Commissioner of Police (NSW) v Gibson

1. [1]

   HIS HONOUR: The plaintiff, being the Commissioner of Police (NSW), filed a summons on 21 July 2020 seeking an order pursuant to s 25(1) of the Summary Offences Act 1988 (NSW) (“the Act”) prohibiting the holding of a public assembly and procession (“a prohibition order”) that is planned for Tuesday 28 July 2020 in the Central Business District (“CBD”) of Sydney (“the protest”). The protest is being organised by the defendant, Padraic Gibson. The plaintiff seeks the prohibition order on the grounds of public health, citing concerns about the health and safety of participants, police and other members of the public in the context of a COVID-19 outbreak.

2. [2]

   On 14 July 2020, the defendant submitted a notice to police in a prescribed form (“the Notice of Intention”), together with a covering email and some annexed documents (“the Notice of Intention documents”), proposing a public assembly of about 500 people, to be held on Tuesday 28 July 2020 between 12:00 noon and 12.30pm, at Sydney Town Hall Square. At 12:30pm, the assembly would become a public procession along named streets of the CBD, ending in a rally in Macquarie Street outside the State Parliament House. In the covering email, Mr Gibson revised the number of likely attendees, expressing the figure of 500 to be “quite an optimistic estimate”.

3. [3]

   The stated purpose of the protest is: “To protest against Aboriginal deaths in custody and demand justice for David Dungay Jnr”. David Dungay Jnr was a Dunghutti man who died in Sydney’s Long Bay Gaol in 2015, aged 26. The defendant is the organiser, on behalf of the Dungay family. Mr Paul Silva, who is a nephew of David Dungay Jnr, gave evidence in affidavit form that the protest will culminate with the delivery of a petition, which bears 90,000 signatures, to the New South Wales Attorney General, calling for:

4. [4]

   Mr Silva expressed a sense of urgency for the protest, stating:

5. [5]

   On 15 July 2020, the defendant was served with a document titled a “Notice of invitation to confer” from Acting Assistant Commissioner and Acting Commander of the Central Metropolitan Region, Stacey Maloney, who had been delegated by the Commissioner of Police, Michael Fuller, to exercise his functions under the relevant provisions of the Act. Acting Assistant Commissioner Maloney advised that she opposed the holding of the protest, explaining:

6. [6]

   Acting Assistant Commissioner Maloney proposed a conference with Mr Gibson to consider any further matters or representations, as is required by the Act, which occurred on the morning of Monday 20 July 2020. The following day, the plaintiff filed the summons that is now before the Court.

7. [7]

   The defendant opposes the declaration sought by the plaintiff, both on ‘threshold’ and substantive grounds. The two threshold grounds advanced are a constitutional bar, and a question of this Court’s jurisdiction to entertain the plaintiff’s application.

Relevant legislative provisions

1. [8]

   Part 4 of the Act is titled “Public Assemblies”. The term “public assembly” is defined in s 22 to mean “an assembly held in a public place, and includes a procession”. Section 23 sets out two requirements for a public assembly to be authorised. The first is that a notice of the proposed assembly must be served on the Commissioner, containing certain particulars of the proposed public assembly and complying with certain other matters: ss 23(1)(a)-(e). Section 23(1)(c) requires specification of the purpose, date, time and place of the assembly, the time, route and any stopping points of any procession, and any other prescribed particulars. The plaintiff does not contest that the defendant complied with these provisions, and the requirements of the Summary Offences Regulation 2015 (NSW) concerning the notice, which is known as a “Form 1”, so it is unnecessary to consider them further.

