The plaintiff, the Commissioner of Police, seeks an order pursuant to s 25 of the Act prohibiting the holding of this public assembly. The hearing of the summons seeking that order came before me on an urgent basis in my capacity as Common Law duty judge yesterday afternoon. Evidence and submissions concluded at 5 pm. For the reasons that follow, the Commissioner’s application should be refused.

The statutory framework

3. The procedure for the holding of an authorised public assembly is governed by Part 4 of the Act. A public assembly is an “authorised public assembly” within the meaning of Part 4 if the requirements set out in s 23(1) of the Act are satisfied in respect of that assembly. Those requirements are as follows:

(a) Firstly, a notice of intention to hold the assembly, in the prescribed form (form 1) and containing the prescribed particulars, has been served on the Commissioner: s 23(1)(a)-(e). The notice can be amended by agreement between the Commissioner and the organiser of the assembly: s 24; (b) Secondly, if the required notice has been served on the Commissioner at least seven days before the date of the assembly, either:

(i) the Commissioner has notified the organiser of the assembly that they do not oppose the holding of the assembly: s 23(1)(f); or (ii) the assembly has not been prohibited by a Court under s 25(1): s 23(1)(f)(i).

4. That is, if the required notice has been served on the Commissioner at least seven days before the date of an assembly, as occurred here, the assembly in question will be an “authorised public assembly” unless and until a Court order is obtained under s 25(1) of the Act. The Commissioner has not notified PAG that the holding of the assembly is not opposed.

5. Section 24 of the Act provides that, if an authorised public assembly is held substantially in accordance with the particulars furnished in respect of it as required by s 23(1)(c), and cl 13(1) of Schedule 1 to the Summary Offences Regulation 2020 (NSW), a person who participates in such an assembly will not, by reason of that participation, be guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

6. The Commissioner seeks an order prohibiting the holding of the assembly under s 25(1) of the Act. If such an order were made, the assembly would no longer be an “authorised public assembly”: s 23(1)(f)(i). The consequence of that is not that the assembly would be prevented from taking place. Rather, the consequence would be that the immunity conferred by s 24 would not apply. As explained by Simpson J in Commissioner of Police v Rintoul [2003] NSWSC 662 (“Rintoul”) at [6]:

“Contrary to what might appear to be the case, given the terminology of the section, that is an order for prohibition of an assembly, the making of a prohibition order does not render the conduct of or participation in any assembly unlawful. … The making of a prohibition order merely deprives participants of protection that s 24 would otherwise afford them.”

7. Similarly, Hamilton J in Commissioner of Police (NSW) v Gabriel [2004] NSWSC 31; 141 A Crim R 566 observed at [1] that:

“The whole purport of the Part is not to prohibit public assemblies but, certainly in cases where they are a due exercise of the democratic right of free speech, to facilitate them by protecting participants in appropriate circumstances from prosecution for certain offences which might otherwise be regarded as having been committed.” (footnote omitted)

8. Section 25 of the Act is as follows:

25 Prohibition by a Court of a public assembly

(1) The Commissioner may apply to a Court for an order prohibiting the holding of a public assembly in respect of which a notice referred to in section 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.

(2) The Commissioner shall not apply for an order under subsection (1) relating to a public assembly in respect of which a notice referred to in section 23 (1) has been served unless—

(a) the Commissioner has caused to be served on the organiser of the public assembly a notice, in writing, inviting the organiser to confer with respect to the public assembly with a member of the Police Force specified in the notice at a time and place so specified, or to make written representations to the Commissioner, with respect to the public assembly, within a time so specified, and

(b) if the organiser has, in writing, informed the Commissioner that he or she wishes so to confer, the Commissioner has made available to confer with the organiser at the time and place specified in the notice—

(i) the member of the Police Force specified in the notice, or

(ii) if that member of the Police Force is for any reason unavailable so to confer, another member of the Police Force, and

(c) the Commissioner has taken into consideration any matters put by the organiser at the conference and in any representations made by the organiser.

