Australia, Supreme Court of New South Wales, Commissioner of Police (NSW) v Gibson, 26 July 2020

Description

This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.

Date
Geographical Area
Asia Pacific
Countries
Australia
Case Name
Commissioner of Police (NSW) v Gibson
Case Reference
[2020] NSWSC 953
Name of Court
Supreme Court of New South Wales
Decision and Reasoning
Starting at the implied freedom test found in Clubb v Edwards; Preston v Avery (2019) 93 ALJR 448; [2019] HCA 11, the Court had to decide whether there was a burden on the implied freedom of political communication, if the purpose of the law was legitimate, and if the law was reasonably appropriate.

The Court assumed, alongside the Attorney General, that there was a burden, however, held that the law was legitimate and also suitable. The Court stated that it was legitimate as it is rationally connected to the purpose of allowing some public assemblies to take place without sanction and to prohibit others from taking place on grounds that may include a public order. In terms of appropriateness, the Court held that the law was necessary as there were no obvious, compelling or reasonably practical alternatives to achieving the purpose of the provision. Furthermore, it was adequate in its balance as it allowed the Court to take into account a wide range of considerations and to limit the restrictions imposed on the implied freedom where free speech and political communication considerations prevailed over other matters. Therefore, the Court held that it was not unconstitutional.

The Court also held that they did have jurisdiction to consider a s.25(1) prohibition order as the Commissioner had complied with all the requirements under s.25.
Outcome
The Court granted the plaintiff’s application for an order prohibiting the public assembly, the reasons for this being that the Covid-19 transmission risk was now medium due to the resurgence of the virus in Victoria and the difficulty to social distance in the proposed protest location. This decision was appealed; however, the appeal was dismissed: Padraic Gibson v Commissioner of Police (NSW Police Force) [2020] NSWCA 160.
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