Supreme Court New South Wales Medium Neutral Citation: Commissioner of Police v Thomson [2020] NSWSC 1424 Hearing dates: 12 October 2020 Date of orders: 12 October 2020 Decision date: 15 October 2020 Jurisdiction: Common Law Before: Cavanagh J Decision: (1) The summons is dismissed. (2) The plaintiff is to pay the defendant's costs. Catchwords: PUBLIC ASSEMBLY — Summary Offences Act 1988 (NSW) — Whether order pursuant to s 25(1) should be made prohibiting the holding of a public assembly — Balancing exercise between competing public interests CONSTITUTIONAL LAW — Judiciary Act 1903 (Cth) — Notice of constitutional matter — Severance of matters Legislation Cited: Commonwealth Constitution Judiciary Act 1903 (Cth), s 78B Public Health Act 2010 (Cth), ss 7, 10 Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) 2020 (NSW), cl 22 Summary Offences Act 1988 (NSW), ss 23, 24, 25 Cases Cited: ACCC v Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151 Commissioner of Police (NSW) v Gibson [2020] NSWSC 953 Commissioner of Police (NSW) v Supple [2020] NSWSC 727 Commissioner of Police v Bassi [2020] NSWSC 710 Commissioner of Police v Gray [2020] NSWSC 867 Commissioner of Police v Rintoul [2003] NSWSC 662 Commissioner of Police, New South Wales Police Force v Kumar (OBO National Union of Students) [2020] NSWSC 804 Nikolic v MGICA Ltd [1999] FCA 849 Raul Bassi v Commissioner of Police [2020] NSWCA 109 Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) (2010) 184 FCR 516; [2010] FCA 428 Category: Principal judgment Parties: Commissioner of Police (Plaintiff) Michael Thomson (on behalf of National Tertiary Education Union NSW) (Defendant) Representation: Counsel: L V Gyles SC with M S Spartalis (Plaintiff) A A Wilson (Defendant) Solicitors: Office of the General Counsel, NSW Police Force (Plaintiff) National Justice Project (Defendant) File Number(s): 2020/289909 Publication restriction: Nil Judgment 1. This is an application by the Commissioner of Police to prohibit the holding of a public assembly organised by the defendant to take place on 13 October 2020 at Victoria Park in Camperdown, Sydney. 2. The defendant, Michael Thomson, is the Division Secretary of the New South Wales Division of the National Tertiary Education Industry Union ("the Union"). In his capacity as the Secretary of the Union's NSW Division, he has organised a protest rally in Victoria Park for 1.00pm tomorrow, being Tuesday 13 October 2020. 3. By summons filed on 8 October 2020, the plaintiff seeks an order under s 25 of the Summary Offences Act 1988 (NSW) prohibiting the holding of this public assembly. 4. The hearing took place on an urgent basis on Monday 12 October 2020. Mr Gyles of Senior Counsel appeared (with Mr Spartalis of Counsel) for the plaintiff and Mr Wilson of Counsel appeared for the defendant. 5. At 5pm on 12 October, I indicated to the parties that I did not propose to make the orders sought and would be dismissing the summons. So that the parties could further consider their positions, I delivered a short oral summary of my reasons and said that I would publish my reasons as soon as possible. A preliminary point 1. On the evening prior to the hearing, the defendant served on the plaintiff (and the Attorneys-General) a notice under s 78B of the Judiciary Act 1903 (Cth). 2. The plaintiff sought to raise an issue arising under the Commonwealth Constitution being whether an order prohibiting the proposed public assembly under s 25 of the Summary Offences Act would be contrary to the implied freedom of political communication arising under the Constitution. 3. Mr Gyles indicated that, as the notice had only been served on the evening before the commencement of the hearing, the plaintiff was not in a position to respond to the notice. There was no appearance by the Attorneys-General. 4. He submitted that should the plaintiff pursue the issue, it would be necessary to adjourn the hearing and that orders should be made restraining the defendant from holding the assembly the next day. 5. Section 78B of the Judiciary Act imposes a duty on the Court not to proceed with a cause involving a matter arising under the Constitution or involving its interpretation until it is satisfied that notice of the cause, specifying the nature of the matter, has been given to the Attorneys-General of the Commonwealth and of the States and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General. 6. However, the Court is not obliged not to proceed merely because of the raising of the issue by a party. If the issue raised by the notice is frivolous or unarguable, the Court may consider it so and proceed despite the s 78B notice. [1] The raising of a frivolous point should not be a means of forcing a delay or adjournment in any litigation. 7. Further, as set out in s 78B(2)(c), even having regard to the duty imposed by s 78B(1), a Court may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation. 8. The same constitutional issue was raised and considered by Ierace J in Commissioner of Police (NSW) v Gibson. [2] The Attorney-General for NSW was represented on that hearing. 