Padraic Gibson (on behalf of the Dungay family) v Commissioner of Police (NSW Police Force)

In a judgment delivered at midday on Sunday, 26 July 2020, after an urgent hearing in the duty list spanning 23 and 24 July 2020, Ierace J (the primary judge) acceded to an application by the Commissioner of Police (NSW) (the Commissioner) for an order pursuant to s 25(1) of the Summary Offences Act 1988 (NSW) (the Act) prohibiting a proposed public assembly in the Sydney Central Business District on 28 July 2020 (the proposed assembly).

The primary judge also dismissed a Cross-Summons that had been brought by Mr Padraic Gibson (the Applicant) seeking a declaration pursuant to s 75 of the Supreme Court Act 1970 (NSW) that the Supreme Court of New South Wales lacked jurisdiction to hear the Commissioner’s application for a prohibition order under s 25 of the Act.

The proposed assembly was the subject of a notice of intention given by the Applicant on 14 July 2020 pursuant to section 23 of the Act and cl 13 of the Summary Offences Regulation 2015 (NSW) (the Regulation). The proposed assembly was for “about 500 people”, to be held on Tuesday, 28 July 2020 between 12 noon and 12.30pm at Sydney Town Hall Square, to be followed by a public procession along certain streets of the Sydney Central Business District, ending in a rally in Macquarie Street outside the State Parliament House. The stated purpose of the proposed assembly was “[t]o protest against Aboriginal deaths in custody and demand justice for David Dungay Jnr”.

This case represents the fifth occasion in the two last months on which application has been made to this Court either to authorise or to prohibit a public assembly pursuant to the Act: see Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109 (Bassi); Commissioner of Police v Bassi [2020] NSWSC 710; Commissioner of Police (NSW) v Supple [2020] NSWSC 727; Commissioner of Police, New South Wales Police Force v Kumar (OBO National Union of Students) [2020] NSWSC 804; and Commissioner of Police v Gray [2020] NSWSC 867 (Gray).

These cases have been heard at a time when, on the one hand, the state and the nation are endeavouring to cope with the profound public health challenges (and economic consequences) of the COVID-19 pandemic whilst, on the other hand, there is a strong and legitimate desire to demonstrate peacefully against the scourge of Aboriginal deaths in custody.

The essence of the primary judge’s decision was articulated in [84] of his reasons, as follows:

The Act establishes a regime for the authorisation or prohibition of public assemblies, recognising the interests of public safety and freedom of speech, values which may, but do not always, compete. The Act endeavours to secure an accommodation of these values through a process of consultation and negotiation, with the Supreme Court, in effect, established as the ultimate arbiter of any dispute which is not able to be resolved consensually.

The key statutory provisions of the Act are as follows:

The Regulation is also relevant, with cl 13 providing:

Schedule 1 to the Regulation prescribes a form to be used by a person seeking to organise a public assembly. In the present case, there is no issue that a Notice of Intention was properly given by the Applicant.

In Bassi at [17], this Court made the following observations about the statutory scheme established by the Act:

At [15] of his reasons for judgment, the primary judge referred to a submission by the Applicant that both the Commissioner and the Attorney General (who intervened in the hearing at first instance) had conceded in written submissions that authorisation of a “public assembly” under the Act confers immunity on participants from penalties for a breach of cl 18 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (NSW), which commenced on 1 July 2020 (the Public Health Order). Clause 18 of the Public Health Order directs that a person must not participate in an outside public gathering of more than 20 people. His Honour referred in the context of this apparent concession to the consideration of this question in Gray at [51]-[57].

Although no issue arose in the present case as to the extent to which s 24 of the Act affords a protection against a charge of breaching cl 18 of the Public Health Order, it is by no means obvious to us that that section of the Act confers an immunity for breach of cl 18, especially in circumstances where the Public Health Order provides in cl 18(3) a list of exceptions of which an “authorised public assembly” within the meaning of the Act is not one.

A key section of the Act for present purposes is s 27, which provides that:

Section 27 is in identical terms to its predecessor, s 8 of the Public Assemblies Act 1979 (NSW), which was enacted consequent upon the repeal of the Summary Offences Act 1970 (NSW). The Explanatory Note that accompanied the introduction of the Public Assemblies Bill simply stated that cl 8 required the Court to decide the application as expeditiously as possible.

