Commissioner of Police v Samuel Holcombe also known as April Holcombe (on behalf of Community Action for Rainbow Rights)

[2020] NSWSC 1428

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of Police v Samuel Holcombe also known as April Holcombe (on behalf of Community Action for Rainbow Rights) [2020] NSWSC 1428

Hearing dates:

9 October 2020

Date of orders:

9 October 2020

Decision date:

09 October 2020

Jurisdiction:

Common Law

Before:

Bellew J

Decision:

(1) Pursuant to s 64 of the Civil Procedure Act 2005 (NSW), I order that the summons filed in these proceedings, along with the Notice of Intention to Hold a Public Assembly issued by the defendant on 29 September 2020, be amended to record the name of the defendant as “Samuel Holcombe, also known as April Holcombe”;

(2) Pursuant to s 25 of the Summary Offences Act 1988 (NSW), I make an order prohibiting the holding of the public assembly identified in the Notice of Intention to Hold a Public Assembly dated 29 September 2020, issued by the defendant; and

(3) I make no order as to costs.

Catchwords:

PUBLIC ASSEMBLY – Summary Offences Act 1988 (NSW) – Whether order pursuant to s 25(1) of the Summary Offences Act 1988 (NSW) should be made prohibiting the holding of a public assembly – Object of proposed assembly to draw attention to legislation before the Parliament – Nature of the balancing exercise to be conducted – Identified right of free speech to be balanced against the public health risk posed by the proposed assembly – Other avenues available to the defendant to draw attention to concerns about proposed legislation – Inability of the defendant to force compliance with elements of safety plan – Medical evidence establishing the existence of a significant risk to public health if assembly proceeds – Order made

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Public Health Act 2010 (NSW)

Public Health (COVID‑19 Restrictions on Gathering and Movement) Order (No 5) 2020 (NSW)

Summary Offences Act 1988 (NSW)

Cases Cited:

Commissioner of Police vGray [2020] NSWSC 867

Category:

Procedural and other rulings

Parties:

Commissioner of Police – Plaintiff
Samuel Holcombe also known as April Holcombe (on behalf of Community Action for Rainbow Rights) – Defendant

Representation:

Counsel:
L Gyles SC and M Spartalis – Plaintiff
A Wilson – Defendant

Solicitors:
Office of the General Counsel, NSW Police Force – Plaintiff
Shelly Legal – Defendant

File Number(s):

2020/288965

Publication restriction:

Nil

Judgment – EX TEMPORE (REVISED)

INTRODUCTION

1. By a summons dated 7 October 2020, the plaintiff seeks an order pursuant to s 25 of the Summary Offences Act 1988 (NSW) (the Act) prohibiting the holding of a public assembly in respect of which the defendant has served a notice in accordance with s 23(1) of the Act. The summons is supported by two affidavits, the first of Assistant Commissioner Stacey Maloney of 8 October 2020, and the second of Dr Jeremy McAnulty of 8 October 2020.

2. The making of the order sought is opposed by the defendant who has relied upon her affidavit of 8 October 2020, as well as an affidavit of Julian Lees of the same date. All witnesses whose affidavits were read gave oral evidence at the hearing, and were cross-examined.

BACKGROUND

3. The background to the present application is not in dispute, and may be summarised as follows.

4. On 29 September 2020, the plaintiff received a Notice of Intention to hold a Public Assembly from the defendant. It notified the plaintiff that on 10 October 2020 it was intended to hold a public assembly constituted by a procession of approximately 200 people who propose to assemble at Taylor Square, Darlinghurst at approximately 1pm and then march down Oxford Street into College Street and into Hyde Park South. .

5. The stated purpose of the proposed assembly as set out in the notice is to “display public support for young transgender people in school, to protest a New South Wales Bill that would fire school staff who support them, and to exercise our fundamental, democratic freedom to publicly assemble”. The notice also states:

“Participants will be encouraged to wear masks, and where possible to keep 1.5 m apart. Masks and hand sanitiser will be made available for free to all by organisers. Those who are sick, have any symptoms or are at particular risk will be asked to stay home. Attendees will be urged to register their contact details”.

