CHAPMAN and COMMISSIONER OF POLICE - [2024] WASAT 112

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PUBLIC ORDER IN STREETS ACT 1984 (WA)
CITATION:   CHAPMAN and COMMISSIONER OF POLICE [2024] WASAT 112
MEMBER:   MS N EAGLING, MEMBER
HEARD:   4 SEPTEMBER 2024
DELIVERED          :   16 SEPTEMBER 2024
PUBLISHED           :   4 OCTOBER 2024
FILE NO/S:   CC 304 of 2024
BETWEEN:   STUART CHAPMAN
Applicant
AND
COMMISSIONER OF POLICE
Respondent

Catchwords:

Application for a permit to hold a protest - Whether application processed sufficiently expeditiously - Powers of Tribunal in relation to application

Legislation:

Public Order in Streets Act 1984 (WA), s 3, s 4(1), s 4(2), s 4(3), s 4(4), s 5(1), s 5(2), s 5(3), s 5(3)(a), s 5(4), s 6, s 7, s 7(2), s 8, s 8(1), s 8(1)(a), s 8(1)(b), s 8(1)(c), s 8(2)(a)

State Administrative Tribunal Act 2004 (WA), s 27

Result:

The application for review is allowed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	A Miller

Solicitors:

Applicant	:	N/A
Respondent	:	State Solicitor's Office

Case(s) referred to in decision(s):

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

(The reasons were delivered orally on 16 September 2024 and have been edited from the transcript to correct grammatical errors or infelicity of expression.)

This matter concerns an application made by Mr Stuart Chapman (applicant) under s 8(1)(c) of the Public Order in Streets Act 1984 (WA) (Act) claiming that the Commissioner of Police (respondent) has failed to determine his application for a permit to hold a protest sufficiently expeditiously.
On 24 March 2024 the applicant applied for a permit under the Act to hold a public meeting and procession (which I will refer to in these reasons as a 'protest') on the first Saturday of each month commencing on 6 April 2024 and concluding on 4 December 2024.
At the hearing on 4 September 2024, the applicant amended his application to relate only to his application for a permit for a protest on 2 November 2024 (the permit application). The permit application is yet to be assessed by the respondent.
The permit application states that the applicant applies to hold a public meeting or procession on 2 November 2024, commencing at 11.30 am and concluding at 2.30 pm. The permit application also contains the following relevant details which I have summarised:
Place - 'Forrest Place, Murray Street Mall, Hay Street Mall';
Route - 'From Forrest Place, Murray Street Mall, Hay Street Mall and return to Forrest Place';
Places at which (if any) it will halt- 'Up to 20 minutes in several locations in both Murray Street and Hay Street Malls';
Time it will remain stationary - 'initially protestors will spread out in groups of 2-4 along the malls for 45 minutes before assembling at Forrest Place and then a procession will occur through the malls stopping for up to 20 minutes in various locations';
Purpose - 'against media and government'; and
Estimated number of participants: '20 - 50'.

Issue for the Tribunal to consider

The issue is whether the respondent, on receipt of the applicant's notice under s 5(1) of the Act seeking to hold a protest on 2 November 2024, has acted 'sufficiently expeditiously' to determine the application?

Statutory Context

Jurisdiction of the Tribunal

This is the first of this type of application which has been determined by the Tribunal. The legislation is somewhat unusual in that it allows for a review by the Tribunal even though no decision has yet been made by the respondent, if there is reason to apprehend that the permit application may not be dealt with sufficiently expeditiously.
There are two other types of reviewable decisions under s 8(1) of the Act - a right of review with respect to the refusal of a permit application and a right of review with respect to conditions which may be placed on a permit, both of which are matters necessarily falling within the Tribunal's review jurisdiction. I agree with the submission of the respondent that this application is referable back to the decision‑making process of the respondent and is therefore also a matter which falls within the review jurisdiction of the Tribunal rather than falling within the original jurisdiction of the Tribunal.
The Tribunal is therefore to review the decision by way of a hearing de novo for the purposes of making the correct and preferable decision based on the information and the evidence before the Tribunal at the time of review: s 27 of the State Administrative Tribunal Act 2004 (WA).
The powers of the Tribunal following a successful application for review of this type will be discussed later in these reasons.