(3) A notice referred to in subsection (2) (a) may be served on the organiser—

(a) personally, or

(b) by registered post, facsimile transmission or email addressed to the organiser at an address, specified in the notice served on the Commissioner under section 23 (1) (e) (ii), as an address for the service of any notice for the purposes of this Part, or

(c) by leaving it with any person apparently of or above the age of 16 years at a postal address so specified.

9. The Commissioner has served notice and conferred as required by s 25 of the Act such that the Court has jurisdiction to make the order sought.

10. As explained by Adamson J (as her Honour then was) in Commissioner of Police v Gray [2020] NSWSC 867 (“Gray”) at [45], the Act does not identify relevant criteria for the making of an order under s 25, but the “approach consistently taken by this Court in determining such applications” is in accordance with the following extract from Simpson J’s judgment in Rintoul at [5]:

“…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.”

11. In an application by the Commissioner under s 25(1) of the Act, the Commissioner “in effect assumes the onus under s 25 of the Summary Offences Act of securing an order prohibiting the assembly”: Bassi v Commissioner of Police (NSW) [2020] NSWCA 109; 283 A Crim R 186 (“Bassi”) at [17(vi)].

12. The fact that a protest would cause significant disruption or inconvenience to persons not participating in the protest is not sufficient to justify the making of a s 25(1) order. As explained by Simpson J in Rintoul at [20]:

“Public facilities are to be shared and occasionally even a regular user has to give way to the claims of others. It is in the very nature of the entitlement to peaceful protest that disruption will be caused to others. The fact that the proposed assembly is likely to cause significant inconvenience to residents of Pennant Hills and to individuals involved in the events at the park is far from determinative. If matters such as this were to be determinative, no assembly involving inconvenience to others would be permitted.” (footnote omitted)

13. The timing of a protest can also be relevant to the balancing exercise. It was a relevant factor in Gray, in which Adamson J stated at [69] that:

“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.”

14. Also of relevance are the powers of police to give directions in Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”). Without reciting the full terms of that part, a relevant distinction arises from the police power contained in s 197 to give a direction to a person in a public place if the person is obstructing another person or traffic, failure to comply with which is an arrestable offence, which is available only if the public assembly is not authorised. This power was sometimes referred to in the evidence and submissions as a “move on” order. The police have other extensive powers to direct people if necessary for public safety or in connection with possible criminal offending that are not affected by whether the assembly is authorised or not.

The evidence

15. Four affidavits were read for the plaintiff, and two of the deponents were cross-examined. An affidavit of Mr Lees was read for the defendant, and he was cross-examined. The defendant tendered a bundle of documents primarily directed to demonstrating the scale of public support for the march. The plaintiff tendered a document indicating that there is some public criticism of the organisers of the march. There was further evidence adduced by the plaintiff that an unauthorised assembly is anticipated at the Warringah Freeway entrance to the Sydney Harbour tunnel on Sunday 3 August 2025 at 2 pm. Because notice was served less than seven days before that proposed assembly, it is unlawful, and police will have power to direct any people so assembling to move on and arrest for non-compliance.

16. Josh Lees is 43 and has been involved in protest activism since 2003. He is one of the organisers with the PAG. PAG has conducted protests since October 2023. PAG has submitted a form 1 for each of the regular protests except for a number of snap rallies where there was not enough time, and for two early protests in October 2023 where they negotiated with police to hold rallies.

17. The stated purpose of the regular protests has been to show the Palestinian people that PAG stands against genocide, and to contribute to a global movement that will make it harder for Israel to kill and oppress Palestinians with impunity. Thirdly, PAG wishes to call on the Australian government to stop backing and arming Israel. More specific stated demands at the moment are to end Israel’s blockade of aid and the mass starvation of the Palestinian population, a permanent ceasefire, an end to the illegal Israeli occupation of Gaza, the West Bank, Lebanon and Syria, and for the Australian government to sanction Israel.

