Commissioner of Police v Bassi [2020] NSWSC 710

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Police v Bassi [2020] NSWSC 710 Hearing dates: 5 June 2020 Date of orders: 05 June 2020 Decision date: 05 June 2020 Jurisdiction: Common Law Before: Fagan J Decision: The cross application by the defendant for a declaration and for an order pursuant to s 26 of the Summary Offences Act 1988 (NSW) is dismissed. Catchwords: PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – whether Commissioner of Police notified the organiser that intended public assembly was not opposed – whether an order authorising the assembly should be made Legislation Cited: Summary Offences Act 1988 Category: Principal judgment Parties: Commissioner of Police (plaintiff) Raul Bassi (defendant) Representation: Counsel: M Spartalis (plaintiff) E Kerkyasharian (defendant)

Solicitors: Makinson d'Apice (plaintiff) O'Brien Solicitors (defendant) File Number(s): 2020/168403 Publication restriction: No

EX-TEMPORE Judgment [revised] 1. On Friday 29 May 2020 the defendant, Mr Bassi, emailed a written notice to the Commissioner of Police pursuant to s 23 of the Summary Offences Act 1988 (NSW) advising: that on Saturday June 6, 2020, at 3.00pm it is intended to hold a public vigil, of approximately 50 persons, which will assemble at 20 Lee St, Chippendale. 1. The notice went on to state 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 2015, and George Floyd on the streets of Minneapolis, USA on 25 May 2020. 1. The notification has importance under the Summary Offences Act and particularly s 23. That section provides that a public assembly is an authorised public assembly if such a notice is given to the Commissioner of Police and if certain other prerequisites are satisfied, including prerequisites as to the content of the notice. 2. Sub-paragraph (f) of s 23(1) provides that for the assembly to be authorised one of three things must occur. The first is that the Commissioner notifies the organiser, in this case Mr Bassi, that he does not oppose the holding of the public assembly. The second alternative is that if the notice is served at least seven days before the date specified in it as the date on which the assembly is to be held, then it will be authorised if the Commissioner does not in the meantime obtain an order from the Court prohibiting it. 3. The third possibility is that if the notice is served on the Commissioner less than seven days beforehand the public assembly will only be authorised if the person proposing to hold it applies to the Court and obtains an order under s 26 to the effect that the holding of the public assembly is authorised. 4. On 3 June 2020 Mr Bassi contacted Chief Inspector Paul Dunstan of the Sydney City Police Area Command and informed him that he was worried the proposed gathering was "getting too big". He apparently based this upon the number of responses to his advertising of the event that had been received on social media. Chief Inspector Dunstan arranged to meet with Mr Bassi at the proposed venue on the morning of 4 June 2020. By the time he went to that meeting the Chief Inspector was aware that about 8,000 persons had responded on social media. Mr Bassi gave evidence that he thought the attendance might be in the order of up to 5,000 people. 5. Mr Bassi said to Chief Inspector Dunstan at this time: We would like to start at Town Hall. We would have some speeches. We would then walk to Belmore Park using Bathurst and Castlereagh Street. We will then have a vigil in Belmore Park. We will need some more time because it may be longer, it may be 5.30pm, an extra half hour". 1. It is common ground that at the end of this meeting Mr Bassi informed the Chief Inspector that he was not in a position to prepare a revised notice. He requested that police should prepare a revised notice and send it to him. 2. Accordingly Sergeant Hallet sent out an email to Mr Bassi at 12.03pm yesterday, 4 June 2020 and informed him that she had prepared a document adding that the event would be a mobile procession as well as a vigil, that it would start at Town Hall with about 5,000 people at 3:00pm and that it would progress to Belmore Park. Sergeant Hallet concluded her message to Mr Bassi by saying: Could you please confirm that you agree with this amended Form 1 and please bring a signed copy on Saturday 6 June to hand to Chief Inspector Dunstan. 1. On the basis of that evidence, Mr Bassi now seeks a declaration for the purposes of the first of the three alternatives to which I earlier referred as arising under s 23(1)(f) of the Act. He seeks the following relief: A declaration that the Commissioner of Police has notified Mr Bassi that the Commissioner does not oppose the holding of a public assembly as described in the notice under the Summary Offences Act 1988, modified on 4 June 2020 as annexed [marked B] to the affidavit of Mr Bassi sworn 5 June 2020. 