Supreme Court New South Wales Medium Neutral Citation: NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5 Hearing dates: 20 January 2017 Date of orders: 20 January 2017 Decision date: 20 January 2017 Jurisdiction: Common Law Before: Lindsay J Decision: A "Prohibition Order" made under the Summary Offences Act 1988 NSW, section 25(1) Catchwords: PUBLIC ASSEMBLY – Protest against State Government "lock-out" laws affecting licensed premises – Application by Police Commissioner for Order under Summary Offences Act 1988 NSW, section 25(1) – Order made Legislation Cited: Liquor Act 2007 NSW Summary Offences Act 1988 NSW Cases Cited: Commissioner of Police v Allen (1984) 14 ACrimR 244 NSW Commissioner of Police v Bainbridge (2007) 175 ACrimR 226 NSW Commisssioner of Police v Folkes [2015] NSW SC 1887 Commissioner of Police (NSW) v Gabriel [2004] NSWSC 31 Commissioner of Police v Jackson [2015] NSWSC 96 Commissioner of Police v Langosch [2012] NSWSC 499 Commissioner of Police v Ridgewell [2014] NSWSC 1138 Commissioner of Police v Rintoul (2003) NSWSC 662 Category: Principal judgment Parties: Plaintiff: New South Wales Commissioner of Police First Defendant: Keep Sydney Open Limited ACN 616 203 171 Second Defendant: Tyson Koh Representation: Counsel: Plaintiff: P Coady Defendants: M Robinson SC, T Bors and D Beaufils Solicitors: Plaintiff: NSW Crown Solicitor's Office Defendants: Levitt Robinson File Number(s): 2017/0019139 Judgment 1. By a Summons filed and served yesterday (19 January 2017), the Commissioner of Police applies under section 25(1) of the Summary Offences Act 1988 NSW for an order that the holding of a public assembly in, or in the vicinity of, Darlinghurst Road, Kings Cross, tomorrow night (Saturday, 21 January 2017) between the hours of 9.00 pm and midnight or thereabouts (proposed in a "Notice of Intention to Hold a Public Assembly" dated 9 January 2017 served on the Commissioner by the defendants as "organizers" of the assembly) be "prohibited". 2. The defendants have arranged the assembly (which they describe as an "event") as a means of public protest against the State Government's "lock out" laws (provisions of the Liquor Act 2007 NSW and regulations made under the Act) that limit night trading times and conditions, with consequent effects on the social lives of a significant number of people. 3. The legal effect of a "prohibition order", if made, is not, of itself, to prohibit an assembly, but to deny to participants the qualified protection from criminal prosecution (for which s 24 of the Summary Offences Act 1988 provides) for "any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place": Commissioner of Police v Allen (1984) 14 A Crim R 244; Commissioner of Police v Rintoul [2003] NSWSC 662; Commissioner of Police (NSW) v Gabriel [2004] NSWSC 31; NSW Commissioner of Police v Bainbridge (2007) 175 A Crim R 226; Commissioner of Police v Langosch [2012] NSWSC 499; Commissioner of Police v Ridgewell [2014] NSWSC 1138; NSW Commisssioner of Police v Folkes [2015] NSWSC 1887; Commissioner of Police v Jackson [2015] NSWSC 96. 4. As Adamson J noted in Folkes [2015] NSWSC 1887 at [10], the Court's jurisdiction to make an order under s 25(1) of the Summary Offences Act depends on two notices having been given by the Commissioner: one under s 23(1), the other under s 25(2). There is no dispute that the Commissioner has established the jurisdictional foundations for the making of an order, if an order is to be made, in these proceedings. 5. The requisite notices having been given and the parties having actively engaged in a process of consultation, the Commissioner says that he would, or might well, support a public protest in an open area during daylight hours; but, concerned about a variety of factors that bear upon public safety and crowd management, he does not support the proposed event, given that it is to be held, at night, in a confined, semi-residential area. 6. Neither side of the record is, or can be, entirely certain of the size or composition of the proposed assembly. It has been advertised as open to the public, and it is expected to be so. The consensus is that between 5,000 and 7,000 people are likely to participate; but the evidence of the second defendant (Mr Koh) is that he cannot exclude the possibility that as many as 15,000 people might participate. 7. The defendants have made arrangements for the assembly to be entertained by a musical band, and they anticipate that, in addition to hearing political speeches, participants in the event will have, and will be encouraged to take up, an opportunity to dance to music. 8. The proposed event involves large logistical questions about crowd management that bear upon the safety of participants, and the general community in the vicinity of the venue. The defendants have endeavoured to cater for the orderly conduct of the event (for example) by arranging for volunteer marshals to assist in crowd control, and for St John Ambulance officers to be available to render medical assistance, if required. They have not, however, made comprehensive arrangements (for example) for the control of traffic and pedestrians - they rely upon the police for that - and they do not presently have insurance cover in the event of misadventure. 9. All cases on Part 4 of the Summary Offences Act (which comprises sections 22 - 27) emphasise the high importance of recognition being given to a democratic right of public assembly, a freedom of association and an associated right to freedom of speech, balanced by a due consideration of other factors, such as the need to address any risk of a breach of the peace and to minimise undue interference with the lives of those not engaged in the particular public assembly. 10. Two observations made by Adams J in NSW Commissioner v Bainbridge (2007) 175 A Crim R 226 bear repetition. 11. At 229 [16], his Honour said: "The process [of decision making referable to s 25 of the Summary Offences Act] requires the Court to balance the important, indeed fundamental, right of freedom of assembly and freedom of speech on the one hand, and the need to regulate the exercise of that right where it is necessary to do so to avoid injury to persons or property or otherwise unduly to interfere with the undertaking by other citizens of lawful conduct." 1. At 233 [33], his Honour said: "Freedom is always in tension with regulation in a democratic society. Regulation is designed to enhance or maintain the freedom of citizens from violence, fear, intimidation or disruption. It must go no further than is reasonably required for that purpose." 1. As Hamilton J explained in Commissioner of Police (NSW) v Gabriel (2004) 141 A Crim R 566 at 567 [1]: "The whole purport of [Part 4 of the Summary Offences Act] is not to prohibit public assembly but, certainly in cases where they are a due exercise of the democratic right of free speech, to facilitate them by protecting participants in appropriate circumstances from prosecution for certain offences which might otherwise be regarded as having been committed." 1. In my assessment, the proposed event is not one appropriate to extend to participants in it the protection afforded by section 24 of the Summary Offences Act by dismissal of the Commissioner's summons. The logistical problems of the event are too large, and too unknown, to deny to police officers powers that might reasonably be required, in the interests of all concerned, to be exercised in management of the large number of people expected to participate, even assuming (as one hopes, and the defendants expect) that all participants will be well behaved, sober and conscious of the rights of others. 2. In my assessment, the public interest favours the making of an order under section 25(1) of the Summary Offences Act as sought. 3. I note that the parties have been, and can continue to be, in communication with one another with a view to ensuring, so far as one can ensure, that the event is conducted in an orderly and safe manner. 4. I make the following orders: 1. ORDER, pursuant to s 25(1) of the Summary Offences Act 1988 (NSW), that the holding of a public assembly at or in the vicinity of the corner of Bayswater Road and Darlinghurst Road, Kings Cross, on 21 January 2017 (being that referred to in the "Notice of Intention to hold a Public Assembly" dated 9 January 2017) be prohibited. 2. ORDER that these orders be entered forthwith. 1. No costs order having being sought, no order is made as to the costs of the proceedings. ********** Amendments 20 January 2017 - [13] - typographical amendment 21 January 2017 - [6] - typographical amendment 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: 21 January 2017