18. Mr Lees has been one of the organisers of the regular weekly or fortnightly protests that have occurred since October 2023, and has co-chaired many protests. This has involved being in effect the “master of ceremonies” - introducing speakers, making announcements, giving directions to the crowd and trying to keep proceedings running on time, in accordance with what had been submitted in PAG’s form 1.

19. Mr Lees’ unchallenged evidence is that the protests have always occurred in a welcoming, inclusive and family friendly environment. He describes the people attending feeling united, and there to support each other, with a strong sense of community. Between October 2023 and July 2025 there have been over 85 successful protests with his involvement, with little incident. These have usually occurred through the Sydney CBD streets.

20. The numbers at marches have varied. Mr Lees’ estimate is that routinely there have been 1,000 to 10,000 participants, but on occasion there have been 20,000, 30,000 or 50,000. The evidence for the plaintiff confirms recorded numbers of protestors in large numbers on occasion, such as 15,000 on 4 November 2023, 20,000 on 12 November 2023, and 10,000 on 6 November 2024, as well as the more regular smaller numbers as indicated by Mr Lees.

21. PAG has ensured that people’s safety is a priority, by seeking and obtaining authorisation and arranging clearly identified high visibility marshals present as well as legal observers and medical practitioners. People are co-ordinated in a way such that some have designated roles of communicating with police. He explained the marshalling team, the members of which help participants where necessary and guide the march, setting the appropriate pace with separation between marchers and passers-by. For some of the large marches there have been 50 marshals. There are 100 organised for Sunday, but this number can be increased. They will be clearly identified in high visibility vests.

22. Mr Lees explained that the marshalling team is now very experienced. There is a head marshal, and smaller marshalling teams headed by more experienced marshals who are positioned at particular areas around the protest as rally participants arrive, listen to speeches and march. They give directions and provide help; for example, if a child has lost their parent. Mr Lees and the head marshal will communicate before and throughout the proposed march on Sunday with police, as in previous rallies.

23. PAG believes in the power of numbers, and has worked hard to try to build a mass peaceful protest movement which embraces all who want to be part of it. Ground rules for protests are well established, with no racism of any kind, including antisemitism. This message has been put forward repeatedly through social media event pages and announcements at the protests. PAG have endeavoured to create environments where families, including children, can be confident to participate; and have always sought to avoid any confrontation, whether with police or individuals who seek to provoke any trouble.

24. Mr Lees’ evidence clearly indicates that PAG has developed a constructive relationship with NSW police, and they have had semi-regular meetings to resolve any issues that arise, which have been minor. There has been compromise on both sides. The police have frequently commented on the good relationship they have with PAG and how smoothly things have been run over the past two years. There are PAG police liaison representatives on protest days. They discuss in advance with police matters such as expected numbers and timing, and communicate during marches. The PAG organisers communicate with police by mobile phone. The marshals also use walkie talkies, and remain in ongoing contact with police during marches. Mr Lees’ evidence establishes that PAG will work with police to facilitate a safe and peaceful event for the proposed march on Sunday.

25. The only issues that have arisen from Mr Lees’ perspective are the occasional member of the public who has attempted to provoke a reaction at PAG marches, being people with “health issues” or opponents of their cause. Marshals have experience in de-escalating such situations where they have arisen, and PAG works with police in such eventualities.

26. Mr Lees’ evidence indicates that the timing of the lodging of notice of this proposed march, and its location, is directly responsive to the dramatic increase in the known suffering of Gazan citizens over the last weeks. He states “The March for Humanity is an urgent necessity demanded by the urgent situation in Gaza right now where at least 147 people have died from starvation and Gazan authorities warn that 40,000 infants under the age of 1 are at imminent risk of death due to the lack of baby formula.” He referred to very recent publications such as a Sydney Morning Herald article on 28 July 2025 entitled “Innocent life matters: the photographs of children that captured the worlds’ conscience.” On 29 July 2025 a statement was issued by the United Nations World Food Programme: “This is not a warning, this is a call to action. This is unlike anything we have seen in this century.” I accept his evidence that the timing of the proposed march, and the timing of the provision of the form 1 to the police, is based on his view that “We are at a critical moment on the issue of Palestinian rights, not only due to the crisis in Gaza itself, but also due to the raised awareness of that crisis brought about by the horrific images published in the media recently.” When it was suggested to him in cross-examination that he lodged his form 1 when he did to obtain a benefit of the legislative framework, he compellingly explained that instead of this it was because of the need for urgent response at this point in time.