9. The plaintiff directed my attention to the four bases for the constitutional challenge identified in Commissioner of Police (NSW) v Gibson at [17]. The plaintiff submitted that his Honour did not consider the fourth point being: "The Supreme Court must exercise its powers under the [Summary Offences Act] so as to preserve compliance with the Implied Freedom, by refusing the Commissioner's application under s 25 [Summary Offences Act] to 'prohibit' the public assembly." 1. As I understood the defendant's submission, the point that the defendant wished to pursue was that, irrespective of the balancing exercise that I would undertake for the purposes of considering whether an order should be made under s 25 of the Summary Offences Act, in this particular matter, the making of such an order would be contrary to the implied freedom of political communication and thus could not be made. 2. It was not submitted by the plaintiff that the point was so frivolous or unarguable that I should proceed, irrespective of the notice. 3. However, after hearing from the parties, I determined that the point could be severed as permitted by s 78B(2)(c) of the Judiciary Act. I thus directed that the matter should proceed and that I would hear evidence and argument concerning all of the issues arising under the summons, other than the constitutional point that the defendant sought to pursue. 4. Having severed the issue, I then heard the issues arising under the summons and indicated what my decision would be. At that time, the defendant withdrew his reliance on the s 78B notice and there is no need to consider the issue further. The purpose and nature of the proposed assembly 1. As set out in the "Notice of intention to hold a public assembly" dated 30 September 2020 ("the Notice") submitted to the plaintiff on 30 September 2020, the purpose of the proposed assembly ("the rally") is to: 1. protest the Federal Government's tax on higher education via the Tehan Proposals; 2. support the fight for jobs at universities; and 3. support the right to demonstrate. 1. In his evidence, Mr Thomson expanded on the nature and purpose of the rally as follows: 1. The rally is only open to Union members who have registered to attend. 2. There are thus far only 34 registrants. 3. He anticipates that there will be no more than 100 people in attendance. 4. The rally is planned as a lunchtime rally. 5. The rally will take place in Victoria Park, which is a large open park situated in Camperdown in Sydney. 6. The rally will remain in the confines of the park. It is not proposed that there will be any marching along any street or even through the park. 7. The rally has not been advertised publicly. It has only been advertised to Union members at the University of Sydney and University of Technology Sydney. 8. The Union and its members consider that it is important to have a protest rally at this time, as a rally is an important part of the Union's campaign against the Federal Government's proposed tertiary education sector reforms. The plaintiff's opposition to the rally 1. The plaintiff's opposition to the rally is essentially that: 1. it may increase the risk of community transmission of COVID-19; and 2. it may expose Police Officers to the virus. 1. The plaintiff says that the COVID-19 safety plan proposed by the defendant for the rally may not be adequate to ameliorate the risk, particularly in circumstances in which the plaintiff submits that participants in such assemblies do not necessarily abide by such a plan. Further, the plaintiff submits that there is a real possibility that a significantly higher number of people than anticipated by the defendant will attend and the rally will attract a larger audience, including persons who will not register and will not comply with the defendant's COVID-19 safety plan. Procedural background 1. On 30 September 2020, the defendant served the Notice on NSW Police Force in respect of the proposed public assembly. 2. On 6 October 2020, the defendant met with Chief Inspector Michael Merritt to confer in respect of the public assembly. 3. On 8 October 2020, the Office of the General Counsel, NSW Police Force, received instructions to file an application for a prohibition of the public assembly pursuant to s 25 of the Summary Offences Act. 4. On 8 October 2020, the solicitor for the plaintiff informed the defendant that the plaintiff would be filing the application to prohibit the public assembly. 5. At approximately 12.45pm on 8 October 2020, the solicitor for the plaintiff spoke further with the defendant as to whether the defendant would be arranging legal representation in response to the application and agreed that the matter could be heard on Monday 12 October 2020. 6. On 11 October 2020, the defendant served a notice under s 78B of the Judiciary Act. 7. Unlike in Raul Bassi v Commissioner of Police, [3] there is no procedural issue raised that might impact upon the outcome of this application. Relevant legal principles 1. The relevant legal principles applicable to this type of application under the Summary Offences Act have been the subject of a number of decisions since the commencement of the current public health crisis in 2020. 