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[2025] NSWCA 224
plaintiff. The Court prohibited the notified public assembly under s 25, dismissed the Cross-Summons, and made no order as to costs.
The Court held that a s 25 order means what it says: the assembly is prohibited, not merely deprived of statutory immunity. It prohibited the planned procession because the crowd size and route to the constrained Opera House forecourt created serious, inadequately managed safety risks. The organisers’ peaceful history and planned marshals mattered, but did not resolve the particular logistical problems. The Court did not decide the constitutional challenge to the Opera House By-law or whether the forecourt was itself a public place.
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The Commissioner of Police applied under s 25(1) of the Summary Offences Act 1988 (NSW) for an order prohibiting a Palestine Action Group procession scheduled for 12 October 2025. The Form 1 notice, served on 1 October, described a procession from Hyde Park through central Sydney to the Sydney Opera House forecourt. Its stated purpose was to oppose the war in Gaza and call for specified changes in policy and military activity ([18]-[19]).
14 cited instruments linked from this judgment.
The first three defendants were involved in organising or supporting the proposed assembly. The first and second defendants signed the notice. The third was also a co-signatory and had supported previous Palestine Action Group protests ([25]-[27]). The Court acknowledged the group’s history of largely peaceful protests and cooperation with police, describing that record as a powerful consideration in favour of allowing the assembly ([25], [61]).
The central factual dispute concerned safety, not whether public safety was relevant. The organisers initially estimated 10,000 attendees but later estimated approximately 40,000 ([40], [56]). Police and other evidence raised the possibility of substantially larger numbers, drawing on experience of a recent Harbour Bridge protest that greatly exceeded its initial attendance estimate ([40], [45], [54]-[55]). The planned route narrowed at several points and ended at a peninsula with constrained entry and exit. The Opera House forecourt had a stated capacity of 6,000, while multiple performances, tours, staff and other activities were scheduled there on the same day ([40]-[44]).
The Commissioner’s evidence identified possible crowd compression, crowd crush, blocked emergency access, difficult dispersal, and risks at narrow routes and exits. The Opera House Trust and the Royal Botanic Gardens and Domain Trust also described operational, visitor-safety and site concerns ([41], [44]-[55]). The organisers relied on their experience managing demonstrations and proposed using marshals and dispersing participants in different directions ([56], [60]). The Court concluded that these measures did not address the particular constraints and possible crowd movements sufficiently.
The Court made the s 25 prohibition order, dismissed the cross-summons challenging the Opera House By-law on constitutional grounds, and made no order as to costs ([78]). It did not decide the constitutional question, because its safety conclusion did not depend on the By-law ([21]-[23]).
The Court began from the importance of political expression and public assembly. It accepted that the proposed assembly concerned deeply and sincerely held views on a matter of grave humanitarian significance, and that prior protests had generally been orderly ([29]-[30], [61]). Those considerations weighed strongly against prohibition, but the Court treated them as part of a balance rather than as decisive in every case.
The statutory scheme did not prescribe a complete list of criteria for prohibition. The Court relied on the existing approach of weighing the importance of public assembly against competing public interests, including safety, order, health, privacy and property interests ([37]). The Commissioner bore the onus of persuading the Court that the assembly should be prohibited ([5]).
The decisive factor was the combination of anticipated crowd numbers and the specific geography of the procession and destination. The Court considered not only the organisers’ estimate of 40,000, but the possibility that attendance would exceed that figure, given the recent example of substantial underestimation at the Harbour Bridge protest and the profile of the proposed destination ([62]). The Court found a real risk that the crowd estimate would be exceeded, rather than treating the larger estimate as a certainty ([62]).
The Opera House location presented linked problems. The Court accepted evidence that the destination was a constrained peninsula, that the forecourt’s capacity was 6,000, and that egress options were limited ([40], [42], [62]). It considered the possibility that marchers would remain at the forecourt rather than disperse promptly. The Opera House’s iconic role in the organisers’ promotional material made that possibility significant in the Court’s assessment ([63]-[65]). A backlog of people trying to enter could obstruct surrounding areas and intensify pressure at narrow exits ([65]).
The Court also considered competing demands on the site, including scheduled performances, visitors, tours and staff, and the likely effect of security screening ([40], [66], [76]). Emergency access and crowd management were material concerns. The Court did not treat the evidence as proving that harm would inevitably occur. It found the identified risks sufficiently serious, and the arrangements sufficiently inadequate, that allowing the assembly to proceed would be irresponsible ([67], [75]).
The history of cooperation, marshal experience and police powers were accepted as relevant mitigating factors. The Court nevertheless found that prior experience did not involve anything comparable to the scale and physical constraints of this route and destination. Nor was there evidence that police powers could effectively manage the practical problems that might arise ([68]-[71]). The absence of detailed planning and consultation with the Opera House and Botanic Gardens Trusts reinforced the Court’s assessment that there was no proper basis to conclude the risks had been addressed ([72]-[75]).
Finally, the Court noted that the proposed procession could significantly disrupt scheduled Opera House activities and affect patrons and performers. It expressly said those impacts would not, by themselves, justify prohibition. They were an additional consideration, not a substitute for the public safety basis ([76]).
Before this decision, Part 4 of the Summary Offences Act already provided a process for notifying proposed assemblies and for seeking judicial authorisation or prohibition in specified circumstances. Under s 24, an authorised public assembly attracts a statutory immunity for conduct undertaken for the purpose only of participating in the assembly, provided it is held substantially in accordance with the notice and applicable requirements ([2]-[5]). The Court explained that a notice served at least seven days before the event could result in an authorised assembly if the Commissioner did not oppose it or if a court did not prohibit it under s 25 ([3]).
The judgment clarifies the Court’s construction of the words “prohibiting the holding of a public assembly” in s 25(1). The defendants argued that the order’s only effect was to remove authorised status and therefore the s 24 immunity ([7]). The Court held that this was only part of the effect. The enacted language indicates that the order prohibits the holding of the event itself, not simply its statutory authorisation ([8], [16]).
The Court also addressed the possible consequence of disobeying such an order. It said breach may expose a person to contempt of court, including, in some circumstances, people who were not parties but knew of the order ([11]-[14]). The judgment did not determine that every person who attends a prohibited assembly would necessarily be in contempt. Its statement was that breach “may” render a person in contempt, and it situated that proposition in the authorities it discussed ([11]).
As to the substantive exercise of the s 25 power, the judgment applies an evaluative balance between the importance of political assembly and competing public interests. It records that public safety is among the relevant considerations and that the Commissioner bears the onus ([5], [37]). The decision does not create a numerical threshold for when crowd size or venue capacity requires prohibition. Its reasoning turns on the interaction of scale, route, site constraints, anticipated movement, emergency access, planning and mitigation in the evidence before the Court ([62]-[75]).
The decision also illustrates restraint on constitutional questions. The Court did not determine the challenge to the Opera House By-law because the prohibition rested on other grounds. It followed the principle that constitutional questions should not be decided unless necessary to determine the case ([21]-[23]).
At [16], the Court said an order under s 25 “does more than simply deprive participants” of s 24 protection and “prohibit[s] the holding” of the proposed assembly. In plain English, the order is not just a warning that participants lack a particular statutory defence or immunity. Its wording has a direct prohibitory effect.
At [11], the Court said breach of an order may render a person in contempt. The practical significance is that the Court did not accept the argument that the only consequence of a prohibition order is the loss of “authorised public assembly” status. The judgment does not specify the consequences for every possible attendee or decide any later contempt proceeding.
At [61], the Court acknowledged the importance of political expression and the organisers’ record of orderly protests, but said those considerations were not absolute. In plain English, the Court gave those factors real weight but considered that they could be outweighed by sufficiently serious competing risks.
At [62], the Court described the public safety risk as “extreme”, referring to the expected numbers, route, destination and physical constraints. This was the Court’s assessment on the evidence of this proposed event, not a general finding that large demonstrations are inherently unsafe.
At [65], the Court doubted that participants would promptly leave the forecourt as the organisers expected. It considered that a large number might stay because the Opera House was a focal point, creating a backlog of people seeking entry. In plain English, the Court assessed how people might actually behave at the destination, rather than treating the dispersal plan as certain to work.
At [75], the Court said that optimism about goodwill and cooperation was not enough without detailed planning for an event of this magnitude and complexity. The point was not that goodwill had no value: the Court accepted it as a mitigating factor. It was that it did not answer the site-specific risks on the evidence presented.
This judgment is most directly relevant to applications under s 25(1) involving a notified assembly where a Commissioner seeks an order prohibiting the event. Its statutory-construction holding concerns the meaning of a s 25 order, not only the merits of this particular protest ([7]-[16]).
For the risk assessment, the decision is relevant where a proposed assembly involves a large or uncertain crowd; a route with narrow or constricting sections; a destination with limited capacity or egress; possible interference with emergency access; other substantial activities at the site; and a dispersal plan whose assumptions may not be borne out by the crowd’s behaviour. Those were the combined features relied on in this judgment ([40]-[55], [62]-[75]).
The judgment also identifies the importance of evidence about planning and mitigation. The Court considered marshal numbers, previous experience, consultation, traffic and crowd arrangements, access controls, and emergency provisions. It did not treat the existence of a marshal plan or the availability of police powers as automatically sufficient; their effectiveness had to be assessed against the physical and operational circumstances ([68]-[75]).