2. [9]

   The second requirement is as follows:

3. [10]

   The notice was served 14 days before the date specified for the public assembly, so s 23(1)(f)(i) is applicable. Sections 24 and 25 of the Act are as follows:

Relevant legal principles

1. [11]

   The Court of Appeal recently summarised the relevant principles of the Act in Bassi v Commissioner of Police (NSW) [2020] NSWCA 109 (per Bathurst CJ, Bell P and Leeming JA), at [17]:

2. [12]

   In Commissioner of Police v Gray [2020] NSWSC 867, Adamson J decided a case in respect of a public assembly that also required the consideration of COVID-19 public health concerns, and her Honour considered the legislative framework of the Public Health Act 2010 (NSW). I respectfully adopt her Honour’s summary as reproduced in the following passages:

The first threshold issue: Implied freedom of political communication under the Commonwealth Constitution

1. [13]

   On 22 July 2020, the defendant filed and served a notice pursuant to s 78B of the Judiciary Act 1903 (Cth) to the Attorneys-General of the Commonwealth and of each of the States, alerting them to the defendant’s intention to raise a constitutional issue (“s 78B notice”). The New South Wales Attorney General intervened to make submissions on this issue both in written form and orally at the hearing.

2. [14]

   The defendant’s s 78B notice initially detailed two constitutional issues. The first was the contention that cl 18 of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 4) 2020 (“the Public Health Order”), as made under s 7 of the Public Health Act 2010 (NSW) and amended on 16 July 2020, is ultra vires because it impermissibly burdens the implied freedom of political communication (“the implied freedom”). The second was that, in exercising its jurisdiction under s 25 of the Act, this Court is obliged to exercise its powers in conformity with the implied freedom, which requires the Court to read down the provision, so that it would not accede to the plaintiff’s application for a prohibition order.

3. [15]

   At the hearing, the defendant submitted that because both the plaintiff and the Attorney General had conceded in written submissions that an authorised public assembly confers immunity on participants from the penalties of a breach of cl 18 of the Public Health Order (per Adamson J in Commissioner of Police v Gray at [51]-[57]), the issue of cl 18 being ultra vires fell away. However, the second issue remained.

4. [16]

   The test to be applied in determining whether legislation impermissibly burdens the implied freedom was recently stated in Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448; [2019] HCA 11 at [5]-[6] (per Kiefel CJ, Bell and Keane JJ) as follows:

5. [17]

   The defendant submitted the following basis for the constitutional challenge to a s 25 prohibition order on the s 78B notice:

6. [18]

   In oral submissions, the defendant added that, in respect of the “necessity” and “in the balance” aspects of the test to be applied (as detailed in Clubb and McCloy: see [16] above), a prohibition order is not reasonably necessary where there is a less restrictive means of balancing public health goals with the public assembly. That less restrictive means is the authorisation of the public assembly to allow it to proceed, with suitable “risk mitigation strategies in place”. Therefore, when the Court makes its decision under s 25, those constitutional principles must be applied and the prohibition order must not be granted.

7. [19]

   The Attorney General submitted that the burden is to be assessed by reference to how the relevant legislative provision affects the implied freedom generally, and not by reference to the burden placed on a particular group’s ability to engage in political communication, citing Brown v Tasmania at [90] (per Kiefel CJ, Bell and Keane JJ) and Comcare v Banerji (2019) 93 ALJR 900; [2019] HCA 23 at [20] (per Kiefel CJ, Bell, Keane and Nettle JJ). The Attorney General further referred to the following passage by Gageler J in Comcare v Banerji at [96]:

8. [20]

   Applying the implied freedom test stated in Clubb, the Attorney General submitted that the purpose of Pt 4 of the Act is legitimate because it is “designed to allow certain public assemblies to be held without fear of liability on the part of those participating for otherwise relevant offences”. The law is suitable, as it empowers a Court to decide whether or not to authorise such a public assembly after balancing competing interests, and the law is necessary, as there is no reasonably practical means of achieving the same purpose that is less burdensome on the implied freedom. Lastly, the law is adequate in its balance as it gives the Court the ability to balance the competing interests in arriving at its decision.