27. Mr Lees’ evidence indicates that the interest in the rights of Palestinians is widespread in the community, given what is happening in Gaza. In recent times, with the reporting of starvation and the lack of aid being delivered into the Gaza strip, support in the Australian community has been growing. Documentary material tendered for the defendant supports these contentions. Support for the event has swollen since the form 1 was lodged, such that although a 10,000 number estimate was provided, Mr Lees’ estimate yesterday was 50,000. A statement seeking support for the March for Humanity issued on 27 July 2025 has been publicly endorsed by a great number of people and organisations, including the Council of Civil Liberties.

28. The PAG has offered to negotiate with police a delay for a number of weeks, or change of commencement location for a walk across the bridge, if this is regarded as of assistance for safe planning. However Mr Lees’ opinion is that every moment of delay will result in lives being lost, such that the PAG strongly wishes to march this weekend.

29. The Sydney Harbour Bridge has been selected because of the same considerations. The decision to march at this location is motivated by the belief that the horror and urgency of the situation in Gaza demands an urgent and extraordinary response from the people of the world.

30. The evidence indicates that there is significant support for the march. Hundreds of organisations have endorsed the march, including Amnesty International, the Jewish Council of Australia, various churches, the Nurses and Midwives’ Association and other trade unions, and 15 members of Parliament, for example.

31. The plaintiff’s evidence includes that of Acting Assistant Commissioner Adam Johnson. He is the Commander of the Central Metropolitan Region. He has been a police officer for approximately 35 years and has responsibilities for organised and serious crime and public order. He has had extensive experience with public order management, including public assemblies during COVID in Auburn and Bankstown. He had involvement with Climate Change and Black Lives Matter assemblies as Operations Manager, and the ongoing PAG assemblies since June 2024.

32. Acting Assistant Commissioner Johnson explained “Operation Shelter”, established by NSW police in response to public assemblies occurring virtually weekly since October 2023 as a consequence of events in Israel and Palestine and elsewhere in the middle east. This was established to protect the public and facilitate the orderly conduct of these assemblies, recognising the right of free speech in a civil society. Operation Shelter has conducted high visibility policing operations at public assemblies, as well as engaging with various community groups to make decisions about public assemblies in the interest of public safety. NSW police have had a presence at over 100 public assemblies arranged by PAG since October 2023. Nearly 20,000 police have been deployed at assemblies organised by PAG since October 2023. Since the establishment of Operation Shelter in October 2023 there have been more than 1078 assemblies throughout NSW in response to the conflict in Israel and Palestine, with police committing resources to all of them.

33. Assistant Commissioner Johnson confirms that the behaviour of attendees at these public assemblies has been largely peaceful. He describes some instances of antisocial behaviour, which have resulted in 140 arrests. Examples include a PAG march early in the time frame, on 9 October 2023, when an Israeli flag was burnt and a flare thrown in the direction of police, and another occasion, also in October 2023, where there were chants at a rally which were interpreted by some as antisemitic. He referred to an irate participant at a march in August 2024 who was being held back by PAG members, and was allegedly trying to threaten or assault or intimidate a member of the public. Police ordered the person to move on. There was an instance in 2024 when there was an alleged display of a prohibited terrorist symbol, and some other instances of displays of symbols against the law. Since October 2024, 8 individuals who have been in attendance at PAG assemblies have been charged. The charges laid have included the display of Nazi symbols without excuse. He described an arrest to prevent a breach of the peace in relation to the conduct of a person who was opposing a PAG rally. He described a particular rally in September 2024 when Hezbollah flags were displayed by some attendees. He described an example of a protestor being issued with a move on direction in recent days. I have had regard to the summary of charges arising from these events set out in his affidavit.

