New South Wales Commissioner of Police v Bainbridge

PARTIES : New South Wales Commissioner of Police (Plaintiff) Alex Bainbridge (Defendant)

COUNSEL : Mr M. Spartalis (Plaintiff) Mr M. Bozic SC/Mr M. Muston and Ms S. Callen (Defendant)

Michael Antrum SOLICITORS : General Counsel for NSW Police Force (Plaintiff) Watsons Connaught Offices (Defendant)

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

030096/07 - NEW SOUTH WALES COMMISSIONER OF POLICE v ALEX BAINBRIDGE

1 HIS HONOUR: There is presently being held in Sydney an international conference involving a number of visiting dignitaries. Although no doubt worthy in their own way, most are not remarkable in a sense relevant to Australians. Amongst those visiting dignitaries, however, is the President of the United States. Mr Bush excites perhaps indifference in some, support in some and anger in others. All these feelings, no doubt, have a legitimate foundation depending on the experience, character and cast of mind of the person who has them. It cannot be denied that there are many who feel strongly that his presence in Australia should be not encouraged. 2 Amongst the reasons for the strong feelings concerning the President is the war presently occurring in Iraq. War is a subject upon which most persons of any sensibility have strong feelings, mostly, I suspect, of regret; some, though rare, with approbation; and many with dread and apprehension. The combination of Australia's involvement in the Iraq War and the presence in Sydney of the President of the United States is bound to excite strong feelings in many persons. 3 In a democratic society such as ours, providing those feelings do not lead to breaches of the law, they are entitled to be communicated. One of the ways in which judgments of this kind are communicated in a democratic society is by public assemblies which seek to persuade other citizens of the cause espoused by those demonstrating and to indicate to those citizens who are of a different view that they are mistaken. The other purpose of such a demonstration is so that those of one mind upon the particular question can encourage and support each other. 4 All these are perfectly reasonable and entirely acceptable modes of behaviour in a democracy. 5 For the purpose of undertaking such a demonstration, an application was made by persons who described themselves as the "Stop Bush Coalition", notifying the Commissioner of Police of an intention to hold a public assembly on 8 September 2007. The spokesperson for this group is the defendant, Mr Bainbridge. 6 The application informed the Commissioner that it was intended to hold - "a public assembly being a procession of approximately 5,000 persons which will assemble at Sydney Town Hall at approximately 10am and disperse at approximately 11.30am and at approximately 11.30am the procession will commence and proceed along George Street, turn right into Bridge Street, left into Macquarie Street and then proceed to the Sydney Opera House. At or in front of the Sydney Opera House the assembly will remain until approximately 2pm and then disperse." It was said that the purpose of the proposed assembly "is to protest against Australian Government policy in relation to the wars in Iraq and Afghanistan, climate change and workers' rights". 7 Certain discussions then occurred between members of the police force and Mr Bainbridge. Following those discussions, notice of intention to hold a public assembly in respect of a different area of the city was given on 8 August 2007. That notice said that it was intended to hold - "a public assembly being a procession of approximately 5,000 persons which will assemble at Sydney Town Hall at approximately 10am and disperse at approximately 11.30am and at approximately 11.30am the procession will commence and proceed along George Street, turn right into Martin Place, right into Macquarie Street and then proceed to the Hyde Park north. The rally will continue at Hyde Park until around 3pm."