The precedent does not establish that a particular attendance number, by itself, requires prohibition. Nor does it hold that an assembly must be prohibited whenever a destination has a capacity below the estimated crowd size. The Court relied on the cumulative evidence in this case, including uncertainty about numbers, how attendees might use the site, egress constraints, emergency access and the lack of detailed arrangements ([62]-[75]).
The decision is also relevant to arguments that a prohibition order merely removes statutory immunity. That argument was expressly rejected. However, the judgment’s discussion of contempt uses qualified language: a breach “may” give rise to contempt, and the Court did not adjudicate a specific person’s liability ([11]-[16]).
The supplied judgment contains no decisions issued after Commissioner of Police (NSW Police Force) v Naser on 9 October 2025, so it does not establish how later courts have treated the case. No subsequent treatment can be identified from the material provided.
The judgment itself discusses earlier authorities. It relies on Bassi for the proposition that the Commissioner bears the onus on a s 25 application ([5]). It cites Allen and Bainbridge concerning the possibility of contempt for breach of a prohibition order ([11], [13]). It explains that Rintoul did not decide the availability of contempt and rejects the view that Rintoul or Gabriel excluded that possibility ([12]).
It also relies on the general principle that a court’s statutory jurisdiction should not be narrowed by implications absent from the statutory text ([6]). The judgment cites authorities on the interpretation of court powers in support of that approach. Its discussion of these cases is part of the reasoning for reading “prohibiting” according to its ordinary and statutory meaning.
The later-treatment question therefore remains open on this source record. The judgment’s treatment of earlier cases is not evidence of how subsequent courts have applied or limited Naser.
The Court expressly left open whether the Opera House forecourt is a “public place” under s 22, either generally or in circumstances where access is restricted. It decided that it did not need to resolve the question because the procession began in Hyde Park and travelled on public roads ([33]-[36]).
It also left undecided whether the Sydney Opera House Trust By-law 2021 impermissibly burdened the implied freedom of political communication. The Court’s safety conclusion made it unnecessary to determine the constitutional challenge, and the cross-summons was dismissed without deciding its merits ([21]-[23], [78]).
The judgment did not decide the precise application of s 545C of the Crimes Act 1900 (NSW) to conduct following a prohibition order. It noted only that the order may have significance for that provision ([14]). Nor did it decide whether every person who knows of a prohibition order and attends the assembly would be liable for contempt. The judgment describes contempt as a possible consequence and refers to circumstances in which people who were not parties may be affected ([11]).
Finally, the Court did not decide whether the political significance or urgency of an event could ever outweigh safety concerns under s 25. It said it was unnecessary to resolve that broader question, because the risks on these facts were, in its view, unacceptable irrespective of the event’s political significance ([67]). The record also contains no later judgments from which to assess how these questions have subsequently been answered.
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Commissioner of Police (NSW Police Force) v Naser [2025] NSWCA 224
Hearing dates: 08 October 2025
Date of orders: 09 October 2025
Decision date: 09 October 2025
Before: Bell CJ; Harrison CJ at CL; Free JA
Decision: The Court orders:
(1) That, pursuant to s 25 of the Summary Offences Act 1988 (NSW), the holding of the public assembly in respect of which the first, second and third defendants served a notice dated 1 October 2025 in accordance with s 23(1) of that Act, for a public assembly on 12 October 2025, is prohibited.
(2) The Cross-Summons is dismissed.
(3) There be no order as to costs.
Catchwords: PUBLIC ASSEMBLY — Palestine Action Group organising public assembly to advocate for the humanitarian crisis in Gaza — Proposed procession to the Sydney Opera House forecourt — Summary Offences Act 1988 (NSW) Pt 4 — Commissioner of Police seeking prohibition order pursuant to
s 25(1) — Effect of such a prohibition order —Principles underlying the making of prohibition order — Application granted
CONSTITUTIONAL LAW — Commonwealth Constitution — Constitutional freedoms — Implied freedom of political communication — Sydney Opera House Trust Act 1961 (NSW) — Sydney Opera House Trust By-law 2021 (NSW) — Whether provisions impermissibly burden implied freedom of political communication — Unnecessary to decide
Legislation Cited: Crimes Act 1900 (NSW) s 545C
Summary Offences Act 1988 (NSW) ss 22, 23, 24, 25, 26, 27
Sydney Opera House Trust Act 1961 (NSW) ss 2, 4, 28A
Sydney Opera House Trust By-law 2021 (NSW)
Work Health and Safety Act 2011 (NSW)
Cases Cited: AGL Energy Ltd v Hardy (No 2) [2017] FCA 863
Australian Competition and Consumer Commission v Hughes [2001] FCA 38
Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 629
Commissioner of Police v Allen (1984) 14 A Crim R 244
Commissioner of Police v Gabriel [2004] NSWSC 31
Commissioner of Police v Rintoul [2003] NSWSC 662
Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655
FAI General Insurance Co. Ltd. v. Southern Cross Exploration N.L. (1988) 165 CLR 268; [1988] HCA 13
Greylag Goose Leasing 1410 Designated Activity Company v P.T. Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134
ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51
Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28
Lambert v Weichelt (1954) 28 ALJ 282
New South Wales Commissioner of Police v Bainbridge (2007) 175 A Crim R 226; [2007] NSWSC 1015
NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5
Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) [2020] NSWCA 160
PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301; [1995] HCA 36
Ramsay v Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 [2023] NSWCA 299
Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109; (2020) 283 A Crim R 186
Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50
Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125
Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54
Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129; [2006] FCAFC 118
Street v Hearne (2007) 70 NSWLR 231; [2007] NSWCA 113
Zhu v Treasurer (NSW) (2004) 218 CLR 530; [2004] HCA 56
Texts Cited: Heydon, Leeming and Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis, 5th ed, 2015)
Category: Principal judgment
Parties: Commissioner of Police (NSW Police Force) (Applicant)
Amal Naser (First Defendant)
Shovan Bhattari (Second Defendant)
Michelle Berkon (Third Defendant)
The Sydney Opera House Trust (Fourth Defendant)
Attorney General of New South Wales (Intervenor 1)
New South Wales Jewish Board of Deputies (Amicus Curiae)
Representation: Counsel:
J Emmett SC and A Bell (Applicant)
F K Graham, T Wood, M Hawila and C Langford, (First, Second and Third Defendants)
Submitting appearance, (Fourth Defendant)
J Emmett SC with C Tran and A Bell (Intervenor 1)
V Whittaker SC with R Jameson (Amicus Curiae)
Solicitors:
Makinson d’Apice Lawyers (Applicant)
Hanna Legal (First, Second and Third Defendants)
Crown Solicitor’s Office (Intervenor 1)
Quinn Emanuel Urquhart & Sullivan (Amicus Curiae)
File Number(s): 2025/384401
Publication restriction: N/A
THE COURT: The S**ummary O**ffences A**ct 1988 (NSW) (the Act) provides, in Part 4, a regime which seeks to regulate public assemblies. A public assembly is defined in s 22 to mean “an assembly held in a public place” and includes “a procession so held”. “Public place” means a “public road, public reserve or other place which the public are entitled to use”.
The regime encourages early notification of proposed assemblies to the Commissioner of Police (the Commissioner) by prescribed notice (known as a Form 1 Notice) setting out the date of the proposed public assembly and, if the proposed public assembly is a procession, a statement specifying the time and proposed route of the procession, the purpose for which the proposed public assembly is to be held and the number of persons expected to be participants in the proposed public assembly and procession.
In certain circumstances, a public assembly proposed in a notice of this kind may become an “authorised public assembly”. This depends on the application of s 23 of the Act. Putting aside the requirements going to the content of the notice in s 23(1)(a)-(e), the classification of a proposed public assembly as an “authorised public assembly” depends on the response of the Commissioner or a Court. There are three possibilities. One is that the Commissioner has notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly: s 23(1)(f). Another is that the notice was served on the Commissioner at least seven days before the date of the proposed public assembly and the holding of the public assembly is “not prohibited by a Court under s 25(1)”: s 23(1)(f)(i). The third is that the notice was served on the Commissioner less than seven days before the date of the proposed public assembly and the holding of the public assembly is authorised by a Court under s 26.
The significance of a public assembly being an “authorised public assembly” is the conferral of a statutory immunity under s 24. If an authorised public assembly is held substantially in accordance with the particulars furnished in the notice given to the Commissioner (or in accordance with amended particulars as agreed between the Commissioner and the organiser, together with any prescribed requirements), a person is 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 any unlawful assembly or the obstruction of any person, vehicle or vessel in a public place”.
Service of a Form 1 Notice on the Commissioner therefore gives the Commissioner an opportunity to assess and decide whether he or she does or does not oppose the holding of the public assembly. If the Commissioner, having received the notice seven days or more before the date of the proposed assembly, does oppose the holding of the proposed public assembly, provided that he or she has engaged with its organisers by way of conferral and has taken into consideration any matters or representations made by the organiser(s), the Commissioner is empowered by s 25(1) of the Act to apply to this Court for an order prohibiting the holding of the public assembly. One feature of the statutory scheme to be noted is that the Commissioner is not authorised to apply to the Court for such an order if the Form 1 Notice was served fewer than seven days before the date of the proposed assembly. Where an application is made under s 25(1) the onus lies upon the Commissioner to convince the Court that the proposed assembly should be prohibited: [2020] NSWCA 109; (2020) 283 A Crim R 186 at [17(vi)] ().