9. [21]

   Assuming, as the Attorney General has done, that s 25 of the Act does impose a burden on the implied freedom, the purpose of the law is legitimate, and it is also suitable, in the sense that it is rationally connected to the purpose of allowing certain public assemblies to take place without sanction and prohibit others from taking place, on grounds that may include public order. Counsel for the defendant did not submit otherwise, focusing instead on the second limb of the proportionality analysis in the McCloy test regarding necessity, and the assessment of whether the law is “adequate in its balance”.

10. [22]

    I accept that the law is necessary. The Summary Offences Act requires the parties to attempt to resolve any concerns held by the Commissioner regarding the Notice of Intention and gives the Court discretion to decide whether to authorise a public assembly. There is no obvious and compelling, or reasonably practical alternative to achieving the purpose of the provision. It is also adequate in its balance, as it allows the Court to take into account a wide range of considerations and to limit the restriction imposed on the implied freedom where free speech and political communication considerations prevail over others.

11. [23]

    In recent cases in this Court concerning the authorisation of political protests in the context of the COVID-19 pandemic, the Court has carefully undertaken this balancing exercise, and recognised the importance of public assembly and free speech. In Commissioner of Police v Bassi [2020] NSWSC 710, Fagan J said at [17]:

12. [24]

    In Commissioner of Police v Gray, Adamson J said at [59]:

13. [25]

    Adamson J exercised her discretion after undertaking the balancing exercise to not grant a prohibition order, deciding that free speech interests prevailed over public health and other concerns, and thereby making the decision with the lightest burden on the implied freedom. The range of outcomes available in the exercise of the discretion contained in the provision, and the balancing exercise required by it, are such that I am satisfied that the defendant’s submissions on the unconstitutionality of granting a prohibition order under s 25 are not made out.

The second threshold issue: jurisdiction of the Court

1. [26]

   The defendant was granted leave to file a cross-claim in court, seeking “[a] declaration pursuant to section 75 of the Supreme Court Act 1970 (NSW) that this Court does not have jurisdiction to hear an application for ‘prohibition’ under section 25 of [the Act]”, and an order for costs.

2. [27]

   The defendant submitted that the plaintiff failed to comply with s 25(2)(c) of the Act, and therefore the Court is unable to consider the application for a prohibition order.

3. [28]

   Section 25(2) of the Act sets out certain steps that must be satisfied before an application for a prohibition order can be made. The defendant does not dispute that Acting Assistant Commissioner Maloney’s Notice of Invitation to Confer complied with the Act. It stated:

4. [29]

   The defendant informed Acting Assistant Commissioner Maloney that he wished to confer and the plaintiff then complied with s 25(2)(b), by agreeing on an amended mutually acceptable place, time and date for meeting, being The Rocks Police Station at 10:30am on Monday 20 July 2020.

5. [30]

   In an affidavit read at the hearing, Acting Assistant Commissioner Maloney stated:

6. [31]

   The defendant’s written representations were contained in an 11-page document. The Notice of Intention documents comprised the Notice of Intention itself, a covering email, a “COVID Safe Checklist” setting out what steps are proposed to encourage social distancing, the wearing of masks and self-sanitising, and a request made to the NSW Minister for Health for an exemption pursuant to cl 24 of the Public Health Order. I note that the Minister for Health rejected the request on 23 July 2020. The briefing note included a copy of notes of the meeting taken by Sergeant Struthers. It concluded in these terms:

7. [32]

   Earlier that morning, the New South Wales Police Commissioner was interviewed on Sydney Radio 2GB on the topic of the defendant’s application for authorisation of the protest. The interview was published as an audio link on the station’s website at 7:25am the same day, indicating it had occurred before that time. Part of the interview was as follows:

8. [33]

   Later that day, the Commissioner was interviewed on Sky News. Referring to the protest, he said “we will take that matter to the Supreme Court”.