The purpose of the proposed assembly "is to protest against Australian Government policy in relation to the wars in Iraq and Afghanistan, climate change and workers' rights". 8 I have already referred to strong feelings, legitimately held, by members of the community concerning war in general and the wars in Iraq and Afghanistan in particular. Climate change is also an area of public discourse and concern which excites strong feelings and one would need to be blind not to be aware that workers' rights are also the subject of strong opinions. 9 The visit to Australia of the President of the United States to participate in a meeting of considerable international significance will obviously give rise to considerable publicity in Australia and around the world. This is enough to show, without more, that there would be many persons espousing the causes specified in the application who would wish to denounce the policies involved, encourage each other in continuing political action against them and also to demonstrate to the Australian and international public, by virtue of the media, both the strength of their opinions and the measure of support in the Australian community for those opinions. 10 It is therefore not surprising that Mr Bainbridge and others with whom he is associated in what has been called the "Stop Bush Coalition" have, by every lawful means at their disposal including the internet encouraged people of like mind to come to Sydney for the purpose of the proposed demonstration. I do not intend to analyse here the material that has been tendered on the number of persons likely to take part, but I think that it is reasonable to approach this matter upon the basis that well in excess of 10 or 15,000 people, possibly up to 20,000 people, and possibly well in excess of that number, will wish to be a part of this demonstration. Issues, therefore, of public safety are of considerable importance. 11 The notice is given for the purposes of obtaining authorisation for the public assembly under Part 4 of the Summary Offences Act 1988. Where the assembly is authorised then the effect is that any person who participates is (by virtue of s24) not - "by reason of any thing done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place." 12 If the Commissioner of Police in the first instance notifies the organiser of the public assembly that it is not opposed, then it will be authorised within the meaning of ss 23 and 24. 13 The organiser does not have to accept however, a refusal by the Commissioner to authorise it and may indicate that he or she proposes to continue. The Commissioner, subject to various conditions which are not material in the present case, may apply to a Court for an order under s25 "prohibiting" the holding of the public assembly in respect of which the notice was given. An organiser may apply to a Court also for an order authorising the holding of the assembly under s26. The task of the Court is independently to determine the issue reposed in it by the legislation and judge for itself whether the relevant (but unstated) competing considerations justify the order sought. 14 Section 27 requires the Court to decide the application (whether by the Commissioner or the organiser) "with the greatest expedition possible so as to ensure that the application is not frustrated by reason of the decision of the Court being delayed until after the date on which the public assembly is proposed to be held". It is for this reason that only a short time was made available to the parties to adduce evidence in relation to the application and why this judgment is ex tempore rather than reserved.

15 Although the Act refers to "prohibition", an order made in respect to an application under ss25 or 26 prohibits nothing. The purpose of the authorisation of a public assembly in cases where they are a due exercise for the democratic right of free speech is to facilitate them by protecting participants in appropriate circumstances from prosecution for certain offences which might otherwise be regarded as having been committed. 16 The process requires the Court to balance the important, indeed fundamental, right of freedom of assembly and freedom of speech on the one hand, and the need to regulate the exercise of that right where it is necessary to do so to avoid injury to persons or property or otherwise unduly to interfere with the undertaking by other citizens of lawful conduct. 17 It is implicit in what I have said that, merely because an assembly is not authorised and merely because it is the subject of a "prohibiting" order, will not make an assembly unlawful. If there is a "prohibiting" order it simply means that those participating are not excused from liability in respect of certain other offences which might, though not necessarily would, be committed in the course of the assembly. Any "prohibition" order that the Court makes, while it might - and the matter is not entirely clear - prevent Mr Bainbridge from being part of an unauthorised or "prohibited" assembly, could not prevent any other members of the public from exercising their democratic right to assemble and to express their opinions, although in doing so they are subject to the laws which I have mentioned. 18 The demonstration proposed in the second notice has already been significantly frustrated by the unilateral decision of the Commissioner acting under the APEC Meeting (Police Powers) Act 2007 to close off King Street at the intersection of George Street, so that the only mode of unimpeded access into King Street is via a footpath leading away from Macquarie Street. The fact that such a barrier has been placed in that position does not prevent ingress of all persons, but passing the barrier is subject to the control measures applied on an individual basis by the police. For all practical purposes, therefore, no demonstration can proceed further along George Street in a northerly direction past King Street. This change to the possible route has changed substantially the character of the demonstration and increased the public safety risks involved. 19 Two serious problems have formed the subject of the evidence before me. The first is based upon an assumption that the demonstration will be a peaceful one, that no violence will be offered or no significant violence offered by any person. The evidence of the police officers however, is that, as I understand it, the movement of a substantial number of people in excess of 10,000, possibly 20,000 or even more, down the narrow confines of George Street, even if all were minded to remain calm and merely to express in whatever way was proper their opinions about the subject matter of the demonstration, gives rise to a real risk that, because of unpredictable movement of the crowd, some persons might be injured in the enclosed area where people are or might be tightly packed. The narrow street and the barrier at its end might cause a "tunnelling effect". Persons might be forced against shop windows; they might be forced against the barrier erected by the police; they might be forced against each other. Once this happens, the response might lead to further instability and hence injury. 20 The case for the police contains a second element which makes, it is said, the risk of injury considerably greater. It is clear that a number of groups are planning to participate in the demonstration and adopt tactics designed to confront the police and encourage others to do so. Confrontation which merely amounts to offensive language is, though no doubt uncomfortable, of little serious account. However, it is reasonable to infer that not all will confine their actions to words and that there is a substantial risk that a number of persons will attempt direct physical confrontation. In a confined space, the effect of such conduct obviously gives rise to a significant risk of injury, both to persons and property. If the crowd is, as it is likely to be, tightly packed, persons who do not wish to be part of any physical confrontation will find it difficult to leave that area. They might well become frightened. It is easy to see, in that situation, there is a substantial danger of injury. The police, who otherwise would be expected quickly to bring any violence or threatened violence to an end, may find it difficult to obtain access to the place where the violence is threatened or occurring. 21 The risk, therefore, not only that there will be particular acts of violence but that they might lead to more substantial injury as a knock-on effect cannot be dismissed. 22 The apprehension of conduct threatening or involving violence is not merely left to supposition. The material tendered by the Commissioner, a number of intelligence reports, refers to the risk. I propose to quote several passages in the documents - "Stop Bush Coalition has incorporated the words 'join the peaceful protest' into promotional material for the Stop Bush rally. The inclusion of such words were criticised by a group known as Mutiny. Mutiny claimed that such a statement 'aligns with the repression of dissent' and would contribute to a situation seen post G20 where issue motivated groups publicly denounced violent protestor actions. Whilst it is assessed that the majority of demonstrators would favour a peaceful demonstration, it cannot be discounted that some individuals may use the coverage of a large mass protest to stage their own acts of civil disobedience and violence as was seen at G20 in Melbourne."

Again - "It is highly probable that some issue motivated groups [IMGs] are planning a sequence of events during APEC Leaders Week to parallel previous gatherings of transnational economic and political institutions, for example G8 (Germany 2007) and G20 (Melbourne 2006). Previous experience has shown that protest organisers cannot ensure all individuals involved in a protest which has been advertised as 'peaceful' will in fact maintain the decree of non-violence. With the expectation of a high level of media coverage some IMGs, particularly those identifying themselves as the anarchist collective, are likely to utilise peaceful demonstrations to deploy violent tactics."

By way of example, in relation to the G20 summit protests in Melbourne in mid November 2006, "Mutiny" (a group identified as part of the Coalition) issued a "call out" to form a "protest collective". The following is an extract- "This is what we're planning: To confront the G20 more directly: To go to the Grand Hyatt Hotel the morning of its meeting, Saturday November 18, prepared for radical disobedience. We want our disobedience and our creation of other ways of living to be effective as we can make it. We have no time for violent macho fantasy or delusions about Gandhi...We are choosing not to be compliant citizens who make their wishes, and show their faces, to 'their representatives.' Rather we are relying only on our own disobedience and our co-operative power."

As part of a larger demonstration, according to the intelligence report - "a small group of protestors wearing white overalls (known as an anarchist collective 'Arterial Bloc') conducted violent protest activity which resulted in extensive property damage and injuries to police." 23 A number of other quotations are contained in the intelligence reports. For example, the Melbourne Alliance for Civil Disobedience Co-ordination says - "We aim to disrupt the functioning of any APEC-related activities in Sydney in September 2007...We defend our right to mass civil disobedience and mass direct action and we will attempt to use these tactics as part of our resistance to the agenda of APEC...We reject the police and the state's attempts to define and control our protest and our resistance through the use of declared areas, protestor black lists and other forms of state intimidation."

The Socialist Party National Organiser is quoted as saying - "We are not ruling out some further, more militant, action aimed at disrupting the APEC proceedings...Corporate offices in central Sydney may be targets, blockades built, and areas around the APEC meeting that police have designated as no-go zones may be infiltrated." It is said that - "A core member of Mutiny has issued a 'Call for Shared Intent' regarding protests during APEC 2007TM Leaders Week: 'A call for direct action at the anti-APEC protests will be big news in Sydney...This is a statement of our intent to disrupt the APEC conference...We call out to others to join us in planning creative, strategic disruptions, and to plan your own actions of disruption.'" 24 There are other statements to similar effect. Of course, such statements do not refer, in direct terms, to violent confrontation. Nevertheless, it is reasonable to read them as capable of such an interpretation. Certainly, there is no exhortation not to use violence or other unlawful actions. 25 Where a large demonstration such as that planned by the Stop Bush Coalition is to occur, it is obvious that other groups, or other persons, both known and unknown, and who share the political views espoused by the Coalition but not their peaceful intentions, might well attempt to undertake and excite violence to a greater or lesser degree. Once such violence commences, it is difficult to predict how far it might go. Leaving aside those who propose to use significant violence, the fact is that, in a crowd situation where emotions are heightened violence can feed on itself, and what starts out as comparatively trivial can easily escalate into something much more serious. 26 These, of course, are risks only. I do not have any doubt that the overwhelming majority of those attending the demonstration wish merely to exercise their democratic right of lawful assembly and freedom of expression, and not only do not intend to be violent but would abhor any acts of violence. But I think it is Pollyannaish to think that everyone there will share that view. 27 Is the risk that others with more malign intents will attend such that the prohibition order sought by the Commissioner should be made? It is already implicit in what I have said that the risk of violence growing, and the risk of unintended injury to members of the public, and for that matter to the police, must be increased where the physical environment involves a very large crowd and very limited means of departure or egress. 28 Mr Bozic SC for Mr Bainbridge has rightly pointed to the very substantial public interest in the staunch maintenance of the rights of lawful assembly and freedom of speech. If these are to be more than mere words, then even where substantial inconvenience might be caused to members of the public, and perhaps substantial costs involved in ensuring the safety of the public and the safety of the visitors to Sydney for the APEC conference, a demonstration in which people are exercising their rights should not be inhibited. In other words, a certain degree of disruption and public inconvenience is the price that we must pay as a free society to enable fundamental rights to be exercised. Nor would it be right to prevent an assembly because absolute safety to persons, or property, cannot be guaranteed. There is always a risk. But, overwhelmingly, our citizens are peaceful and opposed the notion that violence is an appropriate way of advancing a political cause. At the same time, there are real issues of public safety connected with a demonstration or assembly of the kind now proposed. 29 It is necessary to be realistic about what is truly at stake here now that the action of the Police Commissioner in closing off King Street has prevented the Coalition from taking the route for which it originally applied. The Commissioner has proposed an alternative route for the assembly to take. That route is still in the centre of the CBD. It commences at the same point, namely at Town Hall. It goes down a major public thoroughfare, Park Street, and it ends at a major public park in the centre of the city. It is difficult, as an outsider, to see what disadvantage the proposed demonstrators would suffer by undertaking that route now that they are unable to use Martin Place. 30 In pointing to this fact, I am, of course, not at all suggesting that assemblies must take place where it seems sensible to an outsider they should. Nor am I suggesting that, questions of public safety aside, assemblies ought not be able to express their opinions where they wish to do so. It is also fair to point out that the demonstration as planned before the proposed King Street barriers would not pose anything like the dangers of the present route. 31 In this case Mr Bozic SC was left, I think, to distinguish, in terms of the objectives of the demonstration, between the route proposed by the Commissioner and that perforce proposed by his client, by pointing, in the latter case, to the fact that the demonstration would end at a barrier erected by police, which some might well regard as excessive control of citizens going about their lawful conduct in their own city and hence a fair subject of protest. 32 The identification of the barrier as the subject of protest suggests, however, that it might also be a target. Although I appreciate that many object to the discretions granted by the Parliament to the police to control movement in Sydney over this week (and I do not express an opinion at all one way or the other as to whether it was wise, or appropriate, or reasonable for the Commissioner to place a barrier at King Street), that the demonstration might involve a protest against the barrier in the particular circumstances here, to my mind, increases the risk to public safety. 33 Freedom is always in tension with regulation in a democratic society. Regulation is designed to enhance or maintain the freedom of citizens from violence, fear, intimidation or disruption. It must go no further than is reasonably required for that purpose. The responsibility given by Parliament to the Commissioner involves difficult judgments. If no reasonable alternative route had been offered to the Coalition, far greater weight than I have presently accorded to the right of lawful assembly and freedom of expression in exercising the powers of the Court under s25 would need to be given. What the Police Commissioner seeks is that the proposed assembly is moved a few blocks into a position where it is less likely that there will be injury to persons and property. In my view, this is a reasonable alternative route. 34 Accordingly, I grant the orders sought. 35 There will be no order as to costs.

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