“BELL CJ: Why wouldn't the organisers be in contempt if they continue to organise on the face of a prohibition order after the time and expense has been spent on a hearing of this kind?
GRAHAM: It depends on what the effect of the order actually is, because if all the order does is remove the authorisation status, then there's no order to breach by engaging in the conduct.
BELL CJ: So the order doesn't mean what it says? An order that this Supreme Court of New South Wales prohibits the holding of a public assembly, that an order expressed in the terms of the statute doesn't mean what it says?
GRAHAM: That's right.”
Ms Graham’s submission should be rejected.
Where an order is made pursuant to s 25, breach of that order may render a person in contempt of court: Commissioner of Police v Allen (1984) 14 A Crim R 244 at 245 (Allen); New South Wales Commissioner of Police v Bainbridge (2007) 175 A Crim R 226; [2007] NSWSC 1015 at [17] (Bainbridge); see also more generally Australian Competition and Consumer Commission v Hughes [2001] FCA 38 at [15], quoted with approval in Deputy Commissioner of Taxation v Westmeat Development Pty Ltd [2025] NSWSC 655 at [20]; see also Rumble v Liverpool Plains Shire Council (2015) 90 NSWLR 506; [2015] NSWCA 125 at [60], [75], [116]. This may extend, in certain circumstances, to persons who were not parties to the proceedings in which the order was made: see Zhu v Treasurer (NSW) (2004) 218 CLR 530; [2004] HCA 56 at [121]; Street v Hearne (2007) 70 NSWLR 231; [2007] NSWCA 113 at [149]; Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [46]; Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (LexisNexis, 5th ed, 2015) at 786 [21-490] fn 808.
Simpson J did not address the availability of contempt in Rintoul and we do not consider that her Honour was intending to exclude, as a matter of construction, the orthodox consequence of a breach of an order of a superior court. To the extent that Rintoul and other decisions including Commissioner of Police v Gabriel [2004] NSWSC 31 at [1]-[4] have been understood as excluding the possibility of liability for contempt in the event that a s 25 order were contravened, we do not consider that such an understanding is warranted.
We note in this regard that there have also been statements in other first instance decisions to the effect that an order under s 25(1) precludes (or might preclude) the organiser from holding the proposed public assembly because in circumstances where the organiser has been a party to the proceedings in which the order is made to do so would be in contempt of the Court’s order: Allen at 245; Bainbridge at [17].
There is nothing in the Act that renders it an offence to hold a public assembly in circumstances where the Court has made an order prohibiting the holding of that assembly. That might be said to imply that an order under s 25(1) has no broader consequence than the one flowing from s 23(1)(f)(i). However, that ignores the point we have addressed above that where an order is made pursuant to s 25, as noted above, breach of that order may render persons with knowledge of that order in contempt of Court. As the Commissioner submitted, the making of a prohibition order under s 25 may also have significance for the operation of s 545C of the (NSW) which concerns knowingly joining, or continuing in, an “unlawful assembly”.
By Amended Summons filed on 7 October 2025, the Commissioner seeks an order pursuant to s 25 of the Act prohibiting the holding a public assembly on 12 October 2025, being a procession from Hyde Park north out of Hyde Park onto Macquarie Street left onto Bent Street right onto Phillip Street right onto Albert Street left onto Macquarie Street and north to the forecourt of the Sydney Opera House.
Other declaratory relief is also sought in relation to the Sydney Opera House Trust By-law 2021 (NSW) (2021 By-law) which senior counsel for the Commissioner indicated would not be pursued in the event that an order was made under s 25 of the Act.
The first to third defendants filed a Cross-Summons on 6 October 2025 by which a declaration was sought relating to the validity of certain sections of the 2021 By-law on various constitutional grounds. Notices were issued pursuant to s 78B of the Judiciary Act 1903 (Cth) in this context but only the Attorney General for New South Wales intervened, being represented by the same counsel as represented the Commissioner. It is well established that a court should not seek to resolve a constitutional issue unless it is necessary to do so in order to “do justice in the given case and to determine the rights of the parties”: Lambert v Weichelt (1954) 28 ALJ 282 at 283, quoted in ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51 at [141].
The defendants accepted in oral submissions that the constitutional issue arises in circumstances where the applicant had advanced, as a justification for the making of a prohibition order, that the conduct of the public assembly at the Opera House forecourt would be otherwise unlawful by reason of the 2021 By-law, The defendants accepted that if the Court did not accede to that submission, including if the Court determined that a prohibition order under s 25 ought be made without relying on any contention that the assembly was also rendered unlawful by the 2021 By-law, it was unnecessary for the Court to resolve the constitutional issues raised by the cross-summons.
As will emerge, our decision does not turn on the 2021 By-law and thus it is not necessary to determine the constitutional questions raised by the s 78B notice.
It was the possibility of a constitutional argument being run that resulted in the removal of the proceedings to the Court of Appeal for an urgent hearing.
The first defendant is one of the organisers with the Palestine Action Group (PAG) which is a coalition made up of individuals and organisations from different political backgrounds dedicated to the cause of a free Palestine. The PAG has conducted regular protests in Sydney over the course of the last two years in relation to the state of Israels actions in and relating to Gaza. The vast majority of these have been conducted peacefully and without incident. They have involved close co-operation with the police and the organisers, participants and police are to be commended for the orderly conduct of such assemblies.
The first and second defendants were co-signatories to the Form 1 Notice, being the Notice of Intention to Hold a Public Assembly the subject of the current application.
The third defendant is a member of the organisation "Jews against the occupation 48" (JAO) which was founded in 2003 to advocate for the rights of the Palestinian people and against the occupation of Palestinian land. Over the past two years, the third defendant has been a co-signatory on Form 1 Notice applications in relation to all but one of the PAG's organised protests in Sydney. She was also a co-signatory of the Form 1 Notice in the present case.
Interpolating here, the first to third defendants urged the Court to make a finding that Israel has committed acts of genocide in the course of the war in Gaza. It was submitted that such a finding was relevant to the Court’s evaluation, for the purposes of s 25, of whether or not to prohibit the proposed public assembly. The essence of the submission appeared to be that, in circumstances where genocide had in fact occurred, that would provide an objectively stronger justification for the proposed political protest which in turn would militate against the making of a prohibition order under s 25.
The Court rejects that submission. The Commissioner’s application for a prohibition order falls to be determined in circumstances where the Commissioner explicitly accepts that the organisers of the public assembly, and those likely to participate in it, have a strong, sincere and bona fide conviction about the righteousness of their political cause, which includes their perception that acts of genocide have occurred. It is not the role of the Court, in dealing with an application of this kind, to seek to determine as a matter of objective fact whether or not that perception is correct.
In circumstances where the Court is obliged by s 27(1) of the Act to decide the application “with the greatest expedition possible” (see [17] above), it is plainly impractical for hearings of this kind to become a vehicle for resolving intensely fought political controversies that are playing out in the community. Nor would it assist the resolution of the current application to seek to do so. As the Commissioner submitted, it is sufficient to accept, as the Court does, that the proposed public assembly is one that will involve the expression of political views that are deeply and sincerely held, on matters of grave humanitarian significance. The factors that would favour allowing such a public assembly to proceed would not be materially stronger even if the Court were to make a finding that particular views are not just sincerely held but objectively correct. A finding of that kind would not logically support a conclusion that a public assembly that is otherwise inappropriate, for example because it poses a grave risk to public safety, should be treated as appropriate.
The fourth defendant is the Sydney Opera House Trust (the Trust). Although it has filed a submitting appearance, its Acting Chief Executive Officer has also prepared an affidavit opposing the procession and assembly which, as noted above, is proposed to finish at the Opera House forecourt. By s 4(1)(a) of Sydney Opera House Trust Act 1961 (NSW) (SOHT Act), the Trust is given the functions of “the administration, care, control, management and maintenance of the Opera House” and relevantly in s 4(1)(b) “the management and administration of the Opera House as a … place of assembly”.
The Trust opposes the holding of the proposed public assembly on the Opera House site on the basis that the 2021 By-law expressly prohibits public demonstrations on the premises, and further that the proposed assembly presents significant safety and operational risks. The Trust’s position is said to arise from its statutory responsibilities for the management, care, and control of the Opera House, as a performing arts centre and cultural precinct, under the SOHT Act, and its duties under the Work Health and Safety Act 201**1 (NSW) to ensure the safety of all workers and visitors.
We note that, in the course of his written submissions, the Commissioner contended that the Opera House was not (or at least was not at particular times) a public place for the purposes of Part 4 of the Act, noting that a “public assembly” is defined in s 22 of the Act as an assembly held in a public place and includes a procession held in a public place. A “public place”, for these purposes, means a public road, public reserve or other place which the public are “entitled to use”.
There is room for argument about whether the forecourt of the Opera House is a place which the public are “entitled to use”, either generally or in particular circumstances where restrictions on access are imposed. The use of that area is regulated by and under the SOHT Act*.* It was common ground between the parties that the forecourt forms part of the “Opera House” for the purposes of the SOHT Act, applying the definition in s 2(1) of that Act. It was therefore also common ground that the forecourt forms part of the “Opera House premises” for the purposes of the 2021 By-law, this being the relevant phrase used in the by-law to describe the same area.