2. The proper approach to this type of application was summarised by the Court in Raul Bassi v Commissioner of Police at [17] (Bathurst CJ, Bell P and Leeming JA) as follows: "[17] The following observations may be made about the statutory scheme: (i) the Summary Offences Act differentiates between public assemblies for which notice has been given to the Commissioner at least seven days prior to the holding of the public assembly, and public assemblies for which notice has only been given less than seven days prior to the proposed assembly; (ii) authorisation of the public assembly may be secured by notified non-opposition to the proposed public assembly by the Commissioner or, depending on the timing of the notice of intention, the absence of an order prohibiting the public assembly (in the case of notice which has been given more than seven days in advance) or an order authorising the public assembly (in the case of notification less than seven days prior) by the Supreme Court or the District Court of New South Wales; (iii) the Summary Offences Act expressly contemplates, in s 24, that the particulars of a statutory notice of intention to hold a public assembly may be amended by agreement between the Commissioner and the organiser of the proposed public assembly; (iv) this reflects the scope for negotiation and co-operation between the Police and the organiser as to the details and proposed manner in which the public assembly is to be conducted; (v) the Court only assumes a role in relation to public assemblies in circumstances where: (a) in the case of a notice of intention provided more than seven days prior to the proposed assembly, the Commissioner has not notified non-opposition; or (b) where the notice of intention was served less than seven days prior to the proposed assembly; (vi) in the former case, the Commissioner in effect assumes the onus under s 25 of the Summary Offences Act of securing an order prohibiting the assembly whereas, in the latter case, the onus is placed on the organiser to secure court authorisation for the assembly; (vii) before the Commissioner may apply for an order prohibiting the proposed public assembly, he or she must first engage in the co-operative process prescribed by s 25(2) of the Summary Offences Act with a view to securing, or at least exploring the possibility of securing a consensus in relation to the proposed public assembly; (viii) whilst the Summary Offences Act does not make any express provision for a change of position by the Commissioner where, for example the Commissioner, for any reason, wishes to withdraw a prior notified stance of non-opposition, s 25 of the Summary Offences Act provides the route that must be taken by the Commissioner in that event." 1. In the circumstances of this matter, the plaintiff thus bears the onus of establishing that the prohibition order should be made. 2. Section 23 of the Summary Offences Act sets out the circumstances in which a public assembly is an authorised public assembly. Subject to this application, the rally would be an authorised public assembly. 3. Further, as set out in s 24 of the Summary Offences Act, if an authorised public assembly is held substantially in accordance with the particulars furnished on the Notice, 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 an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place." 1. Of course, the reason that the application has been brought by the plaintiff is that the proposed rally conflicts with orders made under the Public Health Act 2010 (Cth). 2. By virtue of s 7 of the Public Health Act, the Minister has the power to give directions by order in respect of public health risks. Section 10 of the Public Health Act provides that it is an offence to fail to comply with a Ministerial direction without reasonable excuse. 3. The Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 5) 2020 (NSW) ("the Public Health Order") commenced on 25 September 2020. Clause 22 of the Public Health Order is in the following terms: 22 Direction of Minister concerning outdoor public gatherings (1) The Minister directs that a person must not participate in an outdoor public gathering of more than 20 people. (2) This clause does not apply to a person who is— (a) engaged in work, or (b) providing care or assistance to vulnerable persons. (3) This clause does not apply to the following— (a) a gathering on premises for which a person is required by clause 7 of this Order to develop and keep a COVID-19 Safety Plan, (b) a community sporting activity for which a person is required by clause 20 of this Order to develop and keep a COVID-19 Safety Plan, (c) a gathering listed in Schedule 2 of this Order, (d) a gathering of persons who are all from the same household, (e) a gathering for a wedding, a funeral, a memorial service or a religious service or a gathering immediately after a wedding, a funeral, a memorial service or a religious service, (f) a gathering to move to a new place of residence or a business moving to new premises, (g) a gathering to provide emergency assistance to a person or persons, (h) a gathering necessary to allow a person to fulfil a legal obligation, (i) a gathering of persons on real property to enable persons to view or inspect the real property for the purposes of the sale or lease of that property, (j) a gathering of persons at a display home or other display premises to enable persons to view or inspect the display home or display premises for the purpose of the sale or lease of real property. 