NSW Commissioner of Police v Folkes

[2015] NSWSC 1887

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	NSW Commissioner of Police v Folkes [2015] NSWSC 1887
Hearing dates:	10 December 2015
Decision date:	11 December 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Order, pursuant to s 25(1) of the Summary Offences Act 1988 (NSW), that the holding of the public assembly referred to in the Notice of Intention to Hold a Public Assembly” dated 6 November 2015 is prohibited.  (2) Make no order as to costs, with the intention that each party is to bear his own costs of the proceedings.
Catchwords:	PUBLIC ASSEMBLY AND PROCESSION – proposed public assembly to commemorate Cronulla riots to be held on tenth anniversary – risk to public order high – importance of police retaining full extent of powers to deal with risk – prohibition order made
Legislation Cited:	Summary Offences Act 1988 (NSW), Pt 4, ss 23, 24, 25, 27, Sch 1
Cases Cited:	Commissioner of Police v Allen (1984) 14 A Crim R 244 Commissioner of Police v Rintoul [2003] NSWSC 662
Category:	Principal judgment
Parties:	NSW Commissioner of Police (Plaintiff) Nicholas Hunter Folkes on behalf of Party for Freedom (Defendant)
Representation:	Counsel: I Temby QC/C McGorey (Plaintiff) J Loxton (Defendant)   Solicitors: Lea Armstrong, NSW Crown Solicitor (Plaintiff) Robert Balzola and Associates (Defendant)
File Number(s):	2015/355936

Judgment

Introduction

1. By summons filed in Court on 3 December 2015, the Commissioner of Police (the plaintiff) seeks an order under s 25 of the Summary Offences Act 1988 (NSW) (the Act) prohibiting the holding of a public assembly arranged by the so-called Party for Freedom. The public assembly is proposed to be held on Saturday 12 December 2015 from midday until 2pm at the North End of the Don Lucas Reserve, Cronulla. Nicholas Folkes, the defendant, signed the Notice of Intention to Hold a Public Assembly on 6 November 2015 (the Third Notice) in his role as Chairman of the Party for Freedom.

2. The basis on which the plaintiff seeks relief is that he apprehends that, if the public assembly were to take place as planned, there would be a substantial risk that it would degenerate into a violent event in which clashes would occur between those who hold similar views regarding immigration as those propounded by the Party for Freedom (which opposes migration by Muslims to Australia) and those who hold different views.

3. Before setting out the factual background to the proceedings, I propose to summarise the relevant provisions of the Act since they form the basis of the relevant procedure.

The legislative framework

4. Part 4 of the Act makes provision for public assemblies. Section 23 provides that a public assembly is an “authorised public assembly” if:

1. Notice in writing of the intention to hold the assembly is served upon the Commissioner and contains the particulars prescribed, including the date, time, and place at which the public assembly is to be held; where the assembly is a procession, the proposed route of the procession; the purpose for which the proposed public assembly is to be held; and the number of persons expected to participate (s 23(1)(a), (b), (c) and (d), and Sch 1 of the Summary Offences Regulation 2010); and

2. The notice is signed by, and gives an address of, a person who takes responsibility for organising and conducting the public assembly (s 23(1)(e)); and

3. Either, the Commissioner does not oppose the holding of the public assembly, or, where the notice is served at least 7 days before the date specified in the notice as the date on which it is proposed to hold the public meeting – the holding of the public assembly is not prohibited by the Court under s 25 of the Act (s 23(1)(f)).

5. Section 24 of the Act provides that, if an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it, participants are not:

“…by reason of anything done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place.”

6. It can therefore be seen that s 24 provides a measure of protection to a person who participates in an authorised assembly held substantially in accordance with a s 23 notice, from prosecution for participating in an unlawful assembly or obstructing any person, vehicle or vessel in a public place. The protection afforded does not prevent the prosecution of a person who engages in acts of violence or vandalism in that assembly: Commissioner of Police v Rintoul [2003] NSWSC 662 at [24] per Simpson J.

7. Although s 24 of the Act contemplates that particulars of the public assembly (date, time, place etc.) may be amended by agreement, the Court has no power to amend the notice or to authorise any assembly other than that specified in the notice. Accordingly, the assembly specified in the Third Notice is the one with which I am concerned.

8. Section 25 of the Act provides that the Commissioner may apply to this Court for an order prohibiting the holding of a public assembly in respect of which a notice referred to in s 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.

