Raul Bassi v Commissioner of Police (NSW)

On Saturday, 6 June 2020, at approximately 2.45 pm, we allowed an appeal from orders that had been made the previous evening by Fagan J (the primary judge) in proceedings that had been commenced earlier that day by the Commissioner of Police (the Commissioner) in the Common Law Division of the Supreme Court of New South Wales. The appeal was lodged shortly before noon on 6 June 2020.

In addition to allowing the appeal, we also declared that the assembly the subject of the notice in Annexure B of the affidavit of Raul Bassi affirmed 5 June 2020 is an authorised public assembly.

These are our reasons for those orders.

The proceedings before the primary judge related to a proposed public assembly set to commence in Sydney at 3.00 pm on Saturday, 6 June 2020.

The assembly had been organised by the appellant (Mr Bassi) in response to the tragic death of Mr George Floyd in Minneapolis in the United States of America on 25 May 2020, in furtherance of the Black Lives Matter cause in general and in particular memory of an indigenous Australian, Mr David Dungay.

Mr Floyd's death and the circumstances in which it occurred have sparked public protests throughout the United States and indeed throughout the world. These protests have been occurring, however, at a time when the world including Australia, has been dealing with the COVID-19 pandemic. One of the public health measures deployed in response to the pandemic has been "social distancing" with related restrictions being placed upon public gatherings. These measures have been designed to minimise the scope for community transmission of the coronavirus.

Competing public interests of great importance were thus potentially engaged but, as we shall explain, the issues before this Court were very narrow. Our decision did not ultimately turn on a difficult weighing exercise that resolution of that competition would necessarily have required; rather, the appeal was allowed by reason of the operation of the provisions of the Summary Offences Act in the context of a notice of intention to hold a public assembly (the Notice of Intention) which had been given pursuant to that Act by Mr Bassi to the Commissioner on 29 May 2020.

Where we differed from the primary judge was in the view that we took of the circumstances in which the Notice of Intention was modified in the course of the week leading up to the proposed assembly, and the legal significance of that modification.

It follows from what has already been said that identification of the statutory context in which public assemblies and rallies may be held in New South Wales is of first importance in understanding both the decision at first instance and our subsequent decision on appeal.

The procedure in New South Wales for the holding of an authorised public assembly is governed by Part 4 of the Summary Offences Act, entitled "Public Assemblies".

For the purposes of that Part, a "public assembly" is defined as meaning "an assembly held in a public place, and includes a procession so held". "Public place" is defined as meaning "a public road, public reserve or other place which the public are entitled to use".

Broadly speaking, Part 4 of the Summary Offences Act creates a regime whereby a proposed public assembly may secure the status of an "authorised public assembly". A person who participates in such an assembly, so long as it is conducted substantially in accordance with the previously notified details, will not be guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.

The key statutory provisions of the Summary Offences Act are as follows:

The Summary Offences Regulation 2015 (NSW) is also relevant. Clause 13 of that Regulation provides:

Schedule 1 to the Regulation prescribes the following form as that to be used by a person seeking to organise a public assembly. That prescribed form (Form 1) is as follows:

As shall be seen below, Mr Bassi completed the prescribed form for the purposes of registering his intention to hold a public assembly.

The following observations may be made about the statutory scheme:

Before turning to a fuller consideration of the facts relating to Mr Bassi's application for authorisation and the decision at first instance, the provisions of s 27 of the Summary Offences Act should also be noted, as s 27(2) was sought to be invoked on behalf of the Commissioner in the appeal. That section provides:

As noted above, Mr Bassi emailed the Notice of Intention in the prescribed form to the Commissioner on 29 May 2020. As originally formulated, the particulars provided were for a public vigil of approximately 50 persons which was to assemble at 20 Lee Street Chippendale at 3.00pm on Saturday 6 June 2020. The Notice of Intention went on to outline that the purpose of the proposed vigil was "to remember the deaths in similar circumstances of David Dungay, in Long Bay Jail, Sydney, on 29 Dec[ember] 2015, and George Floyd, on the streets of Minneapolis, USA, on 25 May 2020".

