Commissioner of Police (NSW Police Force) v Naser

1. [1]

   THE COURT: The Summary Offences Act 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”.

2. [2]

   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.

3. [3]

   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.

4. [4]

   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”.

5. [5]

   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: Raul Bassi v Commissioner of Police (NSW) [2020] NSWCA 109; (2020) 283 A Crim R 186 at [17(vi)] (Bassi).

6. [6]

   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.

7. [7]

   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.

8. [8]

   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.

9. [9]

   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:

10. [10]

    Ms Graham’s submission should be rejected.

11. [11]

    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.

12. [12]

    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.

13. [13]

    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].

14. [14]

    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 Crimes Act 1900 (NSW) which concerns knowingly joining, or continuing in, an “unlawful assembly”.

15. [15]

    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.

16. [16]

    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].

17. [17]

    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.

The Form 1 Notice

1. [18]

   The prescribed Form 1 Notice in relation to the public assembly the subject of the current application was served on the Commissioner on 1 October 2025 at 1.28pm and conferral between the organisers and the police took place on the morning of 3 October 2025. The stated purpose of the public assembly “is to oppose the war on [G]aza and call for a stop of the bombing, end to the siege, withdrawal of [I]sraeli troops and for the [A]ustralian [G]overnment to enforce sanctions on Israel and an end to the two ways arm trade”.

The Amended Summons and Cross Summons

1. [19]

   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.

2. [20]

   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.

3. [21]

   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].

4. [22]

   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.

5. [23]

   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.

6. [24]

   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, second and third defendants

1. [25]

   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.

2. [26]

   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.

3. [27]

   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.

4. [28]

   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.

5. [29]

   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.

6. [30]

   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

1. [31]

   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”.

2. [32]

   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 2011 (NSW) to ensure the safety of all workers and visitors.

3. [33]

   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”.

4. [34]

   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.

5. [35]

   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.

6. [36]

   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.

Overview of arguments and evidence

1. [37]

   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).

2. [38]

   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.

3. [39]

   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.

4. [40]

   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:

5. [41]

   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:

6. [42]

   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.

7. [43]

   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.

8. [44]

   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:

9. [45]

   Assistant Commissioner McKenna expressed the following concerns in his affidavit evidence:

10. [46]

    Assistant Commissioner McKenna was cross examined at some length by Ms Graham. In relation to the risk of crowd crush, he said:

11. [47]

    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”.

12. [48]

    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:

13. [49]

    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.”

14. [50]

    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:

15. [51]

    The Assistant Commissioner gave the following answer under cross examination in relation to emergencies in the forecourt:

16. [52]

    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.”

17. [53]

    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.

18. [54]

    Chief Inspector Yates, who was not cross examined, expressed similar concerns:

19. [55]

    Mr Beavan is the Director Customer Protection & Network Resilience in the Coordinator General Division of Transport for NSW (TfNSW). He expressed the following concerns:

20. [56]

    The first, second and third defendants relied principally on the evidence of the first defendant, Ms Naser, who was not cross examined. Key aspects of her evidence are set out in the following extract:

21. [57]

    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.

22. [58]

    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:

23. [59]

    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.

24. [60]

    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.

Determination

1. [61]

   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.

2. [62]

   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.

3. [63]

   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.

4. [64]

   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.

5. [65]

   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.

6. [66]

   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.

7. [67]

   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.

8. [68]

   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.

9. [69]

   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.

10. [70]

    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.

11. [71]

    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.

12. [72]

    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.

13. [73]

    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.

14. [74]

    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.

15. [75]

    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.

16. [76]

    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.

17. [77]

    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.

Conclusion and orders

1. [78]

   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:

   1. (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. (2)

      The Cross-Summons is dismissed.

   3. (3)

      There be no order as to costs.