9. Section 27 of the Act provides that the Court to which an application in respect of a public assembly is made under s 25:

“…shall decide the application 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.”

10. The Court’s jurisdiction to make the order sought depends on two notices having been given: first, the defendant must give notice to the Commissioner under s 23(1) of the Act indicating the intention to hold a public assembly and providing the particulars required; and, secondly, the Commissioner must give notice to the defendant under s 25(2) of the Act inviting the defendant either to confer with respect to the public assembly at a specified time and place, or to make written representations to the Commissioner with respect to the public assembly within a time so specified. I am satisfied that the requisite notices under the Act have been given such as to confer jurisdiction on the Court to determine the plaintiff’s application, which was made within time.

The effect of a s 25 order

11. The word “prohibit” in s 25 of the Act is inapposite since a prohibition order under s 25 does not prohibit the holding of a public assembly at all. Nor does the Act make it an offence to hold or participate in a public assembly or procession that has not been authorised. All the making of a prohibition order does is deprive the participants in the public assembly of the additional protection that is afforded by s 24 if the assembly is held substantially in accordance with the notice: Commissioner of Police v Rintoul at [6] per Simpson J; Commissioner of Police v Allen (1984) 14 A Crim R 244 at 244 – 245, per Hunt J.

The criteria for making a s 25 order

12. The Act does not identify relevant criteria for the making of a prohibition order under s 25. However, decisions of this Court provide illustrations of the matters to be taken into account in light of the purpose of the legislation. In Commissioner of Police v Rintoul Simpson J said of s 25, at [5], that it is:

“...intended to strike a balance between competing rights – the right, jealously guarded, of the citizen to exercise freedom of speech and assembly integral to a democratic system of government and way of life, and the right of other citizens not to have their own activities impeded or obstructed or curtailed by the exercise of those rights”:

13. Time and place are also relevant. Although it is not necessary to show that a breach of the peace would, or would be likely to be, caused by the holding of the public assembly, it is difficult to imagine a case where a s 25 order would be made where there was no real prospect of such breach: Commissioner of Police v Rintoul at [7].

Background to the proceedings

14. In order to explain the genesis of the Third Notice is it necessary to set out the background in some detail.

The First Notice: 7 September 2015

15. A notice in the form of Sch 1 of the Act dated 7 September 2015 was provided to the plaintiff (the First Notice). It was signed by the defendant as Chairman of the Party for Freedom. The First Notice estimated that “hundreds” of people would assemble at Cronulla Beach. The purpose of the assembly was described in the First Notice in the following terms:

“To hold a memorial service commemorating the 10 year anniversary of the Cronulla riots. Also we plan to ceremoniously undertake a (fake) funeral to bury the failed policy of cultural genocide (multiculturalism).”

16. The “special characteristics” of the proposed assembly were described in the following way in the First Notice:

“We plan to hold a memorial service on the beach, Cronulla. Guest speaker involved.”

The meeting with NSW Police on 19 October 2015

17. On 19 October 2015, following an invitation from NSW Police, the defendant met with Superintendent Michael O’Toole, Chief Inspector Woolbank and Inspector Gary Ford at Miranda Police Station to discuss the proposed assembly and the contents of the First Notice. During the meeting Superintendent O’Toole asked the defendant to provide an accurate indication of the numbers who would be attending the assembly. He also requested that the defendant change the location from Cronulla Beach to Don Lucas Reserve, Cronulla. After the meeting, Chief Inspector Woolbank accompanied the defendant to the reserve.

The Second Notice: 22 October 2015

18. A further notice in the form of Sch 1 of the Act dated 22 October 2015 was provided to the plaintiff (the Second Notice). The relevant differences between the First Notice and the Second Notice were as follows:

1. the Second Notice estimated the number of people attending to be “between 400 to 1,000”;

2. the Second Notice identified the assembly location to be “North End Don Lucas Reserve, Cronulla” and indicated a “procession through car park to northern end of Don Lucas Reserve”;

3. although the purpose was identified in the same terms as in the First Notice, the Second Notice stated that there would be one vehicle, which was described as “one hearse with coffin”; and one band;

4. The “special characteristics” were described in the following terms: “Guest speakers Kim Vuga, Sherman Burgess, Serio Redegalli, Nick Folkes [the defendant] and Drew Fraser.”