34. In relation to the march proposed for this Sunday, he has serious safety concerns in relation to the proposed procession, summarised as follows:

“a. There appears to be limited planning by the organiser in relation to the proposed public assembly;

b. While the Form 1 indicates that approximately 10,000 people will be attending the proposed Public Assembly, the defendant has indicated to the media (as reflected in Exhibit AJ-1) that he encourages up to “100,000” individuals to be in attendance. This creates real uncertainty with respect to policing such a large event;

c. The route proposed to be followed is along busy roadways, and the defendant proposes that some of these lanes of traffic stay open. I have serious concerns in relation to the potential that traffic verges from designated areas and there are pedestrian/vehicle accidents;

d. The defendant has not indicated whether there are any safety plans in place. For example, it is not apparent whether there will be any marshals to ensure attendee safety and compliance;

e. It is not clear whether the defendant has considered the ingress and egress of attendees from the proposed start and end locations of the procession. I am concerned about the capacity of public transport to safely move the attendees in and out of the start and finish points;

f. The notice that has been given in relation to the proposed public assembly has been just over one week. I hold grave concerns in relation to the ability of stakeholders and police to make adequate arrangements to ensure safety of participants. This includes, for example, Transport for NSW, NSW Health, local business adversely affected, residents of the areas that will need to be closed off; and the general public who would be affected with plans to travel that route during this time;

g. The proposed route over the Sydney Harbour Bridge means that further strain will be put on alternate routes across the Harbour. I am concerned that potential gridlock in the tunnel or other roads may mean that emergency vehicles are unable to provide assistance in medical emergencies;

h. Even if the organisers did not propose to close the Sydney Harbour Bridge, the proposed public assembly will likely result in Transport for NSW making a decision to close the Harbour Bridge due to the risk of incidents between pedestrians and vehicles using the Harbour Bridge.”

35. Acting Assistant Commissioner Johnson also estimated that Lang Park has capacity for no more than 1,000 people, and that 10,000 people gathering there will result in spillage of attendees onto the surrounding footpaths and roads.

36. The witness stated further that police presence is partly gauged depending on the number of attendees, and the uncertain nature of the volume of people attending the public assembly makes planning for an event of this scale, involving the wholesale closure of major public infrastructure, very difficult. He considered a proposal made by Mr Lees of leaving lanes open on the Sydney Harbour Bridge to enable the flow of traffic, including emergency services, but believes this is not practical. He expressed concern about the ability to manage the safety of attendees in such circumstances, particularly in light of the absence of physical barriers on the bridge.

37. The following paragraphs are contained in Acting Assistant Commissioner Johnson’s affidavit:

“As a delegate of the Commissioner, I oppose the proposed public assembly and seek an order prohibiting it as I am concerned that if they are permitted to proceed, they pose an unacceptable risk to attendees, other members of the public and police officers.

I understand that an order prohibiting the public assemblies will not mean that people cannot attend the city and engage in protest behaviour. However, it will ensure that police officers have the full suite of police powers available to them to move people on in the event of antisocial behaviour or other conduct which might result in violent escalation. This will include directing the participants away public roads in the public assembly in the event they attempt to encroach on them.”

38. The affidavit also noted that the current National Terrorism Threat level for Australia is “probable”.

39. In cross-examination Acting Assistant Commissioner Johnson agreed that whether the event is authorised or not, police will have full powers to make arrests in the event of criminal conduct of the kind he explained had on occasion occurred at previous protests, and to prevent breaches of the peace, and to make move on orders for public safety reasons.

40. He was asked a number of times to explain what it was that police were suggesting would occur differently if the event was prohibited, and did not provide a tangible answer. He said there would be a large number of determining factors. He confirmed that if the event remains authorised police will have appropriate powers to arrest for antisocial behaviour. His evidence did not include the suggestion that if the event is not authorised police anticipate making arrests for people attending, obstructing traffic and so on. When specifically asked in cross-examination whether he was suggesting that a prohibition order was sought to facilitate this, he said “not generally”, and that arrest would only be as a matter of last resort if necessary to protect public safety. He expressed the view that a prohibition order may encourage less people to attend.