The Notice of Intention was modified in a non-material way on 1 June 2020. Nothing turns on that modification for present purposes.

On Thursday 4 June 2020, the Notice of Intention was further modified in circumstances described in an affidavit of Mr Bassi and also in affidavits of Mr Paul Dunstan, Chief Inspector of Police, and Assistant Commissioner Michael Willing, which were all read at first instance.

In the course of the week leading up to the proposed assembly, the increased public support for the proposed vigil which was generated through social media channels led Mr Bassi to get in touch with Chief Inspector Dunstan to inform him that a bigger location was required because, by that time, Mr Bassi anticipated that more than 50 people would wish to take part in the assembly. A meeting occurred on Thursday 4 June 2020 at Lee Street, Sydney between Mr Bassi and Chief Inspector Dunstan in relation to the proposed assembly.

Mr Bassi's affidavit evidence was that it appeared to him that agreement had been reached at this meeting that the assembly could be held in the square in front of the Sydney Town Hall on Saturday 6 June 2020 at 3.00pm, and that there would be a procession thereafter to Belmore Park. Certainly Chief Inspector Dunstan agreed in his affidavit that a proposal to that effect was made by Mr Bassi at their meeting.

What occurred thereafter is of particular significance. The Police evidently made it clear to Mr Bassi that the new details in relation to the proposed assembly needed to be formalised. With commendable co-operation, it was agreed that Sergeant Hallett who, it may be inferred, also participated in the meeting, would prepare an amended Form 1 to be sent to Mr Bassi to reflect the new particulars of the proposed assembly. In his affidavit, Chief Inspector Dunstan described the document which accompanied an email sent at 12.03pm by Sergeant Hallett to Mr Bassi as "an Amended Notice of Intention". Sergeant Hallett's email was in the following terms:

There is no reason to doubt that, as Sergeant Hallett indicated in the email, she had amended the original "Form 1" to reflect the details of what she, Mr Bassi and Chief Inspector Dunstan had discussed that day. The amended Form 1 which she sent to Mr Bassi with the email contained under the signature block the following:

Assistant Commissioner Willing recorded in his affidavit that Mr Bassi acknowledged receipt of the attachment to Sergeant Hallett's email and the attached Form 1 on 5 June 2020.

Published reasons for the primary judge's decision delivered at approximately 7.30pm on the evening of Friday 5 June 2020 were, for obvious reasons, not available at the time a Summons seeking leave to appeal (if necessary) was filed at approximately noon on Saturday 6 June 2020.

However, the appellant provided a note of his Honour's oral reasons which was made available to the Court shortly before the appeal was heard, and no issue was taken as to its accuracy.

It is important to note that the proceedings before the primary judge were commenced not by Mr Bassi, but rather by the Commissioner. By Summons filed in the Common Law Division on the afternoon of Friday 5 June 2020, the Commissioner sought an order pursuant to s 25 of the Summary Offences Act "prohibiting the holding of a public assembly in respect of which the defendant [Mr Bassi] served a notice in accordance with section 23(1) of the Summary Offences Act 1988."

The Commissioner's application was expressly predicated upon his having received a notice in accordance with s 23 of the Summary Offences Act. So much was also implicit in the fact that the Commissioner's application was made pursuant to s 25 of the Act. As has been seen, such an application can only be made in respect of a notice of intention to hold a public assembly served 7 days or more prior to the public assembly.

Notwithstanding these matters, the primary judge took the view, evidently by reason of what he no doubt considered to be the radical change in the size of the proposed assembly from 50 to 5000 attendees, as well as the change of venue, that there was no notice given on 29 May 2020 for the assembly ultimately proposed, and that the only notice of such a proposed assembly was given within a 7 day period of 6 June 2020, namely on 4 June 2020 following a meeting between Mr Bassi and Chief Inspector Dunstan on that day.