19. The evidence established that Mr Burgess calls himself (and is, in some circles, known as) “the Great Australian Patriot”. Ms Vuga’s slogan, as depicted in promotional material, is “Love Australia or Leave”.

Further meeting on 6 November 2015

20. On 6 November 2015 Superintendent O’Toole met with the General Manager of the Sutherland Shire Council (the Council), Scott Phillips; the defendant; his solicitor, Richard Black; and three community members: Brad Turner, who represented the local surf clubs, Ian Bourke (from the local RSL) and Annette Tasker (from the Chamber of Commerce). According to Superintendent O’Toole, the purpose of the meeting was to dissuade the defendant from holding the rally at Cronulla. The community representatives were particularly concerned that the rally could spark public unrest and damage local businesses. The meeting did not achieve this objective.

21. During the meeting, Superintendent O’Toole said words to the following effect:

“The police and the community have concerns this rally will re-open old wounds and could result in violent clashes. As such, it would be best if it were held somewhere else. What about Kurnell, Captain Cook’s landing spot, or in a hall where it could take on a more of a ‘Q & A’ style where your views could be tested rather than just slogans shouted from a podium?”

22. According to Superintendent O’Toole, Mr Black apparently agreed to this proposal but the defendant said that he would have to “check” with his “people”. Mr Phillips said that he would be in touch with the defendant to discuss possible venues. During the course of the meeting, an exchange took place between Mr Turner and the defendant in which Mr Turner said:

“There is fear amongst young members in the surf club and young members should not be scared to be on the beach. They should not have to be exposed to violence and this type of behaviour. You will fire this up and then leave and they will be targets for weeks to come.”

23. The defendant responded:

“Well, that’s not our intention, we just want to celebrate that Aussies stood up for themselves 10 years ago.”

The Third Notice: 6 November 2015

24. During the course of the meeting on 6 November 2015, the defendant handed a further notice to Superintendent O’Toole (the Third Notice). As had the previous notices, the Third Notice contained, in paragraph 4, the following statement:

“I take responsibility for organising and conducting the proposed assembly.”

25. The Notice described the purpose of the proposed assembly in the following terms:

“To celebrate democratic right to assembly, and the valued right to dissent by commemorating the tenth anniversary of Cronulla victims who stood up and fought back against the criminal anti-social wave to highlight the media bias against Cronulla and double standards prejudice. To reveal political ineptitude in failing to stop the anti-social behaviour before it came to the events of 11/12/05.”

26. The defendant identified, in the Third Notice, the following “special characteristics of the proposed assembly” (which replicated the Second Notice):

“Guest speakers Kim Vuga, Sherman Burgess, Serio Redegalli, Nick Folkes [the defendant] and Drew Fraser.”

27. The Notice estimated that approximately 400 people would be involved in the assembly.

28. Some time between 16 and 19 November 2015 the defendant and Superintendent O’Toole spoke on the telephone. The defendant told him that the Council had not contacted him about the use of a hall and that his calls to the Council had not been returned. The defendant said:

“I don’t really want to use the hall because we would be targets for the left.”

The meeting on 19 November 2015

29. On 19 November 2015 Superintendent O’Toole met with the defendant and his friend, George Jameson, at Glebe Police Station. They went to a local café to discuss the number of people who would be likely to attend the public assembly and the political allegiance of those persons. Superintendent O’Toole asked that the assembly start at 10am rather than midday in order to reduce the risk to public order that would be posed if those attending had already consumed alcohol. The defendant said that he would get back to him about the starting time.

30. Superintendent O’Toole also referred to a T-shirt which had been printed by the Party for Freedom which had a logo on the front which said: Sydney is fun Cronulla is a riot”. He suggested to the defendant that these words created the impression that the Party for Freedom condoned violence. The defendant maintained that the party did not condone violence.

31. Superintendent O’Toole asked about Mr Burgess and whether he was likely to be violent. The defendant assured him that Mr Burgess had “toned it down a bit lately”. When Superintendent O’Toole asked about the likely attendance at the rally, the defendant said that he believed that about 400 people would attend but estimated that there could be as many as 1,000. Superintendent O’Toole suggested that those coming to the event by train could alight at Woolooware so as to avoid conflict with those opposing their views. The defendant assured Superintendent O’Toole that he was intending to leave the area as soon the rally was over at 2pm.

32. On 22 November 2015 the defendant sent a text message to Superintendent O’Toole informing him that, because of the promotion that had already occurred, it was too late to change the starting time for the rally.