9. [34]

   The defendant submitted that the terms of s 25(2)(c) of the Act oblige the Commissioner to actively consider “any matters put by the organiser at the conference and … any representations made by the organiser” before a decision can be made on an application for a prohibition order. The Commissioner’s comments displayed a determination to make the application for a prohibition order regardless of what matters were put forward, or representations made, at the conference later that morning. Thus, he could not have “taken into consideration” that material and his application cannot be considered by the Court.

10. [35]

    Acting Assistant Commissioner Maloney said that she received the defendant’s written representations, and Sergeant Struthers’ notes of the meeting, by email on Monday afternoon. The email was produced, indicating that it was sent to Acting Assistant Commissioner Maloney at 3:55pm. She gave instructions to the Office of General Counsel (“OGC”) by phone, in a call that commenced at 4:12pm, a time she was able to check on her phone while giving evidence.

11. [36]

    Acting Assistant Commissioner Maloney’s evidence was that she first became aware of the Commissioner had said on Radio 2GB before she gave instructions to the OGC, saying, “it was all over the news”. She said she did not receive any instructions from the Commissioner, or have any contact with him on this issue, prior to giving instructions to the OGC. She spoke to Assistant Commissioner Willing once that day, which was in a phone call at 4:51pm the same afternoon, to inform him of her decision and to discuss other matters.

12. [37]

    The defendant advanced three grounds as to why s 25(2)(c) of the Act had not been satisfied.

13. [38]

    The defendant submitted that it was apparent from the Commissioner’s comments in the Radio 2GB interview that he had decided to make the application to the Supreme Court, regardless of what occurred at the conference, and therefore the plaintiff had not complied with s 25(2)(c) of the Act.

14. [39]

    The plaintiff submitted that since the Commissioner had delegated his functions under the Act to Acting Assistant Commissioner Maloney, whatever he said on that issue was irrelevant to the application. Provided Acting Assistant Commissioner Maloney had performed her functions correctly, there was no impediment to the plaintiff’s application being considered on its merits. The terms of paragraph 13 of her affidavit, quoted above at [30], was evidence she had done so.

15. [40]

    The instrument of delegation was tendered. Its terms were to the effect that the Commissioner delegated his functions under the Act to “all police officers of or above the rank of Assistant Commissioner”. Acting Assistant Commissioner Maloney explained in evidence that she was the delegated officer, because the protest is planned to take place in the Central Metropolitan Region, for which she is the Acting Assistant Commissioner, in place of Assistant Commissioner Willing, who is on leave.

16. [41]

    In Minister for Home Affairs v Omar [2019] FCAFC 188, the Full Court of the Federal Court was concerned with the meaning of a statutory duty to “consider” (whether explicit or implicit), in the context of a duty of the Assistant Minister to consider certain representations made by a person whose visa was cancelled. The Full Court cited Kiefel J (as her Honour then was) in Tickner v Chapman (1995) 57 FCR 451; [1995] FCAFC 1726 at 495 with approval, that to “consider” is to “have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forwards and to appreciate who is making them”. To discharge the onus of proving that something was taken into consideration, the empowered decision-maker must engage in an “active intellectual process with reference to those representations”: at [36(d)]. What this actually requires may differ on a case-by-case basis, but in Omar, it was held that the Assistant Minister could not just acknowledge or simply note that representations had been made, but could include making specific findings of fact, such as considering whether or not a particular representation was accepted or rejected: see [39]-[40].

17. [42]

    Acting Assistant Commissioner Maloney was cross-examined as to whether she was influenced by what she understood the Commissioner had publicly said:

18. [43]

    I accept Acting Assistant Commissioner Maloney’s evidence to the effect that she, and not the Commissioner or Assistant Commissioner Willing, exercised the functions of the Commissioner in the application. I also accept her evidence that, prior to her instructions to the OGC to make the application to this Court, she had not been instructed to do so, in particular, by either the Commissioner or Acting Assistant Commissioner Willing, and that she considered the matters put forward by the defendant at the conference, and his written representations, in the manner required by the Act.