Relevant provisions of the Act

The long title of the Act provides that it is 'an Act to regulate the holding of public meetings and processions in streets, to provide for the maintenance of order in streets, and for related purposes'.
Section 3 of the Act contains the following relevant definitions:
…
notice means a notice duly given in accordance with the requirements of section 5;
permit means a permit granted pursuant to a notice;
…
street means any road or highway open to, or which although not open to is nevertheless used by, the public, notwithstanding that it is on private property, and includes every thoroughfare, carriageway, footpath, reservation, median strip or traffic island associated with it and any steps, doorways or entrances abutting it;
…
thoroughfare includes any bridge, tunnel, under-pass, arcade, pavement, footpath, court, passage or other place to or through which access to or from a street is permitted to the public.
If a permit is granted in relation to a public meeting or procession and that meeting or procession substantially conforms with the terms of the permit relating to it, then a person who participates in such an event is not guilty of any offence against the provisions of any other Act or law regulating to the movement of traffic or pedestrians or relating to the obstruction of a street: s 4(1).
A public meeting or procession to which the Act applies only comprises three or more persons: s 4(3) and (4).
There is no requirement under the Act to apply for a permit to hold a meeting or a procession, however if a permit is granted, the Act provides some protections: s 4(2).
Pursuant to s 5(1) of the Act, where a person or body proposes to hold a public meeting and/or conduct a procession in or which is to proceed through a street, they may give written notice to the respondent setting out the proposal and applying for the grant of a permit under the Act in respect of that proposed public meeting and/or procession.
A notice made under s 5(1) must include the information listed in s 5(2) of the Act, including the date, time and place of the public meeting/procession, the route (in the case of processions), the details of the applicant and organiser of the public meeting/procession, the purpose of the public meeting/procession, and an estimate of the number of attendees.
Subsection 5(3) provides:
(3)A notice for the purposes of subsection (1) —
(a)shall be given not less than 4 days before the date of the proposed public meeting or procession, or within such shorter period as may be agreed by the Commissioner or an authorised officer; and
(b)may be required to be verified in a manner acceptable to the Commissioner or an authorised officer.
Subsection 5(4) provides:
(4)On receipt of a notice for the purposes of subsection (1) the Commissioner or an authorised officer shall act expeditiously to determine the application.
I pause to note here that s 5(4) states that 'on receipt of a notice' under s 5(1), the Commissioner 'shall' act 'expeditiously' to determine the application.
Pursuant to s 6 of the Act, the Commissioner of Police has delegated his powers under the Act to authorised officers relevantly including each Inspector and Superintendent of the Metropolitan Region: Western Australia, Government Gazette, No. 17 (20 February 2024), pages 240 - 241.
Section 7 of the Act sets out when the Commissioner can refuse to grant a permit and relevantly provides:
(1)The Commissioner or the authorised officer shall have regard to the information furnished in any notice and any other information available to him in relation to the proposed public meeting or procession and may —
(a)by a document furnished to the person or body giving that notice —
(i)grant a permit for the public meeting or procession; or
(ii)grant a permit for the public meeting or procession subject to the conditions or limitations specified in that permit;
or
(b)refuse to grant a permit for the public meeting or procession.
(2)The Commissioner or an authorised officer shall not refuse to grant a permit for a public meeting or procession in respect of which notice has been given unless he has reasonable ground for apprehending that the proposed public meeting or procession may —
(a)occasion serious public disorder, or damage to public or private property;
(b)create a public nuisance;
(c)give rise in any street to an obstruction that is too great or too prolonged in the circumstances; or
(d)place the safety of any person in jeopardy.
Section 8 of the Act provides:
(1)Where a notice applying for the grant of a permit is given not less than 4 days before the date of the proposed meeting or procession and the person or body giving the notice —
(a)is refused a permit for the meeting or procession by the Commissioner or an authorised officer;
(b)is aggrieved by any condition or limitation specified in a permit granted in relation to the proposed meeting or procession; or
(c)believes that the application has been dealt with unreasonably, as described in subsection (2),
that person or body may apply to the State Administrative Tribunal for a review of the refusal of the permit, any condition or limitation specified in the permit, or how the application has been dealt with.
(2)For the purposes of subsection (1) an application is dealt with unreasonably if —
(a)the application for the permit has not been granted and there is reason to apprehend that it may not be dealt with sufficiently expeditiously; or
(b)otherwise, there is good cause why it should be reviewed.
I note here the difference in terminology between 'expeditiously' in s 5(4) of the Act and 'sufficiently expeditiously' in s 8(2)(a) of the Act and will return to this issue later in my reasons.