The meeting on 25 November 2015

33. Superintendent O’Toole attended the Cronulla Chamber of Commerce to discuss community concerns with the Mayor, the General Manager of the Council, the Compliance Manager and Chief Inspector McGrath. Robert Stanley-Jones, who was the licensee of the “Northies Hotel” in 2005 at the time of the riot, was also present. The defendant was not invited to attend this meeting. Concern was expressed about the potential effect of the rally on local businesses as well as fear that the event could spark another riot.

The notice served on 26 November 2015 pursuant to s 25(2)(a) of the Act

34. On 20 November 2015 Assistant Commissioner and Region Commander Michael Fuller signed a notice issued pursuant to s 25(2)(a) of the Act pursuant to a delegation dated 22 April 2002 by the then Acting Commissioner of Police, Kenneth Moroney. The notice was served on the defendant on 26 November 2015. The defendant was taken aback by the notice since he had expected that the police would allow it to proceed with the protections afforded by the Act because of the concessions he had already made. It was not suggested that the police had engendered any such expectation.

35. The defendant was invited to confer with Superintendent O’Toole at the Cronulla Police Station about the proposed public assembly on 27 November 2015. As the defendant was unable to attend on that day due to ill health, it was rescheduled to 30 November 2015.

The meeting on 30 November 2015

36. On 30 November 2015 a meeting was held between Superintendent O’Toole and the defendant in accordance with the notice. Chief Inspector McGrath and Mr Jameson were also present. The defendant said that the assembly was still going ahead and that he estimated that there would be about 400 people supporters and 400 persons holding opposing views to those of the Party for Freedom. Those present at the meeting accompanied Detective Chief Inspector Woolbank to the Don Lucas Reserve to discuss transportation, attire, the holding of flags and other steps that could be taken to minimise confrontation. The defendant said that he wanted to set up the stage and public address system at 8am.

37. Superintendent O’Toole formed the view that the defendant did not have experience of managing large numbers of people at such assemblies since previous events had involved much smaller gatherings.

Promotion of the rally by the Party for Freedom

38. The Party for Freedom has extensively promoted the rally, on its website, Facebook page and through other social media. It has distributed leaflets. It posted, on its Facebook page, an invitation to the Socialist Alliance (a group known to hold opposing views on immigration):

“We invite Socialist Alliance to our massive Cronulla Beach Party!”

39. The defendant, in cross-examination, described the relationship between the Party for Freedom and the Socialist Alliance in the following terms:

“. . . we are in complete opposite ends of the political spectrum on cultural issues”

40. On 7 December 2015 the website of the Party for Freedom contained an article entitled “2015 Cronulla Riots Memorial” which began as follows:

“This year marks the ten year anniversary of the Cronulla Riots, a very important date in the Australian calendar that will be commemorated on Saturday 12th December 2015 at Cronulla Beach, Cronulla.

Party for Freedom will be holding a memorial service, and invites you to attend. We ask you to invite your friends and family and reach out to Cronulla locals who were affected by the devastating and brutal cover-up perpetrated by the state and federal governments. For many years prior to the Cronulla Riots, Middle Eastern gangs from southwest Sydney were cruising the streets of Sydney looking for trouble. Many of these Islamic gangs targeted Australians especially Anglo-Australians who lived in the Shire.

For many Australians, the Cronulla Riots represents a time ‘when Aussies stood their ground’ against years of oppression and intimidation committed by southwest Sydney gangs . . .”

41. The views of the members of the Party for Freedom are revealed by the following paragraph from its “Mission Statement” in its constitution:

“2.3   The Party for Freedom rejects multiculturalism, and advocates an immigration policy based on cultural compatibility; where new migrants should not be sourced from countries or ethnicities in greater proportion than their current share of the population; rejects Islam as fundamentally incompatible with these values, and is committed to regaining control of Australia’s borders.”

The evidence

42. The plaintiff read the following affidavits in support of the summons:

1. the affidavit of Elizabeth Wells sworn 3 December 2015 (in support of the dates of the notices served under the Act);

2. the affidavit of Commissioner O’Toole sworn 7 December 2015 (as to the factual background and the media reports of the events in December 2005);

3. two affidavits of Bridget Turk sworn 7 and 9 December 2015 (to which are annexed screenshots downloaded from the websites of the Party for Freedom and the “Great Aussie Patriot”); and

4. an affidavit of Chief Inspector Michael Rochester sworn 7 December 2015 as to the events at Cronulla in 2005 and the risk of conflict and public disorder proposed by the public assembly.