19. [44]

    The defendant submitted that, if the Court accepts Acting Assistant Commissioner Maloney’s evidence that she made the decision to bring the application pursuant to the Commissioner’s delegation, the decision itself was vitiated by apprehended bias.

20. [45]

    The consideration of whether a decision is tainted by apprehended bias involves judicial review of a decision on the basis of procedural fairness. The parties have assumed in their submissions on this issue that the decision is appropriate for judicial review, and I will proceed on that basis.

21. [46]

    The consequence of a finding of apprehended bias is that the decision in question would fall into jurisdictional error, and the decision would be taken to be null and void. The declaratory relief sought by the defendant pursuant to s 75 of the Supreme Court Act 1970 (NSW) would be to that effect.

22. [47]

    The test for an apprehension of bias was stated in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 6, and is summarised by Gageler J in Isbester v Knox City Council (2015) 255 CLR 135; [2015] HCA 20 at [57]:

23. [48]

    The majority (Kiefel, Bell, Keane and Nettle JJ) in Isbester had further comments on the application of the test to different circumstances:

24. [49]

    The application of the principle will differ on a case-by-case basis, and depends on a range of factors, including the identity of the decision-maker, the particular subject matter the decision is concerned with and the particular circumstances. The statutory framework is a key part of the assessment from the outset: see Spigelman CJ in McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [6].

25. [50]

    As to the nature of the decision-maker, the impartiality expected of judicial officers is more exacting, with a lower threshold for the finding of an appearance of bias, given the centrality of their independence and integrity. In the case of administrative decision-makers, and in particular government officials, the threshold will usually be higher. In Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507; [2001] HCA 17, the High Court considered certain political opinions expressed by the Minister, including statements as to how he would decide a particular migration case. The Minister subsequently cancelled the visa of that person. The High Court found that the Minister’s statements did not give rise to a reasonable apprehension of bias in respect of his decision. In reaching its decision, the majority (Gleeson CJ and Gummow J at 539-540, Hayne J agreeing; Callinan J at 583-584) held that the Minister’s conduct did not attract the same standards of detachment that would apply to a judicial officer. Rather, a minister is electorally and politically accountable; the role of a minister as an elected official includes being drawn into public debate and expressing opinions on issues that he may have the power to make decisions on.

26. [51]

    The defendant submitted that a bystander with knowledge of all the material and objective facts would take into account that the protest was shown to be opposed by police prior to any material being submitted for consideration, as a result of the Commissioner’s widely publicised statements. He would have “expected it to be followed, and expected the public to know that that was his decision”. The defendant contended that the effect of the statements was to create the impression that the Commissioner had already acted to uphold the views he expressed in the media. Acting Assistant Commissioner Maloney was aware of the comments made by the Commissioner and concerning Assistant Commissioner Willing, who is of a higher ranking to her, whilst making her decision. The public nature of the statements and the hierarchical structure of the organisation would have further undermined any legitimate decision-making, creating a perception of pressure on the actual decision-maker, being Acting Assistant Commissioner Maloney, to make the decision sought by the Commissioner. As a result, the reasonable observer would apprehend bias on the part of the decision-maker.

27. [52]

    In response, the plaintiff submitted that the statutory context of s 25 is significant; the decision under s 25 “is not a decision which, of itself, impacts on the rights of the defendant to hold the public assembly”, but rather, is a mechanism to allow the Court to decide whether the public assembly is authorised. The plaintiff further submitted that lower standards of detachment are expected from a public official such as the Commissioner, relying on Minister for Immigration and Multicultural Affairs v Jia. When this is taken into account, together with the fact that the Commissioner’s statements related to a conversation he had with Assistant Commissioner Willing and not the actual decision-maker, a fair-minded lay observer would not reasonably apprehend that the Commissioner’s delegate was biased in making the decision.