6. On 30 September 2020 a Notice of Invitation to Confer was served by the plaintiff on the defendant pursuant to s 25(2) of the Act. Following service of that notice, the defendant attended the Surry Hills Police Station on 1 October 2020 where she conferred with Chief Inspector Hart in the presence of other persons. The present application was then filed.

THE EVIDENCE

7. The evidence of Assistant Commissioner Maloney included her observation that attendees at other recent public assemblies have not worn face masks or maintained social distancing. By reference to the event colloquially known as the “Black Lives Matter” assembly which was held some months ago, the Assistant Commissioner said that the majority of those present were not wearing masks, an observation she had made from a central command station where she had a “live feed”. She also told the Court that she had been made aware of that fact by other officers who were “on the ground”.

8. In the course of her evidence, Assistant Commissioner Maloney was shown annexure B to the affidavit of Mr Lees, which is a photograph of a number of persons who were in attendance at that assembly standing in close proximity to each other. The majority of them are wearing face masks of one form or another. Assistant Commissioner Maloney did not accept that this photograph was representative of what had occurred on the day. She maintained that in her observations, and based on what she had been told by others who were present, the majority of those at that assembly were not wearing face masks. Assistant Commissioner Maloney also gave evidence that in her observation there was no social distancing in place on that occasion, an assertion which would appear to be supported, at least to some degree, by the photograph.

9. Assistant Commissioner Maloney said that it could be expected that on a Saturday afternoon, when the proposed assembly which is the subject of these proceedings is to take place, there would be a moderate number of the public present in the area. The Assistant Commissioner expressed the view that such persons may find it difficult to maintain social distancing whilst the assembly was ongoing, and that as the number of attendees increased, so would the potential disturbance to the public. That evidence was not the subject of any challenge.

10. The purpose of the proposed assembly, entitled "Protect Trans Kids, Kill Latham's Bills", is set out in considerable detail in the affidavit of the defendant who is a member of the Community Action for Rainbow Rights group. The defendant explained that the assembly had been organised for the purposes of raising awareness of, and protesting against, legislation proposed by Mark Latham, a member of the New South Wales Upper House. The defendant expressed her concerns, amongst other things, that the legislation will, if passed, impact upon advice given to students in schools with respect to gender and sexuality, as well as upon a number of other issues which are more fully enumerated in her affidavit.

11. The defendant was cross-examined by senior counsel for the plaintiff as to alternative methods available to draw attention to the cause which she identified in her affidavit and which is the subject of the proposed assembly. The defendant expressly accepted that her objective, and that of the group of which she is a representative, is to draw the awareness of politicians to what she believes to be the detrimental impact of the proposed legislation, so that politicians will be aware of that asserted detrimental impact, and will be aware of her concerns, and those of her group.

12. Having accepted that this was her objective, the defendant was asked a number of questions about alternative methods of achieving it which did not involve staging a public assembly. It was put to the defendant that it would be open to her to contact politicians directly and express her views. She accepted that this was an available method of drawing attention to her cause, but she did not accept that it was an effective method. She also accepted that it would be open to her to provide information to politicians for the purposes of drawing these matters to their attention. She also acknowledged the possibility that she may even be able to meet with them. However she “disagreed completely” that these would be effective ways of communicating her concerns.

13. It was put to her that she could also undertake a social media campaign drawing attention to these issues. The defendant did not accept that a social media campaign would result in her voice being "adequately heard". However, she agreed that "sometimes" Facebook is a good method of drawing matters of this nature to the attention of people, and accepted that it was a simple task to form a group on Facebook for that purpose.

14. It was put to her that one thing that she may wish to tell a politician in advancing her cause would be that there were a number of people who shared her view, and that to that end it would be open to her to prepare and sign a petition and to present it to a politician or politicians. She agreed that that this would be an available method of drawing attention to her cause, but she did not agree that resorting to Facebook or other forms of social media would provide an effective means of doing so.

15. It was also put to her that she could have what was described as "virtual gathering" of people on any issue of importance, and that she could undertake mainstream publicity relating to the issue through television and media. She agreed that those methods would be available to her, although the general effect of her evidence in respect of all these suggested alternatives was that their effectiveness was to be questioned.