His Honour declined to make a declaration which it appears was sought orally on behalf of Mr Bassi in the course of the hearing to the effect that the Commissioner had notified Mr Bassi that the Commissioner did not oppose the holding of a public assembly as described in the notice under the Summary Offences Act modified on 4 June 2020 as annexed to the affidavit of Mr Bassi sworn 5 June 2020.

It also emerges from the note of the primary judge's reasons that his Honour considered that it was incumbent on Mr Bassi to seek authorisation pursuant to s 26 of the Summary Offences Act for the proposed assembly and, in his final orders, the primary judge ordered (no doubt for the sake of good order and to regularise the record) that a Cross-Summons seeking such relief as well as that referred to at [32] above, be filed by close of business on 8 June 2020. What was in effect a contingent application for authorisation pursuant to s 26 of the Summary Offences Act was made on behalf of Mr Bassi.

In the circumstances of the case, after earnest and no doubt anxious consideration by reference to the powerful competing considerations we have noted at [6]–[7] above and with proper and genuine consideration of the importance of the purpose and aims of the proposed assembly, and in accordance with the statutory obligation in s 27(1) of the Summary Offences Act to decide the application with "the greatest expedition possible", the primary judge nevertheless declined to authorise the assembly. In reaching that decision, the primary judge drew on evidence of, amongst others, the Chief Health Officer and Deputy Secretary for Population and Public Health in NSW, Dr Kerry Chant, who had sworn an affidavit that was read in the proceedings at first instance.

Mr Bassi sought leave to appeal (to the extent necessary) on the following four grounds:

Leave to appeal, to the extent that it was necessary, was granted.

We considered that each of the first three grounds of appeal was made out, and that it was not necessary to consider the fourth ground.

Whilst the primary judge's evident reasoning to which we have referred at [31] above may be readily appreciated, in our opinion, the better view of the matter is that Mr Bassi gave a timely notice, that is to say, a notice of intention to hold a public assembly more than seven days prior to it taking place, and that, although the particulars of this assembly changed very significantly, that did not mean that the original Notice of Intention had ceased to have legal efficacy or that the modified notice issued on 4 June 2020 was a new notice which, because only issued within seven days of the proposed assembly, required Mr Bassi to obtain authorisation pursuant to s 26 of the Summary Offences Act.

It is important to begin by noting that s 24 of the Summary Offences Act expressly contemplates that "particulars" of a proposed public assembly may be amended by agreement between the Commissioner and the organiser of the proposed public assembly. As explained above, where we respectfully differ from the primary judge is that we consider that what occurred was an amendment of particulars of a Notice of Intention as opposed to a new notice of Intention and that, accordingly, it was not a matter of Mr Bassi requiring s 26 authorisation, but rather of the Commissioner requiring an order prohibiting the proposed assembly under s 25 of the Summary Offences Act.

These conclusions follow, in our opinion, both as a matter of form and substance. As to form, in the language subscribed by Sergeant Hallett to the final iteration of the Notice of Intention (see [25] above), the Notice of Intention originally filed on 29 May 2020 was "modified" on 4 June 2020. In other words, it was the same notice, albeit in modified form. As a matter of substance, when s 24 of the Summary Offences Act speaks about the amendment to particulars by agreement, it is speaking of an amendment to a subsisting notice of intention. Section 24 does not limit the nature of the amendments which may be agreed between the Commissioner and the organiser.

It is not without significance, and entirely consistent with our analysis above, that the Commissioner took the view that the amendments which had been made to the Notice of Intention originally provided by Mr Bassi on 29 May 2020 did not amount to a new notice of intention. As pointed out at [30] above, the Commissioner's application before the primary judge was both implicitly (by being made pursuant to s 25 of the Summary Offences Act) and explicitly (by referring to "a notice in accordance with section 23(1) of the Summary Offences Act 1988") predicated on the original Notice of Intention being of continuing effect, notwithstanding the amendment to the particulars that had been effected.