28. [53]

    Lastly, the plaintiff contended that the doctrine of necessity was relevant. It was submitted:

29. [54]

    I accept the plaintiff’s submission that the statutory context of the decision in question impacts on the standard of impartiality expected of the decision-maker. The decision concerns whether to apply for a prohibition order in this Court. The decision-maker does not have power to directly determine anyone’s right to public assembly under the statute, and that decision is instead left in the hands of the Court, which is expected to make the decision impartially, with higher standards of detachment required of judicial officers.

30. [55]

    I also accept that the standards of detachment expected of the Commissioner of Police are lesser than those expected of a judicial officer. However, unlike the case of Minister for Immigration and Multicultural Affairs v Jia, which involved an elected government minister, the Commissioner is a public official who is not elected, and is not a member of a political party. Commissioner Fuller’s comments to Radio 2GB and Sky News on 20 July 2020 suggest that he was unaware of the process required by s 25(2)(c) of the Act, which is regrettable.

31. [56]

    Although a certain standard of impartiality is expected of the Commissioner, in my view, the fair-minded observer with knowledge of all material facts and circumstances would not reasonably apprehend bias in the present case. As I have found, the decision-maker was Acting Assistant Commissioner Maloney. The Commissioner did not make any statements in public to the effect that he had directly or indirectly instructed her to make the application, or influence her decision. There was no evidence that the Commissioner participated in the decision-making process that was engaged by Acting Assistant Commissioner Maloney, who was concerned with the feedback from the conference that morning, in the form of the notes of the meeting (by contrast with the case in Isbester, where a person with the appearance of bias was a constituting member of a panel that made a decision in respect of a person’s rights).

32. [57]

    Once the defendant had submitted materials for consideration, a police officer would be required to make a decision about whether or not to seek a prohibition order in Court. The defendant’s allegation of apprehended bias, due to the Commissioner’s statements in the media and the hierarchical nature of the organisation, and in spite of Acting Assistant Commissioner Maloney’s absence of communication with the Commissioner, would appear to suggest that anyone in the police force would be infected by apprehended bias. If this were the case, no officer would be able to consider the submitted materials and make any decision, and would not be able to discharge their duties. I therefore accept that, in these circumstances, if apprehended bias did exist, then the doctrine of necessity would operate to allow Acting Assistant Commissioner Maloney to make the decision despite the existence of apprehended bias: see Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; [1990] HCA 31.

33. [58]

    The period of time on Monday 20 July 2020 between the receipt by Acting Assistant Commissioner Maloney of the notes of that morning’s conference with the defendant and her call to the OGC was 17 minutes. The defendant submitted that it would not have been possible for Acting Assistant Commissioner Maloney to properly consider the relevant material in that time.

34. [59]

    The notes of the conference meeting had been transcribed and comprised two pages of typed material. Part of the defendant’s 11 pages of written further representations repeated submissions that had been made previously. It is not a document that would have been difficult to understand or consider. Most, if not all, of the other material had been previously provided to her. It is apparent from the evidence of Acting Assistant Commissioner Maloney that over the previous week, she had given consideration to the Notice of Intention documents; she was not considering the application by the defendant for the first time. I do not think it was impossible for Acting Assistant Commissioner Maloney to properly consider the material she received at 3:55pm in the space of 17 minutes.

The application for a prohibition order

1. [60]

   Having dealt with the threshold issues, I now turn now to consideration of the application for the prohibition order.

2. [61]

   The public health implications of the Notice of Intention was the only concern cited by the plaintiff. The defendant’s resistance to the prohibition order was based on the steps he proposed to minimise the risk of transmission of the COVID-19 virus, which he submitted are sufficient, effective and at least on par with the requirements that apply to gatherings of 20 or more persons that are exempted pursuant to cl 18 of the Public Health Order.