16. The defendant agreed that it may "sometimes" be the case that a digital media platform is an effective means to have information placed before a broad audience. She did not accept that an assembly of the kind which is proposed could be put into effect by marshalling multiple groups of 20 at different physical locations.

17. At the conclusion of these passages of cross-examination it was put to the defendant that all of the alternative methods suggested to her would be extremely effective in having her voice heard. She disagreed with that proposition. Her evidence was generally to the effect that, at least in her view, a public assembly was far more effective.

18. The details of the proposed assembly are set out in the defendant's affidavit. The defendant stated that she has organised for the co-convener of the proposed assembly to speak to the attendees at its commencement so as to ensure that those attendees understand that they must:

1. not be present if they have been unwell in the last 14 days, or have been required to self-isolate, or have attended any hotspots;

2. wear a mask;

3. register their attendance via a coded link;

4. practice social distancing;

5. be aware of the fact that there would be COVID marshals stationed throughout the protest; and

6. utilise the disposal masks, hand sanitiser, and the link for COVID contact tracing which will be available.

19. The defendant stated that she had also organised for 10 COVID marshals to be present, all of whom would be clearly identified. She also made reference to having organised a link to be uploaded to the created Facebook event to ensure COVID tracing. She stated that there would be both disposable and cloth masks available for distribution to those attending the assembly, and she annexed a photo of the masks that would be available. She also confirmed that she had arranged for hand sanitiser to be held by each COVID marshal for distribution to those in attendance.

20. The defendant was cross‑examined by senior counsel for the plaintiff in relation to these aspects of her plan. She accepted that she was not a doctor, nor an expert in public health. She also accepted that irrespective of how many COVID marshals might be in attendance, they were not able to force people to (inter alia):

1. register;

2. wear masks;

3. maintain social distancing; or

4. not engage in chanting or shouting.

21. The defendant also agreed that she was unable to predict, with any real degree of precision, the number of people who would actually be in attendance. She also accepted that the proposed COVID marshals had no training in respect of crowd control. Her evidence was that each of them had “experience” in that respect and that there would be training conducted beforehand.

22. Mr Lees, who was called in the defendant’s case, is one of the proposed marshals for the assembly. He has acted in that capacity at several different assemblies, including those held as recently as June and July of this year. He said that he would “ensure that COVID safety measures were being implemented”. These included having masks available for distribution, handing out sanitiser, and encouraging people to socially distance. It was Mr Lees’ evidence that most of the attendees at the assemblies at which he had previously attended had worn masks. Mr Lees stated, in particular, that he had attended the “Black Lives Matter” assembly on 7 June 2020, and that most of the people in attendance were wearing masks. Annexure B to Mr Lees’ affidavit, as I have already indicated, was a photograph of persons present at that assembly. Mr Lees agreed that he could not force people to wear masks, and that he could not force people to socially distance.

23. The nature and extent of the risk which the plaintiff maintains is posed by the proposed assembly was the subject of evidence given by Dr McAnulty, the Executive Director of the COVID-19 Public Health Response Branch of New South Wales Health. There is no dispute that Dr McAnulty is a medical practitioner of considerable experience.

24. In his affidavit Dr McAnulty made reference to an organisation called the Australian Health Protection Principal Committee (AHPPC) which he explained is a key advisory Committee which reports to the National Cabinet on COVID-19 related issues, and comprises all state and territory Chief Health Officers. The Committee is chaired by the Australian Chief Medical Officer.

25. A number of public statements issued by the AHPPC in relation to COVID-19 were annexed to Dr McAnulty’s affidavit. One of those statements is dated 5 June 2020 and includes the following:

AHPPC is extremely concerned about proposed large gatherings for protests over the coming weekend and beyond. Australians are reminded that in our recent past a single person infected more than 35 others. This virus is very, very infectious. It will be with us in one way or another for many months to come. As such, it is advised that Australians follow the health advice and regulations about public gatherings and adhere to restrictions on gathering sizes in the state or territory. COVID-19 is transmitted via close contact, and large crowds and gatherings greatly increase the risk of infection, as the ability to maintain physical distancing is reduced.

