Commissioner of Police v Marshall (Reclaim the Streets)

[2017] NSWSC 1589

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Commissioner of Police v Marshall (Reclaim the Streets) [2017] NSWSC 1589
Hearing dates:	13 November 2017
Date of orders:	13 November 2017
Decision date:	13 November 2017
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	By consent (noting the agreement between the parties to hold an alternative assembly), prohibition order under s 25 Summary Offence Act made.
Catchwords:	CIVIL LAW – Summary Offences Act – marriage equality plebiscite – yes – Reclaim the Streets – where group notified Commissioner of Police of intention to assemble in Darlinghurst – whether prohibition order appropriate – proposed closure of Oxford Street – balancing of rights – historical significance of Oxford Street and Taylor Square – where parties negotiated alternative event - yes
Legislation Cited:	Summary Offences Act 1988 (NSW)
Cases Cited:	NSW Commissioner of Police v Folkes [2015] NSWSC 1887 Commissioner of Police v Gabriel [2004] NSWSC 31 Commissioner of Police v Jackson [2015] NSWSC 96 NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5 Commissioner of Police v Langosch [2012] NSWSC Commissioner of Police v Ridgewell [2014] NSWSC 1138 Commissioner of Police v Rintoul [2003] NSWSC 662 Wilkie v The Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA
Category:	Principal judgment
Parties:	Commissioner of Police, NSW Police Force (plaintiff) John Marshall on behalf of Reclaim The Streets (defendant)
Representation:	Counsel: Mr M Hutchings (plaintiff) Mr P O’Brien (defendant)   Solicitors: Makinson d'Apice Lawyers (plaintiff) O’Brien Solicitors (defendant)
File Number(s):	2017/340532
Publication restriction:	None

Judgment

1. “On 13 September 2016 the Attorney General and Special Minister of State jointly announced the intention of the government for the Australian Electoral Commission to conduct a plebiscite to ask voters whether the law should be changed to allow same-sex couples to marry.”[1] That decision has created or exposed divisions within the community. It has also created a significant amount of hurt to some members of the community. That was both predictable and predicted. In any event the plebiscite was conducted by postal ballot and the result of the ballot is to be announced this Wednesday 15 November 2017.

   1. Wilkie v The Commonwealth; Australian Marriage Equality Ltd v Cormann [2017] HCA 40.

2. Jason Marshall, on behalf of a group called Reclaim the Streets, is organising an event in Darlinghurst on the evening of the announcement. The Commissioner of Police seeks an order under s 25 of the Summary Offences Act prohibiting the holding of the event, at least in the way that Mr Marshall indicated it would be held.

3. It has become unnecessary to set out very many details (if any really) because the parties have, in the course of today and after one witness gave evidence for each side, successfully reached an agreement as to the appropriate orders that should be made.

4. The case as it stood involved an attempt to strike a balance between competing rights described by Simpson J in a case called Commissioner of Police v Rintoul. [2] In the present case, it involves balancing the right of those on the “Yes” side of the marriage equality debate to celebrate a win (if it be a win) or to protest the Government’s handling of this issue altogether, against the rights of other citizens to use the thoroughfare of Oxford Street, and the right of everybody on both sides – people participating in the proposed event and people simply in the vicinity – to be safe. As Simpson J said in Rintoul striking such a balance is an “unenviable task”.

   2. Commissioner of Police v Rintoul [2003] NSWSC 662 at [5].

5. As I noted prior to the luncheon adjournment, it is obvious to me from hearing the two witnesses give evidence today, and from reading the affidavits filed on behalf of the Commissioner, that both the organisers of this event and the representatives of the Commissioner of Police have conducted themselves throughout the period of negotiations with extreme goodwill. That has been further demonstrated by the approach taken by the parties in the course of today resulting in an agreed position as to what is to happen as a matter of legal technicality with the summons (which seeks a prohibition order) and what is to happen on Wednesday night in terms of the proposed event.

6. This Court has dealt with matters like this on many occasions. [3] A consistent theme is that whether or not an order is made, the rights of people to assemble, to protest, to celebrate and indeed to party remains. That is so whether or not a particular assembly notified in a s 23 Notice is prohibited under s 25.

   3. See, for example, Rintoul (supra), Commissioner of Police v Gabriel [2004] NSWSC 31 (Hamilton J), Commissioner of Police v Langosch [2012] NSWSC 499 (Adamson J); Commissioner of Police v Ridgewell [2014] NSWSC 1138 (Hidden J); Commissioner of Police v Jackson [2015] NSWSC 96 (Schmidt J); NSW Commissioner of Police v Folkes [2015] NSWSC 1887 (Adamson J); NSW Commissioner of Police v Keep Sydney Open Ltd [2017] NSWSC 5 (Lindsay J).

7. In the present case, the event that was initially envisaged, and notified under s 23, involved what appeared to be the entire closure of Oxford Street for a lengthy period, namely from 6 or 7 pm until about 1 am, following the announcement of the vote on Wednesday morning. As negotiations proceeded, the number of lanes to be closed and the amount of time for which they were to be closed changed.

8. Now I have been advised that the parties have reached an agreement whereby the initial meeting or assembly will be in Taylor Square, a site of great historical significance to the community most affected by this plebiscite, [4] and there will then be a procession or march down Oxford Street into College Street and then the more celebratory part of the event will take place (assuming council permission or similar) at the northern end of Hyde Park.

   4. The first Mardi Gras parade was held there in 1978 as “Sydney’s contribution the international Gay Solidarity Celebrations, an event that had grown up as a result of the Stonewall riots in New York” and “was met with unexpected police violence”:

9. I need only to say, once again congratulations to the parties for reaching the proposed agreement. It is a significant event and I wish the participants well in the conduct of it, hoping it will be (if I can say this) a celebration. I also wish the Commissioner’s officers well on Wednesday night in dealing with what will no doubt be a large crowd. I trust everybody will be safe and that it will be a good night.

10. Therefore by consent, and noting the agreement to hold an alternative assembly, I make the order sought in the summons namely an order under s 25 of the Summary Offences Act prohibiting the specific assembly identified and particularised in the s 23 Notice.

POST SCRIPT

11. Since delivering this judgment ex-tempore the Australian Bureau of Statistics announced the result of the plebiscite. Around 80% of the population voted. There was a 61.6% “yes” vote Australia-wide. There was an 83.7% “yes” vote in the electorate of Sydney, where the assembly subject of this litigation was held. The media reported that many thousands of people assembled in the vicinity of Taylor Square in Darlinghurst and that a procession closed Oxford Street and College Street for an hour or so. I am not aware of any reports of trouble, let alone violence, during the holding of the event. Accordingly, I once again congratulate the Commissioner and his officers, the collective known as Reclaim the Streets and the thousands of people who attended the assembly, for their conduct, grace and goodwill throughout.

12. I should also express my gratitude for the legal representatives of both sides, something I neglected to do at the conclusion of the hearing.

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Endnotes

Amendments

29 November 2017 - Amendment of typographical error