In relation to appeal ground 3, we are also of the opinion that the email sent by Sergeant Hallett extracted at [24] above, amounted to a communication of non-opposition by the Commissioner within the meaning of s 23(1)(f) of the Summary Offences Act. This is the natural meaning of the email.

Section 23(1)(f) does not require any particular form of words to be used to communicate the Commissioner's non-opposition. The language employed in the email is consistent only with a position of non-opposition on the part of the Commissioner, at least at the time the email was sent. By requesting Mr Bassi to bring a signed copy of the amended Form 1 on Saturday 6 June 2020 "to hand to C/Insp Dunstan", there was an unequivocal indication that the public assembly in the amended form proposed would occur without opposition from the Commissioner.

Plainly enough, at some point between the sending of this email on 4 June 2020 on which Mr Bassi was entitled in the circumstances to rely upon and 5 June 2020, the Commissioner's view as to the advisability of the public assembly going ahead changed, and he accordingly and appropriately made an application to this Court. No criticism should be made of that change of stance; we live in challenging and uncertain times where the exigencies of public health are of critical importance and the situation is no doubt extremely fluid. Considerations of public order, or further information becoming known to the Commissioner, may require flexibility of approach.

It remains to note, albeit briefly, reliance was placed by Mr Spartalis on behalf of the Commissioner on the terms of s 27 of the Summary Offences Act, noted at [18] above and sub-section (2) of which provides that "the decision of a Court on an application under section 25 (1) or 26 is final and is not subject to appeal".

The declaration that was sought orally on behalf of Mr Bassi as referred to at [32] above did not form part of any application pursuant to either ss 25 or 26 of the Summary Offences Act. This is a short answer to the argument based on s 27 of that Act. If, as we have held was the case, the Commissioner's non-opposition had been communicated to Mr Bassi on 4 June 2020, Mr Bassi did not need to make an application for authorisation pursuant to s 26 of the Summary Offences Act. Until and unless the Commissioner succeeded in an application under s 25, there was an authorised public assembly.

To the extent that the primary judge dismissed the Appellant's application for authorisation pursuant to s 26 of the Summary Offences Act, that was a contingent application and Mr Bassi did not in fact appeal from the dismissal of that application, conscious no doubt of the terms of s 27 of the Summary Offences Act.

Further, by reason of the view his Honour took as to the status of the Notice of Intention, the primary judge did not decide the Commissioner's application pursuant to s 25 of the Summary Offences Act, and in fact dismissed the Commissioner's Summons in his final orders. The Commissioner did not appeal from the dismissal of the Summons.

An attempt was made orally by Mr Spartalis at the "heel of the hunt" in the course of the hearing of the appeal to revive the Commissioner's application under s 25 of the Summary Offences Act for prohibition of the assembly by way of a notional cross-appeal. We rejected this course for two reasons. First, although the matter proceeded with great expedition, any such application should have been flagged at the very outset of the urgent hearing. By the time it was made orally, the public assembly was within approximately 20 minutes of commencing.

Secondly and in any event, such a cross-appeal would have been futile in circumstances where Mr Spartalis was constrained to accept that none of the steps prescribed by s 25(2) of the Summary Offences Act had been taken by the Commissioner, these being pre-conditions to the making of an application for prohibition pursuant to s 25(1) of the Summary Offences Act.

We make it plain that, in circumstances where the entirety of the proceedings at first instance and in this Court were heard and determined within 24 hours, neither party is to be criticised for the lack of precision in the originating process or the form of the orders which were sought and all parties, their legal representatives and the primary judge are to be acknowledged for the utterly professional manner in which complex issues were agitated and determined under circumstances of great urgency.

Finally, we note that the declaration we made in the course of allowing the appeal and the terms of which are set out at [2] above was consequential upon our analysis of the issues raised by the appeal and, in the particular circumstances of the case, of considerable utility given the protection afforded by s 24 of the Summary Offences Act to those who participate in an authorised public assembly.