3. [62]

   In her affidavit, Acting Assistant Commissioner Maloney elaborated on her reasons for opposing the protest:

4. [63]

   Acting Assistant Commissioner Maloney was of the view that the number of likely participants in the protest would be higher than the 500 persons indicated in the Notice of Intention. She checked the Facebook page for the protest at 7pm on the night of Wednesday 22 July, and saw that 1,200 people had indicated they would attend the protest and another 3,200 had expressed interest. Apart from the fact that some people who are not on Facebook would also attend and increase the number of participants, she thought the publicity generated by media reporting was likely to attract additional attendees.

5. [64]

   Based on Acting Assistant Commissioner Maloney’s experience with public gatherings, she said that protesters tend to stand and march in close groups, often chanting. The oral discharge of saliva increases the risk of transmission of the virus. She did not accept that the defendant would be able to ensure that the protesters maintained social distancing. She stated:

6. [65]

   The Court was informed that, during a break in the hearing, the defendant made an offer through counsel to Acting Assistant Commissioner Maloney to amend his Notice of Intention, so that the protest would take place in the Domain and then proceed to Macquarie Street. Acting Assistant Commissioner Maloney indicated that she would remain opposed to the protest, confirming her position in evidence; she said that at a recent protest at the Domain, she observed that many of the protesters had not socially distanced.

7. [66]

   Acting Assistant Commissioner Maloney considered that a protest of 500 participants would require approximately 350 police to properly resource the event, in order to attempt to enforce the 20-person gathering rule under the Public Health Order. She was conscious that those police officers would then also be exposed to the risk of transmission of the virus.

8. [67]

   Acting Assistant Commissioner Maloney was cross-examined as to whether her opposition to the protest was inconsistent with the types and size of events that are permitted by the NSW Minister for Health pursuant to the Public Health Order, as exceptions to the rule in cl 18 that restricts outdoor public gatherings to no more than 20 people. She said:

9. [68]

   Acting Assistant Commissioner Maloney also said:

10. [69]

    Dr Jeremy McAnulty, who is the Executive Director of Health Protection, NSW Department of Health, gave evidence. He is the Deputy Public Health Controller for the COVID-19 response in NSW, reporting to the Chief Health Officer, Dr Kerry Chant. In affidavit evidence, he made observations about the nature of the risk associated with public gatherings:

11. [70]

    Dr McAnulty contrasted public gatherings with those of more than 20 people that are permitted by cl 18 of the Public Health Order, stating that they are either classified as essential gatherings or are required to have a COVID-19 safety plan. In evidence, he identified distinguishing features, such as the ticketing of attendees and requiring their names and contact details, seating arrangements to ensure social distancing, and the staggering of events.

12. [71]

    Dr McAnulty agreed that considerable progress had been made in confining the COVID-19 virus since March 2020. However, he noted that the Public Health Order was amended on 17 July 2020 to tighten restrictions, limiting group bookings in pubs to a maximum of 10 people and the number of customers inside a venue to 300 people.

13. [72]

    Dr McAnulty expressed reservations about the defendant’s “COVID Safe Checklist”, noting that it did not appear to be mandatory or enforceable, that participants would be asked to provide contact details on a voluntary basis and that, although the wearing of masks was recommended, current evidence suggests that the effectiveness of masks varies, depending on the quality and how the masks are made.

14. [73]

    Dr McAnulty noted that the defendant had relied on his representations to the Commissioner on evidence given by Dr Kerry Chant, the NSW Chief Medical Officer, in similar proceedings on 3 July 2020 concerning a protest, to the effect that the risk of transmission at a large public gathering in New South Wales was “low”. Dr McAnulty said:

15. [74]

    In evidence, Dr McAnulty explained that, in general terms, he considered the level of risk of transmission of the virus at the protest would be medium, and that it is relative to the number of people present at the protest.

16. [75]

    The defendant’s uncontested evidence is that he is experienced in organising political protests, working cooperatively with police and ensuring the protestors are peaceful and compliant with the law.