Section 27(2) of the Act did not stand in the way of the appeal that was brought in Bassi, because no decision was made at first instance in that case “on an application under section 25(1) or 26(1)” of the Act. As the Court in Bassi explained at [46]-[48]:

That is to say, this Court’s earlier decision was not an appeal from an application under ss 25 or 26 of the Act. It was an appeal from the Court’s dismissal of an application for a declaration that the proposed public demonstration, having been notified more than 7 days in advance and the Commissioner’s non-opposition to it having been communicated to Mr Bassi, was authorised. Section 27 did not apply. The ordinary right of appeal under s 101 of the Supreme Court Act was accordingly available.

There is an obvious rationale for the lack of any right of appeal from a decision on an application under ss 25 and 26 of the Act. Applications under ss 25 and 26 are likely to be made within 7 days of the proposed public assembly. The Parliament has required the Court to determine the application “with the greatest expedition possible”, in order to prevent the litigation from stultifying the proposed public assembly. It is important that people who may consider participation in an assembly know and understand with certainty whether or not the assembly has been prohibited by an order of this Court, or authorised. That knowledge should not be clouded by the prospect of an appeal, carrying with it the possibility of a last minute reversal of the status of the assembly.

Consistently with that purpose, the Parliament has provided that there shall be a single hearing of any such application. There may not be further application at first instance (see s 27(3) of the Act), nor may there be an appeal. It may be seen that those provisions cut both ways. Either the organiser or the Police may be dissatisfied with the outcome of an application under ss 25 or 26. In both cases, the dissatisfied litigant has no right of appeal, nor any right to bring a further application.

There is nothing especially unusual about the absence of a right of appeal. There are many decisions from which no appeal lies. No appeal lies from many decisions of the District Court of New South Wales (including the very numerous decisions made each year allowing or dismissing an appeal from the conviction or sentence by the Local Court of New South Wales): see Muldoon v Church of England Children's Homes Burwood (2011) 80 NSWLR 282; [2011] NSWCA 46 at [8]. No appeal lies from a decision of the Supreme Court under the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW): see The Bell Group Ltd v Westpac Banking Corporation (2000) 104 FCR 305; [2000] FCA 439 at [157]-[159].

Appeals are creatures of statute. In every case, a right of appeal exists only because the Parliament has said there is to be one. In the case of applications under ss 25 and 26 of the Act, Parliament has said there should not be any appeal.

To the extent that the primary judge heard and determined an application under s 25(1) in the present case, s 27(2) stands squarely in the way of a right of appeal from the decision on that application. As will be seen, this difficulty was recognised by the Applicant as reflected in the way in which the grounds of appeal in this Court were formulated.

In an admirable and detailed judgment produced with great speed, the primary judge exercised the discretion undoubtedly reposed in him to prohibit the proposed assembly. The outcome of the exercise of discretion is reflected in the primary judge’s conclusion which has been extracted at [6] above.

Before the primary judge reached that stage of the decision making process, however, his Honour dealt with two threshold issues of some complexity.

The first concerned a constitutional argument to the effect that the Act needed to be construed and read in light of the implied constitutional protection of freedom of political speech: see McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34; Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448; [2019] HCA 11. No ground of appeal is raised in respect of that argument or the manner with which it was dealt by the primary judge.

The second issue concerned the Applicant’s jurisdictional challenge as raised by the Cross-Summons. That issue was whether the Court’s jurisdiction to entertain the application for an order for prohibition was conditioned on compliance with the requirements of s 25(2) of the Act, the terms of which have been set out at [8] above. In short, the Applicant contended that the proper process had not been followed, that there was no genuine consideration of the matters put by the Applicant as the organiser of the proposed assembly at the conference, as required by s 25(2) of the Act, or by the Commissioner’s delegate who made the decision to make the application, and that that decision-making process was tainted by apprehended bias. It was contended that proper and lawful compliance (that is to say, compliance with an absence of prejudgment or bias) with s 25(2) was a precondition to any exercise of jurisdiction by the Court.