1. It is proposed that the rally will be an outdoor public gathering of more than 20 people. 2. The proposed rally does not fall within any of the exceptions set out in cls 22(2) or (3) of the Public Health Order and thus participation in the proposed public assembly would be contrary to the direction set out in cl 22(1). 3. This is the latest in a number of applications made by the Commissioner for a prohibition order in respect of public assemblies, pursuant to s 25(1) of the Summary Offences Act, in the context of the current health crisis. 4. In each of the cases, the Court has recognised the importance of free speech and the right to advance political causes by demonstrations. [4] Those rights are particularly important in our society. 5. In Commissioner of Police v Rintoul, [5] Simpson J summarised the approach to be taken as follows: "[5] ... the Act is intended to strike a balance between competing rights — the right, jealously guarded, of the citizen to exercise freedom of speech and assembly integral to a democratic system of government and way of life, and the right of other citizens not to have their own activities impeded or obstructed or curtailed by the exercise of those rights." 1. In considering whether to make an order under s 25(1) of the Summary Offences Act prohibiting the rally proposed by the defendant, I am endeavouring to strike a balance between competing public interests, being the right to free speech and public demonstration, on the one hand, and the general safety of the community at large on the other. [6] 2. I do not have the power to impose conditions on the conduct of any assembly. [7] Rather, I must either grant or refuse the orders sought. 3. The Court may consider evidence of the significance of the issues to the community as a whole at the particular time but I would not infer that the limited registration for the rally thus far is an indication of limited community support. It may be that the issue being ventilated in any particular public assembly is of great importance for those participating at the particular time. It is not my task to compare or exercise some value judgment regarding the importance of the particular cause, the subject of the rally. The evidence 1. In support of his application, the plaintiff relies on: 1. an affidavit of Acting Assistant Commissioner Stacey Maloney dated 9 October 2020; and 2. an affidavit of Dr Jeremy McAnulty, Executive Director of the COVID-19 Public Health Response Branch (NSW Health) dated 9 October 2020. 1. The defendant relies on his own affidavit dated 12 October 2020 and an affidavit of Professor David Isaacs dated 11 October 2020. 2. Each of the witnesses also gave oral evidence and was subject to cross-examination. 3. Acting Assistant Commissioner Stacey Maloney spoke of her experience with other assemblies, protests or rallies. She attested to her observations that that persons attending such rallies would not always comply with social distancing, despite instructions to do so. 4. She referred to the risks associated with such assemblies and her concern as to the risks to the Police Officers who would be required to attend. She said the Police would normally allocate one Police Officer for every four attendees at the rally, although I am not sure that that could necessarily be applied to the larger rallies. She commented on her experience this year. 5. The effect of her evidence is that, at least in her experience, despite what might be the intentions or aims of the organisers of such an event, precautions such as the wearing of a mask or appropriate social/physical distancing often do not occur. 6. She thought that even accounting for the defendant's plan to place the participants in the assembly in groups of 19, there was a risk that persons might leave that particular group and merge. 7. In her experience in such rallies, the participants often commenced chanting and she believed that this increased the public health risk, although in cross-examination, she accepted that she did not have any medical or scientific expertise on that issue. 8. Much of the cross-examination was devoted to her opinion, suspicion or expectation that the defendant's estimate of the potential number of attendees, being up to 100, was unlikely to be correct. She pointed to her experience with earlier rallies in which organisers have been unable to prevent members of the public from simply joining the assembly. 9. In cross-examination, the defendant sought to highlight his assertion that the rally has been organised by a Union, that Union members must comply with Union rules and that in those circumstances, it is likely that persons attending the rally would comply with the requirements of the organiser. 10. In his evidence, Dr McAnulty spoke of the general risks associated with COVID-19 and the risk of community transmission. He set out how the virus may be transmitted and how the risks might be reduced. These are all matters about which there could no longer be much dispute. 11. Dr McAnulty was cross-examined at length with reference to the expert opinion relied upon by the defendant, being the opinion of Professor Isaacs. The result of cross-examination and the evidence of Professor Isaacs is that there is substantial agreement between Dr McAnulty and Professor Isaacs on the health risks in the community at this time. 12. The defendant set out his plans for the rally, the COVID-19 safety measures that he would be putting in place and the importance of the rally as part of the Union's campaign. 13. The primary focus of cross-examination was on the uncertainty as to who might actually attend, the likely number of attendees and the defendant's likely difficulties in enforcing the proposed COVID-19 safety measures. Determination 1. In undertaking the balancing exercise, it is important that I have regard to the evidence adduced on the application. Each case must turn on its own facts and on the evidence adduced by the parties. 2. I am not undertaking an exercise of comparing relative risks. For example, Professor Isaacs tended to emphasise the comparative risks associated with thousands of people attending at our sporting grounds to witness the rugby league semi-finals and the risks associated with the assembly proposed by the defendant, at which it is anticipated that less than 100 people will attend. 3. It is not my function to determine or consider risks associated with persons attending rugby league matches. I am evaluating the health risks associated with the proposed rally. 4. Nor am I undertaking an exercise in comparing the relative worth or value of the rally with other public assemblies that have been prohibited or authorised during the current public health crisis. I am not in a position to assess the general benefit to the community of the rally that is proposed for Victoria Park in Camperdown on 13 October 2020. 5. However, I do have evidence from the defendant as to why a public rally is an important and integral part of any campaign such as the one which is being pursued by the defendant in respect of the Union's opposition to what is known as the Jobs-Ready Graduates legislation or the Tehan reforms. 6. According to Mr Thomson, the Union estimates that the Tehan reforms and the recent drop in revenue for universities will result in up to 30,000 university staff across Australia losing their jobs, which is equivalent to 20,000 full-time positions, including academics, researchers and general staff. 7. Mr Thomson says that combatting the Tehan reforms and the government's response to the university funding crisis is essential to the role and purpose of the Union. 8. In assessing the health risks associated with the rally, I consider it important that the rally proposed for Victoria Park tomorrow is a public assembly that: 1. is organised by the Union; 2. is open only to Union members who register with the Union prior to attendance; and 3. has not been advertised generally — it has only been advertised to Union members at the University of Sydney and University of Technology Sydney. 1. Further, Mr Thomson says that persons who attend who are not Union members or not registered will be asked to leave. It is a lunchtime rally, only for Union members in a park, in open space. In the particulars of the Notice submitted to the Commissioner of Police for the purposes of the rally, Mr Thomson estimates that 100 persons might attend. 2. However, the plaintiff suggests and Mr Thompson accepts that, despite his planning and expectation, there may be a wide range of persons with varying interests who might seek to attend, including students and persons who simply want to attend to maintain their right to protest. 3. For the purposes of this application, I accept that there is a risk that other persons may wish to attend but the defendant can only adduce evidence of what has occurred, that is, that there are 34 registrants, that the assembly is limited to Union members and that it is not anticipated there will be more than 100 attendees. 4. The risk that other persons might attend in uncertain numbers is something to which I would give weight in undertaking the evaluative exercise of balancing the public health risk with the general freedom of speech and assembly, but it is only one factor to be considered. 5. I consider it important that the defendant has prepared a COVID-19 safety plan and intends to stick to that plan, although it could hardly be disputed that, despite the best efforts of organisers, some persons who might attend such a rally might not comply with the defendant's requirements. Some may remove their masks or some may not necessarily adhere to social distancing. 6. It is intended to be a short rally, chaired by Mr Thomson, in order to raise the public's interest in and consciousness of the issue. 