Evidence of the respondent

CAD Reports

The respondent relied on the evidence filed in its Book of Documents which included the Central Area Dispatch (CAD reports) concerning two previous incidents. The respondent is relying on the two previous incidents to support its argument that it is necessary to monitor the outcome of each month's protest before approving a permit for the following month's protest. The only evidence led by the respondent in relation to these two incidents was in the CAD reports and therefore I will summarise them.
The CAD record for 17 January 2024 contains one entry at 12:48:47:
Gi9100 aaa observing UP protest. Member of public [redacted] irritated by group. Started yelling at the group. One of the group put one of their protest signs in her [redacted] face, [redacted] has shoved her away. Nil Complaint from either party. [Redacted] has since left the area. Officers still monitoring protest. As team 5 OIC PD8121 not to update on Silva and create a CAD job for this incident. [PD18382]
The CAD record for 19 January 2024 contains the following entries:
13:25:55:Disturbance 10-15 people causing disturbance - protesting. Anti vaxers protesting in front of [redacted] large signs, yelling out to public not get vaccinated. Disrupting customers. Can be heard in background.
13:44:15: Protestors have returned to Forrest place. Signs are being packed up and crowd dispersing.
13:53:07:C/S - group of protestors monitoring by C/S and beats. Nil issues. Walked from Hay St [Mall], Barrack, Murray Mall, then [finished] at Forrest Chase. Nil further calls, no need for police intervention. CAD for closure.
The respondent called two witnesses to give evidence.

Inspector Mark Tobiassen

Inspector Tobiassen gave evidence that between 10 October 2023 and 26 May 2024 he was the Inspector supervising the Perth Events Unit (PEU) and was one of the officers responsible for determining permit applications. He gave evidence that the respondent does not have any written policies, procedures or check lists in place governing the process for determining permit applications under the Act. He indicated that he applied the criteria in s 7(2) of the Act when determining permit applications. He supported a decision made by Sergeant Hull in the PEU that the applicant's permit applications would be assessed a month prior to the proposed date as this would allow the availability of the venue to be confirmed and a thorough risk assessment to be conducted.
Under cross-examination, he agreed that there was no reason that the process for determining permit applications could not be improved and that he was unaware how long it would take the applicant to seek a review of a refusal or a condition in the Tribunal.
Inspector Tobiassen gave evidence that he knew of at least one other application which had been approved more than two months in advance (a protest by vet nurses) and he agreed under cross-examination that there may well be more that were approved in this timeframe but he could not be certain given that no statistics were kept.
In response to a question by the Tribunal, Inspector Tobiassen conceded that at least the first incident referred to in the CAD report would not constitute a public nuisance and, in relation to the second incident, he agreed that if there had been a genuine issue of concern about that incident then the applicant would have been informed about it. He also conceded that 'that both incidents were "extremely minor" '.
Inspector Tobiassen stated under cross-examination that the police generally consider events organised by the applicant to be well behaved, so much so that no police resources go into an assessment of the risks of the protest (apart from checking no incident of concern occurred at the previous month's protest) and there was no police attendance at the protests. He stated that at the most, the protest might be monitored by an officer in the camera room. He also agreed that since the incidents back in January, no incidents of concern occurred in any of the 12 protests organised by the applicant which have subsequently been held.
Inspector Tobiassen gave evidence that it was the first time in which they had had 9 protest applications made months in advance and the policy was adopted in order to manage this. He said that he supported it and Superintendent Walsh signed off on it.
Although Inspector Tobiassen said that it was rare for permits to be applied for more than one month in advance, when it was suggested to him by the Tribunal that it was therefore extremely unlikely that he would know of any other protest for the same date and location which might be in conflict with the applicant's protest (even if the decision was made only a month prior), he stated that it was 'not out of the realms, people do apply for permits in advance ...'
In terms of general risk, he agreed in response to questions by the Tribunal that the protests organised by the applicant did not involve high risk situations such as Outlaw Motor-Cycle Gangs and was not a politically explosive issue such as the situation in Gaza and that there was not a high level of police planning and resources around each protest. He was also unable to give an example of a group that might seek to hold a protest that has a countervailing political interest to the applicant's group.
He agreed with the Tribunal when that there was a large grey area when looking at what was an appropriate timeframe to make a decision and also agreed that the best evidence from an intelligence point of view to assess the factors in s 7(2) of the Act would be the day of the protest itself. In that context Inspector Tobiassen agreed that there may not be a significant difference between assessing a permit four weeks prior or eight weeks prior to the protest date.