As noted above, one of the functions of the Trust is the care, control and management of that area, as part of the Opera House: s 4(1)(a). Section 28(1) authorises the making of by-laws with respect to the general management and control of the Opera House or any part of the Opera House. Clause 6 of the 2021 By-law empowers the Trust to exclude the public from a part of the Opera House premises by giving a direction, displaying a sign or erecting a barrier. Trespassing on any part of the Opera House is an offence under s 28A of the SOHT Act*.* Reading these provisions together, it is clear that any “entitlement” which the public has to use the forecourt of the Opera House is at best qualified by the authority of the Trust to exclude the public from that area at its discretion.
The Act does not specify the criteria by reference to which prohibition orders may be made pursuant to s 25. The jurisprudence which has developed in the application of this Act establishes that the Court must weigh the important democratic right of free speech and public assembly against competing public policy considerations. Competing public policy considerations may include rights to privacy (Rintoul) and preservation of property, considerations of public health or public order (Bassi; Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force) [2020] NSWCA 160), and considerations of public safety (NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5).
In the present case, the Commissioner’s opposition to the proposed procession is principally based upon public safety considerations. Those safety considerations in turn are a function of the anticipated number of participants, the nature of the route and the proposed destination of the procession.
While the defendants took issue with the proposition that the public assembly in this case will involve unacceptable safety risks, they did not seek to argue that public safety is an irrelevant consideration when it comes to the exercise of the Court’s power under s 25 of the Act.
Both the Commissioner and first to third defendants relied upon a number of affidavits in support of their respective arguments. The salient facts which emerge from the evidence which has been filed and relied upon are as follows:
Although it was initially estimated by the organisers that the number of attendees at the procession would be 10,000 people, that number has been revised by the organisers to be 40,000;
The recent procession across the Sydney Harbour Bridge and also organised by the PAG was initially expected to attract 10,000 and then 50,000 participants but in fact attracted, on the police estimates, close to 90,000 participants and, on the first defendant’s estimate, approximately 300,000 people (noting that that procession took place during a period of particularly inclement weather in Sydney);
The current application and attendant media interest in it are likely to augment the number of participants in the procession, at least in the event that it is not prohibited by orders of this Court;
The proposed destination of the procession is effectively a cul-de-sac on a peninsular with only limited and very narrow means of egress through the Royal Botanic Garden and, potentially, to the west along the foreshore towards Circular Quay;
The proposed final destination for the procession, namely the Opera House forecourt, is subject to planning restrictions which limit the number of people within the forecourt to only 6,000 people, noting that for these purposes the forecourt would ordinarily include the Monumental Steps;
(a) up to 3,000 patrons at two ticketed Opera Australia performances in the Joan Sutherland Theatre from 11.30am to 4.00pm and 5.30pm to 8.30pm; (b) up to 2,000 patrons at a ticketed performance in the Opera House’s largest venue, the Concert Hall from 3.30pm to 6.30pm; (c) up to 1,000 patrons at ticketed children and family performances in the Opera House’s Western Foyer Venues from 10.30am to 4.00pm; (d) up to 500 patrons at two ticketed events in the Yallamundi and Utzon Rooms from 12.30pm to 7.30pm; (e) up to 1,500 patrons on paid guided tours of the Opera House from 9.00am to 5.00pm; (f) about 1,000 staff, performers and contractors are expected to be working onsite on 12 October 2025, including artists, production crews, building operations teams, and hospitality, food and beverage, and security personnel; and (g) the Lower Concourse of the Opera House will be at or near full capacity with up to 2,370 patrons at any given time.
(a) cancelling scheduled ticketed performances in all internal venues; (b) closing the Lower Concourse, including the Opera Bar, House Canteen and other food and beverage outlets; (c) suspending tours and programs; (d) restricting general public access to the forecourt and other public areas of the precinct until the assembly has dispersed; (e) closing access or egress to:
(a) Royal Botanic Garden;
(b) Man O’War steps;
(c) Tarpeian Steps; and
(f) closing access to The Monumental Steps to restrict access to the upper podium and access to the building or sails for protest (a move which would materially decrease the 6,000 capacity of the forecourt area); and (g) regulate access to the forecourt in accordance with the Trust’s standard protocol for mass events by requiring all entrants to pass through security inspections, and restricting the overall number within the forecourt at any one time to 6,000 people. The proposed route of the procession to the Opera House has a number of physical features which will affect the pedestrian traffic flow in a way which significantly increases the dangers of crowd crush to participants in the proposed procession. These are more fully explained in the evidence set out in further detail below.
As already noted, it was common ground between the Commissioner and the first three defendants that the protests regularly held over the last two years by the PAG in conjunction with JAO, which have been authorised under the Act, have been largely peaceful. With the exception of the Sydney Harbour Bridge march, however, these have involved smaller numbers of participants than anticipated for the subject procession. None has involved a procession to the Opera House precinct.
In addition to these matters, the evidence of the Acting CEO of the Trust was that a proposed demonstration involving at least 10,000 individuals converging on the Opera House at the same time would pose significant safety and security risks including:
(a) crowding/overcrowding/crowd surges/crowd crushes. She referred to pressure points at: the Royal Botanic Garden exit; the narrow neck of the Opera House site where the hill down Macquarie Street meets the flat forecourt; the base of the Monumental Steps; and converging flows on the Western Forecourt from the Lower Concourse; (b) medical incidents, including slips, trips and falls; (c) impediment to emergency vehicle access. In this context, she noted that the Opera House averages more than 200 emergency service attendances per year, with risks heightened during largescale events; (d) obstruction of ingress and egress routes for Opera House staff, performers, patrons and visitors during a peak visitation period; (e) heightened potential for breaches of the Opera House sails to undertake protest activity (e.g. climbing of the sails to unfurl banners/flags), which presents significant risk to life/of injury; (f) exposure to weather conditions with no shelter available (this is a particular risk in relation to electrical storms, heat exacerbated by crowding and wet weather slowing rates of egress); (g) restricted ability to monitor prohibited items being brought on to site, (e.g. edged weapons, flares, drones); (h) potential for ticketed, restricted or capacity-limited areas of site to be accessed by protesters (e.g. internal venues and Lower Concourse bars and restaurants); and (i) damage to building and significant heritage-fabric.
There was an apparent dispute between the parties in relation to the capacity of the Opera House forecourt with reference being made by the first to third defendants to past events in the last century. More recent and uncontroversial evidence made it plain, however, that the forecourt including the Monumental Steps only has a capacity of 6,000 people and that this is a term of the Development Consent for the site.
The evidence of the Acting CEO of the Trust that it was standard protocol (and had been for many years) for all persons entering the forecourt for large organised events to be scanned for security purposes was significant because it would, in our view, further exacerbate the risk of crowds of participants (whether 40,000 or more) building up behind those seeking to access the forecourt and growing impatient at the inevitable slowing down of access to the forecourt. This would only operate to exacerbate the funnelling effect as participants in the proposed procession approached the forecourt.
There was also evidence from the Royal Botanic Gardens and Domain Trust (RBGD Trust) of significant concerns regarding the egress route especially through the gardens (as was proposed in submissions) in the event the number of protesters exceeds 15,000. Specific concerns identified were:
The potential damage to the living collection and heritage assets, which are of national and scientific importance.
The impact on a wedding booking at the Australian Rockery Lawn (2.30pm - 5.30pm), which sits directly adjacent to the QEII Gates and within the proposed egress path.
The safety of visitors and staff within the Royal Botanic Garden during and after the protest.
A potential clash with aspects of the NSW State Emergency Service (SES) Annual Memorial Service within the Domain precinct which honours fallen SES volunteers which is expected to attract approximately 600 attendees. The memorial is to take place near Mrs Macquarie's Chair from the early morning until approximately 1.30pm, followed by bump-out activities involving heavy vehicle movements and infrastructure removal also affecting the Phillip precinct of the Domain through to 5.00pm.
The limited lead time available to adequately plan, mitigate risks, and ensure the safety and integrity of the site for an event of this scale.
Assistant Commissioner McKenna expressed the following concerns in his affidavit evidence:
“Number of attendees could well be 100,000, not 10,000
60 I am concerned that the number of attendees will exceed the estimate of 10,000.
61 This is based in part on my observation that there is heightened media and publicity of the geopolitical issues as we are approaching the two-year anniversary of escalation of conflict, the recent experience of the Sydney Harbour Bridge, and the proposed iconic location of the Sydney Opera House. The probability of a significant under-estimation of attendees is reflected in the experience of the Sydney Harbour Bridge protest.
62 Based on my experience, I am concerned that the proposed public assembly is likely to draw a much larger crowd if it is authorised, which will make the circumstances much more difficult to manage (irrespective of whether the public assembly is then materially different to the particulars in the Form 1).
63 I believe that if the court makes an order prohibiting the public assembly, far fewer people are likely to attend the Sydney CBD. Minimising crowd attendance will increase public safety because police will be able to manage the crowd and there will be less, or no, risk of crowd crush. Emergency services will be able to access the area if required. There is sufficient time for police to effectively communicate to the public the risks of attending the public assembly if it has not been authorised by the court, and I believe the public would respond to that messaging appropriately. It would also give police time to discuss alternate routes and locations for the proposed public assembly.
64 It is important that police have the full complement of police powers available to avoid and protect the public against any anti-social behaviour.
Emergency access
65 The only route that I am aware of for emergency vehicle ingress to the forecourt and surrounding areas is Macquarie Street, including because the Opera House is surrounded by water. I expect Macquarie Street will be fully blocked (even if the numbers of attendees is no more than 10,000) by attendees and it will be impossible for emergency vehicles to access the area if required.
