Commissioner of Police v Langosch

Supreme Court of NSW|2012-05-14|Before: Adamson J

Introduction 1By summons filed in Court on 11 May 2012, the Commissioner of Police seeks an order under s 25 of the Summary Offences Act 1988 (the Act) prohibiting the holding of a public assembly arranged by the Al-Nakba Planning Committee proposed to be held on 15 May 2012 at 5.30 pm at Sydney Town Hall, with a following procession that is intended to proceed along George, Market, Pitt and King Streets. Patrick Langosch is a member of the Committee. As the named defendant, he appeared on his own behalf at the hearing of the proceedings. 2The basis on which the plaintiff sought relief was, essentially, practical. The plaintiff raised concerns as to the safety of protestors and pedestrians, arising from what he submitted was the significant interference with commuters endeavouring to leave the city at the end of the working day. The plaintiff submitted that this would inevitably occur since the proposed public assembly is to be held in an area of the Sydney CBD which is crucial to bus and rail transport, and which will be frequented by tens of thousands of commuters at the relevant time.

Background to the proceedings 3On Tuesday 8 May 2012, the defendant sent a Notice to the plaintiff on behalf of the Al-Nakba Planning Committee indicating an intention to hold a public assembly (the Form 1). 4The Form 1 states that on 15 May 2012, it is intended to hold a public assembly at Sydney Town Hall Square at 5.30 pm which will be followed by a procession at 7.00 pm which will proceed along the following route: "North on George St, Right onto Market St, Left into Pitt St, Left onto King St, Left on to George St, South on George St back to Town Hall." 5The purpose of the proposed assembly is stated to "commemorate Al-Nakba". Al-Nakba is a day of significance for Palestinian people as it is the annual day of commemoration of the displacement that followed the Israeli Declaration of Independence in 1948. Nakba is an Arab word for catastrophe and is commemorated on 15 May. 6According to the Form 1, there will be no vehicles or floats in the procession; no bands, musicians or entertainers addressing the assembly; and no animals involved in the assembly. 7The Form 1 does not record how many people are intended to be involved in the assembly or the procession. However, on 11 May 2012, the defendant advised the plaintiff by email that he expected 200 persons to be participating in the event. I do not consider that this deficiency in the notice was such as to invalidate the notice. Nor did the plaintiff contend that it had that effect. 8Following the plaintiff's receipt of the Form 1 on 8 May 2012, there were numerous attempts by NSW Police to negotiate the place, route and time of the public assembly with the defendant. The failure of those negotiations led to the commencement of these proceedings. At the hearing before me on 14 May 2012, I allowed the parties further time to negotiate a resolution of the proceedings but this, too, was unsuccessful. Although s 24 of the Act contemplates that particulars of the public assembly (date, time, place etc) may be amended by agreement, the Court has no power to amend the notice or to authorise any assembly other than that specified in the notice. Accordingly, the assembly specified in the Form 1, together with the later specification of the number of people, 200, is the one with which I am concerned.

The legislative framework 9Part 4 of the Act makes provision for public assemblies. 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, then 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." 10By s 23 of the Act a public assembly is an "authorised public assembly" if: (1)Notice in writing 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)). 11Section 25 of the Act provides that the Commissioner may apply 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. 12Section 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." 13The application came before me on 14 May 2012. The hearing concluded at 6.30 pm at which time I ordered that the summons be dismissed and indicated that I would give my reasons at 10.00 am on 15 May 2012. 14The 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, notwithstanding that the first notice did not specify the number of people and the second notice did not state a time and place for such conference.

Evidence 15The plaintiff adduced affidavit evidence which established: (1) The Court's jurisdiction to make an order; (2) The significance of Nakba Day; (3) The concerns of the police about the disruption to vehicle and pedestrian traffic and attendant safety concerns which were heightened because of the time, place and route of the proposed public assembly; (4)The rejection by the defendant of alternatives which it contended were reasonable; and (5)The defendant's determination to hold the public assembly irrespective of the outcome of these proceedings. 16The plaintiff adduced evidence from a police officer of the likely time to be taken by the mobile procession to complete the route. Senior Sergeant McDiarmid estimated that it would take from 7.00 until 8.15 pm from the time the first participant began until the last participant completed the route. I accept his evidence. 17The defendant adduced oral evidence that established: (1) That other public assemblies had taken place at the same location, Town Hall Square, and continued along busy city streets; and (2) That last Saturday (12 May 2012) there was a public assembly which commenced at 1.00 pm at Town Hall Square which was organised by a group for community action against homophobia and in favour of same sex marriage. 18The defendant adduced evidence of likely time to be taken by the mobile procession to complete the route from a witness known to frequent demonstrations. Mr Purks, a regular and experienced participant in demonstrations for various causes estimated that a participant in the public assembly would take a mere twenty minutes and nineteen seconds. Although I accept that Mr Purks could complete the route in that time, I regard the Senior Sergeant's assessment as more realistic, and more relevant for present purposes.