The primary judge dealt with the second threshold issue at [26]-[59] of his reasons for judgment, in essence finding that the decision to make the application was made by the Commissioner’s delegate, Acting Assistant Commissioner Maloney, that there had been no failure to comply with the requirements of s 25(2) and that the decision-making process that had resulted in the application to the Court was not tainted by apprehended bias. Because of these findings, it was not necessary for the primary judge to consider the effect on the Court’s jurisdiction of any non-compliance.

Given the urgency of the appeal and to understand the matters sought to be raised by the Applicant in this Court, it is convenient to set out the primary judge’s treatment of the jurisdictional issue in full:

Shortly after 8.00pm on Sunday, 26 July 2020, the Applicant lodged a Summons seeking leave to appeal from the decision of the primary judge. The appeal was heard at 2.15pm on Monday, 27 July 2020.

The grounds of appeal contained in that application for leave to appeal all related to the Supreme Court’s jurisdiction to hear the Commissioner’s application, and whether or not that jurisdiction depended on compliance by the Commissioner with the requirements of s 25(2) of the Act.

The alleged non-compliance with s 25(2) of the Act was detailed in the following particulars in the Summons:

The alleged non-compliance fell into a number of different categories.

Particulars (a) and (b) were predicated on the decision to bring the s 25(1) application to the Supreme Court having been made by Commissioner Fuller before any consultation process occurred, as contemplated and indeed required by s 25(2) of the Act. (There is, of course, a distinction between a decision to make an application and the making of an application. Section 25(1) of the Act is concerned with the latter, not the former.)

The remaining particulars were predicated on the decision to bring the s 25(1) application having been made not by Commissioner Fuller but by Acting Assistant Commissioner Maloney under power delegated to her. The primary judge accepted that it was Acting Assistant Commissioner Maloney who had made the decision to make the s 25(1) application. This decision was said by the Applicant to have been vitiated by various matters reflected in the particulars. To the extent that the primary judge rejected the Applicant’s claims at first instance that Acting Assistant Commissioner Maloney had prejudged the matters put to her for consideration by the Applicant, had not given them genuine consideration or would be perceived to have been biased in her consideration of those matters, the primary judge’s conclusions were challenged as wrong.

It was contended that the primary judge “erred in jurisdiction by granting the application by the Respondent under section 25(1) of the Summary Offences Act 1988 (NSW) where the preconditions in s 25(2)(b) and/or (c) to the making of that application had not been satisfied”. In short, the Applicant’s argument was that, because in terms s 25(2) of the Act provided that:

The formulation of the grounds of appeal by the Applicant in the way described above recognised the statutory restrictions on an appeal from the decision to prohibit the proposed assembly (see [14] – [21] above). It is important to emphasise that the Applicant did not attack the ultimate discretionary decision of the primary judge to prohibit the proposed assembly, but rather attacked this Court’s jurisdiction to have entertained the application for a prohibition in the first place.

In our opinion, such an attack does not amount to an appeal on a decision “on an application under section 25(1) or 26” within the meaning of s 27(2) of the Act, and that subsection did not stand in the way of the appeal. This is so for a number of reasons.

First, there is no incompatibility with the statutory language. Section 27(2) of the Act relates to an application under ss 25(1) and 26. It assumes the conditions for there being an application under either of those sections are satisfied, and prohibits an appeal from the evaluative decision of the judge as to whether or not the public assembly should be prohibited or (in the case of s 26) permitted. This is consistent with the requirement for expedition. The section does not deal with the situation where it is contended that any preconditions for the bringing of an action under ss 25 or 26 have not been met.

Secondly, the Court either had jurisdiction or it didn’t. The common sense rationale for denying a right of appeal identified at [18] above does not apply with the same force to a question concerning the Court’s jurisdiction to make orders with important public consequences, whether or not those consequences entail the prohibition or authorisation of a public assembly.

Thirdly, the appeal is tied directly to the Cross-Summons and its dismissal. That process was not an application under ss 25 or 26 of the Act. Rather, it sought declaratory relief in respect of this Court’s ability to entertain the Commissioner’s application under s 26 in the circumstances of the case.