43. Of the plaintiff’s witnesses, only Superintendent O’Toole was cross-examined.

44. The plaintiff’s affidavit evidence established: the Court’s jurisdiction to make an order; the concerns of the police about the potential for disruption to public order; and the rejection by the defendant of alternatives which it contended were reasonable; and the defendant’s determination to hold the public assembly irrespective of the outcome of these proceedings.

45. The defendant relied on his own affidavit of 9 December 2015. He deposed that the Party for Freedom has 380 financial members. The party intends to become registered as a political party but presently has insufficient members as 500 are required for that purpose. He also deposed that the rally is the largest organised by the party. He deposed that if the police advise him on Saturday 12 December 2015 that they fear the rally is about to turn violent, he will tell those present that they ought to leave, and he, too, will leave the area.

46. In cross-examination, the defendant accepted that any prediction of numbers attending the rally was no more than a “guesstimate” and accepted that no confident, accurate assessment of numbers could be given. He agreed that, since 22 October 2015 when he had provided the estimate of 400 to 1,000 in the Second Notice, the Party for Freedom had heavily promoted the event including by posters, social media, its website and by the distribution of leaflets. The defendant also learned that supporters and like-minded people would come by bus from Melbourne and Canberra to attend the public assembly.

47. The defendant agreed that one of the speakers, Mr Burgess, is an “excitable speaker”, whom some might see as provocative, and who has a “phenomenal following”. The defendant said that people would turn up to the rally, even if the Party for Freedom did not. When pressed in cross-examination to give his best estimate of numbers the defendant responded:

“I have to be honest, I don't know, I don't have a crystal ball, I don't know what tomorrow holds.”

48. The defendant, in the course of his cross-examination, accepted that his power to control the rally he had arranged was limited. The following exchanges provide illustrations:

“Q. You can't stop people bringing alcohol to this event on Saturday?

A. Possibly. I couldn't stop somebody bringing an explosive on the day, no.”

. . .

Q.   I want to put to you the proposition that you lack the capacity to control the people, whatever their numbers turn out to be, who attend your rally if it goes ahead on 12 December?

A. Well that is, with due respect, that is not my job to control the crowd.

HER HONOUR

Q. That is not what was asked. Could you answer Mr Temby’s question, you lack the capacity to control the people who attend your rally?

A. I don’t have the capacity, I don’t have the capacity.

TEMBY

Q. You can’t do it no matter how hard you try, you just can’t do it?

A. I am not the Police Force, that is not my definition of who I am or what I’m undertaking . . .”

49. The defendant admitted in cross-examination that one could interpret the invitation issued by the Party for Freedom to the Socialist Alliance as a “deliberately provocative act”, although he did not admit that this was its purpose.

The potential for violence and other breaches of public order and violence

50. The plaintiff also adduced evidence, which was not objected to, of contemporaneous reports of the Cronulla riots in 2005. The affidavit of Chief Inspector Rochester sworn 7 December 2015 was read without objection. He was not required for cross-examination. I accept his summary of what occurred between 11 and 13 December 2005 as follows:

“8   The Cronulla Riot on the 11 December 2005 and the reprisal attacks during the nights of 11 and 12 December 2005 was the third significant public order incident that NSW had experienced within a short period of time. The consequences of the Cronulla riot included the introduction of new legislation and the formation of the Public Order & Riot Squad, which commenced operations on 12 February 2006.

9   Based on my knowledge I can state that, in summary, the events of Sunday 11 December 2005 started at North Cronulla Beach with the presence of a large crown behaving in an orderly fashion. As the day progressed, the predominately Caucasian Australian crowd, fuelled by racial prejudice and excessive alcohol consumption became violent. The immediate result of this was that people of ethnic appearance were attacked on sight, with little or no provocation.

10   Sunday 11 December 2005, a crowd had commenced to gather in the vicinity of Dunningham Park and North Cronulla Surf Club from about 8:00am. About 10.00am a rally took place in the vicinity of the North Cronulla Surf Club with about 5,000 people in attendance. Whilst the rally commenced peacefully, a number of speakers incited the crowd, and that, coupled with excessive alcohol consumption, led to the violence that followed shortly thereafter.