26. A further statement issued by the AHPPC on 24 July 2020 includes the following:

Recent outbreaks show us that if the disease is able to enter the community unseen, it will spread quickly. Our strong public health advice is to pursue no community transmission … Achieving, and/or maintaining, this goal needs four key things:

a strict commitment to personal measures (hygiene, physical distancing, staying home if unwell);

active case finding and contact tracing;

targeted testing of the affected population; and

community-based interventions (limits on gathering sizes, new ways of working, movement restrictions).

27. Although those statements were issued some months ago, there is no suggestion that their content is no longer applicable.

28. Dr McAnulty made reference in his affidavit to the fact that since the emergence of the current COVID-19 pandemic in New South Wales, a series of public health orders had been issued by the New South Wales Minister for Health and Medical Research pursuant to the Public Health Act 2010 (NSW). He explained that the broad objective of those orders was to reduce the risk of transmission of the virus by limiting physical contact and reducing the opportunity for mixing of individuals in groups who would not normally come into contact. Dr McAnulty made specific reference to the Public Health (COVID‑19 Restrictions on Gathering and Movement) Order (No 5) 2020, cl 22 of which deals with public gatherings and incorporates a direction by the Minister that a person must not participate in an outdoor public gathering of more than 20 people.

29. Dr McAnulty also said that in the context of public health, it is recognised that public gatherings bring people into close contact, increase the risk of transmission of infectious diseases such as COVID‑19, and encourage the mixing of people who are not part of the same social network. He pointed out that if transmission occurs in that context, the cases of transmission can be distributed to social networks that are not a single social network, and can thus cause the disease to spread more widely.

30. Dr McAnulty expressed the opinion that there remains a risk of transmission of COVID‑19 in the community. In doing so, he took into account a number of factors, including that:

1. New South Wales has experienced chains of transmission of infection since early July, when cases were first seeded from Victoria;

2. persons attending a large public gathering may potentially come from anywhere in the state, and that should transmission of the virus occur at a particular event, it may impact on other communities that people who have attended the event will return to; and

3. there is evidence of community transmission without any known source; and

4. people can be asymptomatic and infectious without knowing it, as a consequence of which there is a risk of asymptomatic persons attending an event who may not recognise that they have the virus, and are therefore unaware that they are infectious.

31. Dr McAnulty said that current transmissions of the virus are largely confined to clusters, and that earlier this week two unrelated clusters had been identified, one of which had been linked to Liverpool Hospital and the other of which involved transmission of the virus at a clinical workplace. He pointed out that because the situation can change quickly, statistics in relation to these matters are updated on a daily basis. He also explained the importance of contact tracing, and the importance of asking people to register their presence at a place or event, so that if a person is diagnosed with the virus, other persons with whom that person had been in contact could be readily identified and notified.

32. Dr McAnulty also stressed the importance of social distancing. He explained that the virus is spread largely by droplets of saliva, such that when a person speaks, coughs, sings or shouts, droplets typically fall within 1.5 metres of that person. Because distancing relieves the risk of infection, it is important measure. However, Dr McAnulty he stressed that all measures in any COVID plan are important because they all have the capacity to contribute to the safety of those who are present.

33. Dr McAnulty also gave evidence concerning the use of masks as a preventative measure. He explained that the effectiveness of masks necessarily depended on the quality of the mask and how it was made. His attention was drawn to a photograph which was annexed to the defendant’s affidavit and which depicted the masks which are proposed to be distributed at the assembly. The poor quality of the photograph did not enable Dr McAnulty to make any further comment as to whether masks of that kind would or would not achieve the desired end.

31. When cross‑examined, Dr McAnulty accepted that he was not aware of any case of any COVID-19 transmission having occurred from the Black Lives Matter assembly. He also accepted that there was nothing to suggest that COVID‑19 had ever been transmitted as a consequence of any public assembly in NSW. His attention was drawn to the components of the plan set out in the defendant's affidavit and it was put to him that such plan reflected the "fundamental elements of a good safety plan". He agreed that the plan provided "some elements of a COVID safety plan", but did not go so far as to agree that they were fundamental.