The effect of a s 25 order 19The 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 is does is deprive the participants in the public assembly of the additional protection that is afforded by s 24: Commissioner of Police v David Gabriel [2004] NSWSC 31 per Hamilton J; Commissioner of Police v Bainbridge [2007] NSWSC 1015 at [15] per Adams J; Commissioner of Police v Rintoul [2003] NSWSC 662 at [6] per Simpson J; Commissioner of Police v Allen (1984) 14 A Crim R 244 at 244 - 245, per Hunt J; Commissioner of Police v Vranjkovich (unreported, 28 November 1980), per Lee J. 20The 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 21The Act does not identify relevant criteria for the making of a prohibition order under s 25: Gabriel at [4]; Commissioner of Police v Rintoul [2003] NSWSC 662 at [5]. Nonetheless, decisions of this Court have recognised that s 25 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": Rintoul at [5] per Simpson J. 22Time and place are also relevant. In Allen, Hunt J expressly recognised (at 251) that factors such as "increased traffic" are relevant to an application under s 25, so that a procession through the streets of Sydney in the period immediately preceding Christmas would be prohibited, even though "there could be no objection to the procession on a weekend or at some other time of the year". Although it is not necessary to show that a breach of the peace would or would be likely to be caused by the holding of the public assembly, it is difficult to imagine a case where a s 25 order would be made where there was no real prospect of such breach: Rintoul at [7]. 23The plaintiff submitted Plumb to be the most closely analogous case. Plumb concerned a proposed stationary public assembly outside Parliament House in Macquarie Street from 12.00 - 2.00 pm to protest against wood chipping in southeast forests. Approximately 100 people were expected to attend the assembly. It was also proposed that a float would be parked on the footpath immediately outside the front gates of Parliament House. The parking of the float required one lane of Macquarie Street to be closed for the duration of the Assembly. 24In granting the Commissioner's application for a s 25, Barr AJ took into account the effect of the proposed Assembly on public transport and referred, at [14] to: "...interference which the [float] would cause to the passage of vehicles in Macquarie Street and to pedestrians and others for a considerable length of Macquarie Street and for a considerable time, bearing in mind the time of day and week proposed" 25The plaintiff submitted that the proposed public assembly in the instant case would cause considerably more interference to the general public in Plumb because of the time and place of the assembly. The plaintiff submitted, and established through evidence, that because of the numbers of persons expected to attend the assembly (200 people), and the varying widths of the footpaths in these streets, it would be necessary for these roads to be closed for the procession to proceed. 26The plaintiff accepted that persons attending the public assembly are likely to do so with peaceful motives, but he submitted that there would be significant interference with commuters' passage home and this may lead to frustration and unintended outbreaks of violence. The plaintiff submitted that, although I have no power to change the Form 1, or approve alternatives, the availability of reasonable alternatives was a factor relevant to the exercise of the Court's discretion under s 25: Plumb at [20]. He relied on the following alternatives which had been proposed and rejected by the defendant: (1) A static protest on Martin Place; (2) A static protest at Belmore Park; or (3) A weekend procession.

Reasons 27I dismissed the summons on 14 May 2012, since I considered it to be important that the parties knew the result of the application. However due to the lateness of the hour my reasons were not given at that time. My reasons follow. 28The purpose of the public assembly is to commemorate the day on which Palestinians were dispossessed from areas which now form part of the State of Israel. This year, 2012, Nakba Day, 15 May, falls on a weekday. I do not regard it as reasonable to expect persons commemorating a particular date to defer or bring forward its commemoration so that it can be commemorated on a weekend. Nakba Day ought be regarded as a day which, like ANZAC Day, Christmas Day or Australia Day, is referable to a particular date which is not movable. This is of significance since objection is taken by reason of the fact that the public assembly is to occur on a weekday, rather than on a weekend. 29Objection is also taken by the plaintiff to the public assembly on the basis that it is to occur at peak time: the initial assembly is to occur at 5.30 pm and the mobile part of the assembly is to go from 7.00 to 8.15 pm. It will take place in a crowded area in the Central Business District of Sydney in the vicinity of major (though narrow) roads and of one of the most significant railway stations in the city. It will double-back along George Street, which has perhaps more bus routes than any other road in Sydney. 30If one's purpose were to disrupt commuter traffic, one could hardly choose a better time or place. But this is not the defendant's purpose. His purpose is to conduct a public assembly to commemorate Nakba Day. The date is the product of history. I infer that the time and place were chosen to allow the maximum number of protesters to participate. In infer that the route was selected because of its proximity to the starting point of the assembly. Town Hall Square is one of the few places available in Central Sydney for public assembly and is, accordingly, a natural choice. 31I find that it is inevitable that the public assembly proposed by the defendant will inconvenience commuters and other members of the public endeavouring to use streets and footpaths along the route. There will be aggravation and a risk of danger caused by the added pedestrian traffic on the footpath and the likely spillage of pedestrians onto the road. George Street has only two lanes in each direction and one is a dedicated bus lane. King and Market Streets are one-way streets which, at peak times, resemble a car park because of the traffic congestion. Pitt Street Mall is heavily populated by pedestrians at peak times. It will present a significant challenge to the plaintiff's police officers to keep the peace and ensure that the public assembly does not cause a breach of the peace or that the consequences of any such breaches is minimised. It will probably be a thankless task. 32Nonetheless I do not consider that the balance between the right of participants in this public assembly to freedom of speech and association on the one hand and the rights of other persons not to have their own activities impeded by the exercise of those rights on the other should be struck by making an order under s 25. 33Public facilities are to be shared. It is of the nature of a protest that others will be affected and that their routines will be, at least ephemerally, interrupted. 34Were I to have made the order sought by the plaintiff, I would be inhibiting, albeit in a small way, the right to freedom of expression and assembly. In refusing the order, I am, also in a small way, providing some sanction to a significant disruption to the routines of many commuters on a single evening and delaying their arrivals home by minutes if not hours. 35After considering the evidence and the submissions by the parties, I did not consider that the participants, as long as the assembly is peaceful and is in accordance with the notice, ought be deprived of the protections otherwise afforded by the Act. For these reasons I was not satisfied that a s 25 order ought be made in the instant case.

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: 15 May 2012

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