Sergeant Hull

Sergeant Hull gave evidence that until 11 August 2024 she was one of two Sergeants working at the PEU and was one of the officers responsible for processing permit applications. In her witness statement she stated that she formed the opinion that it was appropriate for the respondent to process the permit applications made by the applicant on 24 March 2024 on a month-by-month basis. Under cross-examination, she was less certain that she had made the decision personally, although she did form the opinion it was appropriate.
When asked how she formed the opinion about the period of a month being appropriate to assess the applicant's permit application, she said that it stemmed from the complaints following the protests in January which are reported in the CAD reports.

Submissions of the respondent

The respondent's central submission is that the Act does not require a permit application to be determined promptly following receipt of the application in every case, and particularly where the protest is proposed to take place on a date 'far into the future'. Rather, the respondent will act sufficiently expeditiously for the purposes of the Act so long as a permit applicant receives 'adequate notice' of the outcome of their application ahead of the proposed protest date.
Not surprisingly, given the necessarily flexible meaning of the phrases date 'far into the future' and 'adequate notice', the respondent did not specify exactly what timeframe constitutes a date far into the future or what timeframe is adequate in terms of notice. However, the respondent submitted that the approach taken by the respondent (processing the applicant's permit applications one month ahead) is generally a reasonable approach and also reasonable in the circumstances of this particular permit application.
The respondent points out that to date all the permit applications relating to the dates in April to September have been approved.
The respondent accepts that the natural and ordinary meaning of 'expeditious' is to do something very quickly however submits that 'the statutory context and purpose colour the meaning of a term in a statute'. In this regard, the respondent relies on the fact that the Act contemplates in s 5(3)(a) and 8(1) that permit applications may be made very close to the permit date, including several days in advance and that it is in this context in which the requirement on the respondent to act expeditiously occurs.
The respondent also submits that the nature of the assessment required by s 7 of the Act to be conducted by the respondent in determining whether to issue a permit is such that it cannot be made too far in advance. The respondent says that it must assess the safety risk and the impact of obstruction to streets both by the proposed protest and also taking into consideration other events and activities taking place at the same time in the same area. The respondent submitted that this assessment will necessarily be impacted by risks of public disorder or community unrest 'particularly if such tensions are related to a matter the subject of a proposed demonstration and contemporaneous intelligence or information in relation to such risks'.
The respondent also states that it is also relevant that the Act does not provide for any limitation on how far in advance a permit application may be made and there is nothing to stop an applicant from making a permit application years in advance of a proposed protest, noting that this application was made seven months in advance.
The respondent submits that its preferred construction of s 5(4) is consistent with the statutory purpose of the Act - which is not to provide for a process or procedure for the booking of venues of public places, or for generally authorising public events or demonstrations but rather is to facilitate the holding of public meetings and processions where they may obstruct a street, recognising the right to engage in peaceful protest, while also maintaining public order in streets.

The respondent argues that the degree of notice that is reasonably required is notice that adequately enables an applicant to decide whether to go ahead with their proposed public gathering or procession without the protection offered by a permit, or in accordance with the conditions placed on it. This will necessarily also depend on the particular circumstances of the matter, including the size and nature of the proposed public gathering/procession.
The respondent stated in its closing submissions that the evidence given by its two witnesses as to whether the 'one month processing time period' was a policy or a rule and who exactly made the decision to implement this policy or rule was not clear.