32. In re-examination, Dr McAnulty was asked to assume that 200 to 300 people would attend the proposed assembly, and that the steps set out in the defendant’s plan would be put into effect. Even making those assumptions, Dr McAnulty adhered to his opinion that there was a risk of transmission of COVID-19 in the community if the proposed assembly took place, and explained that such risk was difficult to quantify. He accepted that it was possible to put things in place in an attempt to manage or reduce the risk, but that implementing those factors did not necessarily eliminate the risk.

THE ISSUES

36. There is no dispute between the parties about the background as I have outlined it. There is also no dispute about the balancing exercise that I must conduct, the nature of which was set out in the plaintiff’s outline of submissions in the following terms:

The authorities require that the Court weigh up the important competing public interest in free speech and assembly on the one hand, and the important public interest in not exposing the public, directly or indirectly, and the Police, to the risks associated with COVID-19 as well as the broader risks to the community, on the other.

37. In performing that balancing exercise, I am mindful of the fact that the defendant bears no onus whatsoever. The onus is on the plaintiff to satisfy me that the balance lies in favour of the making of the orders sought.

38. In the course of submissions, I was referred to a number of other decisions of judges of this Court in determining applications of this nature. As a general proposition, limited assistance is to be gained from any of those decisions. That is simply because the facts and circumstances of cases necessarily differ.

THE RELEVANT STATUTORY PROVISIONS

39. The present application engages s 25 of the Act which is in the following terms:

1. Prohibition by a Court of a public assembly

(1) The Commissioner may apply to a Court for an order prohibiting the holding of a public assembly in respect of which a notice referred to in section 23 (1) has been served if the notice was served 7 days or more before the date specified in the notice as the date on which it is proposed to hold the public assembly.

(2) The Commissioner shall not apply for an order under subsection (1) relating to a public assembly in respect of which a notice referred to in section 23 (1) has been served unless:

(a) the Commissioner has caused to be served on the organiser of the public assembly a notice, in writing, inviting the organiser to confer with respect to the public assembly with a member of the Police Force specified in the notice at a time and place so specified, or to make written representations to the Commissioner, with respect to the public assembly, within a time so specified, and

(b) if the organiser has, in writing, informed the Commissioner that he or she wishes so to confer, the Commissioner has made available to confer with the organiser at the time and place specified in the notice:

(i) the member of the Police Force specified in the notice, or

(ii) if that member of the Police Force is for any reason unavailable so to confer, another member of the Police Force, and

(c) the Commissioner has taken into consideration any matters put by the organiser at the conference and in any representations made by the organiser.

(3) A notice referred to in subsection (2) (a) may be served on the organiser:

(a) personally, or

(b) by registered post, facsimile transmission or email addressed to the organiser at an address, specified in the notice served on the Commissioner under section 23 (1) (e) (ii), as an address for the service of any notice for the purposes of this Part, or

(c) by leaving it with any person apparently of or above the age of 16 years at a postal address so specified.

40. There is no dispute that the necessary jurisdictional requirements imposed by the Act have been satisfied.

SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

41. Senior counsel for the plaintiff did not take issue with the fact that the cause identified by the defendant in her affidavit was an important one which was worthy of public attention and debate. Consistent with that position, senior counsel made it clear that there would be no issue about this assembly going ahead, but for the current pandemic.

42. Senior counsel submitted that the alternative to the proposed assembly was not silence, and that the defendant could achieve her stated objective in one or more of the methods which were put to her in cross-examination. It was submitted that by a combination of those methods the defendant, and the group that she represents, had the opportunity to express their concerns to their “target audience”, namely members of parliament. Senior counsel submitted that I would not accept that the proposed assembly was the only effective way for that to occur.

43. Senior counsel further submitted that I would pay close regard to, and place significant weight upon, the opinion of Dr McAnulty. It was accepted that although Dr McAnulty could not put, as it were, a percentage on the relevant risk, to do so would be an arbitrary exercise in any event. It was submitted that the more important aspect of Dr McAnulty’s evidence was the fact that the risk is an ever changing one, which necessarily renders it difficult to quantify. It was submitted that the effect of Dr McAnulty’s evidence was that because of the uncertainty and unpredictability surrounding the virus and its spread, a conservative approach needed to be taken. It was submitted that it was not incumbent upon the plaintiff to precisely quantify the risk, and that the only available finding on the evidence was that there was a material risk of infection in the event that the proposed assembly went ahead.