Crush points
66 I hold a serious concern that a congregation on the forecourt will create the risk of a crowd crush because:
(a) It is a static focal point of congregation;
(b) It is far too small to accommodate the numbers of attendees that I expect will attend;
(c) There is limited capacity for egress without turning back into the oncoming crowd…;
(d) It is not possible to proceed North because it is surrounded by water.
67 I am similarly concerned that Albert Street … will create a risk of crowd crush or similar difficulties. That concern arises because:
(a) Albert St is narrow, uphill and quite difficult with crowds of this size to turn, funnel and turn. There is also parking on the street which may be further restrictive.
(b) The crowd may not be able to stop and turn at Albert Street and instead will have to proceed straight into the bottom of Circular Quay which has shops, pedestrians, bollards, and small area of footpath that leads right to the water's edge.
68 If the crowd proceeds straight ahead, the concourse is narrow and bounded by the water and restaurants. I think it is likely that the crowd will proceed down this path and it will be difficult or impossible to turn them back.
Geographic limitations on crowd movement and safety
69 The Sydney Opera House is positioned on a peninsula and is a cul-de-sac.
70 I expect that attendees will proceed to the Sydney Opera House from Macquarie Street, the concourse and the Botanic Gardens, based on my experience of similar crowd movements on New Years Eve, and because the organisers are contemplating that route in addition to Macquarie Street. If this occurs, the only realistic way of egress is to turn back on the crowd. I have concerns as to safety if the crowd turns back on itself.
71 That fundamental geographic limitation is a difference between this proposed assembly and the Harbour Bridge protest.
Inadvertent property damage
72 The issues described above with crowd control and volume create a risk of inadvertent property damage (to shops, alfresco areas) and biological damage (to the Botanic Gardens) that Police will be unable to properly manage. That is a greater risk for this event than was present for the Harbour Bridge protest.
Risk of advertent damage and/or anti-social behaviour
73 PAG have been largely cooperative and peaceful in the last two years in their actions and interactions with Police. I have described issues arising in previous protests above.
74 In the last week, … there have been snap protests by groups calling themselves 'Students for Palestine' they have shown aggression and violence during snap protests. I am concerned this behaviour will be repeated. I am informed that the second defendant is a member of this organisation.
75 I consider that this is a very emotive time–having regard to it being the anniversary of the escalation in conflict–and therefore the risk of anti-social behaviour is greater.
76 The Sydney Opera House has a security overlay that NSW Police assist with on a daily basis. This security overlay does not contemplate allowing thousands of people to access the Sydney Opera House at once without putting in place appropriate restrictions and security measures. The Sydney Opera House administers its security arrangements, having regard to the general risk of terrorism that is inherent to an iconic public landmark.
Messaging difficulties and police powers
77 With a procession of people (even in the amount of 10,000) it is a real challenge to achieve clear messaging and consistent communication to re-direct or control the crowd to avoid injuries. This location presents more challenges than the Sydney Harbour Bridge (and messaging on the Bridge was difficult, as described above).
Real and appreciable concerns
78 As a delegate of the Commissioner, I oppose the proposed public assembly and seek an order prohibiting it because I believe it would bring about an unacceptable and unnecessary risk of attendees or other members of the public in the vicinity of the proposed assembly being exposed to potential acts of violence, terrorist organisation symbols or other hate symbols. I am concerned about the engineering advice I have received via the Sydney Opera House Trustees.
79 The applicants have not done any due diligence with the Opera House other than saying they believe there is enough room for them to be on the forecourt. There are very substantial concerns identified above that have not been properly considered or addressed.
Cost of ongoing policing
80 I am informed by the Central Metropolitan Region Business Manager that a conservative lower-end of costings for the Sydney Harbour Bridge was $600,000. As at 18 September 2025, costs were estimated at $654,324.14 (not including the base salaries of Police officers and unsworn officer base salaries). There are other costings that have not been included in that figure.
81 Aside from the costs, the regular deployment of police to PAG protests is a diversion of significant police resources from regular policing duties.”
“… what I would say from what I've seen internationally, it's when you're trying to get a large number of people through small areas at the same time, and what happens in a lot of those crowd crush situations is panic. And there's emergencies that occur and people - the communication goes out the window with, with authorities and people do whatever they've got to do to get themselves out of those situations. That's why we don't allow that to occur.”
He drew particular attention to his concerns about the inability to preserve access for emergency vehicles to the Opera House. He gave evidence about the impracticality, in the circumstances that have arisen, of establishing a secure access lane for emergency vehicles to the Opera House forecourt via Macquarie Street. His evidence was that any attempt to segregate such an access lane ran a significant risk of being compromised, unless it were “a large fence probably with concrete bollards at the bottom of it which cannot be penetrated”. There was no suggestion that this was something that could or would be implemented before the scheduled march. Assistant Commissioner McKenna’s evidence, based on experience in the recent Harbour Bridge march where lanes set aside for emergency vehicles were quickly occupied by marchers, was that “40,000 or more people will quickly envelop the whole of Macquarie Street and police won't be able to stop that ... Crowds will move into the most accessible areas … [b]ecause they don't want that side to side density they will naturally fill voids. That's how crowds work”.
He expressed concern for the public safety of participants, other members of the public and the police themselves. Without in any way casting aspersions on those who have previously marched in PAG organised protests, he drew attention to:
“people who - in our society - would love an opportunity to do some things at that location, because of the media interest and that location it is(as said), with our current threat in Australia, I would say it would be a good idea to know who was coming in there and what they have with them. Because - just because there is a protest does not stop other people from coming into that environment under the guise of that.”
As to means of egress from the forecourt, he said that “experts will tell us it's crowd management 101, you don't turn crowds back upon themselves”. As to alternative routes of egress through the Botanic Gardens, he said (and the defendants accepted this in final submissions) that use of the stairs in the Botanic Gardens near the exit to the forecourt was “out of the question, I would say, completely. They've got massive concrete bollards that are affixed. They slope down. I've seen water and moss all over them. I don't think that is accessible at all for thousands of people.”
As to other gates in the Botanic Gardens accessible from the forecourt (being two gates of two metres width and one gate of 4 metres width, he said:
“Whether it's the gate at the other side which has a small sandstone barrier to the water, a hill that goes down towards that. Trying to funnel people in the thousands through that is not what it was designed for. There's no way the stairs should be utilised at any given time for hundreds, let along thousands of people. It has disaster written all over it, if you ask me.”
“What if someone needs emergency services to be able to get there? What if there has to be an evacuation of the people who are already at the Opera House? All of these things have to be taken into consideration, and so it's not as simple as just saying, "Yep, let's bring 40,000 people there, stagger them through and, and watch them go out the other exits". That's not what it's designed for. It's not what its capacity is. And it gives us really significant concerns.
The cul-de-sac itself, even if we stop people there, we can't funnel them anywhere other than pushing them back upon themselves. And if you're talking about the route that has been put to us, how do we get communication to people who can't even see the front, let alone want to get to the Opera House because that's what it's all about? How do we get them to stop? How do we stop people coming when there's an emergency situation occurring? These are all really significant concerns that I have.”
A constant refrain of the cross examination was that prior PAG protests had been largely peaceful, marked by goodwill and commonsense of participants and the cooperation of PAG marshalls with members of the police force. The Assistant Commissioner did not gainsay these features of previous marches and participants but pointed out that the vast majority of the previous PAG marchers had been on a much smaller scale not involving the risks and challenges of the proposed route and destination. Thus, to one question, he responded “All, all the altruism in the world doesn't assist when you have a physical situation where we believe the numbers are far too excessive to keep people safe.”
A faint criticism was made in final submissions to the effect that the Assistant Commissioner’s evidence was predicated on a crowd size of 100,000 people. True it is that he expressed scepticism based on previous gross underestimations, especially in relation to the Harbour Bridge march, as to the estimate of 40,000 but it was neither accurate nor fair to say that his expressions of strong concern were predicated on larger figures.
Chief Inspector Yates, who was not cross examined, expressed similar concerns:
“Safety concerns arising from high volume congregation on the forecourt
- I understand that the organiser has estimated approximately 10,000 people will attend the event, which is a substantial number of people. From my experience, and general understanding of the issue that is the subject of the protest, and having regard to the volume of attendees at the recent protest on the Harbour Bridge which was also organised by the Palestine Action Group, I believe NSWPF needs to prepare on the assumption that the attendees could be similar to the Harbour Bridge protest.
- Even on the assumption that ‘only’ 10,000 people march, I have concerns in relation to the capacity of the Sydney Opera House, and the number of attendees. Based on my experience of the location of the Sydney Opera House, there are limited ingress and egress options. I have concerns in relation to risks of crowd crush. By that, I mean ‘crowd convergence’, which means that because of high crowd density, people may no longer be able to move of their own volition and they become part of a mass in which injuries can arise, such as positional asphyxia, as a consequence of involuntary movements caused by that mass convergence of the crowd.
- I am aware that, at the recent protest over the Sydney Harbour Bridge, there was an estimate in advance of 10,000 attendees, but the actual number of attendees significantly exceeded this amount. As explained above, I believe that there is a real risk that the organisers have substantially under-estimated the likely attendees at the event.