7. There will be no march. The defendant is not proposing to take the participants on a march through the streets of Camperdown. Having 100 people or even more in a space such as Victoria Park would hardly be crowding out the area. 8. The defendant's proposed COVID-19 safety plan is detailed in his affidavit and includes the following: "36. Each of the Marshalls for the Public Assembly will be an employed official or an elected official of the Union. Accordingly, each of those officials will be required to follow my directions. Each of those officials will be provided with clear instructions to: a. Ensure that each Union member attending the Public Assembly is 1.5 metres or more away from others; b. Ensure that each Union member attending the Public Assembly wears a surgical face mark (i.e. a mask that covers the whole of the person's mouth and nose and fits securely around their face so as to prevent the discharge of anything from that person's mouth other than through the mask itself); c. Provide a mask purchased from a chemist to any Union member without one; d. Separate groups members (who themselves are socially distant) by a further 5 metres; e. Distribute hand sanitiser to all members present; f. Verify that the persons present in each group are union members who have pre-registered (against the registration list); g. Monitor the compliance of Union members with directions; h. Advise persons present that they should not be present if they: i. Have cold or flu symptoms; ii. Have recently travelled overseas; iii. Have come into contact with any person who as COVID 19 positive; or iv. Have travelled to any known COVID 19 hotspots. i. intervene if there is any non-compliance with directions. 37. The Public Assembly will be limited to a maximum of 100 people, including Marshalls, speakers and myself. Preparation for the Public Assembly 38. In preparation for the Public Assembly: a. We have only sent invitations to Union members; b. All Union marshals would receive a briefing on the COVID requirements before attending the proposed Public Assembly; c. The Public Assembly will take place in the open air and not in an enclosed space; and d. The Union marshals will mark out areas a minimum of 1.5 metres apart in Victoria Park to ensure that members can socially distance in groups of not more than 19 and that those groups will be distanced by at least 5 metres from each other. 39. The message regarding the Public Assembly will be sent only to our members and will state that this is a rally for Union members only and participants must register if they want to attend. Participants will need to provide their phone numbers and email addresses when they register (if the Union does not already have that information). In the event that there is a COVID outbreak, that information will be provided to NSW Health to enable contact tracing. 40. Each group of up to 19 people who attend will have a marshal who will have a pre-prepared list of registrants who are a part of their group. If someone attended who was not on their list, they will be asked by the marshal to leave the Public Assembly. 41. As the Chair of the Public Assembly I will make it clear to all persons present who haven't registered and those who are not abiding by our COVID Safe plan that they are not welcome and should leave. I will also make it clear that any person who does not leave after being requested to do so is putting themselves at risk of prosecution." 1. I accept that the plan is comprehensive. 2. In terms of the health risks that exist in our community at the present time, there is substantial agreement between the two experts who gave evidence, being Dr McAnulty and Professor Isaacs, who is a consultant paediatric infectious disease specialist and certainly an expert in the subject area. 3. Whilst Mr Gyles suggested that Professor Isaacs would defer to Dr McAnulty, he did not necessarily agree that he should and there was no general challenge to his expertise. 4. In cross-examination, Mr Wilson took Dr McAnulty through Professor Isaacs's affidavit. As it turned out, Dr McAnulty agreed substantially with much of the commentary by Professor Isaacs. Indeed, the disagreement between the experts is minor. 5. In para 31 of his affidavit, Professor Isaacs says in relation to the defendant's proposed COVID-19 safety precautions: "The combination of all the above measures … would reduce the risk of COVID-19 transmission to an extremely low level. Given the current epidemiology in NSW, where there are very few cases occurring, the risk is exceedingly low. The ability to trace all participants, as proposed, would mean that even in the very unlikely event of an exposure, it would be readily feasible for public health officials to trace all contacts and ensure appropriate self-isolation for 14 days. Thus the risk of a significant community outbreak resulting from a gathering of say 100 people observing all the above safeguards would be virtually zero." 1. Dr McAnulty did not agree with the comment that the risk of a community outbreak would be virtually zero. Further there was some uncertainty as to Professor Isaacs's suggestion that given the current epidemiology in New South Wales, there are very few cases occurring and the risk is exceedingly low. 2. Dr McAnulty clarified his views on the subject in stating, in essence, that because there are still some COVID-19 cases in our community, he would not say that the risk to the community as a whole is low (assessing the community as one body), but he accepts that the risk to individuals within the community at this time is low; that is, the risk to persons attending the rally is low. That same risk must apply to Police Officers who are required to attend. 