44. Senior counsel submitted that Dr McAnulty’s unequivocal opinion was that there was a particular risk posed by large gatherings of people who came from different places. He also emphasised the terms of the public statements made by the AHPPC which, it was submitted, had identified large gatherings of people as a “red flag” in terms of the potential spread of the virus.

45. Senior counsel also pointed out that the evidence about the number of persons who would attend the proposed assembly was vague but that in any event, and irrespective of the precise number, the restrictions which had been formulated in the plan would not eliminate the risk identified by Dr McAnulty. It was submitted that there would be a risk to attendees, a risk to members of the general public, and a risk to members of essential services such as the police who would be required to be in attendance.

46. As to the tension between the evidence of Assistant Commissioner Maloney and Mr Lees as to what had occurred at the Black Lives Matter assembly, it was submitted that the evidence of Assistant Commissioner Maloney was of greater probative value and should be preferred. It was pointed out that the Assistant Commissioner had observed the whole of the protest, whereas Mr Lees had not been in a position to do so. It was also submitted that aspects of the evidence of Mr Lees were other than objective. Taking into account all those factors, it was submitted that the balance fell in favour of the making of the orders sought.

Submissions of the defendant

47. Counsel for the defendant submitted that the determination of the plaintiff’s application involved balancing two issues. He identified the first as a public policy issue, namely the right to protest publicly and to engage in public discourse by playing an active role in a civil society. He identified the second as the public health issue brought about by the current pandemic.

48. Counsel for the defendant emphasised the significance, and the immediacy, of the public policy issue. He submitted that the proposed legislation brought undone decades of law reform which had been undertaken for the benefit of members of the transgender community. He submitted that this was of considerable magnitude, and that it was an immediate issue in circumstances where the legislation had been introduced into the Legislative Council already and had been read for a second time. He described the public policy issue as being one which was “in the here and now.”

49. Counsel obviously did not take issue with the existence of the pandemic but he identified a number of fundamental steps taken by the defendant to address the relevant risk, including social distancing, the wearing of masks, the use of sanitiser, the recording of persons present, and the communication of public health information. Counsel accepted that both the defendant and Mr Lees had acknowledged that there was no basis on which compliance with any of those matters could be enforced at the proposed assembly, but submitted that I should accept the evidence of Mr Lees that in his recent experience, the vast majority of persons who attended public gatherings generally complied with plans which had been implemented.

50. Counsel also submitted that Dr McAnulty had conceded that the defendant's plan incorporated a number of basic elements. He also placed significant emphasis on the fact that there was no evidence before the Court which quantified the level of risk which had been identified by Dr McAnulty. Counsel emphasised that there was no evidence whatsoever of transmission of COVID‑19 having occurred as a consequence of similar assemblies, and that the only available conclusion was that any risk was small when compared to the public policy issue which had been identified.

51. Counsel submitted that in all of these circumstances there was a serious and immediate public policy issue which had to be balanced against a small risk of transmission, a risk which would be further reduced by the implementation of the defendant’s safety plan. It was submitted that when viewed in that way, the plaintiff's case should fail due to the absence of any evidence of the quantification of the risk, and the failure of the plaintiff to identify the magnitude of the risk which was said to exist.

52. Counsel submitted that I should favour the defendant's position, given that the public policy issue which had been identified was both significant and immediate, in circumstances where the public health issue was clearly manageable. It was submitted that the defendant had taken all of the prudent steps that would be taken by any other community group which sought to organise an assembly of this nature.

53. Finally, counsel again emphasised what he submitted was the most important aspect of this case, namely that there was no evidence of any transmission of COVID‑19 in New South Wales as a result of a public assembly, a circumstance which indicated that the risk was, as he put it, "relatively low".

CONSIDERATION

54. There is no doubt that the issue which is the subject of this proposed assembly is an important one. As senior counsel for the plaintiff put it in the course of his submissions, it is one which is undeniably worthy of public attention and debate.