Position of the applicant

The applicant did not call any witnesses but relied on the documentary evidence before the Tribunal. His position is that the approach taken by the respondent to the processing of his applications effectively means he is unable to challenge any of the conditions which may be attached to the permit as there is insufficient time for him to seek a review before the Tribunal. He gave examples of conditions being imposed in relation to other permits he had been granted, including not being able to use an amplified sound system or play an acoustic guitar. He contends that one month is insufficient time to have an application for review heard by this Tribunal in relation to a disputed condition.
The applicant's submitted that the respondent has acted in the opposite manner to expeditiously, which has led to a denial of natural justice as it practically prevents him the opportunity to have the decision reviewed by the Tribunal.
The applicant says that the reasoning of the respondent is based on the overactive imagination of officers based on improbable events which may never occur and that the procedures of the respondent fall well below community standards. He points out that the respondent has no written policies, written procedures, checklists, records or logs. Nor does it have any documentation relating to internal reviews or compilation of any feedback about permit applications - rather everything is done in an ad hoc manner. Further, he says that the respondent has lost or misplaced at least three of his applications which suggests that this may occur again and he has not received replies to numerous pieces of correspondence he has sent.
The applicant seeks for his permit application for the November protest to be processed immediately.

Findings of fact

On the basis of all the evidence I have heard, I am satisfied, and I find that:
(1)The decision to process the applicant's applications for a permit one month prior to the protest was made by a relatively junior officer of the PEU (either Sergeant Hull or one of her colleagues) (note I will refer to this decision as a 'policy' - even though, as noted above, it is not clear whether this was a formal policy or rule).
(2)The policy was discussed informally with senior officers including Inspector Tobiassen and endorsed by more senior officers.
(3)There is no record of any decision-making process which occurred in order to develop or implement the policy.
(4)The policy was developed specifically in relation to the applicant and his applications to hold a monthly protest up to nine months ahead.
(5)The rationale for the policy was twofold - to allow the respondent time to assess the factors in s 7(2) of the Act at what was considered to be an appropriate time and also to allow the respondent to check that no incidents of concern occurred at the previous month's protest.
(6)The two incidents referred to in the CAD reports were very minor in nature.
(7)The permit application has not been determined by the respondent.
(8)The nature of the protest contemplated by the applicant on 2 November 2024 is expected to be attended by a relatively small number of people, wandering the Hay Street and Murray Street Malls.
(9)No police presence is usually diverted to protests organised by the applicant and they are generally well run and peaceful.