- My concerns would not be removed by the possibility of persons moving towards the northern concourse because:
(a) The focal point of the procession is the forecourt and the crowd may not naturally move into the space;
(b) There is no Northern exit by reason of the Opera House being on a peninsula;
(c) The Opera House is surrounded by water on the North, West and Eastern borders making evacuation difficult in any circumstance;
(d) The space will be used by other members of the public including those seeking to enter and exit the Opera House.
Safety concerns for ingress and egress
- I have further concerns in relation to ingress and egress of attendees, given the specific features of the Sydney Opera House's location, being on a peninsula with the main road (Macquarie Street) terminating at a roundabout before the forecourt. As far as I am aware, the organisers have not provided any safety plans in relation to this issue and are unlikely to have done so.
- The concern arises principally because the main egress pathways–the concourse and from Macquarie Street–would not be available pathways because they will be blocked by the volume of potential attendees who are seeking to make their way to the forecourt.
- I have concerns about egress from the forecourt into the Botanic Gardens (even on the assumption that the gathering is in the amount of 10,000 people) because:
(a) The steps into the garden (the central Forecourt entrance to the Botanic gardens) is narrow and a natural choke point for crowd flow which creates a risk of a crowd crush, as the persons closest to the gate are slow to constrict but the crowd behind continues to move towards the gate and because there are large concrete bollards in front of the entrance. The gate leads to a set of steps which create a fall hazard in a crowd. There is no way for the crowd to expand on the steps (or the pathway section which immediately follows them) because of the metal fencing;
(b) The two gates which are east of the steps (the Opera House Gate and the Queen Elizabeth Gate) both narrow. I hold the same concerns as to crowd crush in attempting to use those gates, and
(c) It is possible that there will be obstructions and competing traffic (including persons who seek to join the assembly in the forecourt by an alternate route through the gardens) which amplifies these safety concerns.
…
- In my assessment of the ingress and egress points, if there is an emergency requiring urgent evacuation, I believe the crowd crush risks are very high. For example, if there is an incident towards the south, the attendees cannot safely exit via any northern exit. I am concerned about the possibility of people lightly [sic, lighting] flares when there may be a very high density of people. There were flares lit at the Opera House during an unauthorised protest on 9 October 2023 and I am concerned about that possibility of that occurring again.
- These concerns amplify as the number of people who attend increase. In my view, it is very important that the number of people who it is proposed attend the proposed Public Assembly are kept to a safe capacity. Ideally, only about 6,000 people would attend the Opera House forecourt. Practically speaking, if the number of people who attend materially increases beyond the estimated 10,000 people, even though the Public Assembly may no longer be ‘authorised’, NSWPF will not be in a practical position to effectively use move on powers to direct people away from the Opera House. It is therefore of real importance that there be widespread and clear messaging prior to the event that the Public Assembly is not authorised to ensure there is a material cooling effect on the number of people who attend.”
“Safety Considerations for Event Planning
- TfNSW has safety concerns for this event due to the absence of any evidence provided to TfNSW of detailed planning by the organiser and limited consideration given to identifying safety risks which result from the closure of the roads from Macquarie Street to the Opera House, and the management of crowd arriving and departing public transport interchanges such as Circular Quay railway station.
- During the planning process for a large-scale event, TfNSW would ordinarily collaborate with event organisers to identify safety risks and require plans to be developed to mitigate these risks to participants, general public and transport assets. Typically, event organisers undertake a range of safety-related preparations, including completing risk assessments, develop traffic management and communication plans, and install fencing and other equipment to separate pedestrians from vehicles, trains and infrastructure.
- A key concern is the potential for the number of attendees to exceed 10,000 people, and the capacity of the event organiser to manage the behaviour of the crowd and to limit exposure to safety risks.
- During a recent protest on 3 August 2025, a large group of people walked across the Sydney Harbour Bridge (SHB). The attendance significantly exceeded the estimated attendance of 10,000 people as contained in Form 1 Notice. The group who organised this march had Marshalls in place to manage the crowd and had worked with Police on many occasions.
- During this event I was the Operational Director for TfNSW and I was situated in the Police Operations Centre. By viewing CCTV cameras, I saw significant overcrowding at Wynyard Railway Station and on the SHB. I was seriously concerned there was a risk of crowd crush for members of the public. TfNSW worked with NSW Police to implement a range of response measures. The overcrowding occurred as event organisers had not forecast a significant increase in the number of people attending the event and had not implemented the appropriate controls for health and safety of all persons at events.
- In response to the overcrowding, TfNSW worked closely with NSW Police to implement various response initiatives. One key initiative was the short-notice truncation of Light Rail Services at Central Station. George Street was used to corral and disperse large groups of people towards various railway stations. TfNSW was then able to safely regulate customers entering railway stations and boarding trains, and thus reduced overcrowding at railway platforms and on train services.
Safety Considerations with crowd-crush on roads
- During the Sydney Harbour Bridge (SHB) protest on 3 August 2025, I observed that the crowd extended for roughly one kilometre along the Bradfield Highway, with the head of the procession positioned near the North Pylon of the SHB and the rear of the procession located close to the intersection of the Bradfield Highway and Cahill Expressway. The crowd occupied all eight lanes of the Bradfield Highway.
- I estimate the distance of the procession route from Hyde Park North to the Sydney Opera House (SOH) to be approximately 1.4 kilometres. The road network along this procession route generally consists of four lanes. However, Albert Street, which connects Phillip and Macquarie Streets, is significantly narrower, comprising only two lanes. It also involves a 90-degree right turn from Phillip Street and a steep uphill gradient. These factors will substantially slow the pace of the front section of the procession, causing the rear section to compress. This compression increases the risk of overcrowding and the potential for a crowd crush incident.
- Once the procession turns right into Macquarie Street, the road network expands to four lanes until reaching the Moore Steps. From that point, Macquarie Street narrows to three lanes and then to two lanes at the roundabout adjacent to the SOH forecourt. This progressive narrowing will again cause the procession to compress, heightening the risk of overcrowding and crowd crush.
- Once the lead section arrives at the SOH, the movement of the group will significantly slow. This deceleration will cause the rear sections to compress, leading to overcrowding and an increased risk of a crowd crush Incident.
Safety Concerns with leaving the event
- Returning 10,000 or more people on the public transport network following the conclusion of the event may create a safety risk with overcrowding on platforms, on trains and outside railway stations.
- A larger crowd nearing 100,000 will increase this safety risk substantially.
- The short notice for this event means TfNSW has no proper opportunity to consider what safety impacts this event could have on public transport passengers using services on the day.
- For major events, additional train services are often arranged to reduce overcrowding on trains and to reduce the dwell time for passengers on railway platforms. For the CBD railway stations, customer management plans are used to minimise overcrowding on platforms.
- The late notice for this event means there is no capacity to make changes to train timetable and it is uncertain whether additional train services will be available for either the Sydney Trains or Metro Trains networks.”
“Anticipated numbers at this event
- In our Form 1, I submitted there would be around 10,000 attendees at this event. As is the case in politics, things change quickly, and I now expect more people to attend.
- Firstly, when our Form 1s are challenged by police in the Supreme Court, our rallies garner much more attention, and interest in attending the protest tends to increase.
- The unfolding events in Gaza and in relation to the Flotilla since submitting the Form 1 have also caused an increase in community sentiment in support of Palestine.
- I now anticipate there will be approximately 40,000 people at the event planned for 12 October 2025.
- I make this assessment taking the following into account:
- At the time of making this affidavit, the level of support for the protest march to the Sydney Opera House is similar to the level of support we experienced in relation to the last nationwide march on 24 August 2025. I estimate that approximately 40,000 people attended the national march on 24 August 2025, based on how long the march took to complete. The NSW Police Force estimated that 10,000 people attended the same march;
- I do not believe that this march will be anywhere near as large as the March for Humanity on the Harbour Bridge. The March for Humanity garnered significantly more endorsement and attention than the Sydney Opera House has. The March for Humanity took place at a time where the images of starved children were particularly mobilising people around the world. On Instagram, within a couple of days of posting our poster for the March for Humanity, it garnered over 12,000 likes and over 2 million views. At the time of writing this affidavit, our poster for the Opera House has garnered over 6,000 likes and 198,000 views. Instagram has always been a big indication of engagement with a certain rally.
- The present ceasefire discussions will lead to lower attendance. It is our experience that, even though every supposed ceasefire has not materialised, the fact that the media is reporting about them has diminished the perception of urgency, which translates into lower rally attendance;
- The recent decision to recognise Palestinian Statehood at the United Nations General Assembly by the Australian Government has been perceived by some as the Australian Government acting to end this genocide. Whilst I don't politically agree with this position, I acknowledge others do and as a result don't see the need to continue to urgently mobilise.
- Nationwide rallies are being held in every major city and regional towns across Australia on the day. During the March for Humanity, I was aware of many people who travelled interstate to attend the march.
…
Dispersal
- Our proposal is that upon arrival at the Opera House, marshals will begin to disperse crowds in two directions, westerly towards Circular Quay Train Station along the walkway and in an easterly direction towards and through the Royal Botanical Gardens. Participants would also have the option of returning back up Macquarie Street in a southerly direction once the crowd settles. …
- It is anticipated that there will be participants who will continue to protest in the Opera House forecourt area by waving flags and chanting, as they enter the forecourt in a staggered manner, before dispersing.
- There are no formal speeches, ‘sit-ins’, or other agenda items planned at the Opera House forecourt area. PAG marshals will be encouraging the safe flow and dispersal of the crowd as they arrive in the forecourt in a staggered manner.
