Raul Bassi v Commissioner of Police (NSW)  NSWCA 109
In the lead up to the Black Lives Matter protest to be held across the state, Police withdrew support for the protest following the decision by Fagan J in the Supreme Court. This raised concerns for those participating in the protest as it was possible that there could be legal implications including the charge and arrest of those exercising their right to protest as an individual. However, an urgent appeal was lodged with the Court of Appeal declaring the protest to be an “authorised public assembly” and in the opinion of lawyers, a “reasonable excuse” for the purposes of the public health directions.
Provisions of the Summary Offences Act
To understand the decision, it is important to note the operation of the Summary Offences Act (‘The Act’) in relation to public assemblies.
Section 24 of the Act stipulates that if an authorised public assembly is held in accordance with section 23, a person is not, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.
Under Section 23 of the Act, for a public assembly to be ‘authorised’ written notice of intention to hold the public assembly must be addressed to and served on the Commissioner, has been served on the Commissioner. It must include information such as:
- the date on which it is proposed to hold the public assembly;
- A statement specifying the time and place at which it is intended that persons gather to participate in the proposed public assembly;
- A statement specifying the time at which it is intended that the procession commences and the proposed route of the procession;
- The purpose for which the proposed public assembly is to be held;
- The number of persons who are expected to be participants in the proposed public assembly.
The standard form is found in Schedule 1 of the Summary Offences Regulation 2015 (NSW).
Depending on when the notice of intention is served on the Commissioner, sections 25 or section 26 is engaged, relating to when an application can be made to the Court to have an order authorising or prohibiting the holding of the public assembly.
Given the nature of public assemblies, section 27 of the Act requires the application to be dealt ‘with the greatest expedition possible so as to ensure that the application is not frustrated by reason of the decision of the Court being delayed until after the date on which the public assembly is proposed to be held.
In the case of the ‘Black Lives Matter Protest,’ a Notice of Intention to hold a public assembly had been given to the Commissioner of Police (NSW) on 29 May 2020 in accordance with s 23 of the Summary Offences Act 1988 (NSW) and a form prescribed by the Summary Offences Regulation 2015 (NSW).
Raul Bassi, as the organiser of the proposed assembly, had contemplated a vigil of up to 50 people at Belmore Park The Notice of Intention outlined that the purpose of the proposed vigil was “to remember the deaths in similar circumstances of David Dungay, in Long Bay Jail, Sydney, on 29 Dec[ember] 2015, and George Floyd, on the streets of Minneapolis, USA, on 25 May 2020”.
However, in the week leading up to the proposed assembly, Mr Bassi became aware of the fact that many more than 50 people were likely to convene and that a new venue would be required.
A meeting with the Police was held on 4 June 2020, where it was suggested that an assembly of up to 5000 would convene at the Sydney Town Hall and process to Belmore Park.
Mr Bassi understood that the Commissioner agreed with this change of proposal and did not oppose the conduct of an assembly in amended form. An email sent by the Police to the Appellant on 4 June 2020 appeared to support this view. On 5 June 2020, however, the Commissioner of Police commenced proceedings to prohibit the conduct of the proposed public assembly.
An urgent hearing was held in the afternoon and early evening of 5 June 2020, the primary judge held that the Commissioner had not, in fact, agreed to the assembly in amended form on 4 June 2020, that the amendment amounted to a new notice of intention within the meaning of the Summary Offences Act and, not having been made within 7 days of the proposed assembly, Mr Bassi was required to obtain authorisation from the Court for the proposed assembly in amended form pursuant to section 26 of the Summary Offences Act.
The primary judge (in the Supreme Court) refused an oral application for authorisation on the basis that public health considerations associated with the COVID-19 pandemic outweighed the importance of orderly public protest.
This decision was then appealed, with the Court of Appeal asked to review the decision of the primary judge.
The Issues on Appeal
The Court of Appeal was asked to consider the following questions:
- Whether the primary judge erred (was mistaken) in concluding that Mr Bassi had not given notice on 29 May 2020 under section 23(1) of the Summary Offences Act in relation to the public assembly to be held on 6 June 2020;
- Whether the primary judge erred (was mistaken) in holding that the amendment of the notice on 4 June 2020 had the effect that a new notice had been given;
- Whether the primary judge erred (was mistaken) in not granting the declaration sought to the effect that the Commissioner had notified Mr Bassi that the Commissioner did not oppose the holding of a public assembly as described in the notice amended on 4 June 2020.
The Courts Finding
- The primary judge erred in concluding that Mr Bassi had not given notice on 29 May 2020 under section 23(1) of the Summary Offences Act in relation to the public assembly to be held on 6 June 2020;
- The primary judge erred in holding that the amendment of the notice on 4 June 2020 had the effect that a new notice had been given;
- The primary judge erred in not granting the declaration sought to the effect that the Commissioner had notified Mr Bassi that the Commissioner did not oppose the holding of a public assembly as described in the notice amended on 4 June 2020.