17. [76]

    The defendant’s evidence was that he would take all reasonable steps to alleviate the risk of COVID-19 being transmitted at the protest. These steps include the assistance of 30 volunteers to work in “COVID safety teams” cautioning protesters to socially distance, dispersing protesters into neighbouring streets if “high numbers are starting to compromise physical distancing”, and distributing masks, hand sanitiser and an information sheet explaining COVID safety protocols for the day and where to get tested, if symptoms subsequently appear.

18. [77]

    Other proposed measures include discouraging people with cold or flu-like symptoms from attending, urging participants to not use public transport to travel to the venue and to register their contact details, so that if there is evidence of transmission after the protest, participants may be contacted and advised to submit to testing. Mr Gibson gave evidence that deeply-respected Aboriginal Elders, including the mother of David Dungay, will be in attendance, and will call upon the protesters to embrace the COVID-19 checklist. I accept that evidence, and note that it would constitute strong encouragement for compliance.

19. [78]

    The defendant was asked about the expected attendance at the protest, and said the following in cross-examination:

20. [79]

    The defendant said that he expected the attendees could be adequately managed under his COVID-19 Checklist.

Consideration

1. [80]

   This is the fifth application made in recent months by the Commissioner for a prohibition order pursuant to s 25(1) of the Act, in the context of the COVID-19 pandemic. In each of the previous cases, as I do now, this Court has recognised the central importance of free speech and the right to advance political causes by demonstrations; Commissioner of Police v Bassi [2020] NSWSC 710 per Fagan at [18], Commissioner of Police (NSW) v Supple [2020] NSWSC 727 per Walton J at [6], Commissioner of Police v Kumar (OBO National Union of Students) [2020] NSWSC 804 per Lonergan J at [14] and Commissioner of Police v Gray [2020] NSWSC 867 per Adamson J at [56] and [59].

2. [81]

   I accept the evidence of Mr Silva that there is a risk of momentum being lost in this campaign if public demonstrations in support of the “Black Lives Matter” movement, in the Australian context, do not continue to be held. There is no evidence that the “Black Lives Matter” protest that was held in Sydney Town Hall Square on the afternoon of Saturday 6 June 2020 led to any transmissions of the COVID-19 virus, in spite of there being at least 10,000 people in attendance by most estimates.

3. [82]

   However, the expert evidence in relation to the level of risk of transmission of the COVID-19 virus at that time was rated as “low”, whereas I accept the evidence of Dr McAnulty that it is now “medium”, as a consequence of the current significant resurgence of the virus in Victoria. That current assessment of the level of risk, in spite of relatively low numbers of community transmission, is consistent with New South Wales presently being on the knife-edge of a further escalation in community transmission of the virus.

4. [83]

   It is also relevant, in my opinion, that the protest is to occur on a weekday lunchtime in the heart of the CBD, being a location in which it can be expected that large numbers of pedestrians not associated with the protest will move through the public assembly, making social distancing more difficult. Some of the egress points to Town Hall train station are at that location. This is particularly concerning, as the contact particulars of passing pedestrians will be unknown and they may not have taken the same precautionary steps as the protesters, such as wearing masks.

5. [84]

   In my view, the balancing of the competing concerns of the right to free speech and to demonstrate, as against the safety of the community at large, at this particular phase of the pandemic, necessitates the granting of the order prohibiting the holding of the public assembly. In so finding, I take into account the defendant’s proposed safety measures, but also the absence of a mechanism to enforce them and the current rating of the risk of transmission of the COVID-19 virus at public assemblies as being “medium”.

Costs

1. [85]

   As the proceedings are “civil proceedings” within the meaning of s 4 of the Civil Procedure Act 2005 (NSW), r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) applies. However, in view of the public interest in the defendant’s opposition to the orders sought, it is appropriate that the defendant not be liable for the plaintiff’s costs. Accordingly, each party will be required to pay their own costs.

Orders

1. [86]

   For the reasons given above, I make the following orders: