Date
Geographical Area
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
Key Facts
In response to the rising number of Covid-19 cases within Australia and internationally, New South Wales issued Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No.4) 2020. Under this Order a person must not participate in public gatherings of more than 20 people.
On 21 July 2020, the plaintiff – being the Commissioner of Police – sought an order under s.25(1) of the Summary Offences Act 1988 (NSW) which would prohibit the defendant from holding a public assembly and procession. The plaintiff sought the prohibition order on the grounds of public health in the context of Covid-19, citing concerns about the health and safety of participants, police, and other members of the public.
The defendant had submitted a notice to police of a proposed public assembly of about 500 people which was to occur on 28 July 2020, which they were required to do under the Order. The purpose of the public assembly was to protest against Aboriginal deaths in custody and to demand justice for David Dungay Jnr, who had died in Sydney’s Long Bay Gaol in 2015. The protest would culminate in the delivery of a 90,000 signature strong petition to the New South Wales Attorney General. There was a sense of urgency for the protest as the organisers wanted to take advance of the momentum of the Black Lives Matter movement in the United States and to keep the pressure on.
After a conference with the defendant – Gibson – on 20 July to discuss the acting Assistant Commissioner of the Central Metropolitan Region’s opposition to the holding of the protest, which they were required to do under the Order, the plaintiff applied for the prohibition order. The defendant opposed the order sought by the plaintiff on two grounds: a constitutional bar and a question of the Court’s jurisdiction.
On 21 July 2020, the plaintiff – being the Commissioner of Police – sought an order under s.25(1) of the Summary Offences Act 1988 (NSW) which would prohibit the defendant from holding a public assembly and procession. The plaintiff sought the prohibition order on the grounds of public health in the context of Covid-19, citing concerns about the health and safety of participants, police, and other members of the public.
The defendant had submitted a notice to police of a proposed public assembly of about 500 people which was to occur on 28 July 2020, which they were required to do under the Order. The purpose of the public assembly was to protest against Aboriginal deaths in custody and to demand justice for David Dungay Jnr, who had died in Sydney’s Long Bay Gaol in 2015. The protest would culminate in the delivery of a 90,000 signature strong petition to the New South Wales Attorney General. There was a sense of urgency for the protest as the organisers wanted to take advance of the momentum of the Black Lives Matter movement in the United States and to keep the pressure on.
After a conference with the defendant – Gibson – on 20 July to discuss the acting Assistant Commissioner of the Central Metropolitan Region’s opposition to the holding of the protest, which they were required to do under the Order, the plaintiff applied for the prohibition order. The defendant opposed the order sought by the plaintiff on two grounds: a constitutional bar and a question of the Court’s jurisdiction.
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.
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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Disclaimer
This case law summary was developed as part of the Disaster Law Database (DISLAW) project, and is not an official record of the case.
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