- We anticipate, based off experience, that the back of the march will be about 45 minutes behind the front of the march, so that by about 3pm, the end of the procession will make its way through to the Opera House forecourt area and disperse from there. We aim to fully disperse the crowd by about 3:30pm .
Narrow Streets
- I am aware that police are concerned about the narrower streets towards the end of the march, being Bent Street and Albert Street.
- The Palestine Action Group has had significant experience in taking our crowd through narrow streets. For example, in our regular march route we are often required to march from Druitt Street, onto Pitt Street and then onto Market Street. Pitt Street is incredibly narrow, and we are usually marching on it for approximately 350m.
- In our two years of regularly using this route, we have had no issues in managing the crowd through this tight street. Our marshals are quite experienced in managing the crowd, including folding the front banner to accommodate the width of the street.
- On some occasions, cranes have been taking up some lanes on Pitt Street for the purposes of construction making the street even narrower. Despite this, we had no difficulty accommodating the narrowness of the street.
- We will also be able to station marshals to remain at those narrower junctions at Bent Street and Albert Street throughout the procession to assist with crowd management.”
Ms Naser’s estimate may or may not turn out to be correct although, as explained below, in light of the experience with a recent estimate in relation to the Harbour Bridge march, that estimate was massively conservative.
There was some tension between Ms Naser’s explanation for her lower comparative estimate of participants in relation to the proposed procession and submissions made by Ms Graham as to the critical urgency and importance of the proposed march as well as the evidence of Ms Berkon, also relied upon by the first to third defendants, which referred to “huge protests” in other cities around the world. That evidence included the following:
“The Opera House is one of Australia's most iconic landmarks. By marching to this iconic landmark, we will be able to attract significant media and social media coverage of the protest, and people around the world will be able to more readily identify the protest occurring within Australia. In the context of the huge protests occurring in cities around Europe, the Opera House visibly locates this protest in one of Australia's capital cities and aligns us with the global movement for justice in Palestine.”
Whatever be the case, even on Ms Naser’s estimate of 40,000 participants, that is a number which significantly exceeds the size of most of the processions that have been held over the past two years by PAG, in much safer settings. This consideration qualifies to a material extent the significance of other aspects of Ms Naser’s evidence set out above as to her and PAG’s experience with the vast majority of recent protests, especially when coupled with the particular features of the proposed route and physical constraints of the ultimate destination.
In respect of dispersal, the proposal to disperse some participants from the forecourt westerly towards Circular Quay Train Station along the walkway which is immediately adjacent to the harbour seems to the Court to be particularly problematic in circumstances where, as was accepted by Ms Graham, there is a real possibility that some people wishing to participate in the protest would come directly to Circular Quay and seek ingress to the foreshore along this proposed egress route, not to mention the presence of members of the public and visitors who routinely flock to Circular Quay, especially on weekends. This effectively left the only means of egress for the assembly through relatively small openings from the forecourt into the Botanic Gardens.
The Court approaches the application on the basis that allowing and facilitating political expression in the form of public assemblies is a matter of fundamental importance and public interest. As noted above, the Court also proceeds on the basis that the proposed public assembly that is the subject of the present application involves organisers and likely participants with deeply and sincerely held views about a matter of undeniable significance and humanitarian concern. There is also an established pattern of orderly public assemblies reflecting goodwill and cooperation between the organisers, participants and NSW Police. These are all powerful considerations weighing against the Commissioner’s application. But they are not absolutes. The regime in Part 4 of the Act, including the power conferred on the Court to prohibit certain proposed public assemblies, reflects the need to balance countervailing considerations.
The Court is unanimously of the view that, in view of the likely numbers estimated by the first defendant to participate in the procession and public assembly and given the route and in particular the proposed destination of the Procession and its capacity and physical constraints, the public safety risk to participants and other members of the public is extreme. The extremity of that risk is only magnified if the first defendant’s estimate of participation levels is exceeded. The degree to which the estimate was exceeded on the Sydney Harbour Bridge march has already been noted. On the estimates of the police, the number of participants was twice the number anticipated as being likely to attend. On the first defendant’s estimate, it was six times the number of anticipated attendees. There is a real risk that the current estimate of 40,000 will be exceeded, particularly having regard to the timing of the march, on approximately the second anniversary of the bombing of Gaza, the iconic nature of the proposed destination of the procession and the heightened attention that will inevitably be given to the proposed procession by these proceedings.
A matter of particular concern to the Court is the prospect that participants in the procession will not disperse from the Opera House forecourt and move away to other places in an orderly, efficient and predictable way. The defendants in seeking to address the safety concerns raised by the Commissioner sought to emphasise that the organisers of the procession are planning for the procession to come to an end at the Opera House forecourt, such that participants can be expected to leave the forecourt soon after arrival.
The Court finds that this is an unrealistic assumption, with potentially grave consequences when it comes to the safety of march participants and other members of the public. The promotional material being used by the organisers of the procession has emphasised the Opera House as a focal point of the event. The evidence and submissions relied on by the defendants have likewise emphasised the iconic significance of the Opera House as a matter that is critical to understanding the political gravity of the event.
For the foregoing reasons, and in light of an indication from the parties that they have agreed that there ought be no order as to costs, the Court will make the following orders:
That, pursuant to s 25 of the Summary Offences Act 1988 (NSW), the holding of the public assembly in respect of which the first, second and third defendants served a notice dated 1 October 2025 in accordance with s 23(1) of that Act, for a public assembly on 12 October 2025, is prohibited.
The Cross-Summons is dismissed.
There be no order as to costs.
**********
Amendment made to [47] as first published, is now in Caselaw quote format.
Amendment made to [78] at (1) by deleting the words "... order that ...". The same amendment was made to the coversheet.
Amendment made to coversheet only, as follows: New South Wales Jewish Board of Deputies (Intervenor 2) changed to New South Wales Jewish Board of Deputies (Amicus Curiae)
Commissioner of Police (NSW Police Force)
Naser [2025] NSWCA 224
(1988) 165 CLR 268
(2023) 111 NSWLR 550
(2009) 240 CLR 140
(1992) 174 CLR 178
(1995) 184 CLR 301
(2014) 86 NSWLR 34
(2015) 90 NSWLR 506
(1994) 181 CLR 404
(2006) 152 FCR 129
(2007) 70 NSWLR 231
(2004) 218 CLR 530
The Court prohibited the notified public assembly under s 25, dismissed the Cross-Summons, and made no order as to costs.
Section 25 of the Act is also the source of this Court's power to prohibit the holding of a public assembly. Powers conferring jurisdiction on a Court should be interpreted liberally and not as subject to implications or limitations which are not found in the express words: Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54; PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313; [1995] HCA 36; Greylag Goose Leasing 1410 Designated Activity Company v P.T. Garuda Indonesia Ltd (2023) 111 NSWLR 550; [2023] NSWCA 134 at [35]; Ramsay v Minister for Lands and Water; Hospitality and Racing, The Minister administering the Water Management Act 2000 [2023] NSWCA 299 at [55]; FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 at 283-284, 290; [1988] HCA 13; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185, 202-203, 205; [1992] HCA 28.
A significant issue between the parties was the effect of an order made under s 25. The form of the order follows from the terms of s 25(1) – it is an order “prohibiting the holding of a public assembly”. On its face the effect of an order of this kind is clear. The defendants submitted that notwithstanding the ordinary connotations of an order “prohibiting” something from occurring, the legal effect of an order under s 25(1) is more modest. Its effect was said to be confined to depriving the proposed public assembly of the status of being an “authorised public assembly”. There is no doubt that this is at least part of the effect of an order under s 25(1). So much follows from the application of s 23(1)((f)(i). As explained above, if notice of an assembly has been served at least seven days before the proposed assembly and the holding of the public assembly is “not prohibited” by a Court under s 25(1) the assembly will be an “authorised public assembly”. An order prohibiting the public assembly therefore precludes the application of the immunity provision in s 24 from the assembly in question.
The controversy between the parties is whether that is the only legal consequence of an order prohibiting the holding of a public assembly. The language chosen by the legislature points strongly to the conclusion that an order made under s 25(1) does exactly what the wording of the order suggests, namely it prohibits in a more general way the conduct of holding the proposed public assembly. If the legislature had intended to confine the consequences of an order under s 25(1) to precluding the assembly from qualifying as an “authorised public assembly”, it would have been expected to use language other than “prohibit”. For example, it would have been sufficient and clear to provide that the Commissioner may apply for an order that the proposed public assembly is unauthorised or not authorised.
Ms Graham, who appeared for the first to third defendants, submitted that a breach of a s 25 prohibition order would not lead to a contempt of court, and finding that it did would be inconsistent with Simpson J’s decision in Commissioner of Police v Rintoul [2003] NSWSC 662 (Rintoul). This necessarily involved a submission that a prohibition order does not mean what it says. The following exchange occurred in the course of final address:
The defendants also point out that if s 25(1) is construed as empowering a court to make an order prohibiting a proposed public assembly, with an effect that goes beyond disapplication of the immunity in s 24, that would serve to discourage the organisers of public assemblies from notifying the Commissioner, because in the absence of notification the Commissioner’s power to seek a prohibition order would not be engaged. A related point is that the spectre of being subject to a prohibition order will only arise if the organiser serves notice seven or more days before the proposed public assembly. While there is some force in the defendants’ submission, and some oddity in the differential treatment of applications served before and after the seven day mark, we do not regard these considerations as ultimately being persuasive on the question of construction. On the premise that s 25 confers a more general power of prohibition, the scheme can be understood as giving organisers the option of engaging the statutory machinery through notification to the Commissioner, with the significant potential upside of gaining authorisation and thereby getting the benefit of the statutory immunity in s 24. Taking the choice to engage that machinery does come at the cost of being exposed to the potential of a prohibition order, but that is part of the balance struck by the legislature in enacting Part 4. If organisers choose to serve late notice on the Commissioner, within a week of the proposed public assembly, they may avoid the prospect of a prohibition notice but will get no benefit from the notice unless they obtain an order for authorisation from the Court.