11   About 1:00pm the violence commenced when a large crowd meeting near Prince Street saw a Middle-Eastern male near the surf club. About the same time two pigs heads were found on the door step of the Arncliffe RSL club. Later in the afternoon, Police were dealing with riotous behaviour on three fronts, Dunningham Park / North Cronulla Hotel, Prince Street and Cronulla Railway Station.

12   Later that evening the first sign of reprisal activity surfaced. As the evening progressed groups of Middle-Eastern males were being reported at Sans Souci, Arncliffe Park and Punchbowl Park. Later further reports of convoys of vehicles leaving Punchbowl Park heading to Cronulla, Maroubra, Brighton-Le-Sands and even Wollongong, were being received by the police command post. A secondary site of significant public disorder occurred at Maroubra Beach where it is reported that over 100 Middle-Eastern males, some armed with baseball bats and assorted weapons caused damage to vehicles parked in the vicinity.

13   I am aware that, as the evening progressed, Tom Ugly’s Bridge was locked down to filter traffic into one lane, in an attempt to stem the flow of vehicle convoys coming from the Punchbowl Park area. A further vehicle checkpoint was needed at Grand Parade and Bay Street, Brighton-le-Sands. Numerous groups of between 100-200 Middle-Eastern males were causing extensive property damage and attacking Police responding to the incidents. The reports and incidents of public disorder continued at Brighton-Le-Sands until approximately 11:00pm. Order had been restored to a certain extent shortly after midnight.

…

17   … Immediately after or during the incident, 27 persons were arrested and charged with a range of offences. In total 104 persons were charged with 285 charges relating to offences committed over that three day period. 30 persons received minor to serious injuries as well as two ambulance officers and seven police officers being injured. Many of the injured persons required ambulance transport to and hospital treatment at nearby Sutherland Shire Hospital. The property damage was significant with numerous shop windows smashed and damage to the Brighton-le-Sands Post Office. More than 50 vehicles alone were extensively damaged. Numerous Police and Ambulance vehicles were also damaged throughout the incident.”

51. Chief Inspector Rochester (who was not cross-examined) deposed to the risk of violence posed by the proposed public assembly in the following terms:

23   Based on my experience, and the information available to Police regarding the nature of the proposed assembly and the participants, I have no doubt that elements of the proposed assembly will not only ignore Police directions, but, will deliberately commit offences. Should the Police need to arrest an individual/s I have no doubt they will be hindered significantly in the execution of their duties. I am very concerned that the placing of Police between two opposing rallies may degenerate into serious public disorder. I am very concerned that injuries will be occasioned to participants, bystanders and Police. Property damage will ensue and significant policing resources will need to be diverted from their normal community policing duties to restore public order.

24   …The risk of conflict, injuries, property damage and significant public disorder is HIGH and cannot be mitigated due to the geography, topography and demographics of the proposed assembly.”

52. Superintendent O’Toole deposed as to his concerns for the safety of the public given the numbers expected to attend and the “highly controversial” nature of the event. His concerns were not limited to the Don Lucas Reserve and its environs but extended to the Woolooware and Cronulla railway stations, the beaches and pedestrian walkways in the area.

The parties’ submissions

The plaintiff’s submissions

53. Mr Temby QC, who appeared with Mr McGorey on behalf of the plaintiff, submitted that a prohibition order should be made so that the police would retain the full range of powers ordinarily available to them to keep the peace and maintain public order at Cronulla on 12 December 2015. The plaintiff contended that the evidence established that there would be a substantial number of people (the precise magnitude of which could not be predicted with any accuracy) with passionately held, but opposing, views who would congregate in relatively close proximity. The plaintiff contended that those present were likely to include: members of the Party for Freedom; those sympathetic to the party’s policy on immigration; interested observers; and those holding opposing views. The plaintiff submitted that the defendant’s capacity to control the behaviour of those attending was minimal.

The defendant’s submissions

54. Mr Loxton, who appeared on behalf of the defendant, submitted that an order for protection ought not be made for the following reasons:

1. as the public assembly would occur whether an order under s 25 was made, there was no reason to make the order;

2. as the defendant had complied with the procedure outlined in the Act, and made concessions as requested by the police, he ought therefore obtain the protections available under the Act, in circumstances where neither he, nor the Party for Freedom, advocated violence;

3. the defendant, or those holding like-minded views, ought not be required to bear the consequences of the violence of others (being the opposing group), particularly where the opposing group had not followed the procedure under the Act;

4. in circumstances where the public assembly would proceed irrespective of the outcome of these proceedings, it would be preferable for the Court to decline the relief sought by the plaintiff, thereby leaving the defendant and his associates with the protections conferred by the Act (which, it was said, would render them more likely to comply with the directions of police on the day); and

5. the plaintiff’s application was made so soon before the proposed public assembly that it would not be practical for the defendant to change the time or the location of the event so as to obtain the protection available under the Act.