55. As against that, the evidence establishes that there is clearly a risk of transmission of COVID‑19 in the community as a result of public gatherings. The evidence of Dr McAnulty is clear in that respect, and the most recent statement of the AHPPC to which I have referred identifies measures which should be implemented in an effort to address that risk.

56. It may well be that there is no evidence which establishes that there has been a transmission of the COVID‑19 virus in NSW as a consequence of any public assembly. However, that does not lead to the conclusion that there is no risk of that occurring. Although Dr McAnulty did not engage in an assessment of that risk on a scale ranging from low, to moderate, to high, I am unable to accept the submission advanced by counsel for the defendant that his failure to do so is fatal to the plaintiff’s position.

57. Dr McAnulty expressed the unequivocal opinion that there remains a risk of transmission of COVID-19 in the community. He did so by reference to a number of specific factors. Those factors included the particular threat posed by persons attending large public gatherings. Whilst Dr McAnulty did not engage in an assessment of the risk by reference to a sliding scale, the only inference which can be drawn from his evidence is that the risk is not insubstantial. Importantly, when appraised of matters proposed to be put in place relating to this particular assembly in the course of his re-examination, Dr McAnulty said that those matters did not alter his opinion.

58. The effect of Dr McAnulty’s evidence is that the level of the risk can change. That of itself necessarily presents some difficulty in making a specific determination of the level of risk at any given time. The statements of the AHPPC support the conclusion that because of that and other factors, there is a necessity to take a conservative approach. What is also clear from the statement of the AHPPC of 5 June 2020 is that large gatherings of people pose a particular threat, and highlight the risk.

59. The extent of the risk must also depend, at least in part, on the number of persons who are likely to attend any assembly. The evidence in relation to that is somewhat imprecise in the present case. The Notice of Intention to hold the assembly specifies a figure of 200. Other assumptions have been made (it is not clear on what basis) that the attendance may be in the vicinity of 300 people. The defendant’s advertising of the event on Facebook suggests that 442 people will attend. That same advertisement also suggests that approximately 1,100 people are “interested”. Precisely how many people will attend is not at all clear. However, as a matter of common sense, the greater the number, the greater the risk which is posed.

60. The reference by Dr McAnulty to steps that can be put in place to eliminate the risk necessarily calls for a consideration of the evidence of the plan which has been put in place by the defendant. I have already outlined the essential elements of that plan. It was the defendant’s position that such plan went a considerable way to managing the public health issue. Dr McAnulty agreed that the plan contained some elements of a good safety plan. He was not asked what the effect on any risk might be in the event that those matters were implemented. But in any event, putting a plan in place is one thing. Being able to enforce its essential elements is quite another. Those who may wish to attend the assembly cannot be compelled, by anyone, to comply with any component of the plan.

61. Mr Lees explained that he would ensure that all proposed safety measures were implemented, which included having masks available for distribution, handing out sanitiser and encouraging people to socially distance. I accept that in his capacity as a COVID marshal at the proposed assembly, Mr Lees would seek to ensure that any safety measures which form part of the defendant’s plan are implemented. However, and even with the best of intentions, those in attendance cannot be forced by the defendant to comply with any element of the proposed plan. None of this is to say that there is any onus on the defendant to establish that people would comply with the components of the plan. There is no onus on the defendant at all. However that the lack practical utility and efficacy of the plan remains a relevant consideration.

62. In this regard, it was put on behalf of the defendant that I should accept the evidence of Mr Lees as to what had occurred at previous assemblies and that, in particular, I should accept his evidence that those present at assemblies at which he has been at attendance had complied with appropriate safety measures. It was further put to me that having accepted that evidence, I should infer that a similar course would be followed by those attending the proposed assembly which is the subject of this application. In my view, there are a number of difficulties with that position.