It follows that the Court must entertain the Applicant’s appeal. Although in form the Applicant sought leave to appeal, as the decision to dismiss the Cross-Summons was a final decision going to a question of jurisdiction, the Applicant did not require leave to appeal.

For the reasons that follow, however, the appeal did not succeed.

The Applicant accepted that unless the consequence of non-compliance with the procedures prescribed in s 25(2) of the Act was to deprive this Court of jurisdiction, whether or not there had in fact been non-compliance, including relevantly a want of procedural fairness, did not fall for consideration.

Accordingly, it is logical first to deal with the issue of jurisdiction, assuming for the purposes of the argument and contrary to the primary judge’s decision, that there had been relevant non-compliance with the requirements of s 25(2) of the Act, and that the Commissioner’s application was brought in the face of the prohibition on him doing so in the opening words of that subsection.

Writing extra-judicially (see M Leeming, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, 2020, Federation Press) at 41), Leeming JA has made reference to the complexity of:

Writing judicially, in 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 (2014) 88 NSWLR 488; [2014] NSWCA 409 at [90] (2 Elizabeth Bay Road), Leeming JA observed that:

His Honour made reference to a series of possible outcomes depending on the construction of any given statute containing a statutory prohibition of the kind identified. One possibility, referred to by his Honour at [94], was where:

The analysis bears some affinity with that applied to administrative decisions made where there has been non-compliance with a particular specified procedure: see, for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28. In both cases, it is a question of the proper construction of the statute.

In Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32 (Berowra), the High Court considered and construed s 151C(1) of the Workers Compensation Act 1987 (NSW), which relevantly provided that:

The High Court rejected an argument that a pre-condition of the Court’s jurisdiction was the passage of six months since notice of the worker’s injury was given to the employer. Proceedings had been commenced within this six month window, and the worker accepted an offer of compromise. The employer’s attempt to have the proceedings declared a nullity, and to be given leave to withdraw the offer of compromise, failed.

In reaching this decision, the plurality in Berowra at [31] made reference to what it identified as the “basic rule”, that a legislature does not intend to cut down the jurisdiction of the courts “save to the extent that the legislation in question expressly so states or necessarily implies”. The Court also cited the well-known observation of Sir Owen Dixon in Parisienne Basket Shoes Proprietary Limited v Whyte (1938) 59 CLR 369 at 391; [1938] HCA 7 that:

A related rule to the “basic rule” referred to in Berowra is that most commonly associated with the High Court’s observation in The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54, namely that it is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.

In the present case, we do not discern any legislative intention to condition the existence of the jurisdiction of the Court (defined as the District Court and the Supreme Court) upon the lawful compliance by the Commissioner with the procedure set out in s 25(2) of the Act.

First, there is not to be found in Pt 4 of the Act which is concerned with “Public Assemblies” any express limitation on the jurisdiction conferred on the Court to entertain an application either by the Commissioner under s 25(1) of the Act, or the “organiser” under s 26(1) of the Act.

The plain intention of Pt 4 is that, if agreement cannot be reached between the organiser and the Commissioner in relation to a public assembly, the question as to whether or not the assembly should be prohibited (or authorised in the case of a s 26 application) is to be resolved by the Court, and that resolution is to occur with the “greatest expedition possible”: see s 27(1) of the Act. The Court’s function in this regard is, as the Commissioner submitted, important “not only for the organiser and the police, but for all persons who may want to participate in the assembly and all persons who may otherwise be affected by the assembly.”

The short time frame for the process also points powerfully against the Applicant’s jurisdictional argument. Whilst the Court undoubtedly has jurisdiction to determine its jurisdiction, contestable claims as to lawful compliance with the s 25(2) procedure (for example, where there are factual disputes as to what occurred at a conferral, or whether or not particular conduct amounted to bias or whether or not genuine consideration was given to representations) have the potential to interfere with the need for the Court urgently to make an assessment as to whether or not a proposed and contested assembly should be prohibited or authorised. That tells strongly against the Applicant’s argument.