3. Of course, both experts agree that the risk to individuals is significantly reduced if the COVID-19 safety measures, such as social distancing and the use of masks, are actually adhered to. 4. This is because, as Dr McAnulty says, the major mode of transmission from an infectious person is by droplets. As respiratory secretions only travel about a metre in the air and then fall to the floor, the epidemiological evidence strongly suggests that staying 1.5 metres or more apart is the most important way of limiting the transmission of COVID-19. 5. Having regard to the opinions of both experts, I am satisfied that this application is being made at a time when the risk of COVID-19 transmission is at a low level. 6. I also accept that the risk is minimised if persons comply with COVID-19 safe practices (which the defendant intends to enforce) but that I should not determine the outcome of this matter on the basis that everyone who might attend the assembly will definitely comply with COVID-19 safe practices. 7. I accept that in times of high emotion such as a protest rally, persons may tend to move together or raise their voices or simply forget what they should be doing. 8. However, the chances of emotion overcoming safe practices at this rally might be somewhat less than at other demonstrations. 9. The plaintiff emphasises that whatever the intentions of the defendant are in respect of this assembly, there remains a risk that other persons will attend and that those other persons may not refuse to leave if asked to do so by the defendant and that those other persons may simply fail to comply with the COVID-19 safety plan and the directions of the defendant. 10. The risk of other persons attending is present, but the likelihood of a substantial number of other persons attending is, at best, unknown or speculative. On the evidence before me, there is no real indication that large numbers of persons other than those invited will be attending. Again, in reality, this is not a protest open to the public at large. It is a rally organised by the Union for only Union members. 11. Whatever the risk of more people attending, the risk of transmission at this time is, on the evidence, low. There are only 18 known cases in New South Wales at the present time. 12. In my view, the health risks associated with this proposed assembly are so low, having regard to the way in which it will be conducted and the expected numbers (even allowing for higher numbers) that the right to free speech and assembly outweighs whatever health risks there might be. 13. I accept Mr Thomson's evidence as to the importance of a public rally in a campaign such as this and there is really no contrary evidence to his evidence. The plaintiff accepts that the cause is a legitimate cause. It is not necessary that I make any further comment on its importance. 14. In the circumstances, I decline to make a prohibition order under s 25 of the Summary Offences Act. The defendant having withdrawn its s 78B notice on hearing of my decision, the summons is dismissed. 15. The defendant seeks an order for costs. The plaintiff submits that it was necessary to file the summons in the current environment; that the matter is a matter of public interest; and that the defendant only provided late notice. 16. The matter is a civil matter. Whilst it does involve public interest issues, the plaintiff was not bound to bring the application. I do not consider that there is anything exceptional or special about this matter that would cause me to depart from the usual order in respect of costs. 17. The plaintiff brought the application. The defendant was legally represented. The plaintiff was unsuccessful. 18. I order the plaintiff to pay the defendant's costs. ********** Endnotes 1. Nikolic v MGICA Ltd [1999] FCA 849; ACCC v Berbatis Holdings Pty Ltd (1999) 95 FCR 292; [1999] FCA 1151 at [14]; Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3) (2010) 184 FCR 516; [2010] FCA 428 at [14]. 2. [2020] NSWSC 953. 3. [2020] NSWCA 109. 4. Commissioner of Police v Bassi [2020] NSWSC 710 at [17]–[18] (Fagan J); Commissioner of Police (NSW) v Supple [2020] NSWSC 727 at [6] (Walton J); Commissioner of Police, New South Wales Police Force v Kumar (OBO National Union of Students) [2020] NSWSC 804 at [14] (Lonergan J); Commissioner of Police v Gray [2020] NSWSC 867 at [59] (Adamson J); Commissioner of Police (NSW) v Gibson at [80]. 5. [2003] NSWSC 662 at [5]. 6. Commissioner of Police (NSW) v Gibson at [84]. 7. Rintoul at [24]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2020