Ultimately we consider the text of s 25(1) to be decisive. It would be highly incongruous for the legislature to empower the Court to make an order “prohibiting” the holding of a public assembly, if the terms of that order did not accurately reflect the legal consequence of the order. The very subject matter of the court’s order will be a proposed public assembly and the subject matter demands clarity, not obscurity. The better view is therefore that an order under s 25(1) to prohibit the holding of a public assembly does more than simply deprive participants in a public assembly of the protection that s 24 of the Act might otherwise afford them. It operates to do precisely what the terms of the order suggest, namely to prohibit the holding of the proposed public assembly. This Court proceeds on the basis that its orders, including orders pursuant to s 25 of the Act, will be respected and obeyed. This is a central aspect of the rule of law in any democratic society: Australian Industry Group v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union [2000] FCA 629 at [79], quoted with approval in AGL Energy Ltd v Hardy (No 2) [2017] FCA 863 at [40]. See also Siminton v Australian Prudential Regulation Authority (2006) 152 FCR 129; [2006] FCAFC 118 at [43].
Section 27(1) of the Act requires this Court to decide an application under s 25(1) with “the greatest expedition possible”. The Court has taken that approach with considerable assistance from the parties and their legal representatives.
It is unnecessary to reach a concluded view about whether, in these circumstances, the forecourt of the Opera House (either generally or under certain conditions) qualifies as a “public place” for the purposes of Part 4 of the Act*.* The public assembly which is in issue in the present case is a proposed procession that would begin in Hyde Park, and progress along a series of public roads through the north of the city before reaching the Opera House forecourt. There is no doubt that this constitutes a “public assembly” according to the definition in s 22 of the Act*.* Even if it be assumed that the procession will conclude at a place which is not a public place according to the meaning of that term in s 22, it does not follow that the procession ceases to be a public assembly for the purposes of Part 4 of the Act. If there is an assembly or process in a public place, there is a public assembly and it remains necessary to consider if it is one that should be prohibited under s 25.
Large numbers of members of the public and international visitors are currently expected to be present at and in the immediate vicinity of the Opera House forecourt on the day and at the time of the proposed arrival of the procession. Attendance at other events scheduled to take place this coming Sunday is expected to be:
Given that context, there is a high risk, if not a probability, that substantial numbers of participants in the procession will be strongly disposed against an immediate dispersal from the site. Instead they will stay on the Opera House forecourt for a prolonged period before leaving. If that occurs, there is likely to be a serious problem with a backlog of march participants arriving at the forecourt and wanting to enter. There will not be an orderly staggering of sections of the crowd through the forecourt in controlled quantities, as the defendants submitted. Instead the crowd of march participants who would be understandably eager to enter the forecourt is likely to grow (and grow in frustration) which in turn will increase the risk that the areas surrounding the forecourt will become blocked with people, including potential points of egress to the west towards Circular Quay. That will only exacerbate the pressure on narrow points of egress in one corner of the forecourt. It will also exacerbate the risk of the crowd being turned back on itself, a scenario which Assistant Commissioner McKenna cogently described as highly undesirable.
There is, more generally, the risk of crowd crush. This risk will be heightened if the Trust carries out inspections of all persons entering the forecourt as it is entitled to do and is its standard protocol for mass events. This will be likely to have a significant slowing effect on those being funnelled into the forecourt via Macquarie Street. That funnel will be narrow, especially if an emergency lane is able to be preserved without being swamped by participants in the procession. If the Trust did not follow its protocol and carry out inspections, the risk of bad actors infiltrating the march and bringing items such as flares to the forecourt, as has happened in the past, will increase significantly.
The defendants properly accepted that there were risks associated with the proposed public assembly, but submitted that this is true of any large gathering and that the risks in the present case were acceptable. To some extent the defendants appeared to urge the Court to find that the significance of the political cause, and the urgency of the political moment from the perspective of those participating in the assembly, are considerations that are so compelling that the Court ought to decline to prohibit the assembly from being held, even if there are safety concerns that might otherwise be regarded as unacceptable. It is unnecessary to say whether reasoning of that kind might ever be thought persuasive under the statutory scheme. It is sufficient to say that on the facts of this case the risks to public safety associated with the public assembly are so significant that it would be irresponsible to allow the public assembly to proceed, irrespective of the political significance of the event.
The Court is also not persuaded by the defendants’ submission that there are sufficient mitigatory factors present to address the perceived safety risks. The defendants emphasised in this regard the history of cooperation between PAG organisers, the police and participants in PAG assemblies, the demonstrated capacity of PAG marshalls to assist police in maintaining order and control over assembly participants, the goodwill with which participants in PAG assemblies have acted and would be expected to act and the powers available to police, including as authorised officers under the 2021 By-law, to take appropriate actions if and when necessary in the course of the assembly.
The Court accepts that there is a reasonable evidentiary and logical foundation for each of these propositions, and that they would serve as mitigating factors in relation to the risks posed by the assembly. But it is a significant overstatement to say that these factors will in combination serve to reduce the risk to public safety to an acceptable level.
While PAG organisers and marshalls have experience in dealing with a number of public assemblies, including regularly in Hyde Park, there is no evidence that they have managed an assembly with anything analogous to the logistical challenges and risks associated with a large scale march from Hyde Park culminating at the Opera House forecourt with all of its physical constraints. It is the exceptional risks associated with the particular route and ultimate destination of the procession, considered in the context of the likely size of the crowd and its potential movement, that give rise to the Commissioner’s application and the Court’s conclusions as to the unacceptable nature of those risks.
As to the powers of NSW Police to respond to problems as and when they emerge, again that would be a mitigating factor but the Court was not given any basis in the evidence to conclude that this would be an effective answer to the practical problems that may well be faced by the organisers and the police in managing a large crowd in the particular physical environment of the Opera House precinct and surrounds, even assuming that adequate resources could be summoned and deployed in the very short period of time between now and the proposed assembly and procession.
In reaching our conclusion, we have also taken into account the paucity of information from organisers as to specific measures to be taken to control the estimated crowds other than confident assertions that there will be at least 100 marshalls who have co-operated successfully with police in respect of past protests, including that which recently occurred on the Sydney Harbour Bridge. It was accepted that the organisers of the planned procession have not engaged in any discussions with either the Trust or the RBGD Trust.
The first to third defendants emphasised in submissions that they have dealt with NSW Police, who are the appropriate conduit for communications about the organisation of the march. The defendants also emphasised that in circumstances where the Commissioner bears the onus in bringing an application under s 25, it ought not tell against the defendants that they have not engaged with the Trust or the RBGD Trust. These submissions do not allay the Court’s concerns about the lack of such engagement, and what that entails for the overall assessment of the evidence.
In circumstances where the defendants were aware of the concerns of NSW Police about the acute logistical challenges of the Opera House environment and the problems associated with relying on egress into the Royal Botanic Gardens (and where those challenges are reasonably obvious given the anticipated number of participants and the nature of the ultimate destination), it was incumbent on the organisers of the proposed assembly, in answer to the Commissioner’s concerns supported by detailed evidence, to give a cogent account of how the event would practically play out, including on critical questions about site capacity, regulation of access and appropriate points of ingress and egress, and provision for emergencies, including access of emergency vehicles. Because of the identified difficulties with the site, that necessarily required an understanding of the arrangements that would be in place with the Trust and the RBGD Trust. The absence of consultation in this regard reinforces the conclusion that there are significant risk factors and the Court has no proper basis to be satisfied that they have been addressed and will be capable of effective management. It is not a question of hoping for the best or hoping that things don’t go wrong.
The Court’s assessment, based upon the evidence led by the Commissioner including that given by Assistant Commissioner McKenna under cross examination, is that the proposed public assembly will involve a significant and unacceptable risk to public safety. There are obvious reasons why, consistent with the Commissioner’s evidence, mass events at physically constrained venues require extensive and detailed planning including close consultation between stakeholders, often extending over many months. In the face of credible assessments of real safety concerns and risks, optimistically asserting that, without such planning but with goodwill and cooperation, a procession and assembly of the magnitude and complexity proposed is capable of being safely conducted is not sufficient.
An additional consideration that reinforces our conclusion is the substantial impact and financial burden that would fall on the Trust, its patrons and performers scheduled to be involved in events that would need to be cancelled if the procession were to go ahead. These adverse impacts would not on their own justify the making of a prohibition order, and we are mindful that inconvenience and disruption to others will not ordinarily be sufficient to justify prohibiting others from engaging in important acts of political assembly and communication. But nor should it be overlooked that the proposed procession in this particular case would have significant adverse impacts on a number of people which go beyond merely trivial inconvenience.
We are comfortably satisfied that an order should be made pursuant to s 25 of the Act, in the terms sought by the Commissioner, prohibiting the holding of the proposed public assembly.