Part 2 public interest during COVID-19

RECENT FLURRY OF COURT ACTION – PUBLIC INTEREST RALLIES IN THE COVID-19 PANDEMIC | PART 2

We ended our last article when the Police had asked the court to declare the Public Assembly (PA) that the Refugee Action Coalition (RAC) had planned for 13 June 2020 to be prohibited. The case name of these proceedings commenced by the Police is Commissioner of Police (NSW) v Supple [2020].

How does the court decide whether to authorise or prohibit a rally?

In Mr Supple’s case, the NSW Supreme Court noted that the Summary Offences Act 1988 does not provide any guidance or factors that a Court must consider when asked to make an order either prohibiting or authorising a PA. This means the court’s decision is widely discretionary. The court also looks at previous decisions for guidance and assistance.

Balancing act

In this case, Judge Walton weighed up two powerful competing considerations:
  1. The rights of Australians to free speech and peaceful PAs to promulgate a view about significant public issues;
  2. The unique public health issues arising from the COVID-19 pandemic, together with the importance of public health measures that had been put into place to minimise community transmission of a highly infectious and dangerous virus.

Evidence presented

The RAC filed evidence setting out extra measures and precautions they had circulated to the general public including:
  • Not to attend if you have been feeling unwell;
  • To wear a face mask (RAC would supply masks to members of the public who did not have one);
  • To practice social distancing measures;
  • There would be about 10 RAC marshals to ensure the participants followed the measures.
The Police led evidence of their observations at the Black Lives Matter march held the previous Saturday (6 June 2020), where they say:
  1. A large number of attendees did not wear masks;
  2. Overall, the attendees did not abide by social distancing.
It was put to Mr Supple that, despite the measures the RAC planned to implement, he could not be certain that attendees at the rally would not be unwell. Mr Supple accepted that he could not assure this.
The Police further submitted to the court that 3-4 specialist police officers would be needed for every 10 participants in the PA, to maintain social distancing and enforce the COVID-19 Order 10 person gathering rule.

What does it mean if the court declares a rally is prohibited?

It would seem, not a whole lot… in a 2015 judgment, NSW Commissioner of Police v Folkes Judge Adamson observed the following about the use of the word ‘prohibit’ in section 25:
  • A prohibition order under section 25 does not prohibit the holding of a PA at all
  • The Summary Offences Act does not make it an offence to hold or participate in a PA or rally that has not been authorised
  • The only effect is on participants in a prohibited PA, who do not have protection under section 24 (which says that, where an authorised PA is held in accordance with the Notice served on the Commissioner of Police, a person is not 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 decision

Ultimately, Judge Walton reached his decision for the Police, and declared the RAC rally was prohibited. He carried out a balancing exercise between important rights in our democracy, and the need for protections to be provided to the community in a pandemic health crisis, finding that the latter was more important.
The RAC went ahead with the PA. Initially around 70 participants gathered outside Town Hall, under the watch of a large police presence of about 100 officers. The RAC distributed face masks to the participants, who then broke into smaller groups and completed laps around the CBD, so as to maintain social distancing measures.

Side note: it’s one apiece

In 2013 the Police unsuccessfully asked the court to declare that a PA Mr Supple had organised be prohibited (Commissioner of Police v Supple [2013]). The court did not have any jurisdiction to hear the application: the Notice of Intention to hold that PA had been served 6 days prior to the proposed date, not 7 days, as required under the Summary Offences Act for the Police to seek a prohibition declaration.

Still more court action

On 3 July 2020 the Commissioner of Police made another application to the Supreme Court for a declaration that a proposed PA in the City of Newcastle (around 160km north of Sydney) prohibited. Her Honour Judge Adamson refused the Police Commissioner’s Application, and ordered the Police to pay the costs of Ms Gray (representative of the Fighting in Solidarity Towards Treaties advocacy group).

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