Raul Bassi v Commissioner of Police

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] On 6 June 2020, a public assembly was conducted involving an initial gathering at the Sydney Town Hall and then a procession to Belmore Park. Notice of Intention to hold a public assembly had been given by the Appellant to the Commissioner of Police (NSW) (the Commissioner) on 29 May 2020 in accordance with s 23 of the Summary Offences Act 1988 (NSW) and a form prescribed by the Summary Offences Regulation 2015 (NSW). As originally notified, the Appellant as organiser of the proposed assembly had contemplated a vigil of up to 50 people at Belmore Park. In the course of the week leading up to the proposed assembly, the Appellant became conscious of the fact that many more than 50 people were likely to convene and that a new venue would be required. In a meeting with the Police on 4 June 2020, he suggested that an assembly of up to 5000 would convene at the Sydney Town Hall and process to Belmore Park. The Appellant understood that the Commissioner agreed with this change of proposal and did not oppose the conduct of an assembly in amended form. An email sent by the Police to the Appellant on 4 June 2020 appeared to support this view. On 5 June 2020, however, the Commissioner of Police commenced proceedings to prohibit the conduct of the proposed public assembly. In an urgent hearing in the afternoon and early evening of 5 June 2020, the primary judge held that the Commissioner had not in fact agreed to the assembly in amended form on 4 June 2020, that the amendment amounted to a new notice of intention within the meaning of the Summary Offences Act and, not having been made within 7 days of the proposed assembly, the Appellant was required to obtain authorisation from the Court for the proposed assembly in amended form pursuant to s 26 of the Summary Offences Act. The primary judge refused an oral application for authorisation on the basis that public health considerations associated with the COVID-19 pandemic outweighed the importance of orderly public protest. The principal issues on appeal were: 1. whether the primary judge erred in concluding that the Appellant had not given notice on 29 May 2020 under section 23(1) of the Summary Offences Act in relation to the public assembly to be held on 6 June 2020; 2. whether the primary judge erred in holding that the amendment of the notice on 4 June 2020 had the effect that a new notice had been given; 3. whether the primary judge erred in not granting the declaration sought to the effect that the Commissioner had notified the Appellant that the Commissioner did not oppose the holding of a public assembly as described in the notice amended on 4 June 2020. The Court held (Bathurst CJ, Bell P and Leeming JA), allowing the appeal: 1. The primary judge erred in concluding that the Appellant had not given notice on 29 May 2020 under section 23(1) of the Summary Offences Act in relation to the public assembly to be held on 6 June 2020. 2. The primary judge erred in holding that the amendment of the notice on 4 June 2020 had the effect that a new notice had been given. 3. The primary judge erred in not granting the declaration sought to the effect that the Commissioner had notified the Appellant that the Commissioner did not oppose the holding of a public assembly as described in the notice amended on 4 June 2020. 4. Observations by the Court on the operation of Part 4 of the Summary Offences Act.