New South Wales Commissioner of Police v Bainbridge [2007] NSWSC 1015

Reported Decision : 175 A Crim R 226

New South Wales Supreme Court

CITATION : New South Wales Commissioner of Police v Bainbridge [2007] NSWSC 1015

HEARING DATE(S) : 04/09/07 and 05/09/07 JUDGMENT OF : Adams J at 1

EX TEMPORE JUDGMENT DATE : 5 September 2007

DECISION : Pursuant to section 25 of the Summary Offences Act 1988 the holding of the proposed public assembly and procession described in the Notice of Intention to hold a public assembly dated 14 August 2007 of Alex Bainbridge on 8 September 2007 be prohibited.; No order as to costs.

LEGISLATION CITED : APEC Meeting (Police Powers) Act 2007 Summary Offences Act 1988 Part 4 ss23 & 24

PARTIES : New South Wales Commissioner of Police (Plaintiff) Alex Bainbridge (Defendant)

FILE NUMBER(S) : SC 30096/07

COUNSEL : Mr M. Spartalis (Plaintiff) Mr M. Bozic SC/Mr M. Muston and Ms S. Callen (Defendant)

Michael Antrum SOLICITORS : General Counsel for NSW Police Force (Plaintiff) Watsons Connaught Offices (Defendant)

Revised

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

WEDNESDAY 5 SEPTEMBER 2007

030096/07 - NEW SOUTH WALES COMMISSIONER OF POLICE v ALEX BAINBRIDGE

ADMINISTRATIVE LAW LIST

JUDGMENT

1 HIS HONOUR: There is presently being held in Sydney an international conference involving a number of visiting dignitaries. Although no doubt worthy in their own way, most are not remarkable in a sense relevant to Australians. Amongst those visiting dignitaries, however, is the President of the United States. Mr Bush excites perhaps indifference in some, support in some and anger in others. All these feelings, no doubt, have a legitimate foundation depending on the experience, character and cast of mind of the person who has them. It cannot be denied that there are many who feel strongly that his presence in Australia should be not encouraged. 2 Amongst the reasons for the strong feelings concerning the President is the war presently occurring in Iraq. War is a subject upon which most persons of any sensibility have strong feelings, mostly, I suspect, of regret; some, though rare, with approbation; and many with dread and apprehension. The combination of Australia's involvement in the Iraq War and the presence in Sydney of the President of the United States is bound to excite strong feelings in many persons. 3 In a democratic society such as ours, providing those feelings do not lead to breaches of the law, they are entitled to be communicated. One of the ways in which judgments of this kind are communicated in a democratic society is by public assemblies which seek to persuade other citizens of the cause espoused by those demonstrating and to indicate to those citizens who are of a different view that they are mistaken. The other purpose of such a demonstration is so that those of one mind upon the particular question can encourage and support each other. 4 All these are perfectly reasonable and entirely acceptable modes of behaviour in a democracy. 5 For the purpose of undertaking such a demonstration, an application was made by persons who described themselves as the "Stop Bush Coalition", notifying the Commissioner of Police of an intention to hold a public assembly on 8 September 2007. The spokesperson for this group is the defendant, Mr Bainbridge. 6 The application informed the Commissioner that it was intended to hold – "a public assembly being a procession of approximately 5,000 persons which will assemble at Sydney Town Hall at approximately 10am and disperse at approximately 11.30am and at approximately 11.30am the procession will commence and proceed along George Street, turn right into Bridge Street, left into Macquarie Street and then proceed to the Sydney Opera House. At or in front of the Sydney Opera House the assembly will remain until approximately 2pm and then disperse." It was said that the purpose of the proposed assembly "is to protest against Australian Government policy in relation to the wars in Iraq and Afghanistan, climate change and workers' rights". 7 Certain discussions then occurred between members of the police force and Mr Bainbridge. Following those discussions, notice of intention to hold a public assembly in respect of a different area of the city was given on 8 August 2007. That notice said that it was intended to hold – "a public assembly being a procession of approximately 5,000 persons which will assemble at Sydney Town Hall at approximately 10am and disperse at approximately 11.30am and at approximately 11.30am the procession will commence and proceed along George Street, turn right into Martin Place, right into Macquarie Street and then proceed to the Hyde Park north. The rally will continue at Hyde Park until around 3pm."