Discussion

One of the difficulties the respondent has in this case is that, as noted above, some of the terms used by it to justify its approach to this application - such as 'far into the future' or 'adequate notice' are entirely subjective and also have not been defined by the respondent in its submissions in terms of what are the appropriate timeframes. This may well be appropriate given that every application is different and must be considered on its merits - this is an issue which is discussed later in these reasons.
The text of s 5(4) of the Act is clear. It states that the Commissioner must determine applications for permits expeditiously upon their receipt.
The respondent argues that these express words of the Act must be construed having regard to s 5(3)(a) and s 8(1) of the Act which contemplate that permit applications can be made up to several days prior to the protest. However, subsection 5(3) is a separate subsection to s 5(4) and in my view the fact that the Act makes provision for the ability for permit applications to be made close to the date of the proposed protest does not detract from the plain wording of s 5(4). The fact that the section says that the permit application must be given not less than four days before a protest simply indicates that there is a minimum period of notice to be given. It also suggests that the respondent can and must respond promptly in those circumstances.
As discussed above, the respondent also relies on the purpose of the legislation. However, in my view, the purpose of the legislation does not alter the construction of s 5(4) which I have adopted.
The respondent also relies on an argument that it is necessary to conduct a risk assessment which is relatively close in time to the date of the protest in order to be able to assess applications in an informed manner. However, the evidence establishes, and I find that the only system the respondent relies on when assessing risk in relation to the applicant's applications for a monthly protest is to see what happened at the protest the month before. This is in a context where only two very minor incidents have previously occurred and no incidents at all have occurred for many months.
The respondent also relies on the fact that the Act has no limitation on how far in advance applications can be made and an application could in theory be made years ahead. However, there may well be other mechanisms that the respondent could investigate in order to deal with this unlikely turn of events such as investigating the use of appropriate conditions reserving the right to change the route of a procession or even revoking a permit (noting that it is not necessary in this matter for the Tribunal to determine the issue of whether the respondent can revoke a permit which has been granted under the Act).
A difficulty, which was recognised by Inspector Tobiassen in his evidence, is that in order for the respondent to make the best informed decision on a permit application applying the factors in s 7(2) of the Act, the closer to the date of protest the decision is made the better (the date of the protest being ideal). However, this is clearly not contemplated by the Act and would effectively eliminate the right to protest - protests need to be organised, advertised, speakers organised etc. However, how far in advance is too far? This is a very grey area. This was recognised by the respondent in its submissions when it stated that adequate notice depends on the circumstances of the case.
The parties did not explore with the Tribunal any potential difference in meaning between 'expeditiously' in s 5(4) and 'sufficiently expeditiously' in s 8(2)(a) of the Act. It may well be that 'sufficiently expeditiously' takes account of some of those factors referred to by the respondent in its adequate notice argument - such as the size of protest, whether roads are closed and whether the protest is in relation to a particularly controversial subject.
In the circumstances of this particular case, the respondent's witnesses were unable to provide any evidence which indicates that any of the grounds in s 7(2) of the Act are present as at the date of the hearing. The location for the 2 November 2024 protest is the same as the previous protests of this type organised by the applicant and the type of protest contemplated in the permit application is exactly the same as the previous protests.
It is doubtless the case that the applicant has at times inundated the respondent with applications and correspondence relating to protests all of which are similar in nature, so much so that the respondent felt it necessary to develop a policy just for the applicant.
However, in my view it is unreasonable for the respondent to insist on waiting until after the October protest occurs before granting the permit for the November protest and therefore the respondent has not dealt with the application for the November permit sufficiently expeditiously.
The applicant submitted that the Tribunal should work out how the process can be improved. However, I can only make a decision based on the facts of the particular case which I have done so.
However, I do offer the following as general comments for the parties consideration:
(1)As already observed, the policies applied and processes followed by the respondent when making decisions in relation to permit applications are entirely undocumented which is generally undesirable in terms of transparent administrative decisionmaking.
(2)It is reasonable for the respondent to consider the actual risk of each protest based on factors such as the number of participants, whether streets need to be closed and whether the protest is in relation to a politically controversial subject etc. In some cases (and I consider this to be one such case) there does not appear to be any good reason as to why the factors in s 7(2) of the Act cannot be reasonably assessed three months prior to the protest instead of one month prior.
(3)I make no finding as to whether the practical timeframe around the right to seek a review in the Tribunal should be taken into account when assessing the application as it is unnecessary for me to do so in this matter. However, clearly there is a practical barrier to the applicant's ability to seek a review (particularly in relation to some of the conditions attached to the approval to protest) as a result of the respondent's 'policy' which would be alleviated if the permit was processed three months prior to the protest.
I will therefore allow the application for review. However, I accept the respondent's submission that given the unusual and confined nature of the review, it is not the case that the Tribunal is empowered to determine the permit application for itself, as would be the case in respect of a review application made under s 8(1)(a) or (b) of the Act.
Rather, the scope of the review is to review how the application has been dealt with by the respondent and is therefore confined to whether the respondent has dealt with the permit application 'sufficiently expeditiously' or has otherwise dealt with the permit application unreasonably.
It follows then that the only order which the Tribunal may make is an order sending the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate.

Orders

The Tribunal orders:
1.The application for review is allowed.
2.Pursuant to s 29(3)(c)(ii) of the State Administrative Tribunal Act 2004 (WA) the matter is sent back to the respondent for reconsideration with a direction that the respondent shall determine the applicant's application for a permit to protest on 2 November 2024 as soon as possible and in any event no later than close of business 18 September 2024.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N EAGLING, MEMBER
4 OCTOBER 2024