The legislative forerunner to s 25(2) was s 6(2) of the Public Assemblies Act. In delivering the Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 23 April 1979 at 4920), the then Attorney General, Mr Walker said of cl 6(2) of the Bill:

True it is that s 25(2) of the Act, consistent with the legislative history, requires a practical and sensible process of engagement and potential negotiation to be followed by the Commissioner (or his delegate) and the organiser. A failure to adhere to the process contemplated by s 25(2), however, does not affect any accrued rights. Where a Notice of Intention has been given at least 7 days prior to the proposed assembly and the other requirements of s 23 of the Act have been satisfied, the proposed assembly will be an “authorised public assembly”, unless and until an order under s 25(1) of the Act is made by the Court. The benefits under s 24 of the Act which flow from that fact are not affected by any failure by the Commissioner to follow the procedure specified in s 25(2) of the Act. Nor are they affected by the mere making of an application by the Commissioner for a prohibition order by the Court, exercising the jurisdiction vested in it under s 25(1) of the Act.

In circumstances where the legislature has clearly evinced an intention that the Court be the ultimate decision maker as to whether to prohibit or authorise a public assembly which is either opposed or not “not opposed” (see s 26(b)) by the Commissioner, it is unlikely that the legislature intended to deprive the Court of that jurisdiction because of the non-fulfilment of a procedural step, especially in circumstances where the proposed assembly is, ex hypothesi, contentious.

This analysis is reinforced by the fact that such a construction does not leave the organiser without an opportunity fully to ventilate his or her arguments for resisting prohibition. It simply has the consequence that, where that has not first occurred in a s 25(2) conferral or consideration, a full opportunity will be provided in a judicial hearing where any discretion to prohibit (or authorise, as the case may be) will need to be exercised judicially. Indeed, this is one of the rationales given for construing a Court's jurisdiction broadly and not reading it down by implication: see Knight v F.P. Special Assets Limited (1992) 174 CLR 178 at 185, 202-203 and 205; [1992] HCA 28.

Moreover, in any such consideration by the Court, it will be open to the organiser to draw attention to any failure by the Commissioner properly to confer or to take into account relevant matters. Furthermore, such failure may influence the exercise of discretion. For example, depending on questions of timing and urgency, it would be open to the Court to stay or even refuse (see Bassi at [49]-[50]) any application for prohibition until consultation had occurred or, if prior consultation was in some way procedurally tainted, as was argued to be the case in the present matter, until that process had been properly performed.

Alternatively, the failure to have followed the s 25(2) process may sound in an adverse order for costs against the Commissioner, even in circumstances where a proposed assembly is prohibited by the Court.

To echo the words of Leeming JA in 2 Elizabeth Bay Road at [94], “[t]he outcome … will turn on the particular facts of the case”.

The foregoing is not to deny that the Commissioner may fall under an obligation to give an unbiased and genuine consideration to matters put at conferral or in any representations under the s 25(2) procedure, and counsel for the Commissioner accepted that the Commissioner was under an obligation to afford procedural fairness, albeit noting, consistent with authority, that the content of natural justice may vary and depends very much on statutory context: see, for example, Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [23]. Such a failure, however, is not connected to, still less conditioned the existence or otherwise of this Court’s jurisdiction to make an order under s 25(1) of the Act.

It may also be observed that the logic of the Applicant’s argument is that, if the Applicant had served his s 23(1) Notice of Intention less than 7 days prior to the proposed assembly, but had not received a notification from the Commissioner that the Commissioner did not oppose the holding of the public assembly (see s 26(b) of the Act), the Court would not have jurisdiction to entertain any urgent application by the organiser for authorisation. That is also a consequence that was unlikely to have been intended by the legislature.

Because of the conclusion to which we have come, namely that the Court’s jurisdiction to make an order prohibiting a proposed assembly pursuant to s 25(1) of the Act does not depend upon compliance (or lawful compliance) with the procedure set out in s 25(2) of the Act, it is not necessary to consider the Applicant’s attack on the primary judge’s decision that there was no relevant non-compliance, save perhaps only to observe that a number of those challenges would have needed to overcome the important limitations upon an appellate court’s ability to interfere with findings of fact: see Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; [2016] HCA 22 at [43].

Because of the urgent nature of the appeal given the imminence of the proposed assembly, we announced our orders dismissing the appeal and making no order as to costs at the conclusion of the hearing of the appeal, after a short adjournment.

The foregoing constitutes our reasons for making those orders.