63. To begin with, acceptance of that position depends, fundamentally, upon an acceptance of the evidence of Mr Lees as to what occurred at the “Black Lives Matter” assembly. By reference to annexure B of his affidavit, Mr Lees’ evidence was that those present at that assembly complied with appropriate measures, at least as to the wearing of masks. As against that, the evidence of Assistant Commissioner Maloney was that this was not the case, and that the majority of those present were not wearing masks on that day. In my view, the probative value of annexure B is limited. Whilst it is certainly the case that the persons in that photograph are wearing masks, on the evidence before me that is a snapshot which depicts a small part of a very large crowd. Moreover, the evidence of Mr Lees is necessarily based upon what he saw that day, within his particular range of vision. Assistant Commissioner Maloney, in my view, had a benefit of a much wider view, as well as having had the benefit of information provided to her by officers who were at the actual assembly. For those reasons, I prefer the evidence of Assistant Commissioner Maloney as to what occurred on that occasion. I should also say that whilst annexure B does show a number of people wearing masks, it also makes very clear that at least within that group of people, there was little or no social distancing in place.

64. Moreover, and even if I accepted the evidence of Mr Lees, what may or may not have been the approach of those who have attended other assemblies would, in my view, be a most unsafe basis upon which to infer that the same approach would be taken by those who propose to attend the assembly which is the subject of this application. To so conclude would be impermissibly speculative.

65. It is also relevant to the conduct of the balancing exercise that there are, in my view, a series of other methods through which the defendant, and the group that she represents, could communicate their concerns and which do not involve a public assembly, and thus do not pose a health risk. In coming to that view, I have taken into account that the defendant’s stated objective in wanting to hold the assembly is to draw attention to what she believes to be the detrimental impact of the proposed legislation, so that politicians will be aware of that, and will be aware of her concerns. In light of that evidence, I have some difficulty in accepting the defendant’s assertion that contacting politicians directly to express such concerns does not constitute an effective method of drawing awareness to what she believes to be the detrimental impact of the proposed legislation. Direct contact would, amongst other things, allow the defendant and those members of her group to provide any relevant information to any member of Parliament. That seems to me to be an effective and direct way of communicating concerns. There are also a number of other methods available to the defendant to communicate her views. A combination of some or all of those methods would be likely to be most effective in drawing the awareness of members of Parliament to the issues which the defendant seeks to raise.

66. In this regard, my attention was drawn to the judgment of Adamson J in Commissioner of Police vGray [1] in which her Honour, having made reference to free speech being a hallmark of a democratic society, did not accept a submission advanced on behalf of the plaintiff that the same effect as was sought to be achieved by a proposed public assembly could be achieved, in this day and age, by the use of social media. Her Honour went on to observe that demonstrations in public spaces remain a powerful method of advancing particular causes to Governments and to the general community, and engender a feeling of solidarity among participants, and those associated with those participants who may be unable to be present. I respectfully agree with her Honour's observations about the effect of demonstrations in public places. However, unlike the position before her Honour, the evidence before me establishes that the methods available to the defendant to draw attention to her cause go substantially beyond resorting to social media platforms.

    1. [2020] NSWSC 867.

54. The defendant maintained that many of the alternative methods that were put to her in cross-examination would not be effective in communicating her cause. She did not explain to any real extent why she held that view, and she was not re-examined about it. I repeat that the defendant is not under any onus in these proceedings. However, this is not a case where the alternative methods of drawing attention to the relevant issues are restricted to resorting to social media platforms. As senior counsel for the plaintiff put it, the alternative to the proposed assembly is not silence.

55. For all of those reasons, and having balanced the undeniable right to publicly protest against the identified public health issue, I am satisfied that the balance favours the making of the order sought by the plaintiff.

56. A further issue was raised in the proceedings about the correct name of the defendant, and in that regard, I propose to make orders giving effect to the intentions of the parties pursuant to s 64 of the Civil Procedure Act 2005 (NSW).

57. Senior counsel for the plaintiff confirmed that notwithstanding paragraph 4 of the summons, no order for costs was sought.

ORDERS

1. Pursuant to s 64 of the Civil Procedure Act 2005 (NSW), I order that the summons filed in these proceedings, along with the Notice of Intention to Hold a Public Assembly issued by the defendant on 29 September 2020, be amended to record the name of the defendant as Samuel Holcombe also known as April Holcombe;

2. Pursuant to s 25 of the Summary Offences Act 1988 (NSW), I make an order prohibiting the holding of the public assembly identified in the Notice of Intention to Hold a Public Assembly dated 29 September 2020, issued by the defendant; and

3. I make no order as to costs.

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Endnote

Decision last updated: 19 October 2020