Consideration

Whether an order ought be made

55. I regard the plaintiff’s application for a prohibition order as strong. The risk to public order has been demonstrated. Indeed, it could not be seriously controverted. The selection of the date and location for the public assembly as well as its express purpose are, of themselves, both telling and ominous. However law-abiding and peaceful the defendant himself might be, he would be wholly unable to control a crowd of hundreds, even if they were all like-minded.

56. The literature disseminated by the Party for Freedom, the logo on the T-shirt and the express purposes of the rally itself (as disclosed in the First, Second and Third Notices) are, at least, provocative, if not inflammatory. The invitation issued by the Party for Freedom to the Socialist Alliance to the “massive” party is nothing short of a challenge. Although the Party for Freedom and Socialist Alliance may be old antagonists whose disagreements are not generally resolved by force, the same cannot be said of others who hold similar views. The prospect that the members of the opposing camps would resolve their differences by discussion and debate is no more than fanciful.

57. I reject the submission made by Mr Loxton that the order ought not be made because the rally would go ahead irrespective of the order. The submission misapprehends the purpose of the application, which is to ensure that the police have available to them all relevant powers and are not inhibited in exercising those powers by the limited protections that would otherwise be afforded to those who had served a notice under s 23 of the Act.

58. I reject the distinction drawn by Mr Loxton between the risk of violence posed by those holding similar views to the defendant and the risk posed by those holding opposing views. There is no reliable evidence that the adherents to either camp could be distinguished on the basis of their preparedness to resort to violence or other anti-social acts. Chief Inspector Rochester, who deposed to his expectation that “elements of the public assembly” (including those who share the defendant’s views on immigration) will “deliberately commit offences”, was not cross-examined.

59. That the defendant served a notice under the Act and no notice has apparently been served by any opposing group is, in the circumstances of the present case, immaterial. The refusal of a prohibition order is not a reward for acquaintance with the Act or compliance with its procedures, any more than its making is a punishment.

60. Moreover I regard as entirely speculative the proposition that, if those attending the defendant’s rally were afforded the protection of s 24 of the Act, they would be more likely to be law-abiding and comply with directions given by the police.

61. I reject the defendant’s submission that I should refuse the prohibition order because the proceedings have been heard so close to the proposed event that no alternative location or format is practically available. The Act itself contemplates that the Commissioner is entitled to bring an application for a prohibition order under s 25 as long as it is served seven days or more before the public event in question. Moreover, the Commissioner is entitled to bring only one application under ss 25(1) or 26 in respect of the same public assembly: s 27(3). Accordingly, it is prudent for the Commissioner to wait until an applicant has served a notice which represents his or her final position before commencing proceedings. I note that there were, in the present case, relatively substantial differences between the First and Third Notices. Furthermore, the Commissioner is not entitled to commence proceedings until the Commissioner has conferred with the organiser and taken into consideration matters raised by the organiser.

Conclusion

62. I accept Chief Inspector Rochester’s unchallenged evidence that the potential for conflict and public disorder on Saturday 12 December 2015 is high. It is, in my view, likely that the public assembly proposed by the defendant, and associated gatherings in the vicinity, will present a significant challenge to the plaintiff’s police officers to keep the peace. I am persuaded that the balance between the right of participants in this public assembly to freedom of speech and association on the one hand and the rights of other persons not to have their own activities impeded by the exercise of those rights on the other should be struck by making an order under s 25.

Costs

63. I note that neither party seeks an order for costs. In these circumstances the appropriate order is that there be no order as to costs.

Orders

64. I make the following orders:

1. Order, pursuant to s 25(1) of the Summary Offences Act 1988 (NSW), that the holding of the public assembly referred to in the Notice of Intention to Hold a Public Assembly” dated 6 November 2015 is prohibited.

2. Make no order as to costs, with the intention that each party is to bear his own costs of the proceedings.

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Decision last updated: 11 December 2015