1. In making that application, Mr Bassi also relied upon the response that he sent to Sergeant Hallet which read: Thank you very much for the S1. I made a last change, the cultural ceremony was to be done in Town Hall, the rest is okay. 1. I decline to make the declaration that is sought on the basis of that evidence. I do not accept that what was exchanged in writing by email as described amounted to notification from the Commissioner that he did not oppose the holding of the public assembly. All that occurred was that the Commissioner, through the good offices of Sergeant Hallet, arranged for the notice to be amended in circumstances where Mr Bassi was not able to attend to this for himself. That left the position that the Commissioner's response to the notice was in his hands. [Expanding the reasons delivered orally, I construe Sergeant Hallet's email as merely confirming the terms of the notice Mr Bassi wished to give, not as communicating the Commissioner's agreement]. 2. The revised notice of 4 June stated that the public assembly that it was now attended to convene would be: for approximately 5,000 persons to assemble at Town Hall. A cultural ceremony will take place. It will be some speeches and approximately 4.00pm the procession will commence and shall proceed along the following route. The notice then set out a route along Bathurst and Castlereagh Streets to Belmore Park. An estimated finishing time of 5:30pm was nominated. 1. The effect of these events is that the Commissioner has received notice for the purpose of s 23 less than seven days before the proposed assembly. [When these reasons were delivered orally they followed upon my finding, expressed during argument, that an assembly of 5,000 rather than 50 people, commencing at the Town Hall rather than Chippendale and involving a procession of about one kilometre through city streets rather than a stationary vigil, would be so different from the subject matter of the original notice that when Mr Bassi adopted Sergeant Hallet's email of 4 June 2020 there was, in substance, a fresh notice under s 23]. Accordingly, in order to constitute the proposed gathering an authorised public assembly Mr Bassi must obtain an order from this Court under s 26. 2. Section 26 is in these terms: 26 Authorisation by a Court of a public assembly If: (a) a notice referred to in section 23 (1) is served on the Commissioner less than 7 days before the date specified in the notice as the date on which it is proposed to hold the public assembly referred to in the notice, and (b) the Commissioner has not notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly, the organiser may apply to a Court for an order authorising the holding of the public assembly. 1. The Commissioner certainly has not notified the proposed organiser, Mr Bassi, that he does not oppose it and on the contrary notification was given orally during the course of today that application would be made to the Court for an order under s 25 prohibiting the assembly. That notification was given to Mr Bassi on the Commissioner's understanding that in some way the notice could be regarded as having been served more than seven days ago. That is not the case. Although the Commissioner has filed his summons he does not proceed upon it. The present application before the Court is a cross-application by Mr Bassi. He seeks this order: An order pursuant to s 26 of the Summary Offences Act 1988 authorising the holding of a public assembly as described in the notice modified on 4 June 2020. 1. In deciding whether to make an order of this nature the Court usually has to strike a balance between two competing public interests. The first is the public interest in free speech and assembly and in the facilitation of public gatherings at which people with views on matters of public importance may gather together and show their strength, to demonstrate their solidarity with a point of view on a particular issue. The right of assembly and of expression by that means is of great importance in a democracy such as that enjoyed in Australia. 2. The Court recognises that a strong public interest attaches to any expression of public opinion in this manner. In this case the particular cause that the organiser wishes to advance is awareness of what he and others of like mind perceive as unequal treatment of indigenous people in this country by police and concern with respect to deaths of indigenous people that have occurred whilst in custody, and concern with the known high rates of incarceration of indigenous people relative to other members of the community. 3. There is no doubt that that cause is one that is widely supported in the community and with great strength of feeling. That being the matter about which it is sought to conduct this demonstration, the first interest that I have said needs to be balanced in this exercise, that of allowing such free speech and assembly, is obviously of very high importance and is taken very seriously by the Court. Counsel for Mr Bassi has urged upon the Court that the timing of this proposed demonstration is most important on the basis that Mr Bassi and those who share his interest in the relevant cause perceive there to be a heightened awareness in our community of the issue which is important to them, raised by the circumstances of the death of George Floyd in Minneapolis following his arrest, and raised by wide dissemination in the media of images of strong protest about that event in the United States. 4. The usual countervailing consideration that the Court has to weigh up, relative to the right of assembly and free speech, is the right of other members of the public who are not participating in the assembly to make normal use of roads, footpaths and public open spaces; not to be obstructed in their movements around the city; and the right of business people in locations where large public gatherings might take place not to be impeded in going about the ordinary conduct of their affairs. Usually these latter considerations can readily be accommodated to the holding of large demonstrations for a few hours at a time, and usually the balance would strongly favour permission for people to conduct a public gathering of this type. 5. In some cases the particular issue that is sought to be advanced by the public gathering runs the risk of inciting violence and other forms of unlawfulness. The Commissioner has raised that concern in the present case but I do not regard it as specific enough or strongly enough based for the risk of unlawful conduct to be a significant factor to be weighed against the consideration of free assembly. That issue does not play a significant part in my assessment of the matter. 6. I accept, as the Commissioner has said, that scenes of violence in the course of United States demonstrations concerning the issue – which Mr Bassi has expressly sought to connect with the treatment of indigenous people by law enforcement authorities in Australia – may have inflamed people, including Mr Bassi and his supporters. The Commissioner urges that the current mood resulting from publicity and media coverage of events in the United States may give rise to an enhanced risk in present circumstances of any gathering on this issue becoming violent. 7. The Court has more confidence than that in the good sense of the local community and of those likely to participate in a demonstration on the issue to which I have referred. I see no special risk of violence erupting from a gathering of the type that Mr Bassi wishes to arrange. I judge that it is equally likely that people participating in his proposed event would exercise even greater caution than usual to avoid tarnishing the merits of their cause with violence. 8. The exceptional circumstance of the present health crisis in New South Wales and generally in Australia and the rest of the world is the significant consideration that is to be weighed against the right of assembly and demonstration on this occasion. The Court has before it an affidavit from Dr Kerry Chant, the State's Chief Health Officer and Deputy Secretary for Population and Public Health. Dr Chant has expressed concern that an event of this nature may attract in excess of 10,000 people, which is undoubtedly a possibility. Dr Chant states that an event of this size "would increase the risk of community acquired transmission of COVID-19 and the seeding of clusters", referring to clusters of infection. It is Dr Chant's view that, whilst current new infections are being detected at very low rates, there cannot be complete coverage of the population by testing and there is concern amongst public health authorities about the extent to which there may be members of the community capable of transmitting the infection who have gone undiagnosed. 9. Dr Chant annexed to her affidavit an advice from the Australian Health Protection Principal Committee, a body of medical personnel providing advice to the Department of Health of the Commonwealth. The document was issued on 5 June 2020. It makes the following points: These large protests encourage mixing of people in the population who are not part of usual social networks. These types of contacts – between people from different social groups and geographical locations – pose a significant risk for the spread of COVID-19. One of the main methods to contain COVID-19 is the early identification of positive cases, and the ability to quickly contact trace and quarantine close contacts. Contact tracing is made much more difficult in situations such as protests, as close contacts cannot be identified and followed up. 1. The advice of public health officials to the Commonwealth and State governments has been that social distancing should be the primary method of limiting the spread of this disease, protecting the population and preserving the capacity of the health system to provide care. This has led to the government issuing from time-to-time public health orders restricting gatherings and movements of members of the community. 2. The Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) of 2020 was issued with effect from 1 June 2020. It reflects, very currently, the professional view of those who take responsibility for the government adopting appropriate measures in the interests of community health. As part of that order the Minister has directed in cl 10(1) that "a person must not participate in a public gathering of more than 10 persons". It makes specific directions with respect to gatherings for weddings, funerals, memorial services and religious services. A religious service gathering is not to include more than 50 people, a wedding not more than 20 and a gathering for a funeral or memorial service or the like is not to include more than 50. 3. Mr Bassi proposes measures to minimise the risk of the spread of this virus at the assembly for which authorisation is sought. He has deposed that he has arranged for 50 people who would operate in the capacity of marshals to assist with keeping people separate; that he has advised through social media that attendees should wear face masks, although he acknowledges that he cannot impose that. He says that he has advised attendees "to be prepared to social distance during the protest". Mr Bassi says that an association with which he is affiliated in connection with this demonstration has arranged for a stockpile of many thousands of face masks. These will be on hand, given to marshals to hand out to attendees and placed around the perimeter of the assembled people. He also states that he has arranged for the provision of several hundred bottles of hand sanitiser. 4. I cannot accept that these proposals by Mr Bassi should take the place of the Public Health Order, which applies to all citizens and which for the time being prohibits the formation of gatherings of more than ten people in public places. I do not doubt that the measures proposed by Mr Bassi if rigorously adopted by attendees would reduce the risk but the type of risk that is referred to in the document from the Commonwealth Health Department's committee, from which I quoted earlier, would not be removed by these measures. 5. It is self-evident that the social distancing measures adopted to this point have been the key element in minimising the spread of this disease. A gathering of 5,000 people who are interested in this particular cause, at a time when the entire community is under direction not to gather in groups of more than ten, is an unreasonable proposition. 6. The exercise of the fundamental right of assembly and of expression of political opinion by gathering in numbers is not taken away by the current Public Health Order; it is deferred. The public health threat that has been encountered by our community through the spread of this disease has asked a great deal of many people in many respects throughout the community. A great many people have lost their livelihoods for the time being as a result of the need to conform to these restrictions. Others have been unable to attend funeral services for loved ones. Many forms of public gathering have had to be restricted. The conduct of legal proceedings in open court, a most important aspect of the administration of justice in a free society, has had to be curtailed. 7. Mr Bassi, through his Counsel, urges upon the Court that in fact what will occur if this gathering is not authorised is that those who are interested in the issue will assemble anyway, in disregard of the Public Health Order, and that by not being permitted to spread themselves out over streets and public places, they will be likely to gather in closer proximity on footpaths. I reject that submission, I do not accept that it would follow upon my refusal to provide authorisation for this assembly that great numbers of people would act so irresponsibly towards the health of their fellow citizens, gather in this manner in circumstances where the application for authorisation has been refused upon the basis that I have stated. 8. Mr Bassi's counsel effectively puts to the Court that the refusal of the authorisation is a futility and I do not accept that. On the contrary, for the Court to authorise a gathering in these circumstances would amount to defiance of a judgment that has been made by ministers of the government – and the public health officials who advise them – in the interests of the safety of all. 9. For these reasons I refuse the application for authorisation under s 26. 10. The Commissioner does not need to pursue the summons that he filed in circumstances where he was seeking authorisation on the understanding that he may be construed to have obtained seven days' notice from Mr Bassi. The appropriate order is that the Commissioner's summons be dismissed and that the defendant file by close of business on Tuesday 9 June 2020 a cross-summons for the relief that he has claimed in this expedited hearing. I see no reason to order costs against either party. SPARTALIS: No, your Honour, no order as to costs. HIS HONOUR: Is there any other order that is sought? SPARTALIS: No, your Honour. KERKYASHARIAN: No, your Honour. HIS HONOUR: To make it perfectly clear, the defendant's application for the two orders that I have quoted in the course of giving these reasons is dismissed.