41. Acting Assistant Commissioner Johnson confirmed that the Harbour Bridge will have to be closed to vehicles for public safety whether the event is authorised or not authorised. There will inevitably be other road closures as well. This will require multiagency co-operation.

42. Acting Assistant Commissioner Johnson confirmed that move on orders, if believed to be necessary for public safety, will be able to be issued whether the event is authorised or not authorised. He agreed that putting aside offences such as obstructing traffic, police will retain the full powers they have to arrest for criminal conduct whether the event is authorised or not authorised.

43. A Chief Inspector in the NSW Police Force, Brian Yates, has a background in public order management. He is a Manager for Events Planning and Delivery, and works on all major and hallmark events such as Australia Day, New Year’s Eve, Mardi Gras and ANZAC Day. He is concerned about the lack of planning or involvement of relevant stakeholders. By contrast, for example, planning for New Year’s Eve typically commences 8 months prior to the event taking place. He gave evidence of the typical time frame including the meetings that occur 4-6 months out, then four months out from New Year’s Eve. The engagement of the NSW police force and other relevant stakeholders was described as imperative to ensure that there are adequate protections, plans and contingencies in place for the event attendees, workforce, and members of the general public.

44. Chief Inspector Yates gave evidence of the significant impact on police staffing of events of this kind. He has awareness of the weekly protests that have been held for a little under two years, and described the proposed assembly as presenting significantly different challenges and more onerous planning and logistical requirements than the regular weekly protests. He expressed concern that the number participating will exceed 10,000. He concluded by expressing real concerns in relation to the limited planning and discussions with key stakeholders that have taken place. He said that he would expect that for an event of this nature, discussions with NSW police and relevant stakeholders would have occurred many months ago, and there would be significant planning of the event itself and consideration of contingencies to ensure public safety.

45. Matthew Wormald, the Acting Assistant Commissioner of Fire and Rescue NSW, in the Operational Capability command, is responsible for operational communications, capability management, technical capability and operational logistics. He outlined the risks to Fire and Rescue NSW operators should the proposed public assembly proceed.

46. Closure of Sydney Harbour Bridge impacts Fire and Rescue dispatch decision making and operational planning. Emergency vehicles will be required to re-route, which may result in increased response times. He stated that while alternative routes may be available, that does not mean they are practical or available to provide a timely response to the request for assistance.

47. Mr Wormald also explained the risk on the bridge because of the rail corridor with timber sleepers which are flammable.

48. Also explained by Mr Wormald’s evidence was the fact that mitigation plans for community events usually take weeks to months to be fully developed. His evidence was that it was not possible for Fire and Rescue to fully develop a safe operational management plan to deal with the event proposed in the form 1 on seven days’ notice. An unpredictable scale of participation gives rise to risks of increased congestion.

49. Mr Wormald indicated that with the limited time available, Fire and Rescue will need to deploy at least one appliance at either end of the bridge near the north and south pylons. They will position their crews prior to the road closures to avoid the crews being caught up in the congestion caused by the road closures, and release crews to normal duties as soon as the potential for an incident has passed.

50. An affidavit of the Executive Director Operations Planning in the Coordinator General Branch of Transport for NSW (TfNSW), Grant Knoetze, was also read, and he was cross-examined. Mr Knoetze provided evidence of the roads surrounding the proposed route that will require closing during the event to stop vehicles entering the Sydney Harbour Bridge.

51. He described cogently his opinion that TfNSW has safety concerns for the event due to the absence of any evidence of detailed planning by the organisers, and limited consideration given to identifying safety risks which result from the closure of the Sydney Harbour Bridge and major road corridors, or development of plans to manage such risks. Typically, planning for such events involves installing fences and other steps. Months of advance notice have been involved in planning the closure of the Sydney Harbour Bridge.

52. Mr Knoetze gave evidence that Lang Park is a small park in the Sydney CBD and the overcrowding will likely interfere with the safe movement of vehicles, pedestrians and bus services in surrounding streets. The routes around Lang Park include a key bus route. The buses will need to park in surrounding streets for the duration of the march which will cause local traffic congestion.

53. Mr Knoetze’s evidence is that in order to ensure the safety of protesters, TfNSW will close roads that are within the vicinity of the proposed route, as the safety concerns are far too great. He estimates that to complete the procession with 10,000 people will take in excess of 3 hours for the procession to reach its destination.

54. Mr Knoetze’s evidence is that all access to the Sydney Harbour Bridge will be halted, as TfNSW does not consider that limited access (for example leaving a few lanes open) will mitigate safety concerns. The risks are too great, given the lack of physical barriers between lanes on the Bradfield Highway. He explained safety concerns in the event that a flare is released in the rail corridor.

55. Sydney Harbour Bridge approach roads are high speed environments, and Mr Knoetze explained that warning signs and roadside messaging are required. Usually, special event signage is in place 10 days prior. Mr Knoetze agreed however that signage will be able to be implemented.

56. Mr Knoetze gave evidence also of the impact on the Sydney Harbour tunnel, and significant queuing, and the disruption that will be caused in the re-routing of heavy freight vehicles. The North Sydney transport precinct will also be significantly disrupted.

57. Mr Knoetze gave further evidence of safety concerns for the manner in which the number of people anticipated will leave the event and utilise public transport and roadways.

58. Mr Lees’ evidence indicates that the march will proceed whether it is authorised or not authorised. He made reference to the 2020 prohibition order of this Court in relation to the Black Lives Matter rally at Town Hall, following which 20,000 people nonetheless attended. The Court of Appeal reversed the order 10 minutes prior to the march. Mr Lees’ experience in activism for two decades and his knowledge of the current support voiced to PAG suggests the groundswell of support in the community for the March for Humanity is much greater. The documentary material for the defendant supports his view as to the enormity of support. Mr Lees regards it as highly desirable in the current circumstances that the public assembly is authorised so as to provide structure, support and safety to those who are keen to participate, to members of the public, and police.

The parties’ submissions

59. Submissions for the Commissioner emphasised that the proposed march is on an unprecedented scale, with high risks, and inadequate time to prepare. Comparison was advanced with the decision of Lindsay J in NSW Commissioner of Police v Keep Sydney Op**en Ltd [2017] NSWSC 5, and it was submitted that the defendant should be able to provide the Court with a high level of confidence as to what is to occur, but has not done so. It was submitted that closures of the Harbour Bridge are extremely rare and usually well planned and with regulated numbers such as the ticketed event in recognition of WorldPride. It was submitted that the evidence clearly proved that there will be substantial disruption. It was submitted that risk assessment of major events is of fundamental importance, and is not understood adequately by the defendant and the PAG. The risk of opponents causing problems was raised.

60. Reliance was placed upon the decision of Fagan J in Commissioner of Police v Coglin [2024] NSWSC 1412 regarding the importance of public safety. It was submitted that if ever there was an event requiring more than seven days’ notice it is this one.

61. The Court was reminded of the evidence that many months are taken to plan Harbour Bridge events. It was submitted that I would be comfortably satisfied the risks well outweigh the right to public assembly, to justify making the order. It was submitted that the Court should not endorse or facilitate the risks to public safety that are demonstrated by the evidence. It was submitted that if the order is not made the Court would be condoning violent scenes, traffic gridlocks, ambulances not getting to where they need to go and other undesirable consequences.

62. For the defendant, the established history of PAG co-ordinating constructively with police was emphasised. The evidence was said to indicate the certainty of the march proceeding, and it was submitted that authorisation was conducive to greater certainty and structure. The Court was reminded that the decision to be made is not about stopping the protest, but whether protestors should lose their immunity from prosecution provided by s 24 of the Act.

63. The case before the Court was contrasted with a foreshadowed protest that was likely to involve a breach of the peace. The importance of the timing of this event in light of world affairs was emphasised, with the evidence showing the momentum of public support for the defendant’s cause.

64. It was submitted that prohibition is not likely to act as a deterrent for attendance, and could in fact increase public interest as well as creating uncertainty in relations between participants and police. Reference was made to the decision of Fagan J in Commissioner of Police v Bassi [2020] NSWSC 710 at [32] regarding deterrence, whereas 20,000 in fact turned up anyway. It was submitted that the concern in the current circumstances is much stronger.

65. The prosocial nature of the supporters of the march was emphasised, in terms of the consideration of public safety and also the inappropriate use of removing their immunity, in circumstances of such significant groundswell in the community for the cause of this particular march. It was submitted that the Court would be confident that the police and PAG will work together towards a safe event if the march remains authorised. It was submitted that the evidence for the plaintiff does not indicate any risk reduction by prohibition. The range of police powers for unlawful or antisocial conduct of concern to Acting Assistant Commissioner Johnson was referred to.

66. Senior Counsel for the plaintiff and counsel for the defendant assisted the Court with explanation of the statutory framework of the Act and interaction with Part 14 of LEPRA, and relevant caselaw concerned with making orders of the kind now sought.

Determination

67. The difficulty for the Court in balancing the relevant interests I have identified above, in discussing the statutory framework, is that they both weigh a lot. The public interest in freedom of expression and assembly at this time, in the manner contemplated, for the reasons advanced, is very high. The public interest in not being disrupted or having safety risked, to the extent identified in the evidence, is also very high.

68. The evidence establishes that ideally a year or many months of planning would have made this Sunday’s event more safe, and more predictable; and there are multiple highly experienced stakeholders with well-founded concerns about a march on the Harbour Bridge at such short notice. However the evidence also establishes that a year or many months planning is not a practical reality in the circumstances in which this particular exercise of freedom of expression is sought to be achieved.

69. I find important the extensive evidence of the high level of PAG commitment to and experience in prosocial protest, the expertise of their organisers and marshals, and the significant history of their active communication and co-operation with police. The prosocial nature of the supporters for Sunday’s march is important. The extensive powers available to police, whether the march is authorised or not, is important.

70. The evidence indicates that whether the march is authorised or not authorised the Sydney Harbour Bridge will be closed to vehicles on Sunday, as will roads otherwise surrounding the proposed route. Had there been evidence suggesting that public safety will be enhanced by a prohibition order that would also have been an important factor in my consideration; but there is no such evidence. I am not satisfied on the evidence before me whether there are likely to be more or less people in attendance if the assembly is prohibited.

71. In all the circumstances the plaintiff has not established that the participants should not have the benefit of the immunity contained in s 24 of the Act. I am confident that PAG and its supporters will continue to work constructively with police to achieve as safe and smooth an event as possible. This may involve delaying the march by a number of weeks if that is what is agreed between the PAG and police, and is able to be done practically at this late stage.

72. I reject the submission, if I have understood it correctly, that if the Court does not make the order sought it is condoning scenes of violence and ambulances not getting to hospitals in time. This submission is not reflective of the nature of the balancing act required in this case.

73. I am not satisfied that I should prohibit the assembly.

74. The plaintiff sought costs in the event it was successful. Given the urgency of the matter I did not hear argument in relation to costs. For the reasons explained by Adamson J in Gray at [71] there may have been merit in not granting such an order even if the plaintiff was successful, and reason to grant costs to the defendant in these proceedings. However in the absence of argument on the matter I do not propose to determine that issue at this time, and will do so in chambers on receipt of submissions.

Orders

75. For the reasons given above, I make the following orders:

76. Refuse the plaintiff’s application for an order under s 25 of the Summary Offences Act 1988 (NSW) prohibiting the protest in respect of which the defendant served a notice in accordance with s 23(1) of the Act.

77. Otherwise dismiss the summons.

78. Order that the parties send submissions regarding costs within 7 days, to be considered in chambers.