NSW Commissioner of Police v Folkes [2015] NSWSC 1887

Supreme Court New South Wales

Medium Neutral Citation: NSW Commissioner of Police v Folkes [2015] NSWSC 1887 Hearing dates: 10 December 2015 Decision date: 11 December 2015 Jurisdiction: Common Law Before: Adamson J Decision: (1) Order, pursuant to s 25(1) of the Summary Offences Act 1988 (NSW), that the holding of the public assembly referred to in the Notice of Intention to Hold a Public Assembly" dated 6 November 2015 is prohibited.

(2) Make no order as to costs, with the intention that each party is to bear his own costs of the proceedings. Catchwords: PUBLIC ASSEMBLY AND PROCESSION – proposed public assembly to commemorate Cronulla riots to be held on tenth anniversary – risk to public order high – importance of police retaining full extent of powers to deal with risk – prohibition order made Legislation Cited: Summary Offences Act 1988 (NSW), Pt 4, ss 23, 24, 25, 27, Sch 1 Cases Cited: Commissioner of Police v Allen (1984) 14 A Crim R 244 Commissioner of Police v Rintoul [2003] NSWSC 662 Category: Principal judgment Parties: NSW Commissioner of Police (Plaintiff) Nicholas Hunter Folkes on behalf of Party for Freedom (Defendant) Representation: Counsel: I Temby QC/C McGorey (Plaintiff) J Loxton (Defendant)

Solicitors: Lea Armstrong, NSW Crown Solicitor (Plaintiff) Robert Balzola and Associates (Defendant) File Number(s): 2015/355936

Judgment

Introduction 1. By summons filed in Court on 3 December 2015, the Commissioner of Police (the plaintiff) seeks an order under s 25 of the Summary Offences Act 1988 (NSW) (the Act) prohibiting the holding of a public assembly arranged by the so-called Party for Freedom. The public assembly is proposed to be held on Saturday 12 December 2015 from midday until 2pm at the North End of the Don Lucas Reserve, Cronulla. Nicholas Folkes, the defendant, signed the Notice of Intention to Hold a Public Assembly on 6 November 2015 (the Third Notice) in his role as Chairman of the Party for Freedom. 2. The basis on which the plaintiff seeks relief is that he apprehends that, if the public assembly were to take place as planned, there would be a substantial risk that it would degenerate into a violent event in which clashes would occur between those who hold similar views regarding immigration as those propounded by the Party for Freedom (which opposes migration by Muslims to Australia) and those who hold different views. 3. Before setting out the factual background to the proceedings, I propose to summarise the relevant provisions of the Act since they form the basis of the relevant procedure.